1.         The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 26.02.2018 of the State Consumer Disputes Redressal Commission,  Rajasthan (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 93 of 2011 in which order dated 19.07.2011 of District Consumer Disputes Redressal Forum, Kota (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 425 of 2008 was challenged, inter alia praying for setting aside the order dated 26.02.2018 of the State Commission.

2.         Notice was issued to the Respondent(s) on 13.07.2018. Parties filed Written Arguments on 21.08.2023 (Petitioner) and 19.03.2024 (Respondent) respectively. 

3.         Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that: -

(i)        The  Respondent-complainant took a Shopkeeper Insurance Policy with a coverage of Rs.16,00,000 for his shop containing watches and spare parts. The policy specifically covered burglary and housebreaking, defined as theft involving forcible entry or exit. 

(ii)       On 04.11.2007, the complainant locked the shop, but on the next day, the rolling shutter was found open, and watches were missing. An FIR was lodged and Complainant informed the Insurance Company, the Insurance Company appointed surveyors and investigators to assess the incident. Reports indicated no signs of forced entry; the locks appeared to have been opened without tampering, suggesting the use of duplicate keys.

(iii)     Subsequent evaluations confirmed that there was no evidence of violence or forced entry. As a result, the Insurance Company requested additional documentation from the Complainant to substantiate his claim. However, no further evidence was provided by the Complainant that leads to the repudiation of the claim on 14.07.2008.

4.         Vide Order dated 19.07.2011, in the CC no. 425 of 2008 the District Commission has dismissed the complaint. Aggrieved by the said Order dated 19.07.2011 of District Commission, Petitioner(s) appealed in State Commission and the State Commission vide order dated 26.02.2018 in FA No. 93 of 2011 allowed the appeal and passed the following order:

“Keeping in view all these circumstances I am of the opinion that the Appeal should be allowed and therefore, the impugned order of the District Forum is set aside. The Insurance Company is directed to pay to the complainant the amount assessed by the Surveyor along with interest @9% p.a. from the date of filing of the complaint plus Rs.11,000/- towards costs of litigation within a period of one month.”

5.         Petitioner(s) have challenged the said Order dated 26.02.2018 of the State Commission inter alia on following grounds:

1. The State Commission failed to appreciate that in the facts and circumstances of the case the claim of the respondent complainant would not fall within the purview of the policy. It is submitted that the F.I.R, final report, report of the Surveyors and Investigator of the Petitioner Company would clearly show that neither the shutter was broken nor the lock was broken/tampered.

2. The State Commission failed to appreciate that as per the settled law laid down by the Supreme Court, the insurance policy has to be construed having reference to the stipulations contained in it and no artificial or far-fetched meaning could be given to the words appearing in it.

3. The State Commission erred in taking recourse to Section 445 IPC in holding that as per the definition of ‘House Breaking’ given Section 445 IPC, if a person enters or exit by opening any lock, it would be housebreaking. It is submitted that it was not disputed that the said incident was that of burglary and housebreaking and what was disputed was that the entry into or exit from the insured premises was not forcible and violent as envisaged in the policy.

4. The State Commission erred in relying upon the observations of the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, where the insurers were suggested to amend the policy. It is submitted that till the time necessary amendments are made in the policy conditions, the conditions as they exist have to be interpreted.

6.         Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1       In addition to the averments made under the grounds (para 5), the petitioner contended that the insurance policy of the Respondent valid from 19.02.2007 to 18.02.2008 which was renewal of earlier policy and the terms and conditions of the policy were enclosed by the Petitioner Insurance Company with the first insurance policy.

6.2       Further, a preliminary survey report by Mr. Sanjay Khandelwal, an investigation report of NIB and the Final survey report by Mr. SK Bakliwal dated 12.01.2008, 12.03.2008 and 24.04.2008 respectively shows that there was no apparent or visible marks of force being used. It was found that the theft was done by using some master or duplicate keys.

6.3       In support of its contentions, Petitioner Insurance Company relied upon the following judgements:

(i)        General Assurance Society Ltd. Vs. Chandmull Jain [1966] 3 SCR 500

                            (ii)       Oriental Insurance Co. Ltd. Vs. Sony Cherian II (1999) CPJ 13 (SC)

(iii)     United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644       

(iv)      Sri Venkateswara Syndicate Vs. Oriental Insurance Cmpany Limited and Another, (2009) 8 SCC 507

(v)       Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. and Another, 2021 SCC OnLine SC 818

            6.4       On the other hand Respondent contended that the total loss incurred is of Rs.13,43,144/-. The contention of the Respondent in its letter dated 24.07.2008 that the Respondent is not cooperative with the Petitioner is baseless as the Respondent fully co-operated with the Petitioner or its surveyor, employees or agents and provided all the documents, invoices, ledger and account books demanded by the Petitioner.  

            6.5       Later on, Respondent contended that the report was prepared after approximately five months after the incident which itself create doubts and suspicion on it and the arbitrariness is clear from its contents. In this case, the report of the first surveyor clearly stated that the burglar entered into the premises by using the master or duplicate key as the lock were not found at the spot which is totally covered with the fourth Clause of Section 445 of IPC which is reproduced below:

“Section 445

            House breaking – A person is said to commit “house breaking” who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say-

….

….

….

(Fourth) If he enters or quits by opening any lock in order to the committing of the house trespass, or in order to the quitting of the house after a house trespass.”

….

….

7.         We have carefully gone through the orders of the State Commission, District Forum, the policy documents, other relevant records and rival contentions of the parties. District Forum while dismissing the complaint has observed as follows:

“So far as the question of the second argument of the complainant that the incident is covered under condition No.12 of the insurance policy, i.e. force was used in theft / theft was made forcefully and therefore, the complainant is entitled to receive his claim as per the terms of the policy. In the opinion of this Forum, this argument of the complainant also appears to be incorrect in the light of the evidence available on record because a note is attached with the FR filed by the police that at the time of inspection of the spot the lock on the shutter was not found and the interlock was found to be opened only by the key and there was no bent or scratches upon the shutter. The MOB team and the Swan team were called at the spot but no physical evidence was made found at the spot. It is evident from the police report that there did not exist any evidence with regard to use of force or violence at the spot. Apart from this the witness of the complainant Raju has stated in his statement that the shutter was kept open to some height. He has not stated that the shutter was broken or force was used. The lock was not available at the spot, so it cannot be said that the incident was caused by breaking the locks or by using force. The surveyor appointed by the respondent observed that there was no such sign available at the spot from which it can be said that theft was caused by using force or violence. In the judgment reported CPJ (2004) Vol. IV-Page-15 cited on behalf of the respondent it was held by the Hon'ble Supreme Court that the policy is a contract between the two parties and its terms are binding upon both the parties. They have held that the element of force or violence is essential for the burglary or house breaking. To receive the claim it is essential to prove that force and violence were being used during theft or burglary. In case it is not proved, the insurance company cannot be held liable to pay the claim. No such judgment has been cited on behalf of the complainant which relates to the facts of the present case. Consequently this Forum comes to the conclusion that the claim of the complainant has been rightly repudiated vide letter dated 24.07.2008. There is no deficiency in service on the part of the respondent.”

8.         State Commission while allowing the appeal filed by the Complainant has observed as follows:

“Now the question is whether this incident falls under the category of burglary and house breaking or not.

The Insurance Company appointed its surveyors twice who inspected the spot and submitted a report. In the report, they commented that there were no signs of forced entry or use of force at the spot. They stated that the shutter was not bent or broken in any way, there were no signs of the shutter being forcibly opened, no scratch marks etc. were found at the spot, although the surveyor had expressed the suspicion that the locks of the shop's shutter appeared to have been opened with a master key / duplicate key. 

The Ld. Counsel for the Insurance Company cited a judgment in the case of United India Insurance Company Vs. Harchand Rai Chandan Lal: IV (2004) CPJ. The facts of that case were that a firm kept stock of grains in his godown. One day when the partner of that firm went to the godown, he found that 197 sacks of grains had been stolen. In this case, it was found that this theft falls under the category of burglary and house breaking. In this case, there were no facts regarding opening or breaking the locks of the godown. In that case, the claim was not found to be payable under the policy conditions.

The second cited case is New India Assurance Company Vs. Chaudhary Baba Amtharam: I (2011) CPJ 211 (NC). This matter relates to the theft of cash, where the cash was stolen by using duplicate keys. This matter is not relevant in the facts of the present case because the cash has not been stolen in the present case and even otherwise the theft of cash is excluded in the policy.

The third cited case is Poomkudy Auto Service Vs. National Insurance Company: III (2009) 155 (NC). In this case, the complainant had insured his stock and when the stock was physically verified, it was found that the stock was less and he submitted a claim assuming that there was theft. In that case, it was held that burglary and house breaking are necessary for a claim under the policy. The facts of this case are completely different in which the stock was found to be less during the physical verification at the end of the year.

Another judgment of Paresh Mohan Lal Parmar Vs. National Insurance Company: II (2011) CPJ 226 (NC) was also cited. The facts of that case were that the mobiles were stolen from the shop by an ex-employee by using duplicate keys. In this case also it was held that the theft was done by an ex- employee of the complainant by using keys and therefore, the claim was not payable.

