Offence of house breaking alleged against the person gaining entry through circular passage in the building.

JUDGMENT: This appeal is preferred against the judgment of the XIII Assistant City Civil Judge, Madras, passed in O.S.No.8122 of 1986 on 30.3.1988. The defendant is the appellant herein.

2. The plaint averments can be summarised as follows.

The stock in Trade and other assets of the plaintiff lying in its business premises at Medavakkam were insured with the defendant under the Burglary Policy No.5060/7500060, dated 20th November, 1985 for a sum of Rs.2,33,500. Under the policy, the defendant has undertaken to indemnify the plaintiff against any loss or damage of the properties insured by theft following upon burglary or house breaking accompanied by the actual forcible and violent breaking into or out of the premises or any attempt threat during the period of insurance. While the policy was in force, the premises of the plaintiff was burgled on 3.3.1986 and finishing components, such as, lock, device screws, terminal clamps, lock pins, etc. worth Rs.45,036.81, were lost because of theft. On the same day, the plaintiff lodged a complaint with Sub-Inspector, Velachery Police Station and a case was registered in Crime No.18 of 1986. The Velachery Police had arrested four alleged culprits and they were remanded to judicial custody by the Judicial Magistrate Court, Poonamallee. The plaintiff understands that the police have recovered the stolen properties in the melted form. The plaintiff lodged a claim in the prescribed form with the defendant in which the plaintiff claimed a sum of Rs.45,031.81 being the actual value of the goods stolen. As the defendant failed to make the payment, the plaintiff sent a lawyer notice, dated 23.9.1986, demanding the payment and the defendant received it on 26.9.1986, but, he has not cared to send reply. A sum of Rs.50,435.65 is due from the defendant to the plaintiff and the defendant is also liable to pay further interest at the rate of 18% per annum. The plaintiff has filed the suit for recovery of a sum of Rs.50,435.65 with interest at 18% per annum from the defendant.

3. The defendant in its written statement has contended as follows:

It is true that the stock in Trade and other assets of the plaintiff lying in its business premises at Medavakkam were insured with the defendant under the Burglary Policy, but, there is no unqualified undertaking to indemnify as mentioned in the plaint. The plaintiffs are called upon to disclose the identify of those arrested in connection with the complaint of theft and the plaintiff must prove that they have nothing to do with the plaintiff inasmuch as the policy does not cover loss or damage to the property insured contained in the premises by theft or attempt threat in which there is concerned privy any number of insured’s business, staff or any person lawfully on the premises. It is true that the plaintiff lodged a claim as averred in the plaint and the plaintiffs were further called upon to prove the actual value and extent of physical loss. The demand of the plaintiff was duly replied by the defendant’s advocate by their letter, dated 21.10.1986 and duly served on the plaintiff’s advocate on 22.10.1986. There is no contract to pay interest much less the interest at the rate demanded. There was violation of policy condition by the plaintiff and hence the plaintiff is disentitled for any indemnity. The defendant, on being notified about the reported loss, appointed their Surveyors M/s.J.B.Boda Marine and General Survey Agencies Private Limited, to investigate and their survey report was issued on 17.3.1986. The plaintiff admittedly removed the exhaust fan from the circular opening on the eastern side wall and gave it for repairing as early as on 19.2.1986. The triangular shaped metal frame-work bolted on to a circular steel ring meant to serve as a guard to the exhaust fan was also a protection against any unauthorised entry through the said circular opening. This triangular shaped metal frame was not refixed by the plaintiff and absence of the said frame-work

Click Here to Read the rest of this document