Kerala

StateCommission

CC/12/13

THE WESTERN INDIA PLYWOOD LTD - Complainant(s)

Versus

ORIENTAL INSURANCE COMPANY - Opp.Party(s)

VAZHUTHACAD.R.NARENDRAN NAIR

03 May 2017

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

CC.No. 13/12

 

JUDGMENT DATED:03.05.2017

 

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                        :  PRESIDENT

SHRI.V.V JOSE                                                           : MEMBER

The Western India Plywoods Limited,

A body corporate/corporation registered

under the Indian Companies Act, with regd office at

Mill Road, Baliapatam, Kannur-670 010,                      : COMPLAINANT

Kerala India, R/by its Managing Director,

P.K. Mohammed.

 

(By Adv: M/S Vazhuthacadu R. Narendran Nair, Moidu Ahammed Nissar, C.R Subramanian and Others.)

 

            Vs.

1. The Oriental Insurance Company Ltd.,

With Regd. Office at Oriental House,

A-25/27, Asaf Ali Road, New Delhi-110 002.

 

2. The Oriental Insurance Company Ltd.,

R/by its Deputy General Manager,

The Oriental Insurance Company Ltd.,

Regional Office, Metro Palace, 1^st floor,                       : OPPOSITE PARTIES

North Railway Station Road, Cochin-682 018.

 

3. The Oriental Insurance Company Limited,

R/by its Divisional Manager,

The Oriental Insurance Company Limited,

Divisional Office No.1, Unity Complex,

2.  

 

(By Adv: Sri. Varkala. B. Ravikumar)

 

JUDGMENT

 

HON. JUSTICE SHRI.P.Q.BARKATHALI  :  PRESIDENT

 

 

This is a complaint filed by the complainant, company directing the opposite parties, insurance company to pay to the complainant Rs.99,66,853/- being the loss sustained by them on account of an incident of fire occurred in their plywood factory premises along with compensation and cost. 

2.      The case of the complainant as detailed in the complaint in brief is this:-

Complainant is M/s Western India Plywood Limited, a company registered under the Indian Companies Act represented by its Managing Director, Mr. P.K. Mohammed.  The complainant company is engaged in the manufacture of plywoods, hard boards, furniture etc and as its factory at Baliapatam, Kannur District, Kerala.  Complainant Company used to insure the factory, stock etc under various heads with the opposite party, insurance company. Complainant insured the stock etc of the company with the opposite party, insurance company under two fire policies.  Policy No.441600/11/2008/102 is valid for the period from 2.8.2007 to 1.8.2008 covers 9.5 crores.  Policy No.441600/11/2007/241 is valid for the period from 1.1.2007 to 31.12.2007.  On December 01, 2007 at about 4.30 am a fire broke out in a shed in the factory situated in resurvey No.5/1 of Valapattanam Amsom.  The entire timbers including stock in process were lost in the fire.  The complainant submitted the claim before the opposite party insurance company on December 14, 2007 claiming a total sum of Rs.99,66,853/- being the value of the stocks damaged.  Complainant also claimed an expense of Rs.50,000/- towards the fire fighting expenses.  The opposite parties deputed the surveyor who submitted a report on July 19, 2008 stating that the fire affected shed belonged to M/s Kohinoor Saw Mills.  He has also reported that there was under insurance, lack of loss etc.  On a request made by the complainant a joint inspection was conducted by the representatives of opposite party and the complainant company on September 25, 2008.  At the time of the said inspection opposite parties and the surveyor were convinced the fire affected goods and property belonged to the complainant company.  Surveyor requested for additional documents to show that property belonged to the complainant company which were given to him.  The surveyor issued a second report stating that Complainant Company has no insurable interest in the goods lost.  Thereafter one Mr. K.A.Gopal, Advocate, Tirur was deputed by the opposite parties to look into the matter and submit a report.  On March 3, 2011 complainant received a letter from the opposite parties stating that their claim has been repudiated.  Repudiation by the opposite parties of the insurance claim is illegal and without any valid reasons which amounts to deficiency of service.  Therefore complainant filed this complaint directing the opposite parties to pay to the complainant Rs.99,66,853/- along with compensation and cost.

