KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIURVANANTHAPURAM

COMMON ORDER IN FIRST APPEAL NOS.491/2011 AND 607/2011

JUDGMENT DATED: 12..12..2011

PRESENT

SRI.S.CHANDRAMOHAN NAIR    : MEMBER

FIRST APPEAL 491/2011

M/S Reliance General                     : APPELLANT

Insurance Company Ltd.,

Vishnu Builidng, K.P.Vallon Road,

Kadavanthra, Cochin-682 020.

(By Adv.Sreevaraham G.Satheesh)

                 VS.

M/s Associated Steel Industries    : RESPONDENT

Represented by its

Managing Partner

P.P.Muhammed, 4/468,

Kolikkottusseri, Pattambi,

Palakkad.

(By Adv.N.Satheesh kumar)

FIRST APPEAL 607/2011

M/s Associated Steel Industries    : APPELLANT

Represented by its

Managing Partner

P.P.Muhammed, 4/468,

Kolikkottusseri, Pattambi,

Palakkad.

(By Adv.N.Satheesh kumar)

                 VS.

M/S Reliance General                     : RESPONDENT

Insurance Company Ltd.,

Vishnu Builidng, K.P.Vallon Road,

Kadavanthra, Cochin-682 020.

(By Adv.Sreevaraham G.Satheesh)

JUDGMENT

SRI.S.CHANDRAMOHAN NAIR    : MEMBER

          These appeals are filed by the opposite party and the complainant respectively against the order dated  25.3.2011 of CDRF, Palakkad in CC.92/2009. By the impugned order the opposite party is under directions to pay to the complainant a sum of Rs.10,58,750/- with compensation of Rs.20000/- and cost of Rs.1000/-.  The amounts are directed to be paid within one month from the date of receipt of the order failing which the opposite party is also directed to pay interest at 9% per annum from the date of the order till realization.

          2.  The complainant has approached the Forum stating that the firm has availed 2 policies from the opposite party; one for the building and the other for plant and machinery and stock totaling to a sum of Rs.55lakhs.  It is his case that though the policy covered fire peril and that the fire that occurred on 5..8..08 had completely destroyed the property and though the complainant investigated the loss through a PWD Engineer and was assessed at Rs.29 lakhs,  the opposite party paid only Rs.2,54,710/-.  Alleging that only a low amount has paid which was insufficient,  the complaint was filed before the Forum praying for directions to the opposite party to payRs.19 lakhs towards the loss sustained by the complainant due to the fire on 5.8.08 and compensation of Rs.1,00,000/- along with costs.

          3. The opposite party filed version denying the allegations of the complainant.  However it was admitted that there was a fire policy issued to the complainant during the time when the fire occurred  in the premises of the complainant.  It was also submitted that on getting information, a Surveyor was appointed to assess the loss and as per the survey report it was only Rs.4,41,250/- and being the proportionate amount  a sum of Rs.2,54,710/- was offered to the complainant and the complainant  had accepted the same without any objection.  It was also submitted that the complainant had taken another policy from the Oriental Insurance Co.Ltd. for the same building, plant and machinery and stock covering to a sum of 45 lakhs and the said Oriental Insurance Co. was a necessary party in the proceedings. Pleading for the position that the complainant had accepted the amount as full and final settlement, the opposite party prayed for the dismissal of the complaint with costs.

          4. The evidence consisted of the affidavit filed by the complainant and the opposite party, Exts.A1 to A11 were marked on the side of the complainant and Exts.B1 and B2  were marked on the side of the opposite party.  The report from the Pattambi police station was marked as Ext.C1.

          5. The opposite party/appellant in A.491/11 argued that the order of the Forum below directing the opposite party to pay a sum of  Rs.10,58,750/- is per se illegal and unsustainable.  It is his very case that on getting information regarding fire, a surveyor was appointed and the surveyor had assessed the loss at Rs.4,41,250/-.  The learned  counsel has submitted that the proportionate amount of Rs.2,54,710 was paid to the complainant and the complainant had received the amount towards full and final settlement.  It is also his case that there is no mention in the complaint that complainant had been forced to receive the amount under compelling circumstances.  It is submitted by the learned counsel that the order fastening liability on the opposite party to pay such a huge amount had been arrived at without any basis and as such the order is only to be set aside.

          6. On the other hand the learned counsel for the appellant/complainant in A.670/11 submitted that the amount assessed by the independent Engineer was Rs.29 lakhs and it was for the sake of limiting the amount within the jurisdiction of the Forum that the complainant had reduced the amount  to 19 lakhs and the opposite party ought to have allowed the said amount.  He has also a case that after having  found that there is deficiency in service on the part of the opposite party the Forum below ought to have directed the opposite party to pay the balance amount of Rs.19 lakhs with compensation and costs.  It is further submitted by him that Forum below ought to have allowed the complaint in toto.

          7. On hearing both sides and also on perusing the records, it is found that the complainant had availed policies from the opposite party and also from the Oriental Insurance Co.Ltd.,  though the amounts covered are different.  It is also seen that the amount of Rs.4,41250.- had been apportioned between the 2 insurance companies.  In the version filed by the opposite party, they have taken a contention that for a proper disposal of the complaint the Oriental Insurance Co. from whom the bank had availed the policies ought to have been a necessary party.  On aperusal of the order it is found that Forum below had brushed aside the said contention of the opposite party.  It is true that a party can take as many policies from as many insurance companies. But when a claim comes particularly when it relates to the same premises,  it is necessary that all the companies should be in the party array from whom the policy holder has taken the policies covering the same peril.  In the instant case it is found that the complainant  had availed policies from  two  insurance companies viz. the Reliance General Insurance and the Oriental Insurance Co..  It is also argued by the learned counsel for the appellant that the amount assessed by the surveyor of both companies is the same.  It is further found that the amount arrived at by the surveyor had been apportioned between the 2 insurance companies and the complainant had received the same from the respective companies.  The Forum below had directed the appellant/opposite party to pay the balance amount  and the amount is ordered to be paid solely by the opposite party.  In the facts and circumstances of the present case it is felt that the Oriental Insurance Co. also ought to have been in the party array for a proper disposal.

          8. In the result the order dated 25.3.2011 in CC.92/09 of CDRF, Palakkad is set aside.  The matter is remitted back to the Forum below for fresh disposal after impleading the Oriental Insurance Co. also from whom the bank had taken the policy for and on behalf of the complainant.  It is made clear that all the opposite parties and the complainant will be at liberty to adduce further evidence if any in respect of their rival contentions. Parties are directed  appear before the Forum on 20.1.2012.

          Office is directed to return the LCR to the Forum below along with the copy of this order.

                   S.CHANDRAMOHAN NAIR  : MEMBER

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