State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Kulmeet Singh on 1 November, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 01-11-2006 Appeal No.FA-1078/2006 (Arising from the order dated 19-09-2006 passed by District Forum-III, Janakpuri, New Delhi in Complaint Case No.519/2005) National Insurance Co. Limited, Appellant Division Office XVII, Through East of Kailash, Ms. Sonia Sharma, New Delhi-110065. Advocate. Regional Office, 4th Floor, Jeewan Bharti Building, Connaught Place, New Delhi-1. Versus 1. Shri Kulmeet Singh, Respondent No.1 R/o 131, Gagan Vihar Extension, New Delhi-110092. 2. S.H.O., Respondent No.2 Police Station Tilak Nagar, New Delhi. 3. M/s Aneja Communications, Respondent No.3 F-3/33, Krishna Nagar, Vijay Chowk, New Delhi-110051. CORAM : Justice J.D. Kapoor- President Mr. Mahesh Chandra - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Vide impugned order dated 19-09-2006 the District Forum while allowing the complaint of the respondent directed the appellant to pay Rs. 18,000/- towards the cost of the mobile phone and Rs. 5,000/- as compensation for causing harassment and mental agony including cost of litigation.
2. Through this appeal the impugned order has been assailed mainly on the ground that there was a contradiction in the order of the District Forum i.e. FIR lodged with the police and the version of the respondent. The FIR lodged with the police shows that the mobile phone had fallen and lost somewhere whereas the respondent has stated that the same was taken by somebody from the car.
3. Learned Counsel has relied upon the following clause that disentitled the respondent to the insurance claim:-
1. INSURANCE BENEFITS B. Theft coverage for Nokia GSM handset for 1 years from the date of purchase subject to following exclusion:
c) Theft of handset from any property or premises unless such theft has occurred through forced and violent entry or exist.
d) Theft of handset from any public place/public conveyance except where the handset is actually taken by actual or threatened force.
4. There is a tendency on the part of the police that whenever a person with such a complaint for lodging the report goes to the police, the police always records DD report instead of FIR in order to avoid the job of investigation. Had it been a simple case of having misplaced the handset, there was no need to go to the police station for lodging the report? Police comes into action when such a DD report is converted into a cognizable offence needing investigation. Thus in our view the DD report lodged with the police was in actuality a report of theft and nothing else.
5. Theft has been defined by section 378 of the IPC punishable under section 379 IPC as under:
378. Theft.- Whoever, intending to take dishonestly any moveable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft.
6. From the aforesaid definition following five ingredients are essential to constitute theft:-
(1)Dishonest intention to take property.(2)
The property must be movable (3) It should be taken out of the possession of another person.(4)
It should be taken without the consent of that person.(5)
There must be some removal of the property in order to accomplish the taking of it.
7. In the instant case all the aforesaid five ingredients are present. Any theft if it is preceded through or followed by force or violence or forced and violent entry or exit looses the character of theft. Any theft with an ingredient of force or violent entry assumes the character of extortion or robbery, which have been defined by Section 383 and Section 390 of IPC as under:
Section 383- Extortion- Whoever intentionally puts any person in fear of any injury to that person or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion.
Section 390 Robbery In all robbery there is either theft or extortion.
Where theft is robbery Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carving away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to case to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
8. As is apparent, ingredients of violence or force are relevant for the offence of extortion or robbery.
9. It is rule of prudence and rule of interpretation that any term of contract should not be given literal or narrow meaning that may run counter to the main or pre-dominant object for which such term of contract was inducted and while interpreting such a term a lateral and liberal meaning should be assigned. Otherwise the whole purpose and object of the term of the contract would not only loose its effect but would be rendered meaningless, nugatory and tautologous.
10. The bare reading of clause in question leaves no manner of doubt that the said clause pertained to only theft, the definition of which we have reproduced above. The meaning and pre-dominant object of this clause was to grant benefit to the consumer against the insurance policy covering the risk of theft and theft alone. Thus sub clause C of clause 1B containing the words unless such theft has occurred through force and violent entry or exit cannot take away the benefit of insurance to the consumer in case of theft of the insured article. Thus theft has to be taken as it is.
11. In our view such a clause having any pre condition or condition precedent to the word theft is illegal, arbitrary, unenforceable being not in consonance with the definition of theft provided by the law of the land i.e. India Penal Code as theft lacks ingredients of force or violence and to cap it all, being against the very object of the insurance benefit clause. There is unvarying unanimous judicial view that any term of contract which runs against the main object and defies the established and legal meaning of any term like theft, which is ordinarily called the predominant object of the term of contract is illegal, void and unenforceable under the law of contract.
