A. P. SAHI, J (PRESIDENT)

The Complainant runs a Jewellery concern in the name of M/s Choith Ram & Sons at Beadon Pura, Karol Bagh, New Delhi. The premises of the aforesaid establishment, according to the Complainant is spread over property no.2745/22 and 2749/22. According to the Complainant, the entire establishment which is a compact unit is located on the aforesaid municipal numbers.

2. For the purpose of running their business, the proprietorship firm entered into a cash credit agreement on 05.11.2005 with the Opposite Party No.2 Canara Bank. The description in the agreement indicates the registered office at 2745/22 Beadon Pura, Karol Bagh, New Delhi.  This agreement is Annexure C4 to the Complaint. Annexure C5 is the sanction of the cash credit limit dated 16.11.2005 where the hypothecation of stocks in trade and the cash credit limit is of Rs.50 lakhs. As a collateral security the Complainant tendered four different sale deeds in respect of property no.2745/22 area 411.5 sq.ft. Additionally, the property situate over plot no.2749/22, measuring 100&110 sq.ft, respectively was also offered as collateral security. The plant and machinery fixed at the shop for manufacturing purposes was also hypothecated coupled with other properties and personal guaranties reflecting a consolidated establishment.
3. The stock statements that have been filed along with the complaint indicate the description of property no.2745/22 but reflect the collateral security of property no.2749/22 as well in the loan sanction papers.
4. The stock inspection report mentions the address of the godown as property no.2749/22.
5.  According to the Complainant, it is these stocks which were hypothecated, including the collateral securities of the properties referred to above and in order to secure the same, the Complainants were also obliged to protect the interest of the Bank by acquiring an insurance policy. The Complainant acquired the insurance policy through the Respondent No.2 Bank that was continuing since 2005.
6. The policy with the United India Insurance Co., the Respondent No.1 herein, for the year 2008-2009 has been filed on record which refers to the address of the premises as property no.2749/22 Beadon Pura, Karol Bagh. The policy which governs the present dispute has been filed by the Complainants as Annexure C72  (pg 213) which is a Jeweller’s Block Policy for the period 19.11.2011 to 18.11.2012. This policy also refers to the address of the firm at 2749/22 Beadon Pura, Karol Bagh, New Delhi.
7. The description in Section 1 of the policy regarding the property insured are the stocks and stock in trade consisting of jewellery, gold or silver ornaments, plate pearls and precious stones of any sort or kind whatsoever, cash and currency notes and or other merchandise and materials required to conduct the Insured’s business, belonging to or held in trust or on commission for which the insured is responsible. The Insured property under Section 1 are the jewellery/gold exclusively displayed in windows for a sum of Rs.78 lakhs.
8. There is no property insured referred to in Section II or Section III.
9. Section IV mentions the insured property as furniture, fixtures, fittings at business premises including safes and safes at residences  for a sum of Rs.8 lakhs only.
10. Thus the insurance coverage in respect of the stocks is confined only to the items in display windows which include jewellery, gold or silver ornaments, plate, pearls and precious stones as described above in Section 1.
11. The Complainants came up with a case that when one of its employees Mr. Shyam Sharma opened the shop on 22.05.2012 and put on the electric switch, a huge explosion took place damaging the basement and the lower portion of the shop and injuring a couple of persons. The incident was immediately reported at the Karol Bagh Police Station, Central Delhi and an FIR under Section 285/336/337 was registered. A copy of the said FIR dated 22.05.2012 regarding the incident has been filed as Annexure C112. It also states that the portion of the building damaged was fully described and the debris was spread over to lane no.21 and 22. The FIR also indicates that one Mr.Ghanshyam Khandelwal and Ms.Radha Rani were reported to have been injured in the said explosion that was probably caused on account of the gas cylinders having leaked as the shop was closed for the past two days. The explosion was therefore reported by the Police to have taken due to the electrical switch having been operated by the worker Mr. Shayam Sharma that in all probability activated the explosion possibly having come in to contact with the leaked gas in the premises.
12. The incident was also reported to the Insurance Co. who appointed a surveyor namely M/s S. Soni & Co. who conducted the survey on 24.05.2012 and submitted a report on 22.06.2012 which has been filed on record as Annexure C118.
13. Thereafter certain communications did take place between the surveyor and the Insurance Co. but the claim was repudiated by the Insurance Co. vide letter dated 08.08.2012.
14. The Complainant alleges that it made all efforts to get the claim settled but of no avail as such they filed the present complaint alleging deficiency against the Insurance Co. on 13.01.2014.
15. Thereafter, pleadings were exchanged and the evidence was filed and the case was listed on several occasions when a doubt was expressed with regard to the correct status of the premises and its address. Accordingly orders were passed calling upon the Insurance Co. to produce the original proposal form of the policy for perusal by the Commission. This was necessary in order to locate the address and connect it with the Insured premises and the place where the incident actually took place. Orders were passed from time to time and ultimately on 04.10.2023 the following order was passed:

