M/S.I.P.& INVESTMENT CORPN.OF ORISSA LTD Vs. NEW INDIA ASSURANCE CO. LTD.AND ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 1130 of 2007, Judgment Date: Aug 22, 2016
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1130 of 2007
M/s. INDUSTRIAL PROMOTION & INVESTMENT CORPORATION OF ORISSA LTD.
.... Appellant(s)
Versus
NEW INDIA ASSURANCE COMPANY LTD. & ANR.
…. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
The Appellant is a wholly owned Public Sector Undertaking of the
Government of Orissa. The Appellant finances medium and large scale
industries within the State of Orissa and is also involved in setting up
joint sector industries with private entrepreneurs. The Appellant extended
a term loan of Rs. 40,74,000/- to M/s. Josna Casting Centre Orissa Pvt.
Ltd. As the loan amount was not repaid, the Appellant exercising its power
under Section 29 of the State Finance Corporation Act, 1951, took over the
assets of M/s. Josna Casting Centre Orissa Private Limited on 14-02-1992.
On 23-01-1996, the Appellant insured the said assets with Respondent No. 1
for a sum of Rs. 46,00,000/- under the Miscellaneous Accident Policy, Rs.
60,40,000/- under the Fire Policy and Rs. 46,00,000/- under the Burglary
and House Breaking Policy.
2. The seized assets were put to auction by the Appellant on 22-01-1997
at which point of time it was detected that some parts of the plant and
machinery were missing from the factory premises. The Appellant registered
an FIR on 25-01-1997 in the Remona Police Station, Balasore regarding the
theft/burglary of the plant and machinery. On 07-02-1997, the Appellant
informed Respondent No. 1 about the theft and requested for issuance of a
claim form. A claim was lodged with Respondent No. 1 on 16-12-1997 for an
amount of Rs. 34,40,650/- under the Burglary and House Breaking Policy.
The valuation reports given by GEC, Calcutta, the machines supplier and
Alpha Transformer Ltd., Bhubaneswar were relied upon by the
Appellant/Claimant. The claim of the Appellant was repudiated by
Respondent No. 1 on 31-03-1998 on the ground that the alleged loss did not
come within the purview of the insurance policy.
3. The Appellant filed compensation application No. 45 of 2001 under
Section 12-B read with Section 36-A of the Monopolies and Restrictive Trade
Practices (MRTP) Act, 1969, which was rejected by the MRTP Commission, New
Delhi by its Order dated 17-08-2005. Aggrieved by the said Order, the
Appellant has preferred the present Appeal.
4. Mr. Raj Kumar Mehta, counsel for the Appellant took us through the
proposal form for Burglary and House Breaking Insurance (Business)
Premises. The scope of cover in the said proposal form is as follows:
“SCOPE OF COVER
This Insurance Policy provides cover against loss or damage by Burglary or
House breaking i.e. (theft following an actual, forcible and violent entry
of and/or exit from the premises) in respect of contents of offices,
warehouses, shops, etc. and cash in safe or strong room and also damage
caused to the premises, except as detailed below:”
It was further submitted by Mr. Mehta that the rule of contra proferentem
would be applicable to the present case and he relied upon the judgment of
this Court in United India Insurance Co. Ltd. v. Orient Treasures (P) Ltd.
reported at (2016) 3 SCC 49.
5. Mr. Mehta submitted that the words ‘theft following an actual
forcible and violent entry/or exit from the premises’ are with reference
only to house breaking and not burglary. According to him, forcible and
violent entry is not necessary for making a valid claim under the policy.
It would be sufficient that there is theft of certain goods from the
factory premises, which fact has been proved by the Appellant. Mr. Mehta
referred to a judgment of this Court in United India Assurance Co. Ltd. v.
Harchand Rai Chandan Lal reported in (2004) 8 SCC 644 which related to a
claim pertaining to a theft and attempted to distinguish it. He submitted
that the clause in the policy in that case is different from that involved
in the present case. He urged that the Commission committed an error in
relying upon the said judgment to reject the Claim Application for the
Appellant.
6. Mr. Salil Paul, Advocate for Respondent No.1 submitted that there is
no difference in the policies involved in the case cited supra and the
instant case. He also urged that an insurance policy is akin to a
commercial contract and has to be construed strictly. Mr. Paul submitted
that a forcible entry and/or exit is compulsory for maintainability of a
claim under the policy.
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 made 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 Chandan 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 from
BURGLARY and/or HOUSE BREAKING or any attempt thereat.”
The term burglary and/or house breaking 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.”
8. A comparison of the above terms as defined in the policy in the case
of United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal (supra) and
the scope of cover in the proposal form in the instant case are similar.
This Court in the said judgment of United India Insurance Co. Ltd. v.
Harchand Rai Chandan Lal (supra) considered the scope of a policy involving
burglary and house breaking and held as follows:
“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 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 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 Halsbury’s Laws of England Fourth Edition (2003 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."”
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.
10. We proceed to deal with the submission made by counsel for the
Appellant regarding the rule of contra proferentem. The Common Law rule of
construction “verba chartarum fortius accipiuntur contra proferentem” means
that ambiguity in the wording of the policy is to be resolved against the
party who prepared it. MacGillivray on Insurance Law[1] deals with the rule
of contra proferentem as follows:
“The contra proferentem rule of construction arises only where there is a
wording employed by those drafting the clause which leaves the court unable
to decide by ordinary principles of interpretation which of two meanings is
the right one. “One must not use the rule to create the ambiguity – one
must find the ambiguity first.” The words should receive their ordinary and
natural meaning unless that is displaced by a real ambiguity either
appearing on the face of the policy or, possibly, by extrinsic evidence of
surrounding circumstances.” (footnotes omitted)
Colinvaux’s Law of Insurance[2]propounds the contra proferentem rule as
under:
“ Quite apart from contradictory clauses in policies, ambiguities are
common in them and it is often very uncertain what the parties to them
mean. In such cases the rule is that the policy, being drafted in language
chosen by the insurers, must be taken most strongly against them. It is
construed contra proferentes, against those who offer it. In a doubtful
case the turn of the scale ought to be given against the speaker, because
he has not clearly and fully expressed himself. Nothing is easier than for
the insurers to express themselves in plain terms. The assured cannot put
his own meaning upon a policy, but, where it is ambiguous, it is to be
construed in the sense in which he might reasonably have understood it. If
the insurers wish to escape liability under given circumstances, they must
use words admitting of no possible doubt.
But a clause is only to be contra proferentes in cases of real ambiguity.
One must not use the rule to create an ambiguity. On must find the
ambiguity first. Even where a clause by itself is ambiguous if, by looking
at the whole policy, its meaning becomes clear, there is no room for the
application of the doctrine. So also where if one meaning is given to a
clause, the rest of the policy becomes clear, the policy should be
construed accordingly.” (footnotes omitted)
11. This court in General Assurance Society Ltd. v. Chandmull Jain and
Anr., reported in [1966] 3 SCR 500 held that there is no difference between
a contract of insurance and any other contract except that in a contract of
insurance there is a requirement of uberima fides, i.e., good faith on the
part of the insured and the contract is likely to be construed contra
proferentes, i.e., against the company in case of ambiguity or doubt. It
was further held in the said judgment that the duty of the Court is to
interpret the words in which the contract is expressed by the parties and
it is not for the Court to make a new contract, however reasonable.
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 in favour of the insured. But we see no ambiguity in
the relevant clause of the policy and the rule of contra proferentem is not
applicable.
13. For the aforementioned reasons, we uphold the order of the MRTP
Commission and dismiss the Appeal with no order as to costs.
.…............................J.
[ANIL R. DAVE]
................................J.
[L. NAGESWARA RAO]
New Delhi,
August 22, 2016.
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[1] MacGillivray on Insurance Law (9th ed., 1997) (Nicholas Legh-Jones
et al, eds.) at p. 280.
[2] Colinvaux’s Law of Insurance (6th ed., 1990) (Robert and Merkin,
eds.) at p.42.