3.      Opposite parties 1 to 3 are M/s Oriental Insurance Company Limited.  They in their version raised the following contentions.  The existence of the two policies mentioned in the complaint is admitted.  The incident of fire is also admitted.  Complainant Company had no interest over the place of fire and the stock destroyed in fire.  The allegation in the complaint is that the building wherein the fire occurred is in survey No.5/1 of Valapattanam is false.  The incident occurred in building No.VP-1/221 situated in survey No.5/2 and 5/3 of Valappattanam village which belongs to Kohinoor Saw Mills.  Police records also show that the fire affected building is VP/1-221.  That being so these opposite parties are perfectly justified in repudiating the claim of the complainant.  That apart as per the trading account of Western India Plywoods Limited as on November 30, 2007 the total timber stock was only Rs.57.47 lakhs.  The value of the same stock physically verified by the surveyors in the fire affected building was for Rs.58.75 lakhs.  Therefore it has to be presumed that complainant has not suffered any loss.  Advocate K.A.Gopal was not deputed as a surveyor by these opposite parties.  He is only a panel Advocate of the insurance company who gave his opinion, which is not binding on these opposite parties.  Kohinoor Saw Mill had taken another policy wherein the location of the building is shown as VP/1-210.  That being so, the complaint is not maintainable and has to be dismissed.

4.      Complainant has also filed a replication raising the same contentions.

5.      The following points arise for consideration:-

1. Whether the complaint is maintainable?
2. Whether the site of the incident of fire occurred belonged to the complainant company?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. What are the reliefs the complainant is entitled to?

6.      On the side of the complainant PW2 1 and 2 were examined.  Exts.A1 to A37 were marked.  On the side of the opposite parties DWs 1 to 3 were examined and Exts.B1 to B5 were marked.  Exts.C1 to C4 and Exts.X1 to X10 were also marked.

7.      Heard both the counsels.

Point No.1:-

The opposite parties mainly contended that complainant is a company doing business and that therefore complainant cannot be considered as a consumer as defined under section 2(1)(d) of the Act.  There is no merit in the above contention.  The policies were taken by the complainant company not for any business purposes.  It was taken only to cover the goods available therein.  Therefore it has to be held that complainant company is a consumer as defined under section2(1)(d) of the Consumer Protection Act.

Point No.2:-

It is admitted that complainant company has insured the stock etc in their company premises with the opposite parties by two floater policies.  Floater policy Ext.A8 having No.441600/11/2007/241 is for the sum assured is Rs.10.crores and it is valid for the period from 1.1.2007 to 31.12.2007.  Floater policy Ext.A23 having No.441600/11/2008/102 is for having the sum assured Rs.9.5 crores and is valid for the period from 2.8.2007 to 1.8.2008.  The case of the complainant is that the fire occurred in the premises of Western India Plywoods Company Limited having re-survery No.5/1 of Valapattanam Village.  The case of the opposite parties insurance company is that the fire occurred in the shed having No.VP/1-210 of  Balaiapattam Panchayat which belongs to M/s Kohinoor Saw Mills which is a subsidiary company of the complainant and that in the policy taken by Kohinoor Saw Mills this building number is shown.  According to them complainant has no insurable interest over the materials destroyed in fire.

10.    On the side of the complainant PW1, the Joint Managing Director of the complainant company was examined and he produced Exts.A1 to A41.  Ext.X1 to X10 were also marked on his side. PW2 the share holder of the company was also examined.  On the side of the opposite parties DW1, the Senior Divisional Manager of the Insurance Company and DW2 the Secretary of the Valapattanam Grama Panchayat and DW3 the Regional Manager of the opposite parties were examined.  They produced Exts.B1 to B5, Ext.C1 to C4 were also marked.

11.    The specific case of the complainant as testified by PW1 and PW2 is that fire occurred in the premises of their factory in survey No.5/1 of Valapattanam village.  On the other hand opposite parties contended that the incident of fire occurred in the shed having door No.VP/1-210 of Balaipattam Panchayat belonging to Kohinoor Saw Mills and that therefore complainant company has no insurable interest over the materials destroyed in fire.  In the policies, M/s Western India Plywood Limited, Ext.A8 and A23 no building number is mentioned.  But in Ext.B2 the policy issued infavour of Kohinoor Saw Mills the same building number VP/1-210 is mentioned.  In Ext.B5 the report of the insurance surveyor M/s S. Sony & Company the number of fire affected building is shown as VP/1-210.  But in the police reports and mahazer Ext.B3, the number of fire affected building is show as VP/1/221.  The counsel for the opposite party, insurance company argued that both the above buildings belong to M/s Kohinoor Saw Mills.  On going through the documents produced by the complainants we find no substance in the above contention of the opposite parties.  Ext.X2, the insurance policies, Ext.X3 the Village Officers sketch and plan, Ext.X7 possession certificate infavour of the complainant company and Ext.A8 survey sketch show that properties in RS 5/1 of Valapattanam village belongs to complainant company.  Ext.A7 the survey sketch prepared by the village officer and Ext.C3and C4 the survey map of the property prepared by District Surveyor show that the fire affected area is in survey No.5/1 belonging to the complainant.

12.    That apart Ext.A3, A12, A28 and Ext.X1 the minutes of the joint inspection conducted by the representatives of the complainant, opposite party and its surveyor on September 25, 2008 show that the fire affected area is in RS.5/1 owned and possessed by the complainant company.  Opposite party appointed Advocate K.A.Gopalan to investigate into the fire claim of the complainant and he filed Ext.X9 dated, August 17, 2009 which shows that claim of the complainant is correct and has to be accepted.  Ext.A14 is the copy of his report.  Ext.A15 is the clarification given by him dated, May 10, 2010.

13.    The counsel for the opposite party argued that Adv. Gopalan is only a panel Advocate of opposite party insurance company and Ext.X9 is only his opinion which cannot be accepted.  There is no force in the above contention.  Opposite party has not chosen to examine the said investigator to prove that his report is not correct.  Ext.A16 is the letter dated, October 05, 2009 of Deputy General Manager of opposite party to General Manager, Head Quarters seeking advice regarding the report of the investigator, Sri. Gopalan.  Sri. Mathews Jacob, counsel for the opposite party in High Court also agreed with the report of the said investigator which is evidenced by Ext.A19 the office note of the opposite party.  It is clear from the above that the said Sri. Gopalan is an investigator appointed by the opposite party and his report is binding on them.

14.    There is another aspect in this case.  Opposite party examined DW2, the Secretary of the Valapattanam Grama Panchayat.  He produced Ext.X10, the extract of the building tax register which shows that building having door numbers 209, 210, 212, 213 and 214 have already been demolished and were not in existence at the time of the incident and that building having No.210 was never owned by M/s Kohinoor Saw Mills.  The above fact belies the contention of the opposite party that building No.210 belonged to M/s Kohinoor Saw Mills and incident of fire occurred in that building.  In the light of our above findings we hold that opposite parties are not justified in repudiating the claim of the complainant and that they should have allowed the claim and should have made good the loss sustained by the complainant.

15.    Regarding the loss sustained by the complainant, the surveyor M/s Sony and Company assessed the loss at Rs.99,29,290/- which is admitted to be correct by DW3, the Regional Manager of opposite party.  That being so complainant is entitled to that amount.

16.    Next question is regarding the compensation, the complainant is entitled to.  The opposite party being insurance company we feel that interest at the rate of 12% per annum from the date of claim ie December 14, 2007 till realization will be reasonable.  Complainant is also entitled to a cost of Rs.10,000/- in this complaint.

In the result complaint is allowed in part.  Opposite parties are directed to pay to the complainant Rs.99,29,390/- with interest at the rate of 12% per annum from December 14, 2007 till realization.  Complainant is also entitled to a cost of Rs.10,000/-.

 

 

JUSTICE P.Q. BARKATHALI :  PRESIDENT

 

 

V.V JOSE : MEMBER

 

 

APPENDIX

List of witnesses for the complainant

PW1                    - Mayan Mohammed

PW2                    - Mohanakumar.T

List of witnesses for the opposite parties

DW1                    -

DW2                    - B.K.Premana

DW3                    - S.Lingeshwaran

 

List of Exhibits for the complainant

Ext.A1        - Copy of fire insurance claim form

 

Ext.A2        - Copy of the letter of fire claim for Rs.99.64 lakhs

                   to the Chief Regional Manager, Oriental Insurance

                   Co.Ltd, Ernakulam

 

Ext.A3        - Copy of minutes of the meeting held on

                   25.09.2008 at Western India Plywoods Ltd, Kannur

 

Ext.A4        - Copy of the letter dated 17.12.2008 regarding fire

                   loss on 30.11.2007

 

Ext.A5        - Copy of the letter dated 06.01.2009 regarding fire

                    loss dated 30.11.2007

 

Ext.A6        - Copy of the letter dated 01.03.2011 regarding

                   repudiation of claim

 

Ext.A7        - Copy of site plan of Western Indian Plywood

 

Ext.A8        - Copy of oriental Insurance Company Limited

 

Ext.A9        - Copy of Oriental Insurance Company Limited

 

Ext.A10      - Copy of the letter from opposite party to Mr.Mohan

                  Kumar confirming supply of copies under the RTI Act

 

Ext.A11      - Copy of letter dated 31.07.2008 from 3^rd opposite party

                   to complainant regarding fire loss.

 

Ext.A12      - Copy of letter No.WP/2216/2008-09 dated 28.09.2008

                  from complainant to 3^rd opposite party with a copy of     

                  the minutes dated 25.09.2008

 

Ext.A13      - Copy of letter dated 12.03.2009 from 2^nd opposite party

                  to technical department, New Delhi .

