BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 255/2005 Filed on 22.07.2005

Dated : 30.01.2009

Complainant:

V.R. Somanathan Nair, Venattumattathil House, Alanadu P.O, Pravithanam, Palai, Kottayam District and also having address Pala Timbers, Karakkamandapam, Thiruvananthapuram.

(By adv. V.P. Suresh)

Opposite party:

The New India Assurance Co. Ltd., represented by the Divisional Manager, Divisional Office II, K.N. Mathew Building, Gandhari Amman Coil Street, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This O.P having been taken as heard on 09.12.2008, the Forum on 30.01.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The facts that leads to the complaint are as follows: The petitioner has a Male Elephant named 'GANGADHARAN' having 53 years old and the petitioner has keeping the elephant in his timber depot in the name and style 'Pala Timbers' at Karakkamandapam. The said elephant was insured with the opposite party for the total sum assure of Rs. 300000/- including the third party claim vide policy No. 2003/761400/47/03/00771 under the scheme 'Elephant Insurance' for the period of 25.02.2004 to 24.02.2005 and the opposite party has given policy certificate to the petitioner. On every morning the aforesaid elephant was taken to Killi river for taking bath. On 28.06.2004 at about 7.30 a.m the mahout of the aforesaid elephant has lead the elephant to Killi river through Karakkamandapam-Thiruvananthapuram NH Road, and when the elephant has reached near to the Killi bridge, the elephant became perplexed due to the loud sound of a J.C.B near by and the baffled elephant ran through the bund road of the Killi river. Due to the running of the elephant it caused damages to the compound walls, building portions, furnitures and other structures situated on either side of the aforesaid road and also sustained damages to an auto rikshaw bearing Reg. No. KL-01-K/3702 of Mr. Sadasivan and the bicycles of Mr. Mohanan Nair and Mr. Prakash. Due to complaint of the aforesaid person who sustained damages, the police from the Fort Police Station inspected the place and recorded the aforesaid accident in the GD on 29.06.2004 and on the same day the petitioner informed the aforesaid accident in the office of the opposite party, and the opposite party had appointed a surveyor for local inspection and the surveyor has convinced all the aforesaid damages. As per the settlement between the aforesaid people who sustained the damages caused by the elephant and the petitioner with the mediation of the S.I. of police, Fort Police Station, the petitioner made an undertaking that, he would cure the damages sustained to the compound walls, buildings and other structures immediately and has engaged 'Style Home Contractors' for rectification of the aforesaid damages. The petitioner has also given compensation to the aforesaid persons who sustained damages to the vehicles like auto rickshaw and bicycles. Immediately the complainant has informed the aforesaid facts to the opposite party and requested to settle the third party claim, but the opposite party told the complainant to furnish all the vouchers and bill after curing the damages, then only they will pay the amount. The petitioner has spent the total amount of Rs. 65,530/- for rectifying the total damages caused through the elephant on 28.06.2004 from his own hand. Thereafter on 28.07.2004 the petitioner has submitted public liability claim form in the office of the opposite party with all vouchers, bills and receipts and claimed the aforesaid amount of Rs. 65,530/-. But the opposite party has not taken any further steps for settling the claim of the petitioner and the opposite party has kept silence. On several days the petitioner has personally approached the office of the opposite party for the aforesaid claim, but the opposite party has not turned up and has given only evasive answer. The third party damages sustained due to the acts of the elephant is within the policy period and the opposite party has not acted upon the terms and conditions of the policy and opposite party is also violating the policy conditions and are trying to escape from their liability. Due to aforesaid acts of the opposite party, the complainant has sustained high mental pain and agony. Hence on 07.06.2005 the petitioner has sent a lawyers notice to the opposite party demanding for settling the claim and the opposite party has received the notice and has not given the reply or settled the claim, hence this complaint is necessitated.

The opposite party, New India Assurance Co. Ltd filed version denying the claim and allegations against them put forwarded by the complainant. They stated that the complaint is not maintainable either in law or on facts. They have no dispute regarding the existence of policy and the occurrence of the incident. They stated that as per the policy the liability towards third party injury and property is limited to Rs. 1,50,000/-. The opposite party challenged the damages stated in the complaint. They further submitted that the averments in paras 5,6,7 and 8 of the complaint are not fully correct and hence denied. The averments therein that the petitioner with the mediation of Sub Inspector of Police, Fort Police Station, Thiruvananthapuram undertook to cure the damages and engaged Style Home Contractors for rectification of the compound walls and buildings and gave compensation to the persons whose vehicles like auto rickshaw and bicycles were damaged and furnished all the bills and vouchers to opposite party and that the petitioner spent total amount of Rs. 65,530/- for rectifying the total damages caused by the elephant on 28.06.2004 from his own hand etc. are absolutely false, baseless and hence denied. They submitted that immediately on getting the information regarding the alleged damages, the opposite party deputed an independent licensed surveyor to conduct survey and assess the loss caused to the complainant. He conducted detailed survey on 29.06.2004, 30.06.2004 and 07.07.2004 and assessed the total loss caused at Rs. 26000/-. They contended that no damage was caused to the complainant to the tune of Rs. 65,530/-. The bills and vouchers submitted by the complainant were baseless, exaggerated and exorbitant. They also submitted that the complainant has no right to compromise or settle the claims without the knowledge and consent of the opposite party, and if any such settlement or compromise is made the same is not binding on this opposite party. The averments of the complainant that on several days the petitioner has personally approached the opposite party for the claim, but the opposite party has not turned up and has given only evasive answer trying to escape from the liability and that the opposite party has not acted upon the terms and conditions of the policy etc. are false and hence denied. The opposite party also submitted that they have sent reply notice dated 18.08.2005 stating true and correct facts to the advocate notice issued by the complainant. The opposite party further submitted that the complainant is not entitled to get any amount other than Rs. 26000/- as assessed by the surveyor. The opposite party has not committed any deficiency in service, negligence or unfair trade practice and has not caused any mental agony or pain or loss or damage to the complainant. Hence they prayed for the dismissal of the complaint.

