MRS. FIROZA KHATOON, PRESIDENT
The case of the complainant/M/s. Allen Laboratories Ltd. is that they produce various Homoeopathic and Ayurvedic medicines for which Light Liquid Paraffin is needed. To safeguard from theft and burglary, the complainant took a burglary policy being no.51090046190100000117 for sum assured of Rs.2,78,64,000/- (Rupees two crore seventy eight lakhs sixty four thousand) only with effective date from 27.08.2019 to 26.08.2020 from opposite party no.1 and paid a sum of Rs.12,337/- (Rupees twelve thousand three hundred thirty seven) only as premium for the said burglary policy. It is further stated that on 22.02.2020 at about 10 A.M. the store manager informed that approximate 28000 Liters Light Liquid Paraffin is missing. The said Paraffin was purchased from Mehta Medicare Private Ltd. vide invoice no.MM/DG14240/19-20 against the order no.RMH/00091 dated 09.01.2020. The complainant lodged a complaint before Baguihati Police Station vide G.D.E. no.1594 dated 22.02.2020. On 24.02.2020 vide email, the complainant informed opposite party no.1 about the abovementioned loss. As the police was inactive, finding no other alternative, the complainant filed an application under section 156(3) Cr. P.C. before the Ld. CJM Court, Barasat and the Ld. Court had been pleased to direct the concerned police station to lodge the same as FIR. Under direction of the Ld. CJM, Barasat, the concerned police station lodged FIR being no.213 of 2020 dated 04.07.2020. After completion of investigation, the investigating officer submitted charge sheet being no.94 of 2021 under section 381/408 I.P.C. On 31.03.2021 before the Ld. Chief Judicial Magistrate at Barasat against 7 (seven) persons who were in charge of the store of the complainant. The value of the stolen article was Rs.17,66,623/-(Rupees seventeen lakhs sixty six thousand six hundred and twenty three) only. A surveyor was appointed by the opposite party who visited the godown of the complainant and after proper verification prepared a report. The complainant after calculating the net amount of loss to the tune of Rs.17,66,623/- (Rupees seventeen lakhs sixty six thousand six hundred and twenty three) only submitted its claim on 11.12.2020 with the opposite parties for indemnification of the said loss. On 10.08.2021, the opposite parties sent a repudiation letter on the grounds that as the burglary done by the agent/servant of the complainant company no claim can be entertained as per terms and conditions of the insurance policy. The complainant submits that being the insured, he is entitled for indemnification of loss suffered by it for sum of Rs.17,66,623/- (Rupees seventeen lakhs sixty six thousand six hundred and twenty three) only under burglary insurance policy. The opposite parties by refusing the genuine claim of the complainant is liable for deficiency in service. Hence this case.
The opposite parties by filing written version deny and dispute the allegation made by the complainant. The opposite parties state that the complainant/M/s. Allen Laboratories Ltd., had taken an insurance policy schedule for burglary (single location) insurance, being policy No. 51090046190100000117, valid from 27.08.2019 to 26.08.2020. In this policy, the complainant did not take add on cover for theft extension which could been taken by the complainant by paying extra premium. As the premium for covering theft was not received by the opposite party/insurance company, the stock of the complainant was only covered for burglary as defined in the policy under operative clause (a) which read as follows :-
“Any loss of or damage to property or any part thereof whilst contained in the premises described in the Schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and hold-up.
(b) Damage caused to the premises to be made good by the insured resulting from burglary and/or house breaking or any attempt there at any time during the period of insurance.”
The opposite parties further state that after receiving the information from the complainant about the missing stock of ‘Light Liquid Paraffin’ from store department on 22.02.2020, the opposite parties deputed a surveyor, M/s. Saha & Associates to carry out survey, investigate the matter in detail and assess the loss suffered by the complainant.
It is admitted by the opposite parties that the complainant lodged G.D.E. no.239 dated 04.07.2020. The FIR under section 156(3) Cr.P.C. registered as FIR no.213/2020 dated 04.07.2020. Investigating officer submitted charge sheet on 14.07.2020 against accused (1) Ashok Kumar Dey (store keeper), (2) Tarun Mondal (store keeper), (3) Subrata (store keeper), (4) Avik Goswami (store in charge), (5) Sandip Roy Chowdhury (store manager), (6) Ajit Sarkar (maintenance in charge). All the above named accused were employees of the complainant and they were entrusted with the materials. Charge sheet was submitted by the investigating police officer against abovenamed persons under section 381/408 I.P.C. The opposite parties categorically state that the surveyor report dated 29.01.2021 clearly reveals that no forcible entry into and/or exit from the insured premises was noticed during inspection. On enquiry by the security personnel, forcible entry into and/or exit from the insured premises was also not been established. Therefore, in terms of the policy condition the complainant is not entitled to get indemnification for any loss from the opposite parties. There is no deficiency in service on the part of the opposite parties. Therefore the case of the complainant is liable to be dismissed.
Points for determination
- Is the complainant a consumer in terms of Consumer Protection Act, 2019 ?
- Is the complainant entitled to get relief or reliefs as claimed for ?
