ASIM HAFEEZ, J.---Through instant appeal, the appellant has assailed judgment dated 04.11.2015 by learned Additional District Judge-I in exercise of powers of Insurance Tribunal, Punjab, Lahore, whereby the claim raised by the appellant, under Burglary and House Breaking endorsement, forming part of the Fire Policy , was rejected.
2. The facts of the case are straightforward. The appellant acquired fire policy , which inter alia included burglary and housebreaking endorsement. It was the case of the appellant that as a result of alleged theft of electronic items from the premises covered under the insurance Policy , a loss of Rs,87,59,573/- was occasioned, to be paid by the respondent company in terms of the policy . The appellant also filed complaint, which led to registration of FIR No,401 of 2009, dated 12.07.2009. And the factum of theft was intimated to the respondent company , which appointed surveyors to access cause and quantum of loss. The surveyors submitted negative report, disentitling the appellant from claiming indemnification, as the alleged theft was not covered under the ambit of burglary and house breaking endorsement of the policy. Consequently , appellant's claim was repudiated vide letter dated 13.11.2009. Aggrieved, the appellant invoked the jurisdiction of Insurance Tribunal. Upon the pleadings of the parties, issues were framed and the parties led evidence respectively . After conclusion of evidence, the Tribunal heard the parties and rejected the claim Vi. Upon rejection of the claim by the Tribunal, instant appeal was filed under section 124(2) of the Insurance Ordinance, 2000.
3.Learned counsel for the appellant submits that theft committed by the culprits on 12.07.2009 through as result of forcible and violent entry into the premises, which was squarely covered under the policy . Per learned counsel, evidence was led to establish the factum of forcible and violent entry into the insur ed premises. The appellant was entitled to be indemnified accordingly , which was denied by the Insurance Tribunal upon failing to appreciate the record and the evidence adduced.
4.Learned counsel for the respondent company controverted the submissions made by the appellant and supported the rejection of the claim by the Insurance Tribunal, as theft committed was neither forcible nor violent, hence, no entitlement could be claimed by the appellant. Reliance is placed on Judgment by Supreme Court of India in a case reported as United Insurance Co. Ltd v . Harchand Rai Chandan Lal (Appeal (Civil) 6277 of 20014).
5.With the assistance of learned counsel, available record is perused.
6.The heart of the controversy is that whether theft committed on 12.07.2009 was a result of actual forcible and violent entry/access to the premises in question. In terms of the relevant clause in the burglary and housebreaking endorsement, forming part of the Fire Policy , only theft committed by gaining forcible and violent entry into the premises is covered under the policy , ibid. In the light of the pleadings, the court framed issues, out of which issue No,1 is relevant, which is reproduced hereunder; Issue No,1 "Whether the petitioner is entitled to recover Rs,8,759,573/- in respect of Insurance claim along with the liquidated damages? OPP
7. In order to resolve the controversy involved, it is expedient to reproduce the relevant clause of burglary and house breaking endorsement in the Fire policy , which reads as under: "The property insured or any part thereof described and included in the Schedule hereto whilst contained in the Premises described in the said Schedule shall be lost, by theft consequent upon actual forcible and violent entry upon the said premises or committed by any person or persons (other than employees) feloniously concealed thereon".
8. The onus was on the appellant to prove that incident of theft happened consequ ent to actual forcible and violent entry in the premises by the culprits and relevant facts thereto. The appellant appeared as its own witness and produced Mirza Khan as (AW-2), who was the eye witness of the incident. The evidence of Mirza Khan would make or break the case. It is worth noting that FIR was registered upon the complaint of the appellant and not on the information of Mirza Khan. AW-2 who was identified as Security Guard and had recorded statement before the police in challan proceedings, who also appeared as witness in this case and was cross-examined. Cumulative reading of the narration of events by AW-2, would unequivocally establish that no forcible or violent entry was gained by the culprits but their entry into the premises was facilitated by AW-2, who treated them as potential customers and showed the goods place d therein. The contention regarding overpowering of AW-2 and putting pistol on his head stood belied from the statement given before the police, as appe aring in the Exhibit R/1 -- police Zimmni . The apparent contradictions in the statements of AW-2 discredit his evidence. During cross-examination AW-2 stated that 'besides me there is another guard performing duty in the bazar' which witness was not produced to prove forcible and violent entry in the premises. That failure to produce best evidence would lead to adverse inference in terms of illustration (g) of Article 129 of Qanun-e-Shahadat Order , 1984. Except the alleged beneficiary of the insurance claim no independent witness was produced to establish the factum of forcible and violent entry into the premises, which constituted a condition precedent for attracting indemnification clause in the burglary and housebreaking endorsement policy . The evidence of Mirza Khan (AW2) established clear variation in the facts, alleged which denudes his testimony of any credence. The appellant has failed to discharge onus, hence, issue No,1 was correctly decided against the appellant, who was not entitled to be indemnified by the respondent company upon its failing to establish forcible and violent entry/access into the premises. The incident of theft cannot be termed as unlawful breaking into the premises, as unlawful breaking by use of force and violence was subject to be indemnified under the terms of the policy .
9. The judgment impugned has been thoroughly examined wherein entire evidence was elaborately discussed. No case of misreading or non-reading of the evidence is made out by the appellants. There is no misapplication of law .
10. In view of the above, appeal under reference is without merit and the same is, therefore, dismissed.