THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 106/09
Wednesday, the 29th day of February, 2012
Petitioner : M/s. Thomson Elastomers
reptd. by Managing partner
Arun Thomas,
A-125, Poovanthuruthu Industrial Estate,
Kottayam residing at
Thypparambil House,
Velloothuruthy, Kottayam.
(By Adv. Girish K. Raj)
Vs.
Opposite party : United India Insurance Co. Ltd.,
reptd. by its Branch Manager,
Branch Office,
Parekulam Buildings,
Near Collectorate,
Kottayam.
(By Adv. Satheesh Mathew Zacharias)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 2..4..2009 is as follows.
Petitioner is the Managing Partner of the firm named “M/s. Thomson Elastomers” . The firm is manufacturing Foam Beds. Petitioner conducted above said business as livelihood of its partners as self employment. Petitioner availed an insurance policy from opposite party. The total sum assured under risk cover is for Rs. 17,87,000/- under various heads. On 8..3..2009 fire broke out in the insured premises and destroyed finished goods, semi finished articles, raw materials and machineries kept inside the premises including wiring of the building. Accident was intimated to fire brigade. Fire brigade extinguished the fire. Loss assesser deputed by the opposite party visited the spot . According to the petitioner he sustained a total loss for Rs, 3,94,720/-. On 18..3..2008 petitioner submitted a claim to the opposite party. Opposite party on 5..12..2008 issued a letter to the petitioner stating that they are willing to pay an amount of Rs. 4,618/- as full and final settlement. According to
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the petitioner act of the opposite party in processing the claim for a megre amount amounts to deficiency in service. Hence this petition.
Opposite party filed version contenting that petition is not maintainable. Opposite party admitted the policy. As per the report of the police and fire brigades fire is due to over heating of drying oven and the total loss was assessed by the surveyor as Rs. 1,64,376/-. Opposite party denied the averment about submission of claim form on 18..3..2008. According to the opposite party claim form reached to the opposite party only on 9..7..2008. On 5..12..2008 itself opposite party offered Rs. 4618/-. On 6..2..2009 opposite party received a lawyers notice and reply was issued on 20..7..2009. According to the opposite party the loss assessed by the surveyor is legal and proper. As per report petitioner is only entitled for Rs. 4618/-. Opposite party further contented that since the petitioner is conducting a commercial establishment petition is to be dismissed as not maintainable.
Points for determinations are:
i) Whether the petition is maintainable or not?
ii) Whether there is deficiency in service on the part of the opposite party?
iii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A11 documents on the side of the petitioner and Ext. B1 to B8 documents on the side of the opposite party.
Point No. 1
According to the opposite party since the petitioner is conducting a commercial establishment this petition is not maintainable. Admittedly present dispute between the petitioner and the opposite party is with regard to the quantum of amount to be indemnified for the loss sustained to the petitioner as damages due to
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fire with regard to the insurance service availed by the opposite party. Since the service availed by the petitioner has no direct nexus with the commercial activity conducted by the petitioner, petitioner is a consumer and dispute is a consumer dispute So, point No. 1 is found accordingly.
Point No. 2
Admittedly there is a valid insurance policy at the material time of accident. Dispute is only with regard to the quantum of damages entitled to the petitioner. According to the petitioner he is entitled for an amount of Rs. 3,94,720/-. The description of the claim of the petitioner is as follows:
a) Claim with regard to the loss of building Rs. 16,000/-
b) Loss sustained to the plant, machinery and accessories of Rs. 1,66,500/-
c) Stock of raw material finished and semi finished goods 2,12,220/-
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Total claim is Rs. 3,94,720
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According to opposite party surveyor appointed by the opposite party find an under insurance with regard to the valuation of the machinery the actual loss assessed for the machinery deducting under insurance is Rs. 3825.81. Loss of stock Rs. 10,800/- loss of stock under drying process is Rs. 1,48,176/ -.
