State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Mahesh Chandra Gupta on 5 January, 2007
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: 05.01.2007 First Appeal Case No.1076/2006 (Arising from the Order dated 27.09.2006 passed by the District Forum(North), Tis Hazari, Delhi in Case No.119/2006) National Insurance Co. Ltd. .. Appellant Regional Office No.1, through Mr. Pradeep Gaur Jeevan Bharti, with Mr. Amit K. Pandey, 124, Connaught Circus. advocate. New Delhi. AND ALSO Divisional Office No.17, 12, Community Centre, East of Kailash, New Delhi. Versus 1. Mr Mahesh Chandra Gupta .. Respondents C-262, Vikas Puri, New Delhi. 2. M/s. Hi Fi Electronics, E-13, Kamla Nagar, Bunglow Road, Delhi. CORAM Justice J.D. Kapoor . President Sh. 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(Oral)
1. Vide impugned order dated 27.09.2006, the appellant company has been directed to pay Rs.4,200/- towards the cost of the Nokia handset that was insured with it covering the risk of theft and Rs.2,000/- as compensation for inconvenience and mental agony to be paid by appellant besides Rs.1,000/- as cost of litigation to be paid by appellant and respondent No.2.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The case of the respondent No.1 was that on 19.05.2004, he purchased Nokia mobile handset No. 2100 for Rs.4200/- from respondent No.2 and the same was insured with the appellant. Appellant issued insurance certificate to him. On 19.04.2005, the mobile phone was stolen from the pocket of respondent No.1 in Tis Hazari Courts. Respondent No.1 lodged FIR with Tis Hazari Police Post regarding theft of his phone.
4. At first instance the counsel for the appellant has challenged the impugned order on the plea that the District Forum has not taken into consideration that the terms and conditions of the policy referred on the overleaf and insurance benefit was only available if theft had occurred through forced and violet entry or exit. Though we have taken a view that the definition of theft has to be taken as defined by Indian Penal Code, yet the relevant terms and condition of the policy when read together do not bring the case within the exclusion clause. The relevant clause relied upon by the counsel for the appellant is as under:
B. Theft coverage for Nokia GSM handset for 1 year from the date of purchase subject to following exclusions:
a) Theft of Handset whilst kept in unattended vehicle unless the vehicle is locked. Handset placed out of sight and the Handset is taken out by forced and violent entry. A copy of the repairers bill for such damage to vehicle and corresponding insurance claim, if any, must be submitted with claim.
b) Theft of Handset from being left on roof, bonnet or boot of the vehicle.
c) Theft of Handset from any property or premises unless such theft has occurred through forced and violent entry or exit.
d) Theft of Handset from any public place/public conveyance except where the Handset taken by actual or threatened force. In all the above instances, a claim shall be entertained only if accompanies by a copy of a registered FIR duly numbered, signed and stamped (First Information Report) to the local Police Station pertaining to such theft of the Handset.
5. When clause B,C and D are read together, we find that there was clear distinction made by the insurance company that any theft of handset from any public place or public conveyance except where the handset is actually taken by threatened force is not entitle for insurance benefit.
6. No term of the contract can be read in isolation. These to be read in context of other terms and conditions and as a whole. It is a universal rule of interpretation of statute or terms of a contract between the parties that interpretation should be made by keeping in view the aim and object of the statute and terms and conditions of the contract. Any interpretation made by any authority, which is not in consonance with the aim and object of the terms and conditions is not permissible under the law.
7. When both the sub clauses 1
(b) and Clause 1(b) are read together while keeping the aims and object of the insurance policy or the term of the contract, the case of the respondent squarely falls within the insurance benefit clause. Instances given in sub clause (b) of clause 1 as to the theft for the purpose of exclusions are that if the handset is placed out of sight or the handset is taken out by forced and violent entry or the theft takes place of the handset from being left on the roof, bonnet or boot of the vehicle or from any property or premises unless such theft has occurred through forced and violent entry or exit or from any public place/public conveyance where the handset is taken by actual or threatened force. Other than in case of theft from public place or public conveyance all the above instances the claim, shall be entertained if accompanied by a registered FIR duly numbered, signed and stamped.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. From the aforesaid definition following five factors 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.
15. 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.
16.
As is apparent, ingredients of violence or force are relevant for the offence of extortion or robbery.
17. 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.
18. 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.
19. 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.
20. 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.
21. In the result, appeal is dismissed in limine being devoid of merit.
22. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
23. 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.
Announced on 05th day of January 2007.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member Tri