DATE OF FILING : 27.2.2015
IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 27th day of April, 2018
Present :
SRI. S. GOPAKUMAR PRESIDENT
SRI. BENNY. K. MEMBER
CC NO.73/2015
Between
Complainant : Seemas Wedding Collections,
Manakkad Junction,
Pala Road, Thodupuzha.
Represented by its Managing Partner,
K.P. Shemeer, S/o. K.A. Pareeth,
Karothukudy House,
Perumbavoor P.O., Ernakulam.
(By Adv: Babu Sebastian)
And
Opposite Party : United India Insurance Co. Ltd.,
Represented by its Branch Manager,
Puthussery Complex,
Govt. Hospital Junction,
Aluva, Ernakulam.
O R D E R
SRI. S. GOPAKUMAR, PRESIDENT
Case of the complainant is that:
Complainant is having a textile shop in the name and style, Seemas Wedding Collection. On 8.10.2013, the complainant made an insurance contract with opposite party, for a coverage for their business premises through insurance policy Nos.100900/46/13/04/00000080, 100900/11/13/11/00000253 and 100900/11/13/11/00000254 and it covers burglary, standard fire and special perils and natural calamities of the entire building and all other things such as stock of textiles with add on cover of Rs.6.25 crores.
On 9.4.2014, due to heavy storm and rain, the sign board, front glass-spider fitting, CCTV camera-DVR, lightning protection plant, hoardings, shutters, Aluminium composite panel, truss work of the roof, air conditioning chilling plant etc. sustained heavy loss and have been partially or fully damaged resulting in heavy loss to a tune of Rs.25 lakhs and damages to the stock
(cont....2)
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assessed as more than Rs.78000/-. Immediately the matter was intimated to the 1st opposite party and requested them to pay the insurance claim. But unfortunately without consider the actual loss, the opposite party sanctioned only Rs.6,91,125/- towards building and various installation and Rs.28,015/- towards loss of stock, which is absolutely against actual loss sustained. The complainant further stated that, opposite party did not responded positively and so the complainant could not run the textile centre due to the adamant stand of the opposite party, by not providing proper and adequate compensation on the basis of the real damages sustained.
Therefore the complainant caused to issue a legal notice to the opposite party, to settle the matter, but eventhough he accepted the notice, not responded. Alleging deficiency in service and unfair trade practice against opposite party, the complainant filed this petition for directing the opposite party to compensate the complainant by paying the insurance claim amount of Rs.15,81,990/- for the damages to the building and its various installations and Rs.49,985/- for loss of stock along with interest, cost and compensation.
Upon notice, opposite parties entered appearance and filed detailed reply version by admitting the insurance policy. In this claim, opposite party further contended that the claim was settled with the complainant for Rs.7,20,446/- in total. The settlement was arrived after discussion and it was a full and final settlement since the settlement was a valid concluded contract and complainant had taken the benefit of the contract, he is estopped from claiming anything more. Further contended that immediately on receipt of the claim, the opposite party deputed an independent surveyor to assess the loss. On the date of alleged incident itself, that is on 19.4.214, the surveyor inspected the spot and assessed the loss. According to him, net loss payable to the opposite party is Rs.7,20,446/-. From the insurance policy, it can be seen that as per the contract of insurance, policies covers building and stock of textiles and goods only. So claim for damages to computer, DVR, lightning arrester, neon sign board, hoarding and chiller are not covered by insurance. After understanding all these aspects, the complainant agreed to settle the claim and this complaint is filed only on an experimental to obtain unjust enrichment out of the insurance contract, hence it is liable to be dismissed with cost.
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Complainant was examined as PW1 and Exts.P1 to P16 were marked. Ext.P1 is the copy of policy certificate. Ext.P2 is copy of legal notice. Ext.P3 is postal receipt. Ext.P4 is AD Card. Ext.P5 cladding work detail. Ext.P6 is air conditioning work detail. Ext.P7 is display board work detail. Ext.P8 tress work detail. Ext.P9 is invoice from Glide master. Ext.P10 is quotation of Telltron Electronics Development Society. Ext.P11 is quotation of Telstar. Ext.P12 is quotation of all Neon company. Ext.P13 is receipts of complainant shop. Ext.P14 is photographs. Ext.P15 is copy of valuation of movable property. Ext.P16 is copy of business suraksha policy. From the defence side, survey report and policy certificate produced and marked as Exts.R1 and R2 respectively.
Heard both sides.
The point for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?
The POINT :- We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. From the facts on record and as per the own version of the complainant, it is admitted fact that on 8.10.2013, the complainant's business firm was insured with opposite party for covering burglary, standard fire and special perils and natural calamities of the entire building where the textile business is functioning and all other things like stock of textiles with add on covers for Rs.6.25 crores and 4 crores respectively, through three insurance policies, by paying an amount of Rs.1.5 lakhs as yearly premium. It was also admitted that on 19.4.2014, due to severe storm, rain and natural calamities, the sign board, front glass-spider fitting, CCTV camera-DVR, lightning protection, hoardings, rolling shutters, aluminium composite panel, truss work of the roof, air-conditioning chiller plant etc. were sustained heavy loss and have been fully or partially damaged. As per the version of the complainant, the entire damage was calculated to the tune of more than Rs.25 lakhs.
In their version, opposite party has not denied the issuance of policy and its coverage. The learned counsel for opposite party argued that as per the survey report, the total loss was assessed to Rs.7,20,446/- and it was paid to the
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complainant and the complainant accepted the amount without recording any objection. Moreover, the learned counsel further argued that as per the policy contract, it covers building and stck of textile goods only. So claim of damages to computer, DVR, lightning arrester, neon signboard, hoarding and chiller are not covered by insurance. This matter was pointed out at the tune of settlement and after understanding all these aspects, the complainant agreed to settle the claim.
