Modern Bazar Departmental Store (P) Ltd. vs National Insurance Company Ltd.

Valmiki J Mehta, J.—This case is on the Regular Board of this Court since 3.1.2011. No one appears for the Appellant although it is 2.45 pm. This case is effective item No. 5 on the Regular Board of this Court today. I have therefore perused the record and after hearing the counsel for the Respondent is proceeding to dispose of the matter.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 23.3.2001 whereby the suit of the Appellant/plaintiff claiming recovery against the Respondent/Defendant insurance company was dismissed. It was claimed by the Appellant/plaintiff that it had taken a policy from the Respondent/Defendant for a total sum of Rs. 19,17,400/- against the theft of stores and stocks and which policy was valid up to 27.3.1990. It was further the case of the Appellant/plaintiff that 2 persons namely Manroop Prasad and Anil Kumar were caught red handed when they were trying to commit theft from the store and the Appellant/plaintiff and it was alleged that it suffered a loss of more than Rs. 2,00,000/-. The Respondent/Defendant company appointed a surveyor when a claim was lodged with it and which surveyor reported that a theft was committed by the employees of the Appellant/plaintiff company and the loss was not within the purview of the insurance policy, because as per the exceptions as mentioned at page 2 of the policy document, the insurance policy would not entitle a claim, when there is a theft in the premises or where there is an attempt to theft, by the employees of the insured company. 3. Since the Respondent repudiated the claim of the Appellant, the suit for recovery was filed in which the following issues were framed:

Whether the plaintiff is entitled to recover Rs. 3,00,000/- as claimed in the suit?

Whether the claim of the plaintiff was not covered under the policy given by the Defendant?

Whether the suit has not been signed and verified by a competent person?

4.. Relief. ?

The Trial Court while dealing with the issues held that there could not have been loss caused on 19.5.89 when the two persons namely Mr. Manroop Prasad and Anil Kumar were caught red handed because there would be no question of loss of stocks on such date. The Trial Court has also referred to the exception clause in the policy and observed that even assuming that there was theft, the insurance company would not be liable by virtue of the exception clause as per which there is no insurance cover with respect to the theft committed by the employees. The Trial Court has arrived at a finding that the Appellant falsely claimed that the employees had resigned about one month or so prior to the alleged incident, though, the same was not correct, and which stand of the Appellant was rightly disbelieved by the Trial Court. The most important aspect is that the Trial Court has held that even assuming there was a theft over a long period of time, the Appellant failed to prove its books of account and stock register to show that actual theft was committed inasmuch as if the theft was committed, the books would have shown the loss. The Trial Court has also rightly observed that the theft, if any, occurred during the course of the employment of Mr. Manroop Prasad and Mr. Anil Kumar and therefore it was not covered under the Insurance Policy.

I do not find any illegality or perversity in the impugned judgment and decree which calls for interference by this Court. The Trial Court has arrived at the necessary findings and conclusions which are completely justified. The appeal is without merit and the same is therefore dismissed leaving the parties to bear their own costs. Trial Court record be sent back.