1. Challenge in this First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short the), by the Complainant, engaged in the business of sale and purchase of shoes and Punjabi juttis as a proprietorship concern, named and styled as Shoe Land, is to the order dated 10.06.2013, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission at Shimla (for short the State Commission) in Consumer Complaint No. 4 of

2012. By the impugned order, the State Commission has dismissed the Complaint filed by the Appellant, alleging deficiency in service on the part of New India Assurance Co. Ltd. (for short the Insurance Company), Opposite Party No.1 in the Complaint, in repudiating the claim made -1- by the Complainant under the Shopkeepers Insurance Policy for the loss suffered by him on account of the damage caused to the stocks stored in the insured premises, on account of fire. The fire took place on 02.05.2011. In the Complaint, the Appellant had sought a direction to the Insurance Company to pay to him a sum of 35.00 Lakhs under the said policy, along with interest @ 18% p.a.; damages to the tune of 1.00 Lakh; and costs, quantified at 25,000/-.

2. Since the factum of Appellants obtaining the said policy on 18.06.2010 for the assured sum of 35.00 Lakhs and the fire having taken place on the aforesaid date is not disputed, we deem it unnecessary to burden the order by making reference to the facts, leading to the filing of the Complaint, in greater detail. It would suffice to note that on the occurrence of the said incident, after duly intimating the Insurance Company about the incident, the Appellant requested the Insurance Company to indemnify the loss, as, according to him, the entire stock of shoes etc. had been destroyed in the fire. On receipt of information, the Insurance Company appointed a Surveyor to assess the loss suffered by the Appellant. The Surveyor, vide report dated 26.09.2011, assessed the loss sustained by the Appellant at 6,55,850/-, with an observation that the Insurance Company may settle the claim keeping in view Condition No.8 of Standard Fire and Perils Policy, as the same condition extended to the Shopkeepers Insurance Policy issued to the Appellant. On receipt of the said report, the Insurance Company appointed a number of Investigators to examine the genuineness of the invoices/bills, produced by the Appellant in support of the purchases made by him from several concerns. One of the Investigators, namely, Nirvair Singh, who was required to examine the genuineness of the purchases from a concern Rashid Jutti Corner, vide his report, dated 19.12.2011, reported that on the basis of the enquiries made by him from the persons living in the vicinity of the address given by the said concern, no one could identify the concerned shop or its owner, living or running such a shop in the said area. Similarly, Investigator Randhir Singh, vide his report dated 12.12.2011, informed the Insurance Company that no shop in the name of Gill Punjabi Jutti was found at the address given in the invoices/bills purportedly issued by the said concern. The reports of the other Investigators were also on similar lines. Relying on the said reports, vide its letter dated 14.03.2012, the Insurance Company repudiated the claim on the ground that the said claim being based on the transactions with the parties, from whom the Appellant had claimed to have made purchases, and shown in the balance sheet, was on fraudulent and bogus purchase bills and, therefore, the value of the stock damaged due to fire on 02.05.2011 could not be determined on the basis of said bills. The Insurance Company informed the Complainant that they were unable to honour any claim and the same was being closed as no claim.

3. As noted above, aggrieved by the said action on the part of the Insurance Company, the Appellant filed the Complaint.

4. On evaluation of the evidence adduced by the parties in support of their rival stands, the State Commission, while relying on Clause-7 of the policy, has come to the conclusion that the reports of the Investigators make it abundantly clear that the claim made by the Appellant was fraudulent and, hence, it was hit by afore-noted Clause-7, which stipulated that if any claim under the policy is made by fraudulent means or device, all benefits under the policy shall stand forfeited. As afore-stated, the State Commission has dismissed the Complaint, observing thus:

13. Clause-7 of the Shopkeepers insurance policy clause, which has been reproduced hereinabove while summarizing the pleadings of the parties, says that if any fraudulent means or device are used by the insured or anyone acting on insureds behalf, to obtain any benefit under the policy, all benefits under the policy shall be forfeited. In the present case, in our considered view, the complainant though sustained loss to certain extent, as per report of the surveyor, it used bills and invoices issued by bogus firms/business concerns to claim higher amount of money which amounts to use of fraudulent means and, therefore, by virtue of the aforesaid clause-7 of the policy, all benefits under the policy, including indemnification to the extent to which loss was actually caused, stand forfeited. Consequently, the complaint is dismissed.

