Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant had obtained burglary standard policy from the Opposite Party bearing No. 2010001214P110708046 dated 28.02.2015 valid for the period w.e.f. 28.02.2015 to 27.02.2016 with a sum insured of Rs.27 crores on payment of premium of Rs.6461/- and in this policy, (i) all the stocks of all kinds of yarn/ fabrics/ raw and packing material/ readymade garments/ suiting/ shirting/ finished/ unfinished/ semi finished goods and all other similar nature goods whilst lying or stored or in process or held in rust or on commission basis at the said address- sum insured Rs.11.50 crores, (ii) on entire plant and machinery complete with accessories including tools of trade, utility services, generator set, transformer, cables and other similar nature goods whist lying or shifted or installed therein- sum insured Rs.12 crores and (iii) On entire building including boundary wall (above plinth level only) built of first class construction situated at above aid addressed – sum insured Rs..50 crores. At the time of policy, no terms or conditions were ever supplied by the Opposite Party to the complainant. Further alleges that during the subsistence and validity of the policy in question, on the intervening night of 11-12 December, 2015 a major theft had taken place in the locked factory premises and godowns into the premises of the complainant and had burglared thread and fabrics (which lateron after counting the entire stocks of thread and fabrics was found to be 59 cartoons of thread and 160 rolls of fabrics) and thus there is a forcible and violent entry into the premises used by the miscreants for committing theft/ burglary. The complainant immediately informed the Police at Kanganwal, Disrict Moga as well as to the Opposite Party. In this regard, DDR dated 15.12.2015 is also lodged by the police authorities. Thereafter, the Opposite Party appointed surveyor namely Deepak Malhotra. The complainant lodged the claim with the Opposite Party and also completed all the formalities with the Opposite Party, but the Opposite Party declined the genuine claim of the complainant on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party may be directed to pay rs.14,10,078/- being the amount of loss on account of theft/ burglary and also to pay compensation amounting to Rs.1 lakh besides Rs.25,000/- as litigation expenses or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that it is not disputed that the complainant had obtained burglary standard policy from the Opposite Party bearing No. 2010001214P110708046 dated 28.02.2015 valid for the period w.e.f. 28.02.2015 to 27.02.2016 on the stock lying in the premises as well for a total sum insured of Rs.1,15000,000.00 subject to terms and conditions and exclusion mentioned in the policy. The insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the condition in the policy under operative clause that the company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon to indemnity the insured to the extent of intrinsic value of (a) Any loss of or damage to the property or any part thereof whist contained in the premises described in the schedule hereto due to burglary or house breaking (theft followed upon an actual forcible and violent entry of and/ or exist from the premises? And hold up (b) provided always that the liability of the company shall in no case exceed the sum insured sated against each item or total sum insured started in the schedule. It is one of the general condition No.3 of the policy under the head reasonable care that the insured shall take all reasonable steps to safeguard the property insured against accident, loss or damage. Thereafter, after the receipt of the report of Sh.Deepak Malhotra, Surveyor dated 10.09.2016 and after going through the same as well as the other documents placed in the claim file, it was sent to Regional Office to decide the fate of the claim, but after receipt of the queries to the reply from Surveyor and after scrutinizing the documents placed in the claim file, the competent authority of the Regional Office recommended for repudiation of the claim on the grounds that the loss occurred does no fall within the definition of standard policy burglary operative clause and condition No.3 of the policy as the statements of relevant and authorized persons of the company as collected by the surveyor do not show any signs of violent and forcible entry to be called as burglary as per the policy terms and conditions and hence, the claim of the complainant was rightly repudiated after due application of mind. On merits, the Opposite Party took up almost same and similar pleas as taken up by them in the preliminary objections and hence, there is no deficiency in service on the part of the Opposite Party and the complaint of the complainant is not maintainable and the same may be dismissed with costs.
4. In order to prove its case, the complainant tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C86.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence the affidavit of Sh.Inderjit Singh Ex.RA, Ex.RB, affidavit of Sh.Mahesh Sharma Ex.RC, affidavit of Deepak Malhotra Ex.RD, copies of documents Ex.R1 to Ex.R93 and closed the evidence.
