NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE 768 ANNA SALAI MADRAS Vs. BALAND INDUSTRIES MDS MEDAVAKKAM P O VIA GOWRIWAKKAM MADRAS

JUDGEMENT

(1.) 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:

(3.) THE defendant contends that the liability in Ex.A-1 Burglary Policy would be attracted only on proof of actual forcible and violent breaking into or out of the premises and in the absence of any such proof in the present case, the defendant is not liable to make good the alleged loss as per the terms and conditions of the policy. According to Ex.A-1 Burglary Policy, the defendant insurance company will indemnify the injured plaintiff against loss or damage to the Property insured described in the- Schedule whilst contained in the premises 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 occurring during the period, of insurance. THE learned counsel for the appellant/defendant contends that the theft happened in the premises of the plaintiff was not theft following upon burglary or theft following upon house breaking accompanied by the actual forcible and violent breaking into or out of the premises and hence the liability under the policy will not be attracted. 3. P.W.1 is the Managing Partner of the plaintiff firm and he has stated in his Ex.A-2 complaint to the Police that on 3.3.1986 his Manager has reported to him that some of the finished components kept inside the office room were missing, but, the door and windows were found: to be locked intact. In his testimony before Court, P.W.1 has stated the same about the occurrence. THE Surveyor in his Ex.B-2 Preliminary Report and in his Ex.B-3 Final Report has stated about the details of occurrence and its cause. In the above reports it is told that the factory workers worked upto 1.00 a.m, on 3.3.1966 and as per usual practice they put all the finished items in the office room which was locked up by the factory Manager and at about 8.30 a.m, when the office was opened by the Manager, it was found that all the finished items stored in the office room were missing and the door and windows were all found locked as usual. In the above reports, it is further told that on the east side of the office room, there is a circular opening in the wall (of 1'4" diameter) where an exhaust fan was reportedly fitted and apparently the exhaust fan was out of order and was given for repair on 19.2.1986 and inside the office room, a triangular shaped metal frame-work bolted onto a circular steel ring meant to serve as a guard for the exhaust fan was sighted by them during the survey and outside of the of office room, on the eastern side where the opening for the exhaust fan exists, old crates, wooden case, etc. were stacked and they were of the opinion that a person can climb up onto those crates and enter the office room through the circular passage when the exhaust fan was not in place, by removing the bolts of the triangular frame. THE plaintiff in his Ex.A-5 Claim. Form itself has stated that the entry was presumed to have been made through the exhaust fan hole. P.W.1 has also stated that one week before the occurrence the exhaust fan was removed and given for repair and the frame was present. D.W.1 is the Officer of the defendant's company and he did not inspect the occurrence place. D.W.2 is the surveyor, who conducted the survey and he is the author of Exs..B-2 and B-3 Reports. According to him, the exhaust fan was opening was at a height of 9 ft. from the ground and the exhaust fan was removed for repair on 19.2.1986 and in that place the frame was intact. In his cross-examination he has stated that when he inspected,the exhaust fan, consisting of the motor and the blades, was not there and the frame was intact and the diameter was 16" and because of the frame the diameter would be less and even then a person can enter inside through the gap and without the help of two or three persons, one person alone could not enter through that gap, D.W.2 has further stated in the cross-examination that the triangular shaped metal trains in doom shape was present in the circular steel ring and hence the diameter was slightly reduced. For better appreciation, the testimony of D.W.2 in cross-examination in this regard, is extracted below. From the above, it is clear that the triangular doom shaped metal guard for the exhaust fan was present. If that is so, a person could not have entered without removing the bolts of the triangular frame guard, since the width between the two legs of the guard would be very less mailing it not possible for the person to enter. So it is clear that the entry must have been made through the circular passage, when the exhaust fan was not placed, by removing the bolts of the triangular frame as mentioned in Ex.B-2 Survey Report.