- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.873 OF 2005 IN SUMMARY SUIT NO.2661 OF 1984 ... M/s.Hasmukhrai Chandrakant ..Appellant v/s. The Oeiental Fire and General Insurance Co.Ltd. ..Respondent WITH APPEAL NO.874 OF 2005 IN SUIT NO.2374 OF 1984 ... M/s.Manilal Commodities Pvt.Ltd. ..Appellant v/s. The Oriental Fire and General - 2 - Insurance Co.Ltd. ...Respondent ... Mr.M.S.Sanghavi with Mr.Mahesh Shukla i/b Desai & Diwanji for the Appellant. Mr.Sunil Chavan i/b M.V.Kini & Co. for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 25TH MARCH, 2009 P.C.: 1. These two appeals challenge the common order passed by the learned single Judge dated 4th August, 2005 in Suit No.2661 of 1984 and Suit No.2374 of 1984. Therefore, both these appeals can be conveniently disposed of by a common order. 2. The Appellants in these Appeals are original Plaintiffs who have filed suits against the Insurance Co. for recovery of certain amount, which was the amount claimed under Insurance Policies taken out by - 3 - the Plaintiffs in relation to the material that was imported by the firms and was lying in the premises of the Bombay Port Trust. According to the Plaintiffs, the material was stolen from the premises of the Port Trust. Insurance policies taken out by the Plaintiffs insured them against the theft and therefore, they were entitled to claim amounts under the insurance policies for the property that was lost. The learned single Judge has dismissed both the suits. 3. The relevant facts are that admittedly the Plaintiffs imported material which was in drums and it was stored on the premises of the Bombay Port Trust and could not be cleared because of pendency of some investigation. Therefore, the Plaintiffs approached the Insurance company for insuring those goods. They submitted a proposal. That proposal was accepted and the Insurance Company issued a cover note. When the Plaintiffs found, at the time of taking delivery from the authority, that the material was short delivered, they lodged a claim. The Insurance company declined to make payment. Therefore, the suits were filed by the Plaintiffs claiming the amount under the insurance policies. - 4 - The Defendants-insurance company appeared and denied the claim. On the basis of the rival pleadings following issues were framed in Suit No.2261 of 1984. I S S U E S 1. Whether the Plaintiff proves that it is entitled to recover from the Defendants a sum of Rs.18,70,322.42 with further interest on Rs.15,85,019/- at the rate of 18% p.a. from the date of the suit till payment and or relisation, being the amount of insurance payable to the Plaintiff? 2. Whether the Plaintiff proves that the insurance contract was complete and that the said contract did not contain the said watchman warranty? 3. If the aforesaid Issue No.2 is answered in negative, then whether the Defendants prove that the said watchman warranty required the Plaintiff to appoint private security guards? - 5 - 4. If the issue No.2 is answered in the negative, then whether the Defendants prove that private watchman were allowed to be kept by the B.P.T. authorities during the third shift i.e. from 11.30 p.m. to 8.30 a.m.? 5. If the above Issue No.2 is answered in negative, then whether the Defendants prove that the Plaintiff had fundamentally breached the said watchman warranty clause of the Insurance Policy by not keeping its own private watchman during the third shift i.e. from 11.30 p.m. till 8.30 a.m., thereby entitling the Defendants not to pay the Plaintiffs in part or at all? 6. Whether the Plaintiff proves that the said watchman warranty clause is inconsistent with the object of the contract and it void? 7. If the Issue No.2 is answered in negatives, whether the Plaintiff proves that the said clause would not be applicable for the reasons as set out in para 8 of the plaint? - 6 - 8. Whether the Defendants prove that the Plaintiff’s claim is barred by the law of limitation? 9. What order? Issues were framed in other suit being Suit No.2374 of 1984 and they were identical except to the extent of quantity and claim amount. Oral and documentary evidence was led by the parties. The learned single Judge decided both the suits by common order dated 4th August, 2005. The learned single Judge has held that the Plaintiffs are not entitled to receive the amounts under the insurance policies, because they have failed to abide by conditions mentioned in the insurance policy and undertaking contained in the proposal submitted by the Plaintiffs that they will protect the property. They have not protected the property, because admittedly they have not kept watchman for protecting the property from 11.30 p.m. to 8.30 a.m. Both Plaintiffs, therefore, are in appeal against the common order of the learned single Judge. - 7 - 4. The learned Counsel appearing for the Appellants, firstly, submitted that the goods were lost because of theft. Insurance policy does not apply to the theft. It applies only to burglary and house breaking. The learned Counsel further submitted that even assuming that the policy apply then also in the present case the terms of the warranty has been complied with in asmuch as, it is clear from the report submitted by the surveyor that property was lost not after over powering of the watchman. The learned Counsel further submitted that the statement made in the proposal that the Plaintiff will employ two men for the day and two men for the night time does not apply to loss of goods because of theft. 5. We have also heard the learned Counsel appearing for the Respondent. We must note that the judgment of the learned single Judge impugned in the appeal is a well considered judgment. It is not the complaint even of the Appellants that any relevant material has been excluded from consideration by the learned single Judge. We find that the learned single Judge has rightly relied on the statements made in the proposal submitted by the Appellants for taking policy. In the proposal for taking the policy, there - 8 - was a clear statement made on behalf of the Appellants that they have employed two men for day time and two men for night time. Under this condition the Appellants were to keep their watchmen in the night time also. The learned single Judge rightly rejected the submission on behalf of the Plaintiffs that according to policy decision of the Port Trust the watchmen of the owners of the consignments were not permitted after 11.30 p.m. It is an admitted position that the Plaintiffs have not produced a single document which will show that it was the policy decision of the Port Trust at the relevant time not to permit a watchman of the private party after 11.30 p.m. The Bombay Port Trust is a statutory body, obviously, therefore, the decision having such wide impact will be in writing. Really speaking, therefore, any oral evidence to prove the fact which is capable of being proved by the document was not admissible. Thus, if we agree with the learned single Judge that the Appellants have failed to prove that the Appellants could not have employed their watchmen throughout the night, then in our opinion, it is clear that the Appellants had failed to abide by the statements that they have made while taking the policy. It is further to be seen here - 9 - that in the policy there is a condition, namely: "6. The Insured shall exercise reasonable care in the selection and supervision of employees and shall take all reasonable precautions to safeguard the property insured and to secure all doors, windows and other openings. Therefore, the Appellants were under a duty to take all precautions to guard the property. In this regard it is to be seen that though there were watchmen for guarding the property, they did not even know the point of time when the drums were stolen. 6. Taking overall view of the matter, therefore, in our opinion, no exception can be taken to the common order passed by the learned single Judge. Appeals, therefore, fail and are dismissed. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)