Delhi District Court
Rajneesh Mohan vs M/S United India Insurance Co. Ltd on 12 May, 2023
IN THE COURT OF HARVINDER SINGH,
PRESIDING OFFICER : ADJ/MACT - 01,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
JUDGMENT
Civ.No.624/2017 CNR No.DLWT01-004785-2017 Rajneesh Mohan ................Plaintiff S/o Sh. Amar Nath Mohan Prop. of M/s Arien Sales & Marketing At WZ - 101/9, Nursing Garden, Khayala, New Delhi - 110 018.
Versus M/s United India Insurance Co. Ltd. ...........Defendant Divisional Office at III/SCO, 149 - 150, 1st Floor, Sector - 8C, Chandigarh.
Date of institution : 25.05.2017 Date of reserve of judgment : 11.05.2023 Date of final decision : 12.05.2023 SUIT FOR RECOVERY OF RS.76,82,142/-
(RUPEES SEVENTY SIX LAKH EIGHTY TWO THOUSAND ONE HUNDRED FORTY TWO ONLY)
1. Vide this judgment, this Court shall decide this suit filed by plaintiff for recovery of sum of Rs.76,82,142/- against the defendant along-with cost of the suit/proceedings, future interest and pendente-lite interest.
PLAINTIFF SIDE CASE
2. Succinctly, the case of plaintiff as discernible from his pleadings is that plaintiff is proprietor of M/s Arien Sales & Marketing having its registered office at WZ - 101/9, Nursing Garden, Khyala, New Delhi - 110 018. Plaintiff is distributor of Indian Tobacco Company. He is doing business since 1998, Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.1 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:52:52 +0530 however, has become authorized distributor of Indian Tobacco Company for last about four years only. Plaintiff has taken one office-cum-godown on rent at WZ - 101/9, Nursing Garden, Khyala, New Delhi - 110 018. The covered area of godown is approximately 2800 square feet. It also has a mezzanine floor of around 400 square feet which is used by them as office. The front portion of godown is covered by two small steel gates, then there is some parking space and inside it is main steel gate. The godown is used for keeping goods on FIFO basis (first in - first out basis). Plaintiff had comprehensive burglary BP policy no.111600/46/13/04/00000110 of the defendant vide which all goods and stocks were insured for period 12.09.2013 to 11.09.2014. Burglary took place in the night of 26.05.2014 - 27.05.2014 in the godown. The goods/stocks of various branded cigarettes were stolen from the godown after breaking open the locks. The plaintiff had closed it on the night of 26.05.2014 at about 10:00 pm after locking godown and the outer gates. The keys were handed over to manager Mr. Anil Kumar for opening office on next date. In morning of 27.05.2014, one employee Sh. Umesh came to office at about 08:30 am and found no locks on small gate leading to main gate. The shutter was open and lifted. He informed wife of plaintiff who is also actively involved in business. Plaintiff along-with his wife immediately came to the godown and found locks missing and shutter open. Police was called at 100 number. FIR No.402 dated 27.05.2014 was registered under Section 380 of The Indian Penal Code, 1860 (hereinafter referred to as IPC). Later on, offence punishable under Section 457 IPC was also added to the matter as it was found by police during the course of investigation that burglars Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.2 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:02 +0530 had made forcible entry during night by breaking open the locks. Despite best efforts, police could not trace culprits, it filed untrace report before the Court of Sh. Sushant Changotra, then Ld. MM, Tis Hazari Courts, Delhi and same was accepted vide order dated 17.01.2015. The plaintiff informed his broker Brooklyn INS Brokers Pvt. Ltd. about the incident and told its authorized representative Sh. Yatin Gulati that they have suffered loss to the tune of Rs.70,00,000/- to Rs.1,00,00,000/-. The said agent in his email dated 27.05.2014 inadvertently informed the defendant company the loss to the tune of Rs.70,000/- to Rs.100,000/-, however, realizing his mistake, he sent another email dated 29.05.2014 reporting estimated loss to be around Rs.80,00,000/-. The said agent requested the defendant to appoint a surveyor. He also advised the plaintiff to lodge his complaint with the defendant by filling a burglary claim. Plaintiff on his advice, filled the burglary claim form. On request of the agent, the defendant company appointed Protocol Insurance Surveyors and Loss Assessors Pvt. Ltd. to