 

Ext.A14      _ Copy of final report dated 17.08.09 submitted by

                   K.A.Gopal, Advocate as investigator to 2^nd opposite party

 

Ext.A15      - Copy of clarification dated 10.05.2010 submitted by

                  K.A.Gopal., Advocate as in vestigator to 2^nd opposite party

 

Ext.A16      - Copy of letter dated 05.10.2009 from 2^nd opposite party

                   to GM(T)

 

Ext.A17      - Copy of letter dated 02.12.2009 from 3^rd opposite party to

                  2^nd opposite party

 

Ext.A18      - Copy of letter dated 08.01.2010 from 3^rd opposite party to

                    2^nd opposite party

 

Ext.A19      - Copy of office note dated 16.02.2011

 

Ext.A20      - Copy of Fire brigade report

 

Ext.A21      - Copy of asset register (machinery)

 

Ext.A22      - Copy of the stock register showing the details of stock at

                   fire affected premises before and after fire

 

Ext.A23      - Original of Standard Fire and Special Perils Policy of the

                  Oriental Insurance Co.Ltd

 

Ext.A24      - Original of Standard Fire and Special Perils Policy

                  Schedule of the Oriental Insurance Co.Ltd

 

 

 

Ext.A25      - Letter from Oriental Insurance Company to M/s.Western

                   India Plywoods, Kannur  dated 31.07.2008 regarding fire

                  Loss

 

Ext.A26      - A letter from Western Indian Plywoods Ltd to the Oriental

                  Insurance Co.Ltd dated 01.08.2008.

 

Ext.A27      - A letter from Western Indian Plywoods Ltd to the Oriental

                  Insurance Co.Ltd dated 07.08.2008.

 

Ext.A28      - Minutes of the meeting held on25.09.2008.

 

Ext.A29      - A letter from Oriental Insurance Company  to

                   M/s.Western India Plywoods Ltd dated : 03.12.2008

 

Ext.A30      - A letter from Western Indian Plywoods Ltd to the Oriental

                  Insurance Co.Ltd dated 17.12.2008

 

Ext.A31      - A letter from Oriental Insurance Company 

                   dated : 17.12.2008

 

Ext.A32      - A letter from Oriental Insurance Company  to

                   M/s.Western India Plywoods Ltd dated : 06.01.2009

 

Ext.A33      - A letter from Oriental Insurance Company  to

                   M/s.Western India Plywoods Ltd dated : 01.03.2011

 

Ext.A34      - Oriental Insurance Company Ltd Fire Policy C

 

Ext.A35      - Oriental Insurance Standard Fire and Special Perils Policy

 

Ext.A36      - Oriental Insurance Standard Fire and Special Perils Policy

 

Ext.A37      - Closing stock of Teak and Rosewood

 

 

 

List of Exhibits for the opposite parties

Ext.B1                 - Letter dated:8.8.2008 by the Western India Plywoods Ltd. to Chief Regional Manager, Oriental Insurance Co. Ltd.

Ext.B2                 - Copy of mahassar

 

Ext.B3              - Copy of letter from S.Soni & Co. to the The Divisional  

                          Manager, Oriental Insurance Co.Ltd

 

Ext.B4                 - Copy of ownership certificate

 

Ext.B5                 - Survey report of incident of fire loss dated:31.11.2007.

 

 

 

Commission Reports

 

 

Ext.C1 & C2                 - Copy of First Information Report

 

Ext.C3                           - Copy of sketch from Land Records, Collectorate,  

                                       Kannur

 

Ext.C4                           - Copy of survey

 

Ext.X1                           - Letter from the Western India Plywoods Ltd to  

                                        Oriental Insurance Co.Ltd

 

Ext.X2                           - Copy of Fire Insurance Claim Form

 

Ext.X3                           - Copy of survey map

 

Ext.X4                           - Letter dated 30.05.2008 to Oriental Insurance

                                  Co.Ltd from Western India Plywood Ltd.

 

Ext.X5                           - Copy of letter dated 10.05.2008 to Oriental

                                  Insurance Co.Ltd

 

Ext.X6                           - Copy of survey report

 

Ext.X7                           - Possession Certificate

 

Ext.X8                           - Copy of sketch

 

 

 

 

 

Ext.X9                           - Copy of Self contained note in respect of RTI

                                Appeal to Central Information Commission

 

 

Ext.X10                         - Copy of register of building tax

 

 

 

 

 

JUSTICE P.Q. BARKATHALI :  PRESIDENT

 

 

V.V JOSE : MEMBER

 

 

 

 

 

VL.