:    J U D G M E N T    :

The brief fact of the case is that the complainant is the proprietor of M/S D.K. Enterprise having its business with Tata Indicom, Nokia & Nestle Ltd., which is only source of livelihood of the complainant.  The complainant has obtained Burglary Standard Policy being No. 313301/48/2010/1707 from OP Insurance Company which was effective on and from 30.09.2009 to 29.09.2010.  The complainant has paid the premium amount of Rs. 7,500/- plus service tax of Rs. 773/- & stamp duty of Rs. 5/= i.e., total amount of Rs. 8,273/- by cheque bearing No. 4033004392 dtd.  29.09.2009.  The said policy covered stock in trade (Sum insured Rs. 58,00,000/-, furniture / fixture (Sum insured Rs. 1,00,000/- & coins or currency (Sum insured Rs. 1,00,000/-).

That on 27.10.2009 at about 1.00 am the complainant went to bedroom for sleeping.  At about 7.30 am, the complainant woke up and observed that Almirah was opened.  The lock of main gate was broken.  The cash amount of Rs. 72,089/- kept in a bag was not there.  He quickly went to Nestle go-down and observed that the hooks of two locks were broken. Goods worth Rs. 7,00,000/- were stolen.  The complainant has suffered financial loss of Rs.7,72,089/-.  The complainant has lodged G.D. Entry being No. 1588 dtd.  27.10.2009.  The police has enquired the matter and started P.S. case u/s 380 I.P.C.  On 28.10.2009, the complainant informed the incident to the office of OP / Insurance Company and Chief Manager, SBI, Kalyani Branch.  A.C.J.M., Kalyani, Nadia accepted the police report on 21.07.2010.  The Apex surveyors Pvt. Ltd. surveyed the place of occurrence and submitted the report on 26.11.2010.  The OP Insurance Company on 12.01.2011, 25.02.11 and 22.03.12 informed the complainant by letters that Section 380 IPC is relating to theft only and burglary policy is not covering.  Only on this ground the OP Insurance Company repudiated the valid claim of the complainant.  The complainant supplied all required documents to the surveyor and OP Insurance Company.  But nothing was paid to complainant. There is a gross negligence and deficiency in service on the part of the OP, Insurance Company.  The complainant has claimed of Rs.7,72,089/- along with cost and compensation and for getting relief the complainant has knocked at the door of the Forum.  Hence, the complaint was filed by the complainant.  

The OP Insurance Company files written version stating, inter alia, that after receiving the information regarding ‘theft’ from the insured, the OP appointed the surveyor for assessment of loss.  After assessment, the surveyor submitted report.  As per police report it is evident that the case was registered U/S 380, IPC i.e., theft and accordingly F.R.T. was accepted in the court.  OP further stated that no objection was put against the said report and Section 380 IPC relating to ‘theft’ only does not come within the purview of Burglary policy.  So the petitioner / complainant is not entitled to get any relief as prayed for. 

  Under such circumstances, the present petition is liable to be rejected with cost. 

Now the Forum is to consider the following points:-

1. Whether the complainant is to be treated as consumer or not as per 

Consumer Protection Act 1986.

2. Whether there is any gross negligence or error or mistake or deficiency in service on the part of OPs or not,
3. Whether the complainant is entitled to get any relief as prayed for.

            DECISION WITH REASONS

Point No. 1.

            We have perused the policy certificate i.e., Burglary Standard Policy Schedule bearing No 313301/48/2010/1707 covering the period on and from 30.09.09 to 28.09.10.  From the said certificate it is clear that the complainant paid Rs. 8,273/- (out of which 7500/- paid for gross premium) and to that effect the said policy certificate has been issued by OP / Insurance Company.  So as per Consumer Protection Act, 1986, the complainant is to be treated as consumer and OP Insurance Company is to be treated as service provider as the complainant paid the consideration amount to the OP / Insurance Company for getting proper service from them.

Point Nos. 2 & 3:-

            Before deciding the point Nos. 2 and 3, we have perused the complaint, written version, evidence on affidavit, arguments along with all documents filed by both parties.   In the instant case, the theft is admitted.  There is no dispute between the parties at this point as from the FIR it is clear that Kalyani Police Station has started a case relating to theft in dwelling house etc.  U/S 380 of I.P.C. OP / Insurance Company has argued that Section 380 I.P.C. is relating to theft only and the Burglary Policy is not covering the theft.  So complainant is not entitled to get any relief.  Now, we try to decide whether the theft comes within the purview of Burglary or not.  If we decide the said thing, the matter would be solved or settled.  The Ld. Counsel for complainant supplied the various rulings in deciding the said matter:-