assess the loss suffered by the plaintiff. The officials of surveyor inspected premises on 28.05.2014 and submitted their preliminary survey report on 16.06.2014. In said report, they found that cigarettes being valuable items were stolen from separate room inside the godown which was duly locked. The surveyor also verified the stock of the plaintiff and estimated loss to be around Rs.47,00,000/-. He found theft of cigarettes, matchboxes, mobile handsets etc. The said surveyor observed that culprits have entered the premises by breaking the locks of small door of main gate and thereafter, they entered inside the premises where they further broke two locks of rolling shutters and stole goods. They Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.3 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:10 +0530 however stated that the loss was beyond the power of Protocol Manager. Due to same, another surveyor was appointed by defendant who submitted his final surveyor report dated 29.01.2015 vide which he rejected the claim of the plaintiff on the ground that police has initially registered case under Section 380 IPC which implies it being case of simple theft without any forcible entry, hence, claim is not payable under the policy. The findings of surveyor are against facts and are based upon conjecture and surmises. The final report given by surveyor was given after many days of the incident. The first surveyor and police both found locks being broken and a case of forcible entry during night. The findings of surveyor that there was no forcible entry is very strange and unbelievable. The plaintiff was informed on 11.02.2015 that the claim is not payable as locks were found missing from main gate and the shutter was also found open as per report of surveyor Mr. Vinod Sharma dated 05.02.2015. Plaintiff was not provided the detailed report and has to obtain under RTI. Plaintiff served legal notice dated 29.05.2015 calling upon defendant to pay claim of sum of Rs.56,25,096.77 paise along-with interest, but same was neither replied nor complied. The plaintiff also preferred complaint under Section 12 of The Consumer Protection Act on 01.10.2015. The plaintiff is entitled for interest @ 12% per annum from 27.05.2015. With these main averments, the plaintiff has filed this suit for recovery of Rs.76,82,142/- along-with cost of the suit/proceedings, future interest and pendente-lite interest. MISCELLANEOUS PROCEEDINGS
3. Summons of the suit were issued against defendant, same were served, defendant appeared and filed its written Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.4 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:18 +0530 statement.
DEFENDANT SIDE CASE AS PER WRITTEN STATEMENT
4. Succinctly, the case put forward by the defendant as discernible from its written statement is that this suit is not maintainable before this Court as the plaintiff has also filed complaint before the Hon'ble State Consumer Dispute Redressal Commission, New Delhi seeking identical relief. The claim is not payable to the plaintiff under operative clauses 'a' and 'b' of the Burglary Police No.111600/46/13/04/00000110. The plaintiff purchased burglary policy from defendant vide policy No.111600/46/13/04/00000110 for period 12.09.2013 13:06 hours to midnight of 11.09.2014. The plaintiff raised a claim alleging theft to have taken place at godown located at WZ - 109/9, Nursing Garden, Near Yadav Dhaba, Khayala, Delhi on 27.05.2014. The plaintiff reported said claim to its divisional office no.3, Chandigarh through insurance brokers M/s Brooklyn Insurance Brokers Pvt. Ltd. vide email dated 27.05.2014. Vide email broker requested defendant to register the claim and to depute a surveyor. The estimated loss as per the said email was Rs.1,00,000/- and alleged items lost were like cigarettes, match boxes, biscuits etc. The defendant deputed M/s Protocol Surveyors to conduct preliminary survey. In the meantime, the defendant increased the estimated loss to Rs.80,00,000/-. M/s Protocol Surveyors conducted preliminary survey and submitted preliminary survey report no.2014-May-156 dated 16.06.2014. It was noted in said preliminary survey that the cigarettes being valuable items were stored in separate room inside the godown which was duly locked. The plaintiff has stated to surveyor that Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.5 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:26 +0530 cigarette stock was taken out from room as per order, but due to non-availability of vehicle on 26.05.2014, same could not be dispatched and was lying outside the cigarette store room. During preliminary survey, the plaintiff has not provided the documents in support of quantification of the exact loss sustained by the plaintiff except some vague documents without any substantiation. Thereafter, Sh. Vinod Sharma, 101, Building No.5, Local Shopping Centre, Madangir, New Delhi was deputed for final survey and assessment of preliminary survey report. Sh. Vinod Sharma after conducting survey submitted his final survey report bearing no.VS/SURV./2014-15/044 dated 29.01.2015 to the defendant. In final survey report, it was observed that as per the narration of the incident by Sh. Rajneesh Mohan, Proprietor of M/s Arien Sales & Marketing and his wife Mrs. Achana Mohan, the office was closed on 26.05.2014 at about 09:45 pm in evening after locking it. Keys were handed over to Sh. Anil Kumar, Manager for opening the office on next day. On 27.05.2014, one staff Mr. Umesh arrived at office and saw that there was no lock on small gate of main gate and shutter was open. He called another staff Mr. Rohit who also found the same. Mrs. Archana Mohan was informed who rushed to office along-with her husband/plaintiff. The plaintiff alleged that locks were found missing and the shutter was left open. 100 number was dialed. Police reached at the place of incident with crime team and FIR No.0402/2014 was lodged under Section 380 of The Indian Penal Code, 1860. After passage of some time, the police filed untrace report on 12.09.2014 before Ld. MM concerned which was accepted on 17.01.2015 after recording no objection of the plaintiff. The final surveyor Sh. Vinod Sharma Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.6 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:33 +0530 verified the stock records maintained on computer from which balance stocks were deducted to arrive at the shortage. The surveyor while carrying out final survey has opined that in view of nature of items, they have deducted 5% for dead stock and calculated the final loss of plaintiff as Rs.53,43,842/-. The surveyor however opined that the claim of plaintiff was not payable. The final surveyor has specifically observed that there was no forcible entry in the premises. The police report also clearly mentions that locks were found missing on the main gate and shutter was found open. As per the final surveyor's inquiry and the preliminary surveyor's inquiry, main gate's central lock was found intact and its small gate lock was not available. No sign of breaking of locks was available. Inside the main gate, locks of the rolling shutter were also missing but there was no sign of forcible entry or breaking of locks. FIR was registered under Section 380 of The Indian Penal Code, 1860 which implies case of theft not covered under the policy. The plaintiff could not explain satisfactorily as to on what basis, section 457 of The Indian Penal Code, 1860 was added later on by the police. The defendant denied most of the other averments of the plaint of the plaintiff and prayed for dismissal of the suit. REPLICATION
5. The plaintiff filed replication to the written statement of the defendant wherein it denied and controverted the stand taken by the defendant, confirmed and reiterated the stand taken by him vide his plaint. It is also pertinent to mention here that plaintiff side submitted certified copy of order dated 20.08.2018 of Consumer Disputes Redressal Commission qua withdrawal of complaint against defendant filed in said forum on Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.7 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:42 +0530 record on 16.11.2018.
ISSUES FRAMED
6. After completion of pleadings, following issues were framed by scholarly predecessor of this Court vide order dated 16.11.2018 : -
(i) Whether the suit of the plaintiff is not maintainable in view of clauses no.(a) and (b) of the Burglary Policy bearing policy no.111600/46/13/04/00000110 as stated by the defendant in its written statement? OPD
(ii) Whether the suit of the plaintiff is not maintainable in view of preliminary submissions of the written statement? OPD
(iii) Whether plaintiff is entitled for the recovery of the amount of Rs.76,82,142/- along-with interest as prayed for by the plaintiff in the plaint? OPP
(iv) Relief.
