BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 243/2004 Filed on 10.06.2004

Dated : 30.06.2010

Complainant:

E.M. Chandrasekharan Nair, T.C No. 28/1394, Sreekanteswaram, Thiruvananthapuram.

(By adv. S. Williams)

Opposite party:

The Branch Manager, Oriental Insurance Company Ltd., Divisional Office-1, P.B. No. 5012, Pazhavangadi, Thiruvananthapuram.

(By adv. S.S. Kalkura)

This O.P having been heard on 30.04.2010, the Forum on 30.06.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The grievance of the complainant is as follows: The complainant is the owner in possession and enjoyment over 15 cents of land in Sy. No. 2623 of Kadakampally village obtained as per pattayam No. 14492(A) issued by the Tahsildar, Taluk Office, Thiruvananthapuram. The complainant had planted 16 coconut trees, 2 mango trees and one jack tree in the said 15 cents of land. The complainant was running a Chappal Manufacturing Unit under S.S.I Scheme in the partially concreted small building constructed in a portion of the said land. The complainant dug a well to irrigate the vegetation in the said 15 cents of land. He purchased one V-Guard pump set and installed the same in the said 15 cents of land. The said pump set was insured with the opposite party under the Kisan Agricultural Pump set policy as No. 398/2001 and the policy coverage is from 29.03.2001 to 28.03.2004. The opposite party assured to undertake damage in any form including theft arising during the policy period starting from 29.03.2001 from mid night of 28.03.2004. Complainant satisfied all the conditions of the policy certificate, for which the said insurance was availed. The complainant used the pump set solely for agricultural purpose and the opposite party is bound to pay the assured amount on any damage or theft, being caused to the insurer during the validity period of the said policy. The pump set was stolen during the night of 13.09.2003 to 18.09.2003 and it was duly intimated to the Sub Inspector of Valiathura Police Station and Crime No. 266/2003 was registered under Sec. 380 of IPC and investigation commenced. Complainant claimed the amount covered by the policy in the prescribed form on 18.09.2003. Opposite party as per letter dated 23.01.2004, after 4 months of the complainant's claim, denied the legitimate claim of the complainant, alleging that the pump set was used for other than agricultural purpose. The claim of the complainant was rejected even though all the conditions were satisfied by the complainant. He never committed any breach of the conditions of policy.

Opposite party has filed their version contending as follows: The complaint is not maintainable. The opposite party is not aware as to whether the complainant was running a chappel manufacturing unit as claimed in the said paragraph, the opposite party is also not aware as to whether the complainant had planted 16 coconut trees, 2 mango trees and one jack fruit tree as claimed by him, as the complainant had at no point of time had ever divulged the nature of his occupation nor the details or nature of his property. As the opposite party is not aware of the details of his occupation and the nature of his properties therefore this opposite party has no other alternative but to deny the same. The allegation that the complainant had dug a well to irrigate the vegetation in the said 15 cents of land are incorrect, baseless and are denied. The allegation that he had purchased one V. Guard pump set and installed the same in the 15 cents of land is baseless and are denied as the complainant had at no point till the so called loss had occurred had ever informed the change of location of the insured item from that of his residential premises to his industrial concern on the contrary he had impressed upon the opposite party to issue policy claiming that the insured articles have been placed in his own residential premises. The complainant had never divulged that he is owing an industrial unit of his own and that the insured article will be placed at his industrial unit. The complainant had submitted a proposal for insuring a Kissan agricultural pump set which is located and placed at T.C 28/1394-1, Sreekanteswaram, Thiruvananthapuram for a total sum insured of Rs. 4,300/- for a period commencing from 29.03.2001 till 28.03.2004 pursuant to which the policy was issued to the complainant as required, subject to the terms and conditions specified therein. The allegation that the opposite party assured to undertake damage in any form including theft arise during the policy as alleged in paragraph 5 of the complaint is vague and lacks in material particulars and the opposite party is unable to comprehend the allegations made out in the said paragraph. The complainant had submitted the proposal form for insurance in respect of his Kissan Agricultural Pump Set which is placed in the address as shown in the policy. The policy had been issued to the complainant with the location of the pump set shown as that of his insured's residential premises. He had satisfied all the conditions of the policy certificate for which the insurance was availed are baseless and are denied. The allegation that the complainant used the pump set solely for the agricultural purpose and the opposite party is bound to pay the assured amount on any damage or theft being caused to the insurer during the validity of the policy are bereft of truth baseless and are denied. The opposite party on receipt of the surveyor's report and on perusal of the report, FIR, claim form, policy etc. and all the documents with all bonafides and applying their minds in good faith it was found that the place of the pump set specified in the policy was removed and placed at the Veli Industrial Estate, Thiruvananthapuram, and by the unauthorized removal of the insured property from the location specified in the policy, the policy had ceased to attach on the pump set. It was further observed that the pump set was housed at Veli Industrial Estate, Thiruvananthapuram which was lying unattended and the insured did not exercise all reasonable precautions for the safety of the insured property, further it was observed that there was no violent and forcible entry into the premises where the pump set was housed. Further no agricultural activities were carried out and the pump set was not used for agricultural purpose. The building which housed the pump set was used as a chappel manufacturing unit. The opposite party in view of the aforesaid facts on account of the non-disclosure of the material facts, suppression of material facts, insured's own neglect as well as change of the locality and also there was no possible of any violent entry the opposite party had no other alternative but to repudiate the claim with reasons, and the same was communicated to the complainant on 23.01.2004.

