<br /> <br /> <br /> <br /> <br /> By SRI. K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> <br /> <br /> The averments in the complainant can be briefly summarized as follows:<br /> <br /> <br /> <br /> The complainant is running a saw mill under the name and style Sheeba Saw Mill to earn her livelihood . She has availed loan of more than Rs.5 lakhs in different phases from the Kerala State Financial Corporation for running the above mill. She has also taken a standard Fire and special Perils policy [Material Damage] from the Kerala State Insurance Department , Kollam Office. An Annual Premium of Rs.4,805/- has been collected by the 2nd opp.party and the 2nd opp.party had issued the insurance policy. The materials in the Saw mill such as GEC Motor 5 HP 2 Nos., GEC Motor 15 HP 2 Nos, GEC Motor 1 HP 1 No. and Raw materials furnished goods, Soft wood, Pencil slotter planker etc. for a total sum of 7,68,250/- . The policy was in force and valid from 19.12.2001to 18.12.2002. While so, on 1.5.2002 the mill caught fire and complainant sustained huge damages. The damages to the tune of Rs,2,03,490/- was sustained by the complainant due to the fire. On 4.5.2002 the complainant submitted the claim form to the opp.parties . On 25.7.2003 Rs. 35,000/- was sanctioned and an intimation was issued to the complainant in this regard. In fact, goods worth more than Rs.1,30,000/- was damaged in addition to machinery etc due to the fire. The opp.parties without considering the reports and without properly assessing the damages sanctioned the above sum. The action of the opp.parties is arbitrary and is deficiency in service. Hence the complaint.<br /> <br /> The opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law on or facts. The complainant is not a consumer and therefore, this forum has not jurisdiction to entertain this complaint. The averments in para 2 of the complaint are not fully correct and hence denied. It is admitted that policy No.DIO/KLM/FP/04/02 for the period from 19.12.2001 to 18.12.2002 was issued to the complainant in respect of the above mill. The averments contained in para 3 of the complaint are not fully correct. On getting the claim these opp.parties engaged Sri.P.T. R. Babu , Engineer, a licensed surveyor to assess the loss alleged to have been sustained to the complainant. The Surveyor after enquiry has filed a report and he recommended to settle the claim for an amount of Rs.44,912/- . The opp.parties verified the survey report and was satisfied with the assessment and as per the policy conditions finalized the claim as Rs.33,500/- and this fact was intimated to the complainant who received the amount in full and final settlement. Since the claim was allowed on the basis of the report of the surveyor it cannot be said the opp.party arbitrarily reduced the claim amount and for that reason no deficiency in service can be attributed on the opp.parties The details of the stock mentioned in the claim form is not tallied with the actual loss assessed by the surveyor which is the reason why the assessor did not take the alleged loss as such. The opp.party paid the amount on the basis of the actual loss. The complainant has not produced any valuable piece of evidence to show that this much of damages were sustained to her. The documents produced by the complainant are not sufficient to arrive the actual damages. The opp.party after considering the claim form and the appended reports and after fulfilling the legal requirements arrived at the above figure. After settling the claim this opp.party has no right at all to entertain any application and hence if at all any objection is filed by the complainant it cannot be considered by the opp.party . The stock statement submitted by the complainant and its relevant date the stock of the saw mill was as per the stock statement filed in the bank.. Because more than 25 days have been elapsed and during this time the stock might have been transferred from the saw mill to other places . Since the opp.party has settled the claim adopting the accepting norms is fixing liability there is not deficiency of service from the side of the opp.parties. There is no negligence or latches on the side of the opp.party in carrying out their obligations and hence the opp.parties are not liable to any amount by way of cost or compensation to the complainant. Hence the opp.party prays for the dismissal of the complaint.