By Smt. Padmini Sudheesh, President: <br /> <br /> The case of the complainant is as follows: Petitioner is a small trader in the pharmaceutical items run under the name and style “Pharma Agencies” in Building No.XIX/251, Southern Bazaar, Kunnamkulam since 1988. The said business was housed in a tiled two-room shop where the stock of medicines is stored for distribution. The petitioner was and still maintaining true and correct records of purchase and sales and relevant stock registers and the Drug Inspector had periodically checked them and no irregularities are detected till date. The entire stock of medicines in the said building was insured under Standard Fire and Special Perils Policy bearing No.95/2002/441104 of the 2nd respondent for a sum of Rs.3 lakhs and its validity was for the period 5.5.01 to 4.5.02. The premium amount of Rs.851/- was duly remitted by the Bank on behalf of the petitioner and therefore the petitioner is a consumer as envisaged under the Consumer Protection act of 1986. The Kunnamkulam town in which the petitioner was conducting the above said pharma agency, was hit by a severe cyclonic storm on the evening of Saturday 7th July 2001 and thereby extensive damage was caused to the building and the medicines kept in it. The roof tiles of the petitioner’s storeroom were flown off and which had fallen into the asbestos ceiling of the storeroom. Consequently the asbestos ceiling has collapsed and fallen into the stock of medicines kept in the room, which in turn facilitated entry of rainwater into the room causing heavy damage of medicines kept in the building. Since the entire locality was affected by the above said cyclonic storm, this incident got wide publicity and attention of high Revenue Officials and Municipal authorities. On the very next day, the District Collector and other revenue officials visited and inspected the damaged place and advised the local people to take immediate measure to control further damage with the help of members of the voluntary organizations, the petitioner shifted the undamaged medicines to the adjacent room, which was not much affected and the damaged medicines and bottles were dumped into the nearest dust-bin and road side. The next day morning the sanitary workers of the municipality removed the damaged medicines and broken bottles from the dustbin and cleaned the place. At that time the petitioner did not think that an insurance policy would have been taken by his Banker to safeguard the money advanced by the Bank to the petitioner under the over draft facility for the working of the above said pharma agency. It was because, the petitioner had given his fixed deposit receipts as full security for the over draft. On 9.7.01 the complainant came to know about the insurance policy and immediately gave intimation to the 2nd respondent and the Developmental Officer of the Company Sri. Neelakandan Namboodiri visited the damage storeroom of the petitioner. On 10.7.01 the surveyor appointed by the 2nd respondent came to the place of occurrence for conducting survey and as per his direction, the petitioner prepared and furnished a list of damaged medicines. The amount of loss was calculated in the presence of the surveyor was Rs.54,642/-. Complainant has received an amount of Rs.250/- from the municipality and Rs.500/- from the Vyapara Vyavasayi Ekopana Samithi, Kunnamkulam as interim relief. On 7.8.01, the Drug Inspector inspected the storeroom and verified the medicines. He detected two medicines viz. Carmex Dt. 250 (40 Box) and Irofit Tab (90 packets) in damaged conditions. As per the direction of the Drug Inspector, the petitioner destroyed the medicines after intimating the 2nd respondent and submitted additional claim of Rs.8833/-. Due to this on 1.11.01 the same surveyor visited the storeroom of the petitioner. Since the petitioner had shifted his storeroom into the ground floor of his residence, the statement of the surveyor regarding the closure of the establishment is not correct. On the basis of the report of the surveyor, the respondents r4epudiated the claim of the petitioner and therefore he filed appeal before the Honourable Insurance Ombudsman at Ernakulam and the claim was also dismissed on 10.3.2003. The findings of the respondent and the Insurance Ombudsman are not correct and not binding on the petitioner. The respondents can very well ascertain the damage by verifying stock register and account books. Complainant had furnished the report-dated 23.8.01 of Chartered Accountant M/s. Cheeran Varghese and Company assessing the actual loss. Certificate issued by the Village Officer and Revenue Divisional Officer was submitted. The letter of Assistant Drugs Controller, Thrissur was also produced before the respondents. His claim was rejected by the Company. He is entitled for the amount claimed. Hence this complaint. <br /> <br /> 2. The counter of respondents in brief is as follows. The application is false and is liable to be dismissed. This respondent company had issued a standard fire and special perils policy in the name of “Pharma Agencies” for a period from 5.5.01 to 4.5.02. This respondent denies the statement in the petition that on 7.7.01 extensive damage was caused to the building and medicines. This respondent denies that the petitioner had shifted the undamaged medicines to the adjacent room and the damaged medicines and bottles were dumped into the nearest dustbin and roadside. The statement made by the petitioner that ‘the next day morning the sanitary workers of the municipality removed the damaged medicines and broken bottles from the dustbin and cleaned the place’ is also denied by these respondents. It is not true to state that at the time petitioner did not think that an insurance policy would have been taken by the Bank to the petitioner under O.D. facility for the working of the above said Pharma Agency. It is not true to say that the complainant was not aware of the fact that his business was insured with Oriental Insurance Company. He can very well ascertain that fact as the amount of premium paid was noticed in his passbook. Complainant and his wife are very literate person and his wife is working in a bank and she also knows these facts. Sri. Neelakandan Namboodiri, Divisional Officer of the Company had visited the storeroom of the petitioner, but not seen any damaged medicines. Likewise on 10.7.01 when the surveyor visited the place he has furnished with a list of damaged medicines only but not seen any damaged medicines. Though the surveyor searched for damaged medicines which were alleged to have been dumped in the dustbin on the roadside, in the presence of the petitioner, he could not find any broken or unbroken bottles or any other medicines in the debris kept in heap