ORDER Arun Kumar Goel, J. (Retd.), President - This appeal has been filed by the appellant-Insurance Company, against the order passed by District Forum, Sirmaur at Nahan, on 09.09.2009, in Consumer Complaint No.121j 2006. While allowing the complaint, following direction has been issued:- "7. Even now, when the fire which took place in the premises of the complainant occurred on 15.02.2006, whereas, Annexure C-2, was prepared on 05.02.2006, hence, the value of the stock in trade as detailed in Annexure C-2, also cannot provide a safe parameter in adjudging the exact compensation payable to the complainant. Therefore, it is deemed fit, just and equitable that after, reducing from the value, of the stock in trade lying in the premises of the complainant, as detailed in Annexure C-2, the average per day of the sales conducted by the complainant from the stock lying in the premises of the complainant from 05.02.2006 till 15.02.2006, the, outstanding sum shall become the amount payable to the complainant for loss suffered by the complainant in the incident. Hence, the said sum so arrived at, is, as such, payable to the complainant by the OP-Company along with interest, at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 07.12.2006, till making entire payment of the sum, along with litigation cost, which is quantified at Rs.3500/ -. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order. With this, the complaint stands disposed of in the above terms. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room." 2. Respondent filed complaint before District Forum below alleging therein that it was running an industrial unit for manufacturing of raxin school bags, ordinary bags, cycle seat covers etc. This unit was being run in hired premises of M/s Umesh Industries, Pvt. Ltd., at Kala Amb, Tehsil Nahan, District Sirmaur. 3. Unit of the respondent being insured in the sum of Rs.2 lacs for plant and machinery etc. and for Rs.5 lacs for the stock in trade etc. is admitted between the parties. This unit was being run in hired premises of M/s Umesh Industries, Pvt. Ltd., at Kala Amb, Tehsil Nahan, District Sirmaur. 3. Unit of the respondent being insured in the sum of Rs.2 lacs for plant and machinery etc. and for Rs.5 lacs for the stock in trade etc. is admitted between the parties. Total insurance cover in the sum of Rs.7 lacs was for complete plant and machinery, stitching machines, furniture and fixtures, similar type of other goods of insured; and raw material, finished, semi-finished and goods in process such as raxin, CC. fabric, tarpaulin etc. lying or stored in the premises of the insured. 4. From the record, it appears that earlier the respondent was operating from Suketi Road, Nangal, Post Office Kala Amb, District Sirmaur. However on 15.02.2006 when fire broke out in the industrial unit, address given in cover note annexure-C was- "C/o Umesh Industries, Nahan Road Kala Amb, District Sirmaur, Himachal Pradesh". In context of this annexure, it may be noted that policy period was 00:00 hours on 30.09.2005 to midnight of 29.09.2006. 5. As a result of fire, according to respondent all the finished/un-finished products and raw material lying in the factory was burnt. Matter was brought to the notice of appellant, and the police was also informed about this fire incident. Police recorded Daily Diary Report No.26 at Police Station, Kala Amb. Respondent claimed to have suffered loss to the extent of Rs.5,57,900/- qua the stock in trade, as it was destroyed in the fire. Claim was lodged by the respondent for being indemnified with the appellant, which was repudiated vide communication dated 26.09.2006. 6. Before filing the complaint, legal notice annexure-N was also got issued by the respondent to the branch of the appellant, who had undertaken the insurance. 7. Record of complaint file further shows, that the respondent had obtained financial assistance from UCO Bank, from its Ogli branch and had been submitting monthly stock statements to it from time to time. Copies of stock statements are annexures C-2 to C-4 of the relevant period. 8. In the aforesaid background after repudiation of its claim, respondent filed consumer complaint wherein above extracted order has been passed. Appellant justified the repudiation while contesting the complaint. It was pleaded by the appellant that the complaint was not maintainable as the respondent had no locus standi, its status as "consumer" was also disputed. 8. In the aforesaid background after repudiation of its claim, respondent filed consumer complaint wherein above extracted order has been passed. Appellant justified the repudiation while contesting the complaint. It was pleaded by the appellant that the complaint was not maintainable as the respondent had no locus standi, its status as "consumer" was also disputed. On receipt of intimation Surveyor was peputed to investigate into the matter. While admitting that claim was lodged by the insured with regard to fire incident with it, being a case of fraud, and also the insured having submitted fabricated document it was repudiated. Further stand of the appellant was that the industry was not running at the given address. Earlier also the respondent had got insurance claim of the value of Rs.1,64,135/-. This was also related to a fire incident. Pith and substance of stand of appellant was that the claim lodged by the respondent was fraudulent aimed at grabbing the insurance money. Thus according to it there was no deficiency of service on part of appellant. 9. Mr. Jagdish Thakur, learned counsel for the appellant in support of this appeal urged that the respondent was not a "consumer", within the meaning of Section 2 (1) (d) of Consumer Protection Act, 1986, therefore there was no consumer dispute between the parties to be adjudicated upon by the Foras under this Act. As such the impugned order was liable to be set aside on this ground alone. 10. This plea was seriously contested by Mr. Attri, learned counsel for the respondent. Per him insurance is admitted, fire being there is clearly established from the material on record, there is no question of the appellant being not a "consumer." Thus Mr. Attri prayed for rejection of this plea urged on behalf of the appellant. 11. In the context of above plea, Mr. Thakur also drew our attention to a decision of Hon'ble the Supreme Court in case Karnataka Power Transmission Corporation and Another versus Ashok Kumar Iron Works Private Limited, another case (2009) 3 Supreme Court Cases 240 : 2009 (2) CPC 426 SC. 12. After having considered respective submissions as well as the documentary evidence on record, we are of the view that insurance was undertaken by the appellant of stock in trade as well as plant and machinery, as such it was rendering service for consideration received from the respondent. 13. 12. After having considered respective submissions as well as the documentary evidence on record, we are of the view that insurance was undertaken by the appellant of stock in trade as well as plant and machinery, as such it was rendering service for consideration received from the respondent. 13. At this stage, Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002, assumes significance. These regulations have been framed by Insurance Regulatory and Development Authority, in exercise of powers vested in it, under Insurance Act, 1938 as well as Insurance Regulatory Development Authority Act, 1999. As per Regulation-3 of these Regulations of 2002, it was the duty of the person who undertook the insurance in this case to have explained to the insured at such time, that what was the risk covered, what was not covered, what were pros and cons of policy, what were the exceptions and in what cases the respondent would be entitled to insurance claim and in what situations he will not be entitled thereto. 14. We specifically called upon Mr. Thakur to point out anything from the complaint file, whether the requirements of Regulation-3, of Regulations, 2002 (supra), were made known to the respondent, he could not bring anything to our notice even to remotely suggest there was compliance of these Regulations. As such no benefit can be derived by Mr. Thakur from the decision of Hon'ble Supreme Court. That being the position, we are of the view that the plea urged on behalf of appellant to the effect that there was no consumer dispute, and or respondent was not a "consumer" within the meaning of Section 2 (1) (d) of Consumer Protection Act, 1986 is hereby rejected being without merit. 15. Next plea urged by Mr. Thakur was, that his client was not liable to indemnify the respondent, because the insured premises as per record of the appellant were situate at "Suketi Road Nangal, Kala Amb", whereas the claim has been lodged qua the industrial unit that was situate at "C/o Umesh Industries, Nahan Road, Kala Amb, District Siarmaur." This was in violation of terms and conditions of insurance subject to which insurance had been undertaken by the respondent. No intimation regarding change of premises was given to the appellant, as such the appellant was not liable per Mr. Thakur to indemnify the respondent. 