<br /> <br /> <br /> The points that would arise for consideration are:<br /> <br /> [1] Whether the complainant is a consumer?<br /> [ii] Whether there is any deficiency in service on the part of the opp.parties?<br /> [iii] Reliefs and costs.<br /> <br /> <br /> For the Complainant PW.1. is examined and Ext.P1 to P9 series are marked.<br /> <br /> For the opp.parties DW.1 and DW2 are examined and Ext.D1 to D5 are marked.<br /> <br /> <br /> <br /> Points [1] : According to the complainant they are running a saw mill in the name and style Sheeba Saw mill for the purpose of earning livelihood. As a matter of fact other than raising an objection the opp.parties did not adduced any evidence to show that the complainant is not depending on the income from the above mill for her livelihood. Therefore it can safely be concluded that the complainants are consumers within the meaning section 2 [1] [d] of the Consumer protection Act. Point found accordingly.<br /> <br /> Point 2:<br /> <br /> <br /> The second complainant has given evidence as PW.1 According to him they have availed a loan from the Kerala State Financial Enterprises, District Office, Kollam for the running of the mill. They have also taken Ext.P1 policy from the District Insurance Office, Kollam by which the machineries, raw materials and furnished goods etc were insured for a sum of Rs.7,68,250/- . The policy was valid from 19.12.2001 to 18.12.2002. The saw mill caught fire due to electric short circuit on 1.5.2002 and sustained damages to the tune of Rs.2,03,490/-. They submitted claim form on 4.5.2002 to the opp.parties and finally on 25.7.2003 a sum of Rs.33,500/- was award as compensation, which is a meager sum compared to the actual damage sustained by them. Though they have raised objection the opp.party did not consider the same.<br /> DW.1 is a licensed surveyor and loss assessor who assessed the damages sustained to the complainants in connection with the above fire. He has assessed the total loss at 44,912/- and submitted Ext.D1 survey report. According to him he has visited to premises on 6.5.2002 and 7.5.2002 and assessed the damages in the presence of the complainant who have put there signature in the Ext.D4, loan assessment sheet. He has further stated that Ext.D4 was prepared by verifying the stock register before the fire and physically verifying the stock available in the Saw mill after the fire.<br /> Ext.D1 survey report is seriously assailed by the complainant. The main objection is that there is inordinate delay in submitting the survey report which raises series doubts about the credibility of Ext.D1 . The learned counsel for the complainant argued that DW.1 has visited the premises on 6.5.2002 and 7.5.2002. But the survey report was filed only after about the 1 year and no satisfactory explanation is forthcoming for the inordinate delay. DW.1 has stated that after the visit of the premises he has to make a number of correspondence with the complainant as well as the financing company etc. and the delay was due to this reason. We find no reason to disbelieve DW.1.<br /> <br /> Another contention is that Ext.D4, the loss assessment sheet is a manipulated one. It is argued by the learned counsel for the complainant that DW.1 obtained signatures of the complainant in blank papers and subsequently supplied the figures and other details and thereby manipulated Ext.D4 that argument cannot be accepted. On a perusal of Ext.D4 even a layman can say that it is not a document wherein the details were supplied subsequent to the obtaining of signature. More over the complainant has no such case in the complaint that the loss assessment sheet was prepared by the surveyor after obtaining signature of the complainant in a blank paper. In these circumstances we find no reason to doubt the credibility to Ext.D4. <br /> <br /> <br /> <br /> Another contention of the complainant is that the capacitor, Switch board etc which are the integral part of the motor which were also damaged along with the motor were not given any compensation. According to the opp.parties even assuming that capacitor and Switch Board are integral parts of the motor, there is no coverage for these items in the policy and therefore, no damages can be awarded in respect of those items. DW.1 has also stated that since those items were not covered by the policy he has not assessed damages for those items. On