on the side of the road in front of the business premises of the complainant. He found on the roadside only the heaps of broken tiles. The surveyor informed the complainant that he was ready to visit any place as might be shown by the complainant where damaged medicines were dumped or kept; but the said request was not heeded to by the complainant. Then the surveyor requested to produce the stock register, incoming register, dispatch register etc; for verification; but the complainant had not produced that documents. Later, surveyor had asked the complainant to produce relevant document showing stocks on 31.3.2001, 30.4.01, 31.5.01, 30.6.01 and 7.7.01 to show details of purchase, sales, returns from the market and also details of market returns sent to supplier from 31.3.01 to 7.7.01. But no such documents were produced by the complainant. Later for the same reason, surveyor had called upon the complainant thrice. There is no material made available to arrive at the exact quantity or value of the materials thrown away. The list of thrown out articles as prepared by the complainant could not be taken at its face value. The drug inspector had not declared any stock unfit for sale when he inspected the premises on 7.8.01. Complainant was also not able t6o produce the medicines of a value of Rs.8833/-, which the complainant reportedly found, damaged on 7.8.01. Complainant is not able to explain his conduct of hurriedly throwing away the damaged medicines of a value of Rs.54,642/- on the road without giving an opportunity to any of the officers to inspect and assess the loss. It is not true that the complainant had shifted his storeroom. The claim was repudiated with valid reason. The Insurance Ombudsman also dismissed the claim of complainant. This O.P. is only experimental. It is to be dismissed on the principle of resjudicata. Without seeing the damaged medicines the loss cannot be assessed. The report of Chartered Accountant cannot be relied as none of the records based on which the report would have been drawn, were produced before the respondents and the Ombudsman. Hence dismiss the complaint with compensatory costs. <br /> <br /> 3. The points for consideration are:<br /> <br /> (1) Is there any deficiency in service on the part of the respondents?<br /> (2) Is the complainant is entitled for the amount claimed?<br /> (3) Other reliefs and costs.<br /> <br /> 4. The evidence consists of Exts. P1 to P8 and Exts. R1 to R10.<br /> <br /> 5. Points-1 to 3: The definite case of the petitioner is that on 7.7.01 there was a severe cyclonic storm and extensive damage was caused to the shop building and the medicines kept in it. It is also described that the roof tiles of the petitioner’s storeroom were flown off and which had fallen into the asbestos ceiling of the storeroom. Consequently the asbestos ceiling has collapsed and fallen into the stock of medicines kept in the room and rainwater entered into the room caused heavy damage to the medicines. He also stated that he had shifted the undamaged medicines to the adjacent room and the damaged medicines and bottles were dumped into the nearest dustbin and roadside. This alleged calamity was occurred on 7.7.01. The surveyor had inspected the premises on 10.7.01 and the report is marked as Ext. R5. It is stated in the report that heaps of damaged roof tiles were seen in various places on the side of the road. He has searched for the damaged items at the locations where in it was dumped as reported by the complainant but a single piece of broken or unbroken bottle or any other parts of medicines were not seen in the debris kept in heap on the roadside. The damaged roof tiles were seen. The complainant had stated that the debris was removed by the municipality in trolleys hence unable to see. In the complaint also this is the view of the complainant. To assess the damage the surveyor expressed his willingness to visit and inspect the place wherein the damaged medicines were kept or thrown out. He enquired in the municipal office and it was told that no debris from the south bazaar area was removed at all and also told that the scattered debris were kept in heaps by the municipality. But no remnants are seen by the person who had conducted the inspection. To ensure the insurance benefits he had to show the situation to the concerned authorities. This is a grave latches on the part of complainant. The reason for not showing the situation stated by him that he did not think that an insurance policy would have taken by his Banker to safeguard the money advanced by the Bank. But this excuse cannot be accepted and we are not considering at all. In Ext. R5 it is also reported that when the surveyor asked the stock register, goods incoming register etc. he stated that all records were taken to the accountant’s premises. So he could not verify it and he was asked to provide the stock of the relevant days and other details, but these were not furnished by the complainant. Even if letters were sent, the details are not furnished and the furnished details were not satisfactory. To substantiate the loss there is no evidence. Ext. P1 is the certificate issued by the Chartered Accountant, in which it is stated that as per the books of accounts and stock register they prepared the statement. Whether they relied it or not are doubtful and the date of the document shown is 23.8.02. After 11 months this report is given so it is to be discarded. When the surveyor demanded the stock and sale of the particular period, it was not provided and the demand was immediately after the incident. This Ext. P1 document is on 23.8.02 and not reliable. As per the documents it is proved that there was a natural calamity, but the loss occurred to the complainant is not substantiated. The stand taken by the complainant before the surveyor is very particular and no authoritative evidence is produced to establish the loss. Ext. P1 document is in the year 2002 and assessment of the loss occurred on 7.7.01 on the basis of this document is not sufficient. When the surveyor inspected the premises on 10.7.01 he didn’t furnish the relevant materials. If the materials are furnished at that time the claim may be settled by the company without any litigation. No reliable information was furnished and no reliable materials were shown to assess the loss. There is no deficiency in service on the part of the company. From the materials it is realized that the incident was happened. But the complainant failed to establish the claim put forward by him. So we inclined to dismiss the complaint.<br /> <br /> 6. In the result, complaint is dismissed. No order as to cost and compensation. <br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 10th day of September 2008.<br />