Reportable             IN THE SUPREME COURT OF INDIA

          CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO(s). 7972 OF 2002

NEW INDIA ASSURANCE CO. LTD.            Appellant (s)

                     VERSUS

M/S. ABHILASH JEWELLERY                 Respondent(s)

             O  R  D  E  R

Heard learned counsel for the parties.  This appeal  has been filed

against the order of the National Consumer Disputes Redressal Commission, New

Delhi dated 15.03.2002.

The respondent had a business establishment at Vellappad in Trissur

District  in  the  State  of  Kerala.   It  took  a  Jeweller's  Block  Policy  for  Rs.

1,15,00,000/-.   During  the  currency  of  the  policy,  the  complainant-respondent

lodged a claim with the appellant for the loss of gold ornament weighing 587.870

grams.  The claim was repudiated by the appellant on the ground that the loss of

gold was occasioned as it was in the custody of an apprentice, who was not an

employee.

The relevant clause in the Insurance Policy stated;

"S.  11(a)  property  insured  whilst  in  the  custody  of  the insured, his partner or his employees".

The question, therefore, is whether an apprentice is an employee.

The  National  Consumer  Disputes  Redressal  Commission  has  held

that an apprentice is an employee because Section 2 (6) of the Kerala Shops and

Commercial Establishments  Act  defines  an  employee  to  include an

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apprentice.   The National  Commission has also relied on the definition in the

Employees State Insurance Act and some other enactments.

We are of the opinion that the view taken by the Natinal Commssion

is not correct.  The present case is covered solely by the contract of insurance.

That contract of insurance no doubt uses the word 'employee', but it does not say

that the word 'employee' in the contract of insurance will have the same meaning

as in the Kerala Shops and Commercial Establishments Act or the Employees

State Insurance Act or any other enactment.

In  various  enactments,  the  word  'employee',  has  no  doubt,  been

defined to include an apprentice, but that is only a deeming provision and a legal

fiction by which the meaning of the word 'employee' has been extended.

Legal fictions are well-knwon in law.  For example, Section 43 (3) of

the Income Tax Act defines 'plant' to include a book.  Ordinarily a plant means a

factory, and by no stretch of imagination can we call a factory a book.  However,

the Income Tax Act deems a book to be a plant for the purpose of depreciation.

Many such illustrations of deeming clauses or legal fictions can be

given.   The  definition  of  employee  in  various  enactments  which  include  an

apprentice within the ambit of the definition is such a piece of legal fiction.  That,

however, does not mean that in common parlance an apprentice is an employee.

In the present case, since the word 'employee' has not been defined in

the contract of insurance, we have to give it the meaning which it has in common

parlance.  In common parlance, an apprentice is a trainee and not an employee.

Even  if  he  is given a stipend, that does not

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mean that there is a relationship of master and servant between the firm and the

apprentice.   Hence,  we  cannot  agree  with  the  view  taken  by  the  National

Commission.  In our view , the claim before the National Commission was not

maintainable.

Hence we set aside the order of the National Commission.

The appeal is allowed.  No orders as to costs.

......................J.                  [MARKANDEY KATJU]

.....................J                                              [R.M. LODHA] New Delhi, January 22, 2009.