KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 356/2009

JUDGMENT DATED:  30-01-2010

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI. M.K. ABDULLA SONA                           :  MEMBER

APPELLANT

Oriental Insurance Company Ltd.,

Divisional Office, LIC Building, Kollam.

          (Rep. by Adv. Sri. S.S. Kalkura & others)

                   Vs

RESPONDENT

E.M. Shajas Pushpamada,

Proprietor, M/s Khan Brothers Bricks,

Pullichira P.O., Mayyanad, Kollam.

(Rep. by Adv. Smt. S. Latha & Sri. B. Sreekumar)

JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:   PRESIDENT

                   The appellant is the opposite party/Oriental Insurance Company Ltd. in CC No. 187/05 in the file of CDRF, Kollam.  The appellant is under orders to pay a sum of Rs. 1,52,550/- towards the claim and also to pay a sum of Rs. 5,000/- as costs and compensation.

2.      The case of the complainant who is the owner of a brick manufacturing unit is that the above unit covered by the Standard Fire and Special Perils Policy of the opposite party sustained damages on account of flood resulting from heavy rain fall from 10-06-2004 to 19-06-2004.  He has claimed damage for the loss sustained to the building and to the raw materials amounting to Rs. 2,30,000/-.

3.      The opposite party/appellant repudiated the claim on the ground that there was no evidence with respect to the alleged flood during the particular period and also on the ground that the raw materials are not covered by the policy.

4.      The evidence adduced consisted of the testimony of PW1, DWs 1 and 2, Exts. P1, P2 and D1 to D6.

5.      In support of the case of the complainant that there was devastating rains during the period, PW1 the complainant has testified.  The opposite party has produced Ext.D4, the report of the Meteorological Department as per which on 10-06-2004, there was shower accompanied by strong winds of speed occasionally reaching 45-55 Kmph.  We find that the above report is only with respect to 10-06-2004.  The complainant’s case is with respect to the period from 10-06-2004 to 19-06-2004.  The Forum has noted that the month of June is a monsoon season and hence in the absence of evidence to the contrary the case set up by the complainant was relied on.  It was also noted that the Surveyor reached the spot only on 24-06-2004.  In the circumstances, we find that no interference on the above point is called for.

6.      The case of the appellant is that the raw bricks are not covered by the policy and only furnaced (baked) bricks are covered. As per the policy produced the coverage is with respect to stock of bricks and building.  Evidently, the raw materials ie, red mud, blue mud and river sand, the value of which were ordered to be paid are not covered by the policy.  The Forum has relied on the statement of DW2, the Surveyor who in the cross examination has stated that the moulded bricks and the dried bricks as well as the burned bricks can be called bricks.  It has also to be noted that when two interpretations are possible the one infavour of the insured has to be accepted.

 7.     The Surveyor has noted the number of bricks damaged is 51000.  He has also noted that the value of the same would be Rs. 950/1000 bricks.  The Forum has calculated the loss at the rate of Rs. 1,400/1000 bricks.  We find that in the absence of positive evidence for the higher value awarded, the value suggested by the Surveyor has to be accepted.  If so, the amount of the value of the damaged bricks would workout to Rs. 48,450/-. For the damage to the building a sum of Rs. 150/- was awarded by the Surveyor as well as by the Forum.  The complainant would not be entitled for the loss of red mud, blue mud and river sand.  Hence the complainant would be entitled only for a sum of Rs. 48,600/-.

In the result, the appeal is allowed in part. The opposite party is liable to pay to the complainant/respondent a sum of Rs. 48,600/- with interest at 7.5% from 01-06-2005 the date of complaint and cost of Rs. 2,500/-.  The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled to interest at 12% from the date of this order.

                                           JUSTICE. K.R. UDAYABHANU    :  PRESIDENT

                                    M.K. ABDULLA SONA            :  MEMBER