“DATED:04.10.2023

ORDER

1.       This is a consumer complaint of the year 2014.

2.       The complainant discloses himself to be the proprietor of a jewellery firm M/s. Choith Ram and Sons, Karol Bagh, New Delhi. The jewellery shop is located in the ground floor of the property which the complainant claims to be property no. 2745 and 2749. The property was under hypothecation and the goods located in the said property were insured with the Insurance Company.

3.       It is stated that on 22.05.2012, when the showroom was being opened by a worker there was a sudden fire and the gas cylinder kept inside appears to have been leaking which also blew up with a blast as a result whereof the complete building collapsed and damage was caused to the goods and other articles kept inside the same.

4.       Insurance claim was staked on the strength of the policies raising a demand of Rs.51,00,000/- for the loss of 1682.150 grams of pure gold as also a sum of Rs. 2,94,500/- for loss of furniture and fixtures.

5.       The Insurance Company appointed a surveyor who submitted his report and a letter of repudiation was issued by the Insurance Company on 08.08.2012, relying on the surveyor’s report that since the accident had taken place on property no. 2745, which was not covered under the policy, therefore the complainant was not entitled for any such reimbursement or indemnification.

6.       The matter appears to have been heard on earlier occasions and the following order was passed on 09.12.2019:-

“        The concerned Divisional Manager Mr. Sanjay Sharma is present.  He states that the policy was issued by Karol Bagh, DO-5 for the first time on 19.11.2009.  He also states that no proposal by the above referred Branch was taken before issuing the policy which came to be issued on the basis of the previous policy issued by DO-3 which at that time, was based in Connaught Place in New Delhi.  The concerned Deputy General Manager who is stated to be overseeing all the Branches of the OP No.1 in Delhi therefore, is directed to locate the proposal which was submitted to the OP No.1 for issuance of an insurance policy to the complainant for the first time and file the same on the next date of hearing.  If the said proposal is not traceable anywhere, he shall state so by way of an affidavit to be sworn personally by him. 

          Re-notify on 17.12.2019.

          One copy of this order be given dasti to the learned counsel for the OP No.1 in order to ensure its compliance.”

7.       Thereafter the Covid intervened and the affidavit as directed under the order quoted above had been filed but without taking notice of the said fact, the following order was passed on 03.07.2023:-

“ Ld. Counsel for the Complainant drew the attention of the Bench to the Order dt. 09.12.2019 wherein insurance company was directed to locate the proposal form or else submit an Affidavit sworn by the concerned Deputy General Manager overseeing all the branches of insurance company in Delhi to state that the proposal form is not traceable anywhere this Affidavit has not been filed yet and even the proposal form has not been filed.

        As a last opportunity, let the same be filed within three weeks or else the insurance company shall deposit an amount of Rs.25,000/- in the legal Aid Account of NCDRC.

       List the matter on 08.09.2023 for Final Hearing.”