a careful consideration of the evidence in this case we are of the view that the complainant failed to establish that Ext.D1 Survey report suffers from any infirmity. “A surveyor’s report it itself an evidence to be given due importance and due <br /> -7-<br /> waitage in the absence of overwhelming evidence to contrary.” [III] [2007] CPJ 317[NC]. In our view the complainant failed to prove any higher loss than what is assessed by the surveyor. <br /> <br /> <br /> <br /> The learned counsel for the complainant argued that stock in the saw mill was verified on 3.3.2002 by the Kerala State Financial Enterprises in connection with the granting of a loan and that on 6.4.2002 they have sanctioned a loan of Rs.2,40,276/- and at the time visit of the Kerala State Financial Enterprises Authorities stock worth Rs. 5 lakhs were there in the Mill. But the surveyor did not verify the stock properly . It is to be noted that the fire broke out on 1.5.2002 and it is not necessary that the entire stock available on 3.3.2002 would be there in the mill on 1.5.2002. The mill caught fire after the expiry of 2 months of the visit of the Kerala State Financial Enterprises authorities are during this period the mill was functioning. So the stock as on 3.3.2002 cannot be taken into account to assess the damages. The learned counsel for the complainant argued that details furnished in Ext. P1 and Ext.P9 series does not tally which will create doubts regarding the correctness of the assessment of damages by DW.1. But DW.1 has stated that he has prepared Ext.D1 after verifying the stock register and balance stock available there after the fire. The suggestion of learned counsel for the complainant that there were only 35 bags after the fire but DW.1 has shown them 135 fraudulently has been turned down by DW.1. On a careful consideration of the evidence of DW.1 and Ext.D1 we are of the view that there is no reason to reject Ext.D1 Survey report. Though the surveyor has assessed the damages at Rs.44,912/- as total loss the complainant was given only Rs.33,500/-. DW.2 has stated that Rs.10,000/- was deducted towards policy excess. But no material was produced to establish such a deduction is allowable. DW.2 the District Insurance Officer has stated that he will produce the relevant provision but nothing was produced from which an adverse inference has to be drawn. Even of Rs.10,000/- was deducted the complainant ought to have been given Rs.34,910/- but only Rs.33,500/- has been given and the difference is not explained . Taking all aspects into consideration we are of the view that the compliments are entitled to get Rs.44,912/- as assessed by the surveyor. Point found accordingly.<br /> <br /> <br /> <br /> The complainants are claiming Rs.1 lakh towards compensation . As a matter of fact even the complainant has not a case that the fire broke out due to any negligence or deficiency in service on the part of the opp.party. Therefore, no compensation can be allowed as prayed for. Point found accordingly.<br /> In the result the complaint is allowed in part holding that the complainant is entitled to Rs.44,912/- . We direct the opp.party to pay Rs.11412/- in addition to Rs.33,500/- already paid. The complainant is also entitled to get cost Rs.2,000/- . The order is to be complied with within one month from the date of this order.<br /> <br /> <br /> <br /> Dated this the 1st day of March, 2008.<br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Muhammed Ismail<br /> <br /> List of documents for the complainant<br /> P1. – Standard Fire and Special Perils Policy.<br /> P2. – Photocopy of Report No 107/2002.<br /> P3. – Photocopy of Claim form <br /> P4. – Photocopy of the letter dt. 25.7.2003 issued by the complainant to the opp.party<br /> P5. – Photocopy of the Loan sanction letter sent by KSFE to the complainant.<br /> P6. – Certificate issued from the District Industries Centre.<br /> P7 – Photos of the damage sawmill<br /> P8 series – Sale bill books<br /> P9. series – Stock Register.<br /> <br /> List of witnesses for the opp.parties<br /> DW.1. – P.T.R. Babu<br /> DW.2. – Aravindakshan Pillai.<br /> <br /> List of documents for the complainant<br /> D1. – Survey report dated 3.5.2003<br /> D2. – Policy statement<br /> D3. – Photos and negatives of the damaged sawmill<br /> D4. – Loss assessment prepared by the surveyor on 7.5.2002.<br /> D5. – Fire report.<br />