KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 175/2017

JUDGMENT DATED: 15.10.2024

(Against the Order in C.C. 260/2014 of DCDRC, Kottayam)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

The Divisional Manager, New India Assurance Co. Ltd., K.K. Road, Kottayam-686 002.

(By Adv. Sreevaraham G. Satheesh)

                                                Vs.

RESPONDENT:

Hishad Moosa Jass, S/o V.K. Moosakutty, Sole Proprietor School Master, Building No. 204, Ward X, Aymanam Village, Kottayam-686 015.

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the opposite party and the respondent is the complainant in C.C. No. 260/2014 on the files of the District Consumer Disputes Redressal Commission, Kottayam (“the District Commission” for short).

2. The respondent is the proprietor of a concern, namely, “School Master”, engaged in the printing and selling of school guides and magazines.  The respondent insured his institution with the appellant under ‘standard fire and special perils policy’.  On 20.03.2014, there was heavy rain and flood in the locality and as a consequence, the paper reels, magazines, guides etc. were damaged.  The matter was intimated to the appellant, immediately.  A surveyor was appointed by the appellant for inspecting the premises and assessing the quantum of loss.  The surveyor reported that there was no flood in that area and the loss, if any, had occurred only due to the negligence of the respondent.  The respondent contended that the respondent sustained a loss of Rs. 1,50,000/- on account of the damage caused to the school master magazines and guides.  The respondent also sustained a loss to the tune of Rs. 3,44,280/-, which is the value of 85 kg of 90 paper reels @ Rs. 45/- per kg.  Thus, the respondent claimed a total amount of Rs. 4,94,280/- with interest and costs. 

3.  The appellant filed version admitting the policy.  However, the appellant contended that the policy covered only the damage caused due to natural calamities.  In the present case, there was no flood and hence there was no natural calamity.  The front portion of the left side shed was completely open.  The water entered into the shed through the said opening.  The printing press situated on the back side shed did not sustain any damage due to flood.  There was no evidence to prove any flood.  The paper reels might have also got damaged due to the bad roofing of the shed. 

4.  Both sides filed proof affidavit.  Exhibits A1 and A2 were marked for the respondent and Exhibits B1 and B2 were marked for the appellant.  After evaluating the evidence, the District Commission directed the appellant to pay Rs. 3,44,250/-to the respondent with 9% interest from the date of complaint till realization.  The appellant was also directed to pay costs of Rs. 5,000/-.  Against the said order, this appeal has been filed. 

5.  Heard both sides and perused the records. 

6.  It is not disputed that the respondent had insured his institution under ‘standard fire and special perils policy’.  It is also not disputed that due to rain, some of the school master magazines, guides and paper reels kept in the said institution got damaged.  The respondent would contend that there was flood due to heavy rain, which resulted in causing damage to the materials inside the institution of the respondent.

7.  The appellant would contend that since there was no flood or any other natural calamity, the appellant was not liable to pay any amount to the respondent.  The appellant also repudiated the claim, unilaterally, as per Ext. A2 letter. 

8.  The appellant would contend that the respondent did not submit any claim in writing stating the loss and damage sustained by the respondent in connection with the incident and consequently, the appellant is not liable to pay any amount to the respondent as compensation.  It is admitted that the incident in this case was on 20.03.2014.  Immediately, the matter was intimated to the appellant by the respondent.  On 21.03.2014, a surveyor was deputed by the appellant for inspecting the building and assessing the damage.  As per clause 6(i)(b), under the General Conditions of Ext. B1 policy, the insured must submit the claim in writing within 15 days after the loss or damage.  In this case, Ext. A2 letter repudiating the claim was sent by the appellant on 02.04.2014, which was within 15 days of the incident.  Therefore, the respondent had no occasion to file any claim as contemplated under the policy.  This being the position, the contention in this regard cannot be accepted. 

9.  In Ext. A2 letter repudiating the claim, it was stated that the surveyor had reported that there was summer rain on 20.03.2014. However, there was no report in the newspapers or media about the flood.  Since there was no report in the newspapers or media about the flood, the appellant presumed that there was no flood.  It is clearly stated in Ext. A2 letter that there was summer rain from evening to night hours on 20.03.2014. In Ext. B2 letter, the surveyor also reported that there was summer rain from evening to night hours at Kottayam and surrounding area.  Since there was continuous rain from evening to night hours, it cannot be said that there was no flood at all around the institution of the respondent, merely because there was no report in the newspapers about the flood.  It is stated in Ext. B2 survey report that the respondent had made arrangements to drain water from the shed. 

10.  The institution of the respondent consists of three sheds, of which one shed alone was open on its front side. In Ext. B2 report, it was reported by the surveyor that the outer layer of some paper reels which were lying down in the main shed and left side shed were wet and damaged.  The appellant did not have a contention that the main shed was kept open.  Even then, the paper reels kept in the main shed also got damaged due to rain water.  Even though the appellant had stated in the version that the roofing structure of the shed was poor, there was no such finding by the surveyor in Ext. B2 report.  In Ext. B2, the surveyor described the structure.  In page 2 of Ext. B2, it is stated that the roofing was made of asbestos/metal sheets over metal framed skeleton.  It was not stated by the surveyor in Ext. B2 report that the roofing structure was poor.  That apart, the damage caused to the paper reels kept in the main shed would probabilize the contention of the respondent that the water flew into the sheds due to flood owing to the heavy rain in the locality from evening to late night.  The appellant also admitted that there was  rain in the locality from evening till midnight. In such a situation, merely because there was no report in the newspapers or media about the rain or flood, it cannot be said that there was no flood in the locality.  In view of the above, the contention of the appellant that the damage was caused due to the opening on the front side of the left shed cannot be accepted.  

11.  The appellant also contended that no final report of the surveyor was available to prove the quantum of loss actually sustained by the respondent and consequently, the order of the District Commission directing the appellant to pay the amount towards the loss sustained by the respondent on account of the damage to the paper reels cannot be justified.  It is not disputed that the surveyor was deputed by the appellant on the next day of the incident.  If the appellant was not satisfied with the preliminary report filed by the surveyor, the appellant ought to have deputed him for submitting a final report.  Since the appellant did not incline to assess the actual loss sustained by the respondent, the District Commission rightly accepted the contention of the respondent and the report of the surveyor to order the amount.  It is clearly stated in Ext. B2 report of the surveyor that the amount of Rs. 3,44,250/- is the loss of 85 kg of 90 reels of paper @ Rs. 45/- per kg, on the basis of the external appearance.  Thus, even the surveyor admitted prima facie that the respondent sustained such a loss.  In the absence of any other material on record, the District Commission was justified in accepting the said report along with the contention of the respondent in ordering the amount.  This being the situation, we do not find any reason to hold that the amount of Rs. 3,44,250/-ordered by the District Commission with interest, is arbitrary or excessive, calling for interference by this Commission.  The District Commission ordered costs of Rs. 5,000/-, which is also not excessive or harsh. 

12.  Having gone through the relevant inputs, we find no reason to interfere with the order passed by the District Commission.  Accordingly, the order passed by the District Commission stands confirmed.

In the result, this appeal stands dismissed and the order dated 31.01.2017 passed by the District Commission in C.C. No. 260/2014 stands confirmed.  In the circumstances of the case, there is no order as to costs. 

The statutory deposit made by the appellant shall be refunded to the respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement. 

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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