PLAINTIFF SIDE EVIDENCE 7.1 In order to prove his case, plaintiff has examined himself as PW1, tendered his examination-in-chief vide affidavit Ex.PW1/A reiterating almost similar facts as of his pleadings and exhibited documents i.e. copy of Form GST as Ex.PW1/1, registration as Ex.PW1/1A, Policy as Ex.PW1/3, FIR as Ex.PW1/4, charge-sheet as Mark 'A', untrace report as Mark 'B', claim form as Ex.PW1/5, Preliminary Surveyor Report dated 16.06.2014 as Ex.PW1/6, hand written report at the time of inspection as Mark 'C' (collectively) (running into 05 pages), Final Surveyor Report as Ex.PW1/7, Legal Notice dated 29.05.2015 as Ex.PW1/8, Postal Receipts as Ex.PW1/9, Tracking Report as Ex.PW1/10, statements of account as Ex.PW1/11, Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.8 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:51 +0530 Certificate under Section 65B of The Indian Evidence Act, 1872 as Ex.PW1/12 in his evidence. PW1 was examined, cross- examined in length by Ld. Counsel for the defendant which is not reproduced herein for sake of brevity and was discharged. 7.2 Plaintiff further examined Sh. Rohit as PW2 who tendered his examination-in-chief vide affidavit Ex.PW2/A. He in gist has deposed that he is working with M/s Arien Sales & Marketing for last seven years as delivery man. On morning of 27.05.2014, Sh. Umesh Kumar another employee came to office and found theft to have taken place. He informed him telephonically and asked him to inform the plaintiff. He called his employer and informed him about the theft. There was no lock on the small gate and on the main gate. He made inquiry from adjacent dhaba. The dhaba owner also came there and found the small gate closed from outside, but the lock was missing. The shutter was open and lifted. He found the small gate closed from outside and there being no lock. He had put lock on the night. He had reached at the spot at 09:00 am. The employer and his wife also came there. On checking various articles were found missing. Matter was reported to police and later on insurance company was also informed. Umesh Kumar was hired by company as rickshaw puller who used to deliver the goods. He left the services in year 2014 and went back to his native place. His present whereabouts are not known. PW2 was examined, cross-examined by Ld. Counsel for the defendant and was discharged.
7.3 Plaintiff further examined Sh. Vaibhav Sharma from Protocol Insurance Surveyor & Loss Assessors Pvt. Ltd. at H - 54, Sector - 63, Noida, Uttar Pradesh as PW3 who has proved Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.9 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:53:57 +0530 and identified their preliminary survey report dated 16.06.2014 along-with physical verification report of stocks Ex.PW1/6 and has deposed that they received the intimation for survey and verification on 27.05.2014. On same, they visited the premises on 28.05.2014. PW3 was examined, not cross-examined by the defendant side despite opportunity given and was discharged. 7.4 Plaintiff further examined Sh. Vinod Sharma as PW4 who in gist has deposed that the FIR was initially registered under section 380 IPC, section 457 IPC was added later on in final report and insurer could not submit relevant supporting documents, on basis of which section 457 IPC was added in the final report by the police. He admitted that he checked the police report, but deposed that the police officers did not show him the records and only verbally informed him about section 457 IPC being added. He admitted that he has not written any letter to the police for inspection of records, but he also deposed that he wrote to the insured to provide correspondence with the police/the basis of adding section 457 IPC. He admitted that the police can add any section after investigation, but deposed further that the information qua same has to be provided by the insured. He admitted that he has not made any objection to the final report of the police, but also deposed that it is beyond scope of his work. He denied that the insertion of section 457 IPC later on was the sole reason for the rejection of the claim. He deposed that the main ground for rejection was absence of forcible entry as there was no breaking open of locks. He admitted that the policy in question is a burglary BP (business premises) policy. He deposed that he has sent an email dated 22.01.2015 to the insured to substantiate the addition of Section 457 IPC. He Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.10 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:05 +0530 admitted that he has verified the stocks from the computer in respect of theft. He deposed that according to him, forcible entry or exit would mean breaking of any door, window or locks. He deposed that he assessed that locks were not broken as the insured confirmed in writing in his written FIR that locks were missing and not broken. He admitted that he verified from the insured that he locked the premises before closing the business a day earlier. He deposed that he could not find any evidence of forcible entry. He admitted that he came to inspect the premises after 15 days of the incident. PW4 was examined, not cross- examined by Ld. Counsel for the defendant despite opportunity given and was discharged.