16. No intimation regarding change of premises was given to the appellant, as such the appellant was not liable per Mr. Thakur to indemnify the respondent. 16. In our opinion this plea is being noted to be rejected. Reason being that annexure-C copy of cover note which is at page-40 of complaint file, clearly indicates that the insured's name and address was as under:- "M/s. Bharti Industries, C/O Umesh IND. Nahan Road Kala Amb, Dist. Sirmaur, Himachal Pradesh 173001." This cover note pertains to the period 30.09.2005 to midnight of 29.09.2006, and as already noted fire had taken place on 15.02.2006. In the face of this document, there is not substance in the submission of Mr. Thakur, and he was not able to stretch this submission further. 17. By referring to annexure OP-6, Mr. Thakur submitted that the appellant is not liable to pay anything, in the alternative, but without conceding, he submitted that at the best the appellant can be held liable to pay only Rs.1,14,478/ -. However this being a case covered by policy terms and conditions annexure OP-l, under head "fraud", as such even this amount was not payable by the appellant. Though he immediately pointed out that by making the alternate submission, he is not giving up the plea of his client being not liable to pay any sum. 18. Fraud is a question of fact which needs to be established by leading evidence. Whereas in the instant case, the respondent has placed adequate documentary evidence including the declarations in Form No.XXVI-A Issued at the concerned Excise Barriers established in Himachal Pradesh by the Excise and Taxation Department to show that the stock in trade which was insured had been in-fact brought into the factory premises. We cannot overlook this contemporaneous official record, supported with supply bills of suppliers from whom the goods were purchased by the respondent as well as by the goods receipts (GRs). 19. In this connection, Mr. Thakur referred to annexure OP-6, and urged that when the attempts were made by the Surveyor to contact the suppliers whose bills were there on the record, they were not traceable either at the given address(s) or at phone number(s). This clearly indicates per Mr. Thakur, that the bills etc. were forged by the respondent with a view to extort the amount from his client. This clearly indicates per Mr. Thakur, that the bills etc. were forged by the respondent with a view to extort the amount from his client. Per him, District Forum below fell into error by ignoring this vital aspect of the case and he prayed for allowing this appeal on this count as well. 20. Suffice it to say in this behalf, that the Surveyor should have made enquires from the Excise Barriers as well as the transporters whose GRs are on record regarding goods having crossed those or not? Mr. Thakur at this stage pointed out that there was no such information provided by the respondent to the Surveyor. Though this stand of the appellant was seriously contested by Mr. Attri. Assuming what is alleged by the appellant to be correct, fact remains that after filing of the complaint before the District Forum below, nothing prevented the appellant to have got these documents verified from the concerned Excise Barriers, as well as the transporters, who had issued those, bill-wise alongwith help of excise receipts, goods receipts etc. Learned counsel for the appellant had no answer to this position: His only submission was that once the matter was sub-judice, no purpose would have been served by getting enquiry made. As such according to him fraud is writ large in this case and documents to the contrary referred to by Mr. Attri need to be ignored while disposing of this appeal. 21. On examination of entire record particularly the bills alongwith sales tax declarations given on Form No.XXVI-A, as well as goods receipts (GRs), we are satisfied that the goods had actually been transported vide these bills by the respondent to the premises to which annexure-C cover note pertains to. Thus there was no question of fraud. 