N.V. ANJARIA, J.

1. Whether there can be a smoke without fire is the poetically put, but the succinctly posed legal question arising in this petition. The petitioner’s claim for loss of goods under the fire insurance policy has been negatived on the logic that though the smokes were evident and admitted, there was no evidence of fire.

2. The respondent-United India Insurance Company Limited refused to sanction the claim of the petitioner towards fire insurance as per decision conveyed in letter dated 25.06.2009 on the ground that the loss of stock of the insured goods tobacco occurred due to the internal heat of spontaneous combustion inside the stock and not by fire. Therefore, the loss would not fall under the purview of the policy.

3. The relevant facts may be noticed. The petitioner is engaged in the business of tobacco and has its factory at Village Samarvada, Taluka Dhanera. As done every time, the factory building, plant & machinery, furniture as well as stock of goods tobacco were insured by the petitioner with the respondent company. The last policy issued by the Insurance company was for the period from 19.07.2006 to midnight of 18.07.2007, for a total sum of Rs. 80 Lacs including a sum of Rs. 70 lakhs, the stock of tobacco was insured. The petitioner had paid additional premium for spontaneous combustion over and above the premium for fire totaling Rs. 37,881/- for covering the above risk.

3.1 At about 7’o clock on 01.08.2006, the security informed the proprietor that the smokes were coming out of the godown of the factory. Many bags of tobacco were gutted in fire. The panchnama was prepared and thereafter, the survey of the factory premises was undertaken by the surveyor. The petitioner put-forth the insurance claim for the loss of tobacco by letter dated 16.10.2006. The respondent company informed that the claim file of the petitioner was closed for the reason that the loss was not identifiable and that any ignition of flame of fire inside the stock of tobacco was not noticed. It was stated that the loss was caused due to internal heat of spontaneous combustion and the claim of the petitioner was treated as no claim.

3.2 It appears that the said decision was challenged by the petitioner in Special Civil Application No. 26454 of 2006 which was rejected as per order dated 24.09.2007 on the ground of availability of alternative remedy. The petitioner preferred Letters Patent Appeal No. 2276 of 2007 which was decided by order dated 17.12.2008 observing that if the fire had occurred due to spontaneous combustion and if the claim was covered by the additional policy, appropriate steps should be taken by the Insurance Company. The respondent Insurance Company was directed to make fresh assessment of the claim within two months.

3.3 After long drawn correspondences and notices, the respondent Insurance Company sent communication dated 25.06.2009 which is the impugned decision whereby the claim of the petitioner was rejected as aforesaid. In the affidavit-in-reply, the respondent company referred to survey report of one M/s. A.M. Patel Surveyors dated 05.10.2006 and contended that it was found therein that the loss had occurred because of internal heat of spontaneous combustion and not by fire.

3.4 Now, survey report dated 05.10.2006, inter-alia mentioned that the surveyor did not find any fire damages to any Hassian Bag externally but the stocks of the tobacco were found spoiled inside all the bags due to internal Heat of the spontaneous combustion only. It was stated that no any evidence for the ignition of the flame of Fire was found. It was recorded also that the smokes generated due to internal heat of spontaneous combustion of tobacco stocks were found coming out from the heap of Tobacco Bags and the said Godown was found full of smokes only without any ignition of the flame of fire and was supported by photographs showing only the smokes inside the godown without any flame of Fire. The surveyor contended that tha