5. Hence, the present Appeal.

6. We have heard Learned Counsel for the parties and perused the documents on record.

7. At the outset, we may note that an Application has been filed on behalf of the Appellant, seeking leave to adduce additional evidence, which is primarily in the form of invoices, lorry receipts etc., in support of his claim that the purchases, as recorded in its books of accounts, were genuine. For the view, we propose to take in the case, it is unnecessary to deal with the said application.

8. Learned Counsel appearing for the Appellant has strenuously urged that the afore-noted finding by the State Commission is vitiated, inasmuch as it is based on surmises and conjectures. According to the Learned Counsel, the State Commission has failed to take into consideration the contemporaneous material, in particular the statement of accounts of the said concerns, as appearing in the audited books of accounts of the Appellant, and has based its decision solely on the report of the Investigators.

9. Ms. Varma, Learned Counsel appearing for the Insurance Company, while Per contra, supporting the decision of the State Commission, has vehemently urged that apart from the fact that all the Investigators had found that the parties, from whom the Appellant had made purchases of shoes and juttis, were not found at the addresses given in the bills, purportedly issued by the said concerns, it is clear from the other material on record that the claim of the Appellant regarding purchases was based on the material, which was not found to be genuine and, therefore, afore-noted Clause-7 of the policy was clearly attracted in the instant case.

10. Having bestowed our anxious consideration to the facts at hand, in the light of the material already available on record, particularly the statements of account of the parties, from whom the Appellant had made the purchases, we are of the view that the State Commission has erred in not taking into consideration some vital facts emerging from the said statements. Although from the said statements, we notice that almost all the payments to the said parties had been made by the Appellant in cash but there are some payments which had been made directly by the Bank, namely, State Bank of India, from the cash credit account maintained by the Appellant with the said Bank. In our opinion, the payments through banking channels would have some bearing on the genuineness of the transactions between a purchaser and a seller of the goods and could not be ignored. We may, however, hasten to add that we are not expressing any final opinion on the genuineness of the said purchases merely because certain payments are shown to have been made through banking channels. Nevertheless, each of the said transactions has to be closely examined while considering the report of the Investigators, wherein they have all reported in that unison none of the parties, they had investigated, was found to be in existence at the addresses given in the invoices/bills. Under the circumstances, we are of the view that the matter needs to be examined in depth afresh by the State Commission, taking into consideration the other contemporaneous evidence, which was placed on record by the Appellant in support of his claim that the purchases in question were genuine.

11. For the afore-going reasons, the Appeal is allowed; the impugned order is set aside; and the Complaint is restored to the Board of the State Commission for fresh adjudication on merits.

12. Since the Complaint is being restored for fresh adjudication, we permit the Appellant to make appropriate application before the State Commission for adducing additional evidence. It will, of course, be open to the Insurance Company to place its stand on the said prayer, which shall be considered by the State Commission in accordance with law.

13. Needless to add that we have not expressed any opinion on the merits of the rival stands of the parties and any observation above shall not be construed as an expression of final opinion on the merits of the Complaint.

14. Since the Complaint pertains to the incident, which took place as far back as in the year 2011, we request the State Commission to take a final decision in the Complaint as expeditiously as practicable and, in any case, not later than six months from the date being fixed for appearance of the parties.

15. The parties/their Counsel are directed to appear before the State Commission on 08.03.2018 for further proceedings.

16. The Appeal stands disposed of in the above terms, leaving the parties to bear their own costs. ......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER