The complainant / respondent took an insurance policy from the appellant in respect of the stock kept in its business / shop in Anchal Smiriti Bhawan, Mahamandir, Jodhpur for the period from 22.5.2007 to 21.5.2008. The said shop according to the complainant comprised of three parts, including a basement, and the said three parts were inter-linked. On 15.12.2007, the basement and ground floor were locked at about 9.30 p.m. 16.12.2007 was a holiday, being a Sunday. However, in the morning of 17.12.2007, the locks of the basement were not found at their place. The matter was reported to the police and on checking by the complainant, it was found that the stock worth Rs.30,56,382/- had been stolen. A claim in terms of the insurance policy was lodged with the insurer but was repudiated vide letter dated 8.8.2008, which to the extent it is relevant reads as under:

The Competent Authority after going through the Survey Report, Investigation Report has repudiated the claim for the following reasons:

1. Loss has taken place from the godown, which was not insured under the policy

2. Policy covers losses arising out of forcible entry or exit from the premises, which was not there.

Accordingly, your claims stands repudiated, which please note.

2. Being aggrieved from the rejection of the claim, the complainant approached the concerned State Commission by way of a consumer complaint. The State Commission having allowed the complaint and having directed the appellant to pay a sum of Rs.27,46,000/- to the complainant, along with interest @ 9% per annum from the date of repudiation of the claim, the compensation quantified at Rs.25,000/- and the cost of litigation quantified at Rs.10,000/- the insurer is before this Commission by way of this Appeal.

3. The primary issue which is arises for consideration in this case is as to whether the theft/burglary of the stock was covered under the insurance policy taken by the complainant or not. The said policy called Shopkeepers Insurance Policy, to the extent it is relevant, reads as under:

11. Observation of Terms and Conditions : The due observance and fulfilment of the terms, conditions and endorsements of this Policy is so far as they relate to anything to be done or compiled with by the Insured shall be a condition precedent to any liability of the company to make any payment under this Policy.

Definition: The term of Burglary and / or Housebreaking shall mean theft involving entry into or exit from the Insured premises by forcible and violent means theft or following assault or violence or threat thereof, to the insured or any employee of the insured or member of the Insureds family.

Section II Burglary and Housebreaking contents (excluding money and valuables)

The company will indemnity the insured in respect of loss or damage to the contents whilst contained in the Insured premises by burglary and / or housebreaking.

It would thus be seen that the theft simplicitor of the stock was not one of the perils insured by the appellant. If however, the theft also qualified as a burglary and housebreaking, as defined in the insurance policy, the loss suffered by the insured was reimbursable by the insurer.

It would also be seen that the term Burglary and Housebreaking are defined in the policy itself, thereby excluding the applicability of any other definition of the said terms. Therefore, unless the burglary and / or housebreaking was committed by entering into or exiting from the insured premises by forcible and violent means or following assault, violence or threat thereof, to the insured or any employee or family members of the insured, the loss by way of a theft was not reimbursable.

4. Such a policy came up for consideration of the Honble Supreme Court in United India Insurance Co. Ltd. V. Harchand Rai Chandan Lal (2004) 8 SCC 644. In that case, a policy against burglary and / or housebreaking had been taken by the respondent from the appellant. The relevant provisions of the policy read as under:

The company hereby agrees subject to the terms and conditions contained herein endorsed / or otherwise expressed hereon that if,

1. The property hereinafter described or any part thereof be Lost or damaged by burglary and / or housebreaking, or

2. Any damage be caused to the premises to be made good by the insured from burglary and / or housebreaking or any attempt threat.

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.

