The petitioner has filed this review application under Section 22 of the Consumer Protection Act, 1986 requesting for reviewing the order dated 06.01.2012 passed in R.P. No.4523 of 2009 by this Commission. Vide its impugned order, this Commission had dismissed the revision petition filed by the petitioner and upheld the order of the State Consumer Disputes Redressal Commission, U.T. Chandigarh (‘the State Commission’, for short) dated 12.11.2009 passed in Appeal No.108/2009. 2. The review applicant/revision petitioner has mentioned the following grounds on which he would assail the impugned order praying for its review:- (i) The finding of this Commission in para no.8 of the impugned order to the effect that “paper book of the District Forum shows that document at Serial No.(a) is at pages 54-59, documents at serial nos.(b) & (c) at page 61, document at serial no.(d) at page 63, document at serial No.(e) at page 64 etc. It is, therefore, clear to us that the submission made by the petitioner in his affidavit is factually incorrect and hence the plea taken by learned counsel in this regard is rejected” has been wrongly recorded by this Commission because according to the petitioner, the total number of pages of the complaint case along with annexures filed by the respondents-1 & 2 / complainants are 10 and 5 pages in all are covered by the written statement (filed by the petitioner before the District Forum). Thus, the total number of pages of the complaint file does not exceed the figure of 15 pages and as such, the question of page nos.54 to 59, 61, 63 and 64 contained in the file of the District Forum does not arise. It is further stated that the above mentioned pages are pages contained in the file of the State Commission Chandigarh. Hence, the judgment of the Apex Court in the case of M/s Modern Insulators Limited V. Oriental Insurance Co. Ltd. (AIR 2000 (SC) Page 1014) would be fully applicable where it has been held that the parties cannot urge new facts in appeal. (ii) In para 6 of the impugned order, this Commission has wrongly stated that “Ld. Hence, the judgment of the Apex Court in the case of M/s Modern Insulators Limited V. Oriental Insurance Co. Ltd. (AIR 2000 (SC) Page 1014) would be fully applicable where it has been held that the parties cannot urge new facts in appeal. (ii) In para 6 of the impugned order, this Commission has wrongly stated that “Ld. Counsel pointed out that copy of affidavit of the petitioner before the State Commission is placed at page 62 of the paper book.” It is submitted that the revision petitioner/review applicant had never filed any affidavit before learned State Commission, Chandigarh and the affidavit placed at 62 of the revision petition paper book was intended to be filed by the petitioner before the State Commission when the new documents were introduced for the first time by the respondents/complainants. It is further alleged that the said affidavit was not taken on record by the State Commission and the first appeal of the complainants/respondents was decided in a rash and negligent manner against which the petitioner had filed the revision petition in question before this Commission. (iii) This Commission has ignored the submission made by the counsel to the effect that a fraud had been committed by the complainants/respondents inasmuch as the complainants had already collected their amounts from respondent no.3/OP no.2 and yet filed the complaint in question in order to get double benefit by wrongful means. To hide this fact, the complainants had deliberately not got the service effected on the respondent no.3/OP no.2 in the original complaint before the District Forum. (iv) This Commission has failed to consider that the revision petitioner had wrongly been held equally liable along with the respondent no.3 by the State Commission. It is submitted that the basis of the finding of the State Commission was an ‘agreement to sell’ entered into between one Sunita on the one hand and M/s. J.S. Dwellers (respondent no.3/OP no.2) as well as M/s. Mehta Build Con. Ltd. (petitioner/OP no.1) on the other hand. It is alleged that in all the cases where the present petitioner was held to be liable were only those where there were Apartment Buyers Agreement and where the name of the present petitioner figures in the agreement. (v) This Commission has wrongly held in para 9 of the impugned order to the extent that the present petitioner and the respondent no.3 were partners. (v) This Commission has wrongly held in para 9 of the impugned order to the extent that the present petitioner and the respondent no.3 were partners. It is submitted that the respondent no.3 who collected the amounts in question from the complainants is a limited company and not a partnership firm. It is further submitted that the procedure to fix liability on the directors of a limited company is different from the procedure in respect of the liability of the partnership firm. It is also contented that merely because some matters were compromised between the parties, it cannot be a ground to hold the petitioner liable for all times to come and in all the projects floated by respondent no.3. (vi) The respondents no.1 and 2 / complainants had not approached the Courts with clean hands because even though the amounts in question had been deposited by them with the respondent no.3/OP no.2 (M/s. J.S. Dwellers), they were included only as proforma respondents by the complainants in this complaint. Besides this, the complainants/respondents no.1 and 2 also failed to appear before this Commission in spite of the fact that a demand draft for their travel and allied expenses had been sent to them as per the directions of this Commission. This shows their conduct and as such, they are not entitled to any relief. (vii) There is no Apartment Buyers Agreement between the complainants/respondents no.1 and 2 and the petitioner because the project in which the investments were made by the complainants pertains to Baliali project, in which the present petitioner has no role to play. The petitioner wanted to bring this aspect also to the notice of the State Commission through the proposed affidavit which was not allowed to be filed by the State Commission. 3. We have heard learned Sh. Deepak Aggarwal Advocate, counsel for the review applicant. 4. Learned counsel has contended that the impugned order of this Commission suffers from a number of mistakes and inaccuracies which would call for its recall and review. Reiterating the specific grounds of review as enumerated as above, he has contended that the mistakes would appear to be apparent from the record and hence the impugned order needs to be reviewed. 5. We have carefully considered the submissions made by the learned counsel and perused the record. Reiterating the specific grounds of review as enumerated as above, he has contended that the mistakes would appear to be apparent from the record and hence the impugned order needs to be reviewed. 5. We have carefully considered the submissions made by the learned counsel and perused the record. So far as the first ground is concerned, we may note that the District Forum record, which was called for by us, contains 71 pages running from page no.1 to page no.71 in all. On the top of it, the District Forum file also has an index of the documents placed in the file. All the documents, which are referred to by us in the impugned order, are placed at the pages referred to in the impugned order. It is strange and unfortunate that in spite of the repeated perusal of the District Forum record by learned counsel, he is alleging that the District Forum record contains only 15 pages. To support his submission, learned counsel has pointed out that the zimni record before the District Forum filed by him shows that there is no mention or indication about the filing of the documents in question by the complainants before the District Forum. According to him, this would prove that the documents in question referred to by the State Commission in its order and also by this Commission in the impugned order were not on the District Forum file and were produced by the complainants during the course of the appeal for the first time before the State Commission which, as held by the Apex Court in the case of M/s Modern Insulator (Supra), is not permissible. 6. We have once again perused the record of the District Forum and the documents placed thereon. The District Forum file consists of 71 pages, which are duly numbered from page no.1 to 71. Besides these pages, there is also the index of the documents placed on each of these pages which is kept at the beginning of the file. Simply because there is no mention of the filing of these documents in the Zimni Sheets of the District Forum, this cannot, by any stretch of imagination, taken to mean that the documents in question were not filed by the complainants before the District Forum. Simply because there is no mention of the filing of these documents in the Zimni Sheets of the District Forum, this cannot, by any stretch of imagination, taken to mean that the documents in question were not filed by the complainants before the District Forum. Besides this, we may also note that in their appeal before the State Commission (a copy of which has been placed by the petitioner at page 48-49 of the revision petition), it is specifically mentioned by the complainants in the grounds of appeal that the District Forum committed mistake in not considering the documents filed by them before it and not referring to any of them in its order in spite of their being placed on file and as such, the order of the District Forum deserved to be set aside. There is no rebuttal or denial of these submissions contained in the memo of appeal filed by the complainants by the petitioner before the State Commission. The petitioner had an opportunity to file a reply to the memo of appeal before the Appellate Authority, i.e., the State Commission but it failed to do so. Here, the contention of the learned counsel is that the petitioner was not allowed to file reply to the appeal. This is absolutely unbelievable. We do not find any evidence to support this submission made by learned counsel. Going by the District Forum record, grounds of the memo of appeal filed by the complainants and the observations made by the State Commission, we have no manner of doubt in our mind that the submission of learned counsel in this regard is not only false but mischievous and misleading being put forth now with a view to reopen the case. We, therefore, reject this ground taken by the petitioner in the review application. 7. We, therefore, reject this ground taken by the petitioner in the review application. 