ORDER This appeal is directed against the order dated 24.9.2008 passed by learned District Forum, Rayagada in C.D. Case No. 80 of 2007. The background facts of the case are to the effect that complainant had insured his shop namely, M/s Doordarshan under the O.Ps. Insurance Company. His shop was insured under the category of ‘Standard Fire and Special Perils Policy’ vide policy No. 13202/46/02/7500768 for the period from 17.1.2003 to 16.1.2004. It was insured for an amount of Rs. 25,00,000/-. Unfortunately on 09.09.2003 night some unknown persons burgle the said shop. The said fact was reported to police on 10.09.2003 at 11 A.M. and a case was registered at Rayagada P.S. vide case No. 128 dated 10.09.2003 U/s 457/380 of IPC. The matter was also reported to O.Ps. Insurance Company. O.Ps. deputed one surveyor to assess the loss and to find the factual truth. The police after investigation submitted the final from declaring the case as true but no clue. So complainant intimated O.Ps. company on 22.02.2004 to settle the insurance claim. Complainant claimed Rs. 12,46,00/- towards the loss of property in burglary, but O.Ps. repudiated his claim. Hence, the complaint. O.Ps resisting the complaint, contended the police noticed one sindhole measuring 34" x 34" on the rear wall of the shop and hardly one can enter into the room through the sindhole. It was contended that the unit office of O.P. is situated in the same row of the shop of complainant and the fact was not brought to their notice. Further he had not given the description of the articles stolen in his report. On 23.9.2003 one Sri Bipin Bihari Patra, surveyor was deputed for fact finding enquiry. Complaint did not co-operate and failed to file account slips, I.T. returns, sale and purchase detail registers, cash memos etc. with a plea that it is lying with his Chartered Accountant Sri B. Ram Prasad. It was contended that complainant was having computer to deal with day to day business, but he had submitted hand generated list to I.I.C., Rayagada on 10.12.2003. O.Ps. had appointed Commercial investigation Bureau to investigate into the matter. The said investigator noticed that till 27.7.2004 the investigation by police was on progress. Complainant was issued several letters for production of documents. But he failed to do so. O.P. treated his claim as No Claim. O.Ps. had appointed Commercial investigation Bureau to investigate into the matter. The said investigator noticed that till 27.7.2004 the investigation by police was on progress. Complainant was issued several letters for production of documents. But he failed to do so. O.P. treated his claim as No Claim. Complainant sought for time and submitted the final report of police, sale and purchase register for 2001-02 and 2002-03 to the surveyor. It was contended that complainant suppressed the material facts and manipulated the registers and as such his petition is not maintainable, and liable to be dismissed. After hearing the parties learned District Forum allowed the complaint on contest against the O.P. with cost. O.P. was directed to pay a sum of Rs. 9,74, 080/- with 10% interest from 01.01.2004 till its final payment along with cost of Rs. 5000/- to complaint within one month from the date of receipt of this order failing which the complainant was at liberty to realize the same by invoking the provisions U/s. 25 & 27 of C.P. Act. Being aggrieved by the aforesaid order O.Ps. filed the present appeal on the grounds that learned District Forum wrongly came to the conclusion that the repudiation in the instant case amounts to deficiency of service by the present appellants, oblivious of the violation of the conditions of policy, inter alia, relating to status of the business concern, and on account of material alterations made without intimation which is the condition precedent for honouring the policy. It is pertinent to bring to the kind notice of the Hon’ble Court that the alleged burglary took place to the extended portion of the rear wall which is an alteration from the existing structure insured by the present appellant. Such alteration having not been intimated in terms of the policy, it is humbly submitted that the present appellants cannot be saddled with liability, as both the insurer and the insured are bound by the terms of the policy. As such, the impugned order is liable to be set aside. We heard Mr. V. Narasingh, learned counsel for the appellants and Mr. B.P. Das, learned counsel for the respondent. We perused the record, materials available on record, impugned order as well as the District Forum record. Admittedly respondent had obtained one ‘Standard Fire and Special Perils Policy’ vide policy no. We heard Mr. V. Narasingh, learned counsel for the appellants and Mr. B.P. Das, learned counsel for the respondent. We perused the record, materials available on record, impugned order as well as the District Forum record. Admittedly respondent had obtained one ‘Standard Fire and Special Perils Policy’ vide policy no. 153202/46/02/7500768 for the period from 17.01.2003 to 16.1.2004 for his shop M/s. Doordarshan. The said shop was burgle on the intervening night of 9/10.09.2003. A P.S. case was registered vide case No. 128/2003, U/s 457/380 of IPC. Respondent claimed under the said insurance which was repudiated on 22.3.2006 on the ground of violation of the policy condition. Learned counsel for the appellant argued that respondent was maintaining heavy stock approximately amounting to Rs. 80,62,411/- against the sum assured of Rs. 25,00,000/- without maintaining proper books of account which is violative of policy stipulation. It was further argued that the Commercial Investigation Bureau (CIB) while quantifying the loss as claimed alleging theft during the course of verification of the list supplied by the insured along with the stock position noticed that the list of stolen articles are more then that of the stocks without any physical balance. The alleged theft of watches such as Titan and Sonata brand are the glaring example, since the closing stock as on 09.09.2003 were 214, 21 whereas the stolen claim was 230 and 220 respectively, but no physical balance noticed on 12.9.2003 regarding Timex and H.M.T. This was noticed by the learned Forum below. Yet it was ignored for the reasons best known to it. Learned Forum below has not taken into consideration of average clause 6 of general condition of Insurance policy which reads as follows:- “ Clause No. 6, Average:- If the property hereby insured shall, at the time of any loss or damage be collectively of greater value than the sum insured thereon, then the insured shall be considered as being his own insurer for the difference, and shall bear a rateable proportion of the loss or damage accordingly. Every item, if more than one, in the policy shall be separately subject to this condition.” Undisputedly, under insurance was patent and applying the average clause the surveyor rightly quantified the amount. The respondent insured is a co-insurer as per the said terms and conditions therefore on the basis of rateable proportion loss is to be adjusted as done by the insurer. The respondent insured is a co-insurer as per the said terms and conditions therefore on the basis of rateable proportion loss is to be adjusted as done by the insurer. Basing on the assessment report and observations made there under by final surveyor (CIB) on 07.07.2005, the insurer repudiated the claim on 22.3.2006 treating no claim, on the ground of violation of policy condition No. 9, which reads as follows:- “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.” For that the finding of the learned forum below regarding repudiation amounts to deficiency in service is erroneous, rather repudiation is based on surveyor’s observations and cogent reasons. Repudiation of the claim was genuine as delay was due to the fault of the insured. Learned counsel for the appellants relied on the decision of Hon’ble Supreme Court in case of I.C. Sharma v. Oriental Insurance Company Ltd. reported in (2018)2 SCC 76 , wherein it was held that ‘when a group of items is insured under one heading and only some of the items and not all items are lost/stolen then the principle of under insurance will apply.’ On the other hand learned counsel for the respondent supporting the impugned order argued that articles involved in the theft were cell phones, C.D. Player, Cassette Players, emergency lights, SIM Cards. The shop was insured for Rs. 25 Lakhs and it was valid on the date of occurrence. The said fact was reported to Insurance Company and Insurance Company deputed a surveyor on 12.9.2003 to find out the loss and the position of stock was Rs. 21,41,871/- which was admitted by appellant. On 10.12.2003 a hand written list of stolen articles amounting to Rs. 12,46,500/- was furnished by respondent to the company. Police had submitted the report on 22.02.2004 that the fact is true but no clue. On 27.07.2004 the Commercial Investigation Bureau noticed that till this date the investigation was on progress. Respondent claimed Rs. 12,46,500/- showing the value of theft property. But appellant repudiated the claim on 22.3.2006. 12,46,500/- was furnished by respondent to the company. Police had submitted the report on 22.02.2004 that the fact is true but no clue. On 27.07.2004 the Commercial Investigation Bureau noticed that till this date the investigation was on progress. Respondent claimed Rs. 12,46,500/- showing the value of theft property. But appellant repudiated the claim on 22.3.2006. On perusal of the record and materials on record it is evident from letter dated 22.6.2006 of appellants company that on receipt of intimation of loss on 10.09.2003 from respondent, a surveyor was deputed namely, Sri B.B. Patra, who visited respondent’s shop on 12.9.2003. During inspection respondent failed to produce relevant documents. Thereafter M/s. Commercial Investigation Bureau, Kolkota visited the said shop on the consent of respondent on 14.11.2003. Respondent failed to produce relevant documents before them. It was further submitted that purchase register was manipulated. For non-co-operation in submitting supporting documents and manipulation of Stock and Purchase Registers, his claim was repudiated. The aforesaid letter of appellants clearly indicated that there was violation of condition No. 9 of the policy which reads as follows:- “ if any claim under the policy shall be in any respect fraudulent means or device are used by the insured or any one acting on the insured’s behalf to obtain any benefit under the policy, all benefits and rights under the policy shall be forfeited.” From the above discussion, it is clear that due to violation of policy condition appellants repudiated the claim of respondent as no claim. In the result, appeal is allowed setting aside the order dated 24.9.2008 passed by learned District Forum, Rayagada in C.D. Case No. 80 of 2007. Records received from the District Forum be sent back forthwith. Appeal allowed.