KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVANANTHAPURAM
Dated this the 30th December 2013
PRESENT:HON.JUSTICE.P.Q.BARKATHALI, PRESIDENT
APPEAL/646/2012
M/s National Insurance Company Ltd,
Branch Office, Mullappally Building, - Appellant
A.M.Road, P.B.No.24, Perumbavoor.
(By Adv: Sri.Prasannakumar Nair)
Vs
Appu’s Plywood Industries,
Iringole P.O, Perumbavoor, - Respondent
Rep.by its Proprietor
Mrs.Ambika Prakash – 683 548.
(By Adv: M/s Vijayachandra Babu)
ORDER
By HON.JUSTICE.P.Q.BARKATH ALI : PRESIDENT
This is an appeal filed by the opposite parties in CC 251/2010 on the file of Consumer Disputes Redressal Forum, Ernakulam under section 15 of the Consumer Protection Act, 1986 challenging the order of the Forum dated 29/02/2012 directing the opposite party Insurance company to pay Rs.2,08,814/- with interest towards the loss sustained by the complainant on account of fire in her factory.
2. The case of the respondent/complainant and as detailed in the complainant before the Forum in brief is this:
3. Complainant is the proprietrix of M/S. Appu’s Plywood Industries, Iringole, Perumbavoor and is engaged in making plywood. In 2007 complainant availed 2 Insurance policies from the opposite party company. The first policy was a “Boiler and Pressure Plant Insurance” policy under which Thermotec make Oil Boiler with Oil and Thermotec make steam Boilers (3 Nos.) were insured for Rs.13,00,000. Second policy was “Standard Fire and Special Peril Policy” under which the entire building including Boiler Oil and Furniture, fixtures and fittings, stock of raw materials etc were covered for Rs.41,00,000/-. On Sep.7, 2008 a fire broke out in the factory. The pump of the boiler got struck and the movement of the thermal fluid stopped, as a result of which the temperature of the system increased causing the accident. Though complainant claimed Rs.8,60,623/- the opposite party allowed only Rs.70,309/-. The complainant filed the complaint claiming that amount.
4. The appellant opposite party is National Insurance Company represented by its Branch Manager at Perumbavoor who in his version contented thus before the Forum:
The issuance of 2 policies is admitted. It is also admitted that damage was caused to the factory of complainant by fire on Sep.7, 2008. The surveyor has assessed the damage caused to the factory building, plant and machinery as Rs.70,407/- which has been disbursed to the complainant under Fire and Special Peril Policy of Ext.B4. Surveyor has assessed to the damage caused to the Boiler as Rs.2,08,814/-. As the damage was caused due to the fire it comes under exemption clause of Ext.B4. Therefore the claim of the complainant was repudiated.
5. Ext.A1 to A7 were marked on the side of complainant and DW1 was examined and Ext.B1 to B7 were marked on the side of opposite party before the Forum. On an appreciation of evidence the Forum found that complainant is entitled to the claim amount under Ext.B4 policy and directed the opposite party to pay Rs.2,08,614/- with interest. The opposite party has come up in appeal challenging the said order of the forum.
6. Heard both the counsels.
7. The following points arise for consideration.
1. Whether the opposite party is justified in repudiating the claim of the complainant under Ext.B4 Boiler and Pressure Plant Insurance Policy?
2. Whether the impugned order of the Forum can be sustained?
It is admitted that on Sep.7, 2008 at about 2 p.m. a fire broke out in the factory of the complainant causing damage to the building and materials therein It is also not in dispute that by Ext.B4 Boiler and Pressure Plant Policy, the boiler was insured for Rs.30 lakhs and by Ext.B5 Fire and Special Perils Policy, the building and other raw materials were insured for Rs.41 lakhs. Ext.B1 and B2 are the Survey Reports. In Ext.B2 the Surveyor has assessed the damage caused to the building and other materials which were insured by Ext.B5 policy as Rs.70,407/- which was disbursed to the complainant. The Surveyor has by Ext.B1 report has assessed the damage to the boiler as Rs. 2,08,814/- which is covered by Ext.B4 Boiler and Pressure Plant Insurance Policy.
8. The case of the opposite party is that the claim of the complainant under Ext.B4 Boiler and Pressure Plant Insurance Policy cannot be granted as the damage caused the boiler was due to the fire and fire only as reported by Surveyor PW1 in Ext.B1. According to the PW1 the Surveyor due to current failure the machines were got struck which resulted in overheating and subsequent overflowing of Thermic fluid over the veneer which started burning. But there is no evidence to show that there was failure of current at that time PW1 admitted that there was generator. Therefore the observation of the surveyor that there was a power failure at that time which caused the accident cannot be accepted. He admitted that he did not dismantle the pump or boiler for ascertaining the actual cause of damage. Under these circumstances opposite party is not justified in repudiating the claim of the complainant under Ext.B4 policy. The finding of the Forum on this point is confirmed.
9. But there is another aspect in this case. The complainant has not chosen to examination himself to prove the actual cause of damage and actual cause for the fire. Under these circumstances we feel that the loss caused to the complainant can be determined on a non standard basis which comes to 75% of the actual loss sustained by the complainant. In Ext.B1 the surveyor has assessed the loss of 2,08,814/- 75% of which comes to Rs.1,56,630/- . The complainant is entitled to Rs.1,56,630/- and interest at the rate of 12% per annum from the date of the complaint till realisation.
In the result appeal is allowed in part. The impugned order of the Forum is modified to the effect that the opposite party is directed to pay to the complainant Rs.1,56,630/- with interest @ 12% per annum from the date of complaint till realisation.
JUSTICE.P.Q.BARKATHALI, PRESIDENT
VL.