7. Coming to the second ground in support of the review application, it was our recollection that learned counsel during his oral submission on the revision petition had submitted that the affidavit dated 04.11.2009 had been filed by the petitioner before the State Commission whereas learned counsel says that he never said so but had pointed out that the affidavit was not allowed to be filed by the State Commission before it and hence, the State Commission failed to take into consideration the contents of this affidavit which led to the reversal of the order of the District Forum and passing order of the State Commission against the petitioner. We accept this plea taken by the learned counsel and may be there could be some inadvertent mistake of hearing on our part while taking notes of the oral submission while assuming that the affidavit in question had been filed by the petitioner before the State Commission. In fact, the copy of the affidavit in question filed by the petitioner at page 62 of the paper book of the revision petition does give this impression as if the affidavit was before the State Commission. Be that as it may, even if we assume that the affidavit in question was not allowed to be filed by the State Commission as contended by the learned counsel, yet we have to consider the likely impact of its contents on the decision making of the State Commission, in case it had been allowed to be filed. As indicated above, the documents in question claimed to have been filed by the complainants were specifically mentioned in the grounds of appeal by the complainants. It was also contended by the complainants before the State Commission that in spite of these documents before it, the District Forum had gravely erred in not taking them into consideration while passing its order dismissing the complaint and this was the main ground in their appeal. Therefore, when the State Commission decided the appeal after hearing both the complainants and the petitioner, there was nothing wrong in the State Commission referring to these documents and considering them while accepting the appeal and setting aside the order of the District Forum. Therefore, when the State Commission decided the appeal after hearing both the complainants and the petitioner, there was nothing wrong in the State Commission referring to these documents and considering them while accepting the appeal and setting aside the order of the District Forum. As we have discussed in the impugned order, contents of the proposed affidavit of the petitioner were not borne out from the position emanating from the District Forum record. This ground, therefore, cannot provide any basis for reviewing the impugned order. Incidentally in response to a specific query, learned counsel confirmed that the petitioner does not deny the genuineness of any of the documents placed on the record of the District Forum and referred to by the State Commission and by us in our impugned order. 8. So far as the statement and the plea regarding the attempt on the part of the complainants/respondents no.1 and 2 to take double benefit by filing the complaint is concerned, learned counsel fairly admitted that there is no proof as such to support the statement that the complainants had already collected their amounts from the respondent no.3/OP no.2. In the absence of any proof to the contrary we cannot go by the hearsay. We therefore do not find any basis in the allegation of fraud having been committed in the matter by the complainants as alleged by the review petitioner. On the other hand, we are quite convinced about a sort of fraud having been committed by the petitioner/OP no.1 in collusion with respondent no.3/OP No.2 as observed by us in para 9 of the impugned order. 9. We also do not find any force in the other grounds taken by the review applicant in his application. Learned counsel has confirmed that the petitioner does not have any doubt about the genuineness of the documents placed on the record of the District Forum. He has also confirmed that similar receipts, copies of which are placed at pages 58 and 60 of the paper book of the revision petition, were also issued by M/s. J.S. Dwellers Pvt. Ltd./respondent no.3 to some other parties while accepting the amounts from them for booking of the flats where the name of the petitioner does not figure but still the petitioner honoured those receipts issued by the respondent no.3 although learned counsel says that there were different reasons and circumstances for honouring those receipts. This aspect has already been suitably dealt with by the State Commission and noted by us in our impugned order. We are not at all impressed by this submission so as to persuade us to recall and review the impugned order. 10. Besides the above grounds, learned counsel has relied on the common order dated 08.03.2011 of this Commission in the cases of Worldwide Immigration Consultancy Services Ltd. Vs. Manohar Singh Randhawa (R.P. no.3334 of 2010) and Worldwide Immigration Consultancy Services Ltd. Vs. Suresh Kumar (R.P. No.3335 of 2010). He specifically placed reliance on the observations of this Commission in para 5 of the common order in the said two cases. We have perused the order but these observations were made in a different set of circumstances obtaining in the aforesaid cases. The review applicant cannot be allowed to draw any comfort from this common order. 11. In view of the above, we do not find any merit in the review application. We have not come across any error apparent on the face of record in the impugned order which would call for its review. As discussed at length in the foregoing paragraphs, we are convinced that the review applicant/revision petitioner has made an attempt to reopen this case by making unsubstantiated and baseless allegations in the review application. By filing an affidavit in support of the allegation to the effect that the District Forum record consists of only 15 pages which actually contains 71 pages, the review applicant has apparently indulged in perjury. This is nothing but abuse of the due process of law. In the circumstances, we dismiss this review application with cost which is quantified at Rs.25,000/-. The cost shall be deposited by the review applicant with the ‘Consumer Legal Aid Account’ of the N.C.D.R.C within a period of 4 weeks. 12. List for compliance before the Bench on 26.7.2013. _______________ #EQ1#2013 (3) AWCNC 4.141#EQ2# #CT1#NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI#CT2# #JJ1#K. S. Chaudhari, B. C. Gupta#JJ2#2 #CB1#.#CB2# #AP1#New India Assurance Co.#AP2# Versus #RS1#Penta Care Ayurpharma#RS2# #CN1#Revision Petition No. 3587 of 2012#CN2# #DT1#30-5-2013#DT2# #PC1#.#PC2# #SR1#Consumer Protection Act, 1986 -- Section 21#SR2# Consumer Protection Act, 1986 -- Section 21—Revision against order of State Commission dismissing appeal against order of District Forum allowing the complaint—Claim of Rs. 2,55,385 towards loss of bulk of furnished products in fire on the premises of the complainant—Burnt goods covered under the Fire and Special Peril Policy of the insurance company—Loss due to fire not denied by the insurance company—Case of accidental fire made out—Fire not caused under any heating or drying process—Fire also not shown to be on account of own fermentation or natural heating or spontaneous combustion—No reason available to disagree with observations of District Forum and State Commission— Therefore, revision petition is dismissed. [Paras 8 to 10] ORDER #CR1#.#CR2# #ADV1#.#ADV2# #HN1#Head Note#HN2# B. C. Gupta — This revision petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 14.6.2012 passed by the Karnataka State Consumer Disputes Redressal Commission (for short 'the State Commission') in F.A. No. 269/2011, 'New India Assurance Co. v. M/s. Penta Care Ayurpharma', vide which, while dismissing the appeal of the petitioner/O.P., the order dated 22.12.2010 passed by the District Forum, Bangalore in consumer complaint No. 896/2010, allowing the said complaint, was upheld. 2. Brief facts of the case are that the respondent/complainant, M/s. Penta Care Ayurpharma, who is carrying on the activity of manufacturing ayurvedic medicines, had obtained an insurance policy from the petitioner/O.P., known as the 'Fire and Special Peril Policy', which was in force from 5.6.2007 to 4.6.2008. The sum assured under the said Policy was Rs. 17 lakhs. It has been stated that on 26.4.2008, there was a fire on the premises of the complainant and bulk of furnished products and extracts stored in the store room were completely burnt, resulting in loss to the tune of Rs. 2,55,335, as stated by the complainant. The -complainant informed the petitioner/O.P. about the incident who, in turn, appointed a surveyor for the assessment of damage to the goods. The case of the petitioner/O.P. is that two out of three pulverising machines being used at the premises, were out of order and hence, one single machine was used continuously for a long time which resulted in excessive heat being generated during the process. The heat was trapped inside the bags placed in the store room and this resulted in slow burning of the stocks in question, resulting in loss. The heat was trapped inside the bags placed in the store room and this resulted in slow burning of the stocks in question, resulting in loss. The petitioner/O.P. maintained that the cause of the loss is a peril which is excluded under the terms and conditions of the insurance policy in question, and hence they were not liable to pay the claim. The complainant/respondent filed a complaint No. 896/2010 before the District Forum, which allowed the same and directed the petitioner/O.P. to pay a sum of Rs. 2,55,335 to the complainant with interest @ 12% p.a. from the date of repudiation, i.e., 25.9.2008 until actual payment. The petitioner/O.P. was also asked to pay a sum of Rs. 5,000 to the complainant as cost of the proceedings. An appeal filed before the State Commission against this order was dismissed by the State Commission vide impugned order and the order of the District Forum was confirmed. It is against this order that the present revision petition has been filed. 3. After hearing the learned counsel for the petitioner on 28.9.2012, it was decided to send notice to the respondent and the date of hearing was fixed as 18.3.2013. In response to the notice, complainant/respondent sent a written reply which is on record. The respondent requested that the said petition be dismissed. However, he did not appear personally to plead his case. 4. While arguing the case, the learned counsel for the petitioner/O.P. has drawn our attention to a copy of the 'Standard Fire and Special Peril Policy (material damage) ', in which it has been stated as follows : "Fire Excluding destruction or damage caused to the property insured by (a) (i) its own fermentation, natural heating or spontaneous combustion. (ii) its undergoing any heating or drying process. (b) burning of property insured by order of any Public Authority." 