KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 618/2009 JUDGMENT DATED: 20-10-2010 PRESENT SMT. VALSALA SARANGADHARAN : MEMBER SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER SRI.M.K. ABDULLA SONA : MEMBER United India Insurance Company Ltd., Ponkunnam Branch, R/by Dr.Mohan Shanker, Senior Divisional- Manager, United India Insurance : APPELLANT Company Ltd, Divisional Office-1, LMS Compound, Trivandrum. (By Adv.Sri.R.Jagadish Kumar) Vs. T.M. Thomas, St. George Oil Mills, : RESPONDENT Erattupetta, Kottayam Dist. (By Adv:Smt.R.Suja) JUDGMENT SHRI.M.K. ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Kottayam in CC.65/2006 dated:29/08/2009. The appellant is the opposite party who prefers this appeal. The respondent is the complainant in the above OP. 2. The allegation in the complaint put by the complainant that the complainant was the owner of St.George Oil Mills, Erattupetta and this Coconut Oil Mill is situated in a two storied building which consisted of the ground floor and first floor respectively. The ground floor is used for oil extraction where plant and machinery is installed and the ground floor is also used for the storage of copra and coconut oil. Above the ground floor, there is the first floor, there is a small chamber used for heating and drying copra. The complainant has taken a Standard Fire and Special Perils Policy in respect of the oil mill, plant and machinery with Rs.2,00,000/- and stock of copra and coconut oil for Rs.3,00,000/-. The heating chamber is covered under the policy. During the pendency of the policy due to short circuit fire occurred and copra got burnt and damages were caused to the plant and machinery. The complainant lodged a claim with the opposite party/Insurance company. He was claimed Rs.1,76,270/- for the loss suffered by him as a result of fire. Inspite of the repeated request of the complainant, the opposite party refused to settle the claim of the complainant. Aggrieved petitioner issued a lawyer notice to the opposite party demanding settlement of claim. The Manager of the Insurance claim issued a reply notice on 24/2/2006 stating that the claim petition is processing by the higher office of the opposite party. Petitioner says that he is entitled for an amount of Rs.1,67,270/- with 18% interest from 13/10/2005 till realization. Petitioner also claims Rs.10,000/- as compensation and Rs.5000/- as cost of the proceedings. 3. The opposite party entered appearance and contended in their written version that the fire was not happened due to electric short circuit but it was happened due to storage of inflammable substances, coconut shell and also in consequence of the fire put on the top of the building. The fire accident was occurred inside the heating chamber constructed of the roof of the oil mill. Opposite party contended that accident was caused due to the negligence of the petitioner or their staff. Opposite party contended that the petitioner’s plant is a single storied building and on the top of the building there is a furnace and heating chamber. Copra was kept in the heating chamber for drying purpose. Damages caused in the furnace and heating chamber are not covered by the policy. Fire accident had occurred inside the heating chamber constructed on the RCC roof of the insured building. The insurer is not liable for the loss occurred in the heating chamber. As per the exclusion clause 1 (a) sub division (ii) the insurance company is not liable for destruction of stock insured while undergoing any heating or drying process as per the fire policy. According to the opposite party the claim of the petitioner is repudiated on valid ground further in the version the opposite party contended that non settlement of the claim is on valid reason. So they pray for dismissal of the petition with their cost. 4. The Forum below framed two issues namely:- 1. Whether there is deficiency of service on the part of the opposite party? 2. Relief and costs? 5. The evidence of the case consisted of affidavit filed by both parties and Exts.A1 to A4 documents on the side of the petitioner and Ext.B1 and B2 on the side of the opposite party. 6. The Forum below answered both points. The opposite party examined the surveyor before the Forum as DW1 and the surveyor’s report is marked as Ext.C1. In cross-examination the surveyor stated that he has not seen the copra storage place. The petitioner produced the report of the station Officer, Fire and Rescue station who visited on the place of occurrence. On the day of occurrence of the said document is marked as Ext.B2. In Ext.B2 it is stated that copra was stored in the mill and fire was occurred due to electric short circuit. In Ext.C1 report, the surveyor stated about the enclosure along with the C1 report ie claim form, copy of the stock register, purchase bills, fire force report etc. But the surveyor during his cross-examination stated that he has neither seen the fire report nor examined whether the fire was occurred due to electric short circuit. In the deposition during the time of cross-examination, DW1 further deposed that there was no crack in the floor of the oil mill. Further more the surveyor visited the place after 4 days of occurrence. On the basis of the evidence the Forum found that the report of the surveyor is unilateral with regard to the occurrence of the fire due to heating process is not acceptable. Further more, the surveyor has not examined about the probability of short circuit even after receipt of fire, stating cause of occurrence due to electric short circuit. So, the report of the surveyor is not trust worthy and reliable. When the Forum found that the repudiation of the claim of the complainant by the Insurance Company without any evidence will show that fire was due to heating process. Hence it is a deficiency of service. 7. On the basis of the above finding the Forum below allowed the complaint and directed the opposite party to pay to the complainant an amount of Rs.1,67,270/- with 12% interest from 13/10/2005 till realization. Opposite party is also ordered to pay an amount of Rs.2000/- to the petitioner as cost of proceeding. 