DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 29th day of September 2011
Present : Smt. Preetha G Nair, Member
: Smt.Bhanumathi.A.K. Member Date of filing: 07/11/2003
(C.C.No.176/2003)
P.Rajasekharan,
S/o.E.K.Menon,
Managing Partner,
M/s.Krishna Medicals,
4/166, Court Road,
Palakkad. - Complainant
(By Adv.P.Vatsala)
V/s
The Divisional Manager,
New India Assurance Co.Ltd.,
Palakkad Division Office,
P.B.No.43, PDC Bank Building,
HPO Road, Sulthanpet,
Palakkad. - Opposite party
(By Adv.P.R.Hariharan)
O R D E R
By Smt.PREETHA G NAIR, MEMBER
The Complainant’s case in brief is as follows.
The complainant is a stockist and retail seller of allopathy medicines, surgical items, oxygen cylinders etc. In order to ensure the safety and cover the risks of his business the complainant availed a fire insurance claim policy for Rs.21 lakhs from the opposite party. The above policy was taken by the complainant for the purpose of covering the entire risks of his business. In the early morning hours of 19/2/2003 at about 2 A.M. a fire broke out in an adjacent shop room and spread complainant’s premises resulting in loss of articles valued at Rs.6,12,306.59. In addition to this theft had also occurred in the complainant’s premises. In connection with the above occurrence a crime was registered by the Town South Police, Palakkad as Crime No.54/2003 and an intimation regarding the above occurrence was also served on the opposite party immediately. But the complainant was served with a notice from the side of the opposite party stating that his claim had been allowed to the tune of Rs.40,600/- only which is no way compensate the loss sustained by the complainant. On receipt of the notice from the opposite party complainant caused to send a lawyer notice to opposite party calling upon him to pay a sum of Rs.6,12,306.59 being loss sustained along with interest due thereon. On receipt of the notice from the opposite party has caused to send a reply notice on 22/9/2003 raising the false and untenable contentions. The complainant had furnished of all relevant documents to the opposite party. No report of inventory had been prepared by any surveyor in the presence of the complainant and no notice served on the complainant regarding the surveyor’s visit. The complainant prays to direct opposite party to pay the complainant a sum of Rs.6,12,306.59 alongwith interest @12% from 19/2/2003 till date of payment and pay a sum of Rs.10,000/- as compensation for the mental agony suffered by the complainant on account of deficiency in service from the side of the opposite party and the costs of this proceedings.
The opposite party entered appearance and filed version contending the followings. The opposite party admitted that the complainant had taken a fire insurance policy to the tune of Rs.21 lakhs. The opposite party has offered to compensate the complainant on the loss sustained to his stocks based on the actual inventories taken the amount which was offered the compensation was arrived after a thorough investigation by the IRDA surveyor, who had submitted his report. The so called fire damages has occurred in the middle room and inventory was prepared by surveyor and the list has been signed on every page and a copy given to the complainant. The entire inventory was prepared in the presence of the employee of the complainant and a copy was given to him. The opposite party has offered a fair and true compensation to the loss suffered by the complainant based on Surveyor report and moreover, there is no deficiency of service on the part of the opposite party. Hence the opposite party prays for dismissal of the complaint.
Complainant filed proof affidavit along with documents, Ext.A1 to Ext.A4 marked on the side of the complainant. Opposite party filed affidavit and marked Ext.B1 on their side.
The first issue considered was whether the complaint is maintainable or not. Then the Forum has dismissed the complaint on ground that the complainant had availed services of the opposite party for commercial purposes. The complainant filed appeal before the Hon’ble State Commission. The Hon’ble State Commission set aside the order of the Forum and directed to consider the case of the complainant with respect to the enhanced insurance claim and dispose of the matter on merits, after permitting both sides to adduce evidence.
Complainant and opposite party filed additional affidavit and documents. Ext.A1 to A7 marked on the side of the complainant. Ext.B1 to B3 marked on the side of the opposite party. Witness Sreekumar was examined as PW1 on the side of the complainant and witness Varunny (IRDA Surveyor) was examined as DW1 on the side of opposite party. Both parties filed argument notes.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost entitled to the complainant ?
Issue 1 & 2
Admittedly the fire broke out and the complainant’s medical shop was gutted. In Ext.A4 the copy of the FIR in Crime No.54/2003 registered by Town South Police Station on the basis of the fire accident. The oral testimony of PW1 and Ext.A5 shows that the complainant was not present at the time of fire accident. The complainant was in Gulf from 15th February 2003 to 26th February 2003. The witness Varunny (IRDA Surveyor) deposed that 19/2\v inventory FSp¯n«nÃ. 20/2\v XpS§n. 21/02\v inventory FSp¯p. 16/05\v hniZambn«pÅ inventory report X¿mdm¡n. Further the witness deposed that the complainant has signed in Ext.B3 after preparation of the list. In Ext.B1 the Surveyor stated in page 2 Paragraph 13, the cause of accident “The fire originated from the adjacent shop, M/s.K.K.S. Foot wears on the northern side spread to the insured premises. This shop was inspected by us. Almost all the contents have been damaged. The fire appears to have been initiated from the shop rear side room, presumably due to an electrical shot circuit.” In Ext.A3 the Drug Inspector stated that the entire stock of drugs stored in the II & III room are not fit for their use. No contradictory evidence was produced by the opposite party. Moreover in Ext.B1 page 3 the surveyor stated that in the rear side room no medicines have been stored. The complainant stated that DW1, the Surveyor has conveniently omitted to mention about the stocks other than medicines which were found in the premises. In Page 4 para I of Ext.B1 the surveyor has reported that “the wooden ceiling of the middle room was also found badly burnt. The medicines and equipments stored in this room has been exposed to the fire and has been subjected to high temperature, and has become totally useless. These medicines and equipments were also found very badly wet due to the water jet forced by the Fire Tenders. The rear side room ceiling was also found badly burnt.” The surveyor admitted that during the inspection the Drug Inspector also arrived at the scene. In Ext.A1 series and Ext.A2 shows stock statements in the shop. No contradictory evidence was produced by the opposite party. In Page 5 of Ext.B1 the surveyor reported that as per the computerized account the stock on 18/2/2003 was found to be Rs.13,73,423.19. In Ext.A1 series the Grand total is Rs.13,73,423.19. Normally after the fire accident the stocks of the medicines were completely became useless. In the present case the Drug Inspector reported that the stocks of II & III rooms are not fit for use. In page 4 of Ext.B1 the Surveyor reported that the cost at MRP rate works out to Rs.57,033.17. Further reported that in annexure II the details of the items for which the expiry date already over. The complainant stated that as a result of the fire fighting operations the entire stock of medicines and other allied articles valuing at Rs.6,12,306.59 stored in the premises were totally damaged. The complainant has not produced the detailed list of loss. The opposite party argued that no evidence is produced by the complainant to prove that how arrived at a figure of Rs.6,12,306.59. It is crystal clear that stock of medicines and other allied articles were totally damaged after the fire accident.
In Ext.A1 series shows that the stock statements dated 21/2/2003 and the grand total is Rs.13,73,423.19. The Surveyor and the Drug Inspector reported that the stock totally useless and unfit for human consumption. The Surveyor and the Drug Inspector arrived at the scene. The Surveyor reported that the shop has been insured for the last 10 years and so far it is reported that there was no claim. Further Surveyor reported that the roof of the building has been almost totally burnt and has to be completely replaced. Both of them were not given clear damaged stocks in the shop. At the time of fire accident the complainant was not present. It is evident from Ext.A5 that the complainant was not present at the time of fire accident. In Ext.B3 the complainant signed on all pages. The surveyor in Ext.B2 reported that the list of the damaged items prepared at site on 16/5/2003 in the presence of the insured. The fire accident was happened on 19/2/2003. Therefore the surveyor prepared the damaged items after 2 months. In the nature and circumstances of the fire accident, the stocks were completely destroyed. In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result the complaint allowed. We find that it would be reasonable to direct the opposite party to pay only 75% of the claim amount to the complainant. i.e. 75% of Rs.6,12,306.59 is Rs.4,59,229.94. We direct the opposite party to pay Rs.4,59,229.94 with 12% interest per annum from the date of fire accident i.e. 19/2/2003 to the date of order and to pay Rs.1,000/- as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 29th day of September 2011.
Sd/-
Smt.Preetha G Nair
Member
Sd/-
Smt. Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 series – Stock statement as on 21/2/2003
Ext.A2 – Stock statement given to Canara Bank
Ext.A3 – Drug Inspector’s Report
Ext.A4 – Copy of FIR
Ext.A5 – Attested copy of PassPort of Managing Partner of opposite party
Ext.A6 series – Copy of lawyer notice sent by the complainant to opposite party
dated 18/8/03 alongwith postal receipts and acknowledgement
card
Ext.A7 – Reply to lawyer notice dated 22/9/03
Ext.A8 – Attested copy of partnership deed
Exhibits marked on the side of the opposite parties
Ext.B1 – Original Surveyor Report.
Ext.B2 – Letter sent by Varunny, Surveyor to M/s.New India Insurance Co.Ltd.
Palakkad dated 9/3/04
Ext.B3 – Original inventory of damaged items prepared by Insurance Surveyor
Witness examined on the side of the complainant
PW1 – Sreekumar
Witness examined on the side of the opposite party
DW1 – K.U.Varunni
Cost Allowed
Rs.1,000/- allowed as cost of the proceedings