5. Learned counsel further invited our attention to the surveyor's report dated 4.9.2008 in which it has been stated as follows : "We convert the fully dried herbs in to micro-fine form for different formulations. On 26.4.2008, since two of the three pulvarisers were on repairs, single machine was used continuously to meet our month end supply targets and to prepare new of medicines wanted to be launched in the first week of May. For the first time more than 150 kg. On 26.4.2008, since two of the three pulvarisers were on repairs, single machine was used continuously to meet our month end supply targets and to prepare new of medicines wanted to be launched in the first week of May. For the first time more than 150 kg. of fine powder was made in the evening and in order to protect the same from rodents, all bags were kept inside the store and closed. Due to overuse of single machine, the excess heat generated during pulverisation was trapped inside the bags and slowly ignited. As the rooms were closed as usual and the air entry was largely restricted, the fine powers are burnt slowly, engulfing the entire stock in the room, emitting large amount of smoke and heat." 6. The learned counsel argued that during the process of pulverisation, excess heat had been generated due to over-use of the single machine as the other two machines were out of order. This heat was trapped inside the bags and had led to slow ignition and burning of material placed inside the store room. It was clear from the wording of the policy as stated above that this case was covered under the exclusion clause, and hence the petitioner was not liable to pay the claim. Learned counsel for the petitioner also stated that the petitioner had obtained an expert opinion from M/s. Basker Associates, insurance surveyor and loss assessor who stated in their report dated 18.9.2008 that the standard policy excludes fires such as spontaneous combustion, heating due to its own fermentation etc. from its scope. The fire in ayurvedic pharma material undergoing spontaneous combustion is possible and is excluded under the scope of the policy. 7. On the other hand, the respondent in its written version has stated that the District Forum had rightly dismissed the unscientific and far-fetched argument by petitioner that natural products undergoing biodegradation. leading to exothermic microbial reaction, resulting in special kind of heat generation is capable of burning material into ashes with heat and smoke without flame. Even if the goods were burnt due to excessive heat generated during pulverisation, it should be held as accident loss by fire. The respondent has argued that once the policy was issued after collecting huge amounts of premium for special peril policy, it was the bounden duty of the petitioner to indemnify the loss caused to the complainant/respondent. Even if the goods were burnt due to excessive heat generated during pulverisation, it should be held as accident loss by fire. The respondent has argued that once the policy was issued after collecting huge amounts of premium for special peril policy, it was the bounden duty of the petitioner to indemnify the loss caused to the complainant/respondent. The respondent pleaded that the said petition should be dismissed. 8. We have given thoughtful consideration to the arguments advanced by the parties and examined the entire material on record. The facts of the case make it quite clear and it has not been denied by the O.P. that loss has been caused to the complainant due to the burning of the Ayurveda pharma material -placed inside the store. The main issue to be decided in the case is whether such loss is covered, for making payment of insurance claim, under the terms and conditions of the policy in question. 9. The District Forum observed in their order that the Insurance Policy in question, was issued for the purpose of indemnifying the insured in case of fire and special peril. Hence, when the goods of the complainant were burnt due to excess heat generated during pulverisation, it can be held as an accidental loss by fire. Hence, prima facie, such loss is covered under the policy which is issued for covering fire risk. It is further observed by the District Forum that the conditions of the policy were not enclosed with the policy and till that day, the opposite party had not furnished the conditions which were attached to the policy. The District Forum held that for non-production of such document containing exclusion clause, they reached the conclusion that the opposite party had failed to substantiate its contention that the fire accident was excluded under the terms of the policy. The State Commission also observed that it was a special type of policy, covering the pulverisation plant and stored materials for preparation of ayurvedic medicines and since the policy was subsisting on the date of the incident, the O.P. was liable to make good the loss sustained by the complainant. We do not find any reason to disagree with the findings of the State Commission and the District Forum because it is an established fact that loss has been caused to the complainant due to the burning of stocks in the godown. We do not find any reason to disagree with the findings of the State Commission and the District Forum because it is an established fact that loss has been caused to the complainant due to the burning of stocks in the godown. It is clearly a case of accidental fire. Fire was not caused under any heating or drying process as at the time of Fire, pulverisation was not under operation. Record also does not reveal that fire was on account of own fermentation or 10. in the right of these observations. We do not find any irregularity, illegality or jurisdictional error in the orders passed by the Commission and the District Forum. The revision petition is, therefore, ordered to be dismissed and the orders passed by the State Commission and the District Forum upheld with no order as to costs. ___________