Per Justice (Retd.) G.D.Sharma 1. Order dated 18.12.2006, passed by the learned Divisional Forum, Kashmir (hereinafter to be referred to as the Forum) has been taken in appeal, whereby and whereunder the complaint of respondent no.l has been allowed and appellant has been directed to reimburse respondent no. 1 to the extent of Rs.4,41,000/- alongwith interest @ 6% per annum after six months from the date of loss till realization. Litigation expenses have also been awarded in the sum of Rs.2,000/-. 2. The brief facts of the case are that respondent no.1 obtained Insurance Policy No. 421006/48/03/9801411 from the appellant for insurance cover of his stocks in trade in the sum of Rs.7 lac; while-as, fixtures, furniture and fittings were insured for a cover of Rs. One lac. During the intervening night of 14.05.2004, fire broke out in the premises, where the stocks in trade were stored and they were reduced to ashes. Mr. Hari Om preliminary surveyor was appointed for spot inspection and subsequently M/S N.Kumar surveyors Pvt. Ltd. was appointed to make final assessment who assessed the loss in the sum of Rs.4,41,000/- which the respondent had claimed and the Forum had granted by way of relief. Respondent no.2 was the financier of respondent no.l who on its own accord, on 24.02.2004; had obtained insurance cover of Rs.3 lac from United India Insurance Company to cover the risk of the hypothecated stocks in trade. After the alleged loss, respondent no2 had also raised the claim with their insurer (United India Insurance Company). The Insurer had deputed Mr. S.M.Peerzada loss assessor and surveyor, who after inspecting the site showed estimated loss to the extent of Rs.l,90,000/-. Respondent no.l raised the claim with the appellant, which was repudiated on the plea that there was suppression of material fact, as he had not disclosed the insurance cover obtained with his knowledge from "United India Insurance Company" by respondent no.2. Respondent no.2 in its written version though had taken the plea that their Bank being financier had obtained the insurance cover to secure their loan from United India Insurance Company with the knowledge of respondent no.l; yet they did not substantiate their plea by leading any evidence during the trial. Respondent no.l had denied any knowledge about the said insurance cover and pleaded that he came to know about the said insurance cover when Mr. Respondent no.l had denied any knowledge about the said insurance cover and pleaded that he came to know about the said insurance cover when Mr. S.M.Peerzada loss assessor and surveyor of United India Insurance Company had visited the spot. Since wilful knowledge on the part of respondent no.l for the alleged suppression of earlier insurance cover from United India Insurance Company had not been proved by any evidence so the complaint was allowed and the above stated reliefs were granted by the Forum. 3. The appellant has felt aggrieved of the order and challenged the same inter alia on the following grounds: - i. Respondent no. 1 had knowledge about the existence of insurance cover, which was obtained prior to the insurance cover obtained by respondent no.1 because the amount of premium had been deducted from the loan account of respondent no. 1 by the respondent no.2 who had obtained the insurance policy. ii. In the Proposal Form of obtaining insurance policy no. 421006/48/03/ 9801411, respondent no. l intentionally had not filled the relevant column, which related to eliciting the information of existence of prior Insurance cover. This omission was a proof of mala-fide intention. iii. Respondent no.1 being financier of respondent no.1 had the special knowledge about the value of the stocks in trade and keeping in view that fact, they had obtained insurance cover to the extent of Rs.3 lac only and respondent no. l with malafide intention had obtained exaggerated insurance cover from the appellant to the extent of Rs. 7 lac of the stocks in trade. iv. Estimated loss shown by Mr. S. M. Peerzada loss assessor and surveyor of United India Insurance Company was to the extent of Rs.1,90,000/-. Respondent no. l with malafide intention had not accepted the said amount. 4. Heard the arguments. 5. Mr. Kawoosa while reiterating the above stated grounds has further submitted that taking into account all the facts and circumstances, the appellant had rightly repudiated the claim on the basis of suppression of material fact which had rendered the policy as vide abnitio. The learned forum had failed to appreciate the argument of the appellant made before it to the effect that respondent no. l was entitled only to the amount of Rs.1,90,000/- which was estimated loss of the stocks in trade actually found at the time of the loss by Mr. S.M. Peerzada loss assessor and surveyor. The learned forum had failed to appreciate the argument of the appellant made before it to the effect that respondent no. l was entitled only to the amount of Rs.1,90,000/- which was estimated loss of the stocks in trade actually found at the time of the loss by Mr. S.M. Peerzada loss assessor and surveyor. Under law, the claim was required to be got adjusted with the sister insurance company on the direction of the learned. Forum but the learned Forum had left it to the discretion of the concerned Insurance Companies to adjust the claim between themselves. United India Insurance Company was a necessary party in the complaint but was not intentionally impleaded because they had got the estimated loss assessed to the extent of Rs.1,90,000/- only. While concluding his arguments, he has prayed that no interest should be charged from the appellants because there was no deficiency on their part to render any service. 