During the currency of the policy, the stock of food grain was stolen from the premises of the insured. The claim lodged under the insurance policy, which the complainant / respondent had taken from the appellant was repudiated on the ground that no burglary had taken place in the godown by use of force or violence. Being aggrieved from the rejection of the claim, the respondent before the Honble Supreme Court filed a consumer complaint, which was allowed. Being aggrieved form the orders passed by the Consumer Fora, the insured approached the Honble Supreme Court by way of an appeal. Allowing the appeal, the Honble Supreme Court inter-alia held as under:

6. We have already reproduced the terms of the policy as also the definition of burglary and / or house breaking 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 be preceded 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 theft. But in the 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 insured cannot claim compensation against theft from the insurance company. This expression appearing in the insurance policy came up for interpretation before the English courts 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 to the statement of law as summarized in Halsburys Law of England, 4th Edn. (2003) Reissue), para 646. It read as under:

646. Forcible and violent entry the terms of 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 form the outside; or the violent entry into a room within the 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 showcase is broken open, does not bring the loss within the policy.

8. Similarly, view has been expressed by American courts also in American Jurisprudence 2d (vol.44) para 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 burglary policies provisions restricting their liability to case 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 application of the general principle that the insurance policy will be construed most favourably 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.

Just as policies insuring against burglary of an insureds premises commonly require visible marks upon the insureds premises or upon the exterior of the insureds premises, so also do safe-burglary policies commonly require visible marks either upon the insureds safe, or upon the exterior of the doors of the insureds safe, and in some instances the requirement of visible marks or visible evidence has been imposed in policies pertaining to theft of property from an insureds automobile.

Similarly, a policy providing against loss by burglary by felonious entry into a safe by actual force evidenced by visible marks made upon the exterior of all the doors does not cover loss sustained by felonious entry into the safe by a manipulation of the lock on the outer door with no visible marks made thereon, although the inner door of the safe did contain such marks, although there is contrary, authority.

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.

5. Such a policy recently also came up for consideration of the Honble Supreme Court in Civil Appeal No.1130 of 2007, M/s. Industrial Promotion & Investment Corporation of Orissa Ltd. Vs. New India Assurance Company Ltd. & Anr. , decided on 22.8.2016.

In Industrial Promotion & Investment (supra) a burglary and housebreaking insurance policy had been taken by the insured. A theft / burglary took place in the premises of the insured. The claim however, was rejected by the insurer on the ground that there was no forcible and violent entry or exit from the premises. An application filed by the appellant/insured under Section 12-B read with Section 36-A of Monopolies and Restrictive Trade Practices (MRTP) Act, 1969 having been rejected by MRTP Commission, the appellant approached the Honble Supreme Court by way of appeal and inter-alia submitted that the forcible and violent entry was not necessary for making a valid claim under the policy and it would be sufficient if there was a theft of certain goods from the insured premises. Dismissing the appeal, filed by the insured, the Honble Supreme Court inter-alia held as under:

7. Having considered the submissions made on both sides, we are of the opinion that there is no error committed by the MRTP Commission in rejecting the claim of the appellant. It is clear from the facts of the present case that the appellant has made out a case of theft without a forcible entry. The case of the appellant is that forcible entry is not required for a claim to be under the policy. Following the well-accepted principle that a contract of insurance which is like any other commercial contract should be interpreted strictly, we are of the opinion that the policy covers loss or damage by burglary or house breaking which have been explained as theft following an actual forcible and violent entry from the premises. A plain reading of the policy would show that a forcible entry should precede the theft, and unless they are proved, the claim cannot be accepted. The provisions of the policy in United India Insurance Co. Ltd. V. Harchand Rai Chandal Lal (supra) read as under:

The company hereby agrees subject to the terms and conditions contained herein endorsed / or otherwise expressed hereon that if, the property hereinafter described or any part thereof be Lost or damaged by burglary and / or house breaking, or any damage be caused to the premises to be made good by the insured form Burglary and / or house breaking or any attempt threat. The term burglary and / or housebreaking has been defined in terms of the policy which are as follows:

Burglary and / or house breaking 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 well-settled law that there is no difference between a contract of insurance and any other contract, and that it should be construed strictly without adding or deleting anything from the terms thereof. On applying the said principle, we have no doubt that a forcible entry is required for a claim to be allowed under the policy for burglary / house breaking.

12. In United India Insurance Co. Ltd. V. Orient Treasures (P) Ltd. (supra) cited by the counsel for the appellant, it was held that there is no ambiguity in the insurance policy and so the rule of contra proferentem was not applicable. A standard policy of insurance is different from other contracts and in a claim under a standard policy the rule of contra proferentem is to be applied. The policy in this case is in a standard form. The policy for Burglary and House Breaking in United India Insurance Co. Ltd. V. Orient Treasures (P) Ltd. (supra) and the policy in this case are identical. If there is any ambiguity or doubt the clause in the policy should be interpreted inf avour of the insured. But we see no ambiguity in the relevant clause of the policy and the rule of contra proferentem is not applicable.

6. In the present case, there is no evidence of the entry into or exit from the insured premises by forcible or by violent means. There is no evidence or even allegation of assault or violence or threat of assault or violence to any employee or family members of the insured. The basement of the shop had been locked in the night of Saturday and the locks were found missing in the morning of Monday. No mark / evidence of use of any force or violence were found on the shutter of the basement. No evidence of breaking of the locks which had been put on the shutters was found. No broken / damaged locks were found at the site. It therefore, appears that no forcible entry in the basement was made and either the existing duplicate keys, if any, were used or duplicate keys/skeleton keys were got prepared for opening the lock put on the shutter. If the locks are opened by use of a duplicate key/skeleton key, that would not amount to use of the force or violence either in entering the premises or exiting there-from. In Harchand Rai(supra), the Honble Supreme Court had expressly referred to para 646 of Halsburys Laws of England, 4th Edn., wherein it is stated that an entry by using a Skeleton key is not within the policy, since the element of violence is absent though an entry obtained by picking the lock would involve use of violence and is therefore covered. A skeleton key is a type of master key which can open numerous locks. The same would apply to a duplicate key, which is prepared by a key-maker and opening the lock, using such a key would not amount to use of force or violence for entering the insured premises or exiting there-from. Though, there is no evidence of a duplicate / master key having been used for opening the shutter, the fact remains that there was no evidence of use of any force or violence for the purpose of removing the locks, which had been placed on the shutter of the basement. As noted earlier, broken / damaged locks were not found at or near the insured premises. If the locks are broken, in order to entering the premises, the culprits are not likely to take the said locks with them since the damaged locks would be of no use to them. On the other hand, if the locks are opened with the help of duplicate keys/skeleton key, they continue to be useful and are likely to be taken away. In any case, the onus was upon the insured to prove that the burglary / house breaking had been committed by use of force and / or violence. No evidence was led by the complainant to discharge the said onus.

7. The learned counsel for the complainant has relied upon the decisions of this Commission in (i) National Insurance Co. Ltd. Vs. Sharp Line Electronics, IV (2008) CPJ 93 (NC), (ii) Order dated 02.8.2010 in RP/2544/2006 titled as New India Assurance Co. Ltd. Vs. Atlantic Technologies & Anr., (iii) Mono Industries Vs. New India Assurance Co. Ltd. II (2008) CPJ 125 (NC) and (iv) Paresh Mohanlal Parmar Vs. The Divisional Manager & Anr. 2011 (3) CPR 174. However, none of these judgments would apply to the present case, in view of the decision of the Honble Supreme Court in Harchand Rai Chandan Lal (supra) and M/s. Industrial Promotion & Investment Corporation Of Orissa Ltd. (supra), which squarely apply to the present case, and the fact that no force or violence is shown to have been used.

8. For the reasons stated hereinabove, I hold that the loss suffered by the complainant was not reimbursable in terms of the insurance policy taken by it. The impugned order therefore, cannot be sustained and is accordingly set aside. The complaint is consequently dismissed, with no order as to costs.