## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**FRIDAY, THE 27TH DAY OF JANUARY 2017/7TH MAGHA, 1938**
**AS.NO. 654 OF 2000 ( )**
**-----------------------**
**AGAINST THE JUDGMENT IN OS.36/1998 OF ADDITIONAL SUB COURT, ALAPPUZHA DATED 17-11-1999**
## **APPELLANT(S)/DEFENDANT:**
**-----------------------**
**M/S.UNITED INDIA INSURANCE COMPANY LTD., SARADA COMPLEX, MULLACKAL, ALAPPUZHA, REPRESENTED BY ITS BRANCH MANAGER.**
**BY ADV. ADV.SHEJI P.ABRAHAM**
**RESPONDENT(S)/PLAINTIFF: ------------------------**
**KERALA SPINNERS LTD., KOMALAPURAM, NORTH ARYAD P.O, ALAPPUZHA, REPRESENTED BY ITS CHIEF EXECUTIVE.**
**R, BY ADV. PRIYA MAHESH R1 BY ADV. SRI.B.DEEPAK R, BY ADV. SMT.PRIYA MANJOORAN**
**THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.01.2017, THE COURT ON 27.01.2017 DELIVERED THE FOLLOWING:**
# **V.CHITAMBARESH &**
# **SATHISH NINAN, JJ.**
## **==================== A.S. No.654 of 2000**
**==================== Dated this the 27[th] day of January, 2017**
## **J U D G M E N T**
## **SATHISH NINAN, J.**
The defeated defendant in a suit for recovery of money is the appellant.
2. The stock of raw materials, finished and semi finished goods of the plaintiff Company situated at various places including its premises at M/s.Malik Company, Salem, was insured by the plaintiff with the defendant, Insurance Company. The suit was filed on the refusal on the part of the defendant in settling the insurance claim made by the plaintiff alleging burglary at the premises referred to. Towards realisation of the debts due to Tamil Nadu Industrial Investment Corporation (for short “the Corporation”), the factory, M/s.Malik Company, was taken possession of by the Corporation on 04.03.1993. Subsequently, on 05.07.1993 on some
**A.S. No.654 of 2000**
-: 2 :-
settlement with the Corporation, the premises were handed over back to the plaintiff. Two days later, on 07.07.1993 an FIR was lodged alleging burglary at the premises of M/s.Malik Company during the period between 04.03.1993 and 05.07.1993, when the premises were in the possession of the corporation. The complaint was forwarded to the defendant company on 09.07.1993. The claim was repudiated by the defendant on 15.02.1995. Thereupon the plaintiff approached the Consumer Disputes Redressal Forum on 23.09.1996. Proceedings before the Consumer Redressal Forum was closed on 27.08.1997 relegating the plaintiff to the civil court since the issue involved relates to complicated questions of law and fact, and requires voluminous evidence. Thereupon, on 27.03.1998, the present suit was filed.
3. Heard the learned counsel for the appellant and the respondent.
4. Though a plea of limitation was raised, the learned counsel for the appellant has fairly submitted that the term 'court' has received a very wide
**A.S. No.654 of 2000**
## -: 3 :-
construction by the Apex Court in **Trans Mediterranian v. Universal Exports and Another** ([2011] 1O SCC 316) and hence the plaintiff could be entitled to claim exclusion of period under Section 14 of the Limitation Act. Even otherwise, admittedly the proceeding before the Consumer Forum was closed giving liberty to the plaintiff to approach the Civil Court. The defendant who was a party thereto is bound by the said order. Therefore, at any rate, the conclusion arrived at by the court below that the suit is filed within the period of limitation does not call for interference.
5. Learned counsel for the appellant/defendant would point out various circumstances which according to him would show that the claim for insurance made by the plaintiff is a foisted one without any _bona fides_ . The circumstances pointed out by the learned counsel are; from 04.03.1993 to 05.07.1993 the premises in question was under the possession of the Corporation. During the said period, i.e., on 19.05.1993, the respondent has enhanced the insurance coverage from Rs.4 lakhs to Rs.8
**A.S. No.654 of 2000**
-: 4 :-
lakhs. There was no necessity for enhancing the insurance coverage especially during the period when the premises was taken over by the Corporation for realisation of their dues. Possession of the premises was given back to plaintiff on 05.07.1993. Thereupon, the plaintiff had given Ext.B3 letter dated 05.07.1993 to the Corporation wherein it is stated that the premises has been got back possession of without any demur or damage. If any of the articles belonging to the company was lost and any loss had been caused to the respondent on account of the alleged burglary, Ext.B3 letter would not have been given by the respondent. Another circumstance projected is that, though the alleged burglary is stated to have taken place between 04.03.1993 and 05.07.1993, FIR was lodged only on 07.07.1993. The delay in making the claim would show that the claim lacks _bona fides_ and that it is a cooked up story. Relying on clause (3) in Ext.B1, it is also contended that there was a duty cast upon the respondent to take adequate protection of the premises at least by
**A.S. No.654 of 2000**
-: 5 :-
employing security personal which admittedly was not done. Hence there is violation of the policy conditions which exonerates the appellant from the liability.