6. Mr. Amin, advocate has countered the arguments by referring the "contribution" clauses of the agreements of the insurance policy of Oriental Insurance Company as well as that of United India Insurance Company by emphasizing the point that the liability or expenses is always to be within the limitations of other insurance policy. He has also stated that the appellant Insurance Company has also similar "contribution clause" incorporated in their agreement of Insurance policy and they had agreed to cover liability upto Rs.8 lac. The argument advanced by the counsel of the appellant that it was the duty of the learned Forum to give direction for the adjustment of the liability if existing any between the appellant and the United India Insurance Company loses its significance. There was no necessity of impleading United India Insurance Company as a party in the complaint before the learned forum because no such objection was raised during the trial of the complaint. Respondent no. 2 had paid the premium suo moto. In their written version, respondent no.2 ought to have pleaded that the premium was paid with the concurrence or knowledge of respondent no. 1. There was neither such averment made in the written version nor any evidence was led to that effect. The alleged "Proposal Form" has not been tendered in evidence to prove the alleged liability of respondent no. In their written version, respondent no.2 ought to have pleaded that the premium was paid with the concurrence or knowledge of respondent no. 1. There was neither such averment made in the written version nor any evidence was led to that effect. The alleged "Proposal Form" has not been tendered in evidence to prove the alleged liability of respondent no. 1 that he was bound to disclose the existence of any Insurance Policy from any other Insurance Company. Regarding the argument advanced by Mr. Kawoosa, advocate that respondent no.2 being the financier of the stacks in trade, had the special knowledge about stock position; it is rebutted that respondent no. l being a loanee of respondent no.2 had been submitting statement of stock position to the financier Bank after the expiry of every financial year. Under prevalent practice of trade, the financier Bank was not required to have any special knowledge at every point of time of the year about the stocks position. Respondent no.2 had advanced loan of Rs. One lac and secured its financial interest by obtaining insurance policy to the tune of Rs.3 lac at their own discretion, without ascertaining the actual position of the stocks in trade. Refusal of the claim made on 18.08.2005 was not justified because it was repudiated after the filing of the complaint in the Forum on 28.07.2005. Respondent no.l got knowledge of the existence of Insurance Policy obtained by respondent no.2 to the extent of Rs. 3 lac from United India Insurance Company at a time when Mr. S M Peerzada visited the spot. Before his visit, Respondent no.l already had raised his claim with the appellant. It was the duty of the appellant to ascertain about the loss from United India Insurance Company if any assessed and not respondent no. 1. The witness of the appellant namely, Mr. Vidhya Sagar, who is a Branch Manager in his deposition has stated that the appellant did not dispute the quantum of assessment made by the surveyor. The United India Insurance Company had failed to get the loss assessed from a surveyor. On the other hand, the appellant had got the loss assessed from a competent surveyor and the assessed amount was not disputed. Not only that, the United India Insurance Company had got the estimated loss assessed, which is of no value. The United India Insurance Company had failed to get the loss assessed from a surveyor. On the other hand, the appellant had got the loss assessed from a competent surveyor and the assessed amount was not disputed. Not only that, the United India Insurance Company had got the estimated loss assessed, which is of no value. The learned forum has rightly exercised its judicial discretion by accepting the report of the surveyor appointed by the appellant and as such there existed no illegality in the impugned order. There was no wilful malafide suppression on the part of respondent no. l regarding the existence of the Insurance Policy obtained by the Financier (respondent no.2 from United India Insurance Company) because he had no knowledge and the argument advance has thus no relevancy to the facts of the present case. The learned forum has rightly granted interest though on the lesser rate which respondent no. 1 does not dispute. While concluding his arguments, he has contended that appeal should have been filed by Divisional Manager Srinagar and not by Divisional Manager, Jammu because he was not a party in the proceedings before the learned Forum. 7. We have considered the respective contentions of the counsel appearing for the parties and perused the record. The moot question which falls for our consideration and determination is whether respondent no. 1 had the knowledge about the existence of Insurance Policy which had been obtained by the financier Bank namely, respondent no.2 from the United India Insurance Company for covering the risk of Rs.3 lac against the limit of loan of Rs. One lac in favour of respondent no.1 for his stocks in trade or not. It is an admitted fact that respondent no.2 had obtained Insurance Policy of the value of Rs. 3 lac from the United India Insurance Company prior in time than the Policy obtained by respondent no.l from the appellant covering a risk of Rs.7 lac for the stocks in trade and Rs. One lac for the risk of furniture, fixtures and fittings etc. On the record, we do not find any evidence, which supports the contention of the appellant that respondent no. 1, had knowledge about the existence of Policy of Rs. 3 lac. One lac for the risk of furniture, fixtures and fittings etc. On the record, we do not find any evidence, which supports the contention of the appellant that respondent no. 1, had knowledge about the existence of Policy of Rs. 3 lac. The onus was on the appellant to prove the allegation that respondent no.l had suppressed the existence of Insurance cover issued by the United India Insurance Company and that burden has not been discharged. In this way, the allegation has not been proved. Not only that, it was further required on the part of the appellant to prove that such alleged suppression of fact was material for the liability which had arisen under the Contract of Insurance against the appellant in terms of the insurance Policy covering a risk of Rs. 8 lac. No evidence has been led in support of alleged suppression. In the back-drop of the above made discussion, we find no hesitation in holding that the repudiation of the claim in question was made by the appellant without any justification. The remaining part of the arguments advanced by Mr. Javed Ahmad Kawoosa, advocate as noted hereinabove is not of any legal significance and already they stand effectively rebutted by Mr. Noor-ul-Amin counsel of the respondent no. 1. There is no need of their reproduction. In the result, it is held that the forum has rightly reimbursed respondent no. 1 for the assessed loss of Rs.4,41,000/- made payable from the appellant alongwith interest @ 6% per annum after six months from the date of loss till realization alongwith litigation charges. In this view of the matter, the appeal is found meritless which is dismissed with costs of Rs.4,000/- and is consigned to the records. The record of the Forum be returned at once.