State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd vs Jain Tractors & Auto Spares(P) Ltd. on 23 September, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 23.09.2008 Appeal No. FA-08/517 (Arising out of Order dated 08.02.2008 passed by the District Consumer Forum(Central), Maharana Partap Bus Terminal, Mezzanine Floor, Kashmere Gate, ISBT, Delhi in Complaint Case No. 428/06) 1.New India Assurance Co. Ltd. Appellants Through Its Branch Manager, Through D-8, Chander Shekhar Azad Marg, Mr. Mohan Behind Navrang Electronics, Babu Laxmi Nagar, Delhi-110092. Aggarwal, Advocate 2. AGM, New India Assurance Co. Ltd. Gulab Bhavan, Bahadurshah Zafar Marg, New Delhi. Versus Jain Tractors & Auto Spares(P) Ltd. Respondent Through Its Director Shri Siripal Jain, 49, PS Jain Motor Market, Kashmere Gate, Delhi-110006. CORAM: Justice J.D. Kapoor President Ms. Rumnita Mittal 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)
1. This appeal is directed against the order dated 08.02.2008 passed by the District Forum whereby the appellant has been directed to pay Rs. 83,900/- towards loss of the insured goods occurred due to burglary with interest @ 9% p.a. and Rs. 5,000/- as compensation towards mental agony and harassment and Rs. 2,000/-as cost of litigation. Feeling aggrieved the appellant has preferred this appeal.
2. The impugned order has been assailed mainly on the ground that the insurance policy was against risk of burglary whereas the report lodged with the police was that of theft which was later on converted into an offence u/s 380/457 IPC.
The case of the respondent leading to the impugned order, in brief, was that he obtained a burglary policy in respect of his godown situated at 1, Court Road, Civil Line, Delhi with appellant vide policy No. 320304/46/02/00064. The policy was valid from 03.12.2002 to 02.12.2003. The total sum insured was Rs. 7,50,000/-. The theft took place in the godown of the respondent on the night of 16th/ 17th July, 2003. The respondent lodged police report with local police station FIR No.202/2003 u/s 380/457 IPC was registered on 17.03.03. The appellant was also informed. Appellant appointed surveyor but later on appellant repudiated the claim. The respondent represented to the higher officers of the appellant but they did not respond. The respondent lost 100 gear boxes of ambassador car forming value of Rs. 1,42,500/-. The respondent termed the repudiation of claim as deficiency in service on the part of the appellant and prayed for directions to appellant to pay a sum of Rs.
1,42,500/- with interest, cost and compensation.
3. In reply, appellant averred that on receipt of intimation he appointed M/s Chartered Surveyor( India) Pvt. Ltd. who assessed the actual loss to the tune of Rs. 89,880/- which was reduced to 44.24% by way of less under insurance and net adjusted loss was confined to Rs. 50,117/-. But later on, he found that it was not a case of burglary but was a case of negligence by allowing the item to be stolen on getting window open.
4. The learned counsel for the appellant has contended that the FIR showing that when the respondent gave the key of the godown to the servant he found that the window was lying open and goods were missing. The learned counsel for the appellant relied upon the decision of the Supreme Court in United India Vs Harchand Rai Chandan Lal V(2004) SLT 876.
However, the said decision was also referred by the District Forum which was rightly distinguished as in the policy which was before the Supreme Court for consideration was not for burglary alone. The policy was for burglary and house breaking combined and the burglary was specifically defined but in the instant policy only word burglary is mentioned without defining it.
5. Now let us see what burglary means. Dictionary meaning of burglary is the crime of breaking by night into a house with a felonious intend.
6. Theft as defined by Section 378 IPC means 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.
7. As is apparent from the definition of theft and burglary removal of any moveable property kept in a godown under lock and key has to necessarily involve forcible entry into the premises by breaking open the locks. In the instant case ingredients were that of burglary.
8. It appears that the insurance companies have made it a practice to repudiate the claims of the consumers against the insurance policy covering theft and burglary on one excuse or the other without distinguishing the facts of each and every case.
9. We, while construing the clause of theft/burglary cannot be oblivious of the main object of the insurance policy which is to indemnify the insurer as to the loss suffered by way of theft and burglary. Even otherwise Consumer fora have to construe any contractual clause for the benefit of consumers as the Insurance Companies hardly tell or explain the insured about the distinction between theft or burglary. In common parlance and for a man of average ken, policy for theft means indemnification of loss on account of theft simplicitor as defined u/s 378 IPC. If given facts and circumstances suggest use of force may be through any means and taking it away dishonestly from the possession of its owner, insured is entitled for indemnification of loss.
10. Unless and until the force was used the theft does not take place. Breaking open of lock or the window necessarily involves and simplicitor theft becomes burglary particularly which it occurs in the night.
11. Admittedly the respondent claimed a sum of Rs. 1,42,500/- as total loss while the second surveyor assessed the loss of Rs. 50,517/- whereas loss assessed by first surveyor was Rs. 89,880/-. But after perusing the copy of the bill through which the respondent purchased 100 gear boxes the total loss suffered was assessed by the District Forum as Rs. 83,900/- and this was almost the same loss which was assessed by the first surveyor.
12. Thus the claim of the respondent was wrongly repudiated by not taking the facts leading to the theft of the goods by way of burglary in the right perspective and the appellant was rightly held guilty for deficiency in service.
13. In view of the foregoing reasons, we do not find any merit in the appeal and dismiss the same.
14. The impugned order shall be complied with within one month from the date of receipt of this order.
15. FDR if any, deposited by the appellant, be r4turned to the appellant forthwith under proper receipt.
16. 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.
17. Announced on 23rd day of September, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc