By Jayasree Kallat, Member:

            The complainant is running a Jewellery shop at Kodencheri for the past 22 years.  His main business is the repair of old gold ornaments.  The complainant had availed a loan of Rs.1,00,000/- from South Malabar Gramin Bank on 11-7-02.  At the time of sanctioning the loan his establishment was insured by the opposite party for a sum of Rs.1,20,000/-.  The time limit for protection of insurance was until 22-11-2003.  The case of the complainant is that on 11-1-2003 at night a theft occurred in the jewellery shop and he had lost 300 gms. of gold along with an amount of Rs.27000/-.  The complainant immediately reported about the theft before Kodencheri Police.  Even though the Police had investigated the Crime they could not find the culprits.  The complainant had to buy gold in order to make gold ornaments to return back to those persons who had entrusted their old gold with the complainant.  The theft had occurred during the time when the complainant’s shop had a valid insurance policy.  Hence the complainant had approached the opposite party for indemnifying the loss occurred to him.  Complainant had bought new gold at his expense and made ornaments to give back to the persons who had entrusted old gold with him.  Complainant had substituted the gold to the persons who had entrusted to repair the ornaments and had obtained receipts from those persons.  Complainant had approached the opposite party to claim the lost amount as per policy conditions.  Complainant states that opposite party had stated that the complainant had lost only 52 gms of gold so they can compensate only to that extent.  The complainant was not ready to settle the matter for 52 gms of gold.  Complainant further states that opposite party had failed to indemnify the loss sustained to him even though the theft had occurred during the valid policy time limit.  Hence this complaint.

            Opposite party filed a version denying all the averments and contentions in the complaint except those that are specifically admitted.  Opposite party admits the fact that the complainant’s shop was insured with the opposite party for the period of one year from 23-11-02 to 22-11-03.  On 11-1-03 an attempt of burglary happened in the complainant’s shop, which is established from the F.I.R. No.5/2003 of Kodencheri Police.  The complainant is reporting the loss of 300 gms of gold and an amount of Rs.27000/- the complainant has not produced any evidence or accounts to prove his claim for the purpose of assessing the actual loss.  The opposite party is not in a position to compensate without assessing the actual loss.  There is only oral testimony of the complainant.  The opposite party had appointed a qualified surveyor to assess the loss.  The surveyor has filed a report stating that it is not possible to assess the loss as the insured has not produced any records to prove the extend of loss.  All these facts were intimated to the complainant.  Opposite party denies the contentions in Para-4 and 5 of the complaint.  Opposite party has no liability to pay compensation as claimed in the complaint, since no loss is established by the complainant.  Opposite party prays to dismiss the petition.

            The only point for consideration is whether the complainant is entitled to get any relief?

            PWs 1 to 8 were examined and Exts.A1 toA9 were marked on complainant’s side.  RW1 and RW2  were examined and Ext.B1 to B4 were marked on opposite party’s side.

