By Smt. C.S. Sulekha Beevi, President,

1. The Cinema Theatre 'Siyo Movies' owned by complainant is insured with opposite party for Rs.16,00,000/- under a Standard Fire and Special Perils Policy. During the currency of the policy on 12-6-2003 at about 9 PM while Cinema exhibition was going on a few miscreants trespassed into the theatre and committed mischief whereby much damage was caused to furniture and other items of the theatre. Damage was caused to 245 chairs and to the screen also. Police registered crime No.140/03 with regard to the incident. Opposite party was informed about the incident through phone and also by registered post. On 13-6-2003 in the absence of the complainant the surveyor deputed by opposite aprty conducted inspection and survey of loss. Since this inspection was conducted without gathering detailed information from complainant, a request for conducting a fresh survey was forwarded to opposite party by complainant. Opposite party accepted this request and deputed another surveyor. That this surveyor assessed that 245 chairs and screen were damaged. On 01-10-2003 opposite party informed the complainant that the total compensation payable for the loss is Rs.10,550/- only. Complainant send a registered letter requesting for copies of survey reports to which opposite party did not respond. Complainant is aggrieved by the compensation arrived by opposite party and hence this complaint. Complainant alleges that opposite party is liable to pay Rs.1,65,891/- as loss incurred for repair and replacement of chairs Rs.14,000/- towards consequential loss and Rs.25,000/- towards mental agony and hardships.

2. Opposite party filed version admitting insurance coverage. It is submitted that on receiving intimation of the incident a surveyor Sri.K. Divakaran was deputed by opposite party to assess the loss. This surveyor inspected the spot on 13-6-2003 and submitted report. Later on 22-8-2004 opposite party received a letter from complainant expressing dissatisfaction in the conduct of survey. Though the grounds on which complainant sought second survey was not true, in order to resolve the dispute opposite party deputed another surveyor Sri.Vijayaram. This surveyor also inspected and assessed the loss/damage. The second surveyor submitted his report on 09-9-2003. As per the report of second surveyor the findings of the first surveyor in regard to damage/loss stood ratified. That the total claim was finalised as Rs.10,550/- basing upon both these survey reports. Though complainant was informed about this, he did not respond. Later he requested to issue copies of the survey report. Survey reports are classified as private and confidential and hence copies could not be furnished. The claim could not be settled due to the conduct of complainant who was not inclined to settle and intended to file unnecessary litigation. That there is no deficiency in service and that complainant is not entitled to any reliefs.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for him. Opposite party filed counter affidavit and Exts.B1 to B6 marked for opposite party. Either side has not adduced any oral evidence.

4. Complainant is aggrieved that opposite party failed to pay sufficient compensation for the loss sustained due to malicious damage to the cinema theatre insured with opposite party. Opposite party refutes the complaint on the submission that the final claim of Rs.10,550/- was arrived on the basis of the two survey reports and that the complainant is therefore not entitled to any further amount.

5. Admittedly two surveyors had assessed the damage and submitted their reports. Ext.A9 is the first survey report dated, 11-8-2003. This surveyor has assessed the net loss as Rs.21,000/-. After deducting Rs.10,000/- as policy excess as per Ext.B6 Rs.10,550/- has been arrived as claim amount by opposite party. Ext.B5 is the second survey report by Sri Vijayaram. In Ext.B5 it is seen that the surveyor has accepted the observations of loss noted in Ext.A9 and justified the assessment and decision of first surveyor. In Ext.B5 the surveyor has stated as under:

“I do not find any unjustifiable decision on the part of the first surveyor and as such without substantial and clear proof to the contrary; find it difficult to make any change in the assessment.”