8.       Today, when the matter has been taken up the Bench has come across IA/9224/2023 filed on behalf of the Insurance Company in compliance of the orders passed quoted herein above. This application states that in compliance of the order dated 09.12.2019 an affidavit had already been filed on 17.12.2019. It appears that the office had misplaced the Part-IV file that was under search and the affidavit was also not available. However, the affidavit filed in the year 2019 on behalf of the Insurance Company in compliance of the order dated 09.12.2019 has been traced out as it had been tagged in the correspondence file. The affidavit dated 17.12.2019 of Mr. Angrup Sonam, Deputy General Manager, United India Insurance Company Limited is extracted herein under:-

“I, Angrup sonam s/o Sh. Pemba Ram, Age 56 years, posted as Deputy General Manager, United India Insurance Co. Ltd., Regional Office No. 1 Barakhamba Road New Delhi do hereby solemnly affirm and state as under:

1. That I am posted as Deputy General  Manager in the RO No. 1, of the Company at Barakhamba Road, New Delhi since October 2018.
2. That, I am filing the present affidavit in compliance of the order/ directions dated 09.12.2019 passed by the hon’ble commission. I state that the proposal form remains untraceable in spite of the best possible efforts made by the concerned Divisional Offices i.e. D.O. Nos. 1 and 5 of the Company.
3. I further state that the policy was earlier issued by the D.O. No. 3 at Connaught Place.
4. The said D. O. was later on merged with D. O. No. 1 and the records were also transferred to the later ie DO 1.
5. I state that relevant insurance policy has been issued by D. O NO. 5 at Karol Bagh on the basis of the policy for the year 2009 following the previous policy issued by the aforesaid D. O. No. 5. ”

9.       It appears that the order for filing the affidavit was repeated on 03.07.2023 in spite of the fact that the aforesaid affidavit had already been filed on record in 2019 itself.

10.     On a perusal of the said affidavit there is no indication of the availability of the original proposal form but the recital is that the policy was earlier issued by the Divisional office no. 3 at Connaught Place and in spite of best possible efforts at the concerned division offices no. 1 and 5, the original proposal form is untraceable. It is further stated in the affidavit that the relevant insurance policy had been issued by the Divisional office no. 5 at Karol Bagh on the basis of the policy issued for the year 2009 following the previous policy issued by the Divisional office no. 5. The sum and substance of the said affidavit is that the original proposal form is not available but nonetheless the policy currently in question was issued on the basis of a previous policy which of course has been made the basis of defence in the written statement.

11.     The question therefore is about the coverage of the policy or otherwise of the property no. 2745. The stand of the Insurance company is that the such premises is not covered under said policy and therefore the repudiation letter has been defended on that score.

12.     This matter has been pending since the year 2014 and now with the available affidavit there is nobody on behalf of the complainant to either explain or contradict the same. No counter affidavit has been filed to the said affidavit dated 27.12.2019. In the absence of any such pursuit on behalf of the complainant and in the absence of the learned counsel for the complainant, the complaint is dismissed for want of prosecution. ”

