KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.121/12, 122/12, 176/12 & 177/12
COMMON JUDGMENT DATED:31.07.2013
PRESENT
SHRI.K.CHANDRADASNADAR -- JUDICIAL MEMBER
APPEAL NO.121/12
The Oriental Insurance Co.Ltd
Sobha TSM Complex
R.S.Road, Opp Town Railway Station,
Palakkad. Reptd by its -- APPELLANT
Divisional Manager,
Ulloor, Triandrum,
(By Adv.V.Manikantan Nair)
Vs.
Sunil Jain,
S/o Mahavir Chand, Proprietor, -- RESPONDENT
Thushar Flooring Selection,
Opp.Sitharam Motors, N.H 47, Kadamkode,
Karingarapully, Palakkad.
(By Adv.Rajesh Vijayendran & Ors.)
APPEAL NO. 122/12
The Oriental Insurance Co.Ltd
Sobha TSM Complex
R.S.Road, Opp Town Railway Station,
Palakkad. Reptd by its -- APPELLANT
Divisional Manager,
Ulloor, Triandrum,
(By Adv.V.Manikantan Nair)
Vs.
S.H.Shabeer, S/o Sahid Abdul Khadher
8/944, Opp.Sitharam Motors, -- RESPONDENT
NH47, Kadamkode,
Karingarapully, Palakkad.
(By Adv.Rajesh Vijayendran & Ors.)
APPEAL NO.176/12
S.H.Shabeer, S/o Sahid Abdul Khadher
8/944, Opp.Sitharam Motors,
NH47, Kadamkode, -- APPELLANT
Karingarapully, Palakkad.
(By Adv.Rajesh Vijayendran & Ors.)
Vs.
The Oriental Insurance Co.Ltd
Sobha TSM Complex
R.S.Road, Opp Town Railway Station,
Palakkad. Reptd by its -- RESPONDENT
Divisional Manager,
Ulloor, Triandrum,
(By Adv.V.Manikantan Nair)
APPEAL NO.177/12
Sunil Jain,
S/o Mahavir Chand, Proprietor, -- APPELLANT
Thushar Flooring Selection,
Opp.Sitharam Motors, N.H 47, Kadamkode,
Karingarapully, Palakkad.
(By Adv.Rajesh Vijayendran & Ors.)
VS.
The Oriental Insurance Co.Ltd
Sobha TSM Complex
R.S.Road, Opp Town Railway Station,
Palakkad. Reptd by its -- RESPONDENT
Divisional Manager,
Ulloor, Triandrum,
(By Adv.V.Manikantan Nair)
COMMON JUDGMENT
SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER
In these appeals the orders of CDRF, Palakkad in CC.Nos.47/11 & 48/11 are challenged both by the complainant and opposite party. The complainant in CC.No.4711 is the owner of the building bearing door No.8/944 situated by the side of N.H 47 at Karingarapully Kadamkode in Palakkad Taluk. The said building was let out to the complainant in CC 48/11 for the purpose of conducting business in the name Tushar Flooring Selections. The complainant in CC.47/11 had availed a Standard Fire and Special Peril insurance policy from the opposite party to cover the risks to his building for the period from 2.7.09 to 1.7.10. The complainant in CC.48/11 had also availed a standard fire and special peril insurance policy from the same opposite party to cover the risks to his trading materials such as marble slabs and tiles, granite slabs and tiles, tiles, ceramic wash basins etc. for the period from 31.10.09 to 30.10.10. The identical allegations in these complaints are that on 14.6.10 due to heavy wind and rainfall, the insured building got damaged. The insured stock in trade also got damaged. Immediately intimation was given to the opposite party regarding the damage to the building as well as the trading materials. But the opposite party did not bother to inspect the property and the stock in trade for assessing the damage. Therefore, the complainant again requested the opposite party to do the needful at the earliest. Inspite of repeated requests, the surveyor visited the premises only on 23.6.10. As a result of heavy wind and rain fall a portion of the store room fell down and the steel shed and compound wall were damaged. The complainant in CC.47/11 assessed his loss at Rs.1.63 lakhs and claimed compensation of Rs.213,000/-. It appears that after inspection of the stock in trade the insurance surveyor requested the complainant in CC.48/11 to furnish records such as purchase bills for damaged items, stock statement given to the bank and balance sheet and profit and loss statement for the relevant year. It is alleged by the complainant in CC.48/11 that he had forwarded all such documents. Based on his own assessment, the complainant in CC.48/11 claimed that he sustained a loss of Rs.7.33 lakhs due to damage to the insured articles. He claimed a compensation of Rs.833,000/- from the opposite party/insurance company.
2. In both the complaints, it is alleged that without conducting proper enquiry, the complainants were told that the opposite party was not in a position to entertain the claims and accordingly closed both the claims. Thereby, the opposite party has caused hardship and mental agony to the complainants. The complainant in CC.47/11 has claimed a total compensation of Rs.2,13,000/- and the complainant in CC.48/11 has claimed a total compensation of Rs.8.33 lakhs.
3. The opposite party/ oriental Insurance company filed version in both complaints raising identical contentions. They admitted that the complainants had availed policy as alleged. But denied the allegation that they had not bothered to inspect the property for assessing the damage despite intimation. They contended that it is incorrect to say that the surveyor had visited the premises only on 23.6.10. The insurance surveyor deputed by the opposite party inspected the premises on 15.6.10 and 22.6.10. The opposite party denied the allegation that due to heavy rain and wind a portion of the storeroom fell down and the complainant in CC.47/11 sustained loss of Rs.1.63 lakhs and the complainant in the other case sustained loss of Rs.7.33 lakhs to his stored articles. The insured building is a shed made of corrugated GI sheet roofing over steel trusses. The compound wall is constructed with cement hollow blocks in cement mortar on the rear side and welded steel mesh over RCC plinth in the front side. The surveyor found that the stack of vitrified tiles and ceramic tiles had fallen over the pillar steel channel and the channel bent and the roof had sagged. The surveyor did not notice any damage to other buildings and trees nearby. According to the surveyor due to heavy rain, filled mud had become wet and floor sunk un-evenly. The stack of floor tiles lost balance and fell over the pillars of the shed and the pillars got bent. The mud below the plinth being in the north western side of the shed had fallen due to erosion of soil in the heavy rain. The surveyor further found that had there been heavy wind the roof sheets would have blown off. So the surveyor rightly found that the damages due to the wind and rain were not due to any insured peril and as such the claim was inadmissible. As per policy conditions loss destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide excluding the settlement or movement of made up ground is covered. Therefore, the claim was rightly rejected by the opposite party and there was no deficiency in service.
4. The Forum recorded separate evidence in the complaints. In CC 47/11 the complainant gave evidence as PW1. Ext.A1 was marked on the side of the complainant. The insurance surveyor was examined on the side of the opposite party as DW1. Exts.B1 to B3 were marked on the side of the opposite party. In CC.48/11 both parties filed affidavit. Exts.A1 & A2 were marked on the side of the complainant. The same insurance surveyor was examined as DW1 on the side of the opposite party. Exts.B1 to B4 were marked on the side of the opposite party.
5. The forum allowed both the complaints in part. In CC.47/11 the forum held that since at the time of issuing policy the opposite party had not raised any objection to the stability of the floor of the building and no evidence was produced by them that the proximate cause of damage was settling of the filled floor mud, the complainant was entitled to claim damages of Rs.50285/- assessed by the surveyor. In CC.48/11 the forum held that there was no evidence as to the actual quantum of damage sustained by the complainant. But however allowed a compensation of Rs.1 lakh, Rs..10,000/- towards mental agony and Rs.1000/- towards costs.
6. The orders of the forum are challenged both by the complainants and the opposite parties. On the facts disclosed above the only disputed question is whether Ext.B3 policy in both complaints covers the alleged or proved peril and hence these appeals are being disposed of by a common order.
