w w w . L a w y e r S e r v i c e s . i n



B.A. Shah & Bros. v/s National Insurance Co. Ltd.


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- A G BROS LIMITED [Strike Off] CIN = U51420DL1997PLC089031

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- A C BROS PRIVATE LIMITED [Strike Off] CIN = U17113UP1983PTC006031

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- S K BROS PRIVATE LIMITED [Strike Off] CIN = U99999MH1960PTC011621

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- J V D BROS PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071739

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    First Appeal No. 1845 of 2019

    Decided On, 13 September 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER

    For the Appellant: S.M. Tripathi, Advocate. For the Respondent: ---------



Judgment Text

1. The present appeal has been filed against the order dated 31.07.2019 of the Maharashtra State Commission in Complaint No. 103/2000 filed by the Appellant.2. The brief history of the case is that the Appellant has filed a complaint for burglary in his shop in Zaveri Bazar, Mumbai on 1.12.1994. His articles in the shop were secured by way of Insurance Policy which was valid for the period 06.04.1994 to 05.04.1995. A theft occurred in his shop and certain ornaments were stolen from his shop. He lodged an FIR. He also sent intimation to the insurer. The Respondent appointed a surveyor. Surveyor submitted his report and thereafter claim was submitted by the Appellant. The claim of the Appellant was repudiated on 22.03.1999. Thereafter, the Appellant filed a consumer complaint No. 103 / 2000 claiming a sum of Rs.19,53,760/- as loss suffered by him. He also claimed interest @18% p.a. with effect from 01.07.1996 till realization.

3. The complaint was contested by the Respondent. It was not disputed that articles in the shop of the Appellant were insured, incident of theft had taken place during the validity period of Policy, FIR was lodged, they were intimated in time, surveyor was appointed and submitted its report, submission of claim by the complainant and that it was repudiated by them. Their contention was that there was breach of condition of the policy. There was no 24-hour watchman deputed on the shop and that the goods were not secured in a safe, which was a pre-requisite condition of the policy.

4. Vide order dated 27.08.2010, the complaint was dismissed. The Appellant impugned the said order before this Commission vide FA No. 353 / 2011. Vide order dated 27.06.2016, this Commission remanded the matter back to the State Commission. Thereafter State Commission decided the complaint vide order dated 28.09.2017. Vide this order, the State Commission allowed the complaint. The Respondent challenged the said order before this Commission in Appeal No. 2366/2017. Vide order dated 19.07.2018, this Commission had again remanded the matter to the State Commission for fresh decision. Thereafter, the order dated 31.07.2019 is passed by the State Commission whereby the complaint was dismissed. This order is impugned before this Commission.

5. It is submitted that the only issue on which the matter was remanded twice to the State Commission was related to the nature of cupboard in which ornaments were secured. It is argued that the cupboard was specially reinforced steel cupboard of 16 gauge with 10 lever double locks and it is submitted that this cupboard was in fact a safe and, therefore, the repudiation of the claim on this count was a deficiency in service on the part of the Respondent.

6. I have heard the learned counsel for the Appellant at length and have perused the relevant record.

7. From the record it is apparent that against the first order dated 27.08.2010, whereby the complaint of the Appellant was dismissed, he filed an Appeal before this Commission. This Commission while remanding the matter, issued some directions. The relevant directions are reproduced herein:

“One of the issues which came up for consideration during the course of arguments was as to whether the cupboard which the appellant had got installed from M/s Venus Steel Products (India) and from which the jewellery etc. was stolen, was as good as a safe or not. Though a certificate purporting to be issued by Venus Steel Products (India) was produced by the appellant, no one from the aforesaid firm was examined to prove the certificate. No affidavit of anyone from Venus Steel Products (India) was filed to prove the aforesaid certificate dated 22.04.1996. In my opinion, it would only be appropriate to give an opportunity to the appellant to prove the aforesaid certificate in accordance with law with an opportunity to respondent to rebut the same by producing expert evidence before the State Commission to prove that the aforesaid cupboard was not as good as a safe. The impugned order is accordingly set aside and the matter is remitted back to the State Commission for deciding the same afresh after recording such evidence as the complainant/appellant may produce to prove that the aforesaid cupboard from which the theft was committed was as good as a safe as well as the evidence which the respondent may like to produce to rebut the evidence produced by the appellant in this regard.”

8. On remand the State Commission passed the order dated 28.09.2017, whereby allowing the complaint. In Appeal, FA No. 2366 / 2017, filed by the Respondent, this Commission after quoting its earlier directions given vide order dated 27.06.2016, again remanded the matter and directed as under:

“2. Despite an opportunity given for this purpose, the complainants neither filed any affidavit from M/s Venus Steel Products (India) nor did they examine anyone from the aforesaid firm to prove the certificate issued by the said firm on 22.04.1996. The State Commission also did not summon the partner of M/s Venus Steel Products (India) to examine him in respect of the above said certificate. In my view, it would be necessary to examine the partner of M/s Venus Steel Products (India), in respect of the certificate dated 22.04.1996 in order to find out whether the cupboard which the complainant had purchased and got installed in its premises, could be said to be a safe or not. The impugned order is therefore, set aside and the matter is remitted back to the State Commission with a direction to summon the partner of M/s Venus Steel Products (India) and examine him with respect to the certificate dated 22.04.1996 in order to record a finding as to whether the cupboard which the complainant had purchased from them and installed in its premises was a safe or not. Both the parties shall be given opportunity to cross-examine the partner of M/s Venus Steel Products (India). The State Commission shall decide the complaint afresh in the light of the deposition of the said witness. The parties are directed to appear before the concerned State Commission on 29.08.2018. The State Commission is directed to decide the matter afresh within three months of the parties appearing before it.”

9. Burden was, therefore, upon the Appellant to summon the partner of M/s. Venus Steel Products (India) and examine him in order to prove the certificate issued by it on 22.04.1996. From the impugned order, it is apparent that no such witnesses to prove this certificate had been produced by the Appellant. It is argued that the person who had executed that certificate had since expired so the Appellant could not produce him. It is not in dispute that M/s. Venus Steel Products (India) is a partnership firm and there are other partners also and the Appellant could have easily summon any other person who was conversant with the signatures of the person who had issued the certificate dated 22.04.1996. Twice this Commission had given the opportunity to the Appellant to prove the said document and despite that no cogent evidence has been produced by the Appellant to prove on record that the cupboard, in which he kept his articles, was in fact a safe. Even in his complaint he has nowhere stated that cupboard was a safe.

10. I have also perused the certificate dated 22.04.1996 of M/s Venus Steel Products (India) and it is reproduced herein:

“TO WHOM SO IT MAY CONCERN

This is to confirm that a safe-cum-locker has been examined by us today in the

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Premises of M/s. B.A. Shah & Bros., 76 Zaveri Bazar, Bombay – 400002 is of our maker. The above locker is made of 16 gauge steel plate with 10 lever lock with double keys compared to 20 gauge lever with single key locking system of standard make of Godrej and other make cupboard. Hence this type of specially made locker-cum-safe is as good as safe.” 11. The Company to whom this cupboard belongs also does not state that this cupboard is a safe but only say that it is “as good as safe” and the appellant despite being given ample opportunities failed to prove that the cupboard was in fact a safe and not ‘as good as safe.’ This conclusively proves that the articles were not kept in a safe which was the pre-requisite of the Policy. In view of this, the present appeal has no merit and the same is hereby dismissed in limine.
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