16. The case was dismissed in default but was restored thereafter on 10.01.2024. The Application for substitution was allowed as the original Complainant had passed away and came to be substituted by the legal heirs of the deceased Complainant. The case was conducted very ably on behalf of the Complainant by Mr. Ramesh Kumar and on behalf of the Insurance Co. by Mr. Bakshi and Mr. Malik for the Bank.
17. Mr. Ramesh Kumar advanced his submissions when the matter was finally heard on 28/29.08.2024 contending that there was absolutely no dispute with regard to the identity of the place and premises of the firm of the Complainants which was one big establishment situate over and numbered as property no.2745/22 and 2749/22. It is urged by him that the premises is compact with the workshop in the basement and the showroom on the floor above it. It is both these areas which were damaged in the explosion and there is no other different premises, nor are there any other stocks, except which are housed in the same premises that were hypothecated to the Bank and it is the same goods and the property located inside the premises that was insured. There is therefore no doubt about the location risk, the insured stocks and the place of the incident.
18. It is submitted that gold and jewellery worth Rs.78 lakhs was insured coupled with an additional coverage of furniture, fixtures etc. for a sum of Rs.8 lakhs. He contends that the repudiation of the claim on 08.08.2012 by the Insurance Co. is based on treating the place of incident at a different address which according to the Insurance Co. was not covered under the property description of the policy. He submits that the repudiation proceeds on an erroneous assumption in spite of the fact that it is only one premises that combines two property numbers and the establishment is only one structure on the same premises where the showroom was housed and the workshop was located. The distinction sought to be drawn on the basis of property numbers cannot therefore disentitle the Petitioner from claiming any benefit in respect of the loss of the secured items under the Jeweller’s Block Policy that covers the risk of gold and jewellery as well as furnitures and fixtures. The contention is that no such distinction was ever intended for the purpose of insurance coverage as the proprietorship was the same under one roof having its showroom and workshop where the stocks were located and the premises was furnished that was clearly covered under the policy.
19. The submission therefore is that the repudiation is invalid and the loss had been proved which is also partly supported by the surveyor’s report, even though the loss of gold and jewellery as claimed by the Complainant has not been assessed.
20. Mr. Ramesh Kumar has also raised his contentions in respect of the query raised by the Bench regarding any evidence of the actual loss of any gold related jewellery to which he very candidly replied that the surveyor had nowhere indicated this loss as appears from the description of the debris nor any such evidence has been collected, but at the same time has relied on certain literature regarding the melting point, the evaporation and other scientific data in respect of the metal of gold. He has also submitted a write up in respect of surviving salvage from a fire incident of a house to urge that the recovery or otherwise from the debris depends on the nature of the fire and the temperatures that could possibly govern the status of the metal. This compilation dated 28.08.2024 has been handed over at the conclusion of the arguments with a copy of the same to the learned Counsel for the Opposite Parties.
21. He has also relied on the order passed by the State Commission of Delhi in CC/13/2014 Prince Diamond Jewellers Vs. Sr. Division Manager, United India Insurance Co. Ltd. decided on 05.03.2018.
22. The aforesaid arguments have been vehemently contested by the learned Counsel for the Insurance Co. Mr. Ravi Bakshi as well as the Bank Mr. Malik. Mr. Bakshi submitted that the repudiation is based on “no claim” basis as the Complainant had failed to prove his case falling within the description of the premises of the property as recorded in the policy. Mr. Bakshi further Submitted that the description in the FIR as also the other banking documents clearly indicate that the business transactions that were understood were only in respect of premises no.2749/22 and the gold and jewellery located in the display windows of the said property number. He submits that the policy is explicit and at no point of time did the Complainant ever made any effort to get the address of the premises altered.
23.  He contends  that so far as the property no. 2745/22 is concerned, the same was never subject matter of Insurance coverage under the policy. The repudiation therefore rests on a contractual document with which both the parties are bound and any deviation on that count cannot be introduced by way of an argument. He submits that there is no evidence to establish that property no.2745/22 was ever intended to be part of the Insurance coverage. No such information was either given by the Bank or by the borrower, the insured Complainant herein. In the absence of even an iota of evidence to that effect, the claim that both the property numbers constitute the subject matter of insurance is an absolutely incorrect proposition on facts and is legally untenable.
24. Mr. Ravi Bakshi has urged that there is no evidence of any loss of gold or jewellery from the Insured premises and therefore the claim cannot be sustained even otherwise. It is for this reason that the surveyors did not assess any such loss and the loss did not relate even remotely to the insured premises bearing property no.2749/22. The Incident may have related to the structures over property no.2745/22 that was never insured. He therefore contends that tested on any of the parameters, the complaint has to be dismissed as the claim is unfounded.
25.   The claim of the Complainant was repudiated on 8.8.2012 by the following reasons : (page 352)

      “We are to inform you that your above mentioned policy exist only for the cover of the location 2749/22, Beadon Pura, Karol Bagh, New Delhi-110005 whereas the explosion occurred on 2745/22 Beadon Pura, Karol Bagh, New Delhi which is not covered with us so the claim is treated as No-Claim.”

