State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Manjeet Kumar on 9 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: 09.11.2006 First Appeal No.812/2006 (Arising from the order dated 27.07.2006 passed by District Forum (South-I) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.759/2005) 1. National Insurance Co. Ltd. . Appellant D.O. XVII,12, Community Centre Through Mr. M.B. Aggarwal 2nd Floor, East of Kailash advocate. New Delhi. Versus 1. Shri Manjeet Kumar, . Respondents H.No. 1/5708, Gali No.16, Balbir Nagar, Shahdara, Delhi. 2. M/s. A.K. Govil & Associates, 2nd Floor, 144, Jorbagh, New 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, President(ORAL)
1. Vide order dated 27.07.2006, passed by the District Forum, the appellant company has been directed to pay an amount of Rs.17,150/- towards insured amount on account of theft and also to pay Rs.1000/- as compensation for wrongful repudiation of the claim and Rs.1000/- towards cost of litigation.
2. Respondent purchased the Nokia handset with an insurance policy for a sum of Rs.17,150/- covering theft. On 06.03.2005 at about 8.00 PM the respondent No.1 parked his car near Arya Samaj Road traffic booth and when he came back to the car he found the door of the car broken open. The said handset and hand bag were found missing, in respect of which a DD report was lodged with the Police on the same day and FIR was registered bearing FIR No.140 dated 12.03.2005 under section 379 IPC in respect of theft. Respondent preferred a claim with the appellant against the insurance policy. The claim of the respondent was repudiated on the ground that there was absence of force and violent entry or exit in the incident hence the case was not covered as per clause 1B(a) of the terms and condition mentioned in the policy, the relevant clause 1B, reads as under:
1B.
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.
3. Question is whether Clause 1B of the Insurance Policy covering risk of theft is against theft simplicitor i.e. natural meaning and as defined by Section 378 of Indian Penal Code the only relevant law of the land and whether this clause being not in consonance with the statutory definition of theft is unenforceable and void ab initio in respect of its later part i.e. unless such theft has occurred through forced or violent entry or exit and what is the pre-dominant object of this clause vis--vis indemnification of loss against the insurance policy covering risk of theft.
4. 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.
5. From the aforesaid definition following five factors are essential to constitute theft:-
a.
Dishonest intention to take property.
b.
The property must be movable c.
It should be taken out of the possession of another person.
d.
It should be taken without the consent of that person.
e.
There must be some removal of the property in order to accomplish the taking of it.
6. 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.
7. As is apparent, ingredients of violence or force are relevant for the offence of extortion or robbery.
8. 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.
9. 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.
10. 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.
11. 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.
12. Counsel for the appellant has heavily placed reliance on the decision of Supreme Court rendered in United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal reported as 2005 ACJ 570 wherein the Supreme Court was dealing with the distinction between burglary and housebreaking policy involving godown entry or exit from the premises by forcible and violent means; and held as under:
Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.
13. Even from the aforesaid criteria laid down by the Supreme Court, that is by providing natural meaning and without summoning outside aid, we find that the meaning of the word theft referred in the clause was the meaning provided by a relevant statute i.e. India Penal Code through Section 378 of the IPC and by defining it in any other form is to introduce an element of ambiguity. Firstly to say that natural meaning of word theft is what has been provided by the appellant is entirely illegal and natural. Secondly to say that invoking the statutory definition of theft in context of penal offence as provided by Central Act i.e. Indian Penal Code is summoning outside help is logic chopping. Statutory definition is a legal help if at all any and is the only definition to be provided to the word theft. Thirdly introduction of any other requirement or definition of theft in the clause is introducing ambiguity In addition to this, we find this clause running counter to the predominant meaning, purpose and object and also defining the word theft against the definition provided by the law of the land i.e. Indian Penal Code. Theft is a penal offence and is therefore punishable with sentence of fine or imprisonment or both and in respect of which FIR is lodged with the police and therefore has to be provided the meaning as given in the I.P.C.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. In the result, appeal is dismissed 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 09th day of November 2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member Tri