Swagat Apparels vs NEW INDIA ASSURANCE CO LTD

THIS revision petition has been filed against the order dated 04.06.2009 passed by the learned State Consumer Disputes Redressal Commission, Maharashtra (in short, ''the State Commission'') in Appeal No. 1536/08 � The New India Assurance Co. Ltd. Vs. M/s. Swagat Apparels by which appeal filed by the OP/Respondent was allowed and order passed by the District Forum allowing complaint partly was dismissed.

BRIEF facts of the case are that the complainant/petitioner obtained insurance policy from the OP/respondent for its industrial unit. During subsistence of policy in December, 2004, complainant found that readymade shirts and cloth of Rs.2,96,000/- were missing from insured factory premises, therefore a report was lodged with the Police station and claim was preferred before the Respondent-Insurance Company. Respondent-Insurance Company got the claim investigated through its investigator and repudiated the claim. Hence, complaint was filed to claim Rs.2,96,000/-. OP/respondent filed written statement and alleged that no incident of burglary took place as per report of the investigator and further submitted that insured premises roof was found of Asbestos sheets against the declaration of RCC roof in the proposal form. It was further alleged that no evidence was given in support of stock of readymade garments at the insured place. Learned District Forum after hearing both the parties partly allowed the complaint to the extent of Rs.2,40,000/- and the learned State Commission vide impugned order set aside the order of the District Forum and dismissed the complaint.

HEARD learned Counsel for the parties and perused record.

THIS petition has been filed with a delay of 112 days. Application for condonation of delay was moved by the petitioner in which it was stated that petitioner being 74 years old was sick for more than a month and after he recovered from his sickness, other members of his family fell sick in quick succession, hence, could not go to Delhi to file revision petition. In support of his application he filed a photocopy of the medical certificate dated 30.11.2011 on 21.4.2012. In this medical certificate it has been mentioned that Mr. I.P. Saxena was under the treatment from August-October 2009 and was advised complete rest. No specific date has been given depicting that from which date of August, 2009 to which date of October, 2009 he was advised complete rest. On the contrary, in the application for condonation of delay, he mentioned that he was sick for more than a month and it cannot be inferred that he was sick for more than a month. Even if it is assumed that he was advised complete rest from August to October, 2009, the impugned order was made on 4.6.2009 and this petition was filed on 23.12.2009. No medical certificate of any family member has been filed by the petitioner. If he recovered in the first week of November, 2009, he should have filed petition immediately, but as the petition has been filed on 23.12.2009 and no reasonable or satisfactory explanation has been given for filing this petition with inordinate delay of 112 days, this petition is likely to be dismissed on the count of delay alone.

AS far merits of the case are concerned, learned counsel for the petitioner submitted that learned State Commission has committed error in setting aside the order of the District Forum as petitioner proved burglary in the insured premises as report was lodged with the police authorities immediately and police authorities submitted that offence was committed but goods were not recovered. Hence, the petition be allowed and order of the District Forum be restored. On the other hand, learned counsel for the respondent submitted that as the petitioner misrepresented the facts in the proposal form and failed to submit any record pertaining to stolen goods, stock register, bills, etc., learned State Commission has rightly dismissed the complaint.

IN the proposal form, the petitioner mentioned that walls, roof and floor of the insured premises were of RCC whereas as per investigator report roof was of Asbestos sheets which fact is also admitted by the learned Counsel for the petitioner. This is a clear cut misrepresentation of material fact and on account of misrepresentation of material fact respondent was right in repudiating the claim. As per investigator''s report, burglary itself is doubtful and merely because police authorities have mentioned that theft has been committed but without recovery, it cannot be presumed that burglary has been committed.

SO far as valuation of missing goods is concerned, the petitioner has neither filed any stock register nor bills of purchase of goods. As per report of M/s. Suresh Patel and Associates, Chartered Accountants stock register is not maintained. In the absence of stock register, bills or any other cogent evidence regarding valuation of alleged stolen goods, learned District Forum has committed error in awarding Rs.2,40,000/- to the petitioner and the learned State Commission has not committed any error in setting aside the order of the District Forum and dismissing complaint.

CONSEQUENTLY, the revision petition filled by the petitioner against the respondent is dismissed with no order as to costs.