State Consumer Disputes Redressal Commission
National Insurance Co. Ltd vs Dharmender Singh on 17 April, 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: 17.04.2007 First Appeal No.07/79 (Arising from the order dated 15.12.2006 passed by District Forum (South-I) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No. 74/2006) National Insurance Co. Ltd. Appellant, Regional Office No.1, through Mr. Pradeep Gaur, Jeevan Bharati, advocate. 124, Connaught Circus New Delhi. AND 12, Community Centre, East of Kailash, New Delhi. Versus Dr. Dharmender Singh ... Respondent. 87, A/1, Railway Colony, Tughlakabad, New Delhi. 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. Vide order dated 15.12.2006, passed by the District Forum, the appellant company has been directed to pay an amount of Rs.3,978/- towards insured amount on account of theft of Nokia handset and also to pay Rs.3000/- as compensation for wrongful repudiation of the claim and Rs.1500/- towards cost of litigation.
2. Question is whether Clause 1B of the Insurance Policy covering risk of theft is against theft simplicitor i.e. natural meaning of theft 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.
3. Respondent purchased the Nokia handset with an insurance policy for a sum of Rs.3,978/- covering theft. The said handset was picked from the pocket of the respondent in a bus on 13.02.2004, in respect of which a complaint was lodged with the Police. Respondent preferred a claim with the appellant against the insurance policy. The claim of the respondent was repudiated on the ground that the element of theft does not fulfill the terms and condition mentioned in the relevant clause 1B, which reads as under:
INSURANCE BENEFIT:
1B. Theft coverage for Nokia GSM handset for one year from the date of purchase subject to following exclusions:
Theft of handset from any property or premises unless such theft has occurred through forced and violent entry or exit.
(emphasis supplied) Theft handset from any public/public conveyance except where the hand set is taken by actual or threatened force.
4. For the purpose of this clause we deem the DD entry as report of theft of handset as it is the common knowledge and common experience that whenever a person with such a complaint for lodging the report goes to the police, the police always records DD report instead of FIR in order to avoid the job of investigation. Had it been a simple case of having misplaced the handset, there was no need to go to the police station for lodging the report? Police comes into action when such a DD report is converted into a cognizable offence needing investigation. Thus in our view the DD report lodged with the police was in actuality a report of theft and nothing else.
5. 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.
6. 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.
7. 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.
9. As is apparent, ingredients of violence or force are relevant for the offence of extortion or robbery.
9. 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.
10. 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 situations that have been enumerated like leaving the handset in open place like a roof, bonnet or boot of the vehicle.
11. 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 tantamounts 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 risk against theft.
12. 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.
13. 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 conditions 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.
14. 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.
15. In the result, appeal is dismissed being devoid of merit.
16. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
17. 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.
18. Copy be sent to all the Presidents of District Forum.
Announced on 17th day of April 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri