DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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National Cooperative Development Corporation, SCO No.82-83, Second floor, Sector 17, Chandigarh, through its Regional Director, namely Mr.Krishan Kumar Choudhary.

…..Complainant

                                      V E R S U S

The Oriental Insurance Company Limited, Regional Office, SCO No.109-111, Sector 17-D, Chandigarh, through its Chief Regional Manager.

……Opposite Party

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.Gaurav Bhardwaj, Counsel for complainant.                              Sh.Sukaam Gupta, Counsel for OP.

PER P.L.AHUJA, PRESIDENT

1.                National Cooperative Development Corporation, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against The Oriental Insurance Company Limited - Opposite Party (hereinafter called the OP), alleging that it had taken an insurance policy in respect of the office appliances (computer, printer etc.) vide policy No.231100/48/2011/171 – Annexure C-2, valid and effective for the period from 22.4.2010 to 21.4.2011 from the OP. It has been alleged that the office premises of the complainant were closed/locked at 5.30 PM on 24.12.2010. The office remained closed on 25.12.2010 and 26.12.2010 on account of Saturday and Sunday. On 27.12.2010 at about 8.45 AM while opening the office premises, the concerned official noticed that the main entrance door of the office premises was lying open and the following insured office equipments were found missing :-

a)      Computer System Core 2 Duo, Processor @ 2.8 GHz CPU along with 17” TFT;

b)      HP Laser Printer;

c)      UPS 500 VA (Model : APC)

The value of the above noted stolen items is Rs.33,200/-. The complainant reported the incident to the Central Police Station, Sector 17, Chandigarh vide complaint – Annexure  C-4 and also to the Manager of the OP vide letter – Annexure C-5 on 27.12.2010. The police registered an FIR bearing No.482 dated 28.12.2010, copy of which is Annexure C-6. The complainant also submitted a formal claim to the OP (Deptt. Misc. claims), Service Centre vide letter dated 9.2.2011, copy of which is Annexure C-7. The OP vide its letter dated 8.6.2011 – Annexure C-8 advised the complainant to submit the untraceable report under Section 173 of Cr.P.C. The complainant obtained the Untraceable Report – Annexure C-9 from the Court of Chief Judicial Manager, Chandigarh only on 28.11.2011 and the same was submitted to the OP immediately thereafter. However, to the utter surprise of the complainant, the OP informed it vide letter dated 29.9.2011 – Annexure C-10 that the competent authority had repudiated the claim on the ground that as per the police report, there was theft and no burglary and housebreaking in the insured premises. The complainant sent a letter dated 26.12.2011 – Annexure C-11 to the OP to reconsider its claim. The OP again replied vide letter dated 7.3.2012 – Annexure C-12 that the claim had been already repudiated. It has been contended that the version in the complaint to the police coupled with the spot verification by the police reveals that there was house breaking but the police registered the case only under Section 380 of the IPC. It has been contended that repudiation of the claim by the OP is illegal and erroneous. The complainant has made a prayer for a direction to the OP to pay its claim in the sum of Rs.33,200/- along with interest, apart from making payment of compensation and litigation expenses.

2.                OP in its written statement has admitted the insurance policy, copy of which is Annexure R-1. However, it has been stated that the complainant had taken a Burglary Insurance Policy. After receiving intimation regarding theft, the OP had immediately deputed the surveyor to assess the loss, who submitted his survey report and assessed the loss to the tune of Rs.21,000/- vide report – Annexure R-2. After receiving the survey report, the OP came to know that the case of the complainant did not fall within the purview of the operative clause of the insurance policy because there was no forcible or violent entry or exit and the police had registered a case only under Section 380 of the IPC. It has been averred that the surveyor in the survey report had mentioned that he had found that the kunda of the main door was intact and there was no forcible or violent entry or exit from the premises. The copies of the photographs and letters are annexed as Annexures R-4 & R-5.

3.                In its replication, the complainant has contended that the act of opening of the main door of its office by an unknown person, who took away the lock and the computer articles would tentamount to having entered the premises by force, without any permission/authority.

4.                The parties led evidence in support of their contentions.

5.                After scanning the entire evidence and hearing the arguments addressed by the learned Counsel for the parties, we feel that the complaint merits dismissal.

6.                A perusal of the copy of the insurance policy – Annexure C-2/R-1 and the terms and conditions show that the complainant had obtained a Burglary and Housebreaking Policy in respect of its stock in trade lying in its property situated in SCO No.82-83, Sector 17-C, Chandigarh. The copy of complaint – Annexure C-4 coupled with FIR – Annexure C-6 lodged with the SHO, Police Station, Sector 17, Chandigarh show that the Regional Director of the complainant lodged a complaint with the police stating that the main entrance door of the office premises was found open without lock on 27.12.2010 and the office equipments i.e. Computer System Core 2 Duo, Processor @ 2.8 GHz CPU along with 17” TFT, HP Laser Printer and UPS 500 VA (Model : APC) were found missing. The police could not effect any recovery and filed an untraced report, which was accepted by CJM, Chandigarh vide order dated 28.11.2011, copy of which is Annexure C-9. The OP after obtaining the report of the surveyor repudiated the claim vide letter dated 29.9.2011 – Annexure C-10 on the ground that there was no burglary and house breaking in the premises.

7.                A bare perusal of the terms and conditions attached with the policy shows that the OP agreed to indemnify the insured to the extent of intreinsic value of 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. In the instant case, a perusal of the FIR  - Annexure C-6 shows that only a case of theft under Section 380 of the IPC was registered on the complaint of the complainant and no case under Section 457 of the IPC in respect of Lurking house- trespass or house - breaking by night in order to commit offence was registered. The complainant also did not allege in the complaint/FIR to the police that there was house breaking and entry for committing theft. The words “theft following upon an actual forcible and violent entry of and/or exit from the premises” mentioned in the terms and conditions of the insurance policy are quite significant. Though it is mentioned in the report to the police by the complainant that the main entrance door of the office premises was opened (and it was) without lock, yet it is not mentioned that the lock was broken by the person/persons who committed theft. The Survey Report – Annexure R-2 shows that there were no visible sign of forcible and violent entry or exit from the insured premises and the claim of the insured is not admissible as per the terms and conditions of the burglary insurance policy. It is also pertinent that at the time of investigation, the surveyor found that the ‘kunda’ of the main door was intact and there was no sign of breakage/forcefully opening the same. The copies of photographs – Annexure R-4 also do not show any sign of forcible and violent entry or exit from the insured premises. No doubt the circumstances do point out the possibility of entry of  thief/thieves in the insured premises nevertheless there is no evidence of forcible and violent entry or exit from the premises. There is no such police report which could show that any broken lock was recovered at the spot.

8.                The learned Counsel for the OP has cited National Insurance Company Limited Vs. Vasundhra Sales, Revision Petition No.3490 of 2007 decided on 30.3.2012 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi wherein, relying upon a decision of the Hon’ble Apex Court, it was found that as per the definition of Burglary in the policy, if any theft is committed it should necessarily precede with force or violence i.e. 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. Therefore, the element of force or violence is a condition precedent for burglary and house breaking. The terms of the insurance policy have to be construed as it is, and nothing can be added or subtracted from it. In the absence of violence or force, because of the above terms and conditions of the policy, the insuree cannot claim indemnification of the claim for theft.

9.                In view of the law laid down in the above cited ruling and applying it to the facts of the present case, we find that the element of force or violence which is a condition precedent for burglary and house breaking is missing in this case. Even if it is assumed that entry of the alleged thief in the premises of the complainant was forcible, it cannot be assumed that the same was a violent entry. Consequently, we are of the opinion that since there was no burglary or house breaking in the premises of the complainant, the claim of the complainant was rightly repudiated by the OP.

10.              For the reasons recorded above, the complaint is devoid of any merit and the same is dismissed, leaving the parties to bear their own costs.

11.              The certified copies of this order be sent to the parties free of charge. The file be consigned.