1. These two cross First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short the Act), by M/s Iffco-Tokio General Insurance Company (for short the Insurance Company) and the Complainant, are directed against the order dated 10.07.2009, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission at Shimla (for short the State Commission) in Consumer Complaint No. 3 of 2007. By the impugned order, while accepting the Complaint, the State Commission has directed the Insurance Company to pay to the Complainant a sum of Rs.15,00,000/- as compensation along with interest @ 6% p.a. from the date of the Complaint, i.e. 13.04.2007, till the date of payment/deposit, whichever is earlier. The State Commission has also awarded costs quantified at Rs.10,000/- in favour of the Complainant. The Complainant has filed the Appeal for enhancement of the compensation awarded, whereas the Insurance Company has questioned the legality of the impugned order itself.

2. Briefly stated, the facts, necessary to appreciate the controversy involved, are as follows:

2.1 The Complainant, who happens to be a government employee and ordinarily residing at Shimla, had purchased the house in question, situated at Village Dashanli, Tehsil Rohru, District Shimla. The property was got insured under the Standard Fire & Special Perils Policy, issued by the Insurance Company, for the assured sum of Rs.30,00,000/-. The policy, issued on 25.01.2006, was valid from 11.01.2006 to the mid-night of 10.01.2007. Unfortunately, a devastating fire broke out on 03.11.2006, causing extensive damage to the building. At that point of time, the Complainant was in Shimla. The incident was reported to the Insurance Company and the Police Department only on 10.01.2007.

2.2 On receipt of the said intimation, the Insurance Company deputed a Surveyor, who, vide his final report dated 10.02.2007, while referring to his inspections and making certain observations about the incident, ultimately opined that as per the general conditions of the policy, the Insured was supposed to inform the Insurer about the vacancy of the premises if it was to be more than 30 days but the same was not done by the Complainant and, therefore, the claim made by her was not maintainable. Relying on the said report, the Insurance Company, vide its letter dated 15.02.2007, repudiated the claim. The relevant portion of the repudiation letter reads as under:

As per survey report, it has been observed that the affected building remained unoccupied and nobody was residing there. On 06/09/2006 the fire occurred for the first time and later on 03/11/2007 there was another fire as a result of which the complete building get destroyed. As per the conditions of Standard Fire & Special Perils Policy, the company is not liable for any loss or damage if the insured property becomes unoccupied for a period of more than 30 days without informing the insurance company.

3. Being aggrieved, the Complainant filed the Complaint before the State Commission.

4. The Complaint was contested on diverse grounds. Controverting the averment in the Complaint to the effect that, except for the cover note, the complete policy, containing the terms and conditions, was not supplied to her, in the Written Version filed on behalf of the Insurance Company, it was pleaded that the same was duly supplied and, as a matter of fact, the terms and conditions were explained to the Insured in vernacular.

5. On appraisal of the evidence brought on record by the parties, including the affidavits of two neighbours, namely, S/Shri Vipan Lal and Sen Ram, filed by the Complainant, the State Commission came to the conclusion that apart from the fact that there was violation of the provisions of the Insurance Regulatory and Development Authority (Protection of Policy Holders Interests) Regulations, 2002, inasmuch as the Insurance Company had not brought on record any evidence to show that the terms and conditions were duly explained to the Insured, the evidence of the said two witnesses, in the form of affidavits, prove that the subject property was in possession of the Complainant, who was occupying the same whenever she visited the village, and her husband used to live there.

6. Hence, the present Appeals.

7. Having heard learned Counsel for the parties for some time and perused the documents on record, in particular the reports submitted by the SHO, Police Station Rohru, wherein it is stated that

No case was registered because no one has been residing on the house and there is no loss as also the report of the Fire Brigade, (sic) hence this report has been registered under 24-4

Shimla, wherein it is stated that

This house was old and nobody was living therein, (Sic) cause of we are of the opinion that the State Commission erred in ignoring the fire could not be found out

, reports submitted by the Government agencies and basing its decision only on the affidavits filed by the two next door neighbours of the Complainant. Since we are convinced that the Complaint needs a consideration by the State Commission, we refrain from commenting on the de-novo evidentiary value of the said two affidavits; and the reports by the Police and Fire Brigade and/or any other material on record.

8. Insofar as the question of non-compliance with the provisions of afore-noted Regulations is concerned, in support of his submission that the said provision has not been considered in its correct perspective, learned Counsel, appearing for the Insurance Company, has placed reliance on a Constitution Bench decision of the Honble Supreme Court in General Assurance Society As the Complaint is being restored for Ltd. V. Chandumull Jain and Anr., (1966) 2 SCR 500. adjudication on merits afresh, the whole gamut of issue at hand would be open, we do not propose to comment on the applicability of the said decision on the facts at hand. Needless to add that when the matter is taken up for consideration, the State Commission would take into consideration the said decision or any other decision(s), on which reliance may be placed by both the parties.

9. Resultantly, the impugned order is set aside; First Appeal No. 341 of 2009 (by the Insurance Company) is allowed; First Appeal No. 442 of 2009 (by the Complainant) is dismissed; and the Complaint No.3 of 2007 is restored to the board of the State Commission for fresh adjudication in accordance with law.

10. The parties/their Counsel are directed to appear before the State Commission on 17.10.2016 for further proceedings.

11. At this stage, it is pointed out by learned Counsel appearing for the Insurance Company that a sum of Rs.5,00,000/- has been deposited in this Commission in terms of order dated 18.09.2009, which has been put in a Fixed Deposit Receipt (FDR). We direct that the said FDR shall be renewed from time to time till the final decision on the Complaint is taken by the State Commission. The said deposit along with interest accrued shall abide by the final result in the Complaint.

12. Both the Appeals stand disposed of in the above terms with no order as to costs. ......................J D.K. JAIN PRESIDENT ...................... REKHA GUPTA MEMBER