KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 400/06
JUDGMENT DATED: 31-08-2010
PRESENT:-
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
APPELLANT
1. The Branch Manager,
United India Insurance Co. Ltd.,
Pathanamthitta.
2. The Divisional Manager,
United India Insurance Co.Ltd.
Divisional Office, 2nd Floor, S.K.P building,
Beach road,Kollam.
Represented by Senior Divisional Manager,
Francis Joseph, Divisional Office-1,
L.M.S Compound, Thiruvananthapuram
(Rep. by Adv. Sri. R. Jagadeesh kumar))
Vs
RESPONDENT
K.V. Skaria,
Propritor,
St. George Saw Mill & Wood Industries
Melukara, Kozhencherry
. (Rep. by Adv. Sri. N. Kuttappan, Thazhassery. indran)
JUDGMENT
DATED: 31.08.2010
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
The appellants are the Opposite parties/Insurance company in O.P. 239/02 in the file of CDRF, Pathanamthitta. The appellants are under orders to pay a sum of Rs. 1,17,000/- to the complainant towards the loss sustained with interest at 9% per annum from the date of filing of the complaint and till the date of the order of the Forum and thereafter at 6% per annum. The opposite parties/insurance company is also ordered to pay a sum of Rs. 10,000/- as compensation and costs of Rs. 1,500/-
The case of the complainant, who is the proprietor of a Saw Mill, is that the particular industrial unit owned by him had availed financial assistance from SBT, Kozhancherry branch, and it was insured with the opposite party vide the fire and allied perils policy. During the period of insurance there was a flood from 8.7.2001 to 10.07.2001. The flood caused extensive damages to the building, furniture and a number of wooden logs were swept away in the floods. In the flood, water raised up to the roof level of the building. He sustained loss to the tune of Rs. 3,27,400/- Immediately the matter was intimated to the Branch Manager of SBT. On 26.7.2001 a claim Form was submitted before the opposite parties mentioning the loss. But they failed to compensate the complainant as per the terms of the policy. On 26.3.2002 the petitioner sent a legal notice the complainant to which he has received reply wherein untenable contentions have been raised.
The opposite parties have filed version, admitting policy coverage during the relevant period. The entire allegations are denied. It is contented that the petitioner has not intimated the insured about the alleged flood and consequential damages. The insurer is not aware whether the complainant has intimated the matter to SBT, Kozhancherry. The opposite party has denied any liability.
The evidence adduced consisted all the testimony of Pws 1 to 3, Dw1 and Exts. A1 to A9, B1 and B1(a) The Forum has observed that
in order to prove the shortage in timber logs , there is no proper account. Hence only a sum of Rs. 1,00,000/- was allowed on the above ground. The Forum has also allowed Rs. 20,000/- towards damages to the building and Rs. 2,500/- towards loss of machinery and Rs. 12,500/- towards damages to furniture.
It is the contention of the counsel for the Appellant/Insurance Company that the Forum has allowed the amounts purely based on guess work. It was pointed out that the opposite party was not intimated as to the loss sustained which the complainant ought to have done immediately on the happening of the occurrence vide the policy conditions. It is pointed out that the complainant has not produced any evidence to show that they have intimated to the SBT, Kozhancherry branch also. It is also pointed out that on account of the absence of intimation the opposite parties could not conduct the survey to assess the loss. It is pointed out that the Lawyer Notice the copy of which is Ext. A7 is dated 26.3.2002 which is 8 months after the date of the incident. it is also pointed out that neither in the complaint nor in the Lawyer Notice there is a case that the complaint had intimated the opposite parties. The appellant have denied the receipt of any claim form. It is pointed out that in the Ext. A7, Lawyer Notice the date of submission of the claim is mentioned as 26.1.01 and not as 26.7.2001 as contented. It is also pointed out that the complainant has not adduced any objective evidence as to the damages sustained to the building and to the furniture and as to the loss of machinery. The complaint has been filed only on 15.11.2002. It is also pointed out that the complainant has not filed any appeal although the amount claimed towards damages is Rs. 3,27,400/- and only Rs. 1,17,000/- has been allowed.
We find that the contentions of the appellants are really formidable. Although pw1 the complainant has testified that he had intimated the insurance company as to the occurrence, There is no objective evidence to support the same. Even the intimation said to have been given to the SBT, Kozhancherry branch, the financier has not been produced. Nobody from SBT Kozhancherry branch was also not examined. As contented by the appellants, the insurer would have definitely conducted a survey had they been intimated in time or within a reasonable period. The only objective evidence as to the occurrence of the flood and consequent damages is the photographs and the copies of the stock register authenticated by the Sales Tax Department which is supported by the evidence of pw2. the official from the sales tax department . Of course happening of a flood in the area was not disputed. The photograph as such is not helpful to ascertain the quantum of damages. The photographs would show that the area is seen inunduated in the floods. There is no reason as to why the complainant could not conduct at least a private survey at the time. The contention that the opposite parties despite receiving intimation did not act cannot be believed
All the same just on account of delay the claim as such cannot be negatived as pointed out by the Forum. The opposite parties have denied the receipt of a claim as alleged. The complainant has produced a copy of the claim allegedly submitted which is marked as Ext. A5. Therein under various heads ie. loss due to shortage of timber logs, building damages, machinery loss and furniture damage a sum of Rs. 3,27,400.82 has been claimed. The value of the different types of timber is also seen mentioned in the claim form Pw2, Asst. Sales Tax Officer has testified in the proof of Ext. A6 letter dated 31.07.2001 addressed to the Sales Tax Officer, Pathanamthitta, wherein he has mentioned the happening of the flood and has for to reduce the items mentioned therein from the stock position. Therein he has mentioned in cubic meter. The items of timber logs lost and the value of the same as well as the total value as Rs.3,02,791/- In the above letter he has also referred to the insurance claim dated 26.7.2001. Pw2 the Sales Tax officer has admitted the genuineness of the above documents. Exts. A4(a) to A4(d) are the relevant pages of the stock register which has been verified by the Sales Tax Department which can be seen from the entries therein which is supported by evidence of Pw2 the Sales Tax officer. In the relevant pages there are entries as shortage in the flood during 8.7.2001 to 10.7.2001. Pw2 the Sales Tax Officer has also stated that along with the Ext. A6 letter the copy of the claim form submitted before the opposite parties were also incorporated . We find that the evidence of pw2 as such stands not discredited in the cross examination. We find that there is nothing to disbelieve the evidence of pw2 the Sales Tax Officer which is supported by the entries in the Stock Register. All the same there is no reason as to why the complainant has not intimated the insurer in time which would have facilitated for an independent objective assessment of laws in the matter as to the loss due to the damages sustained to the building, to the furniture and as to the loss of machinery there is not reliable evidence at all. Hence the amount awarded towards above ie. Rs. 17,000/- is to be disallowed. The rest of the order of the Forum is allowing Rs. 1,00,000/- as the amount due to the loss of timber logs is sustained.
In the result the appeal is allowed in part. The opposite parties /appellants are directed to pay a sum of Rs. 1,00,000/- towards the assured sum with interest at 9% per annum from the date of the order of the Forum ie. 22.12.2005. The amounts are to be paid within 3 months from the date of receipt of this order, failing which the complainant would be entitled for an interest at 12 % per annum from today ie. the date of order of this matter. The direction to pay Rs. 10,000/- as compensation and Rs. 1,500/- towards cost is set aside. The office will forward the LCR to the Forum along with the copy of this order.
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