Decision with reasons
In order to prove the case, the Managing Director of the complainant Dr. Gour Pada Sarkar submitted evidence on affidavit and affidavit in reply to the questionnaire of the opposite parties. The documents submitted in evidence are marked as follows:-
Document 1:- Photocopy of board resolution authorising Dr. Gour Pada Sarkar to conduct the case;
Document 2:- Photo copy of policy;
Document 3:- Premium receipt;
Document 4:- Complaint before Baguihati Police Station;
Document 5:- intimation of theft to opposite parties via email;
Document 6:- F.I.R. 156(3) Cr.P.C.;
Document 6/1:- Formal F.I.R.;
Document 7:- Charge Sheet;
Document 8:- Claim Form submission date 10.12.2020;
Document 9:- Repudiation letter dated 10.08.2021 by opposite parties.
The opposite parties submitted evidence on affidavit and affidavit in reply to the questionnaires of the complainant. The photo copies of the documents by the opposite parties are marked as follows:-
Document –A/1:- The terms and conditions of the policy;
Document-B:- Survey report;
Point Nos.1 and 2
For the sake of brevity and convenience both the points are taken up together for consideration and discussion.
The admitted facts are as follows:-
- The complainant obtained a policy from opposite party no.1 being ‘policy schedule for burglary (single location insurance)’ having its effective period on and from 27.08.2019 to 26.08.2020 (Document No.2).
- The complainant M/s. Allen Laboratories Ltd. is engaged in the business of production of Homoeopathic and Ayurvedic medicines for which it stored 28,000 liters Light Liquid Paraffin at its factory premises. The said Light Liquid Paraffin was stored in the factory premises of the complainant.
- On 22.02.2020 at about 10.00 A.M. the Store Manager informed that approximate 28,000 liters Light Liquid Paraffin is missing from the store.
- The complainant lodged a complaint with Baguihati Police Station which was entered as G.D.E. no.1594 dated 22.02.2020.
- The complainant vide email dated 24.02.2020 informed the incident to opposite party no.1.
- On the same date i.e. on 24.02.2020 opposite party no.1 appointed a surveyor namely M/s. Saha & Associates to carry out survey, investigate the matter in detail and assess the loss suffered by the complainant.
- The complainant filed an application under section 156(3) C.R.P.C. before the Ld. Chief Judicial Magistrate at Barasat, North 24 (Pgs.). On 02.07.2020, under direction of the Ld. Chief Judicial Magistrate, Barasat, the concerned Police Station lodged an F.I.R. being no.213 of 2020 dated 04.07.2020 against the accused persons.
- The investigating officer filed charge sheet being no.94 of 2021 under section 381/408 I.P.C. on 31.03.2021 before the Ld. Chief Judicial Magistrate at Barasat, North 24 (Pgs.) against seven accused persons in charge of the store of the complainant where from the material was stolen.
It appears that the complainant has submitted an F.I.R. / formal F.I.R. and charge sheet relating to the incident of theft Light Liquid Paraffin which are marked Document-6, Document-6/1 and Document-7 respectively. The surveyor report is marked Document-B. It further appears that the theft of Light Liquid Paraffin was detected on 22.02.2020 within the effective period of the said policy. Complainant submitted its claim with the opposite parties on 10.12.2020 (Document-8). The opposite parties vide letter dated 10.08.2021 repudiated the claim of the complainant on the grounds that the opposite party no.1 is not liable to pay in respect of any loss or damage where any intimate or member of the insured’s house hold or by his ‘business staff’ or any person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss or damage have been expedited or any way assisted or brought about by any such person or persons.
In course of argument Ld. Advocate for the complainant stated that the complainant is a consumer who availed the service of the opposite parties for the indemnification of loss if suffered by theft / burglary under the burglary insurance policy and for obtaining such service the complainant paid premium for such policy. Therefore, the claim of the complainant is legitimate. As the opposite parties have rejected the legitimate claim of the complainant, they are liable for deficiency of service.
In reply, Ld. Advocate for the opposite parties submits the claim of the complainant had been repudiated by the opposite parties as per terms and conditions under exclusion clause no.(ii) of the policy.
Ld. Advocate for the opposite parties referred two judgements of the Hon’ble Apex Court viz United India Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal and National Insurance Company Ltd. Vs. The Chief Electoral Officer and others.
It has been argued that the Hon’ble Apex Court time and again reiterated in several judgements that the definition of any term given in the policy is binding on both the parties. The policy is a contract between the parties and both the parties are bound by the terms of the contract.
In United India Insurance Co. Ltd. Vs. M/s. Harchand Rai Chandan Lal the Hon’ble Apex Court vide its judgement dated 24.09.2004 observed that the insurance policies contained the definition of ‘burglary and / or housebreaking’ which read as follows:
“Burglary and/or Housebreaking’ shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family”.
It is observed that as per the definition, the word ‘burglary’ followed with ‘violence’ make it clear that if any theft is committed it should necessarily precede with violence i.e. enter into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family. Therefore, the element of force and violence is condition precedent for Burglary and Housebreaking. In absence of violence or force the insurer cannot claim indemnification against the insurance company. The terms of the policy have to be construed as it is and the Court cannot act or subtract something. The Court howsoever liberally construes the policy but cannot take liberalism to the extent of substituting the words which are not intended. It was also observed that it is true that in common parlance the term ‘burglary’ would mean theft but it has to be preceded with force and violence. If the element of force and violence is not present then the insurer cannot claim compensation against theft from the insurance company. The Hon’ble Apex Court categorically observed that if an insurer sustained loss in technical terms of the criminal law, no relief can be given to him unless his case is covered by the terms of the policy. It is not opened to interpret the expression appearing in policy in terms of common law, but it has to give meaning to the expression as defined in the policy. Therefore, when the definition of the word ‘burglary’ has been defined in the policy then the cause should fall within that definition. Similar view was taken by the Hon’ble Apex Court on 08.02.2023 in National Insurance Co. Ltd. Vs. The Chief Electoral Officers and others.
In reply, Ld. Advocate for the complainant relied upon a judgement dated 12.04.2019 passed by the Hon’ble Apex Court in Bharat Watch Company Vs. National Insurance Co. Ltd. it has been argued that the Ld. N.C.D.R.C vide its judgement dated 16.04.2015 reversed the judgment and finding arrived at by the Ld. D.C.D.R.C, Solapur and Ld. S.C.D.R.C, Maharashtra. Against the judgement passed by the Ld. NCDRC, the appellant preferred Appeal No.3912/2019 before the Hon’ble Apex Court. The Hon’ble NCDRC observed that the terms of the exclusion in a policy of insurance against Burglary and/or Housebreaking where the loss or damage was caused without forcible and violent entry to and/or exit from the premises, the claim could not be maintained. The Hon’ble Apex Court after due deliberation set aside the impugned judgement and order of the Hon’ble NCDRC and affirmed the order and judgement of Hon’ble DCDRC, Solapur. According to the Ld. Advocate for the complainant that Hon’ble Apex Court observed that in case of burglary and/or theft burden of proof of forceful and violent entry and/or exit from the premises is not mandatory on the complainant. According to him as admittedly there was theft of Light Liquid Paraffin from the store of the complainant, the complainant is entitled to get his claim.
On meticulous perusal of the judgment of Bharat Watch Company Vs. National Insurance Co. Ltd. we find that the complainants/appellant specific contention was that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the exclusionary conditions of the policy cannot be binding upon them.
In this case, the Hon’ble DCDRC, Solapur and Hon’ble SCDRC, Maharashtra came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant/complainant and therefore those conditions were not binding. Such finding was affirmed by the Hon’ble Apex Court in this judgment.
In this case we find that the terms and conditions of the policy has not been filed by the complainant. It has been filed by the opposite parties in evidence (Document-A/1). In the four corner of the complaint application, the complainant has not alleged that it has not received the terms and conditions of the policy from the opposite parties along with the policy document.
Document-A/1 is the terms and conditions of the burglary and housebreaking insurance policy (business premises).
Clause (a) of the operative clause is as follows:-
“(a) Any loss of or damage to property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold-up.”
Clause (ii) of exclusions as follows:-
“(ii) Loss or damage where any inmate or member of the insured’s household or of his business staff or any other person lawfully in the premises in the business is concerned in the actual theft or damage to any of the articles or premises or where such loss of damage have been expedited or any way assisted or brought about by any such person or persons.”
It is needless to reiterate the Document A/1 has been submitted in evidence by the opposite parties on affidavit. The complainant in course of cross examination by filing questionnaires against the evidence of the opposite parties questioned as to whether the rules and regulations or GTC of the policy was provided to the complainant. In answer to this question the witness of the opposite parties on affidavit stated that the policy conditions have been provided to the complainant. The complainant has not denied the answer of the opposite parties in this regard. We have already discussed that the complainant has not alleged in his complaint that the opposite parties have not provided the terms and conditions of the policy.
Therefore, the case of the Hon’ble Apex Court Bharat Watch Company Vs. National Insurance Co. Ltd. referred by the complainant is distinguishable since the document of the terms and conditions (Document-A/1) has not been denied and disputed by the complainant.
From the charge sheet (Document No.7) as well as from the surveyor report (Document-B) we do not find that there was any actual forcible and violent entry and/or exit from the premises by the accused persons.
The charge sheet (Document No.7) reveals all seven accused persons are employees of the complainant. They were entrusted with the materials about 28000 Liters Light Liquid Paraffin but they dishonestly misappropriated the said material and committed criminal breach of trust. This charge sheet (Document No.7) has been relied upon by the complainant.
In view of the exclusion clause no.(ii) in Document A/1, it is crystal clear that the complainant is not entitled to get any claim submitted on 10.12.2020 (Document No.8).
Having considered the elaborate discussion made above, we are of the opinion that the repudiation letter dated 10.08.2021 (Document No.9) issued by the opposite party does not suffer from any infirmity or illegality.
In consequence, the complainant though a consumer is not entitled to get any relief as prayed for.
Thus, Point No.1 is decided in favour of the complainant.
Point No.2 is decided against the complainant.”?
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
Dictated and corrected by
…....................................
President