22. So far as alternate plea based on annexure OP-6 by Mr. Thakur is concerned, we may point out that even this plea cannot be accepted. A perusal of annexure OP-6 shows that the Surveyor had not taken up the matter with the bank, who had provided cash credit limit in the sum of Rs.4,75,000/- to the respondent as is evident from annexure C-l copy of certificate issued by Ogli branch of UCO Bank. A perusal of annexure OP-6 shows that the Surveyor had not taken up the matter with the bank, who had provided cash credit limit in the sum of Rs.4,75,000/- to the respondent as is evident from annexure C-l copy of certificate issued by Ogli branch of UCO Bank. It is a matter of common knowledge and also known banking practice, that a loanee who avails financial limit/assistance from a banker, as is clearly made out from the instant case, under law is bound to provide monthly stock statement, so that the interest of bank is adequately protected. From documents on record particularly annexure C-2, stock of the value of Rs.6,65,840/- was with the respondent. In these circumstances, it is evident that on 05.02.2006 the stock in trade was under insured as there was excess stock in trade to the extent of RS.l,65,840/ - on the basis of annexure C-2. 23. In the face of this position, which emerges from the documents on record, submission of Mr. Thakur that the factory was not in operation on the date when fire had taken place and or that the goods had not been purchased, as well as brought by the respondent as per bills, through goods receipts and those having not crossed the Excise Barriers in the face of declarations in Form No.XXVI-A cannot be accepted. Hence rejected. 24. Trying to catch last straw in the circumstances of this case, Mr. Thakur urged that annexures C-l to C-3 have not been referred to in the affidavit filed in evidence by the respondent. Therefore according to him, the impugned order was liable to be set aside. Annexure C-l is certificate issued by the bank regarding limit provided to the respondent, and annexures C-2 and C-3 are stock statements furnished by the respondent as per requirement of the bank. 25. It may be appropriate to notice here that it is not the case of the appellant, that the bank authority was in- that the goods had actually been transported vide these bills by the respondent to the premises to which annexure-C cover note pertains to. Thus there was no question of fraud. 22. So far as alternate plea based on annexure OP-6 by Mr. Thakur is concerned, we may point out that even this plea cannot be accepted. Thus there was no question of fraud. 22. So far as alternate plea based on annexure OP-6 by Mr. Thakur is concerned, we may point out that even this plea cannot be accepted. A perusal of annexure OP-6 shows that the Surveyor had not taken up the matter with the bank, who had provided cash credit limit in the sum of Rs.4,75,000/- to the respondent as is evident from annexure C-l copy of certificate issued by Ogli branch of UCO Bank. It is a matter of common knowledge and also known banking practice, that a loanee who avails financial limit/assistance from a banker, as is clearly made out from the instant case, under law is bound to provide monthly stock statement, so that the interest of bank is adequately protected. From documents on record particularly annexure C-2, stock of the value of Rs.6,65,840/- was with the respondent. In these circumstances, it is evident that on 05.02.2006 the stock in trade was under insured as there was excess stock in trade to the extent of Rs.l ,65,840/- on the basis of annexure C-2. 23. In the face of this position, which emerges from the documents on record, submission of Mr. Thakur that the factory was not in operation on the date when fire had taken place and or that the goods had not been purchased, as well as brought by the respondent as per bills, through goods receipts and those having not crossed the Excise Barriers in the face of declarations in Form No.XXVI-A cannot be accepted. Hence rejected. 24. Trying to catch last straw in the circumstances of this case, Mr. Thakur urged that annexures C-l to C-3 have not been referred to in the affidavit filed in evidence by the respondent. Therefore according to him, the impugned order was liable to be set aside. Annexure C-l is certificate issued by the bank regarding limit provided to the respondent, and annexures C-2 and C-3 are stock statements furnished by the respondent as per requirement of the bank. 25. It may be appropriate to notice here that it is not the case of the appellant, that the bank authority was in-connivance with or was in any manner instrumental in having accepted such statements without the stock detailed in those being there in the hands of the respondent. In these circumstances submission urged by Mr. 25. It may be appropriate to notice here that it is not the case of the appellant, that the bank authority was in-connivance with or was in any manner instrumental in having accepted such statements without the stock detailed in those being there in the hands of the respondent. In these circumstances submission urged by Mr. Thakur to discard annexures C-2 to CA and or those having not been referred to in the affidavit cannot be accepted. 