M.P. Chandrakantraj Urs, J.
1. This is a plaintiff's appeal directed against the judgment and decree in Original Suit NO. 468 of 1973 on the file of the then First Addl. Civil Judge, Banglore City. The judgment and decree is dated August 30, 1975.
2. The following few facts are necessary to be stated for the purpose of a just disposal of the appeal.
3. The plaintiff is a co-operative society registered under the Karnataka Co-operative Societies Act, 1959, Its offices and branches are located in Mysore City. One such branch is located on what is know as the 100 Feet Road in Rajendranagar in Mysore City. It appears that on January 29, 1968, there was some kind of riot or civil commotion, as a result of which the branch shop where cloth and other textiles were sold by the plaintiff-co operative society were burgled by breaking open of the door of the shop by some miscreants. The watchman of the neighbouring premises i. e., Graduates Co-operative Society, who has gone to the premises of the plaintiff to drink water escaped through a drain pipe and reported the matter to one J.N. Nagarajaiah who was at the relevant time, a worker in the branch shop of the plaintiff-co-operative society on the Chamaraja Double Road.
4. Immediately, the said J.N. Nagarajaiah tried to reach the shop and found a lot of commotion and rioting; people having blocked the road with stones and pelting stones. Further, they also started putting fire on the road. They also started putting records and wood pieces to the fire. In that state of the matter, he was unable to reach the shop. He also saw people carrying away cloth and other goods from the shop. He, therefore,lodged a complaint with the police enclosing an approximate list of cloth complaint latter came to be marked during trail as exhibit P-2. Some miscreants were apprehended by the police and charge-sheeted in the court of the City Magistrate, Mysore, in Criminal Case NO. 865 of 1968. We will refer to that case later in the course of this judgment.
5. However, the plaintiff-society raised a dispute under section 70 of the Karnataka Co-operative Societies Act, 1959, before the Assistant Registrar of Co-operative Societies, Mysore District. In those arbitration proceedings, the claim of the plaintiff- society was allowed and the defendant-New India Assurance Co. Ltd.' liabilities were fixed at Rs. 35,819.70 inclusive of cost of Rs. 50.50 with interest thereon, inasmuch as the plaintiff's co- operative society had been covered against fire and burglary by a policy taken with the defendant-assurance company. That was not the end of the matter; the defendant-assurance company preferred an appeal to the then Co-operative Appellate Tribunal, Banglore, inter alia, contending that the assurance company, not being a co-operative or a member society, the questions of the Karnataka Co-operative Societies Act, 1959, did not arise and, therefore, the award was without jursidiction. It is needless to say that the appeal succeeded. In the result, the suit was filed at Banglore where the assurance company had its office damages on account of the liability of the assurance company under the policy taken out against fire and burglary, substantially on the same facts, which we have set out earlier. Defendant-assurance company in its written statement while admitting the fact of the policy having been taken out by the plaintiff-co-operative society, nevertheless contended that the suit was not maintainable as the secretary was not empowered to file the suit, inter alia, admitted that there secretary was not empowered to file the suit, inter alia, admitted that there was burglary in the branch office on 100 Feet Road (Chamraja Double Road) and goods valued at Rs. 35,769.20 were stolen. They also pleaded that the loss had occurred was due to rioting by the Hindi agitators; that there was a civil commotion and rioting on January 29, 1968, at Mysore and near the place where the plaintiff-society branch office is situated and police opened fire to bring under control the violent mob in that area. The fact that the society's official lodged a police complaint clearly established that fact. The policy issued by the defendant-assurance company covered the risk of fire and burglary but not risk by civil commotion and rioting. Therefore, the suit was liable to be dismissed against the defendant company.
6. On such pleadings, the trail court framed the following issues:
1. Whether the secretary of the plaintiff society is authorised to file this suit?
2. Whether, on January 29, 1968, the stock located in the plaintiff's city cloth branch at 100 Feet Road, Mysore, was burgied? or
Whether the loss and/or damage to the stock and goods of society cloth branch was dur to rioting by anti-Hindi agitators?
3. What is the value of the stock that was burgled?
4. Whether the defedant is liable to pay the suit claim?
5. Whether this court has no jurisdiction to try the suit?
6. To what reliefs is the plaintiff entitled?
On issue NO. 1, the trail court found in favour of the plaintiff, 1.e., that the plaintiff secretary was authorised to file the suit. Therefore, the suit was eld to be maintainable. On issue NO. 2, which the trail court considered to be the crucial one, it found against the plaintiff and held that it was no burglary that occurred on the night of January 29, 1968. In regard to issue NO. 3, the trail court arrived at a value in regard to loss suffered to which we will make a reference later. In view of finding on issue NO. 4, the trail court held that the decedent was not liable to pay under the policy in view of the exception of the liability provided for in the policy and held in favour of the defendant. The trail court held that it has jurisdiction. In the result, it dismissed the suit of the plaintiff as not entitled to any relief. Therefore, the present appeal.
7. The questions that relay fall for our determination are:
1. Whether the trail court was correct in coming to the conclusion that there was no burglary on the night of January 29, 1968, at the branch office, office shop of the plaintiff-society?
2. Whether the defendant-assurance company could take shelter behind the exception provided for under condition No. 2 of clause (f) of the policy which was marked as exhibit P-1 in the case?
8. A perusal of the complaint at exhibit P-2 and the judgment of the learned City Magistrate, Mysore City, at exhibit P-7 clearly establish that there was rioting and civil commotion on account of some anti-Hindi agitation in Mysore City at the spot where the shop of the plaintiff-co-operative society was located, namely, Chamaraja Double Road. In fact, this is not disputed by the defedant, but it has admitted that sucha rioting and civil commotion took place. The trail judge came to the conclusion that on account of the finding recorded by the learned Magistrate in the criminal case at Mysore City, accused Nos. 1 to 7, 10, 12, 13, 16, 17, 18, 20 and A-23 came to be realsed after admonition under section 3 of the P.O. Act on their pleading guilty to the charge of theft of property from the premises of the plaintiff on the night of January 29, 1968, in the following words:
'The learned Magistrate has come to the conclusion that during the disturbance and melee, accused have committed the offence.'
9. But, in going through the judgment of the learned Magistrate at exhibit P-7, we do not find any such conclusion reached by the learned Magistrate. All that the Magistrate recorded was that the accused, to whom we have earlier referred, after examination of several witnesses wanted to change their plea of not guilty and made an application in that behalf. In disposing of that application, questions were addressed to them in the light of the new piea of guit and prayer for mercy. The learned Magistrate observed that on the way in which several accused represented themselves through their counsel, he was inclined to be live that there had been real repentance on the part of the accused persons. He also recorded that the cause for disturbance was agitation in respect of Hindi language. Thereafter, he let them off with an admonition having regard to the fact that the trail has taken place more than 2 1/2 years earlier and the accused had moved up and down for the sake of trail and that itself was sufficient punishment.
10. In any event, the trail court was not bound to follow the conclusions reached in the criminal proceedings where the accused had pleaded guilty. When there was no independent evidence as to the proximity of the riot to the incident of burglary or civil commotion, what was established and what has not been denied is that in the area in which rioting took place, a burglary also took place and nothing more. There is no other independent evidence by which it can safely be inferred that the burglary had taken place when those who were agitating in connection with Hindi Language looted the shop of the plaintiff. In this way, there is total misdirection by the trail court in appreciating the evidence. There is no reason why the evidence of PW-3 should be ignored. He has clearly stated that he saw with his eyes some people removing the cloth and other textiles from the premises with which we are concerned in this case, saw rioting also at the same time and the blocking of the road, pelting of stones by some persons who were said to be rioting and who started fire in the middle of the road. He never stated that the same people stole cloth and other material from the shop. Theft or burglary at about 8.30 or 9.00 a.m. is not disputed. Therefore, it was theft in the night from the shop and, therefore, falls within the meaning of the term 'burglary' in English, the word in the policy. The insurance was against burglary, fire or house-breaking.
