Gujarat High Court
Oriental Insurance Company Ltd Thro' ... vs Rajeshbhai Vardhmanbhai Punj on 12 August, 2025
NEUTRAL CITATION
C/FA/2436/2008 JUDGMENT DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2436 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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ORIENTAL INSURANCE COMPANY LTD THRO' AUTHORISE SIGNATORY
Versus
RAJESHBHAI VARDHMANBHAI PUNJ
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Appearance:
MS DIMPLE A THAKER(6838) for the Appellant(s) No. 1
MR.D K.PUJ(3836) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 12/08/2025
ORAL JUDGMENT
1. Present appeal is filed under Section 96 r/w. Order XL Rule 1 of the Civil Procedure Code against the judgment and decree dated 06.02.2008 passed by the learned Principal Senior Civil Judge, Anjar- Kutchh (hereinafter be referred to as "the trial Court") in Special Civil Suit No. 13 of 2002 whereby the trial Court has allowed the suit for claim of Rs.7,50,000/-.
2. Brief facts of the present appeal, in nutshell, are as under:-
2.1 That the appellant herein is the original defendant and the respondent herein is the original plaintiff. That the respondent herein Page 1 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined having the shop on ground floor and first floor in the name and style of "Shangar" and he is doing the business of Sarees and having insurance policy No.143701 for a period of one year for the stocks.
That as usual, on 26.01.2001 at about 8.30 a.m., the uncle of the respondent came and opened the shop and at about 8.45 a.m. all the shops were shaking including the respondent due to earthquake and and buildings nearby the shop of the respondent were destroyed and collapsed. That upto 25.01.2001, the respondent had purchased stocks of sarees of Rs.29,00,000/- and the present stocks of Rs.9,65,000/- and on account of earthquake, the respondent had run away from the open shop and after some days when he came to his shop, he saw that the stocks of sarees were stolen and thereupon he lodged the complaint about his stolen goods i.e. stocks of sarees at Anjar Police Station. That the Anjar Police had drawn the panchnama in the presence of panchas of shop of the respondent and the respondent put his claim before the appellant and requested for making survey and, thereafter, the appellant made survey. The appellant on 29.09.2001 had rejected the claim of the respondent stating that theft of goods cannot be considered when the theft was made in an open shop.
2.2 Being aggrieved and dissatisfied with the decision of the appellant, the respondent had filed the suit before the trial Court wherein the summons came to be served upon the appellant and the appellant had filed written statement at Exhibit 11 opposing the suit.
2.3 The trial Court, after considering the facts and the material on record, has framed the following issues at Exhibit 15:-
(1) Whether the plaintiff proves that the plaintiff is entitled to Page 2 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined recover Rs.7,51,550/- from the defendant? (2) Whether the plaintiff proves that the plaintiff is entitled to recover interest from the defendant? If yes, since when? And at what rate?
(3) What order?
2.4 The trial Court answered the aforesaid issue No.1 in the
affirmative; issue No.2 plaintiff is entitled to get interest @ 6% p.a and issue No.3 as per final order.
2.5 The trial Court, after hearing the respective parties and considering the oral as well as documentary evidence, has allowed the suit and awarded Rs.7,50,000/-.
3. Being aggrieved and dissatisfied with the impugned judgment and decree, the appellant herein - original defendant has filed the present appeal.
4. Heard Ms.Dimple Thaker, learned counsel for the appellant and Mr.D. K. Puj, learned counsel for the respondent at length and perused the material on record.
