National Consumer Disputes Redressal
Surjit J. Jain vs New India Assurance Co.Ltd. on 8 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2190 of 2007 (Against order dated 10.04.2007 in Appeal No.723/2007 of the State Commission, Gujarat) Surjit J.Jain ........Petitioner Vs. New India Assurance Co.Ltd. .......Respondent BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr. S.J. Mehta & Mr.S.K. Sharma, Advocates For the Respondent : Mr.Amit Kumar Singh, Advocate Pronounced on 8th May, 2012 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by Surjit J.Jain (hereinafter referred to as the Petitioner) against the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the State Commission) which set aside the order of the District Forum and allowed Appeal No.723/2006 filed by the New India Assurance Co. Ltd.(Respondent herein).
In his complaint before the District Forum, Petitioner had contended that he had obtained an insurance policy from the Respondent/Insurance Company to indemnify loss for burglary, house breaking etc. in respect of his business premises and the policy was renewed from 27.08.2002 to 26.08.2003 for a sum of Rs.25 lakhs. On 01.11.2002 during the validity of the policy, Petitioner went on Diwali vacations with his family members to Rajasthan and returned on 09.11.2002 when he was informed by a neighbor that in the morning of 4-5.11.2002 some person(s) posing to be Petitioners brother opened and entered his business premises for performing pooja. Petitioner was shocked to hear this since his brothers and other family members were in Rajasthan and on inspection of his premises, he noted that burglary of computer stocks had taken place. Petitioner, therefore, lodged an FIR with the police and also informed the Respondent and filed a claim on 11.11.2002 with supporting documents towards the estimated loss of Rs.7,62,500/-. Respondent instead of indemnifying the claim, repudiated the same on the ground that the claim was not payable as per Exclusion Clause (viii) of the Policy which Petitioner had breached by leaving the premises unprotected for more than 7 days.
Petitioner protested in writing on several occasions and also approached the Insurance Ombudsman but his claim/complaint was rejected. Being aggrieved, Petitioner filed a complaint before the District Forum on grounds of deficiency in service and wrong interpretation of the Exclusion Clause since the burglary had taken place within 4 days of his leaving the premises and requested that the Respondent/Insurance Company be directed to pay the Petitioner, Rs.7,62,500/- being the loss along with interest @ 12.5% from the date of repudiation of the claim till its realization, Rs.5,000/- as compensation and Rs.5,000/- as litigation costs.
The District Forum issued notices to both parties.
Since Respondent did not put in an appearance before the District Forum, the complaint was heard and decided ex parte. The District Forum on the basis of evidence before it allowed the complaint by citing a judgment of the Honble Supreme Court in B.V. Nagaraju Vs. Oriental Insurance Co. - 1996 SCC (5) 71, wherein it was inter alia observed that an Insurance Company should not strictly implement the exclusion clause and also accepting Petitioners contention that a copy of the terms and conditions of the Policy were never made available to him. Respondent/Insurance Company was directed to pay the Petitioner, Rs.7,62,500/- together with interest @ 6% from 14.10.2005 i.e. the date of filing of the complaint, Rs.1,000/- towards mental agony and harassment and Rs.1,000/- as litigation costs.
Aggrieved by this order, Respondent filed an appeal before the State Commission which allowed the same by observing that there was a clear breach of the policy conditions i.e. Exclusion Clause (viii), since the Petitioner had left the premises unprotected for more than 7 days and he was, therefore, not entitled for indemnification of his claim which was rightly repudiated. State Commission also observed that the contention of the Petitioner that he had not been provided with the policy conditions cannot be taken advantage of by him at this stage since he had not stated this fact in his complaint before the District Forum as also before the Ombudsman.
Further, Petitioner had been renewing this policy and therefore it was not plausible that he was unaware of its terms and conditions. State Commission relying on a judgment of Honble Supreme Court in United India Insurance Co.Ltd. Vs. Harchand Rai Chandanlal (2004) 8 SCC 644, upheld Respondents contention that even if police investigations had established that a theft had taken place by using a duplicate key, since there was no use of force, the claim cannot be indemnified in terms of Exclusion Clause (vii) which stipulates unless force is used in committing the theft, the claim cannot be indemnified.
Hence, the present revision petition.
Learned Counsel for both parties made oral submissions. Shri S.J. Mehta, learned Counsel for Petitioner contended that State Commission erred in reversing the well-reasoned order passed by the District Forum for the following reasons:
(I) That it did not take into account the fact that the burglary had taken place within 4 days of the closing of the shop and not more than 7 days as per the Exclusion Clause of the Insurance Policy and therefore, this clause is not attracted in the instant case.
(II) By concluding that since the lock was opened by a duplicate key and no force was applied during the course of the burglary, the claim could not be indemnified.
