NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELLH

 

REVISION PETITION  NO.     869  OF 2001

(From the order dated   1.2.2001  in  First Appeal No.1848/98

of  the State Commission,   Haryana)

 

               

National Insurance  Co. Ltd.                                                                   ..    Petitioner

             Vs.

Public Type College                                                                             ..    Respondent                                                                      

 

BEFORE:

 

            HON’BLE MR. JUSTICE D.P. WADHWA,

                                                                        PRESIDENT

            HON’BLE MR. JUSTICE  C.L. CHAUDHRY, MEMBER

            HON’BLE MR. JUSTICE  J.K. MEHRA, MEMBER

            MR. B.K. TAIMNI, MEMBER.

           

Burglary, if includes theft

 

For the Petitioner                 :  Mr. V. Nandwani, Advocate

                                                   for Mr. K.L. Nandwani, Advocate.

 

DATED THE  10th   MAY, 2001

 

ORDER

 

PER JUSTICE D.P. WADHWA (PRESIDENT)

 

                        This is insurer petition under clause (b) of Section 21 of the  Consumer Protection Act, 1986.  Insurance Co. as opposite party lost  both before the District forum as well as in the State Commission.

                        Respondent (complainant)  purchased an  electronic plain  paper copier for a sum of Rs.1,40,000/- and insured the same  with the petitioner for  burglary/theft and  fire.  During the subsistence  of the insurance policy on the night of 6th and 7th August, 1994  the  machine  along  with  another   machine  was  stolen  from  the  premises of the

2

complainant by someone by way of  house breaking for which a criminal case was registered by the   Police.  Complainant alleged that house breaking took place by opening the locks of the door of the  shop which was done  either by  using duplicate keys  by the  thieves or by  using second set of keys which complainant said he had lost about a year back.  Police did investigate the case but  neither the  machine nor the thieves were traceable. 

                        Complainant filed his claim  under the insurance policy and submitted all the relevant documents.  His claim was denied by the insurer.   It was contended that insurer was liable to indemnify the insured only if any loss or damage was caused to the insured property due to burglary or  house breaking and theft following  upon actual forcible and violent entry in the  premises and also if the keys had been obtained  by assault or violence or under any threat.  It was thus stated that there was no forcible entry in the premises of the complainant nor the   keys were obtained by assult or  violence or  any threat.  Insurer contended  that there was no such allegation in the complaint and it was right in repudiating claim of the complainant as  it did not satisfy the terms and conditions of the insurance policy.  

                        District  Forum after considering the terms of the policy and the provisions of law came to the conclusion  that claim was  covered under the  policy and allowed the complaint.  It directed the insurer to pay  Rs.1,40,000/- with interest @ 18% per annum.  It awarded cost of Rs.1,000/- as well to the complainant.  The insurer went in appeal to the State Commission which, as noted above, dismissed the appeal which order is now impugned before us. 

            3         

                        If  we refer to the order of the State Commission  there is no such discussion that the insurance policy did not cover the theft in question of the photo copier.  Only plea which appeared  to have been  taken  before the State Commission was that the District Forum did not take into account the depreciation of the machine which had been purchased in the year 1989.  State Commission, however, reduced interest from 18% to 12% otherwise maintaining the order of the District Forum. In the grounds of appeal to the State Commission we find that  the Insurance  Co. did take up the ground that the claim was not covered under the insurance policy inasmuch as there was no forcible entry in the premises and  further that there was no evidence of any violence.      In the grounds of revision before  National Commission this very plea has also been taken.   In spite of the fact that  before the State Commission during the course of arguments the plea of  exclusionery  clause was not taken as we do not find any discussion in the judgment, We accept the submissions of the Insurance Co. that such a plea  was raised  though not considered.   We have not been addressed any argument on the plea of depreciation of value of the machine which we rather find was not taken in the grounds of appeal before the State Commission. 

                        We allowed the insurer to take up the plea  on forcible and/or violent entry in the premises for committing theft and heard the learned counsel if the insurance policy  did not cover  the case in hand.   Schedule to the insurance policy which  perhaps  is the cover note  contains the description of the machine, its insured  value  and the premium etc.  It is  mentioned that the policy  pertains to  “Burglary and House Breaking Policy”.

 

4                     

                        Reference has been made to the operative clause of the insurance policy  which is to the following effect:

“The company hereby agrees subject to terms, conditions and exclusions herein contained or endorsed or otherwise  expressed hereon to indemnify the insured to the extent of intrinsic  value of:

(a)             any loss or damage to property or any part thereof whilst contained in the premises described in the schedule thereto due to Burglary  or  House  Breaking (theft following upon an actual forcible  and violent entry of and/or exit from the premises)

(b)  Damage caused to the premises to be made good by the Insured resulting from burglary and/or house-breaking or any attempt threat any time during the period of insurance.