6. The assessment of loss is challenged mainly by complainant in the number of chairs that were repaired and replaced and also the non-consideration of damage to screen. According to complainant 245 chairs were damaged. As per Ext.A9 the surveyor has taken into consideration damage of 90 chairs only, ie., 60 chairs of the middle class and 30 chairs of lower class. Counsel for complainant relied upon Ext.A2 scene mahazar and submitted that in this scene mahazar which was prepared just one day after the incident it is stated that chairs of 8 rows have been uprooted and broken. It is also seen in Ext.A2 that tube lights and fan were broken and seen fallen on the floor. The loss to such items have not been considered for assessment of claim. We have to say that both the surveyors are silent as to the exact number of seats/chairs in each of the upper, middle and lower classes. In Ext.A9 it is simply stated 419 numbers of wooden chairs with wooden seats are provided for the seating in the theatre. Ext.B2 series which are photographs accompanying Ext.A9 survey report shows that much damage is caused to the chairs. Some of the chairs are seen totally damaged. It was contended by complainant that they had to be replaced. Surveyor has assessed the loss only for repairing and not for replacement. The damage to some chairs in Ext.B2 photograph would show that the repair cost would be higher than a replacement. In such a case the contention of the complainant that 245 chairs had to replaced does have some substance. Being a cinema theatre generally all seats of the same class should appear uniform and alike. When some chairs which are totally broken are replaced with chairs of steel frame it is only justifiable and reasonable to consider that complainant had to re-do all the 245 chairs which were damaged. Further the surveyor has assessed only Rs.250/- as repair charges (including labour charges) for each chair of middle class and Rs.200/- as repair charges (including labour charges) for each chair in lower class. In our view, the labour charges for such repair work which involves skilled labour is very high. Surveyor has stated that the chairs were made of Jack/teak wood. On perusal of Ext.B2 and taking into consideration the cost of wood and labour charges we have to say that the assessment made by surveyor is very low. In Ext.B5 the second surveyor has stated that 245 chairs were seen remade. From the evidence and materials placed before us we have no dispute to hold that assessment of loss made by surveyor with regard to damage to chairs is not justifiable. As per Ext.A5 quotation complainant has spend Rs.1,59,250/- for repairing 245 chairs @ Rs.650/- per chair. In our view complainant can be allowed repair charges for 245 chairs @ Rs.200/- per chair which would be reasonable.

7. The claim of the complainant for replacement of screen is not supported by any reliable evidence. In Ext.B2 photograph the screen is seen in tact on 11-8-2003. So we disregard the claim of the complainant regarding replacement of screen. Thus we consider that complainant is entitled to Rs.49,000/- (245 chairs x Rs.200/-) towards loss sustained for damage to chairs. After deducting policy excess of Rs.10,000/- opposite party is liable to pay an amount of Rs.39,000/-. In our opinion complainant has to be allowed interest @ 6% upon the above amount from the date of complaint till payment which would be sufficient compensation.

8. In the result we allow the complaint and order opposite party to pay Rs.39,000/- (Rupees thirty nine thousand only) to complainant with interest @ 6% per annum from the date of complaint till payment within one month from the date of receipt of copy of this order.

Dated this 8th day of April, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A9

Ext.A1 : Photo copy of the First Information Report dated, 13-6-2003 prepared by

A. M. Abdulla, Sub Inspector, Areacode Police station.

Ext.A2 : Photo copy of the Scene Mahazar dated, 14-6-2003 prepared by

A. M. Abdulla, Sub Inspector, Areacode Police station.

Ext.A3 : Receipt for Rs.3891/- dated, 04-7-2003.

Ext.A4 : Receipt for Rs.2500/- dated, 07-7-2003.

Ext.A5 : Quotation dated, 12-7-2003 from Proprietor, General Engineering

Works, Manjeri.

Ext.A6 : Fire Insurance Claim Form submitted by complainant to

opposite party.

Ext.A7 : Letter dated, 07-10-2003 send by complainant to Manager,

Siyo Movies, Areacode.

Ext.A8 : Postal Acknowledgement from opposite party to complainant.

Ext.A9 : First survey report dated, 11-8-2003 prepared by Sri.K.Divakaran,

Surveyor of opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B6

Ext.B1 : Standard Fire and Special Perils Policy (Material Damage) with terms

and conditions issued by opposite party to complainant.

Ext.B2 : Photographs (11 Nos.) with negatives.

Ext.B3 : Request dated, 14-8-2003 submitted by complainant to opposite party.

Ext.B4 : Carbon copy of the reply letter dated, 25-8-2003 send by opposite

party to complainant.

Ext.B5 : Resurvey report with photographs dated, 09-9-2003 prepared by

Sri.Vijayaram, Surveyor of opposite party.

Ext.B6 : Carbon copy of the letter dated, 01-10-2003 from opposite party

to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER