KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 147/2001 JUDGMENT DATED: 8.4.09 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER The Branch Manager, New India Assurance Co.Ltd., : APPELLANT Kattappana. Rep.by its Divisional Manager, New India Assurance Co.Ltd., Divisional Office-I, Kottarathil Building, Palayam, Thiruvananthapuram. (By Adv.M.Nizamudeen) Vs. Thomas, S/o Joseph, : RESPONDENT Poovathanikunnel House, Mavadi.P.O., Pallikkavila. JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellant is the New India Assurance Company that is under orders to pay a sum of Rs.55000/- to the complainant with respect to the Shop Keepers Insurance policy. 2. It is the case of the complainant that the articles in his provisional store were stolen by the land lord. According to him the articles were worth Rs.2.5 lakhs. The police have registered a case against the landlord for lurking house breaking by night and theft. According to him the goods of his grocery shop including the furniture were removed by the landlord and the landlord took possession of the shop. 3. The appellant had contended that the policy did not envisage such a situation. The policy coverage for articles worth Rs.60000/- with respect to loss occasioned by burglary is admitted. According to them the instant case is not covered by the above policy. It is also contended that the claim is exorbitant; and that complainant had admitted in the statement given to the police that the value of the goods allegedly stolen amounted to Rs.15000/- only. The same is the quantum mentioned in the police mahasar. 4.The evidence adduced consisted of the testimony of PW1, DW1;and Exts.P1 to P7, R1 to R6.. 5. The Forum ordered the appellant to pay Rs.55000/- as the goods were insured for Rs.55000/-(sic). The Forum has also rejected the contention of the appellant that the matter involved cannot be treated as burglary, but something relating to the dispute between landlord and the tenant. We find that it was brought out in evidence that apart from the criminal complaint the complainant had filed a suit before the Munsiff Court as OS.229/98 with respect to theft and trespass committed by the landlord. The documents produced include the charge sheet and the mahasar in the criminal case charged against the landlord. The value of the goods is mentioned Rs.15000/-. It was also brought out that the goods included table, chair, desk, balance and weights and certain grossery items which were recovered from the house of landlord. It is admitted that the above items were sold at the Court of JFCM and the sale proceeds are Rs.3510/-. The above amount was not received by the complainant. We find that although burglary as such is not defined in the Indian Penal Code the term is explained in the conditions of the policy which meant theft involving entry into or exit from the insurer premises by forcible and violent means. In United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal IV(2004) CPJ 15 (SC) it has been also held the burglary meant forcible and violent entry followed by theft. The case of the complainant is that the lock of the shop room door was broken and articles were removed. The same would certainly attract the term burglary. But the essential ingredient of the theft is the intention to take movable property without the consent to the owner thereof. Evidently in the instant case the intention was to get the tenant/complainant evicted from the premises and take possession of the shop room by the landlord. We find that such an instance which is the incident related to landlord/tenant dispute is not the burglary contemplated when the policy was issued. The policy is meant for removal of goods proceeded by force or violence with the intention of appropriating the same. We find that it cannot be stated that intention of the landlord was to appropriate the grossery articles and furniture of the shop belonging to the complainant but was to evict the tenant. Civil and criminal cases are pending in the matter. In the circumstance we find that the order of the Forum cannot be sustained. The same is set aside and the appeal is allowed. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER
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