State Consumer Disputes Redressal Commission
Prem Pal Chhabra vs New India Assu. Co. Ltd. on 5 December, 2022
FA/70/2014 D.O.D.: 05.12.2022
MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 21.01.2014
Date of hearing: 20.09.2022
Date of Decision: 05.12.2022
FIRSTAPPEAL NO.-70/2014
IN THE MATTER OF
MR. PREM PAL CHHABRA,
PROPRIETOR OF M/S GLOBAL MEDIKARE,
11/1, WEST PATEL NAGAR, NEW DELHI-110008.
(Through: Kunal Madan & Associates)
...Appellant
VERSUS
NEW INDIA ASSURANCE CO. LTD.,
2/2 A, THIRD FLOOR, LAXMI INSURANCE BUILDING,
ASAF ALI ROAD, NEW DELHI.
(Through: Sanjay Diwakar, Advocate)
...Respondent
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the parties.
DISMISSED PAGE 1 OF 9
FA/70/2014 D.O.D.: 05.12.2022
MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"Complainant is engaged in the business of the medikare products including medicines and other cosmetic products. It is submitted that M/s Global Medikare is sole source of complainant's earning and his livelihood by way of self- employment. It has taken insurance policy from the O.P bearing No. 323200/48/09/34/00000794 for coverage of fire, riot and strike burglary, house breaking etc. On 17/04/2010 complaint finished off the daily business at about 11 pm and locked his shop and went to his residence. On 18.04.2010 at about 9:00 am complainant reached his shop and was in utter shock and dismay to see that the shutter was lifted and burglary/theft had taken place. It is alleged that the complainant immediately informed the Police Station Patel Nagar and DD No. 25B dated 18.04.2010 was recorded. It is alleged that about Rs.45,000/- in cash along with stock as mentioned in the list attached was stolen (totaling to Rs.1,52,521/-). It is alleged that complainant immediately lodged an insurance claim mentioning above incident to O.P. On 18.04.2010 a surveyor namely Sh. Naresh Jain was appointed by O.P. It is pertinent to mention herein that surveyor was provided with all necessary documents as and when demanded by him. It is alleged that all claim related documents were handed over to the surveyor at his first visit and not even once during the investigation/scrutiny of the claim the surveyor raised any objection on the contents of the DD entry of the FIR. It is also alleged that complainant approached O.P on number of occasions and asked for the status of his claim but to no avail. It is alleged that complainant received a letter dated 18.10.2010 from O.P that the claim of the complainant was repudiated on the grounds that there was no forced entry in the shop as per FIR. On these facts complainant prays that it is deficiency of service. He prays that O.P be directed to pay Rs.1,52,521/- along with interest @24% per annum apart from cost and compensation as claimed."
DISMISSED PAGE 2 OF 9 FA/70/2014 D.O.D.: 05.12.2022
MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
2. The District Commission after taking into consideration the material available on record passed the order dated 11.12.2013, whereby it held as under:
"5. It has been argued on behalf of the complainant that the shutter was bent which shows that burglary had taken place after forceful entry in the shop, therefore, repudiation of the claim on the ground that there was no forcible entry is not justified, hence the complainant is entitled for claim amount. On the other hand it has been argued on behalf of the O.P that the surveyor gave his report and reported that broken shutter was not shown to him which ruled out forcible entry. It is also argued that there is a mention of burglary of the shutter but no explanation of its coming from the side of the O.P as to how the welding took place, hence repudiation of the claim is justified.
6. The O.P has relied upon Export Credit Guarante Corpn. of India Ltd. Vs. Garg Sons International 2013 (11) CP) 1(SC). In this case relying upon Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. AIR 2009 SC 2493 it was held that insurance contract is a species of commercial transaction and must be construed like any other contract to its own terms and by itself. It was held that extra liberalism that may result in rewriting the contract or substituting the terns which were not intended by the parties. O.P has also relied upon United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal 2005 ACJ
570. In this decision has been held that burglary or housebreaking pre-supposes forcible for exit from the premises in question. Unless there is an evidence that the entry or exit from the house was by use of force or voilence the Insurance company would be well within its right to repudiate the claim.
7. In the present case the complainant has placed on record copy of the report lodged by him (Exhibit P-4) dated 18.04.2010 in which he has stated that someone has placed the lock on one side and after "TEDA" someone entered in the shop and committed theft of Rs.40,000/- to 45.000/- and other articles. The FIR has DISMISSED PAGE 3 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
been recorded on the statement of the Mr. Suresh Prakash Agnihotri given on phone. It was recorded by DD Entry No:-18A on 23.04.2010 at 1:20pm. It is recorded in the FIR exhibit P-5. The complainant in writing was given on 18.04.2010 at 10:30 am. In the information given on phone it has been specifically stated that somebody has committed theft in the shop in question that of Rs.45,000/- and other articles from the shop. It is, therefore, clear that report lodged on mobile phone on 17.04.2010 at 1:20 pm is totally different from what was given in the report made in writing to SHO P.S Patal Nagar. There are no signatures of Police authority on Ex. P-4 regarding receipt of report in writing by P.S Patel Nagar on 18.04.2010. Copy of DD Entry No. 25B, recorded on the basis of Ex. P-4 has not been filed. Therefore, no reliance can be placed on Ex P-4 as the first report made of PS Patel Nagar.
8. It shows that the complainant introduced the word "after making the shutter "TEDA" to introduce the element of forcible entry. Therefore, the report dated 18.04.2010 seems to be an after-thought so far as character of entry in the shop is concerned. The first information given by the complainant to Police on mobile phone only stated that somebody had committed theft in the shop in respect of medicine and some cash. No facts regarding forcible entry were mentioned. We have also seen the report of the surveyor which mentioned that there were recent welding mark on the shutter and which was not shown to him that the incident had occured on the date of loss as intimated by insured nor the broken shutter was shown to him during the survey nor the insured had provided any photograph of the shutter in broken condition.
