M/S. Modern Bazar Departmental ... vs National Insurance Company Ltd.
2011 Latest Caselaw 753 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                RFA No. 227/2001


%                                                    8th February, 2011

M/S. MODERN BAZAR DEPARTMENTAL STORE (P) LTD. ...... Appellant
                            Through:   None


                           VERSUS


NATIONAL INSURANCE COMPANY LTD.                            ...... Respondent
                             Through:              Mr. Joy Basu, Adv.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)


1.             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 am proceeding

to dispose of the matter.


2.             The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
RFA No. 227/2001                                                     Page 1 of 4
 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 upto 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:


            "1.   Whether the plaintiff is entitled         to   recover
            Rs.3,00,000/- as claimed in the suit?
            2.   Whether the claim of the plaintiff was not covered
            under the policy given by the defendant?

            3.   Whether the suit has not been signed and verified by
            a competent person?
RFA No. 227/2001                                                   Page 2 of 4
             4..   Relief?"

4.          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.


5.          I do not find any illegality or perversity in the impugned

judgment and decree which calls for interference by this Court.     The Trial


RFA No. 227/2001                                                  Page 3 of 4
 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.




FEBRUARY 8, 2011                              VALMIKI J. MEHTA, J.

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