26. The contention of the complainant is that even though the Municipal number mentioned in the policy is 2749, it is only for the purpose of identification, and not the description of property which in real intent comprises of  property No.2725 as well as property No.2749.  The Property as insured therefore is located on the same premises and it is only one stock and one establishment that is reflected in the stock statement of the Bank and it is the same stock which is reflected as being insured in the Policy which includes the displayed jewellery insured for the sum of Rs.78 crore. The other properties insured are the furniture, fixtures, fittings including safe and safe at the residence for sum of Rs. 8 lakhs. The premium has been paid on the said properties which are indicated in the policy document itself.
27. To support of this contention, the Complainants have come up with the Bank documents including the cash credit Agreement dated 5.11.2005 which clearly mentions Property No.2745/22.  It is submitted that the stock statement with the Canara Bank also mentions Property No.2745/22 and Property No.2749/22 for example Annex. C23 (page 105) and C-24 (Page 107).  Again this would be evident from the renewal document of the Cash Credit dated 9.4.2008 where the bank has addressed the letter to the complainant bearing Property No.2745/22 which is Annex. C-25 (page 109).  Thus, both the properties numbers are simultaneously used in the stock statements maintained by the Bank and therefore they clearly reflect the identity of the premises with the address of both the property Numbers even through the policy mentions only Property No.2749/22.
28. The contention of the Complainant therefore does not appear to be incorrect and this bifurcation indicated in the Surveyor’s Report does not make complete sense when  the status of the property as indicated above was understood as one and the same between the parties.  It may be correct to assume that it is only Property No.2749/22 that has been mentioned on the policy cover note, but is not the case of the Insurance Company that the location of the property has been changed or the place of housing the insured property has been altered.
29. It would be reasonable to assume, that had the location of the property or its structure been altered or any material changes would have been brought about with regard to storage of the property, then the complainant was bound to intimate the same as the risk location is also a valid component for assessment of the risk of the policy.  In the instant case, there is no change either of the address or of the location or of the place where the property is housed.  It remains constant and has not varied at all.
30. The contention therefore in the repudiation letter about the loss of property at a different location address does not seem to be logical.  The Survey Report describes Property No.2745/22 as the adjoining property. There is no indication in the survey report about the bifurcation and location of the display windows that contained the jewellery that was displayed when the fire took place. The Insurance Cover was for the same property as referred to in the policy and it is not the case that the property insured was kept at a different place.  The only question raised is about the number of the property mentioned in the policy as No.2749/22 whereas the incident of fire is said to have taken place over Property No.2745/22. The insurance company therefore taking advantage of two property nos. without there being any change of risk location has repudiated the claim.   This in our opinion is an unrealistic and non-pragmatic approach of the Insurance Company  in as much as  when the identity of the place is intact, the property and the quantum insured remains the same, then a  mere  omission of one of the  property numbers does not disentitle the complainant from indemnification when from the facts it is evident that there are no two locations except that the property is situate over two municipal numbers.  This is also fortified by the loan documents executed that mentions all the properties of the business firm in the hypothecation column as well as the column of collateral securities.
31. A perusal of the Survey Report describes the existence of the show room in the ground floor and the manufacturing unit in the basement of both the property Numbers i.e. Property No.2749/22 and Property No.2745/22. Clause 2.0 of the said Report records the same even though the description of the insured indicates it as a Firm situate at Property No.2749/22.
32. In clause 3.0, the Surveyor has categorically stated that the adjoining building was also affected which is the building that clearly co-related to the same building with the municipal Property No.2745/22.  The surveyor in Clause 5.0 proceeds to distinguish the addresses of the location coverage and to say that the loss was not covered as it had occurred over Property No.2745/22. The surveyor has stated that the other shop is situate over 2749/22.  The surveyor has nowhere explained or indicated as to how he has partitioned or segregated the shops when the entire establishment is one and the same. By stating the fact of the other shop, the surveyor has attempted to create a sort of an additional location of a shop over 2749/22 but at the same time, it is to be noted, that in Clause 3.0 he has clearly stated that the adjoining building was also affected. There is no evidence of two separate buildings or establishments. The entire unit is one amalgamated commercial singular enterprise. The attempt to segregate the loss on account of only one property number mentioned on the policy therefore seems to be an attempt to divide the risk and the loss on the strength of the same which in our opinion does not appear to be correct as the surveyor himself has located the loss in the adjoining part of the same building as well.