Provided always that the liability of the Company shall in no case  exceed the sum insured stated against each item of  Total Sum Insured stated in the Schedule”.

                        In the grounds of appeal before the State commission it was stated  by the insurer that  there was no forcible entry in the premises.  Further that  there was no evidence of any violence.   In the grounds of revision before us it has been stated that the surveyor appointed by the  insurer  reported that there was no forcible or violent entry in the premises from where  theft took place.  It was pleaded  that since there was no forcible  or  violent  entry  which  had  been  proved,  there was no burglary or house-breaking.  It

5

would be thus seen  insurer itself understood the term burglary or house breaking,  in the clause quoted above,  that there has to be forcible or violent entry  in the premises.  Complainant submitted that the  words “theft following upon an actual forcible  and
violent entry”  as  appearing in the bracket portion after the word house breaking in the clause  applied only to  house breaking and not burglary.  According to Insurance Co.  itself, the entry to the premises has   either to be forcible or violent.

                        It  was contended by the insurer that there was no evidence  that there was forcible  entry into the premises of the complainant for the purpose of making theft and  since no burglary was committed  the insurance policy did not cover a simple theft.

                        We do not find   insurer is right in its  mission.  In common parlance burglary is understood  as theft. We have not been told  if there was any separate policy for theft.  If we draw  on our knowledge  as to what has happened in normal course of events, which we can do in these proceedings, it can safely  be assumed that  complainant asked  for insurance  cover for theft and the Insurance Co. did insure the property against theft by  giving  the policy name  Burglary and House Breaking.   Question is  what does a common man understand  by the term burglary when he goes for insurance to cover the case of theft?  We  do not  have to go  for any legal terminology  of the word or  strict meaning  of the term in  English dictionaries .  Even these  dictionaries  give different meaning  to the term burglary.  If  we refer to the Concise Oxford Dictionary (10th Edition) burglary is defined  as  “illegal entry into a building  with intent to commit a crime such as  theft”.    In the Longman Dictionary of Contemporary English   burglary is a  “crime of entering  a  building  by  force  with  the  intention  of  stealing”.   In  the   New

6

Webster’s Dictionary of the English Language (College  Edition) burglary is “the crime of breaking into the house of  another at night with felonious intent, sometimes extended by statute to cover the breaking and entering of any of various buildings by night or day”.

                        In  Dino Services Ltd vs. Prudential Assurance  Co.  Ltd. (1989)1  All ER 422, (CA) goods were stolen from the premises of the insured by thieves who had stolen the keys  to the premises from the insured’s car and then entered the premises at night   by simply using the keys in the normal way to unlock various doors, without causing any  physical damage to the locks or to the doors.   The insurer repudiated the claim on the ground that  loss or damage had to occasion from theft involving  “forcible  and violent”  means  of entry to the premises.   Trial court held on these facts there had been entry to the premises  both by forcible and violent means   within the meaning of  the policy.   On appeal filed by the  insurer   it was not disputed that opening of the doors with stolen keys  constituted forcible entry within the meaning  of the policy and the only issue before the court of appeal  was whether   the entry  had also been violent.   In the context of the policy of insurance against theft from the premise by  forcible and violent means of entry, the court said  that the word ‘violent’  is to be construed  according to  ordinary meaning and  meant entry by the use of any force which was accentuated  or accompanied by a physical act which could properly be  described  as  violent  in nature and character.   Since  there was no evidence of any violence,  the Court held that  policy did not cover the loss sustained by the insured.

 

7

                        In the present case since the  stand of the insurer  has itself been that the entry to the premises has   either to be  forcible or  violent  and in view of the aforesaid decision of  Court of  Appeal in the case of Dino Services  Ltd. Vs. Prudential Assurance Co. Ltd. it can be said that entry to the premises was forcible and thus covered under the policy  for   loss by theft.  In common parlance  burglary will certainly mean theft.  We have not been told  or shown if there is any  separate policy for theft if, according to the Insurance Co., burglary does  not  include simple theft.

                        We are thus of the opinion  that the claim of the complainant was justified under the insurance policy and repudiation of the policy by the petitioner-insurer was wrong.   We, therefore, uphold the order of the State Commission and dismiss this petition.

           

                                                                                                           

……… …………………….J.

                                                                                                (D.P. WADHWA)

                                                                                                   PRESIDENT

                                                                                                           

                                                                                                ……………………………..J.

                                                                                                (C.L. CHAUDHRY)

                                                                                                    MEMBER

 

                                                                                                           

                                                                                                ……………………………..J.

                                                                                                ( J.K. MEHRA )

                                                                                                    MEMBER

                                                                                                           

………………………………

                                                                                                ( B.K. TAIMNI)

                                                                                                       MEMBER