United India Insurance Company ... vs Usha International Limited
2006 Latest Caselaw 152 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 2.9.2005. We have heard the learned counsel for the parties and perused the record. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

2. The writ petitioner has a godown at Cuttak, Orissa which was insured by the appellant covering risks inter-alia against fire, theft, burglary, riots and such other calamities attributable to nature and circumstances beyond control.

3. On 1st and 2nd November, 1999 the employees of the petitioner at the respondent's Cuttak godown noticed that some miscreants had made forcible and violent entry into the godown which was an insured premises at Cuttak.. Thieves had managed to steal a large quantity of stored goods by committing house-breaking from the rear side of the insured godown. The petitioner lodged an FIR dated 4.11.1999 and submitted a claim to the appellant in respect of such theft. However, the claim was rejected by letter dated 2.10.2000 stating that the incident was not covered by the two policies taken out by the petitioner. The petitioner protested and said that the incident was covered by the policy, but to no avail. Hence the writ petition.

4. Repeated opportunities were given by the learned Single Judge in the writ petition to file a counter affidavit, but no counter affidavit was filed. Hence, the petition was decided without a counter affidavit and the allegations in the writ petition remained unrebutted.

5. The submission of the learned counsel for the appellant is that the policies issued by the appellant to the respondent did not cover theft resulting out of a cyclone.

6. It appears that the theft was committed after the cyclone in Orissa, but in our opinion it nevertheless remained a theft. The burglary and house breaking policy dated 1.4.1999 clearly covers a case of theft in the house. No doubt that theft was subsequent to the cyclone, but it remains a theft. Hence, there is no force in this appeal and it is dismissed.