According to the opposite party as per policy exclusion since the damage is due to over heating. Petitioner is entitled for Rs. 4,618/- in toto. Survey report produced is marked as Ext. B5. In Ext. B5 the surveyor assessed the loss of stock under drying process as Rs. 1,48,176/-. The loss of chemical assessed as 10,800/-. The loss sustained to the machinery is assessed as 5,400/- So, from Ext. B5 it can be
seen that total loss assessed by the surveyor is Rs. 1,64,376/-. Since distruction is due to heating and drying process admissible loss is calculated as Rs. 16,200/-. Since
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the machinery is under insured petitioner is only entitled for 3825/-. While deducting the policy excess the net liability of opposite party is for Rs. 4,625.81.
In our view even though there is mentioning of cause of fire as over heating in Ext. B2 report of fire brigade and Ext. B5 survey report. No evidence is adduced by the opposite party to prove that there is over heating. Further more in the reverse side of Ext. B2 it is stated that reason stated for cause of fire can only be concluded after further enquiry. In Ext. B5 also the surveyor has not stated how he came to the conclusion that cause of fire is due to over heating. In Ext. B5 survey report it is stated that machinery is of a value 10,40,250/- and the petitioner had insurered the machinery for Rs. 7,37,000/- . In our view there is no evidence to prove that the value of the machinery as stated by the surveyor is true and correct. Without saying definitely the materials building and machinery sustained damages due to sudden occurrence of fire. In Ext. B2 the fire brigade assessed the damage in the tune of Rs. 4,00,000/-. We are of the view that an amount of Rs. 1,64,376/- is the sum assessed by the surveyor as damages sustained to the petitioner. Admittedly on the date of accident itself surveyor visited the insured premises. But claim is only processed on 5..12..2008. As per regulation 9 of IRDA (Protection of policy holders interest) Regulation 2002. On receipt of notice of loss the insurer shall respond and give due clear indication to the insured about procedures to the followed and a surveyor is to be appointed within 72 hours of receipt of intimation from the insured. The surveyor shall submit his findings to the insurer within 30 days of appointment, with a copy of the report furnished to the insured. As per Regulation 9 (3) on receipt of a survey report insurer shall process the claim within 30 days. If the procedure as stated above is not followed as per Regulation 9 (6) the insurer shall be liable to pay interest at a rate which is 2% above bank rate prevalent at the beginning of financial year. Point No. 2 is find accordingly.
Point No. 3
In view of the finding in point No. 1 and 2. Petition is allowed in part. Opposite party is ordered to pay petitioner an amount of Rs. 1,64,376.00 with 12% interest from 5..12..2008 till realization. Since interest is allowed no compensation is ordered. Opposite party is ordered to pay an amount of Rs. 2,000/- as litigation costs.
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Order shall be complied with within one month of the receipt of the copy of this order.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 29th day of February, 2012.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
Documents for the petitioner
Ext. A1: Policy with condition.
Ext. A2: Copy of fire report
Ext. A3: Copy of GD entry dtd: 9..3..2008
Ext. A4: Copy of claim form
Ext. A5: Copy of lawyers notice
Ext. A6: Copy of reply notice
Ext. A7: Copy of receipt Dtd: 9..10..2009
Ext. A8: Copy of tax invoice Dtd: 20..2..2008
Ext. A9: Copy of voucher issued by sigma electrical.
Ext. A10: Copy of stock register.
Ext. A11: Copy of tax invoice issued by associated chemicals Dtd: 11..1..2008
Documents for the opposite party
Ext. B1: Copy of policy with condition
Ext. B2: Copy of fire report
Ext. B3: Copy of GD entry
Ext. B4: Original claim form
Ext. A5: Survey report
Ext. B6: Letter Dtd: 5..12..2008
Ext. B7: Copy of letter Dtd: 17..12..2007 issued by United India Insurance
Company
Ext. B8: Reply notice.
By Order,
Senior Superintendent.