33. Thus, the cause shown in the repudiation letter for all the reasons above does not appear to be tenable based on the facts of the present case but there is yet another serious issue that needs to be paid attention to even though the same has not been exactly referred to in the repudiation letter.  The more prominent issue which arises is with regard to the claim of loss of gold and jewellery of about Rs.50 lakhs that has been claimed by the Complainant apart from the loss of fixtures and furniture. It is here that the surveyor’s report cannot be over looked nor can the facts regarding the claim of any actual loss can be omitted to be considered. The question is as to what was the actual loss suffered by the Complainant.  It is for the said reason that one has to go to the Surveyor’s Report dated 22.6.2012.  The said Report is extracted hereinunder :

“SURVEY REPORT

WITHOUT PREJUDICE

STRICTLY CONFIDENTIAL

PREVILEGED :   FOR CONSIDERATION OF THE INSURERS

CONCERNED AND THEIR LEGAL ADVISERS ONLY

1.0  PREAMBLE

This is in pursuance to our appointment by the Competent Authority of the underwriters at their Regional Office-I to conduct survey and assessment of the captioned loss. Accordingly, we proceeded to the affected location 2745/22, Bedonpura Karol Bagh, New Delhi 24.05.12 and, conducted our survey and verifications at the site. We took some photographs, recorded the statement of witness and measured / identified the damages. We also issued a letter of requirements to them and most of the documents are pending with the insured.

2.0 ABOUT THE INSURED:

M/s.Choith Ram & Sons Jewellers is manufacturing gold ornaments and having their show in the ground floor and manufacturing unit in the basement of 2749/22, Bedonpura & 2745/22, Bedonpura, Karol Bagh,

3.0 INCIDENT

According to Mr.Shyam Sharma, on 22.05.12, he reached the shop by around 9.05am and opened the shutter of shop no.2745/22, Bedonpura and switched on the main switch of the shop. After few seconds there was a sudden explosion and due to the impact of the explosion, he thrown away and fell in the street and become unconscious and somebody had taken to the nearby hospital. Due to the impact of the explosion, the building and 2745/22, Bedonpura, Karol Bagh (basement and ground floor) was badly damaged and all the interior, furniture, fixture, fittings were badly damaged. The adjoining building was also affected. According to the insured, the cause of such explosion is due to some leakage of gas from the cylinder, which was kept in the basement

4.0   FIR

The FIR is registered with Police Station Karol Bagh U/S 285/336/337 IPC According to the FIR, there explosion was an explosion in the shop no.2745/22, Bedonpura due to the leakage of gas cylinder and due to such explosion, the building was badly damaged and the debris were removed from there to search the cause of explosion. The Section 285/336 & 337 is reproduced as under:

285: Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

336  : Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.

337: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

5.0 COVERAGE UNDER THE POLICY

As per the Policy No.040500/46/11/45/00000915, the location covered is mentioned as 2749/22, Bedon Pura, Karol Bagh, New Delhi, where the insured's other shop is located. However the loss occurred at 2745/22, Bedonpura, Karol Bagn, New Delhi. Thus this loss is not covered under this policy

6.0 ASSESSMENT OF LOSS

As explained above, the required documents are still pending with the insured. However based on physical inspection and quantification of damaged items and applying the market rates, the estimated loss as under:

Thus, the estimated loss would be around Rs.3.0 lakh based on our physical inventory and application of market rates. However, the loss is not covered under this policy.  So we advise the underwriter to close the file as no claim.”