Complainant has filed affidavit in lieu of chief examination and has been examined as PW1 and marked Exts. P1 to P9. On behalf of opposite parties DW1 & DW2 were examined and Exts. D1 to D7 were marked.

From the contentions raised, the issues that would arise for consideration are:-

1. Whether the act of the opposite party in repudiating the claim is justifiable?

2. Whether there is any deficiency in service on the part of opposite parties?

3. Reliefs and costs.

Points (i) to (iii):- The case of the complainant is that, his claim has been repudiated by the opposite parties without any genuine reason. As per Ext. P1, the name and address of insured is E.M. Chandrasekharan Nair, 28/1394-1, Sreekanteswaram, Thiruvananthapuram and the location of pump set is written as “As above”. So as per Ext. P1 the pump set has been located at Sreekanteswaram, Thiruvananthapuram. As per Ext. P4, the place of occurrence has been mentioned as Veli Industrial Area, Vettukadu Ward, Kadakampally village. In the above circumstance there is no dispute that the pump set has been installed at Veli i.e; other than the location mentioned in the policy. At this juncture the cause of repudiation has to be looked into. As per Ext. P6 the opposite party has informed the complainant that 'on inspection of the premises by our surveyor it is understood that the location where the pump set was housed was used as a chappal manufacturing unit and hence the pump set was not used for agricultural purposes. The FIR also endorses the same.” The counsel for the opposite parties strenuously contended that, as the insured item was not situated in the address mentioned in the policy the same has been repudiated. The opposite parties have produced the ruling of the Hon'ble National Commission reported in 11(1995) CPJ 135 (NC) wherein it has been held that “the insurance company is right in its stand that the location of the risk is very vital to the contract of insurance, specially a Burglary insurance. If there has been any change, the complainant is obliged to communicate the change of location under proper acknowledgement of an official of the insurance company. On the receipt of the change of address, it is required to be incorporated in the policy by way of separate endorsement and till then no risk is assured in respect of the new location. It is absolutely at the discretion of the insurer to continue the insurance policy if the location is shifted from one place to another depending upon the nature of the construction”.

In view of the above discussions, we find that the act of the opposite parties in repudiating the claim is justified. Hence the complaint is liable to be dismissed.

In the result, complaint is dismissed, no order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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O.P. No. 243/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Chandrasekharan Nair

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of policy schedule

P2 - Kissan agricultural pump set insurance policy

P3 - Original receipts dated 31.01.1998

P4 - Copy of FIR dated 18.09.2003

P5 - Copy of burglary claim form dated 18.09.2003

P6 - Copy of registered letter dated 23.01.2004

P7 - Copy of registered letter with acknowledgement card.

P8 - Acknowledgement card addressed to opposite party.

III OPPOSITE PARTY'S WITNESS :

DW1 - P.P. Krishna Moorthi

DW2 - K. Viswappan Nair

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of agricultural pump set insurance policy proposal form.

D2 - Copy of policy schedule.

D3 - Copy of burglary claim form

D4 - Copy of FIR dated 18.09.2003

D5 - Private and confidential of theft occurred in the T.C 32/367, Building in Veli Industrial Area.

D6 - Copy of Miscellaneous Accident claim scrutiny Form.

D7 - Copy of registered letter dated 23.01.2004.

PRESIDENT