6. We have heard the ld.counsel for the parties, perused the written submissions of the complainant and also gone through the documents placed on record.
7. Ld.counsel for the Complainant as well as Opposite Party have mainly reiterated the facts as narrated in the complaint as well as in the written statement and we have perused the rival contentions of the parties. It is not denial of the parties that complainant had obtained burglary standard policy from the Opposite Party bearing No. 2010001214P110708046 dated 28.02.2015 valid for the period w.e.f. 28.02.2015 to 27.02.2016 with a sum insured of Rs.27 crores on payment of premium of Rs.6461/-. The main grievance of the complainant is that the Opposite Party without application of mind has repudiated the claim of the complainant on the false and frivolous grounds. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the condition in the policy under operative clause that the company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise expressed hereon to indemnity the insured to the extent of intrinsic value of (a) Any loss of or damage to the property or any part thereof whist contained in the premises described in the schedule hereto due to burglary or house breaking (theft followed upon an actual forcible and violent entry of and/ or exist from the premises? And hold up (b) provided always that the liability of the company shall in no case exceed the sum insured sated against each item or total sum insured started in the schedule. It is one of the general condition No.3 of the policy under the head reasonable care that the insured shall take all reasonable steps to safeguard the property insured against accident, loss or damage. Thereafter, after the receipt of the report of Sh.Deepak Malhotra, Surveyor dated 10.09.2016 and after going through the same as well as the other documents placed in the claim file, it was sent to Regional Office to decide the fate of the claim, but after receipt of the queries to the reply from Surveyor and after scrutinizing the documents placed in the claim file, the competent authority of the Regional Office recommended for repudiation of the claim on the grounds that the loss occurred does no fall within the definition of standard policy burglary operative clause and condition No.3 of the policy as the statements of relevant and authorized persons of the company as collected by the surveyor do not show any signs of violent and forcible entry to be called as burglary as per the policy terms and conditions and hence, the claim of the complainant was rightly repudiated after due application of mind.
8. The main contention of the complainant is that no such terms and conditions were ever supplied by the Opposite Party to the complainant at the time of issuance of the policy in question, but we do not agree with the aforesaid contention of the complainant. It is not believable that such a huge private limited company remains unaware regarding the non receipt of the terms and conditions of the policy in question. Moreover, there is no such correspondence placed by the complainant on regard with the Opposite Party regarding non receipt of the terms and conditions of the policy for such a long period because the policy in question was issued in the month of February, 2015 and the incident occurred on 15.12.2015 and it is also not believable that for such a long period, the complainant remained kept mum due to not receipt of terms and conditions of the policy. Hence, we are of the view that the complainant was given the entire knowledge about the terms and conditions and that being happily agreed and purchased the product, and this version has nowhere denied by the Complainant by filing any cogent and convincing evidence to prove that the Complainant never accepted such terms and conditions of the Opposite Party while purchase the policies in question. In this regard, we find force in the judgment of Hon’ble Supreme Court in the case of Grasim Industries Ltd. Vs. Agarwal Steel, 2009(4) CCC598 (SC), wherein it was observed that the person who signed the documents, there is presumption that he understood the document and only then he signed it specifically he is an educated person unless contrary is proved that it was obtained under some threat, pressure or coercion. It is well settled principle of law that the parties are bound by the terms and conditions of the Insurance Policy, and none of the parties can seek any relief beyond those terms and conditions. In this regard reference may be made to the observation made by the Hon’ble Apex Court in case cited as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd and another, 2011 CTJ 11 (Supreme Court) (CP) wherein the Division Bench of the Hon’ble Apex Court consisting of Hon’ble Mr. Justice D.K. Jain and Hon’ble Mr. Justice T.S. Thakur, held that:-
“22. Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity………..”
“24. Thus, it needs little emphasis that in construing the terms of a contract of insurance, the words used therein must be given paramount important, and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer. Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.”
The facts and circumstances of the instant case are fully attracted to Suraj Mal Ram Niwas Oil Mills (P) Ltd case (Supra). Same view has also been expressed by Hon'ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.485 of 2019 in case Reliance Nippon Life Insurance Company Limited, Versus Atma Singh, decided recently on 11.11.2021.
