ADV. RAVI SUSHA, MEMBER.

            This complaint is filed by the complainant for getting  to pay Rs.18,70,000/-  compensation Rs.25,000/- and cost Rs.5,000/- to the opp.party

          The averments in the complaint can be briefly summarized as follows:

          The complainant is conducting business in marine spare parts and marine goods like plastic twine, ropes, plastic floats, plastic basket, plastic crates, plastic needle, plastic sheet etc for the 10 years.   The goods of the complainant are insured with the opp.party and hence the complainant is the consumer of the opp.party.  On 13.5.2004 at about 2 am, the complainant’s shop got fire due to electric circuit therby  90% of the goods stored and 50% of the shop building were charred.  On the date of the accident, the complainant was stocking goods worth Rs.24,99,552/-

          On the date of the accident the stock and the shop was insured with the opp.party under the standard fire and perils policy for Rs.25 lakhs vide policy No.1541 which was valid from 2.12.2003 to 1.12.2004.  After the fire accident, the complainant submitted a claim form to the opp.party claiming compensation for the losses sustained.   Along with the claim form, the complainant had submitted the bank statement for the previous 12 months, audited balance sheet for the previous 2 consecutive years, fire report GD entry of Police, copy of license etc.   The opp.party appointed PTR Babu as the 1^st surveyor who assessed the loss sustained by the complainant.   Subsequently, A.V.Varghese, another surveyor,l appointed by the opp.party demanded the complainant to produce the copies of purchase bills, stock register etc.   The complainant submitted that the majority of the purchase bills were destroyed in the fire and hence they cannot be produced.   To prove the stock, the complainant obtained the monthly statement from the bank and handed over the same to the surveyor.   After the lapse of a week the surveyor inspected the premises and prepared a Mahazer, without making a detailed examination of the destroyed and charred goods relating to a small quantity of goods.   Even though the complainant had pointed out the goods damaged due to the fire accident, the surveyor ignored to consider the same.   The surveyor had unilaterally assessed the loss at Rs.2,03,550/-  In fact the total damage caused to the complainant is Rs.24,99,552/-   The surveyor had deliberately ignored to assess the actuallloss and quantified the same at Rs.2,03,550/- only with the malafide intention to help the opp.party.  Hence filed this complaint for getting relief as prayed for

          The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts.   The definition complaint, complainant, consumer dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim madeout in the complaint. 

          It is admitted that this opp.party had issued a standard fire and special peril policy for a sum insured of Rs.25,00,000/- to the complainant for his shop premises engaged in the sale o marine spare parts, hardwares and fishing nets etc. under the name and style M/s. Indus Marine Agencies.   The complainant on 13.5.2004 has reported a claim before this opp.party stating  that  the insured shop caught fire on the very same day at around 2 A.M. and the stocks kept in the hop room were destroyed.   The opp.party immediately issued a claim form to the complainant with a request to resubmit the same after duly filled and signed along with the estimate of loss.    The opp.party thereafter deputed a licensed surveyor and loss assessor Mr. P.T.R. Babu for conducting preliminary survey on the claim reported by the complainant.   The surveyor conducted the preliminary survey of the shop premises on 13.5.2004 at about 2 p.m. in the presence of  the complainant   The surveyor thereafter submitted the preliminary survey report before this opp.party.  The opp.party deputed a licensed and competent insurance surveyor  CDR A.V.V Varghese has visited the shop premises on 14.5.2004 and verified the damaged items in detail and took photographs of the inside shop premises and of the damaged items found in the shop room.  The allegation made in the complaint contrary to the above that almost all stocks were destroyed is unfound to reality and hence denied.    The Surveyor CDR Varghese at the time of his 1^st visit itself convince the fact that the value of stocks claimed by the complainant at the time of incident is incorrect and the maximum stock in the shop premises at the time of fire mishap was not more than Rs.10,00,000/-  The complainant was not keeping any stock register and purchase bills in order to substantiate the quantity of stocks kept in the lshop premises at the time of loss and he failed to produce any of those documents before the surveyor during the time of inspection.  The period stock statement submitted by the complainant with Canara Bank, Kollam is only a stereo type statement so as to cover up the loan amount availed by him from the Bank   The said statement has got no legal sanctity or authenticity and lacking any factual bearings as to the actual stocks kept by the complainant in the shop premises at the time of loss.  The surveyor Mr. Varghese during the course of his inspection found that main items stored in the shop was Nylon nets and the total quantity of the same is access to be less than 1200 Kg. approximately worth Rs.2.25 lakhs.  The claim made in the complaint labour the cost of Nylon nets kept in the shop premises is unfounded to reality and totally baseless.  The claim of the complainant that the plastic items including a large quantity of HDP fishing net got burned and rendered to ashes is absolute false and hence denied.   The surveyor sought expert opinion from the Professor and head of the department of Polymer Science and Rubber Technology of Cochin University, Dr. Rani Joseph in the subject matter and ruled out the possibility of the claim preferred by the complainant that a large quantity of HDP fishing net got burned and rendered to ashes.  It is significant to know that the fire was put off within one hour due to the timely action of the fire force authorities and there is no possibility of complete burning of fishing nets and it rendered to ashes. The surveyor deputed by this opp.party after complying all the requirements for assessment of loss under the policy conditions has assessed the net loss to a sum of Rs.2,14,263.65 after deducting salvage value Rs.3,000/-  The allegations made in 7^th para of the complaint that the surveyor hyas assessed the loss to the tune of Rs.5,00,000/- is totally baseless and false.  The opp.party on the basis of the policy condition has deducted the compulsory policy excess Rs.10.713/- from the net assessment made by the surveyor and accordingly settle the claim payable to the complainant to a sum  of Rs.2,03,580/-  The opp.party thereafter sent a discharge voucher to the complainant for effecting settlement of the claim.  But the complainant refused to sign the discharge voucher land receive the cheque from the opp.party raising untenable contentions.    The complainant instead of settling the claim had issued a legal notice to the opp.party for which proper  reply was given by the opp.party through its counsel    The quantum of loss sustained to the complainant was properly assessed by a competent and qualified insurance surveyor and loss assessor as per the statutory provisions of the Insurance Act and the complainant has no mass of cause of action to dispute the quantum of loss assessed by the surveyor under the provisions of the CP.Act.  Hence the opp.party prays to dismiss the complaint.

          Based on the contentions the following points arise for consideration are:

1.     Whether  there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1, PW.2, and PW.3 are examined.   Exts.P1 to P12 are marked

For the opp.parties DW.1 and DW.2 are examined.   Exts. D1 to D9 are marked.

Point 1 and 2

          It is not disputed that the complainant has taken Ext.P2 policy and that the policy was subsisting when the complainant’s shop got fire.   The complainant submitted Ext.P3 claim form[claiming Rs.24,99,552/- or the actual loss  sustained to the complainant.  The opp.party on the basis of Ext. D1 survey report was  ready to pay Rs.2,03,550/- as the actual loss happened to the complainant.   Against which the complinant filed this complaint.  Now the question is whether the complainant is entitled to get claim as prayed in the complaint.   Complainant is relaying Ext.P1 monthly statement regarding the stocks.  In order to prove Ext.P1  the complainant has examined PW.2.  But in cross examination he deposed that cA.if\fjrk\ akRek\ stock register  sr dkyjv\vk\ trj]\ Srgj}yjujh\h.  Fire incident  dqjB\B\  Qgk iG,A dqjB\Bln\ TO >lb\djH charge tmkf\ffk\ stock statement     sRy cfUlic\F cld\,Ue\semkf\fkr\rfjrk\ Stsfb\djhkA competent authority stock assess   svu\fj}kn\Sml ?  svu\fj}jh\h.  PW.2 also admitted that in order to sanction  a loan  facility of Rs.15,00,000/-  sale tax registration is mandatory.  Complainant Cdid not produce any stock register.  Hence  purchase bills in order to prove Ext.P1 the complainant is failed to prove that he was having stock mentioned Ext.P1 at the fire incident time.

In order to assess the actual loss sustained to the complainant, the opp.party immediately on the receipts of the claim intimation deputed DW.2 for conducting a preliminary survey.   According to the opp.party preliminary survey is meant only for ascertaining the factual position of the occurrence and to collect the primary evidence including the photographs of the occurrence before the intervention of any external agency.   After DW.1’s report Ext. D8 the opp.party appointed DW.1 for conducting a detailed survey about the extent of loss sustained to the complainant.   According to the complainant the appointment of a second surveyor is illegal.    For that the opp.party’s counsel argued that DW.2 was appointed in order to conduct the spot survey of the shop premises alone.  On verying Ext.P8 it is seen that the insured was intended to keep the shop “as it is “ still conducting the final survey and  inP8 .  DW.2  did not mentioned about the extent of loss.  He has  noticed only  about the damages.  So it cannot be said that opp.party deposited  two different surveyors one after another for the assessment of loss of the incident.   The allegation of the complainant is that the entire stock kept in the shop were destroyed due to the fire incident.   The apex court held that the claim payable under an insurance contract has to be necessarily assessed by a licensed surveyor and loss assessor.  On careful scrutiny of the photographs taken by the surveyors DW.1 and DW.2 and Ext. D1  and D8 it is very  much clear that, the racks, office table and other furniture’s kept inside the shop premises are free from any Fire damages except  some minor damages of the building.   The surveyor on his physical verification found that the maximum stock at the fire incident time was not more than Rs.10,00,000/-  The surveyor issued letter to the complainant [Ext.D6] to produce the stock register, sales tax return for the last 12 months, audited balance sheet for the last 2 consecutive years etc. for finalization of the survey report.  But the complainant has not responded to the same.

          By considering the entire evidence we are of the view that there is lno authentic documents or evidence adduced by the complainant to discared the authenticity of Ext.D1 survey report.  Hence the complainant is entitled to get only Rs.2,03,580/- assessed by DW.2 as the  extend loss sustained to the complainant.   As the opp.party has already offered the said amount to the complainant.   There is no deficiency in service on the part of the opp.party

          In the result the complaint fails and the same is hereby dismissed without cost of the opp.party.

          Dated this the  30^th      day of March, 2009.

                                                                                    .

I n d e x

List of witnesses for the complainant

PW.1. – Luke Sebastian

PW.2. – Cristaphar Antony

PW.3. – Ramakrishna Pillai

List of documents for the complainant

P1. – Records relating to OD amount

P2. – Policy photocopy

P3. – Claim form

P4. – GD extract

P5. – Licensure for the shop issued by corpn.

P6. – Reply letter

P8. – Photographs with negative

P9. – Advocate notice, postal receipt and A/c.

P10. – Articles purchased

P11. – Fire report

P12. – Balance sheet

List of witnesses for the opp.parties

DW.1. – K.V. Varghese

DW.2. – PTR Babu

List of documents for the opp.parties

D1. – Survey report

D2. -  Letter dt. 20.5.2004

D3. – Letter dt.20..5..2004

D4. – Expert opinion

D5. – Joint inspection certificate

D6. – Letter dt. 17.5.2004

D7. – Fire report

D8. -  Preliminary survey report

D9. - Statement