The facts of the present case are almost similar where there is no evidence of breaking locks or forceful entry. The locks affixed upon the shutter were not found at the spot and the interlock was also doubted to be opened through any key or master key. In the judgment of United India Insurance Company Vs. Harchand Rai Chandan Lal, though the Hon'ble Supreme Court has dismissed the complaint of the complainant while interpreting the terms of the policy, but they have observed that the definition of burglary given in the policy should have been amended by the insurance companies so that a common man can understand the same clearly as they generally do not understand the meaning of use of force or forceful entry.

The written arguments were filed by the Ld. Counsel of the Appellant and he cited the judgment of United India Insurance Co. Ltd. Vs. Newar Metals Pvt. Ltd.: II (2017) CPJ 29 (NC). The Ld. Counsel has argued that the Insurance Company cannot interpret the burglary differently from its definition as given in Sections 445, 446 and 457 of Indian Penal Code. On the basis of judgment of Newar Metals he has argued that in fourth sub-para of the definition of house breaking given in section 445 of Indian Penal Code it is stated that if a person committed the criminal trespass by opening the lock or open the lock to egress he commits house breaking. It was held in the case of Newar Metals that it is not necessary to use force or violence for burglary. In my opinion also this objection of the Insurance Company appears to be inappropriate that if the person entered the premises by breaking the lock it will come within the definition of burglary and if the thief entered by opening the lock of the shutter with master key it will not be burglary. Entry after opening the lock by any means even with master key is also a forceful entry and comes under the definition of house breaking.

The facts of the judgements cited on behalf of the Insurance Company are different. In one of these matters the theft was done by opening the lock by the employee himself. In other two cases the goods were found less in the godown. Whereas in the present case the fact of theft is found to be proved by the police. It is also not a defence of the Insurance Company that the occurrence of theft was doubtful that the Surveyor had also confirmed the incident. This argument of the Ld. Counsel for the Insurance Company is also not acceptable that there was no scratching on the shutter nor broken locks were found there. The question of bending of shutter or scratches thereupon does not arise because the entry was made by raising the shutter after opening the locks and therefore, the shutter was not required to be broken or bent. Non-finding the locks at the spot also does not make the theft doubtful because usually the locks are not being left at the spot so as to avoid finger prints examination.”

9.         Extract of relevant clause of the policy in question (Shopkeeper’s insurance policy) are reproduced below:

“DEFINITION

The terms Burglary and/or Housebreaking shall mean theft involving entry into or exit from the insured premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family

SECTION I – BUILDING/CONTENTS

(Excluding Money and Valuables)

xxx

SECTION II – BURGLARY AND HOUSEBREAKING – CONTENTS

(Excluding Money and Valuables)

The Company will indemnify the insured in respect of loss of or damage to the contents whilst contained in the insured premises by Burglary and/or housebreaking.

SPECIAL EXCEPTIONS

            The Company shall not be liable in respect of:-

1. The loss or damage by Burglary and/or Housebreaking where any partner employee of the insured or member of the insured’s family is concerned as principal or accessory.
2. Loss of or damage to livestock, motor vehicles and pedal cycles.
3. Loss of or damage to money, securities for money, stamps, bullions, deeds, bonds, bills of exchange, promissory notes, stock and share certificates, business books, manuscripts, documents of any kind, unset precious stones and jewellery and valuables unless specifically declared.

SECTION III – MONEY INSURANCE

xxx

SECTION IV- PEDAL CYCLES

1. The Company will indemnify the insured in respect of loss of or damage to the Pedal Cycles belonging to the insured by

1. Fire, Lighting or External Explosion
2. Riot, Strike or Malicious Act
3. Earthquake (Fire and/or shock)
4. Flood, inundation, Storm, Tempest, Typhoon, Hurricane Tornado or Cyclone
5. Burglary and/or Housebreaking or Theft.

xxx

SECTION V- PLATE GLASS

xxx

SECTION VI-NEON SIGN/GLOW SIGN

xxx

SECTION VII-BAGGAGE

xxx

SECTION VIII – PERSONAL ACCIDENT

10.       In this case the claim was repudiated by the petitioner, Insurance Company vide letter dated 14.07.2008, primarily on the ground that the respondent herein has not been able to establish that the loss has taken place due to forcible and violent means, stating further that the loss do not fall under the scope of the covered of burglary Insurance policy.

11.       In short, the main legal issue contested by both sides is whether it was a case of mere theft without use of any force/violent means or whether it was covered under the definition of burglary. While, it is a case of the petitioner Insurance Company that there was no evidence of use of any force/violent means, hence it was not falling under the definition of burglary and consequently not covered under the policy. The respondent on the other hand has contended that there was use of force and hence it is covered under the policy, contending further that even if it is assumed that there was no force  used and it was a mere case of theft without any forcible/violent means, it is covered under the policy even as a theft. The respondent has drawn our attention to the policy on record and submits that it was a shopkeeper’s insurance policy which covers the loss or damage to the property and it does not necessarily say that only burglary is covered. According to him, the policy document is a standard general purpose document covering different types of policies, which is evident even from Section IV relating to Pedal Cycles which has no relevance to the present case. He further states that under Section IV-A(e) it covers burglary and/or house breaking or theft, contending that theft and burglary are stated on standalone basis under this clause, hence theft without force/violent means also is covered in addition to the burglary coverage and / house breaking coverage. There is no dispute with respect to the definition of burglary, which is defined in the policy itself under the definition clause as theft involving entry into or exit from the insured premises by forcible and violent means or theft following assault or violence or threat thereof to the insured or any employee of the insured or member of the insured’s family.

12.       It is a case of the respondent that even while lodging the FIR with police he has stated that the locks of the shutters were found open when his employee telephoned him on 05.11.2007 at about 10.15 A.M. and when he reached the shop, found that the locks were not there upon the shutter. The inter lock was also open. He has also drawn our attention to the surveyors’ report, stating that under the heading “occurrence/incident”, the surveyor has recorded his statement as having stated that he had properly locked his shop in the evening of 04.11.2007, the shop was burglared into that night, the entry was affected by thieves by opening the locks of the shutter, the lock were not found at site, the inter locks of the shutter was also found opened. The FIR in the present case was registered under Section 457, and 350 of IPC.

13.       Counsel for the petitioner has placed on reliance on the judgement of the Hon’ble Supreme Court in “United India Insurance  Co. Ltd. Vs. Harchand Rai Chandan Lal in Civil Appeal No. 6277 of 2004 decided on 24.09.2004” to support his case that unless theft is accompanied with force/violent means, it does not constitute burglary and in the present case there is no evidence of use of force/violent means, hence it may at the most be the case of mere theft and not burglary, submitting further that the policy covers only burglary and not mere theft without any forceful/violent means. He further contends that the State Commission went wrong in observing/concluding that even if the entry was after opening of the locks by any means, even with master key, it is a forcible entry and comes under the definition of house breaking. The learned counsel further submits in this case the respondent admitted that they had only one set of the keys and that as per the judgement of Hon’ble Supreme Court in Harchand Rai Chandan Lal (Supra) even use of duplicate keys does not constitute force or violent means hence will not bring the incident of the theft of the present case under the definition of burglary. During the hearing both sides submitted that other than the judgement of the Supreme Court in Harchand Rai Chandan Lal (Supra) they do not have any other recent judgements of the Supreme Court to rely upon in support of their case/contentions. The counsel for the petitioner also contends that under Section II which specifically deals with burglary and house breaking, it states that the company will indemnify the insured in respect of loss of or damage to the contents whilst contained in the insured premises by burglary and/or housebreaking.

14.       After careful consideration of the entire facts and circumstances of the case, we are of the considered view that State Commission has correctly observed that the case is covered under definition of housebreaking under Section 445 IPC and that entry after opening the lock by any means even with the master key is also a forceful entry and comes under the definition of housebreaking. The State Commission has taken due note of the judgement of Hon’ble Supreme Court in Harchand Rai (Supra) and observed that in this case it was held that it does not come in the category of burglary and housebreaking, there was no evidence with regard to opening or breaking locks of the godown in that case. We see some merits in the contention of the Respondent-Complainant that IV A(e) covers burglary and/or housebreaking or theft, as theft and burglary are stated on standalone basis under this clause, hence, theft without force/violent means is also covered in addition to the burglary coverage/house breaking coverage, although Section IV deals with Pedal Cycles. Contentions of Respondent-Complainant that the policy in question is a Shopkeepers Insurance Policy and policy document is a standard general purpose document covering different types of policies, are also found valid. As was held by Hon’ble Supreme Court in Canara Bank Vs. United India Insurance Co. Ltd. & Ors. (2020) 3 SCC 455 that ‘Insurance Policy must be read holistically so as to give effect to reasonable expectations of all the parties including the insured and the beneficiaries-  it must be interpreted in a commercially sensible manner- coverage clauses to be read broadly, and ambiguity, if any, to be resolved in favour of insured-exclusions to be read narrowly.

15.       For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, we are of the considered view that the State Commission has given a well-reasoned order and we find no reason to interfere with its findings. There is no illegality or material irregularity or jurisdictional error in the orders of the State Commission, hence the same is upheld. Accordingly, RP is dismissed.

16.       The pending IAs in the case, if any, also stand disposed off.