Complaint seeking to realize the insurance claim , compensation costs etc. The averments in the complaint can be briefly summarized as follows: The complainant is running a brick factory in the name and style Mahavishnu Wire Cut Bricks at west Kallada. The unit was insured with the opp.party company for a period of one year from 3.5.2005 till the midnight 2.5.2006. A sum of Rs.606/- was the premium and the opp.party issued policy certificate No.760904/11/05/00089, after doing inspection of the unit and complying legal formalities. As per the Insurance policy condition the building was valued at Rs.50,000/- Choola at Rs.1,00,000/- Plant and Machineries at Rs. 2,00,000/- and stock in process at Rs.2,00,000/-. While so, on 12.12.2005 at about 3 a.m. the kiln and 75,000/- numbers of bricks loaded there for firing process were total destroyed due to heavy flood and storm. On those days there were heavy rain and storm for a weak and almost all part of South Kerala was flooded during this period. At about 11 a.m. on the same say the complainant reported this destruction to the opp.party’s office. On 13.12.2005 certain company officials and surveyor visited the spot and prepared mahazar and report assessing the value The choola was constructed four years back to the incident spending a sum of Rs.3,00,000/-. The complainant also filed a claim form before the opp.party’s office and that office assured that the claim would be paid. Subsequently the claim was repudiated. Hence the complaint. The opp.party filed version contending that the complaint is not maintainable either in law or on facts. It is filed by the complainant as an experimental measure. The complaint is bad for non jointer of necessary parties. The financier of the unit Kollam District Co-operative Bank, Kottarakkara Branch is not made a party. It is true that the opp.party issued a Standard Fire and Special Perils Policy to the complainant for the period from 3.5.2005 to 3.5.2006 for the buildings, plant and machinery and stock in process for the complainant unit. But the opp.party is not liable to pay damages to the complainant. The complainant submitted a claim form on 12.12.2005 and on getting the claim form the opp.party appointed a surveyor who visited the premises and submitted a report along with certain photographs of the unit. On 12.12.2005 or on any nearby dates no storm was reported in the locality. The damage caused to the unit was not due to the storm or cyclone or due to any perils, but due to wear and tare of the roof. The roof of the kiln shed was made with asbestos cement sheet with angle iron support. That angle iron trusses was completely corroded due to wear and tare over a period of time. Due to the continuous exposure to hot gases and water vapour the roof trusses lost its strength and finally collapsed on that day. The damage caused due to wear and tare is not covered by the policy. Hence the claim was repudiated. The opp.party is not liable to pay damage to the complainant. There is no deficiency in service or unfair trade practice on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.parties 2. Reliefs and costs, For the complainant PW.1 and 2 are examined. Ext. P1 to P9 are marked. For the opp.party DW. 1 to 3 are examined. Ext D1 to D3 are marked. POINTS: As a matter of fact the policy is admitted. There is also no dispute that the roof of brick unit of the complainant which was insured with the opp.party collapsed and he sustained damages. The contention of the complainant is that the incident occurred due to the incessant rain and storm which hit the area at that time. The complainant produced Ext.P4 the certificate issued by the local Village Officer and Exts P5 to P8 Newspaper reports in support of his case. In Ext.P4 the Local Village Officer has certified that the brick unit of the complainant sustained damages due to the natural calamity on 11.12.2005 . Exts.P5 to P8 newspaper reports also shows that there was incessant rain and storm in South Kerala and the area where the complainants brick unit situated was also affected and the area was inundated with flood water. The evidence of PW.1 in this regard was corroborated by PW.2 and Exts. P4 to P8. The contention of the opp.party is that the roof of the brick unit of the complainant collapsed due to wear and tear to angle iron trusses which were completely corroded due to efflux of time, which is not an insured peril and therefore the claim was repudiated on the basis of Ext. D1 survey report. DW.1 is the surveyor who prepared Ext.D1, after visiting the premises on the next day of the incident. DW.1 has reported in Ext.D1 that the roof kiln shed of the brick unit collapsed and lying on the floor and according to him it collapsed due to the corrotion of the angle iron trusses and it fell down of its own. However, in page 2 of Ext. D1, DW.1 has stated that on enquiry he was satisfied that the area was affected by heavy rain, but no storm was reported DW.1 has admitted that his information that there was no storm in the locality was obtained on local enquiry and not based on any authority. So Exts. P4 to P8 are those reliable than the version of DW.1 and we hold that the brick unit of the complainant collapsed due to rain and storm and version of opp.party that it fell down of its own is not true or even probable. Ext. D1 cannot be said to be a report based on authority. The basis for working out the depreciation is not forthcoming. Similarly the age of the roof of the kiln shed is also not properly assessed. In cross examination DW.1 stated that he has assessed age as 10 years as told by the complainant. But the complainant’s case is that the building is only 4 years old. DW.1 has produced certain photographs, the marking of those photographs was objected as the negatives are not produced. The definite contention of the complainant is that the corroded iron trusses seen in the photographs does not relate to his brick unit. There is nothing in those photos to show that the photos are those of the complainants brick unit. The learned counsel for the opp.party would argue that the photos can be taken as evidence by Consumer Forum relying on the decision of National Commission reported in 2004 STPL[CL] 696. The photos can be taken as evidence only if it is established that it is the photos of the brick unit of PW.1 which is lacking in this case. It is the case of the complainant that at the time of renewing Ext.P1 policy the officials of opp.party visited the brick unit and were satisfied of the fitness of the same such a roof were not collapse of its own. The roof collapsed is admitted and it can only be due to the rain and strong of wind which erected the area. As pointed out earlier the depreciation percentage shown by the surveyor is not stated to be based on any authority and so the same cannot be safely accepted. No authority is also shown with regard to the valuation. The complainant has also not produced any material showing the actual loss sustained. So Ext.D1 report filed by DW.1 has to be accepted subject to modification of depreciation percentage so far as the Pillar and roof structure are concerned. Regarding the damage sustained to the bricks also there is only a vague statement from the complainant that 75000 raw brick kept for fitting have been destroyed. DW.1 has stated in Ext. D1 and as DW.1 that the bricks kept in the kiln were covered with water proof plastic sheets and no damage to the bricks were noticed. In the absence of evidence ,worth believable from the side of the complainant. Ext. D1 has to be accepted in this regard also. Regarding the damage to the shed and roof structure, in the absence of cogent materials we are of the view that Ext. D1 can be accepted with a 10% depreciation and after deducting salvage value of Rs.300/- the complainant is entitled to get Rs.62,209/-. The repudiation of the claim in toto in our view amounts to deficiency in service on the side of the opp.party. Point found accordingly. In the result, the complaint is allowed, directing the opp.party to pay the complainant a sum of Rs.62,209/- being the Insurance claim with interest @ 9% per annum from the date of complaint till payment and Rs.5000/- towards compensation and cost. The order is to be complied with within one month from the date of this order. Dated this the 25TH day of September, 2010. . I N D E X List of witnesses for the complainant: PW.1. – Gopalakrishnan PW.2. – Gopinathan Pillai List of documents for the complainant. P1. – Policy certificate P2. – Receipt P3. – Copy of claim form P4. – Certificate of Village officer P5. – Paper Publication P6. – Paper Publication P7. – Paper publication P8. – Paper publication P9. –Repudiation letter. List of witnesses for the opp.party DW.1. – Sivamony DW.2. – V. Jayaraman D3. – Alexander.K.I. List of documents for the opp.party D1. – Report of Brick unit D1.[a] – Photograph D2. – Copy of proposal form D3. – Policy conditions. | 