5. Ms.Thaker, learned counsel for the appellant has submitted the same facts which are narrated in the memo of appeal and has submitted that the trial Court has committed an error in passing the judgment and decree in favour of the respondent. She has submitted that the trial Court has also committed an error in not appreciating the terms of contract and contention raised by the appellant in its true spirit. She has submitted that the respondent had obtained insurance policy being shopkeeper insurance policy from the appellant for his shop. She has submitted that the liability of the appellant company Page 3 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined arises when the loss occurred due to insured peril but if it is not due to insured peril or not occurred in manner as indicated in the policy than the appellant is not liable to indemnify the insured to loss. She has submitted that the trial Court has ignored the definition of burglary and/or housebreaking given under policy, from which it is clear that the theft should have been preceded with force or violence then claim is admissible otherwise not, which fact is not proved by the respondent. She has submitted that the trial Court has overlooked the law laid down by the Hon'ble Supreme Court interpreting the very terms and conditions of insurance policy in the case of United India Insurance Company Limited Vs. Harchand Rai Chandan Lal reported in (2004) 8 SCC 644. She has submitted that the appellant has examined divisional manager, investigator and surveyor to prove its case and the claim of the respondent did not fall within the condition of policy, so the claim is inadmissible under the policy contract and hence it has rightly repudiated the claim in question. She has submitted that there was no possibility for the theft or house breaking of the shop in question. She has submitted that the respondent is not entitled to get damages as prayed for because of his mistake and negligence and the appellant is unable to give any compensation which is demanded by the respondent. She has submitted that the claim made by the respondent in the suit is not satisfying the conditions of the policy at Exhibit 18 and not covering the contract and, therefore, the appeal deserves to be dismissed.
5.1 Ms.Thaker, learned counsel has submitted that the trial Court, while passing the judgment and order, has not properly appreciated the evidence and committed an error. She has submitted that the trial Court has, while interpreting exclusion of Clause No.12 of Section 1(b) Page 4 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined of the Shopkeeper Insurance Policy, completely overlooked the same and without considering the exclusion part has passed the judgment and order. She has admitted that the loss on account of burglary and/or house breaking as mentioned and defined through the various decisions of the Hon'ble Supreme Court, in the present case, the shopkeeper / owner without taking proper care to shutdown his shop after putting lock and left the premises and without following the proper care and caution the respondent ran away to live aside the shop as it is and thus, it cannot be said that a burglary or theft as it was not used in force from outside, not broken up the shop and committed a theft or burglary and it is not fallen under the conditions stipulated in the policy. She has submitted that the trial Court has not considered the settled legal principles laid down by the Honourable Supreme Court wherein it is clearly defined. She has referred and relied upon the decision of the Honourable Supreme Court in the case of United India Insurance Company Limited Vs. Harchand Rai chandan Lal, (2004) 8 SCC 644 wherein the Honourable Supreme Court has observed in para - 4 as under:-
"4. The term "Burglary and/or housebreaking" has been defined in terms of the policy also which reads as under.
"Burglary and/or housebreaking shall mean theft involving entry to or exit from the premises stated therein by forcible and violent means or following assault or violence or threat thereof to the insured or to his employees or to the members of his family."
5.2 Ms.Thaker, learned counsel has also relied upon the decisions National Consumer Disputes Redressal Commission, New Delhi in the cases of (1) Ajmer Vidyut Vitran Nigam Ltd Vs. United Indisa Insurance Company Limited and others, IV (2023) CPJ 578 (NC) (2) Muthoot Finance Limited Vs. United India Insurance Page 5 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined Company Limited, III (2024) CPJ 324 (NC) and (3) Asish Pipe Mills (P) Ltd Vs. United India Insurance Co. Ltd, I (2025) CPJ 316 (NC) and (4) Pankaj Dhamija Vs. National Insurance Co. Ltd and another and another, I (2025) CPJ 344 (NC). She has submitted that on perusal of the ratio of the above referred decisions, it appears that since an insurance contract is bilateral and mutually agreed upon like any other commercial contract, then the rule of contra proferentem would not apply, however, without considering this aspect and ratio laid down by the Honourable Supreme Court and the National Consumer Disputes Redressal Commission, the trial court has passed the impugned judgment and order which is not proper in the eyes of law. She has further submitted that the trial Court has not properly appreciated the oral evidence of the appellant. She has submitted that the oral evidence of the Insurance Officer at Exhibit 37 and Exhibit 44 which clearly indicates that the policy coverage was reflected burglary and forcible and violence means and in the present case, no evidence of force or any illegal trespass was adhere by the respondent and without considering the said facts and exclusion provision in the policy document, the trial Court has passed the judgment and order. She has referred to the evidence of investigator at Exhibit 56 and Surveyor at Exhibit 57 and submitted that the stock as alleged by the respondent was not properly proved and established before the trial Court, however, the trial Court on conjuncture and surmises passed the judgment and order and awarded Rs.7,50,000/- along with 18% interest per annum.
5.3 Ms.Thaker, learned counsel has submitted that considering the overall facts of the case, the appeal deserves to be allowed and the impugned judgment and order deserves to be quashed and set aside.
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6. Mr.Puj, learned counsel for the respondent has submitted that the respondent has lost his property in the earthquake and so far as the policy is concerned, the burglary defined separately therein so the same has been considered by the trial Court. He has supported the findings recorded by the trial Court and submitted that no interference is required to be called for in the present appeal. He has submitted that so far as the ratio laid down by the Honourable Supreme Court and the National Consumer Disputes Redressal Commission is concerned, there was no dispute with regard to the law on the aspect of burglary or theft as defined and discussed by the Honourable Supreme Court and the National Consumer Disputes Redressal Commission, but all these decisions are in normal circumstance and in the present case, it is not normal circumstance where the person can take proper care and caution to keep the shop by closing the shop and after putting up a proper lock. He has submitted that now in the present case, the situation is dangerous as havoc due to earthquake at least for more than minutes nobody can enter in the areas which are worst affected due the earthquake and the shop situated in one of the said affected area where nobody can even reach to the place for more than 15 days to verify that what had happened in the shop. He has submitted that the situation is completely different than the decisions as referred and relied upon by the learned counsel for the appellant and hence, the same are not applicable to the facts of the present case except for the purpose of the burglary and theft which has defined in the said decisions.
6.1 Mr.Puj, learned counsel has submitted that it is an undisputed facts that the Anjar is worst affected area amongst the other areas of the State of Gujarat where maximum damages in terms of human life, Page 7 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined properties and any other manner suffered and, therefore, it is impossible for the respondent to follow all ingredients of the burglary and theft defined in the decisions and thus the trial Court has not committed any error of facts and law in passing the impugned judgment and order and in awarding Rs.7,50,000/- with 18% interest. He has submitted that since there was no force applied or any forcible entry or exist in the shop was found and thus theft repudiation of claim is absolutely unjust and illegal and after considering the scenario at the relevant point of time prevailing in that area, the trial Court has rightly passed the impugned judgment and order and there is no any illegality and infirmity committed by the trial Court. He has submitted that the appeal being meritless deserves to be dismissed and the judgment and order passed by the trial Court deserves to be confirmed.
7. On perusal of the evidence of the witness i.e. investigator of the company at Exhibit 56, it appears that this witness in his cross- examination has admitted that at the time of carrying out the survey he has recorded that he is not in a position to reach at the shop of the respondent. He also admitted that the damages caused to the respondent is to the tune of Rs.7,00,000/- to Rs.8,00,000/- and he visited concerned police station and from the police station, he has verified the said fact and, therefore, these facts were mentioned in the survey report. Thus, under such circumstances, the finding recorded by the trial Court is in consonance with the facts of the case and there is no any illegality and infirmity in the judgment and order.
8. This Court has perused the evidence of Pankajbhai Dave being surveyor of the company at Exhibit 57. On perusal of the evidence of the investigator of the appellant, it is suggestive fact that the Page 8 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined respondent has suffered a loss / damage due to earthquake. It is relevant to note herein that it is a policy impugned is Shop Keeper Peril Policy which covers all the risk which are mentioned in the policy and there was no exclusion with regard to damage due to the earthquake and when there is no specific exclusion merely on that no force was found or no any criminal trespass with a view to forcibly enter the premises for the purpose of committing theft or burglary was not found, is not tenable as in the present case the fact is completely different one than the decisions cited by the learned counsel for the appellant. Earlier, it is observed that in the normal circumstance, the prudent man has taken proper care and caution, but in the present case, the situation is completely different one and, therefore, it is a normal conduct of all human being to save their own life instead of safeguarding their property. It also appears that none of the witnesses of the appellant has stated any contrary facts before the trial Court.
9. This Court has considered the submissions of learned counsel appearing for the respective parties and material placed on record and the decisions cited at the Bar and also perused the impugned judgment and order passed by the trial Court. The issues involved in the present appeal are, in nutshell that whether the trial Court has committed any error in interpreting the policy more particularly Clause 12 of the Shopkeeper Insurance Policy with regard to the burglary and theft and whether the trial Court has without considering and without interpreting the policy has passed the judgment and order in favour of the respondent for which the evidence on record, the trial Court is to be looked into oral evidence of the respondent at Exhibit 16 and his cross-examination in detailed, who described the Page 9 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined situation took place on 26.01.2001. Even in normal circumstance, the prudent person wold leave the place as it is to save his/her life rather than trying to keep the property in a safe condition because even the buildings were also collapsed and damaged to the extent that even after months together nobody reached to the place of their normal residence or at the business place and under that circumstances, the ingredients of burglary and theft is impossible to observe as it is defined by the Court because that ingredients to be observed in normal circumstance and not in abnormal circumstance. In the present case, it is an absolutely abnormal circumstance and thus in that situation the prudent man cannot accept that he/she must keep his shop including the business premises in shutdown condition after putting a proper lock and thus, the trial Court has, while considering the oral evidence of the witnesses and the facts of the case and interpreting the clause stipulated in the policy, has discussed relevant findings in para 11 and 12 of the impugned judgment and order. It also appears that the respondent - original plaintiff immediately rushed to the nearest police station and lodged the complaint against unknown persons wherein description of the stocks was mentioned and the Investigation Officer has carried out the investigation; survey was also made by the Insurance Company through Surveyor Report. The fact come to the light that in a given situation, it was impossible even for prudent man to take proper care and caution before leaving the suit property getting closed down by putting up a lock over the suit property. Thus, I am of the considered opinion that the trial court has, after considering the settled legal principles laid down by the Honourable Supreme Court in para 13 and considering the fact that in the prevailing situation at the time of incident and the document at Exhibit 17, has rightly passed the impugned judgment and order.
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Such contention raised by the learned counsel for the appellant is not tenable in the eyes of law. The trial Court has considered the fact that in normal circumstance restriction in the policy can be considered and if insured has not followed and not taken any proper care while observing then in that circumstances, the claim can be repudiated but it was not common circumstances and it is beyond the reach of any human being. Therefore, under such circumstances, the trial Court has rightly passed the impugned judgment and order. On perusal of the decisions referred and relied upon by learned counsel for the appellant, I am in complete agreement with the submissions, but it is in normal circumstance, the Court had laid down the law where in normal circumstance, the ingredients of burglary and theft to be observed. In the present case, it was not a normal and common circumstance that person can keep the shop in proper shutdown condition after putting up the lock. Thus, the trial Court has, while passing the impugned judgment and order, not committed any error of facts and law and this Court is in complete agreement with the finding and reasoning recorded by the trial Court and hence, the appeal being meritless deserves to be dismissed.
10. In the result, the appeal is dismissed. Registry is directed to transmit back the record and proceedings to the concerned Court forthwith. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL FURTHER ORDER Ms.Thaker, learned counsel requests this Court that Page 11 of 12 Uploaded by V.R. PANCHAL(HC00171) on Tue Aug 12 2025 Downloaded on : Tue Aug 12 22:25:05 IST 2025 NEUTRAL CITATION C/FA/2436/2008 JUDGMENT DATED: 12/08/2025 undefined implementation and execution of the judgment may kindly be stayed for a period of six weeks as the stay is/was operating for more than sixteen years. Request is considered. The implementation and execution of the present order is stayed for a period of six weeks from today.
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