12. As is apparent in the aforesaid clause element of theft was the essence of the contract and not the theft occurring through force or violence or forced entry or exit. Essence of contract was theft and theft simplicitor and therefore later part of the term viz unless such theft has occurred through forced and violent entry or exit was neither relevant nor necessary nor could have put an embargo on insurance benefit to the consumers against the policy covering risk of theft. Had it not been so the clause would not have been assigned the title Theft Coverage of Nokia Handset.
13. Thus from any aspect we may interpret and hold up the meaning and intention of this clause we do not find escape from the irresistible conclusion that main object which was to be fulfilled through this clause was to grant insurance benefit to the consumer against the risk of theft and theft alone as per meaning and statutory definition provided by the relevant law of land i.e. IPC (Indian Penal Code).
14. If the insurance company starts defining the word theft, housebreaking and robbery as per their own concept and as per their own perception, then the relevant law of the land will be rendered meaningless as it is in the common parlance and as per meaning provided by the relevant law and the natural meaning as understood by the common man and man of average ken coupled with the predominant object, which is the determining criteria and nothing beyond that.
15. Having held the meaning and object of the clause 1B and the legal definition of the word theft provided by the IPC and holding the later part of sub clause C to the effect unless such theft occurred through forced and violent entry or exit as illegal, void, unenforceable and against the basic concept of contractual law and jurisprudence, we deem that appellant under the contract was liable to indemnify the loss against insurance risk of theft.
16. It is beyond our comprehension that insurance company of such a high set up with such a legal back up and paraphernalia would not even have a rudimentary concept as to the meaning and definition of word theft, while referring the word theft in the insurance benefit clause. It is again beyond our comprehension that these people did not know that theft if preceded or occurred by force or violence or through forced and violent entry or exit does not remain theft and it assumes the character of robbery or extortion.
17. In our view later part of this clause is void and against the well established and not only universally understood by one and all and its natural meaning, the meaning of word Theft and against the statutory definition of theft provided by the I.P.C., therefore unenforceable in law so far as the words unless such theft has occurred through forced and violent entry or exit are concerned. This clause has to be therefore confined to the word theft and clause C has projected as an exclusion clause by defining theft on their own. By resorting to such mechanism of providing altogether a different meaning and definition to the word theft without changing its character to extortion or robbery it runs against the main clause, the clause 1B which prescribes only the theft coverage for handset for one year from the date of purchase.
18. Let us assume that the term of the contract required forced or violent entry as a condition precedent to the offence of theft. No theft takes place unless person committing the theft uses force.
Any act of removing an article from the drawer of a table or from a place where entry of culprit is unauthorized necessarily involves the element of force.
19. What is forced entry or act? Dictionary meaning of word forced is over-strained, unnatural or compulsory. Thus element of force does not necessarily involve using force against a person causing injury. It also involves element or ingredient of unauthorized or unlawful entry into premises or vehicle or even committing theft from the persons body. Word forced entry can also take into its fold the unauthorized entry or unlawful act. Thus when the clause 1(b) is read as a whole it excludes specific situation that have been enumerated like leaving the handset in open place like a roof, bonnet or boot of the vehicle.
20. Unauthorized entry into a premises for committing theft or removing an article by breaking open the lock or removing an article from the vehicle in unauthorised capacity tantamount to a forced entry as forced entry does not necessarily involve element of using force against a person or causing injury to him. Such an interpretation is valid interpretation when viewed in the light of predominant aim and object of the insurance policy that is covering of the risk against theft.
21. The pre-dominant object was for insurance cover against the theft and therefore the aforesaid terms and condition have to be interpreted in a manner, which is beneficial to the interest of the consumer and is in consonance with the aims and objects of the terms and condition of the contract. In such a case at the most the appellant can obtain indemnity bond in case the handset is recovered by the police, in respect of, which the report was lodged.
22. Even otherwise whenever insurance policy against theft is issued the consumer is generally told that the policy has been issued covering the risk of theft and when he is told about this fact he takes the definition of theft as understood by a common man and as defined by the statute of land. The detailed terms and condition running into pages without being duly signed by the parties concerned cannot have such an effect which is prejudicial to the consumer or to his disadvantage.
23. We have taken a view that wherever service provider issues insurance policy against cover note, the cover note should invariably contain exclusion clause and not in the long list of terms and conditions of contract which most of the times are in microprint and are not signed by the parties and therefore cannot form part of a written contract nor any endorsement is made at the end that all the above terms and conditions have been read over, explained to the consumer before obtaining his signature. These are such contracts which are for the benefit of consumers and not putting the consumer in such a jeopardy that when the occurrence takes place or the theft takes place his first attention is drawn to unsigned, unexplained terms and conditions contained in unreadable print.
24. Proceeding on the aforesaid view taken by us we do not find any merit in the appeal and dismiss the same.
25. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
26. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
27. Announced on 1st November, 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member jj