SRI.R. VIJAYAKUMAR, MEMBER.
This complaint is filed for realization of policy amount Rs.2,50,000/- along with interest at the rate of 18% from 9..2..2007 after deducting paid amount Rs.48,000/-. The complainant further prayed for cost Rs.5000/-
The case of the complainant is that the opp.party denied the actual claim for the damages occurred due to fire The OP, allowed only an
insufficient amount as claim. The surveyor has not assessed the actual losses and the opp.party delayed in settling the claim.
The case of opp.party is that they were ready to settle the claim as per the policy conditions. The complainant did not turn up for receiving the amount allowed to him as full and final settlement.
From the side of the complainant PW.1 examined Ext.P1 to P8 marked.
From the side of opp.parties DW.1 and 2 examined. Exts. D1 to D8 marked.
The point that would arise for consideration are:
1. Whether there is any deficiency in service?
2. Reliefs and costs.
Points 1 and 2
The complainant had taken a policy from the opp.party to Insure his textile shop namely Chaithanya Textiles covering loss to be sustained due to fire etc. The policy No. is 100705/48/07340000978 and the validity period of the policy was between 2..11..2007 to 1..11..2008. In the early morning on 10..12..2007 his textile shop was burnt due to fire . The textile items and other goods like plastic cover etc were spoiled due to that fire occurrence. The complainant sustained to loss of Rs.3,50,000/- As informed by the complainant, the Kottiyam Police registered Crime No.733/07 and Fire Report was prepared by fire Force, Kollam as per Fire Call No.247/07. The incident was informed to the opp.party. As intimated by the opp.party the complainant submitted a claim Form claiming Rs.2,64,000/-. On 12..11.2007 one Mr. Sunil Radhakrishnan claimed to be the surveyor visited the fire affected shop. But he had not properly assessed the actual loss sustained by the complainant. It was informed by the opp.party through a letter dated 5..9..08that claim for an amount of Rs.48,000/- was allowed to him and discharge voucher with signature and stamp should be sent to the opp.party for disbursal of the amount . The complainant repeatedly requested for the correct assessment. But the opp.party did not respond to the complainant’s demand. They informed that the amount can be disbursed through the bank only if he is ready to receive the amount as full and final settlement and if only it was duly stamped signed. The opp.party delayed in settling the claim and hence opp.party is liable to compensate the damages sustained by the complainant. He is entitled to get interest also.
The case of the opp.party is that the coverage of policy is strictly based on general condition particularly NOs. 3 and 4 and Section 1 subject to the Special exception. The opp.party got information of the incident only on 11.12.2008 Immediately the opp.party issued relevant claim Form and deputed Mr. Sunil Radhakrishnan, a Licensed Surveyor and Loss Assessor to assess the actual Loss . The complainant claimed for Rs.2,50,000/- as the value of affected textile items Rs.4000/- as the price of vaccumm cleaner and Rs.10000/- as the price of carry bags. The surveyor observed after thorough inspection that stock register, cash books, purchase and sales Registers and other records are not properly maintained . However the Surveyor assessed the loss to the tune of Rs.60,525/-on the basis of available bills and declaration made by the complainant. On the basis of this assessment after deducting policy excess discharge voucher for an amount of Rs.48,000/- was prepared and intimation was given to the complainant. But the complainant did not care to accept the offer. The complainant is not entitled to get any amount more than Rs.48,000/-
Heard both sides, perused records, the evidence and arguments.
The opp.party contented that the no supporting documents were produced before the surveyor to substantiate the claim of Rs.2,64,000/- in the absence of such documents and registers, the opp.party is not legally bound to accept the claim of the complainant with respect to the loss of stock in trade such as textile items said to have been burned by fire. Ext.P7 and D2 shows that complainant was not maintaining stock register, cash book, purchase register etc. The complainant admitted while in cross examination that he did not show any approved and audited stock register, purchase register and sales register to the Surveyor at the time of his visit. Ext.P8 was created subsequently after a long time. He has also admitted that Ext.P8 was not approved by Sale Tax or any other authorities.
It is obvious that the opp.party allowed claim for Rs.48000/- as per the Survey Report and after deducting salvage value , Policy excess etc Survey report is mandatory under section 64UM of Insurance Act 1938. It is also admitted that the Survey Report is to be considered as an authenticated document. The pertinent point to be considered in this case is whether the surveyor has properly assessed the actual loss and damages sustained due to fire occurrence. The contention raised by the complainant that the Surveyor had not visited shop immediately within proper time to examine the damages and losses sustained to the shop is defeated by the documents produced by the opp.party. As stated by the complainant the incident was intimated to the opp.party on the very same day of the incident and claim form also was submitted. On the next day itself the Surveyor visited the Textile shop and assessed the loss. But it is clear that he had submitted his report only after a duration of 4 months. Reason for this inordinate delay is explained by the surveyor that the delay in submission of the available records, like purchase bill etc. from the side of the complainant.
