Judgment:
ORDER
1. This appeal is preferred against the judgment of the XIII-Assistant City Civil Judge, Madras, passed in O.S.No.8122 of 1986 on 30.3.1988. The defendant is the appellant herein.
2. The plaint averments can be summarised as follows:
The stock in Trade and other assets of the plaintiff lying in its business premises at Medavakkam were insured with the defendant under the Burglary Policy No.5060/7500060, dated 20th November, 1985 for a sum of Rs.2,33,500. Under the policy, the defendant has undertaken to indemnify the plaintiff against any loss or damage of the properties insured by theft following upon, burglary or house breaking accompanied by the actual forcible and violent breaking into or out of the premises or any attempt threat during the period of insurance. While the policy was in force, the premises of the plaintiff was burgled on 3.3.1986 and finishing components, such as, lock, device screws, terminal clamps, lock pins, etc. worth Rs.45,036.81, were lost because of theft. On the same day, the plaintiff lodged a complaint with Sub-Inspector, Velachery Police Station and a case was registered in Crime No.18 of 1986. The Velachery police had arrested four alleged culprits and they were remanded to judicial custody by the Judicial Magistrate Court, Poonamallee. The plaintiff understands that the police have recovered the stolen properties in the melted form. The plaintiff lodged a claim in the prescribed form with the defendant in which the plaintiff claimed a sum of Rs.45,031.81 being the actual value of the goods stolen. As the defendant failed to make the payment, the plaintiff sent a lawyer notice, dated 23.9.1986, demanding the payment and the defendant received it on 26.9.1986, but, he has not cared to send reply. A sum of Rs.50,435.65 is due from the defendant to the plaintiff and the defendant is also liable to pay further interest at the rate of 18% per annum. The plaintiff has filed the suit for recovery of a sum of Rs.50435.65 with interest at 18% per annum from the defendant.
3. The defendant in its written statement has contended as follows:-
It is true that the stock in Trade and other assets of the plaintiff lying in its business premises at Medavakkam were insured with the defendant under the Burglary Policy, but, there is no unqualified undertaking to indemnify as mentioned in the plaint. The plaintiffs are called upon to disclose the identify of those arrested in connection with the complaint of theft and the plaintiff must prove that they have nothing to do with the plaintiff inasmuch as the policy does not cover loss or damage to the property insured contained in the premises by theft or attempt threat in which there is concerned privy any number of insured's business, staff or any person lawfully on the premises. It is true that the plaintiff lodged a claim as averred in the plaint and the plaintiffs were further called upon to prove the actual value and extent of physical loss. The demand of the plaintiff was duly replied by the defendant's advocate bytheir Letter, dated 21.10.1986 and duly served on the plaintiff's advocate on 22.10.1986. There is no contract to pay interest much less the interest at the rate demanded. There was violation of policy condition by the plaintiff and hence the plaintiff is disentitled for any indemnity. The defendant, on being notified about the reported loss, appointed their Surveyors M/s.J.B.Boda Marine and General Survey Agencies Private Limited, to investigate and their survey report was issued on 17.3.1986. The plaintiff admittedly removed the exhaust fan from the circular opening on the eastern side wall and gave it for repairing as early as on 19.2.1986. The triangular shaped metal frame-work bolted on to a circular steel ring meant to serve as a guard to the exhaust fan was also a protection against any unauthorised entry through the said circular opening. This triangular shaped metal frame was not refixed by the plaintiff and absence of the said frame-work at the opening provided access through the said circular opening with a diameter of 1'4' to the main office room where the theft allegedly took place. Therefore, the plaintiff was negligent and failed to take all reasonable precautions for safety of the properties insured. By failing to refix the metal frame or close the opening by another mode, the plaintiff failed to maintain the protection provided. On the contrary, apart from maintaining the protection, the plaintiff virtually removed the protection thereby exposing the insured property which directly attracted condition. No.l of the Policy. The plaintiff has committed violation of condition No.l of the policy and thereby disentitled for any indemnity under the policy. The liability under the policy will be attracted only on proof of actual forcible , and violent breaking into or out of the premises. In the absence of any such proof, the defendant is not liable to make good the loss as per the terms end conditions of the policy.
