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Wednesday, September 23, 2009

Burglary Insurance and key clause

Dear (s)

Burglary Insurance is an Insurance which incorporates proposal as the basis of the contract and states that the Company provides coverage subject to the terms of the Policy as stated in the document.

Under various heads, it seeks to interpret the terminology used in the Policy.  In a given case (cited as example) the facts portrayed are :

·        Entry into the premises was by removing two locks of the shutter – (whether by use of keys stolen earlier???). No force on shutter / entry point.

·        Inside the premises, the drawers had been forcibly opened, cash box broken.

·        Crime registered under Sec 379 (Punishment for theft) and 461 (dishonestly breaking open receptacle containing property).

The question is whether this would be construed as falling within the ambit of standard burglary Policy ? (special reference to key clause ?).   Loss ascertained to be genuine otherwise.  For analysis let us see both the Policy wordings as also the probable intention behind the construction of the Policies.

The key clause under Money insurance excludes ‘loss or money from safe or strong room following the use of key to the safe or strong room or any duplicate thereof belonging to the insured, unless this had been obtained by threat or violence’.

The Burglary Insurance  provides indemnity for loss of cash ( not in transit) from a strong room / safe, this is an exclusion meant to exclude disappearance  of cash (possibly with the connivance of insured / employees or others who have access to cash).

Here the loss is under Burglary Insurance Policy. This policy would cover subject matter(s) of value being items of insured’s trade, money & securities (when specified).

The Policy provides indemnity in respect of loss of or damage whilst within the insured premises as a direct result of burglary which is clearly defined as : - an actual theft or an attempt thereat a) accompanied by an actual forcible and violent entry into or exit from any Building at the premises or b) following assault or violence to any person or threat thereof.

Though there have been more than couple of judgments by the
Apex Court :  Insurance being a specific contract, the agreeing terms between the contracting parties should prevail and the policy would indemnify only losses arising out of burglary as defined above.

Whilst a general understanding and liberal interpretation of the Burglary policy has been ‘loss of subject matter with an element of force being applied for such removal i.e., goods not simply missing without a trace, a literal interpretation of the wording would mean that “”There has to be an actual theft or attempt accompanied by actual forcible and violent entry into or exit from any building. Though it may sound illogical, going by the construction, the use of force / violence needs to be at the entry / exit of the building and breakage of property inside when not accompanied would still be outside the purview.

On the query as to whether Burglary policies have ‘key clause’ - the specific exclusion no. 4 is to be read. (the no. might differ with Insurers) it reads : ‘loss or money and/or property abstracted from any safe following the use of the key to the said safe or any duplicate thereof belonging to the Insured, unless such key has been obtained by assault or violence or any threat thereof’.

Here though loss of money or other property is mentioned, the specific mention is of the key of the safe and not those of the main building or premises.

There are general conditions and this one is of relevance. It makes it a duty on the Insured to take all reasonable precautions to prevent loss and damage and to keep all locks, bolts, protective devices in full operation when premises are left unattended or closed. There is another condition which imposes that all keys shall be removed from the premises or placed within a locked safe or strong room.

Each case might throw up a different verdict in Legal Forum depending upon the presentation of the facts and circumstances.

First, the indulgence in any manner of the Insured / family member / employee will have to be thoroughly ruled out, especially when the keys have found their way to the assailant’s hands.

However, it appears that using the key clause against the insured for defeating the claim might appear to be on a weak wicket, provided there are enough indicators of violent removal of the goods from the premises.

If one were to go by intentions, then coverage should be against a burglary (not being mere theft i.e., use of force) then this claim, subject to the foregoing should present itself as one which would merit consideration.

In my view, the """ Policy should deal with force & violent means being employed in taking away the property and should not be merely related to breakage of premises / door. """  A classic example would be air conditioners being stolen from the building by forcible removal but without entering the business premises, thus no forcible entry but force used in removal of the subject matter insured. The key clause should be more of excluding complicity of the insiders.

Views of an Insurer with the available experience. There can be logically other views as well. Will benefit all immensely, if the other perspectives are also shared by you……………………

With regards

S. Sampathkumar



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