7. The complainant in CC.47/11 is the owner of the building which was let out to the complainant in the other case for conducting business in flooring materials such as marble slabs, tiles, granite slabs and tiles ceramic wash basins etc. Damages were allegedly sustained to both building and the stock in trade as a result of a common peril on 14.6.10. The common peril alleged in both complaints is that there was heavy rainfall and wind on 14.6.10. As a result both building and the stock in trade got damaged. Both claims were repudiated by the insurance company for identical reasons based on the surveyors report. The surveyor is examined by the opposite party in both complaints. The surveyors report dated 22.3.11 is marked as Ext.B2. As per the surveyors report that there was heavy rain on the relevant date was admitted. The finding was that due to heavy rain the filled mud became wet and the floor sank unevently. The stack of floor tiles lost balance and fell over the pillars of the shed and the pillars got bent. The damage to the building and stock happened in the above manner. In support of his conclusions the surveyor pointed out that, had there been storm there would have been damages to the buildings or trees in the nearby area. No such damage was found. Had there been heavy wind the roof sheets of the building would have blown off. That also did not happen. So based on the surveyors report the opposite party concluded that no insured peril had operated to cause damage. It was accordingly the claims were rejected. The opposite party produced standard fire and special perils policy (material damage) issued to both complainants as Ext.B3. The rejection was based on Clause 8 of the policy which deals with subsidence and lanslide including rock slide. As per clause 8 loss destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide excluding among other things, the settlement or movement of made up ground and normal cracking, settlement or bedding down of new structures is covered. During the pendency of this appeal as per the summons of this Commission the meteorological department produced the rain fall register for 2010 In the Palakkad District, from the entries relating to 13.10.10 & 14.6.19 it Can be seen that a rain fall of 47.8 mm and 47.4 mm were recorded on the said days in the area. It appears that in the district by and large there was heavy rainfall. Heavy rain fall need not necessarily be accompanied by wind and really there is no evidence to indicate that there was storm in the area on the relevant day. So, the conclusions of the surveyor appear to be acceptable. The forum also did not arrive at a different conclusion, but merely stated that at the time of issuing insurance policy opposite party had not raised objection to the stability of the floor of the building of the complainant in CC.47/11 and that opposite party produced no documentary evidence to show that the proximate cause of damage was due to settling of the filled floor mud. The question directly raised was that subsidence of filled up land is not at all covered by the policy. In view of that contention there was no scope for raising any objection at the time of issuing the policy as to the stability of the floor. The forum awarded compensation in OP.47/11 only in the “interests of justice” which the forum was not entitled to do in the face of a clear provision in Ext.B3 policy. In CC.48/11 the forum clearly found that there was lack of evidence as to the extent of damage sustained to the complainant therein. Apart from this the alleged peril was not clearly covered by Ext.B3 policy. However, the forum awarded compensation of Rs.1 lakh towards mental agony but lost sight of the fact that in a contract of insurance, the parties are bound but the terms of the contract. I had referred to the provisions in Ext.B3 policy and the exclusion made therein which clearly excludes subsidence of land due to settlement or movement of made up ground. Only loss, destruction or damage caused by subsidence of part of the site on which property stands or land slide is covered by the policy. That subsidence must be due to natural causes like earth quake. No such event happened. It is a clear case where the floor subsided due to heavy rain and settlement of made up ground. Therefore, the insurance company rightly rejected the claims of the complainants. In such a situation no deficiency in service on the part of the Insurance Company can be found. It follows that the appeals filed by the insurance company are liable to be allowed and the complaints are liable to be dismissed.
In the result appeals 176/12 and 177/12 are dismissed and appeal Nos.121/12 & 122/12 are allowed. The orders of the CDRF, Palakkad in CC.Nos.47/11 and 48/11 dated 16.3.11 are set aside and both complaints are dismissed. Considering the facts and circumstances, the parties are directed to bear their respective costs in these appeals.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
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