4. The XIII-Assistant Judge, City Civil Court, Madras, framed four issues and on a consideration of the entire matter came to the conclusion that the plaintiff is entitled to recover a sum of Rs. 45031.81 being the actual value of the goods stolen and granted a decree to recover the same with future interest at 6% per annum from the defendant. Aggrieved by the same, the defendant has preferred the present appeal. The parties are described in this judgment as arrayed in the suit.
5. The points for consideration in this appeal are:
(1) Whether the defendant is bound to indemnify the plaintiff as per the Insurance policy.
(2) Whether the plaintiff has violated the policy condition.
6. Point No.l : The fact that the stock in trade and other assets of the plaintiff lying in its business premises at Medavakkam were insured with the defendant under the Burglary Policy 5060/7500060, dated 20.11.1985, for a sum of Rs.2,33,500 is not disputed. . Ex.A-1 is the original Burglary Policy, dated 20.11.1985. Ex.B-1 is the Office copy of the same. When the above policy was in force, the premises of the plaintiff was burgled on 3.3.1986 andfinished components worth Rs. 45,036.81 were lost because of the theft and the plaintiff lodged a complaint in Velachery Police Station and a case was registered. Ex.A-2 is the copy of the complaint, dated 5.5.1986, lodged by the plaintiff with the Velachery Police Station regarding the theft. The plaintiff lodged a claim in the prescribed form with the defendant on 4.5.1966, in which, he claimed a sum of Rs.45,031.81 being the actual value of the goods stolen. Ex.A-5 is the copy of the burglary claim form made by the plaintiff and Ex.B-6 is the original. The defendant appointed their surveyors M/s.J.B.Boda Marine and General Survey Agencies Private Limited to investigate and submit report. Ex.B-2 is the preliminary report, dated 17.3.1986, submitted by the above Survey Agency to the defendant. Ex.B-3 is the Survey Report, dated 13.11.1986, submitted by the defendant to the plaintiff, Ex.A-4 is the copy of the lawyer notice, dated 23.9.1986, sent by the plaintiff to the defendant demanding the payment. Ex.B-4 is the copy of the reply, dated 21.10.1986, sent by the defendant to the plaintiff.
7. The defendant contends that the liability in Ex.A-1 Burglary Policy would be attracted only on proof of actual forcible and violent breaking into or out of the premises and in the absence of any such proof in the present case, the defendant is not liable to make good the alleged loss as per the terms and conditions of the policy. According to Ex.A-1 Burglary Policy, the defendant insurance company will indemnify the injured plaintiff against loss or damage to the Property insured described in the- Schedule whilst contained in the premises by theft following upon Burglary or House breaking accompanied by the actual forcible and violent breaking into or out of the Premises or any attempt threat occurring during the period, of insurance. The learned counsel for the appellant/defendant contends that the theft happened in the premises of the plaintiff was not theft following upon burglary or theft following upon house breaking accompanied by the actual forcible and violent breaking into or out of the premises and hence the liability under the policy will not be attracted.
8. P.W.1 is the Managing Partner of the plaintiff firm and he has stated in his Ex.A-2 complaint to the Police that on 3.3.1986 his Manager has reported to him that some of the finished components kept inside the office room were missing, but, the door and windows were found: to be locked intact. In his testimony before Court, P.W.1 has stated the same about the occurrence. The Surveyor in his Ex.B-2 Preliminary Report and in his Ex.B-3 Final Report has stated about the details of occurrence and its cause. In the above reports it is told that the factory workers worked upto 1.00 a.m, on 3.3.1966 and as per usual practice they put all the finished items in the office room which was locked up by the factory Manager and at about 8.30 a.m, when the office was opened by the Manager, it was found that all the finished items stored in the office room were missing and the door and windows were all found locked as usual. In the above reports, it is further told that on the east side of the office room, there is a circular opening in the wall (of 1'4' diameter) where an exhaust fan was reportedly fitted and apparently theexhaust fan was out of order and was given for repair on 19.2.1986 and inside the office room, a triangular shaped metal frame-work bolted onto a circular steel ring meant to serve as a guard for the exhaust fan was sighted by them during the survey and outside of the of office room, on the eastern side where the opening for the exhaust fan exists, old crates, wooden case, etc. were stacked and they were of the opinion that a person can climb up onto those crates and enter the office room through the circular passage when the exhaust fan was not in place, by removing the bolts of the triangular frame. The plaintiff in his Ex.A-5 Claim. Form itself has stated that the entry was presumed to have been made through the exhaust fan hole. P.W.1 has also stated that one week before the occurrence the exhaust fan was removed and given for repair and the frame was present. D.W.1 is the Officer of the defendant's company and he did not inspect the occurrence place. D.W.2 is the surveyor, who conducted the survey and he is the author of Exs..B-2 and B-3 Reports. According to him, the exhaust fan was opening was at a height of 9 ft. from the ground and the exhaust fan was removed for repair on 19.2.1986 and in that place the frame was intact. In his cross-examination he has stated that when he inspected, the exhaust fan, consisting of the motor and the blades, was not there and the frame was intact and the diameter was 16' and because of the frame the diameter would be less and even then a person can enter inside through the gap and without the help of two or three persons, one person alone could not enter through that gap, D.W.2 has further stated in the cross-examination that the triangular shaped metal trains in doom shape was present in the circular steel ring and hence the diameter was slightly reduced. For better appreciation, the testimony of D.W.2 in cross-examination in this regard, is extracted below.
