Per Shri P.N.Kashalkar, Hon'ble Presiding Judicial Member:-

        Feeling aggrieved by the judgement and award passed by District Consumer Redressal Forum, Nashik in consumer complaint no.250/2006, whereby the Forum below allowed the complaint filed by M/s.Bharosa Traders and directed United India Insurance Co. Ltd. to pay insurance claim of `3,29,995/- with interest @18% p.a. from 09/01/2006 and also directed to pay `5,000/- for mental agony and harassment and `3,000/- towards the costs.  As such, the insurance company has filed this appeal.  The facts to the extent material may be stated as under:-

        Complaint was filed by M/s.Bharosa Traders alleging deficiency in service on his part.  According to him, M/s.Bharosa Traders is having  shop at gala no.5, Chaudhari Patk, Village at  Palse, Tal & Dist- Nashik .  In the said shop premises it was the case of the complainant that he sells shuttle cocks, T & B string, drill flags, T-shirts etc.  The complainant had taken insurance policy for the said shop premises and sum assured was `3,40,000/-.  He had purchased policy by paying necessary premium and policy was in force from 18/09/2005 to 17/06/2006.  The insurance cover was taken against the fire and other perils.  According to complainant, on 09/01/2006 his godown caught fire at about 5.00 a.m. and goods worth `3,25,995/-  got damaged in said fire.  Intimation of accidental fire was given to fire brigade and police Intimation was also given to insurance company/opp.party herein.  In due course of time police had seen the spot fire and recorded Panchnama.  Fire brigade officials immediately arrived and extinguished the fire.  The insurance papers were submitted to the insurance company by lodging the claim.  However, opponent/insurance company by letter dated 03/11/2006 repudiated the claim.  Hence, complaint was filed in the Forum below for recovery of `3,25,995/- with interest thereon from 09/01/2006 and complainant also claimed for mental agony `25,000/- and besides cost of proceedings. Opp.party filed written statement cum affidavit.  Forum below was confused to whether to treat it as affidavit and/or as a written statement.  However, we find that this was the written statement filed on affidavit or in other words what was filed in the Forum below by the appellant is written version on affidavit.  The opp.party pleaded in reply version that complaint is absolutely false.  Complainant had taken the policy for business purpose for his commercial establishment and therefore, he cannot be a consumer and as such, he can not be allowed to file the consumer complaint.  The insurance company/opp.party also pleaded that this case is required to be tried by civil court because complicated questions are involved in the consumer complaint.  Opp.party further pleaded that immediately after the claim has been lodged by the complainant, opp.party had appointed a surveyor and after survey report has been received, they appointed investigator.  Surveyor and Investigator are independent persons.  The former makes enquiry into damage caused by the incident (in the instant case by fire) and latter makes investigation to conclude if claim preferred by the insurer is otherwise genuine.  Opp.party is the nationalized company.  They are simply  underwrtiers.  They have to manage public money in best suitable manner and therefore, they engage investigator and surveyor in fit cases.  Opp.party further pleaded that Kamlesh P.Sodha was the surveyor.  He has suggested in his survey report that further enquiry should be entrusted with the investigator, because according to opinion of surveyor, said fire was stage managed affair and it was probably a false claim.  That is why the surveyor has not assessed the damage and simply directed that investigator be appointed to investigate the various aspects involved in the claim preferred by the complainant.  Investigator’s report clearly revealed that while taking policy for the year 2002-2003, complainant had given address of his premises as 910, Palshe, Nashik Road, but in the policy he mentioned the address as Gala no.5, Chaudhari Park, Palashe, Nashik.  It was found that complainant had submitted along the claim petition a bill issued by Shri A.K.Sport, K-77, 2^nd floor, Sector Centre 4, Airoli, New Mumbai. Insurance company representative had gone to that place.  It was found that building was having ground plus tow floors and there was a board outside at K-77 as Datta Sports & Gifts.  There was no business establishment in the name and style of A.K.Sports at that address and it was in a residential house and not in commercial premises.  Insurance company further pleaded that Shri K. Sodha, surveyor learnt that when he had gone on the spot at Nashik, Appasaheb Gholekar, Navi Mumbai was present  at Navi Mumbai but surprisingly owner Shri Ravindrakumar Borate did not come forward or present himself before surveyor to give any first hand information.  From other insurance companies they learnt that such vague claims were presented by the complainant and Vikroli office of New India Assurance Co. Ltd. had repudiated such vague claim and that matter was already in consumer court.  It was also found that complainant’s representative has filed various claims with various companies and most of the claims were rejected being false and fraudulent.  Similar types of complaints were filed and on behalf of M/s.Bharosa Traders and ultimately, those claims were rejected.  Most of the claims were preferred either by Shri Appasaheb Golekar or his wife Smt.Vijaya Golekar.  In fact, at the residential place of Mr.Golekar which is at 8/03, Divya Nagar, Sector -14, Navi Mumbai, there is a supplier and bills are issued in the name of Shri Ganesh Traders, H 8/03, Mangal Deepa Gruhnirman Sanstha, Airoli, Cidco-14.  Mr Golekar himself had issued this bill and Mr.Golekar always files consumer complaint for large insurance claim on behalf of M/s.Bharosa Traders as Power of Attorney Holder.  It was found that second bill of A.K.Sports was having address of K-77, second floor, Navi Mumbai and that bill was singed by one Mr.Ghulam, whose address is K/77, second floor, Navi Mumbai which address is the address of Datta Sports Center in another claim preferred against New India Assurance Co.Ltd. and stamp paper procured regarding power of attorney is in the name of R.A.Borate, Navi Mumbai.  It was recorded in Thane.  

        We heard submissions of Adv.Mr.Baliram Kamble for appellant and Adv.Mr.Anand Patwardhan for respondent.

        We are finding that complaint allowed by the Forum below was not allowable at all.  The claim was surely fraudulent one.  On the basis of bogus documents claim was preferred and it was rightly doubted by the surveyor appointed by the insurance company and also doubted by the investigator, who investigated the claim has also reported that claim was fraudulent and vague.  What is important to note is the fact that complaint was filed not by proprietor of complainant/M/s. Bharosa Traders through proprietor Mr.R.A.Borate but it was filed through power of attorney holder whom we call C.A. of the complainant.  Complaint was signed by simply Deepak.  Affidavit was also filed by said Deepak on 29/11/2006.  Now, it is not the case of the respondent company which is a proprietary concern that General Power of Attorney holder Deepak Chimanlal Gaur is exclusively looking after the business of M/s. Bharosa Traders, Tal & Dist- Nashik or that he was keeping stock of trade on behalf of M/s. Bharosa Traders at the godown of village- Palase District- Nashik.  Affidavit is signed by Deepak who is General Power of Attorney holder of R.A.Borate, who is proprietor of M/s.Bharosa Traders.  But this affidavit is sworn before Superintendent, District and Session Court, Nashik who wrote endorsement that ,“ Solemnly affirmed before me by Shri Ravindra Atmaram Borate  who is identified before me by Shri N.H.Lahoti, Advocate. Dated 29/11/2006”.  This is what is the mischief committed.  The fact that Deepak Gaur has signed this affidavit who for affirmation of this affidavit was not present in person himself before the Superintendent, District and Session Court, Nashik.  So, though this affidavit is signed by Deepak Gaur.  It was sworn before Superintendent, District and Session Court, Nashik by the original complainant /R.A.Borate, who was identified before the authority by Adv.N.H.Lahoti, Nashik.  Such affidavit cannot be acted upon in any proceeding because it was singed by Deepak, but affirmed by another person.  So, this was a vague and fraudulent affidavit filed before District Consumer Disputes Redressal Forum in support of the complaint filed by respondent/org.complainant.  This affidavit should have been signed by R.A.Borate since he is the proprietor of M/s. Bharosa Traders, but it was singed by Deepak Gaur whereas it was simultaneously affirmed by R.A.Borate.  In the circumstances, this affidavit cannot be acted upon to give any relief to the complainant in this consumer complaint.     

        Secondly, since affidavit has been signed by Deepak Gaur, since he is the resident of D-203, Niranjan Apartment, Hirananar, Linkroad, Mulund (W), Mumbai on the face of it, if we have to hold that Deepak Gaur had no personal knowledge as what happened in shop premises no.5 of M/s. Bharosa Traders at Chaudhari park in village Palase District- Nashik .  So, his affidavit is not disclosing personal knowledge about transaction mentioned herein.  He is simply a power of attorney holder to file the consumer complaint and nothing more.  A person who is filing consumer complaint may be power of attorney of the original complainant who has to file consumer complaint for the deficiency in service of the other.  But when it comes to prove all the fact pleaded in the complaint, the affidavit must be sworn by the person who actually witnessed the accident and in this case witness was R.A.Borate who was at Palse, Dist-Nashik at relevant time but affidavit has been sworn by Deepak Gaur, who is resident of Mulund(W).  The complaint is also verified by Deepak Gaur resident of Mumbai who had no personal knowledge of anything in respect of damages suffered by Ms/.Bharosa Traders by the accidental fire that broke out at village Palase, District Nashik in which the stock in trade of M/s. Bharosa Traders have been gutted totally and absolutely.  On this ground alone claim of the complainant is required to be turned down by allowing this appeal. 

That apart the insurance company initially had appointed surveyor who assessed the loss.  The surveyor went to the sport and  made survey report.  In that report the surveyor M/s. Kamlesh Sodha gave his own finding that on going through the photos and documents submitted by the insurer, it appears that it was a preplanned and exact cause and time of the fire was not mentioned therein.  Surveyor has not assessed the loss. The insured also gave photographs to the surveyor and acting upon this report of preliminary survey report of Mr.K.Sodha, the insurance company appointed Swastika International as investigators which gave report date 16/07/2006 which is placed on record and said report clearly mentioned a conclusion that claim is fraudulent and the report is issued without any prejudice and on the basis of information collected  by them.  investigator found that claim preferred by M/s.Bharosa Traders was absolutely false and fraudulent and in support of their investigation they have mentioned so many affidavits which we need not incorporate to burden this judgment.  The investigator reported that there was no sales tax registration of the insured.  All his letter are computerized without address and address inserted with rubber stamp.  The Bombay Sales Tax no. in A.K.Sports bill is with address K-77, Airoli bearing no.400708/S/867 with effect from 10/08/2000.  Another bill of Bombay Sales Tax found in name of Datta Sports and Gifts  is 400708/S/688 w.e.f. 01/04/1996.  The bill of Shri Ganesh Traders/Krishna Enterprises/Godawari  Enterprises does not show any BST/CST.  As sales have been shown by the concerns as made to a party in Nashik, there ought to have been BST as well as CST numbers.   There is no electricity bill/Telephone bill submitted for the above premises insured.  There is no electrical report from electricity board.  On page 144 investigator’s finding is recorded which mentions that, “ The policy no.466 is renewal of policy no.507, the first policy no. being 800.  The 1^st year policy no. 800 is for the period 18/09/20002 and the address of the insured and risk location shown in policy is 910, Palashe, Nashik Road, Maharashtra-422 001.  The address and risk location shown in policy 466 where claim is preferred is Gala No.5, Chaudhari Park, Palashe Nashik, Maharashtra-422 001.”  So at different address policy was taken and renewed.  Investigator found that one of the purchase bill is of Shri AK Sports with address K-77, 2^nd floor, CIDCO, Sector-4, Airoli, Navi Mumbai-400 708.  Investigators representative visited the above locality on 10/05/2006.  It was the same place which is ground + two storied structure (independent house) and outside the K-77 structure he noticed  a board of Datta Sports and Gifts and there was no commercial activity seen and it was a residential place.  The bill is of A.K.Sports. There was nothing to show the existence of said trading firm at the above address.  The owner R.Borate never approached the surveyor during his visit to Nashik.  Appasaheb Golekar was following up the claim and he accompanied him to Village-Palse, District Nashik.  Investigator also found that various claims were preferred by the firm with various companies and therefore, investigator came to a guarded conclusion that this was the bogus and fraudulent claim preferred by M/s.Bharosa Traders.  In the Forum below the investigator had given affidavit that in the investigation she has carried out in respect of M/s. Bharosa Traders claim was found to be false and fraudulent.  Forum below overlooked this investigator’s report and did not bother to give any value to this investigator’s report.  So also the surveyor K. Sodha had given affidavit to prove that he had made a survey report and in his survey report he had came to a finding that this fire was preplanned fire and that is why he had not assessed the actual damage caused in the fire.  He proved surveyor’s report and to prove surveyor’s report he has filed an affidavit before District Consumer Disputes Redressal Forum.  Besides the affidavit of surveyor, there is also an affidavit cum reply filed by Sandeep Chaterjee, officer of United India Assurance Co. Ltd., who clearly stated on affidavit that the claim preferred by the complainant firm was absolutely false.  All the papers were got up one.  The photos were identical in respect of various claims preferred by M/s. Bharosa Traders either with United India Assurance Co. Ltd. or with other companies and there was a same modus operandi to prepare false claim.  The owner never approached to make enquiry about claim lodged on behalf of M/s. Bharosa Traders, but one Mr.Appasheb Golekar used to come to make enquiries about the claim.  A.K.Sports was not in existence and there was a sign board of Datta Sports and Gifts at a place on which the address of A.K.Sports was given.  So, all the documents produced by M/s. Bharosa Traders were appearing to be bogus one an on the basis of such documents the Forum below placed all the reliance and allowed the complaint to give compensation of `3,25,995/- with interest@18% p.a. besides awarding cost of `5,000/- towards mental harassment and `3000/- towards cost of proceedings.

        In our view the Forum below did not appreciate the facts on record properly and did not give any value to the affidavits and reports of surveyor as well as investigator wherein both have them claimed on affidavit that claim was bogus and fraudulent and it was a stage managed affair.  The bills were procured from various sports shops which are not at all in existence.  Stock register produced by the complainant-firm was not at all verified or certified by Chartered Accountant. Person who signed bills as  supplier of goods was the person following the claim.  So, the person who was supplier to M/s. Bharosa Traders was also following the claim preferred by M/s.Bharosa Traders.  The identity of salvage was not established to prove sale of salvage to the highest bidder.  Therefore, it appears that the claim preferred by respondent firm was absolutely false, fraudulent and frivolous and it was rightly repudiated by the insurance company.  But ignoring this fact the Forum below allowed the complaint and awarded maximum compensation asked for by the respondent firm.  In the circumstances, we are of the view that facts on record clearly prove that this was a bogus claim preferred by M/s. Bharosa Traders.  They were in the habit of making false fire claims using the same materials and using bogus purchase bills etc.  Even they had taken insurance policy initially at different addresses and at the time preferring claim in that year, they had changed the address to Gala no.5 village-Palse, District- Nashik whereas initially they had simply mentioned address as 910, Palshe, Nashik Road.

In the circumstances, we are finding that this claim is erroneously allowed by the District Consumer Disputes Redressal Forum.  This complaint was required to be dismissed since it involved a fraudulent claim.  The documents and affidavits placed on record, bills produced on record were not proving the fact that complainant firm had in fact suffered damage in a accidental fire.  With the help of bogus bills the claim was sought to be proved.  In any view of the matter, we are not finding that claim of the respondent was tenable in law and therefore, by allowing this appeal we are inclined to quash and set aside the order passed by the District Consumer Disputes Redressal Forum.  Hence, we pass the following order:-

                                        :-ORDER-:  

1.           Appeal is allowed.

2.           Judgement and award passed by the District Consumer Disputes Redressal Forum, Nashik is hereby quashed and set aside.

3.           Complaint no. 250/2006 stands dismissed.

4.           No order as to costs. 

5.           Copies of the order herein be furnished to the parties as per rules in force. 

Nbh