BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 25th day of March, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.99/2008

Between

Complainant : K.M.Mathew,

Kunnamkuzhackal House,

Kolani P.O,

Thoduopuzha,

Idukki District.

(By Adv: T.J.Augustine)

And

Opposite Party : The Branch Manager,

New India Assurance Company Limited, Kattappana Branch,

Kattappana P.O,

Idukki District.

(By Adv: K.Pradeepkumar)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant is the owner of a Weigh Bridge near Thodupuzha-Muvattupuzha road and it was duly insured with the opposite party as Policy No. 761503/11/07/11/00000035 for the period 24.04.2007 to 24.04.2008. The coverage was for "Damage caused to the Weigh Bridge in I.Fire, II. Lightning, III. Explosion/Implosion, IV. Aircraft damage, V. Riot, Strike and Malicious Damage, VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation, VII. Impact damage, VIII. Subsidence and Landslide including rock Slide, IX. Busting and/or overflowing of water tanks, Apparatus and Pipes, X. Missile testing operations, XI. Leakage from Automatic Sprinkler Installations and XII. Bush fire". Due to lightning on 9.09.2007 serious damages were caused to the weigh bridge. The matter was informed to opposite party, a surveyor was posted by the opposite party for assessing the loss incurred and a report was given by the Surveyor. But no reply was received from the opposite party even the claim form was given. The complainant himself repaired the weigh bridge by paying an amount of Rs.42,375/- and the bill of the same was given to the opposite party. The opposite party requested for an estimate from Avery India Limited or any other authorized service station, but the complainant already repaired the same. So the opposite party agreed to disburse the claim. After that the opposite party repudiated the claim without any reason. So the petition is filed.

2. The opposite party filed written version and admitted that the policy and premium. It is true that the complainant intimated the non-functioning of the machine to the opposite party. On 10.09.2007 itself the opposite party deputed S.P.Engineers & surveyors to assess the cause of damage and loss. On the same day itself surveyors visited the weigh bridge and assessed the loss and cause of damages. In answer to the question nature and cause of loss in Column six of Ext.R1, complainant has stated as follows " load cell and indicator board of weigh bridge were seen not working". The complainant had no case that the damages due to lightning or any other insured peril. The surveyors submitted an enquiry report on 19.11.2007. As per the report of the surveyor the damages was not due to any of the insured perils. As exclusion clause No.7 in the contract of insurance, "Loss, destruction or damage to any electrical machine, electronic equipments, apparatus, fixtures or fittings arising from occasioned by over-running, excessive pressure, short circuiting, arcing, self heating or leakage of electricity from whatever cause(lightning included) provided that this exclusion shall apply only to the particular electrical machine, apparatus fixture or fitting so affected and not to other machine, apparatus, fixtures or fittings which may be destroyed or damaged by fire so set up". Since no break down policy was issued, the opposite party is not liable to indemnify the insured.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P11 marked on the side of the complainant and the oral testimony of DWs 1 and 2 and Exts.R1 to R5 marked on the side of the opposite parties.

5. The POINT :- The complainant is the owner of a weigh bridge which is duly insured with the opposite party; was damaged due to lightning. But the opposite party repudiated the claim by disputing the reason for damage. The complainant was examined as PW1. The weigh bridge was insured as policy No.761503/11/07/11/00000035 for the period 24.04.2007 to 23.04.2008 for Rs.50,000/-. The premium was Rs.1,094/- paid by the complainant. The insurance coverage was for the following damages."Damage caused to the Weigh Bridge in I. Fire, II. Lightning, III. Explosion/Implosion, IV. Aircraft damage, V. Riot, Strike and Malicious Damage, VI. Storm, Cyclone, Typhoon, Tempest, Hurricane, Tornado, Flood and Inundation, VII. Impact damage, VIII. Subsidence and Landslide including rock Slide, IX. Busting and/or overflowing of water tanks, Apparatus and Pipes, X. Missile testing operations, XI. Leakage from Automatic Sprinkler Installations and XII. Bush fire". The policy is marked as Ext.P1. Lightning was occurred on 9.09.2007 and serious damages were caused to the weigh bridge. The matter was informed to the opposite party immediately. A surveyor from the opposite party inspected the premises on the very next day. No further information received from the opposite party. So after several letters and also telephone calls such as Ext.P2, P4, P5, no reply was got from the opposite party. The weigh bridge was repaired at Josco Scales, Kottayam for Rs.42,375/-. Copy of the invoice for the same is Ext.P11. But after several days, it was informed by the opposite party that the estimate from the Avery India Limited or their authorised agent should be sent to the opposite party. But the complainant sent the bills from Josco Scales, Kottayam where the same is repaired. After that no information or claim form received from the opposite party. So PW1 send a lawyer notice, Ext.P7 to the opposite party. Ext.P10 is the repudiation letter stating that the damage was caused due to leakage of electricity as per the survey report and as per exclusion of the policy clause, the leakage of electricity is not covered. The mechanic who have repaired the weigh bridge was examined as PW2. PW2 is the sole proprietor of Josco Scales, Kottayam, he himself installed the materials for the weigh bridge before one year and also repaired the same afterwards. PW2 is the licenced holder for repairing the same who was working before Avery India Limited. The damage was caused due to direct lightning. The trees situated near to weigh bridge were also dried due to the lightning. PW2 is having 27 years experience in the field. There is no authorized centre for Avery India Limited. The surveyor who inspected the premises was examined as DW1. Ext.R1 is the claim form submitted by the complainant, Exts.R3 and R4 are the Interim and final report submitted by DW1 respectively, The reason for breakdown is the leakage of electricity. It is admitted by the opposite party about the insurance policy and the damage caused to the weigh bridge. Only dispute is the reason for damage. As per the report it is stated that in the claim form produced by the PW1, the reason for damage is not mentioned only written that "not working". Insured is bound to state the cause of failure and the estimate from the authorised centre of the M/s.Avery India Limited has not produced. There is no break down policy for the machine. But no fire damages were seen in the indication and load cell of the unit. As per PW2 the expert who repaired the weigh bridge deposed that there is no authorized service centre for M/s.Avery India Limited. He was working at Avery India Limited. It was not challenged by the learned counsel for the opposite party. So it can be believed that there is no authorized service centre for the company. The company give an estimate of Rs.70,000/- for repairing but Josco Scales, Kottayam filed an estimate of Rs.40,000/- only. So PW1 preferred Josco Scales, Kottayam. There was no communication from the opposite party for the same for a long time. So it is quite natural to approach the lowest quotation issued party for repair. As per the cross examination of the DW1 by the learned counsel for the complainant, DW1 deposed in page 7 that DW1 never deposed in report that the reason for the damage caused is not due to lightning. PW2 deposed that the accident is caused due to lightning so we think it is better to come to the conclusion that the leakage of electricity may be due to lightning. So repudiating the claim is a deficiency in the part of the opposite party. So we think that the repairing charge charged in the weigh bridge can be awarded to the complainant. He assessment done by the surveyor as per Ext.R4 is Rs.39,375/- and Rs.2,000/- for installation charges. But the depreciation of 50% is calculated and less salvage value 10% is also calculated. Another less policy excess is Rs.10,000/- and the entire balance amount is Rs.67,500/-. We think that the amount is very low after depreciation etc. So we think that the depreciation of electrical parts and the less salvage value can be calculated as Rs.10,000/-. The balance Rs.31,375/- can be awarded to the complainant.

Hence the petition allowed. The opposite party is directed to pay an amount of Rs.31,375/- as the insurance amount for the damages caused to the complainant's weigh bridge and Rs.2,000/- for the cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 25th day of March, 2009.

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

SMT.SHEELA JACOB(MEMBER)

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - KM.Mathew

PW2 - E.D.Joseph

On the side of Opposite Parties :

DW1 - V.N.sivan Pillai

DW2 - Jose.F.George

Exhibits:

On the side of Complainant:

Ext.P1 - Policy Schedule

Ext.P2 - Complainant's letter dated 13.09.2007 addressed to the opposite party

Ext.P3 - AD Card

Ext.P4 - Complainant's letter dated 15.10.2007 addressed to the opposite party

Ext.P5 - Complainant's letter dated 8.12.2007 addressed to the opposite party

Ext.P6 - AD Card

Ext.P7 - Copy of lawyer notice dated 29.02.2008 issued by the advocate

of the complainant to the opposite party

Ext.P8 - AD Card

Ext.P9 - Opposite party's notice dated 17.09.2007 addressed to the complainant

Ext.P10 - Repudiation letter dated 19.03.2008 issued by the opposite party

to the complainant

Ext.P11 - True copy of retail invoice dated 14.11.2007 for Rs.42375/- issued by

DW2 to the complainant

On the side of Opposite Parties :

Ext.R1 - Fire Insurance claim form

Ext.R2 - Office copy of opposite party's letter dated 20.11.2007 addressed

to the complainant

Ext.R3 - Interim survey report dated 15.11.2007 pepared by

V.N.Sivan Pillai, Insurance surveyor

Ext.R4 - Final sruvey report dated 31.12.2007 prepared by

V.N.Sivan Pillai, Insurance surveyor

Ext.R5 - Repudiation letter dated 19.03.2008 issued by the opposite

party to the complainant.