R.S.A. No. 5003 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 5003 of 2011 Date of decision:-20.12.2011 National Insurance Company Limited through its Manager ...Appellant Versus Ashok Seth and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Ashwani Talwar, Advocate for the appellant. RITU BAHRI J. The Insurance Company has come up in appeal against the judgment and decree dated 07.9.2011 passed by the District Judge, Amritsar dismissing the appeal against the judgment and decree dated 06.8.2009 passed by the Additional Civil Judge (Sr. Division), Amritsar. The plaintiff Ashok Seth, proprietor of M/s S. Kumar's Wool Spinners Baghichi Lala Pheru Mal Seth had obtained an insurance policy from the office of the appellant-National Insurance Company and a cover note No.186572 dated 24.10.1998. This policy covered various risks during the period from 24.10.1998 to 23.10.1999. The risks covered included that of theft, burglary etc. to the extent of Rs.10 lacs and additional R.S.A. No. 5003 of 2011 -2- insurance policy for similar risks was taken vide cover note No.186673 dated 30.12.1999 for additional sum of Rs.7 lacs during the period w.e.f. 30.12.1998 to 29.12.1999. The plaintiff had obtained a fire insurance policy No.3100152/97 during the period w.e.f. 2.4.1998 to 1.4.1999 for a sum of Rs.4 lacs. The factory of the plaintiff was lying closed since 10.12.1998. On 10.1.1999 the plaintiff locked his factory and went out of station. When he returned on 14.1.1999 he found that the lock of the main iron gate was broken and a large quantity of yawn and other goods had been stolen. The theft was committed during the period from 10.1.1999 to 14.1.1999 and FIR was registered in Police Station Civil Lines, Amritsar. The insurance company was informed vide letter dated 14.1.1999 by the plaintiff about the incident. Out of the total stock of Rs.14,38,940.60/- stock worth Rs.6,28,399/- had been stolen. The plaintiff filed a civil suit. On notice, defendants filed written statement and their main plea was that the premises remained unattended w.e.f. 10.12.1998 till the alleged occurrence of burglary between 11.1.1999 to 13.1.1999. The insurance company was not liable to pay the claim in view of the exclusive clause of the policy that the insured premises would not be left uninhabited by day and night upto seven or more consecutive days and nights. Both the courts have decreed the suit of the plaintiff and the objections raised by the insurance company that the premises were left R.S.A. No. 5003 of 2011 -3- uninhabited by day and night upto seven days has been rejected. The finding has been given that the factory was lying closed due to labour problem. The proprietor Ashok Seth used to visit the premises in routine for the purpose of checking. After 10.1.1999 he went out of station and when he came back on 14.1.1999 he found that the lock of the main iron gate had broken and the theft had taken place. As per the insurance policy there is no gap of seven consecutive days or that the factory remained unattended for seven days or more. The FIR was lodged on 14.1.1999 itself. The spot survey was conducted by Shri B.K. Mehta on instructions from the insurance company. He found that out of the stock having value of Rs.14,39,951/- only stock worth Rs.8,10,541.60/- was there. The plaintiff examined Mr. Kapil Mehra, Chartered Accountant, who proved the amount of loss suffered by them as per the provisional balance sheet. This provisional balance sheet was signed by the Chartered Accountant of the company. The books of the accounts of the plaintiff are Ex.P-45 to P-48. The books and ledger copies are Ex.P-24 to Ex.P-31. All these documents show in detail of sale purchase, balance issue and production during the period 01.4.1998 to 10.1.1999. The value of the goods stolen was fixed @ Rs.6,28,399/- in terms of Ex.P- 48. This document was duly verified by the employee of the insurance company Shri N.K. Chhabra-DW2. Counsel for the appellant has not been able to make R.S.A. No. 5003 of 2011 -4- out any flaw in the judgment with regard to factual finding of amount of stolen goods is concerned. He argued that the factory was closed since 10.12.1998 and was unattended for consecutive seven days and thus insurance company was not liable to make any claim to the company. This argument carries no weight in view of the concurrent findings recorded on the facts by both the courts. The factory was closed due to labour problem and the Proprietor had gone out of station on 10.1.1999 and immediately when he came on 14.1.1999, he came to know that the theft had taken place. The finding of fact recorded by both the courts below require no interference. No question of law much less substantial question of law arises for consideration before this Court. The regular second appeal is dismissed. December 20, 2011 ( RITU BAHRI ) Vijay Asija JUDGE