S. Marimuthu, J. 1. The plaintiff is the appellant before this Court. The plaintiff-Partnership firm filed a suit in O.S. No. 71 of 1986 in the Court of the Principal Sub-Judge, Kochi for recovery of a sum of Rs. 22479.32 (a sum of Rs. 11058.21 towards the damage caused to the articles due to rain water and a sum of Rs. 942l.11 towards articles stolen). The two branches of the United India are the defendants- respondents. The case of the appellant-plaintiff in short would be that on the night of 7-4-1985 (Sunday) the roof tiles of the shop room was opened by the thieves and committed they of articles and through the said opening in the roof rain water entered the room on that night and it also caused damage to some of the articles. Therefore, the loss incurred by the appellant due 10 the theft and due to the damage caused by the rain water was to the extent of Rs. 37243.27 for which on the next day namely 8-4-1985 the appellant made a claim to the Insurance Company. However a proper compromise could not be arrived at. Therefore, for the abovesaid sum of Rs. 22479.32 the appellant filed the suit limiting the claim already made to the insurance company. The suit was resisted by the respondent-insurance company. In the trial Court Exts. Al to A22 and Ext. Bl were marked. One of the partners of the plaintiff by name Judge Lesley was examined as P.W. 2 and the surveyor of the respondent was examined as P.W. 1. The appellant had insured the entire shop room as well as the entire articles kept in the shop room with the respondents fire, burglary and house breaking policies. They have been marked as Exts. A2 and A3. The trial Court on examining the evidence decreed the suit for a sum of Rs. 15801.33 with 6% interest per annum, that is to say Rs. 8553.77 towards the price of the articles stolen and Rs. 7281.63 towards the damage caused to the articles due to rain water. So questioning the above decree and judgment of the trial Court the plaintiff as appellant filed A.S. No. 122 of 1988 before the 4th Additional District Judge, Ernakulam. The defendant also filed cross-objection questioning the decree passed by the trial Court to a sum of Rs. 7281.63 towards damage caused to the articles due to the rain. The first appellate Court on considering the evidence allowed the cross-objection filed by the defendants respondents-questioning the decree of the trial Court to the sum of Rs. 7281.63 and granted the decree in favour of the appellant to a sum of Rs. 8519.70 towards in the loss caused to the articles stolen. Questioning the above judgment of the first appellate Court, the plaintiff as appellant has come forward with this appeal. When the appeal was taken up for hearing the learned counsel appearing for the appellant submitted that he is not challenging the decree of the first appellate Court granted for a sum of Rs. 8519.70 towards the loss of the articles stolen. Regarding this submission of the learned counsel appearing for the appellant for the abovesaid amount towards the value of the articles stolen, the learned counsel appearing for the respondents has also no objection. Therefore, now the short point is with reference to the claim of Rs. 7281.63. According to the appellant it is said to be the loss caused to the articles due to the rain water which entered through into the holes in the broken tiles of the roof. To put it in detail, on the night of 7-4-85, the burglar, by breaking open the tiles of the shop room entered into it and committed the theft of the articles and through the same passage namely the holes in the tiles during the commission of the offence or sometimes later after the commission of the theft in the same night the rain water entered into the room and damaged the articles. Therefore, according to the learned counsel appearing for the appellant, the commission cf the burglary is a direct cause for the entering of the rain water into the shop and then causing damage to the articles to the tune of Rs. 7281.63. Hence that amount is also to be paid by the insurance company as per the terms and conditions of the policy. On the other hand, the learned counsel appearing for the respondents submitted that there is no reliable and acceptable evidence on the side of the appellant that the damage of the articles by rain water is directly connected with the theft committed in the night of 7-4-85. It is only a consequential loss and, therefore, the insurance company is not liable to compensate the same. In support of this argument he mainly relies upon the following exceptions and conditions in Ext. A3 policy :
"1. The Company shall not be liable in respect of:
2. As pointed out above, a claim petition was filed on the next day itself namely, 8-4-85. The survey or of the respondent has been examined as PW-1 and his report has been marked as Ext. B1. Ext. Bl would disclose that the surveyor has visited the shop room on 8-4-85 as well as in the evening of 9-4-85. PW-2 has opened the shop room at 9 a.m. on 8-4-85 as borne out in his evidence. There is nothing on record to show or in support of the submission of the learned counsel for the respondents that after the night of 7-4-83 there was rain either on 8-4-85 (day time) or on 9-4-85. The evidence of PWs. I and 2 would evince that there was heavy rain on the night of 7-4-85 and 8-4-85. In this context the argument of the learned counsel appearing for the respondents that no reliable evidence such as some documents from concerned authorities have been produced by the appellant to show that there was a heavy rain on the night of 7-4-85, in my view, does not sound to reason. In acase of this nature, I feel, the probability which comes out in the evidences of PWs. 1 and 2 and the report of P. W. 1 marked as Ext. Bl is sufficient to record a satisfactory finding. In Ext. B1 in more than three places the surveyor of the respondent has stated that the reapers and the tiles of the room were found broken and through the broken opening rain water has entered into the room and damaged the articles. The surveyor as P.W. 1 also supports his statement in Ext. Bl. In view of the above clinching evidence and surrounding circumstances, I find no difficulty in coming to a conclusion that the commission of the theft by breaking up the tiles and the reapers is a direct cause for the rain water entering into the room and damaging the articles to the tune of Rupees 7281.63. The damage caused to the articles due to rain was assessed by the surveyor in Ext. Bl for Rs. 7281.63. A perusal of this assessment seems to be proper.
3. On account of the above evidences and circumstances of this case, I do not find any sound reason in the judgment of the first appellate Court in rejecting the claim of the appellant for the damage caused to the articles due to rain. Therefore, the claim of the appellant to the tune of Rs. 7281.63 has to be allowed. Thus the point is answered in favour of the appellant and against the respondents. In the result, the judgment and decree of the first appellate Court reversing the decree of the trial Court for a sum of Rs. 7281.63 are set aside and the original decree of the trial Court in respect of the same amount is restored. Consequently, the decree and judgment of the trial Court for a sum of Rs. 15801.93 ps. are restored.