11. Principally, we have given reason for misdirection in the appreciation of the evidence by the learned trail judge and it was on account of the fact that he put the burden on the plaintiff to prove that burglary had taken place. On the other hand, the pleading, which we have summarised, clearly establishes that the burglary was not denied by the defendant-assurance company. It only took shelter behind the exception clause in the conditions attached to the policy. Therefore, as held by the English court in Cornish v. Accident Insurance Co. Ltd. [1889] 23 QBD 453 (CA), Per Lindley L.J. at page 456 and Etherington, Lancashire and Yorkshire Accident Insurance Co., In re [1909] 1 KB 591, the constriction of exceptions must be with utmost strictness because exceptions are inserted in the policy mainly for the purpose mainly for the purpose of exempting the insurers from liability for a loss which, but for the exception, would be covered by the policy.
12. Therefore, issue No. 4 should have been framed in such a manner this the defendant would have had to prove that he came fairly and squarely within the exception and, therefore, not liable.
13. The second question, which we have formulated earlier, is now ready and falls to be answered. Condition NO. 2 at clause (f) is as follows:
'(f) Loss or damage which either in origin or extent is directly or indirectly, proximately or remotely, occasioned by or contributed to by or which, either in origin or extent directly or indirectly, proximately or remotely, arises out of or in connection with earthquake, volcanic eruption, typhoon, hurricane, tornado, cyclone, or other convulsion of nature or atmospheric disturbance, or war, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not) mutiny, riot, civil commotion, insurrection, rebeellion, revolution, conspiracy, military, naval or usurped power, martial law or state of seige, or any of the events or causes which determine the proclamation or maintenance of martial law or state of seige. Any loss or damage happening during the existence of abnormal conditions (whether physical or otherwise), directly or indirectly, proximately or remotely, occasioned by or contributed to by or arising out or in connection with any of the said occurrences shall be deemed to be loss or damage which is not covered by this insurance except to the extent that the insured shall prove that such loss or damage happened independently of the existence of such abnormal conditions. In any action, suit or other proceedings, where the company alleges that by reason of the provisions of the condition any loss or damage is not covered by this insurance, the burden or proving that such loss or damage is covered shall be upon the insured'. (underlining* is ours)
14. Rioting and civil commotion are words commonly used in English, particularly with regard to insurance claims and that too frequently. In General Principles of Insurance Law, second edition, by A.R. Hardy ivamy, at pages 222 and 223, we find that the word 'riot' is to be construed in its ordinary legal meaning. Riot involves tumultuous actions by three persons or more (According to English Law in India, see section 146 of the Indian Penal Code which defines 'rioting'). The learned author further noted that mere malicious injury to properly done by three or four persons does not constitute rioting. Similarly, 'civil commotion', the learned author indicates, is a stage between a riot and a civil war.
15. We should take into consideration the use of the words 'civil commotion' In the context of the facts of this case. It appears to us be no more than disturbance of public peace during night. Therefore, the exception created in regard to liability under clause (f) of condition NO. 2, which we have extracted above, itself created an except8ion and that is the insurer may prove that such loss or damage happened independently of the existence of such abnormal conditions.
16. What the evidence of PWs-2 and 3 prove is that persons broke open presumably the doors of the shop of the plaintiff and took away the cloth and other goods and causing damage to furniture, etc., in the night and at that time there was civil commotion, disturbance and even rioting . But those who took away the cloth and other materials from the shop were also rioting in connection with Hindi agitation is not in evidence. It is reasonable to presume that some miscreants, taking advantage of the rioting or evil commotion, broke open the shop forcibly by entering into the shop and removed the goods there. If there is a reasonable inference on the evidence on record in the case and in the absence of any evidence by the defendants as to the connection of the miscreants or the thieves or burglars with the rioting, they could not have been given the benefit of the exception mentioned at clause(f), condition NO. 2.
17. In the light of the answers given to the question formulated above, we allow this appeal and we have no choice but to reverse the finding of the trail court and decree the suit as prayed for. The decree shall accordingly be drawn up. The plaintiff shall be entitled to receive interest from the date be drawn up. The plaintiff shall be entitled to receive interest from the date be drawn up. The plaintiff shall be entitled to receive interest from the date of suit till the date of realization at 6 per cent. Per annum on Rs. 35,819.70 value of goods burgled and determined by the trail court.
18. The appellant having filed appeal as an indigent person, he is bound to value the suit in the trail court as well as the appeal hre and pay court fees. The Deputy Commissioner, Mysore, shall take steps to recover the court fee payable.
19. Appeal is allowed with costs.