34. What is more important is while assessing the loss, it has only assessed the loss of fixtures and furnishing in clause 6.0 for Rs.2,94,500 only.  There are 11 items mentioned therein and which does not include the jewellery displayed or kept inside the premises.  The surveyor nowhere has indicated any loss of jewellery or gold ornament or the like.  The FIR that has been lodged also does not narrate any such loss and was reported only as an incident of fire.  In clause 4.0, it has been recorded by the Surveyor that the debris was removed from the site to search the cause of explosion.  Photographs have also been indicated but there is no indication of any inventory or recovery or of any gold ornament or any debris of the same.
35. This has to be viewed from the angle that the loss alleged by the Complainant is of 1682.150 gm of gold valued at Rs.51 lakh.  The prayer made is also for recovery of the said amount together with interest thereon as the same is also a substantial part of the claim alleging deficiency.
36. The Consumer Forum is empowered under Section 14 of the Consumer Protection Act to grant such reliefs as are enumerated therein. Section 14 (i) (a) to (i) are extracted hereinunder:

“14. Finding of the District Forum (1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to 1[do] one or more of the following things, namely,-

(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;

(b) to replace the goods with new goods of similar description which shall be free from any defect;

(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party : (Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit);

(e) to remove the defects or deficiencies in the services in question;

(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

(i) to provide for adequate costs to parties.”

37. In order to ascertain the quantum of loss, the material on record has to be seen.  The complainant has alleged and has also brought on record the stock statements to support the contention of the availability of the stock of gold.  The question is about loss of gold ornaments etc. stated to be  measuring 1682.150 gms.  The quantity of the alleged loss, which is over 1½ kg is therefore is not a negligible amount that may have been lost or evaporated in the debris. It is not the case of the Complainant that there was any loot of the jewellery at the time of the fire or somebody has removed it.  The facts on record indicate the presence of debris.  There is no evidence of any effort to even locate or any attempt to find out and recover this huge amount of more than 1.5 kg of gold from the debris.  It is for this reason that we had called upon the Learned Counsel for the Complainant to at-least prima facie demonstrate about the actual loss of the gold/jewellery worth Rs.51 lakhs or even its remnants.  Learned counsel for the Complainant was at vain to demonstrate the same except for providing us with literature in relation to the melting point of gold and also the possibilities of the loss of the metal in a house fire.
38. We have gone through the said material but the theoretical explanation has to be supported with ample proof  and evidence to establish the loss of the gold and jewellery as claimed by the complainant. The mere reflection of the availability of the stocks through documents cannot be the exact proof of actual loss unless it is corroborated by any such evidence. It is difficult to believe that more than 1½ kg gold would have evaporated into thin air. To assume or presume such a probability will be imaginary, unreal and simply speculative without any evidence to support the same. The complainant has been unable to adduce any actual evidence to establish the real loss of gold or gold ornaments which could have been done by some forensic analysis of the debris which is stated to have been collected from the fire. There is no attempt to salvage the lost jewellery nor is there any evidence to that effect. The paper statement of stocks may be relevant for business and accounting purposes but the loss claimed is exactly of a certain fixed weight of gold of the value of approximately Rs.51 lakhs.
39. It is well settled by now that a Plaintiff/Complainant has to proof his own case when it comes to seeking compensation and indemnification of an actual loss, which in the present case is something highly valuable and precious gold or gold ornaments weighing 1.682 kg.  It will not be possible for us without any evidence to assume, that the debris as a consequence of the fire also contained 1.682 kg of gold without a trace of its recovery.  The actual loss has to be established through forensics which was neither attempted or even requested by the Complainant. To believe the allegations, the complainant has to establish his claim and for that reference can be made to the judgment in the case of Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396. Paragraph 29 of the said judgment is extracted hereinunder:-

“29. As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must seem to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression “the court may, in its discretion, require any such fact to be proved” used in sub-rule (2) of Rule 5 of Order 8, or the expression “may make such order in relation to the suit as it thinks fit” used in Rule 10 of Order 8.”