Learned Counsel for Petitioner challenged the above interpretation by citing the meaning/interpretation of the words burglary, lock picking and force from Halsburys Laws of England 4th Edition) Page Nos.683-684 and in the Law of Lexicon by P.Aiyer. Most importantly, Counsel for Petitioner pointed out that this issue is squarely settled by a judgment of National Commission in M/s Mono Industries Vs. New India Assurance Co. Ltd. 2008 NCJ 353 (NC) in which the National Commission had observed as follows:
It appears that the judgment rendered by the Apex Court in the case of United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal is misunderstood by the Insurance Company. In the said case, it has been held that 'theft from the premises by forceful and violently' would mean entry by use of any force, however slight it may be. As such, an entry obtained by picking the lock or forcing back the catch by means of an instrument involves the use of violence.
Learned Counsel for Petitioner concluded his arguments by again reiterating that the terms and conditions of the policy were never made available to the Petitioner who was not aware of the Exclusion Clause and this was also a finding of the District Forum. The State Commission concluded otherwise based on conjectures and not on the basis of any specific evidence to this effect.
Shri Amit Kumar, learned Counsel for Respondent on the other hand reiterated the stand taken by Respondent before the State Commission and that the claim was rightly repudiated by strictly interpreting the provisions of the insurance policy.
In this connection, he pointed out that the Petitioner had himself admitted that he had left the business premises uninhabited from 01.11.2002 to 10.11.2002 i.e. for more than 10 days and therefore, the exclusion clause was rightly invoked in letter and spirit.
Further, as observed by the State Commission since this was a renewal of a policy taken by the Petitioner, he cannot claim ignorance of its terms and conditions. Unfortunately, since this case was decided ex parte before the District Forum, these facts could not be presented and appreciated before that Forum but the State Commission has corrected the error as not only the first court of appeal but also a court of fact by rightly recording and appreciating the legal and factual position. Learned Counsel for Respondent also pressed the point that Petitioner himself had admitted that a duplicate key was used to open the business premises and there was thus absence of violence or force. In view of this, the claim could not be indemnified even if a theft had taken place in terms of Exclusion Clause (vii) of the Policy cited earlier as also in the light of the judgment of the Honble Supreme Court in Harchand Rai(supra).
We have heard learned Counsel for both parties and have gone through the evidence on record. We note that the Respondent/ Insurance Company essentially repudiated the claim of the Petitioner on the following grounds:
(i) Since the insured premises were left unattended for more than 10 days, as per Exclusion Clause (viii) in the terms and conditions of the insurance policy the claim could not be indemnified.
(ii) Since, Petitioner himself had admitted that entry in his business premises by the miscreants took place by opening the lock with a duplicate key and that it was not preceded with violence, force or threat, as per Exclusion Clause (vii) in the absence of any violence or force, the insurance claim could not have been indemnified.
We have carefully considered both issues. Admittedly the premises were left unattended for more than 10 days and exclusion clause (viii) of the Insurance Policy would therefore, be attracted in this case.
However, we also note that the Petitioner had contended before the Fora below that a copy of the terms and conditions of the policy was not supplied to him and the District Forum had accepted this contention. We note that the State Commission which had not accepted this finding has not given any grounds for rejecting the same except for some conjectural observations.
Adverse note can also be taken of the fact that despite service of notice Respondent did not appear before the District Forum to controvert these findings. We, therefore, see no reason to differ with the finding of the District Forum that Petitioner was not aware of the terms and conditions of the policy since these were never supplied to him by the Respondent when he took the insurance policy. Under these circumstances, we are of the view that the Respondent was not justified in repudiating the claim on this ground. So far as the second issue pertaining to the absence of force, threat or violence while committing the act of burglary through lock picking is concerned, we agree with the Counsel for Petitioner that this issue is squarely settled by the judgment of this Commission in Mono Industries (supra) wherein as quoted earlier, it has been clearly ruled that an entry obtained by picking the lock or forcing back the catch by means of an instrument involves use of violence. In the instant case, since the entry to the business premises was by picking the lock, this judgment is very much relevant and respectfully following the same and in view of the reasons given in the foregoing paras, we are of the view that the order of the State Commission cannot be sustained on both counts and the same is set aside. The order of the District Forum is restored and the Revision Petition is allowed.
Respondent/Insurance Company is directed to pay the Petitioner, Rs.7,62,500/- together with interest @ 6% from 14.10.2005 i.e. the date of filing of the complaint, Rs.1,000/- towards mental agony and harassment and Rs.1,000/- as litigation costs within six weeks from the date of receipt of this order failing which the entire amount will carry interest @ 9% from the date of filing of the complaint till realization.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/