8. When this appeal came up before this commission both the counsel for the appellant and the respondent/complainant are present. Both counsel argued vehemently about their own cases before this commission. The main contention of the counsel for the appellant is that the policy coverage does not extent for heating chamber situated on the first floor. The policy coverage was only in respect of the oil mill, plant and machinery and stock of copra and coconut. Another contention is that the cause of fire was due to heating or drying process of the stock of copra it is outside the purview of the policy recitals sub division (ii) the lower forum has not properly interpreted the recitals of heating policy. The policy itself is a break and lower forum is not entitled to rewrite the recitals of the policy and award of compensation. Ext.D1 surveyor’s report which reveals how the fire occurred has been completely ignored by the lower forum. He again submitted that repudiation was done by the appellant after clearly going through the recitals of B1 policy and B2 survey report and the appellant cannot be held responsible for deficiency of service. Hence he prays to allow this appeal and to set aside the impugned order passed by the Forum below. The counsel for the respondent/complainant appeared and argued that the appellant/opposite party did not respond towards their claim petition and they kept the claim petition in their safe custody without settling the claim or issue the repudiation. After issued the lawyer notice by the complainant they inform to the complainant that the claim petition was already possessing of office of the higher officials either no repudiation letter issued or allow the claim by the appellant/opposite party. It is a deficiency of service. Secondly the counsel for the respondent/complainant submitted that the repudiation of the claim was revealed by the opposite party only after filing the complaint by the complainant. It is a gross negligence and nothing but a deficiency of service committed by the appellant/opposite party. 9. This commission produced the entire lower court records and heard both sides and taken a view that the crucial evidence adduced by the opposite party are Ext.C1 survey report and DW1, evidence of the surveyor of the appellant. The Forum below came to the conclusion that the fire was caused to electric short circuit. Both the evidence of PW1 and contents of Ext.D1 survey report the fire was originated as per stated in the D1 survey report. But we are seen that an insurer there are part of the respondent/complainant they did not take any steps to adduce evidence to support their case. But the evidence in this case is that the survey report and the deposition of DW1 the surveyor. These two evidences alone are not sufficient to find out the cause of fire. We admitted the settled position of law that the survey report is a reliable document. But in this case both the report of the surveyor and his oral evidence any way support their case. He is not an authority to say anything on the exclusion clause and the exemption of this claim from the policy issued by the appellant/opposite party. The survey report prepared by DW1, the surveyor; without collecting any evidence or perusing any supported documents. It is nothing but an arm chair report. In the circumstances this report and the oral evidence of DW1 no way help the appellant/opposite party to prove their defense. The other point did not framed by the Forum below and discussed and answered ie nothing but a non disposal of the claim by the appellant/opposite party. There is no doubt that this is a deficiency of service. In this circumstance we are not seeing any apparent error in the order passed by the Forum below. The learned counsel for the appellant cited a decision Vikram Greentech(I) Ltd. Vs. New India Assurance Company Ltd., AIR (2009) SC 2493. This decision did not discuss the facts and circumstances of this case. Nobody disagree that the Forum or Commission is not having any authority to re-write the condition of the policy. But in this case the points discussed by the Forum below are not a question of interpretation or re-writing the conditions of the policy. Here the primary point is that the survey report and surveyor’s evidence is not irrelevant and hence non acceptable. The appellant/opposite party failed to establish that this accident incidentally and then damages is excluded as per the insurance policy issued by them. It is the bounden duty of the appellant/opposite party to give proper evidence to support their case. Without proper evidence the defense has taken by the appellant/opposite party is a falsity of evidence, it helps the case of the complainant. He also noted that the surveyor was examined as DW1 by the Forum below. But it was not mentioned in the annexure of the judgment and Forum below marked Ext.B1 survey report but discussed with as Ext.C1. The Forum reminds that after the preparation of the draft of the judgment, read and make necessary corrections before issuing to the parties. It is a public offence. In the result this appeal is allowed in part. This commission decides to set aside the interest at the rate of 12% from 13/10/2005 and a cost of Rs.2000/-. The opposite party is directed to pay the claim amount of Rs.1,67,270/- to the complainant within 15 days of the receipt of this judgment. If they failed to comply with the order within the stipulated time, the opposite party is also directed to pay interest at the rate of 12% from 13/10/2005 till realization and the opposite party has also ordered to pay an amount of Rs.2000/- to the complainant as cost of the proceedings. Both parties are directed to suffer their cost. The points of the appeal are answered accordingly. M.K. ABDULLA SONA: MEMBER VALSALA SARANGADHARAN: MEMBER M.V. VISWANATHAN: JUDICIAL MEMBER VL | 