On going through the Ext.P1 policy detail, the Forum convinced that through Burglary BP policy having No.100900/46/13/04/00000080, stock of textile was insured for an amount of Rs.6.25 orders from 8.10.2013 to 7.10.2014. As per policy No.100900/11/13/11/00000253, it is a statutory fire and special protection policy and it covers the business premises, the sum insured was Rs.4 lakhs and covering period from 8.10.2013 to 7.10.2014. By going through the third policy having No.100900/11/13/11/00000254, it covers the business premises from earth quake (fire and stock) for the above said period and the sum insured was Rs.6.25 lakhs. These three policies were admitted by the opposite party and it is not denied in their version and no contra evidence is adduced. In the 1st policy stated above, it is specifically stated that, premises (description and situation of the premises containing the property insured) description is stock of textiles and situation is stated as “Seemas Wedding Collection, Thodupuzha District, Idukki”. As per the documents, it is obvious that the insured situation is Seemas Wedding Collection. It means the building, the sign board, the interior and exterior designings, the material which is used for converting a normal building into a Hi-tech textile show room. Here the complainant, the Managing Partner, used so many materials for converting a normal building into a textile showroom. This showroom is insured for a sum of Rs.6.25 lakhs, from storm, rain and natural calamities. The opposite party company sanctioned the claim amount based on the report of the surveyor Mr. Madhu. K. In the report, the surveyor observed that, “the roofing sheets of the chiller installed on the roof top is flown away. The neon sign board installed on the building roof is broken and the foundation given is totally damaged. Due to ingress of water the chiller also suffered damages.
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The aluminium composite panel fitted on the front wall covering the whole height of the building has fallen down.
On the right side of the building, there is a show wall made up of 12 mm thick glass. This is protected by rolling steel shutter installed outside. Due to the high velocity wind, the half open rolling shutter is taken off from the side and is bent. One of the glass panes is broken and the wind took the heavy shower into the building.
The computers kept in the building table were damaged by the ingress of the heavy down pour.
The truss work of the roof top terrace supporting the roof chiller is badly damaged. A lightning arrester fixed along with the neon light board is bent and fallen down.
The insured has also claimed damages to the DVR of the supervisory camera installed inside the building.
The surveyor assessed the damages after deducting depreciation and salvage was Rs.7,20,452/- and the amount was handed over to the complainant. On going through the survey report, the surveyor has not assessed the value of DVR, lightning arrester, computers, hoarding chiller, neon sign board, on the ground that the policy covers building and stock of textile goods only. Hence claim for above mentioned damaged items was not considered for assessment of loss.
Moreover, in the head of stock, the surveyor observed that (page 14), the damaged stock cannot be sold as new. It has developed bad smell and has lost its appearance. If appropriate buyer is located, it can be sold at a maximum rate of 40% of cost only considering the loss of appearance etc.. Hence the amount of salvage value to be adjusted. Here the surveyor opined that, the clothes developed bad smell and lost its appearance at the same time, he reported that it will get 40% of its actual value. This type of assessment cannot be digestible and the Forum is of a considered view that, the non-consideration of some damaged materials which was the part and parcel of the show room and deduction of the salvage in the stock is only to help the insurance company and it is not acceptable in total. No evidence was produced by he opposite party to
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establish their version that the damages to the computer, DVR, lightning arrester, neon sign board, hoarding and chiller are not covered in this policy. Hence the Forum is not in a position to swallow the version of the opposite party as whole. The damage to the above said item which was the inevitable part of the textile show room was noticed and convinced by the surveyor and it is described in his survey report. To find out the actual loss in this matter, the damage to the above said items also are to be assessed. Otherwise the finding of the surveyor cannot be acceptable and it is against the principles of natural justice and of actual facts. The opposite party is bound to compensate the complainant as per Exts.P6, P7, P9, P10, P11 and P12 quotation for a just and proper disposal of the claim. Also the opposite party company is bound to pay the full amount in damages of stock.
On the basis of the above discussion, the Forum direct the opposite party to compensate the complainant for the damages caused to the neon sign board, CCTV camera, DVR, lightning protection plant, air conditioning chilling plant and computers considering the above said exhibits and pay the claim to the complainant within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.
Pronounced in the Open Forum on this the 27th day of April, 2018
Sd/-
SRI. S. GOPAKUMAR, PRESIDENT
Sd/-
SRI. BENNY. K., MEMBER
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APPENDIX
Depositions :
On the side of the Complainant :
PW1 - Shameer K.P.
On the side of the Opposite Party :
Nil.
Exhibits :
On the side of the Complainant :
Ext.P1 - copy of policy certificate.
Ext.P2 - copy of legal notice.
Ext.P3 - postal receipt.
Ext.P4 - AD Card.
Ext.P5 - cladding work detail.
Ext.P6 - air conditioning work detail.
Ext.P7 - display board work detail.
Ext.P8 - tress work detail.
Ext.P9 - invoice from Glide master.
Ext.P10 - quotation of Telltron Electronics Development Society.
Ext.P11 - quotation of Telstar.
Ext.P12 - quotation of all Neon company.
Ext.P13 - receipts of complainant shop.
Ext.P14 - photographs.
Ext.P15 - copy of valuation of movable property.
Ext.P16 - copy of business suraksha policy.
On the side of the Opposite Party :
Ext.R1 - survey Report.
Ext.R2 - policy certificate.
Forwarded by Order,
SENIOR SUPERINTENDENT