26. On the basis of report of Fire Department particularly documents annexure OPA and OP-5, Mr. Thakur submitted that as per these documents, respondent had added "0" at the end of Rs.40,000/- to show that his claim was in the sum of Rs.4 lacs instead of Rs.40,000/-. Total loss estimated by Office Incharge, Fire Station Nahan, is shown at Rs.4 lacs in annexure OP-4, whereas in annexure OP-5 it is shown in the sum of Rs.40,000/-only. Mr. Thakur pointed out that loss was not to the extent as alleged by the respondent, but was only in the sum of Rs.40,000/-. However with a view to extract money fraudulently, the amount was inflated ten times, therefore according to Mr. Thakur, this is a ground to reject the claim, and in the alternative to confine it to the minimum sum of Rs.40,000/-, and in no case it can be stretched beyond Rs.1,65,840/ - as per Surveyor's report annexure OP-6. We are not inclined to accept this submission of Mr. Thakur. Fire people are only meant to douse the fire, but what is extent of loss it is not for them to assess or to come to a definite conclusion. Annexure OP-5 does not spell. out as to on what basis the sum of Rs.40,000/- was worked out by the fire department. 27. Submission of Mr. Thakur to accept this document and consequently hold that fraud had been practiced by the respondent even if assumed to be correct, cannot belie the stock statements submitted by the respondent to his banker, UCO Bank, Ogli, as such plea on behalf of respondent, by Mr. Attri needs to be upheld. Ordered accordingly. 28. 27. Submission of Mr. Thakur to accept this document and consequently hold that fraud had been practiced by the respondent even if assumed to be correct, cannot belie the stock statements submitted by the respondent to his banker, UCO Bank, Ogli, as such plea on behalf of respondent, by Mr. Attri needs to be upheld. Ordered accordingly. 28. As per stand of respondent in the complaint, it had sustained loss in the sum of Rs.5,57,900/- as detailed in annexure-Q. This being a case of under insurance, because admittedly stock in trade was insured in the sum of Rs.5 lacs only, as such the amount payable by the appellant has to be worked out accordingly. 29. Looking to the totality of facts and circumstances of the case and also keeping in view the fact that compensation payable needs to be determined rather leaving it to the choice of the appellant as ordered in the above extracted impugned order. Thus we are of the view, that we have to get into some guess work. As such with a view to ascertain sales, those had been made between 05.02.2006 till the date when fire incident took place i.e. 15.02.2006, thereby causing substantial damage to the respondent. We are of the view that sale had been conducted to the extent of Rs.50,000/-. As such we are of the view that interest of justice will be well served, if the impugned order is modified thereby holding that the appellant is liable to indemnify the respondent as under:- a) Sum insured Rs.5, 00, 000/ b) Amount to be deducted all account of under insurance Rs. 57, 900/ c) Approximately sales between 05.02.2006 to 15.02.2006 Rs.50,000/ - d) Balance amount payable by the appellant to the respondent Rs.3, 92,100/- In addition to sum of Rs. 3,92,100/ - the appellant is liable to pay interest @ 9% per annum on this amount besides cost as assessed by District Forum below. 30. No other point was urged. 31. Appeal is disposed of with above modification in the order of District Forum, Sirmaur at Nahan in Consumer Complaint No.121/2006, dated 09.09.2009, without any orders as to cost of appeal. 32. All the interim orders passed from time to time in this appeal shall stand vacated forthwith. 33. 30. No other point was urged. 31. Appeal is disposed of with above modification in the order of District Forum, Sirmaur at Nahan in Consumer Complaint No.121/2006, dated 09.09.2009, without any orders as to cost of appeal. 32. All the interim orders passed from time to time in this appeal shall stand vacated forthwith. 33. Learned counsel for the appellant has undertaken to collect copy of this order from Court Secretary free of cost as per rules and office is directed to send the same in the like manner to the respondent through its learned counsel Shri Sushil Attri, at his address, District Courts, Nahan, District Sirmaur, H.P. M.R.S.