40. This Commission therefore cannot presume an actual loss which cannot be quantified nor in the absence of any corroborating proof be speculated for being compensated.  In such a situation to compel the Insurance Company to indemnify the claim for the loss of gold stocks would be assuming a deficiency of an alleged insurable claim with no foundation to support the same. The actual deficiency therefore has not been established by any cogent evidence and in the event the Complainant alleges actual loss of gold and gold ornaments, it is open to the Complainant to seek its remedy before the appropriate forum with the help of any evidence that might be available to corroborate the actual loss.
41. A somewhat similar situation had arisen in a case of burgalary in a Bank, where lockers were broken and robbed.  Even though the Bank was found to be deficient in providing safety measures to protect the safe vault and the valuables therein and liable for the same, yet no compensation was awarded for lack of evidence of the ornaments inside the lockers. Reference be had to the order of this Commission in CC No. 260 of 2011 – Mahendra Kumar Khard and Ors. Vs. Central Bank of India and Ors. decided on 29.08.2024 where reliance was placed on the Apex Court’s judgments reported in Amitabha Dasgupta versus United Bank of India and Ors. reported in 2021 SCC OnLine SC 124.  Applying the principles therein, this claim therefore, in respect of gold and ornaments cannot be tried in this summary jurisdiction for want of cogent evidence.

42. Thus, for all the reasons given hereinabove, the claim of indemnification by the Complainant for the loss of gold and gold ornaments etc. cannot be entertained on the ground of deficiency of service inasmuch as the Complainant has failed to establish the said loss.
43. However, on the issue of the Insurance coverage, we are inclined to accept the stand of the Complainant regarding the risk location which according to the surveyor’s report had damaged the building on both premises by making a reference to the adjoining building in clause 3.0 of his report. The surveyor has rightly proceeded to assess the loss of the furnitures and fixtures for a sum of Rs.2,94,500/-. The surveyor was incorrect in assuming that the said loss is not covered under the policy inasmuch as this contradicts his own conclusion that the adjoining building was also affected, which is none else than the same building spread over premises no.2749/22 mentioned in the policy cover note. The approach of the surveyor to split the claim on the basis of the mention of a single property number is therefore a futile exercise for no cogent or plausible reason when the identified establishment has been insured and premium paid. The loss with regard to furnitures and fixtures which is insured for a total sum of Rs.8 lakhs therefore as indicated by the surveyor deserves to be indemnified and this part of the repudiation by the Insurance Co. is a clearly deficiency in service. The Insurance Co. ought to have prudently compensated the loss of the furniture and fixtures as noted above which it has flatly declined to do for no valid reason. The incident of fire is not disputed and the risk location as analyzed hereinabove is clearly covered under the policy. Consequently, for all these reasons the claim of the Complainant to that extent of loss of furnitures and fixtures deserves to be allowed.
44. Resultantly, any claim with regard to the loss of gold and ornaments as claimed by the Complainant has not been established by any supporting evidence and this would require leading of intense forensic evidence to establish the loss of gold and ornaments that is not available on record. Hence the claim regarding the loss of gold and ornaments etc. cannot be treated to be a part of the deficiency but at the same time as indicated above the loss of furnitures and fixtures has been recorded by the surveyor which deserves to be indemnified to the extent indicated above. Needless to mention that this Commission has the jurisdiction to award an amount, which in its opinion would be just and reasonable irrespective of any impediment of pecuniary jurisdiction as held by the Apex Court in Charan Singh Vs. Healing Touch Hospital and Ors. (200) 7 SCC 668. The complaint is therefore partly allowed for payment of Rs.2,94,500/- for the loss of furnitures and fixtures. The aforesaid amount shall be payable to the Complainant together with 6% interest thereon with effect from the date of loss that is 22.05.2012 till the date of actual payment which shall be made within a period of three months.  In the event of any default, the rate of interest shall stand enhanced to 12% on the aforesaid amount. The complaint is accordingly disposed off.