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2009 DIGILAW 103 (JK)

Naqash Royal Arts v. United India Insurance Co. Ltd.

2009-03-11

J.P.SINGH, SUNIL HALI

body2009
J.P. Singh, J. 1. M/s Naqash Royal Arts, the appellant, had insured its Pashmina, Woolen Handkerchiefs, shawls, and finished/ semi finished embroidery products stocked in his house/ showroom situated at Sheikh Mohalla Maharaj Gunj, Srinagar, for an amount of Rs. 30.00 lacs with the United India Insurance Co. Ltd., the respondent, in terms of Fire Policy "C" issued by the company in this behalf which had to remain operative from January 13, 1997 to January 12, 1998. 2. Some unidentified gunmen are stated to have broken open the premises of the appellants showroom on March 15, 1997. They made forcible entry into the premises where the stocks, covered by the Insurance Policy, had been stored. The inmates of the house and the neighbours could not resist because of the threat of the intruders who therefore succeeded in decamping with the stocks. FIR No. 34/1997 was registered with the Police Station M.R. Gunj Srinagar under sections 392 of the Ranbir Penal Code and 7/25 of the Arms Act in this behalf. 3. A claim was thereafter lodged by the appellant with the Respondent-company seeking payment of Rs. 15.00 lacs, the loss which the appellant is stated to have suffered because of the robbery committed by the unidentified gunmen who had taken away the stocks. 4. Holding the appellants claim not covered by the Insurance Policy, the respondent-company accordingly informed the appellant, who thereafter approached the J&K State Consumers Protection Commission with his complaint seeking a direction against the respondent-company to pay it an amount of Rs. 15.00 lacs along with interest @ 18%. 5. Accepting Companys plea that the damage caused to the appellants property was not covered by the Insurance Policy, the J&K State Consumers Protection Commission Srinagar, dismissed appellants complaint vide its order of July 22, 2004. Aggrieved by the J&K State Consumers Protection Commission Srinagars order of July 22, 2004, the appellant has approached this court invoking its appellate jurisdiction to, set-aside the Commissions order. 6. Appellant which resulted in depriving it of its insured stock, would be an act of terrorism in terms of the relevant clause of the Insurance Policy? 7. Aggrieved by the J&K State Consumers Protection Commission Srinagars order of July 22, 2004, the appellant has approached this court invoking its appellate jurisdiction to, set-aside the Commissions order. 6. Appellant which resulted in depriving it of its insured stock, would be an act of terrorism in terms of the relevant clause of the Insurance Policy? 7. In order to address the question canvassed, reference needs to be made to the relevant clause which appears in bold type hereunder, appearing in the Fire Policy "C", in terms whereof the appellant claims reimbursement of the damage suffered by it, and the Insurance Company avoids its liability to pay for the damage caused to the insured stock. Various clauses of Fire Policy "C" with the relevant clause shown in the bold read thus: Fire Policy `c In consideration of the insured named in the schedule hereto having paid to United India Insurance Company Limited (hereinafter called the Company) the premium mentioned in the said schedule THE COMPANY AGREES, (subject to the conditions and exclusions contained here in or endorsed or otherwise expressed hereon) that if after payment of the premium the property insured described in the said schedule or any part of such property he destroyed or damaged by: 1. Fire 2. Lightening 3. Explosion/ Implosion but excluding loss of or damage to boilers, (other than domestic boilers) economizers or other vessels, machinery or apparatus in which steam is generated or their contents resulting from their own explosion/ implosion. 4. Impact by any Rail/ Road vehicles or animal or other vessels, machinery or apparatus in which steam is generated or their contents resulting from their own explosion/ implosion. 5. Aircraft and other aerial and / or space devices and/ or articles dropped therefrom, excluding destruction or damage occasioned by pressure waves caused by such devices. 6. Riot, Strike and Malicious Damage as per clause printed hereon during the period of insurance named in the said schedule or of any subsequent period in respect of which the insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the company will pay to the insured the value of the property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof............ ............ ............ Exclusions b. Loss by theft during or after the occurrence of any insured peril except as provided for in Riot, strike and Malicious terrorist Damage Clause....................................... RIOT, STRIKE, MALICIOUS & TERRORIST DAMAGE CLAUSE" i) Loss of or visible physical damage by external violent means to the property insured directly caused by: - 1. The act of any person taking part together with others in any disturbance of the public peace (whether in connection with a strike or lockout or not) not being an occurrence mentioned in Exclusion h (iii), (iv). 2. The action of any lawfully constituted authority in suppressing or attempting to suppress any such disturbance or in minimizing the consequences of any such disturbances. 3. The willful act of any strike or locked-out-worker done in furtherance of strike or in resistance to a lockout resulting in visible physical damage by external violent means. 4. The action of any lawfully constituted in preventing or attempting to prevent any such act or in minimizing the consequences of any such act. 5. Any malicious act but excluding any omission of any kind of any person (whether or not such acts is committed in the course of a burglary, housebreaking theft or larceny or any attempt by any person taking part therein. ii) Loss of or damage to the property by explosion or otherwise directly caused by: 1. An act of terrorism committed by a person or persons acting on behalf of or in connection with any organization. 2. The action of any lawfully constituted authority in suppressing or attempting to suppress any such act of terrorism or in minimizing the consequences thereof. For the purpose of this clause `terrorism shall mean the use of violence for the political ends and shall include any use of violence for the purpose of putting the public or any section of the public in fear." 8. Perusal of the above clauses demonstrate that Fire Policy "C" covers not only the risk of damage to the insured property by Fire, Lightening, Explosion etc. but also the loss of or damage to the insured property by Explosion or otherwise directly caused, interalia, by an act of terrorism committed by a person or persons acting on behalf of or in connection with any organization. 9. but also the loss of or damage to the insured property by Explosion or otherwise directly caused, interalia, by an act of terrorism committed by a person or persons acting on behalf of or in connection with any organization. 9. The expression "terrorism" appearing in the clause has been explained to mean the use of violence for political ends including any use of violence for the purpose of putting the public or any section of the public in fear. Reading the clause in light of the definition of the expression "terrorism" it becomes explicit that in order to attract the clause, the damage must be shown to have been caused by an act of terrorism committed by a person or persons acting on behalf of or in connection with any organization, meaning thereby, that the terrorist act must have the backing of an organization. 10. Any other act of terrorism by a person or persons without having any connection with any organization formed to achieve political ends may not be covered by the clause, in that, the Companys intention not to cover the loss or damage arising out of, or in the course of House breaking, Theft or Larceny, in Fire Policy "C" is amply demonstrated by what is contained in clause 1 (v) of the Fire Policy "C". 11. We, therefore, do not find substance in appellants counsels submission that the expression "shall include any use of violence for the purpose of putting the public or any section of public in fear" appearing in the definition clause of the emphasized clause covers the incident in which the appellant is stated to have suffered loss of the insured goods. This is so because the definition clause where the expression "terrorism" has been defined needs to be understood in the light of the doctrine flowing from the Latin maxim "ejusdem generis". The expression "any use of violence for the purpose of pulling the public or any section of public in fear" cannot be read in isolation and as a separate clause, in that, such a construction would destroy the intention contemplated by the emphasized clause. 12. We are, therefore, of the view that the occurrence in which the appellant is stated to have suffered the loss of his insured goods cannot be construed to be an act of terrorism in terms of the emphasized clause appearing in Fire Policy "C". 12. We are, therefore, of the view that the occurrence in which the appellant is stated to have suffered the loss of his insured goods cannot be construed to be an act of terrorism in terms of the emphasized clause appearing in Fire Policy "C". The findings recorded by the J&K State Consumers Protection Commission Srinagar cannot thus be faulted. 13. For all what has been said above, we do not find any substance in this Civil Miscellaneous Appeal, which is accordingly dismissed.