Suit has to be filed within 12 months from the date of repudiation of the claim.

JUDGMENT: The appellant- Insurance company raises two questions. One is the question of limitation and the other is the question of liability. Two clauses in the Insurance Policy, Ex.B-1 are relevant to decide this case. For deciding the question of limitation one looks at the third paragraph of Clause 9:

“It is also hereby further expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not, within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in Court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”

2. For deciding the question of liability. Coverage (A) is relevant.

“Fire and Allied Perils and Theft (buildings and contents) Insurance: If (1) any of the property described under Coverage ‘A’ in the Schedule hereto belonging to the insured whilst or held in trust on the premises shall be lost or damaged by (a) Fire, theft or any attempt thereat following upon or occasioned by an actual forcible and violent entry or premises by the person/s committing such theft. or....”

3.Liability for loss on account of theft: (a) What happened in this case was a customer came to the respondent’s jewellery shop and she asked the respondent’s employee to show some ornament. She asked him to show some more samples, when he turned around, she picked up one of the pieces nd walked away. Immediately an alarm was raised and doors were closed. Everyone was examine and a police complaint was also lodged. But the jewellery was not found and therefore, the claim was made for the loss on account of theft.

(b) After lodging FIR and the written complaint, the respondents filed a claim to the defendant- Company on 6.3.1984. On 17.4.1984, the respondent received a letter from the Divisional Manager of the appellant, Tiruchy repudiating his claim stating that this amount cannot be granted as the policy did not cover the contingency when a gold ornament was stolen when the shop was open during sales. The communication stated that the coverage prescribes insurance cover only when the ornaments are lost by theft by forcible or through violent entry in the premises by the person who commits theft. Since this is not present in this case, the Insurance Company is not liable.

4. Mr.K.Padmanabhan, learned counsel for the appellants submitted that the policy clearly says that theft must be accompanied by violent and forcible entry and if not the policy would not cove the loss.

5. The learned counsel for the respondent, Mr.S. Thiruvenkatasamy submitted that the word ‘theft’ in this clause cannot be read as though it is qualified by the subsequent phrase namely a forcible or violent entry. The meaning for ‘theft’ should be that which is given in IPC and if so the loss occasioned to the respondent shall be indemnified by the appellant.

6. The learned counsel for the appellant relied on M/s.National Insurance Company Limited v. M/s. Baland Industries, (2001)1 C.T.C. 464 and an English case King’s Bench Court of Appeal In re. An Arbitration between Calf and the Sun Insurance Office, (1920)2 K.B. 366.

7. In the English case, the policy of Insurance covered loss of articles when they were stolen by theft following upon an actual forcible and violent entry of the person or persons committing such theft and the thief had gone up to stairs to the shop which he entered by violently breaking open the door leading into the shop and having been taken more goods left the shop through the front door. The Insurance Company denied the liability on the ground that there had been no actual forcible and violent entry. It was held by the Court of Appeal that the premises referred to n the policy meant the premises namely the shop, the trimming room and fitting room and that the thief having made an actual forcible and violent entry into the shop and removed the goods, the company was liable.

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