We have carefully perused Ext. D5 the survey report and the deposition of DW.1 and DW.2 . It is seen that the report is based only on the purchase bills produced by the complainant. No other methods were exercised to ascertain the actual damages. It is stated in Ext. D5 survey report as No.12 that “The fire damaged the stock of clothes stocked in front of show room and also in the store attached to it. A good amount of the stock within it was gutted down by fire making it unsaleable. The stock was found scattered around the premises Even the un burnt stock which was stocked in the racks was damaged due to the smoke making it unable to sale at its full value. It is further stated in part 15 loss assessment that on verifying the purchase register with purchase invoice produced it was found that some of the purchases were exaggerated and some of them did not have any supporting documents. While in cross examination the learned counsel for the complainant put the question to DW.2 that “purchase bill ‚¿¡·ó œ¥ûÃ廡𢠇ù¢ó¡´¢ð¢ñ¢´¤ˆð¡ é¿¡ ? A. •¨Ä . •Ä›¤öñ¢µ® ‡ñ¤ pant piece ©œ¡ò¤« ‚¿¡ …¼¡©Ã¡ œúð¤¼Ä®? A ‚¿¡ð¢ñ¤¼¤. The counsel put further question that Ĥâ·ñ¹ø¤¨Ð average ó¢ò …¹¨› ˆÃ´¡´¢ …¼® report œú𤼢¿? A complainant ›ýˆ¢ð purchase bill •›¤öñµ¡¡Ã® •Ä® ©ñ‰¨¸Ð¤·¢ð¢ñ¢´¤¼Ä®. Q. ˆ©Ø¡ø ó¢ò Ä¢¶¨¸Ð¤·¤¼Ä¢›¤øø ©ñ‰ˆþ ›¢¹ø¤¨Ð ¨¨ˆóô« ƒÙ¡ð¢ñ¤©¼¡? a. …¨Ê ¨¨ˆóô« ‚¿¡ð¢ñ¢¼¤.
From the repeated statements in the report and the statements made while in cross it is obvious that the surveyor has considered nothing other than purchase bill for ascertaining the loss sustained to the complainant
Item No.1 5 [a]of survey report states that no purchase bill produced, the claim on the same is not correct and balances stock would be deemed as nil. As per items No.15 [ 7 ] even though bills produced for 60 Nos of bedsheet and claimed in the purchase register 149 Nos. and 50 Nos,, the surveyor assessed nil balance of stock of bedsheets.
Even though the surveyor has stated, that he had taken photographs to ascertain loss, not produced the photographs or negatives before the Forum.
The surveyor had stated that he had taken 2.3 hours for the inspection and also had made enquiries to the persons who were present at the nearby shops. But he had not prepared any mahazar and no statement was recorded from those persons. An inventor regarding the shop also was not prepared by the surveyor.
Contradictory statements were made by the surveyor regarding loss sustained to the furniture. He had stated in cross examination that the loss sustained to the furniture is not included in the report as those were not insured as per the policy document. He had further stated that even though the furniture were insured the loss of furniture was not claimed in the claim form.
A pertinent question raised by the learned counsel for the complainant while in cross that “stock in trade ©—¡Ú¬¨¸¶¡Ã®250000ñ¥œð¤¨Ð policy ›ˆ¢ð¨Ä¼ ©ñ‰ ›¢¹þ ˆÙ¢¶¤©Ù¡? DW.2 answered ‚¿.
DW.1 has admitted that the policy was given to the complainant as proposed by the bank on the bass of the loan for an amount of Rs.2,50,000/- granted to the complainant and the proposal was true and correct. It is further stated by DW.1 that the policy was granted in favour of the complainant after satisfying the stock and value. No contention from the part of opp.party was raised at that time.
Based on the above discussed points we came to the conclusion that the surveyor has not assessed the loss properly considering all the material facts before him and adopting various methods of loss assessment. As an independent surveyor and an expert in this field he is expected conduct Loss Assessment properly . But in our opinion no expertise was exercised by him to observe the real facts considering various factors involved in the claim.
The opp.party has contented that no reasonable care or safe measures were maintained by the complainant to prevent fire or accident. The coverage of policy is strictly based on the general condition particularly No.3 and 5 and section 1 subject to the special explanation general condition 3 specifically require that the insured shall take reasonable steps to safe guard the property Insured against any loss or damage. It is true that the insured complainant is bound to take precautionary measures to safe guard the shop from fire etc. But it is pertinent that the opp.party had issued policy with the knowledge that a hotel is working adjacement to the textile shop. The incident was happened early morning on 10..12..2007 when the hotel was not at working
For all that has been discussed above we are of the opinion that there is deficiency in service from the part of opp.party. The
complainant is entitled to get the policy amount after deducting salvage value and policy excess. As the Surveyor has stated 60% of the stock which was in store room was burnt out fully, the complainant is entitled for the full value of that part. Balance stock could be sold half of its rate and that amount can be considered as salvage value . The complainant is entitled to get balance 50% of that part. Policy excess amount can also be calculated at the rate of 10% . Amount deposited in the bank as per discharge voucher Rs.48,000/- can be deducted from the total amount payable to the complainant
In the result the complaint is allowed in part. The opp.party is directed to pay the complainant the policy amount as Rs.2,50,000/- after deducting policy excess amount at the rate of 10% salvage value Rs.50,000/- and paid amount Rs.48,000/- . The opp.party is further directed to pay interest at the rate of 6% per annum from 9..2..2007 till the date of payment and cost Rs.1500/-
The order is to be complied with within one month of the date of receipt of this order.
Dated this the 30th day of April, 2012.
G. VASANTHAKUMARI :Sd/-
R. VIJAYAKUMAR :Sd/-
Forwarded/by Order,
SENIOR SUPERINTENDENT
I N D E X
List of witnesses for the complainant
PW.1. Sasidharan Pillai
List of documents for the complainant
P1. Copy of FIR
P2. Mahazar
P3. Fire Information report
P4. -Policy
P5. Copy of notice dt. 5..9..2009
P6. Acknowledgement of claim force
P7.. Claim form
P8. - copy of stock register
List of witnesses for the opp.party
DW.1. - G. Leela
DW.2. - Sunil Radhakrishnan
List of documents for the opp.parties
D1. - Letter from the complainant dt. 11.10.2007
D2. - Claim form
D3. - Statement given by the complainant
D4. - Statement given b the wife of the complainant
D5. - Survey report
D6. - Shopkeeers claim note
D7. - Letter dated 5..9..2008
D8. - Certified copy of Policy with condition -