7.5 Plaintiff further examined HC Parveen Kumar as PW5 who has proved and exhibited FIR Ex.PW1/4, index of case diary of IO dated 08.09.2014 mentioning it as untrace, approval of ACP on 15.09.2014 and it being accepted by Ld. MM on 17.01.2015 in the index register as Ex.PW5/1 in his evidence. PW5 was examined, not cross-examined by Ld. Counsel for the defendant despite opportunity given and was discharged. 7.6 Plaintiff further examined HC Dinesh Chand as PW6 who has proved and exhibited the order dated 17.01.2015 of the then Ld. MM Sh. Sushant Changotra and statement of complainant Rajneesh Mohan dated 17.01.2015 as Ex.PW6/1 (collectively) and copy of final report filed before the Court of Sh. Sushant Changotra, the then Ld. MM as Ex.PW6/2 in his evidence. PW6 was examined, cross-examined by Ld. Counsel for the defendant and was discharged.
7.7 No other witness was examined by plaintiff side and plaintiff evidence was closed vide order dated 22.01.2020.
Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.11 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:15 +0530 Thereafter, matter was fixed for defendant evidence. DEFENDANT SIDE EVIDENCE 8.1 In order to prove its case, defendant side has examined Sh. Brij Mohan Bharty as DW1 who tendered his examination-in-chief vide affidavit Ex.DW1/A reiterating almost similar facts as of his pleadings and exhibited documents i.e. board resolution dated 06.08.2012 as Ex.DW1/1. DW1 was examined, cross-examined at length by Ld. Counsel for the plaintiff which is not reproduced herein for sake of brevity and was discharged.
8.2 No other witness was examined by defendant side. Defendant evidence was closed vide order dated 04.12.2021. Thereafter, matter was fixed for final arguments. ARGUMENTS/SUBMISSIONS/CONTENTIONS 9.1 The submissions/contentions of the plaintiff side are that it has positively proved its case. The plaintiff side has been able to prove that burglary/house breaking by night took place at their godown/business premises at WZ - 101/9, Nursing Garden, Khayala, New Delhi - 110 018 in the intervening night of 26.05.2014 - 27.05.2014. PW4 who was the second surveyor of defendant has admitted that he has verified about premises being locked by the plaintiff the day earlier. DW1 has admitted in his cross-examination that force would be required for lifting of the shutter. Locks were not found and were taken away by culprits. Hence, all these facts establish that burglary/house breaking by night took place. It is submitted/contended that the suit of the plaintiff side be decreed with costs. Plaintiff side has relied upon the judgments of Hon'ble Supreme Court of India in matter of "United India Insurance Co. Ltd. Vs. M/s Harchand Rai Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.12 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:23 +0530 Chandan Lal" 2004 (8) SCC 644, of Hon'ble High Court of Jharkhand in matter of "New India Assurance Company Ltd. Vs. Shyam Sunder Hetamsariya & Ors." 2008 (1) AIR Jhar R.145, of Hon'ble National Consumer Disputes Redressal Commission in matter of "Vishal Chandra Vs. Royal Sundaram Alliance General Insurance Co. Ltd." 2016 (2) C.P.R. 592, upon decision of appeal before State Commission, Haryana in matter of "National Insurance Co. Ltd. Vs. Public Type College"