            The case of the complainant is that he was running a jewellery shop at Kodenchery for the past 22 years.  His main business was repairing of old gold ornaments.  He had taken a loan of Rs.1,00,000/- from South Malabar Gramin bank, Kannoth Brnach on 11-7-02.  At the time of sanctioning the loan this shop was insured by the opposite party for a sum of Rs.1,20,000/-.  The policy extended upto 22-11-03.  During the policy period on 11-1-03 at night a theft occurred in the complainant’s shop.  According to the complainant he had lost 300 gm of gold along with a sum of Rs.27000/-, which was kept in the shop.  The complainant immediately filed a complaint before Kodencheri Police.  Even though police investigated they could not find out the culprits.  The complainant had approached the opposite party claiming for the loss sustained by him as he had a valid insurance policy during the time of theft.  The opposite party had appointed a surveyor to assess the loss.  As the loss assessor filed a report stating that it is not possible to assess the loss as the insured has not produced any records to prove the extend of the loss.   Ext.B2 surveyor’s report states that insured has not produced any records to assess the extent of loss.  Ext.B3 also states that as the insured was not in the habit of documentation of transaction, quantum of loss could not be ascertained.  Opposite party denies the fact that the complainant had substituted gold ornaments entrusted to him and given newly made ornaments to those persons.  The complainant has not informed the opposite party about these facts.  As per the terms and conditions of the Shop Keepers Insurance Policy that is Ext.B4, Point-5- Claims procedure (iii) “ The insured shall upon the occurrence of any event giving rise or likely to give rise to a claim under the policy, given immediate notice thereof to the Company and shall forward to the Company forthwith every written notice or information of any verbal notice of claim and shall send to the Company any writ, summons or other legal process issued or commenced against the insured and shall give all necessary information and assistance to enable written consent of the Company and shall not negotiate, pay, settle, admit or repudiate any claim without such consent.”  Here the complainant failed to produce the evidence regarding the actual loss.  He had given contradictory statements in the F.I.R., in the complaint and in deposition.  The complainant states in the F.I.R. the items lost as Finger Ring, Bangles and Ear rings.  In the complaint filed before the Forum he has only stated 300gm of gold without actual description.  PWs2 to 7 also gave contradictory statements.  In the deposition of PW1, Page-3 he has stated that “

From this it is very clear that the complainant does not have any stock register or any proper accounting.  Hence in this case we can accept the version of opposite party that as there is no proper and actual loss assessment done the opposite party cannot indemnify as claimed by the complainant.  The complainant had produced witnesses to show that all these witnesses had entrusted old gold with the complainant.  According to the complainant he had substituted new gold made ornaments and given to these persons.  From the depositions the court had found certain contradictory statements.  Hence we do not take into account these statements.  The opposite party’s contention that the complainant if at all had compensated to those persons who had entrusted gold with him, the complainant had taken matters into his hands without informing the opposite party without proper accounts and proof is found to be correct.  The opposite party cannot sanction the claim amount to the complainant.  Hence we are of the opinion that the complainant is not entitled for any relief.

            In the result the petition is dismissed.

Pronounced in the open court this the 1st day of December 2008.

                                 Sd/-                                              Sd/-

                        PRESIDENT                                      MEMBER

APPENDIX

Documents exhibited for the complainant.

A1.  Policy schedule.

A2.  Photocopy of F.I.R.

A3.  Photocopy of site Mahazar.

A4 series ( 6 in Nos.) Photocopy of receipts.

A5.  Letter dt. 22-10-03.

A6.  Photocopy of Regd. Notice dt. 17-12-2003.

A7.  Letter dt. 30-12-03.

A8.  Account Books.

A9.  Letter from the Branch Manager of O.P.

Documents exhibited for the opposite party.

B1.  Photographs.

B2.  Photocopy of Survey report dt. 9-7-03.

B3.  Photocopy of report of Haridasan Nair, Former Dy. Supdt. of Police, CBI.

B4.  Shopkeeper’s Insurance Policy.

Witness examined for the complainant:

PW1.  T.V. Grorge (Complainant)

PW2.  P.A. Joseph, Elavamkal, Kodenchery.

PW3.  Georgekutty, Chandrel Kunnel, Kodenchery.

PW4.  A.J. Chacko, Arackal, Kodenchery.

PW5.  K.V. Suresh, Kazhamathil House, Kodenchery.

PW6.  K.M. Benny, Kelamkunnal House, Kodenchery.

PW7.  K.M. Sebastian, Vellappallil, Kodenchery.

PW8.  Jayaprakash, Thayat House, Kodenchery.

Witness examined for the opposite party.

RW1.  Santhi Aravindan, Aman, Panniyankara, Kozhikode.

RW2.  Haridanan Nair, Haritham, Florican Road, P.O. Karaparamba, Calicut-10.

                                                                        Sd/- President

                                    // True copy //

                                    (Forwarded/By order)

                                                                        SENIOR SUPERINTENDENT.