KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO: 653/2009
JUDGMENT DATED: 31-05-2011
PRESENT
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
1. The Regional Manager,
Bajaj Allianz General Insurance Co.Ltd.,
Door. No.11, People’s Park, 3rd floor,
Govt. Arts College Road,
Coimbatore.
2. The Manager,
Bajaj Allianz General Insurance Co.Ltd.,
3rd floor, Finance Tower,
Ernakulam.
: APPELLANTS
3. Customer Care Cell,
Bajaj Allianz General Insurance Co.Ltd,
G.E.Plaza, Pune.
4. Bajaj Allianz General Insurance Co. Ltd.,
S.M.Complex, Palakkad.
(By Adv:Sreevaraham.G.Satheesh)
Vs.
K.P.Bushara, W/o Muhammed Ali,
Thadathil house,
Kanayam Post, Kulappully, : RESPONDENT
Shornur, Palakkad.
(By Adv.Sri.Karakulam.P.G.Manoj)
JUDGMENT
JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT
The appellants are the opposite parties/insurers in CC-60/08 in the file of CDRF, Palakkad. The appellants are under orders to pay a sum of Rs.7.lakhs towards the assured sum with compensation of Rs.2000/- and interest at 9%.
2. The matter is with respect to the collapse of the retaining wall of the petrol bunk owned by the complainant which was allegedly covered with the policy of the appellants for a sum of Rs.32.lakhs. The incident has allegedly taken place on 19/6/2007. The opposite party/appellants had disputed the claim on the ground that the retaining wall is not covered under the policy. The claim was repudiated. It was also contended that the standard fire and special perils policy did not cover the collapse of the retaining wall without any peril envisaged and that the same has taken place due to some structural defects.
3. The evidence adduced consisted of the proof affidavit filed by the respective sides and Exts.A1 to A7 and B1 and B2 series.
4. The Forum has passed a cryptic order and has allowed. Rs.7.lakhs which is the amount covered with respect to the constructions as per the policy. The complainant had claimed Rs.9.lakhs.
5. The major contention of the appellant is that as per ext.A3 policy/B1 the coverage is confined to the super structure of the building vide annexure-1 of the policy. We find that as per annexure-1 of Ext.A1/B1 the description with respect to the premises is bunk building with plinth and foundation. The amount of coverage is Rs.7.lakhs. Rs.5.lakhs is the coverage for furniture, fixtures and fittings Rs.24.5.lakhs is with respect to the stock. It is contended by the complainant/respondent that Ext.A5 the annexure to the policy for the previous year the items described are retaining and earth filling protection work, as well as the super structure of the building. The counsel for the appellant has produced a copy of the policy for the previous year which also shows that there is coverage of Rs.32.lakhs out of which Rs.7.lakhs is with respect to the premises/constructions. Annexure-1 therein is the same as Ext.B1. We find that the amount of premium paid for the policy for the previous year is Rs.10,851/- whereas the premium paid for the current policy is Rs.11,080/-. There is no reason as to why certain items are excluded in the present policy. The appellant/opposite parties have admitted that the policy for the previous year covered the retaining wall as per the item description in annexure therein, the copy of which is Ext.A5. In fact, the premium ought to have been lesser for the present policy as no claim has been made earlier. As pointed out by the counsel for the respondent/complainant it is evident that the entire items of the petrol bunk have been covered ie the furniture, fittings and fixtures, stock of petrol and diesel as well as the building, ie the constructions. The contention of the counsel that the respondent in this regard appears true. Further we find that the building of the petrol pump as evident from the photographs produced is a shed like structure and even if the structure of the concrete tanks is taken into consideration the same insured sum of Rs.7.lakhs appears some what excessived if the retaining walls are also not covered. The construction involved raising the earth by filling. The counsel for the respondent/complainant has also contended that the building included the structures of the premises also. He has relied on Sec.2(1)(i) of the Kerala Municipalities Act 1999 as per which the compound wall is also included in the definition of building. Although the definition in the Municipalities Act is meant for different purpose herein we find that there is any intention as such to exclude the retaining wall. The previous policy has been just renewed and there is nothing to show that there was no intention to exclude any item that was covered by the previous policy. Further it has also to be noted that so far as consumer disputes are concerned it is settled law that when two interpretations are possible, the one infavour of the complainant should be adopted. In the circumstances we find that the contention of the complainant that the policy covered the retaining wall also is correct.
6. As noted by the Forum, the surveyor in Ext.B2 report has mentioned that the area experienced heavy rains on the date of the incident and that the made up ground has been washed off in the rains. Flood and inundation is one of the perils covered by the policy. Hence the contentions of the appellant in this regard is without merits.
7. So far as the compensation is concerned we find that Ext.A7 abstract of the estimate by a licensed building supervisor has not been proved. Further the estimate is only with respect to the reconstruction of the retaining wall. Except the calculations there is no detail as to the extent of the collapse of the retaining wall etc. Further Ext.A7 has been prepared at the instance of the complainant without the junction of the opposite party. Hence no reliance can be placed on the same. Further the entire building and other constructions have been covered for Rs.7.lakhs where as according to Ext.A7 the cost of reconstruction of the wall alone is Rs.9.lakhs. Evidently, Ext.A7 mentions an exaggerated amount. The surveyor has estimated the loss at around Rs.1.5.lakhs. Of course he has not provided details of his estimate. All the same it is only the surveyor’s estimate, vide Ext.B2 that appears somewhat reliable. Hence we find that the complainant will be entitled only for the amount as estimated by the surveyor. Hence the order of the Forum is modified. The appellants would be liable to pay a sum of Rs.1.5.lakhs to the complainant towards the assured sum. The complainant will also be entitled for interest at 9% on the above sum from the date of complaint ie 19/4/2008. The complainant/respondent will also be entitled for cost of Rs.5000/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 31/5/2011, the date of this order.
The office will forward the LCR along with the copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL.