decided on 10.05.2001 and upon decision of appeal before State Commission, Delhi in matter of "New India Assurance Co. Ltd. Vs. Jain Tractors & Auto Spares (P) Ltd." decided on 23.09.2008 in support of their contentions. 9.2 Per contra, submissions/contentions of defendant side are that the policy in question is burglary policy of business premises. The incident in question is a case of simple theft from dwelling house/premises, therefore, is not covered within clauses 'a' and 'b' of terms of the policy. No signs of forcible entry into the premises were found by anyone. Even plaintiff in his statement to the police on which FIR was registered has stated it to be case of theft only. The suit of the plaintiff side is liable to be dismissed with costs. Defendant side has relied upon the judgments of Hon'ble Supreme Court of India in matters of "United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal" 2004 (8) SCC 644, "Oriental Insurance Co. Ltd. Vs. Sony Cheriyan" (1999) 6 SCC 451 and of National Consumer Disputes Redressal Commission in matter of "New India Assurance Co. Ltd. Vs. Shri Pankaj Kapoor" FA No.206 of 2007 in support of their contentions.
9.3 Submissions/contentions/case of both side
Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.13 of 20
Digitally signed by
HARVINDER HARVINDER SINGH
SINGH Date: 2023.05.12
16:54:30 +0530
considered. Records perused.
ISSUE WISE DISCUSSION/ANALYSIS/FINDINGS Issue no.(i) & (ii)
(i) Whether the suit of the plaintiff is not maintainable in view of clauses no.(a) and (b) of the Burglary Policy bearing policy no.111600/46/13/04/00000110 as stated by the defendant in its written statement? OPD
(ii) Whether the suit of the plaintiff is not maintainable in view of preliminary submissions of the written statement? OPD 10.1 Both these issues are taken up together as both of them are interlinked and interconnected with each other and can be conveniently discussed and decided vide common discussion.
The onus of proving the said issues was upon the defendant side. As can be gathered from the arguments advanced by both side, the main bone of contention between both side is regarding the nature of the incident which has taken place. The contention of the plaintiff side is that house breaking by night for the purpose of committing theft took place at their premises in question on the intervening night in question of 26.05.2014 - 27.05.2014, therefore, their case is covered within terms of policy as contained in clauses 'a' and 'b' of the same. On the other hand, the contention of defendant side is that only simple theft from the godown/premises took place sans any violent forcible entry, therefore, the incident in question is not covered within terms of clauses 'a' and 'b' of the policy in question. Before proceeding further to decide the matter on the present issues, it would be apposite to first take note of two clauses in question and to encapsulate the law laid down by Hon'ble Supreme Court of India in its guiding lamp-post judgment in matter of "United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal"
Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.14 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:37 +0530 2004 (8) SCC 644 as to how the terms of contract of insurance needs to be interpreted, what is meant by term burglary and what incidents are covered within the meaning of burglary. The other judgments/orders relied upon by both side are also based upon said decision of Hon'ble Supreme Court of India. 10.2 The relevant two clauses 'a' and 'b' of the policy are as under : -
(a) Any loss of or damage to property or any part thereof whilst contained in the premises described in the schedule hereto due to Burglary or House-
breaking (theft following upon an actual forcible and violent entry of and/or exit from the premises) and Hold-up.
(b) Damage caused to the premises to be made good by the Insured resulting from burglary and/or house- breaking or any attempt thereat any time during the period of insurance."