In these circumstances we come to the conclusion that no evidence has been placed on record in respect forcible entry into the shop. In our considered opinion the complainant had tried to introduce a story of forcible entry subsequently which is an afterthought. The report lodged by him on mobile phone was that DISMISSED PAGE 4 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
of theft. In our considered opinion theft is not equivalent to burglary, The Insurance policy is in respect of burglary which pre supposes forcible entry into the premises in order to commit theft. In the absence of any evidence that there had been a forcible entry in the shop of the complainant, it cannot be said that any burglary had taken place in the shop of the complainant. It cannot be said that the repudiation was in any manner illegal or was not justified. Complainant is not entitled for any relief Complaint is accordingly dismissed."
3. Aggrieved by the aforesaid judgment of the District Commission, the Appellant/ Complainant has preferred the present appeal contending that the District Commission failed to appreciate the fact that in D.D. Entry bearing no. 26B dated 18.04.2010 clearly mentioned that the there was a forcible entry in the shop of the Appellant. The Appellant further contended that the District Commission erred in holding that the repudiation done on the basis of terms and conditions of the policy. Pressing the aforesaid contentions, the Appellant prayed for setting aside the impugned judgment.
4. The Respondent on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned judgment as the entire material available on record was properly scrutinized before passing the said judgment.
5. We have perused the material available on record.
6. The main question for consideration before us is whether the District Commission was right in dismissing the complaint of the Appellant on the ground that no incident of burglary was occurred in the shop of the Appellant.
7. To resolve this issue, we have perused the material available on record and found that neither party has furnished the terms and conditions of DISMISSED PAGE 5 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
the policy relying upon which the respondent has repudiated the claim of the Appellant. However, we deem it appropriate to refer to a landmark case titled as United India Insurance vs Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC), wherein the Hon'ble Supreme Court after discussing the difference between theft and burglary has held as under:
"6. The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy. The definition given in the policy is binding on both the parties. The policy is a contract between the parties and both parties are bound by the terms of contract. As per the definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry 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 a condition precedent for burglary and housebreaking. The term 'burglary' as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as theft. But 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 we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be preceded with force or violence. If the element of force and violence is not present then the insurer cannot claim compensation against theft from the Insurance Company. This expression appearing in the insurance policy came up for interpretation before the English Court and the English Courts in DISMISSED PAGE 6 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
no uncertain terms laid down that burglary or theft has to be preceded with force or violence in order to be indemnified by the Insurance Company. In this connection reference may be made the statement of law as summarized in Halsbury's Laws of England Fourth Edition (203 Reissue) Para 646. It reads as under:
"646. Forcible and violent entry - The terms of a burglary insurance may exclude liability in certain circumstances unless there is forcible and violent entry into the premises. If so, the entry must be obtained by the use of both force and violence or the definition is not satisfied and the policy does not apply. An entry obtained by turning the handle of an outside door or by using a skeleton key, though sufficient to constitute a criminal offence is not within the policy since the element of violence is absent. However, an entry obtained by picking the lock or forcing back the catch by means of an instrument involves the use of violence and is therefore covered. The policy may be so framed as to apply only to violent entry from the outside; or the violent entry into a room within the insured premises may be sufficient. In any case, the violence must be connected with the act of entry; if the entry is obtained without violence, the subsequent use of violence to effect the theft, as for instance where a show-case is broken open, does not bring the loss within the policy."
8. From the above observations of the Hon'ble Supreme Court and the definition of 'Burglary' reproduced above, it is clear that if the theft is committed by forcible and violent entry or the force or violence has been used while exiting from the insured premises, it would be a burglary covered under the insurance contract. In the present case, we find that the Appellant vide D.D. no. 26B dated 18.04.2010, recorded in PS Patel Nagar has stated that "the locks were removed and the shutter of the shop was bended". However, the FIR dated 23.04.2010 was filed under section 380 of Indian Penal Code, 1860. Furthermore, on perusal DISMISSED PAGE 7 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
of the surveyor report dated 01.10.2010, we find that the surveyor has explicitly stated that neither the broken shutter nor any photographs of the broken shutter were provided to him during the survey. According to the report, only recent welding marks were present on the shutter which solely does not prove forcible entry into the insured premises.
9. Furthermore, Appellant before the District Commission as well as before this Commission has failed to file any substantial evidence or any photographs of the said broken shutter in order to prove that the said incident was of burglary and not of theft. Therefore, in any event, from evidence on record it is not established that the entry for theft in the premises was forceful or by aggressive means.
10. In view of above discussion, we find that the evidence led by Appellant/ Complainant does not establish that theft was accompanied by violence and that there was forcible entry in the premises. The elements of force and violence are not established in the present case. Accordingly, the claim of the Appellant does not fall within the purview of policy.
11. Infact, we are also in agreement with the reasons given by the District Commission and fail to find any cause or reasons to reverse the findings of the District Commission. Consequently, we uphold the judgment dated 11.12.2013 passed by the District Consumer Disputes Redressal Commission (North), Tis Hazari, Delhi.
12. Accordingly, the present Appeal stands dismissed with no order as to costs.
13. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be DISMISSED PAGE 8 OF 9 FA/70/2014 D.O.D.: 05.12.2022 MR. PREM PAL CHHABRA V.NEW INDIA ASSURANCE CO. LTD.
uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
05.12.2022 DISMISSED PAGE 9 OF 9