Mr. Justice S.K. Dubey, President—This appeal is directed against the order dated 29.9.2001 passed in Case No. 337/1997 by the District Consumer Disputes Redressal Forum, Satna (for short the ‘District Forum’) whereby the complaint for deficiency in service in not making the payment of the claim of the Jeep bearing registration No. MP-19A-2719 comprehensively insured for the period 8.5.1997 to 7.5.1998 stolen in the intervening night of 11.5.1997 and 12.5.1997 was dismissed.

2. Facts giving rise to this appeal are thus : The appellant submitted a proposal to insure the vehicle on 8.5.1997 and deposited the premium. On acceptance of the proposal the policy was issued on 9.5.1997 (Annexure A-2). The vehicle was stolen in the night of 11.5.1997 and 12.5.1997 of which FIR was lodged on 16.5.1997 on which a case was registered at Crime No. 314/1997 under Section 379, I.P.C. by the Police Station Kotwali, Satna. The Insurance Company was intimated on phone on 12.5.1997. The claim was lodged with the Insurance Company on 16.5.1997 (Annexure A-5). The Police after investigation could not recover the Jeep nor could arrest the miscreants and filed a final report dated 3.10.1997. The Insurance Company appointed Investigator M.P. Tiwari who after investigation vide report dated 5.7.1997 concluded that the vehicle was already stolen between the night of 6th and 7th May, 1997 but, since there was no insurance of the vehicle so the appellant tried to manage the insurance but, did not get success on 7.5.1997. However, he managed Development Officer Shiv Kumar Ambesh, whose reputation of simplicity is well known from whom he obtained comprehensive insurance on 8.5.1997. On the basis of this report, the Insurance Company vide letter dated 11.11.1997 repudiated the claim as the vehicle was already stolen prior to taking of the insurance. The appellant filed the complaint which was resisted. The District Forum vide order dated 22.6.1998 dismissed the complaint holding that it requires an elaborate enquiry Appeal No. 690/1998 filed against the order was allowed by this Commission vide order dated 11.5.2001 and the case was remitted to the District Forum for its decision on merits. The District Forum after recording of evidence dismissed the complaint on the basis of suspicion, holding that the insurance was affected after the vehicle was already stolen.

3. After hearing learned Counsels for the parties and on reappraisal of evidence on record, we are of the opinion, that the order of the District Forum cannot be maintained for the simple reason that merely on the basis of the investigation report and affidavit filed by the Investigator M.P. Tiwari, the claim could not have not been repudiated. Report of the Investigator is no evidence unless the statements recorded during investigation are proved. Not only this material and most relevant affidavit of the Develpment Officer has not been filed.

4. It is well settled that the burden to prove concealment or mis-representation or wrong answer lies on the Insurance Company. A policy cannot be issued without physical verification of the vehicle, its particulars i.e. engine No. chassis number etc. In the circumstances, merely on surmises and suspicion claim cannot be thrown unless it is proved by legal evidence that the claim is false and the policy was obtained by mis-representation and without physical verification of the vehicle.

5. The question was considered by this Commission in Appeal No. 516/99, United India Insurance Co. Ltd. v. Sanjay Garg decided on 4.4.2001 wherein in similar circumstances, this Commission observed in para 6 to 9 thus :

“6. For the transaction of Motor business in India in accordance with the provisions of Part II-B of the Insurance Act, 1938 the Tariff Advisory Committee (TAC) have laid down detailed rules, regulations, rates, terms and conditions in a Tariff which is called “India Motor Tariffs”. The Tariff provides for two types of policy Forms, Form ‘A’ to cover