9. Furthermore, First of all, it is not disputed that to secure the goods lying in the godown of the Complainant company, the complainant had obtained burglary standard policy from the Opposite Party bearing No. 2010001214P110708046 dated 28.02.2015 valid for the period w.e.f. 28.02.2015 to 27.02.2016 (Ex.R1). But as per the case in hand, a theft has been occurred in the premises of the complainant. There is lot of difference between the theft and burglary. Hon’ble Hon’ble Supreme Court of India in case United India Insurance Company Limited Vs. M/s.Harchand Rai Chandan lal, reported, as IV (2004) CPJ 15 (SC)=V (2004) SLT 876=2004 CTJ 1018 (SC) (CP) construing the terms of the exclusion in a policy of insurance against burglary and/or house breaking, held that 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 terms of the policy in the above decision of this Court 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.”
Construing the above condition, Hon’ble Supreme Court of India further held that:-
“15….we are of the opinion that theft should have been preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.”
Whereas the term burglary or housebreaking have been explained as ‘theft following upon an actual forcible and violent entry of and/ or exit from the premises and hold up.” In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No. 88 of 2011 decided on 28.03.2017 in case M/s.Cross Trade Links Vs. Oriental Insurance Company, has held to the following effect:-
“The surveyor did not find any sign of forcible entry in the factory premises. FIR has also been lodged u/s 380 IPC. Honble National Commission in Revision Petition no. 4555 of 2009 has held that words used in contract of insurance are to be assigned the meaning which parties intended to mean without making any addition or subtraction therein. The policy issued by the OP in favour of the complainant specifies that OP company has agreed to indemnify the insured for any loss due to burglary or house-breaking, specifically mentioning (theft following upon and actual forcible and violent entry of and/or exit from the premises) and Hold up. Honble Supreme Court of India in case reported as V(2004) SLT 876 has ruled that element of force and violence condition is precedent for burglary and house-breaking, to substantiate claim it has to be established that theft or burglary took place preceding with force or violence and if it is not, Insurance Company is well within their right to repudiate claim of insured.”
Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No. 206 of 2007 decided on 04.03.2013 in New India Assurance Company Limited Vs. Pankaj Kapoor & Ors. Has held that the complainant had taken burglary insurance (Business Premises) policy from Appellant- Thus, the Appellant came to know about theft only on filing of complaint- Alleged theft not preceded with force or violence as per terms of insurance policy- Appellant can not be fastened wit h any liability to indemnify complainant. Hon’ble National Consumer Disputes Redressal Commission, New Delhi in matter Mastana Jogi International Private Limited Vs. New India Assurance Company Limited in Revision Petition No. 2124 of 2005, decided on 18.08.2009 has held that the insurance policy for burglary- whether it was case of burglary or theft- For claim theft must be accompanied by violence or force- The element of force and violence is not present, then the insured cannot claim compensation against the theft from the insurer. The relevant para No.8 of the judgement is reproduced as under:-
“8. On being informed by the respondent about the theft, petitioner appointed a Surveyor who in his report dated 30.03.1995 observed that there was no forcible and violent entry into the premises and, therefore, the loss is not covered under the policy. Petitioner, after examining the report and the policy, repudiated the claim. Against the repudiation, the respondent filed a complaint before the District Forum which was contested by the petitioner, interalia, on the ground that the claim is barred by limitation and beyond the scope of policy as there was no forcible or violent entry into the premises.”
10. Moreover, as discussed above, the Complainant purchased policy i.e. burglary standard policy and hence, this District Consumer Commission has no jurisdiction to go beyond the terms of the contract between the parties and can not hold the contract abinitio void, being unconscionable as held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case: Nugas Technologies India Private Limited Vs. Geeta Bal Bharti Varisht Madhyamic Vidyalaya in Revision Petition No. 3099 and 3100 of 2008, decided on 17.04.2014.
11. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra), we are of the view that the complainant has failed to prove any deficiency in service on the part of the Opposite Party.
12. In view of the aforesaid facts and circumstances of the case, we found no deficiency in service on the part of the Opposite Parties and hence, the instant complaint stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