In this case the complainant and opposite party filed proof affidavit. From the side of complainant 8 documents were marked as Exts. P1 to P8. The opposite party produced 6 documents which were marked as Exts. D1 to D6.

The points that would arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice on the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs.

Points (i) & (ii):- In this case the complainant has produced 8 documents to prove his claim. Ext. P1 is the copy of policy certificate. The opposite party has no dispute regarding the policy. Ext. P2 is the copy of letter dated 29.06.2004 through which the complainant informed the accident to the opposite party. Thereafter the opposite party appointed surveyor for assessing the damages. The opposite party has no dispute regarding the accident. Ext. P3 is the copy of public liability claim form submitted by the complainant on 28.07.2004 for Rs. 65,530/-. The surveyor submitted the report on 05.10.2004. Ext. P4 is the copy of G.D report dated 29.06.2004 of Fort Police Station. In this document, the complainant assessed the total damages as Rs. 29,700/- only. Ext. P5 is the copy of invoice of Style Home Contractors for Rs. 59,930/-. Ext. P6 is the copies of receipts issued by the persons who were sustained damages due to the alleged accident for Rs. 4,700/-. Ext. P7 is the copy of suit notice issued by the complainant's advocate on 07.06.2005. Ext. P7 is the postal receipt of suit notice. The complainant issued suit notice on 07.06.2005 and complaint filed on 22.07.2005. The opposite party sent reply notice only on 18.08.2005 i.e; after filing of the complaint before this Forum. Ext. D4 is the copy of reply notice. Ext. D5 is the copy of postal receipt dated 24.08.2005 i.e; 6 days after the date seen in the copy of notice. Ext. D6 is the acknowledgement card signed by the complainant dated 25.08.2005. Ext. D1 is the surveyor's report. The surveyor assessed the total loss as Rs. 26000/-. The surveyor's statement is a very detailed one. He gave detailed calculation for each and every loss. Exts. D2 and D3 documents are the copy of photos and negatives of the damages occurred due to the accident.

We have perused the documents, pleadings and affidavits of both the parties. The main allegation of the complainant is that till the date of filing of the complaint, there is no response from the side of opposite party to settle the claim. The complainant produced the claim form before the assessment of loss by the surveyor. The complainant has no case that the assessment of the surveyor is not correct or very low. The complainant in this case sent suit notice on 07.06.2005 and the complaint filed before this Forum on 22.07.2005. But the opposite party sent reply notice only on 24.08.2005. The learned counsel for the complainant argued that even at that time the opposite party did not turn up to issue the admitted amount. From this argument of the complainant we have come to the conclusion that the complainant was willing to accept the amount if the opposite party had offered the amount before the filing of the complaint. From the evidences and pleadings of the complainant we can find that there is delay in settling/offering the amount and hence there is deficiency in service from the side of opposite party. The third party damages sustained due to the acts of the elephant is within the policy period and the opposite party had not acted upon the terms and conditions of the policy and are trying to escape from their liability. This act of the opposite party is amounting to unfair trade practice. The complainant in this case succeeded to prove his case with his pleadings and evidences. Hence the complaint is partly allowed. It is settled position of law that the report of the surveyor is an important piece of document. Hence we find that the amount assessed by the surveyor is reasonable and direct the opposite party to pay Rs. 26,000/- with 12% interest from 05.10.2004 till the date of realization. No separate compensation allowed since we have already allowed interest for the amount. The opposite party shall also pay Rs. 2,000/- as costs. Time for compliance is one month.

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 day of 30^th January 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 255/2005

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of policy certificate.

P2 - Photocopy of letter dated 29.06.2004.

P3 - Photocopy of Public Liability Claim form dated

28.07.2004.

P4 - Photocopy of G.D Report dated 29.06.2004 of Fort Police

Station.

P5 - Photocopy of Invoice of Style Home Contractors.

P6 - Photocopy of receipts (3 Nos.)

P7 - Photocopy of advocate notice dated 07.06.2005.

P8 - Original postal receipt.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Photocopy of private and confidential survey report dated 05.10.2004.

D2&3- Photocopies of 50 photos.

D4 - Copy of advocate notice dated 18.08.2005.

D5 - Copy of receipt dated 24.08.2005.

D6 - Copy of acknowledgement card.

PRESIDENT