NATIONAL INSURANCE CO. LTD. Vs. R.S. PRINTERS

JUDGEMENT

(1.) THIS appeal has been preferred by the Defendant No. 1 -National Insurance Co. Ltd. against the Judgment & decree dated 20.11.1999 passed in Money Suit No. 605 of 1988 by the 1st Addl. Civil Judge (Senior Division), Cuttack. The Plaintiff -Respondent No. 1 filed a suit for recovery of the amount of Rs. 1,41,715 along with interest at the rate of 18% per annum & damages at the rate of Rs. 100 per day from the Defendant No. 1 Appellant on the ground that the go -down of the Plaintiff was duly insured by the Defendant No. 1 under two separate burglary policies, which were valid for a period from 25.2.1985 to 24.2.1986 for Rs. 2,50,000 on 24.5.1985. A theft was committed in the business premises i.e. go -down of the Plaintiff & the materials worth lacks of rupees were stolen by breaking open the lock & door. This fact was intimated to the police on the next morning on which Mangalabag P.S. Case No. 271(24)/85 was registered. After investigation, a final report was submitted reporting the case to be true but no clue & the same was accepted by the Learned S.D.J.M. by his Order Dated 4.3.1986. The fact of theft was also reported to the Defendant No. 1 -Appellant & the claim was lodged on 25.7.1985, on the basis of which a Surveyor was also engaged by the Defendant No. 1 - Appellant. As the claim was not settled, notice was issued by the Plaintiff -Respondent No. 1 -insured & the Appellant informed the Plaintiff -Respondent No. 1 on 31.12.1987 that the claim has been repudiated as "no claim". In spite of an objection raised to the said repudiation before the Regional Manager of the Appellant as no action was taken, a further notice was issued to the Appellant, which yielded no result. The Plaintiff being compelled filed a suit for recovery of the said amount.

(2.) A stand was taken by the Defendant No. 1 -Appellant that even though burglary policies have been issued for Rs. 2,00,000 in favour of the Plaintiff, the Plaintiff falsely lodged a complaint before the police though no such burglary has taken place in the night of 24.5.1985. It was stated in the written statement that the claim was lodged on 4.6.1985 & the Plaintiff intimated regarding shifting of the go -down on 17.6.1985 which act is contrary to the terms & conditions of the policy & the Plaintiff did not take any precautionary measures for protection of the property. Notice of burglary is not given immediately. The alleged claim lodged by the Plaintiff was not complete in all respect. The Plaintiff also did not co -operate with the Surveyor by producing necessary papers for which the Surveyor reported on 26.8.1987 that the alleged burglary is false & has been stage managed for undue gain as well as the claim is exaggerated, unbelievable & the documents, such as, stock register, voucher are false & concocted.

(3.) MR . S.D. Das, Learned senior Counsel appearing for the Appellant vehemently urged that the Learned Court below having held in paragraph -9 of the Judgment that it is not possible to remove huge quantity of materials without any help of a carriage, has not given any importance to such finding while holding that the burglary, in fact, took place in the go -down of the Plaintiff. As such, according to Mr. Das, the said finding is unsustainable. He further submits that the go -down being situated in a populated. Muslim Basti in the heart of Cuttack town & the alleged date of occurrence being a day of "Roza" for the Muslims, the Learned Court below should have casted a doubt on the Plaintiffs case. He further submitted that the Trial Court has committed gross illegality in not accepting the Surveyor's report about the alleged burglary & it could not have passed the Judgment on the basis of the investigation report submitted in the criminal case.