[FONT="]BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FOURM, BAGALKOT.[/FONT][FONT="][/FONT]
Date of filing:23-09-2008
Date of Order:12-03-2009
Consumer Complaint No.178/2008
[FONT="] District Judge(R) President [/FONT]
[FONT="]02) Smt.Girija.R.Adakenavar, B.A. Lady Member [/FONT]
[FONT="]03) Shri.Dr.U.S.Heranjal, [/FONT][FONT="]MBBS.M.D (OBG/GGN)[/FONT][FONT="] Member [/FONT]
- Sri. Mehaboob S/o Husensab Lathi,
Bharat Egg. Works,
R/o Kamatagi, Tq:Hungund,
(By Sri. B.N. Nadagouda, Adv.)
- Branch Manager,
Tq:Hungund, Dist:Bagalkot. (Exparte)
- Branch Manager,
Melligeri Complex, Bagalkot.
(By Sri.P.D. Pattar, Advocate)
O R D E R
Sri.A.M.Pattar, Dist. Judge (Retd), President.
This is a complaint filed by the complainant U/Sec.12 of the Consumer Protection Act 1986 (hereinafter referred to as the Act) claiming insurance amount of Rs.4,50,000/- with interest and for award of Rs.20,000/- for deficiency in service caused by the Op and award of another Rs.20,000/- for mental agony, physical strain etc., along with costs of this proceedings.
2. The facts of the case in brief are that; the complainant is a permanent resident of Kamatagi Village in Hungund Taluk and is engaged in manufacturing steel furniture, repairing vehicles etc., with the financial assistance of Op1 and Op1 itself got insured all the stock of his garage for the security of loan advance with Op2 under policy No.240104/11/06/11/00001279. The insurance policy was inforce from 22.10.2006 to 21.10.2007. That this being the case in the month of September 2007 as there was a heavy rain fall in Bagalkot, Belgaum and Dharwad Districts the said garage of the complainant was submerged in the Malaprabha River Flood water and all the machineries and other stocks which were stored in his garage were damaged and destroyed causing a loss to the tune of Rs.4,50,000/- and because of that his entire business was closed and he was unable to pay the loan installments to Op1. The complainant informed this fact to the Tahasildar Hungund who visited the spot, but failed to pay any compensation, the complainant also informed Op2 about this fact and requested to pay the insurance amount but the Op2 has also not at all paid any amount and this has caused financial loss and mental agony to him and this amounts to deficiency in service etc., and hence has prayed for allowing the complaint.
3. Op1 inspite of due service of notice has remained absent and therefore, it is placed as exparte. However Op2 has appeared through the counsel and resisted the claim of the complainant by filing detailed written version denying initially almost all the averments of the complaint, but alternatively and without prejudice to the earlier stand it is stated that an investigator namely Danyakumar J. Danashetty of Bijpaur was appointed to survey about the loss sustained by the complainant and he has submitted his report on 10.10.2007 showing the loss sustained by the complainant at Rs.8000/- only. Since the said loss is less than Rs.10,000/- under general exceptional clause there is no liability to the insurance company. Therefore, the complainant is not entitled to any amount and there is no deficiency in service etc., and hence has prayed for dismissal of the complaint.
4. The complainant apart from filing his own affidavit has also filed a affidavit of one Shivanand and got marked nine documents as Ex.C-1 to Ex.C-9. As against this the Op has also filed affidavit and got marked five documents as Ex.Op1 to Ex.Op-5.
5. Heard arguments of both the sides.
6. Now the point that arises for our consideration are;
1.[FONT="] [/FONT]Whether the complainant is entitled to the relief as is sought for?
2.[FONT="] [/FONT]What order?
Answers to the above Points:-
1) Partly Affirmative.
2) As per final order
R E A S O N S
The exclusion term of an insurance policy must be read down so as to serve its main purpose of indemnifying the damage suffered by the insured.
When the material facts are admitted regarding the subsistence of the insurance policy on the date of the incident and damage caused to the materials of the complainant, the Op2 cannot take the help of general exclusion clause A as is narrated in Ex.Op5 when the policy in question is covered by the special perils policy. Therefore, the Op2 is not justified in denying the claim of the complainant.
8. Now the point is as to what extent the complainant is entitled to the amount. The complainant in his claim petition has claimed a sum of Rs.4,50,000/-. The loss assessed by the survey of the complainant namely Shivanand is at Rs.2,64,600/-. But on perusal the copy of the insurance policy in question namely Ex.C-2 it is seen that the total sum insured by the complainant was to the extent of Rs.1,95,000/- only. Therefore, the complainant is entitled to the amount only to that extent i.e. Rs.1,95,000/-.
9. The complainant has prayed for award of Rs.20,000/- for deficiency in service and another Rs.20,000/- for mental agony and physical strain etc. But in this case we are awarding the entire insurance amount to him. Therefore, there is no need to pay any amount towards the above said two counts. However he is entitled to Rs.2,000/- being the costs of this proceedings. With this we answer point No.1 partly in the Affirmative.
10. Point No.2: In the result the complaint of the complainant is fit to be allowed in part and hence we proceed to pass the following
O R D E R
Opposite Party No.2 is ordered to pay insurance amount of Rs.1,95,000/- (Rs.One Lakh Ninety five thousand only) to the complainant along with Rs.2,000/- (Rs.Two thousand only) being the costs of this proceedings within two months from the date of this order, failure of which Op2 shall pay interest on the above said amount at the rate of 10% per annum from the date of the complaint till complete realization.
Send free copy of this order to the parties immediately.
[FONT="](Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum on this 12th day of March 2009)[/FONT]
[FONT="] District Judge(Rtd)[/FONT]
[FONT="] [/FONT][FONT="] (Smt.Girija.R.Adakenavar)[/FONT]
[FONT="] [/FONT][FONT="] Lady Member.[/FONT]