ORDER (Arun Kumar Goel, J. (Retd.) President) -Heard learned Counsel for the parties and with their assistance we have also examined the record of the case. 2.Admitted facts of this case are that two policies were issued by the appellant in favour of the respondent. Vide one Photostat machine etc. was insured, and the other policy covered General Store Items. Cover note No. 591418 was issued in this behalf, which is subject matter of this appeal. Total sum insured was Rs. 1,30,000. Out of this, Rs. 1,20,000/- covered risk of stocks of general store items and such other items pertaining in the insured premises, built of A class construction and Rs. 10,000/- covered risk of the furniture, fixtures and fittings. Fire broke out in the premises on 20.4.2001. 3.So far claim regarding Photostat machine etc. is concerned, it has been already settled between the parties on the basis of the report of surveyor as per learned Counsel for the parties. As such present appeal only relates to the controversy pertaining to stock and trade, furniture, fixtures and fittings being subject matter of cover note No. 591418. Fire is one in both the insurance covers. 4.With a view to support the case of his client Sh. Tajta learned Counsel, laid emphasis on clause No. 7 of the shopkeeper’s insurance policy Annexure- OP-2. this clause reads as under:- 7. “Fraud: If any claim under this Policy shall be in any respect fraudulent or if any fraudulent means or device are used by the Insured or any one acting on the Insured’s behalf to obtain any benefit under this Policy all benefits under the Policy shall be forfeited.” 5.On the basis of this clause, Sh. Tajta by referring to the record pointed out that the bills submitted by the respondent were found to be fraudulent on investigation, as the persons who are alleged to have issued those, had intact never issued any such bills. Not only this, such persons swore affidavits too in this behalf. 6.Matter did not rest here. A Local Commissioner was appointed by the District Forum below to investigate this case and he has submitted report which is also in consonance with what is noted in preceding para. Therefore, on the basis of this material and facts, Mr. Tajta pointed out that this appeal deserves to be allowed. 7.Surveyor was appointed by the appellant and his report is Annexure OP-1. Therefore, on the basis of this material and facts, Mr. Tajta pointed out that this appeal deserves to be allowed. 7.Surveyor was appointed by the appellant and his report is Annexure OP-1. In the report which is filed as well as relied upon by the Insurance Company, the surveyor has mentioned that the assessment of stock was made that was lying at the spot. This report is of dated 15.7.2001 and is at pages 263 to 277 of the complaint file. For ready reference, assessment of the stock as observed by him is extracted hereinbelow:- “STOCKS:- Refering para value at risk, we have worked out the value of stocks lying in the insured shop covered under Cover Note No. 591418 is Rs. 68,240.00. Since, most of the stocks burnt in the fire and partially burnt stock is also unsaleable in the shop we therefore assess the loss as = Rs. 68,240.00 Less expected salvage value at 5% on an Average = Rs. 3,412.00 = Rs. 64,828.00 (Emphasis supplied). 8.It appears that the appellant Insurance Company was not satisfied with this report Annexure OP1, as such another surveyor, Sh. Ashok Kumar Sharma was appointed by it to verify the purchase bills. He pointed out that the bills were fake whereas in his report Sh. H.P. Singh has stated that the sum of Rs. 51,450/- (less excess if applicable) was applicable after verification of purchase bills. 9.On behalf of the respondent it was submitted that merely because on verification bills were found ‘to be fake does not make any difference and those were rightly ignored while ordering payment of compensation by the District Forum below. In addition to this learned Counsel also brought to our notice the fact that full amount is payable as detailed in Annexure OP1 produced and relied upon by the appellant. This document is dated 15.7.2001. This resulted in the filing of appeal by the Insurance Company, who has been directed to pay Rs. 42,500/- to the respondent alongwith 9% interest on the aforesaid amount, besides Rs. 1,000/- as compensation on account of mental pain, agony, inconvenience and further sum of Rs. 1,000/- as cost of litigation has also been allowed. This document is dated 15.7.2001. This resulted in the filing of appeal by the Insurance Company, who has been directed to pay Rs. 42,500/- to the respondent alongwith 9% interest on the aforesaid amount, besides Rs. 1,000/- as compensation on account of mental pain, agony, inconvenience and further sum of Rs. 1,000/- as cost of litigation has also been allowed. 10.In our opinion only question that needs determination is whether despite the bills having been found to be fake, both as per the report of Surveyor and the Local Commissioner, can be made basis for repudiation of the claim of the appellant as per clause-7 (supra, of the policy in question. 11.For the reasons to be recorded hereinafter, to this poser our answer is the negative and we feel that the respondent is entitled to large relief without any appeal having been filed by him for enhancement etc. Though Mr. Tajta said that no relief can be granted to the respondent beyond what has been given by the District Forum below, in the absence of appeal by him. This plea is again without merit. 12.Because as per Annexure OP-1, the Surveyor had as a question of fact found that some stocks were there at the spot after fire in the premises and it was only then he assessed the value thereof. It is not the case of the appellant that Annexure OP-1, produced and relied upon by it, is either a procured document by the respondent or not based on facts. Further why and for what reason this document be not accepted, learned Counsel for the appellant was unable to satisfy us, save and except by harping upon the affidavits of the persons who had denied having issued the bills given by the respondent to the appellant, as well as the unchallenged report of the Local Commissioner appointed by the District Forum below. 13.The stand of the appellant is without any basis. Reason being that accepting the bills to be fake and having not been issued by the persons concerned, what is contained and relied upon by the appellant in Annexure OP-1 could not be contested and or disputed by it. Moreover, fake bills do not wash out the facts noted in this Annexure after sport verification by the Surveyor. Fire is admittedly of 20.4.2001 and Surveyor visited spot on 24.4.2001, who then gave his report Annexure OP-1. Moreover, fake bills do not wash out the facts noted in this Annexure after sport verification by the Surveyor. Fire is admittedly of 20.4.2001 and Surveyor visited spot on 24.4.2001, who then gave his report Annexure OP-1. It can not be either at the sweet will or whim and fancy of the appellant to have appointed one Surveyor after the other. No reasons are found nor could be pointed from record by Mr. Tajta to have appointed the second Surveyor. And as noted above, one claim out of same fire incident has been settled by the appellant. 14.At the risk of repetition we may clarify that it is not the case of the appellant that stock found at the spot as assessed by the Surveyor and contained in Annexure OP-1 on 24.4.2001, as extracted hereinabove from his report, was not correct. As such the fake bills etc. relied upon by the Insurance Company, as well as in the report of the Local Commissioner, appointed by District Forum becomes meaningless and of no significance. As such no benefit can be derived by the appellant from those. 15.What was insured is detailed in the cover note No. 591418. After fire what was found and assessed is as per Annexure OP-1. 16.After the matter was heard, it was felt, while preparing the judgment on 25.3.2008, that matter needs to be re-heard on the aspect whether the respondent is entitled to only the agreed amount as consented to by him before the surveyor as noted in his report. 17.We may add here that appellant cannot be permitted to bind down the respondent so far consent given by him to accept a lump-sum amount before the surveyor for all times to come. Because in a given case he might have agreed to accept such amount at that particular point of time for various reasons. In case it was, not intended to settle the case on such agreed amount, there was nothing that prevented the appellant to have rejected the acceptance given by an insured, the respondent in this case. In this behalf we are of the firm view that the Insurance Company cannot be allowed to trap an insured and then repudiate his claim. And then again insist that it is not liable to pay anything beyond consented amount if at all it comes to paying anything. In this behalf we are of the firm view that the Insurance Company cannot be allowed to trap an insured and then repudiate his claim. And then again insist that it is not liable to pay anything beyond consented amount if at all it comes to paying anything. 18.Once the consent is obtained, in our opinion it pre-supposes that all formalities were completed and it was only thereafter that the consent was obtained by the surveyor. Otherwise it not only tentamounts to laying of a trap, but also is an unfair trade practice being adopted on behalf of the appellant and the Surveyor appointed by it for assessing the loss. As such according to us respondent cannot be bound down to the consent till perpetuity, given by him. 19.Within the 3/4 days of the fire incident Surveyor visited the spot on 24.4.2001 and thereafter submitted his report Annexure OP-1. We may notice in this behalf, it is neither the case of appellant that Surveyor did not find the stocks and his observations in this behalf are extracted hereinabove, and or what he has stated is nor correct. To the contrary appellant is relying upon this document. But without meaning to accept the same by harping on clause-7 of the policy condition and fake bills thus alleging fraud. 20.Fraud is a question of fact to be established like any other fact. Bills may be fraudulent, but nothing could be pointed out from record qua the portion extracted hereinabove from OP-1 regarding what was found at the spot on 24.4.2001. Onus of proving fraud was on the appellant, which it has failed miserably. 21.We are aware that fraud if is proved, will vitiate the contract. However, that is not the situation in the case before us. Fraud has a special connotation in the law, and facts are to be established in order to take advantage thereof. There is no evidence worth the name regarding the stocks having not been found immediately after the fire at the spot. As such second Surveyor’s report, as well as that of the Local Commissioner do not in any manner advance the case of the appellant. These also do not establish the fraud under law or within the ambit of clause-7, supra. As such second Surveyor’s report, as well as that of the Local Commissioner do not in any manner advance the case of the appellant. These also do not establish the fraud under law or within the ambit of clause-7, supra. 22.Since we have held that the respondent cannot be bound down by the consent given by him before the Surveyor for all times to come, therefore, we are of the view he is entitled to the total sum of Rs. 64,828/- being the net loss assessed on stocks as per Annexure-OP-1, even without his having filed the appeal, as was submitted by Sh. Tajta to contrary. 23.On this aspect, a show cause notice was issued which was accepted on 25.3.2008 on behalf of the Insurance Company, and the learned Counsel for the parties were heard further. Mr. Tajta re-iterated what was urged by him earlier. We have found no substance in the submissions for confining the claim to what was agreed upon by the respondent before Surveyor. Resultantly, it is held that appellant is liable for the payment of Rs. 64,828/- to the respondent. Ordered accordingly, besides this on account of harassment and mental torture in the circumstances of this case, respondent is also held entitled to punitive damages which we quantify at Rs. 10,000/-, besides costs of this appeal Rs. 5,000/-. Interest as awarded by District Forum below is payable from 1.11.2001 till the date of payment/deposit, whichever is earlier on the aforesaid sum of Rs. 64,828/-. This date we have fixed after allowing six months time to the appellant for the settlement of claim. We are the compensation from what was awarded on the anology of order XLI, Rule 33 of CPC. 24.Sh Tajta tried to pick up the last straw by relying upon the decision of National Commission in the case of R.S. Industries & another v. National Insurance Company Ltd., 2008(1) CPJ 276 (NC) = 2008(1) CPC 529 N.C. This was a case of pre framed to mis-appropriate levy rice sent to different stations through railway. Therefore, burgary was alleged and case was registered after last truck was loaded. In fact the rice had not been stolen but were removed by the insured in pre-planned manner, thus he committed fraud with the Insurance Company. Therefore, burgary was alleged and case was registered after last truck was loaded. In fact the rice had not been stolen but were removed by the insured in pre-planned manner, thus he committed fraud with the Insurance Company. In these circumstance repudiation was upheld by the National Commission and cost was also levied as deterrence for others from filing fraudulent claims. Acquittal in criminal case has no bearing in deciding civil matters was also held in this case. 25.A perusal of this judgment shows that it is a judgment on its own facts. Further on one hand appellant relies upon Annexure OP-1, thus how on the other it now wants to rely on the report of the Local Commissioner or second Surveyor. Appointment of one Surveyor after the other has always been deprecated, unless such appointment is justified and is in consonance with the provisions of Insurance Act, Above all no reason could be pointed out on behalf of the appellant to ignore Annexure OP-1. 26.No other point was urged. 27.As a result of the aforesaid discussion while dismissing the appeal of the Insurance Company, it is ordered as under: (a)) that the appellant is held liable for the payment of Rs. 64,828/- instead of Rs. 42,500/- to the respondent; (b) On the said sum of Rs. 64,828/- appellant is held entitled to interest @ whichever is earlier; 9% per annum from 1.11.2001 till the date of payment/deposit; (c) Respondent is also held entitled to Rs. 10,000/- as punitive damages; (d) Rs. 5,000/- towards cost of this appeal. 28.All interim orders stand vacated forthwith. 29.Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Reader. Appeal dismissed. M.R.B. ———————