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Judgment
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-
"In the light of above, it is prayed that the impugned Order be set aside and the respondent No.-1 be directed to consider the complaint of the petitioner".
It is the case of the petitioner that petitioner is a partnership firm dealing in wholesale distribution of medicines in the name of M/s National Agencies. It is submitted that the aforesaid business of the petitioner is insured by the respondent no.1 Insurance Company through Insurance Policy No.122602-0000-00 dated 25.6.2012 worth Rs.1,15,00,000/-. The entire stock of the petitioner is covered in the said policy. The policy was valid from 21.6.2012 to 20.6.2013. It is submitted that on 18.2.2013, when petitioner reached the aforesaid business place, he found that his stocks are stolen by opening locks of the shop by preparing duplicate keys. The matter was immediately reported to concerned Police Station Hanumanganj, Bhopal and on the information of the petitioner, Crime No.249/2013 was registered for the offence under sections 457 and 380 IPC. Thereafter, the petitioner filed a claim seeking compensation to the tune of Rs.16,00,000/- before the respondent no.1, which was rejected vide letter annexure P/4 for the reason that there was no forcible entry in the premises nor locks were broken. The petitioner preferred representation against the said rejection of his claim by the respondent company. The same was also rejected by the Grievance Redressal Committee vide letter dated 1.3.2014, annexure P/6. Being aggrieved therewith, the petitioner moved a complaint before the respondent no.2 Ombudsman. However, the same has also been dismissed by impugned order annexure P/1. Hence, this petition.
Learned counsel for the petitioner contended that the policy covers the losses from theft, burglary. It is further submitted that as the unknown persons have forcibly entered into the premises of the petitioner by breaking open the locks through duplicate keys, offence of theft is made out for which the policy covers the claim and, therefore, claim of the petitioner for compensation of the loss incurred due to theft ought to have been granted by the respondent Company. To bolster his submission, reliance has been placed upon the judgment of Hon'ble Apex Court in the case of United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, (2004) 8 SCC 644.
Per contra, counsel for the respondent opposed the contention made by counsel for the petitioner by filing reply to the petition and submitted that the policy issued to the petitioner is a business package policy which covers stock under fire, allied peril and burglary. It is submitted that the theft add on cover was not taken by the petitioner and only cover for burglary was opted. It is submitted that after reporting the alleged incidence by the petitioner on 18.02.13 to the respondent No.1, a survey was conducted in the matter by the Surveyor and on the basis of statements and reports of petitioner, upon inspection of the premises and inquiries with partner and employees of the petitioner, final survey report dated 13.09.13 was prepared by Surveyor. A bare perusal of the said survey report goes to highlight that on the basis of evidence it has been found that no evidence of any forceful entry and exit to the insured premises is found so as to attract burglary as covered under the insurance policy. Therefore, as per policy terms and conditions and scope of coverage defined in the policy, loss claimed is not admissible.
Heard learned counsel for the parties and perused the record.
From perusal of annexure R/2, it is evident that the policy covers the burglary insurance for the type of asset 'stocks' and add on cover is of earthquake (Fire & stock cover). Annexure R/1 is the Burglary insurance policy. From perusal of Operative clause of the said policy, it is evident that the burglary cover with respect to petitioner policy becomes operative under certain circumstances. Operative clause of the policy reads as under :-
a)The property described in the Schedule hereto or any part thereof shall be lost destroyed or damaged by Burglary or Housebreaking (theft following upon an actual forcible and violent entry of or exit from the premises by the person or persons committing such theft) or Hold-up;
b)Any damage to the premises described in the Schedule hereto following upon or occasioned by an actual forcible and violent entry or exit from the premises or any attempt threat by the person or persons committing or attempting to commit such theft then the Company will subject to the terms exceptions and conditions contained herein or endorsed hereon pay or make good to the Insured such loss to the extent of the intrinsic value of the property so lost or such damage to the amount so sustained. Provided that the liability of the Company shall in no case exceed in respect of each item the sum expressed in the Schedule hereto to be insured thereon or in the whole the total Sum Insured hereby.
The Hon'ble Apex court in the case of Harchand Rai Chandan Lal (supra) while dealing with the same issue has defined the term 'burglary', which reads as under :-
"4.The term “burglary and/or housebreaking” has been defined in terms of the policy also which reads as under :-
“ ‘Burglary and/or housebreaking’ shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family.”
9.It is possible that an insurer may sustain loss in technical terms of criminal law, but no relief can be given to him unless his case is covered by the terms of the policy. It is not open to interpret the expression appearing in the policy in terms of common law; but it has to give meaning to the expression as defined in the policy. The act that causes the loss must fall within the definition in the policy and it cannot take the cover and contents of the definition as laid down in criminal law. Therefore, when the definition of the word “burglary” has been defined in the policy then the cause should fall within that definition. Once a party has agreed to a particular definition, he is bound by it and the definition of criminal law will be of no avail. In this connection, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Co. Ltd. v. Public Type College [(2001) 2 CPJ 26 (NC)] which has taken the colour and content of the definition given in criminal law does not lay down the correct proposition of law. It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on the definition given in other enactment. Thus, the decision of the National Consumer Disputes Redressal Commission in the case of National Insurance Co. Ltd. v. Public Type College [(2001) 2 CPJ 26 (NC)] is not a good law and all the tribunals i.e. National Consumer Disputes Redressal Commission, State Commission and District Forum having applied the ratio of that case, the impugned order cannot be sustained.
15.From the above discussion, we are of the opinion that theft should have been preceded with force or violence as per the terms of insurance policy. In order to substantiate a claim an insurer has to establish that theft or burglary took place preceding with force or violence and if it is not, then the insurance company will be well within their right to repudiate the claim of the insurer.
From perusal of the operative clause of the Burglary insurance policy, annexure R/2, it is clear that the said policy provides cover for theft following upon an actual forcible and violent entry of or exit from the premises by the person or persons committing such theft. In the instant case, the case of the petitioner is that the theft has been committed by making duplicate keys and opening the locks, which does not fall within the ambit of definition of theft provided under the policy, as has been held by the Hon'ble Apex Court in para 15 of judgment in the case of Harchand Rai Chandan Lal (supra). Counsel for the petitioner could not demonstrate the forcible entry or exit from the premises by persons or persons committing such theft.
Accordingly, no case is made out warranting interference by this Court in exercise of writ jurisdiction enshrined under Article 226 of the Constitution of India.
Accordingly, the petition fails and is hereby dismissed.