Heard Mr.G.P.Dutta, learned counsel for the appellant and Mr.P.R.Barik,learned counsel for the respondent physically.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant being proprietor of S.K.Aluminium has its unit situated at Arnapal,Anandabazar of Bhadrak district but its head office is at Gopalgaon in the district of Balasore. It is alleged inter-alia that the complainant has opened said shop by incurring loan from the financer and he has allegedly made the stock for the shop insured under the OP on payment of premium. The complainant alleged that on 26.04.2001 midnight some miscreants entered into the shop of the complainant, removed valuable articles which caused about loss of 3 lakhs. The police was informed and the police gave final report but latter objected to it. Then OP was informed. The insurer deputed surveyor who found the claim is false one. The OP repudiated the claim on the ground that fraud has been committed by the complainant. But showing said repudiation as deficiency of service on the part of the OP, the case is filed by complainant.
4. The OP filed written version stating that the case is not maintainable. During investigation they found that the complainant has filed false case because the complainant himself removed the insured article and again filed the complaint case against the OP just with purpose to grab the insured amount. After examining the report successfully by investigation, OP has taken action. There is no deficiency of service on the part of the OP.
5. After hearing both the parties, learned District Forum passed the impugned order in the following manner:-
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“ In the result, for the reasons stated above, we allow the complaint against Ops-Insurance Co. and direct the Ops to pay Rs.2,00,000/- to the complainant towards loss sustained by the complainant alongwith interest @ 12% per annum from the date of acceptance of final Forum by the Ld. S.D.J.M.,Bhadrak i.e. on 20.08.2001. The Ops-Insurance Co. are further directed to pay litigation cost of Rs.1000/- to the complainant. The case against OP No.3 is dismissed as they have no role to play. The Ops –Insurance Co. are directed to make payment of the aforesaid amount within 60 days of receipt of this order. “
6. Learned counsel for the appellant submitted that learned District Forum committed error in law by not going through the written version of the OP. It is also stated that the police has filed final report but that can not be the basis for investigation by OP for which the appellant has independently made investigation. However, learned District Forum has not applied judicial mind to all such facts and material.
7. Learned counsel for the respondent submitted that this is a unique case where fraud has been alleged by OP against the complainant but the OP has not discharged the onus by proving the fraud. It is well settle in law that person who alleges about the fraud has to prove the same. It is also stated by the learned counsel for the respondent that they have already filed the affidavit challenging the affidavit of the witness examined by the OP. However, he supports the order of the learned District Forum.
8. Considered the submission of respective counsels, perused the DFR and impugned order.
9. The complainant is required to prove the deficiency of service on the part of the OP. But, since fraud has been alleged in this case, no doubt the onus lies on the OP to prove the fraud committed by complainant. The OP, in order to establish the fraud has produced the surveyor report and the statement of witnesses. No doubt the affidavit of villagers Pradeep Kumer Behura, Sakhijini Jena and Panchnnan Jena are filed by OP to prove that complainant has removed the stock including structures but the complainant has also filed the counter affidavit. After going through all material, this Commission is of the view that the matter should have been examined more by the learned District Commission before passing any order. Be that as it may, when the evidence of the OP is challenged by the complainant by counter affidavit, it requires cross examinations of the concerned witnesses. This Commission is not inclined to send back record but when the necessary affidavit of witnesses have been proved, the adverse party must be allowed to cross examinee them. So, this Commission is of the view that the matter should be remanded to the learned District Commission for ends of justice for denovo hearing and disposed of according to law and both the parties are directed to produce witnesses with regard to allegation to find out the truth. Hence, the impugned order of the learned District Forum is liable to be set-aside and it is set-aside. Learned District Commission is directed to dispose of the case within 60 days from the date of receipt of this order. Both parties are directed to download the order from the confonet or the website of this Commission and produce before the learned District Commission on 31st August,2021 to take further instruction. It is made clear that this Commission has not opined anything on the merit of the case. No cost.
DFR be sent back forthwith.