From the above, it is clear that the triangular doom shaped metal guard for the exhaust fan was present. If that is so, a person could not have entered without removing the bolts of the triangular frame guard, since the width between the two legs of the guard would be very less mailing it not possible for the person to enter. So it is clear that the entry must have been made through the circular passage, when the exhaust fan was not placed, by removing the bolts of the triangular frame as mentioned in Ex.B-2 Survey Report.
9. The learned counsel for the appellant/ defendant contends that as per the policy conditions, the theft must be following upon burglary or house breaking and in both cases, it should be accompanied by the actual forcible and violent breaking into or out of the premises. Per contra, the learned counsel for the respondent/plaintiff strenuously argued that according to the policy conditions, the theft must be following upon burglary or the theft must be following upon house breaking accompanied by the actual forcible andviolent breaking into or out of the premises. The relevant clause in the policy is extracted as under.
'....theft following upon burglary or House breaking accompanied by the actual forcible and violent breaking into or out of the premises....'
For making the circumstance of actual forcible and violent breaking to accompany both burglary or been house breaking, there ought to have been a comma after the word 'house breaking' in the above mentioned clause. There is no comma in that place and hence it must be read as theft following upon burglary or theft following upon house breaking accompanied by the actual forcible and violent breaking into or out of the premises,
10. Now, whether the theft in the present case is theft following upon burglary has to be seen. There is no definition of word 'burglary' in Ex.A-1 Burglary policy. The word burglary is not defined in our Penal Code. Black's Law Dictionary (Sixth edition) states 'burglary' in the following terms.
'At common law, the crime of burglary consisted of a breaking and entering of a dwelling house of another in the night time with the intent to commit a felony therein. The modern statutory definitions of the crime are much less restrictive. For example, they commonly require no breaking and encompass entry at all times of all kinds of structures. In addition, certain state statutes classify the crime into first, second, and even third, degree burglary.
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time, open to the public or the actor is licensed or privileged to enter.'
Section 9 of Theft Act, 1968 in England defines burglary as follows: '
(1) A person is guilty of burglaryif-
(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subs. (2) below; or
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in sub-section (l)(a) above are offences of stealing anything in the building or part of a building in question of inflicting on any person therein any grievous bodily harm or raping any woman therein, and of doing unlawful damage to the building or anything therein.
(3) References in subs-section (1) and (2) above to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there aswell as at times when he is.
(4) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding 14 years..'
From the above, it is clear that a person is guilty of burglary if he enters any building as a trespasser with intent to commit the offence of stealing anything in the building. In the present case, the person was entered the building of the plaintiff had entered as a trespasser with intent to commit stealing and also he had committed the offence. Hence, it is clear that in the plaintiff's premises there was theft following upon burglary and the liability of the defendant under the Policy is attracted.
11. The next question is whether the theft in the plaintiff's premises can be construed as theft following upon housebreaking accompanied by the actual forcible and violent breaking into or out of the premises. There is no definition of the term 'housebreaking' in Ex. A-1 Policy, Housebreaking is defined in our Penal Code in Section 445, which reads as follows:
'A person is said to commit 'house-breaking ' who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say :-
Firstly- if he enters or quits through a passage made by himself or by any abettor of the house-trespass, in order to the committing of the house-trespass.
Secondly - If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly - If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Forthly - If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass.
Fifthly- If he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault,
Sixthly- If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass.
Explanation.- Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section.'
In the present case, the person, who had committed house-breaking of the plaintiff's premises, had entered through the passage not intended by any person other than himself for human entrance and the above act comes under 'secondly' in the above Section. The learned counsel for the appellant/defendant contends that the house-breaking in the present case was not accompanied by the actual forcible and violent breaking into the premises as stipulated in the policy condition and he relies on the judgment of the Court of Appeal in Dino Services Ltd., v. Prudential Assurance Co. Ltd., 1989 (1) All ER 422. In the case in which the above decision arose, the keys of the premises of the plaintiff were stolen by thieves from the plaintiff's car and then they entered the premises at night by simply using the keys in the normal way to unlock various doors, without causing any physical damage to the locks or to the doors. The plaintiff brought an action seeking declaration that he was entitled to be indemnified under the insurance policy 'theft involving entry to the premises by forcible and violent means'. The trial judge upheld the claim on the ground that there had been entry to the premises by both forcible and violent means within the policy and in the appeal, the Court of Appeal allowed the appeal and held as follows:
'In the context of a policy of insurance against theft from premises by 'forcible and violent' means of entry, the word 'violent' was to be construed according to its ordinary meaning and meant entry by the use of any force which was accentuated or accompanied by a physical act which could properly be described as violent in nature and character. In the context of such a policy the word 'violent' accordingly referred to the physical character of the means of entry and not merely to its unlawful character. It followed that the thieves, by gaining entry to the premises simply by using the proper keys to unlock the doors of the premises, had not entered the premises by 'violent' means. Accordingly, the plaintiff's loss was not covered by the policy. The appeal would therefore be allowed.'
The facts in the above case are entirely different from the present case and the above decision will not apply. In the present case, as already seen, the entry had been made thought the circular passage, when the exhaust fan was not in place, by removing the bolts of the triangular frame guard. In those circumstances, that entry is noting but actual forcible and violent breaking into the premises. Hence, the theft committed in the plaintiff's premises was theft following upon house breaking accompanied by the actual forcible and violent breaking into the premises. Under this clause also, the liability of the defendant under the policy is attracted.
12. Point No.2. In the written statement the defendant has contended that the triangular shaped metal frame-work bolted onto the circular steel ringmeant to serve as a guard to the exhaust fan was also a protection against any unauthorised entry through the said circular opening and this triangular shaped metal frame was not re-fixed by the plaintiff and the absence of the said frame-work at the opening provided access through the circular opening and therefore the plaintiff was negligent and failed to take reasonable precautions for safety of the property insured and the plaintiff violated condition No.1 of the Policy and he is disentitled for any indemnity. Condition No.l in the Policy reads as follows:
'The insured shall take all reasonable precautions for the safety of the Property insured and shall use and maintain all the protections provided..'
The above contention of the defendant is falsified by Ex.B-2 and B-5 Survey Reports and the relevant passage is same in both of them and it reads as fellows:
'Inside the office room, a triangular shaped metal frame work bolted on to a circular steel ring meant to serve as a guard for the Exhaust Fan was sighted by us during our survey.'
Further, the relevant portion in the evidence of D.W.2 regarding this is already extracted supra. D.W.2 himself had admitted about the presence of the triangular shaped metal frame guard in the place. The exhaust fan, consisting of the motor and the blades, alone was removed and sent for repair on 19.2.1986. In those circumstances, the question is whether the plaintiff, as insured, had taken all reasonable precautions for the safety of the property insured. The factory workers had worked till 1.00 a.m. on 3.3.1986 and the factory Manager had locked the office room, the other doors and windows and had left the place, the windows had bars crooked and the glass pans were locked and the door, which is made up of solid sheet metal with wooden reinforcement, was also locked. The exhaust fan was provided at a height of 9 feet from the ground level, as per the evidence of D.W. 2. P.W.1 had, a fierce watch dog, which died on 16.2.1986, and the burglary had taken place in a fortnight. There is no precious wealth stored in the premises. Further, according to D.W. 1, they did not suspect the plaintiff of having committed any foul play. In those circumstances, it cannot be said that the plaintiff did not take reasonable precautions for the safety of the property insured and there is no violation of Condition No.l enumerated in the policy, as contended by the defendant.
13. The plaintiff is entitled to the actual value of the goods stolen, namely, a sum of Rs. 45,031.81 with fixture interest at 6% per annum, as rightly held by the trial court.
14. In the result, the appeal fails and the same; is dismissed. No costs.