10.3 Hon'ble Supreme Court of India in matter of "United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal" 2004 (8) SCC 644 in which same terms and conditions were matter of dispute has held as under : -
"5. The question before us is whether in terms of the policy, the repudiation of the claim of the respondent by the appellant company is justified or not. We have already reproduced the terms of the policy as also the definition of burglary and/or housebreaking as defined in the policy. The definition given in the policy is binding on both the parties. The policy is a contract between the parties and both parties are bound by the terms of contract. As per the definition of the word burglary, followed with violence makes it clear that if any theft is committed it should necessarily precede with violence i.e. entry into the premises for committing theft should involve force or violence or threat to insurer or to his employees or to the members of his family. Therefore, the element of force and violence is a condition precedent for burglary and housebreaking. The term 'burglary' as defined in the English Dictionary means an illegal entry into the building with an intent to commit crime such as Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.15 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:45 +0530 theft. But in absence of violence or force the insurer cannot claim indemnification against the insurance company. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever, liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is true that in common parlance the term 'burglary' would mean theft but it has to be preceded with force or violence. If the element of force and violence is not present then the insurer cannot claim compensation against theft from the insurance company. This expression appearing in the insurance policy came up for interpretation before the English Court and the English Courts in no uncertain terms laid down that burglary or theft has to be preceded with force or violence in order to be indemnified by the insurance company. In this connection reference may be made the statement of law as summarized in Halsbury's Laws of England Fourth Edition ( 203 Reissue) Para
646. It reads as under :-
"646. Forcible and violent entry. The terms of a burglary insurance may exclude liability in certain circumstances unless there is forcible and violent entry into the premises. If so, the entry must be obtained by the use of both force and violence or the definition is not satisfied and the policy does not apply. An entry obtained by turning the handle of an outside door or by using a skeleton key, though sufficient to constitute a criminal offence, is not within the policy since the element of violence is absent. However, an entry obtained by picking the lock or forcing back the catch by means of an instrument involves the use of violence and is therefore covered. The policy may be so framed as to apply only to violent entry from the outside; or the violent entry into a room within the insured premises may be sufficient. In any case, the violence must be connected with the act of entry; if the entry is obtained without violence, the subsequent use of violence to effect the theft, as for instance where a show-case is broken open, does not bring the loss within the policy."
7. Similarly, view has been expressed by American Courts also in American Jurisprudence 2nd (Vol.44) 1401 which is as follows :-
"1401 - Provisions as to visible marks or evidence, or use of force or violence - It is not uncommon for insurance companies to include in their theft or Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.16 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:54:53 +0530 burglary policies provisions restricting their liability to cases where there were some "visible marks" or "visible evidence" of the use of force or violence. It is generally competent for an insurer to insert such a clause in the contract of insurance, and since such a provision is unambiguous it does not justify the applicable of the general principle that the insurance policy will be construed most favourable to the insured. However, the courts will not read such a requirement into a policy and do not require compliance with such clauses unless the unmistakable language of the policy so requires. ............................"
10.4 Now, lets proceed further to decide the present case in light of above law laid down by Hon'ble Supreme Court of India. In this matter, the deposition of plaintiff/PW1 is that he closed his office at about 10:00 pm on 26.05.2014 after locking the godown and outer gates. On morning of 27.05.2014, he and his wife were informed at about at about 08:30 am that there is no lock on small gate and the shutter is open and lifted. He reported the matter to police on which FIR in question was registered under Section 380 IPC. He has also deposed that during investigation, the police found that locks were broken, were dishonestly removed by culprits to avoid fingerprints etc. and found that the burglars have made forcible entry in the premises, hence, it added offence punishable under Section 457 IPC in their matter. In his cross-examination, he denied the suggestion that locks were not put on godown and outer gate at the time of its closing. He also denied that locks were not broken and there was no forceful entry. He however admitted that no one was present in the office and godown in the night, so no threat of violence was extended to anyone. He also denied the suggestion that the theft was committed by using duplicate keys, it being simple case of theft, therefore, matter was registered only Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.17 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:55:00 +0530 under Section 380 IPC by the police. Now, if the deposition of plaintiff/PW1 is examined in light of other documents brought on record, it is revealed from the final untrace report of police Ex.PW6/2 that the IO on receipt of D.D.No.14B went to spot of incident along-with another Constable where he met with the complainant (plaintiff of this case) and recorded his statement at the spot. If we carefully go through the statement of the plaintiff given to the police on which FIR was registered, he had stated that when he reached at his godown at about 09:00 am, he found many articles missing and some unknown persons have committed theft of those articles. On basis of statement of plaintiff, FIR No.402/2014 of PS Khayala was registered under Section 380 IPC. If the IO who went to the spot of incident immediately after theft in morning and had found signs of forcible removal of locks from the gate and the rolling shutter, he would have certainly got mentioned those facts in statement of complainant and have got registered the case of house breaking by night at the initial stage only. Though, IO has mentioned in his final report Ex.PW6/2 that offence punishable under Section 457 IPC was added later on, but he had not dwelleved the details as to when the said offence was added and on what basis. It is not mentioned in final untrace report by IO that he has found any marks of forcible removal of locks from the small gate of main gate and upon the rolling shutter or any implement of house breaking was recovered to suggest it being case of house breaking for addition of offence punishable under Section 457 IPC. Apart from it, if the report of first surveyor dated 16.06.2014 of visit of premises on 28.05.2014 Ex.PW1/6 is gone through, the said report also says that they have not found any Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.18 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:55:07 +0530 forceful marks of entry into or exit from premises. They simply have not found locks on the small gate of the main gate and upon the rolling shutter. They could not found any marks of forcible breaking of locks on door and shutter respectively. Surveyor has also mentioned that as per the statement of the insured, the culprits must have taken away the locks with them after removing them. In absence of any broken locks being found at the premises, in absence of any marks of breaking of locks at the small gate of main gate and upon rolling shutter and further in absence of recovery of any implement of house breaking at the spot of incident by the police, the deposition of the plaintiff that locks were forcibly/violently removed cannot be accepted. In given circumstances, it appears more probable that thief/thieves have committed crime using some skeleton/duplicate keys. As far as contention of the plaintiff side that the force must have been used by the culprits in lifting of the rolling shutter at least, therefore, their matter gets covered within the terms of the policy is concerned, though lifting of shutter would certainly require force, but it cannot be construed to be use of violent force and could be equated with the example of turning of handle of the door as is discussed by Hon'ble Supreme Court of India in matter of "United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal" 2004 (8) SCC 644. At the scales of preponderance of probabilities, the preponderance of probabilities lies in favour of the defendant side that the incident in question is a case of theft from dwelling house at night instead of burglary or house breaking by night covered within the terms of the policy. Hence, issue no.01 and 02 are decided in favour of defendant and against the plaintiff.
Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.19 of 20 Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2023.05.12 16:55:13 +0530 Issue no.(iii)
(iii) Whether plaintiff is entitled for the recovery of the amount of Rs.76,82,142/- along-with interest as prayed for by the plaintiff in the plaint? OPP 10.5 The onus of proving the said issue was upon the plaintiff side. Since, issue no.01 and 02 are decided in favour of the defendant and against the plaintiff, therefore, this issue has become redundant. Hence, is left as such.
RELIEF
11. In view of above discussions, suit of the plaintiff is hereby dismissed. No order as to costs. Decree sheet be prepared accordingly. After preparation of decree-sheet, file be consigned to record room after due compliance.
Digitally signed by
Announced in open Court HARVINDER HARVINDER SINGH
SINGH Date: 2023.05.12
on May 12, 2023. 16:55:21 +0530
(HARVINDER SINGH)
ADJ-cum-PO:MACT-01,
West/THC/Delhi/12.05.2023
Rajneesh Mohan Vs. M/s United India Insurance Co.Ltd. Civ.No.624/2017 [12.05.23] Page No.20 of 20