1. In National Insurance Co. Ltd. vs. Suresh Gupta, 1 (2005) CPJ 436, C.D.R.F., Delhi held that the theft is the genesis of every other crime namely robbery, dacoity, hijacking or burglary.  The dictionary meaning of word ‘burglary’ is an act of entry into a building illegally with the intent to commit theft.  Thus, they have an essential and genetic element or ingredient in all the above crimes namely robbery, dacoity or burglary.  Therefore, to say that loss by way of theft is not covered by the insurance policy is not correct.  The repudiation of claim of the insured on these grounds is entirely misconceived and amounts to frustrate and defeat the rightful claim of insured. 
2. In Mono Industries vs. New India Assurance Co. Ltd.  II (2008) CPJ 125 N.C. wherein Hon'ble National Commission held that the entry is effected by exercise of any force, however slight, it was sufficient to constitute an entry within the meaning of the policy.  Such entry can be described as violent in nature and character.  Culprits entered by removing roof sheet and exit was by breaking locks causing forceful entry and burglary as contemplated by policy termed took place.
3. In New India Assurance Co. Ltd. vs. Murti Enterprise III (2006) CPJ 112 (NC), wherein Hon'ble National Commission held that risk of theft & burglary covers the insurance policy.  As per investigation, locks were not broken, entry of culprits through roof causing Act of burglary / theft having done without permission of complainant, deemed to be forcible entry.  Admittedly the claim of the complainant is not fraudulent.
4. In New India Assurance Co. Ltd. Vs. Star Studio’s and Digital Gallery II (2014) CPJ 271 (NC), wherein Hon'ble National Commission held that lock had been broken open with use of force and unauthorized entry was made for committing burglary.  The policy was issued to indemnify insured to extent of intrinsic value of any lose due to burglary or house braking.  Repudiation is not justified.

            From the surveyor report, it is evident that on 27.10.09 in between 01.00 hrs and 7.30 hrs some miscreants entered into the premises of complainant breaking the locks and hooks of the doors and gates and stole away stock in trade and cash of M/S D.K. Enterprise.  In the said survey report, the surveyor opined that however we confirm arising out of our verification that there was forcible entry into the premises including inter communicating Go-downs No. 2 & 3.

            As per Concise Oxford Dictionary, 11^th Edition, Oxford University Press, page 187 “Burglary is an illegal entry into a building with intent to commit a crime such as theft”.  So the ingredients of theft are included in Burglary as per our view.

            So from the detailed analysis , it is clear that force for illegal entry is proved as in the instant case the miscreants entered into the room for the purpose of theft by breaking of locks which comes within the purview of house breaking and also comes within the purview of policy in the instant case.  So as per our view the repudiation of claim is illegal and there is a clear deficiency in service on the part of OP / Insurance Company.  Furthermore that the complainant is entitled to get relief as against OP / Insurance Company.

            Now we try to calculate how much claim amount would be provided to the complainant.  

            From the surveyor report it is observed that though during the survey, the surveyor / surveyors did not find any old stock, but as a measure of abundant caution they would deduct 10% on account of old and obsolete stock though it looks a bit harsh.  Incident of loss due to burglary was duly reflected in the audit report as well as balance sheet and profit and loss account for the financial year 2009 – 2010.

            But we find that in assessment of loss, 10% of old stock for the amount of Rs. 60,990.37 has been deducted.   At this point we are not agreed with the said deduction as the report envisaged that there is no old stock.  So as per our view the complainant is entitled to get Rs. 6,09,903.77 (rounded off Rs. 6,09,900/-) which was already assessed by the surveyor in his report dtd.  26.11.2010.

            From the said report it is observed that the cash amounting to Rs. 72,089/- lying in bag in open beside the still almirah in the residential room of the complainant, which should be kept in a safe custody or in a locked safe, but he did not keep it in a safe custody.  But regarding this fact that as per report of survey, amount of Rs. 72,089/- was also taken away by the miscreants.   It is admitted that cash was kept in the room of complainant which is sufficient safe custody taken by the complainant as per our view.   It is admitted that the miscreants broke the lock of the main gate of house and entered into the house.   So it is clear that the complainant before theft, locked the main gate which constitutes taking the safe custody by the complainant.  It is not correct view of the survey report that the cash should be kept always in almirah in locked safe.  The cash amount kept in a room of complainant is also safe custody.  Moreover, when it was admitted and genuine fact that the bag containing of Rs. 72,089/- the closing balance of business dtd.  26.10.2009 was stolen by the miscreants from the residential room of complainant, there is no scope to escape from the liability on the part of OP Insurance Company.  Moreover, the complainant did not invite the miscreants intentionally to enter into the room for committing theft.  So as per our view it is very much genuine claim from the end of complainant. 

            So the complainant is entitled to get relief against OP Insurance Company and there is a gross negligence and deficiency in service on the part of OP Insurance Company.  The point Nos. 2 & 3 are thus decided.  The case succeeds.

            Hence,

Ordered,

                        That the case CC/2012/36 be and the same is allowed on contest against OP Insurance Company  with cost of Rs. 1,000/-.

            The OP Insurance Company is hereby directed to pay Rs. 6,09,900/- (loss of stock in trade) plus Rs. 72,089/- (cash amount lying in bag) plus Rs. 1,000/- (cost) i.e., total of Rs. 6,82,989/- to complainant within 30 days from the date of order, i.d., interest @ 10% pa shall be charged upon the awarded amount till full realization.  After expiry of said 30 days the OP Insurance Company  is also bound to pay Rs. 50/- per day in Consumer Welfare Fund / Legal Aid Fund till full realization.  

            Let the copy of this order be supplied to the parties free of cost.