KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 12/2006 JUDGMENT DATED: 29.10.09 Appeal filed against the order passed by CDRF, Pathanamthitta in OP.61/02 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER M/s Oriental Insurance Co.Ltd., : APPELLANT Branch Office, Neduvalil Buildings, Pazhavangadi.P.O., Ranni, Pathanamthitta, Rep.by its Divisional Manager, Divisional Office-1, Thiurvananthapuram. (By Adv.Varkala B.Ravikumar) vs. G.Pradeep, : RESPONDENT Proprietor, M./s Time Land Watch Dealers, Kozhenchery, Pathanamthitta District. JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellant is the opposite party/Insurance Co. in OP.61/02 in the file of CDRF, Pathanamthitta. The appellant is under orders to pay a sum of Rs.2,01,570/- as damages with interest at 12% and also Rs.5000/-as compensation and Rs.2500/- towards cost. 2. It is the case of the complainant that his shop by name Time Land Watch Dealers was insured with the opposite party for natural perils and that on 8.7.01 there was a flood and the shop building was under flood for a number of days. He has assessed the loss at Rs.2,39,000/-. The opposite party deputed a surveyor who assessed loss as at Rs.6830/-. Only the above amount was offered by the opposite party. 3. The appellant/opposite party has admitted policy coverage as well as the fact that the area was flooded on 8.7.01. M/s SP Engineers and Surveyors were deputed to conduct survey. The surveyor physically verified the affected stock and assessed the loss based on the cost price of the articles. It is contended that the water level inside the shop arose only upto the level of 3 feet. Only stock kept at the lower level got damaged. The entire items got damaged were assessed by the surveyor. The net loss is only Rs.6830/-. 4. The evidence adduced consisted of the testimony of PW1, DWs 1 and 2; Exts.P1 to P8. 5. The Forum has relied on the alleged offer made by the opposite party to the complainant that the opposite party shall pay the price of 300 Nos. of watches; 50No of clocks, 10 calculators, 6 telephone sets, 100 straps, 15 time pieces and the machineries of 50 clocks. The Forum has noted that in the cross examination by the counsel for the opposite party/appellant the above question was put as a suggestion and the complainant, PW1 had admitted that there was such an offer. The counsel for the appellant has pointed out that when PW1 was cross examined the above question were put just to discredit the case of the complainant that on such offers were made. It is also pointed out that when the above questions were put it has been so recorded in the deposition with a question mark. It is relying on the above questions that the Forum has taken the above suggestions as admissions by the opposite party as to the offers made. We find that the above finding of the Forum cannot be upheld in view of the fact that the opposite party would never have volunteered to compensate for the above extent of loss as the surveyor deputed by the opposite party vide Ext.R1 report has only assessed the loss as Rs.6830.04. The surveyor has assessed the damages with respect to 100 leather straps, 4 Orpat calculators, 5 Casio calculators, 2 Orpat clocks, 7Samay clocks and 2 clock movements (machineries). The cost price of the leather straps vide the particular brand have been mentioned in detail. The total value goes to Rs.12130/-. The surveyor further deducted trade discount at 50% and salvage value and arrived at a loss of Rs.4648/-.With respect to the calculators the surveyor has mentioned the total price as Rs.2106.08/-. After deducting salvage value of 50% loss assessed at Rs.1053.04. With respect to clocks and clock movements ie, machineries the surveyor has mentioned the price of the clocks as Rs.2158/- and 50% deducted towards salvage value and the loss is mentioned as Rs.1079/-. The price of the clock movements 2 Nos. is mentioned as Rs.100/- and 50% has been deducted. We find that excluding the trade discount and 50% salvage value the total amount would work out to 16494/-. It appears to us that 50% salvage value deducted cannot be upheld as the damaged clocks and straps would have no reasonable value. In view of the fact that the complainant has no case that the articles were lost in the flood there is no explanation for the non production of the damaged articles before the surveyor. Statements of the lost items produced cannot be relied in the above circumstances. The calculation made by the Forum is totally erroneous and there is patent illegality in the order of the Forum. In the circumstances we find that the complainant is entitled to have damages for the articles actually got damaged in the flood only. Hence the order of the Forum is set aside. The complainant would be entitled only for a sum of Rs.16494/- with interest at 12% from the date of complaint. The complainant would also to be entitled for cost as ordered by the Forum. The order to pay compensation of Rs.5000/- is set aside. The appellant would pay the amount due as above within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 18% from the date of this order. Office is directed to forward the LCR to the Forum along with the copy of this order. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER Ps
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