6. The trump card of the appellant/defendant is Ext.B3 letter dated 05.07.1993 given by the respondent to the Corporation at the time of getting back possession of the Company from the Corporation. The argument is that, Ext.B3 letter was given by the plaintiff stating that the premises were taken back possession of in good condition and therefore the claim thereafter made by the plaintiff is unbelievable. It is pertinent to refer to the contents of Ext.B3:
“Ref. No.MC/PK/921/93 Date 5/7/93 THE MANAGER, TIIC SALEM. Dear Sir,
SUB:- TAKING POSSESSION - REG.
Today (5.7.93) I, Tiru.Mr.Bhagat Singh Malik Partner of M/s.Malik Company, have taken possession of our Unit with all machineries in good condition on payment of Rs.5.00 lakhs as per Court direction in W.M.Ps 10958 and 10959 of 1993 in W.P. No.6907 of 1993, which was under the possession of your corporation. I assure that I will not dispute anything regarding machinery.
**A.S. No.654 of 2000**
## -: 6 :-
Further, I assure that I will pay another Rs.5.00 lakhs as per Court Order and the balance thereafter.
Thanking you, Yours faithfully, For MALIK COMPANY, Sd/PARTNER”
As is evident therefrom, what is stated is that, all machineries have been got possession of by M/s.Malik Company in good condition and that no dispute will be raised regarding the machineries. Conspicuously, nothing has been stated regarding the raw materials, finished and semi-finished materials, and fabrics. As stated at the beginning, the insurance was for the stock of raw materials, finished and semi finished products of the respondent. Therefore, Ext.B3 letter is of no consequence and cannot be of any avail to the appellant.
7. Coming to the contention regarding enhancement of insurance coverage, it could not be disputed that at the time of enhancement, necessarily the surveyor of the appellant must have inspected the premises and satisfied himself regarding the stock available and it is only based on his proposal that insurance coverage would be
**A.S. No.654 of 2000**
-: 7 :-
increased. After having done so, it does not lie in the mouth of the appellant to contend that enhancement was made without any _bona fides._ So also, the claim made by the respondent is only for an amount Rs.5 lakhs and not for the enhanced amount of Rs.8 lakhs.
8. Coming to the contention regarding the delay in lodging FIR, it is to be noted that the respondent got possession of the premises from the Corporation only on 05.07.1993. The FIR has been lodged on 07.07.1993, i.e., immediately on getting back possession. There is only a gap of one day in between. Necessarily, on getting back possession from the corporation, some time would be required to ascertain regarding the stock etc. Hence it could not be said that there is any delay in lodging the FIR.
9. The next contention is that the premises was not adequately protected and it amounts to violation of clause (3) of Ext.B1 policy thus exonerating the appellant from the liability. Clause (3) of Ext.B1 policy states as follows:
**A.S. No.654 of 2000**
## -: 8 :-
“3. REASONABLE CARE: The insured shall take all reasonable steps to safeguard the property insured against any accident loss or damage and to secure all doors, windows and other openings.”
Therefore, all that is required is to take reasonable steps to safeguard the property and to secure all doors, windows and other openings. It is in evidence that the factory is surrounded by a compound wall and it was under lock and key. Therefore, it could not be said that there is any violation of the policy conditions. The repudiation of the claim by the appellant is unsustainable. We do not find any reason to disbelieve the claim made by the respondent. The judgment of the court below does not call for any interference.
In the result, the Appeal fails and is dismissed.
**==> picture [31 x 12] intentionally omitted <==**
## **V.CHITAMBARESH, JUDGE.**
Sd/-
## **SATHISH NINAN, JUDGE.**
Vsv
