ADV. RAVI SUSHA, MEMBER. This is a complaint for getting compensation of Rs.4,89,200/- and costs. Etc. The averments in the complaint can be briefly summarized as follows: The complainant is running a business institution at Kallumthazham, Kollam an SSI unit registered under the District Industrial Centre, Kollam by the name and style as Priya Cashew Traders. The factory including machinery and the cashew kernels that may be produced in it are insured for a total amount of Rs. 10,00,000/- with the opp.party vide policy No.100705/11/06/00001271. The period of policy starts from 20.10.2006 to 19.10.2007. On 30.11.2006 at about 10 a.m. some local persons gathered with deadly weapons trespassed in the factory and committed mischief inside the factory premises. The committed loss to the frying machine, cutting machine frying sheet, water tanks, Aluminum tray, Plastic tray, Cashew nuts in the form of raw and kernels kept in the borma to the tune of Rs.5,41,200/- Out of the said total loss of Rs.5,41,200/- , Rs.2,00,000/- being the loss sustained to the machinery and Rs.3,41,200/- being the loss to the cashew kernels of different size. The kilikollur Police registered a criminal case as Crime No.556/200 against the said persons. The complainant instituted a civil case against the culprits as OS.No.868/2006 before the Munsiff’s Court, Kollam. The opp.party and the police directly noticed the loss in the factory and the company was made arrangements to pay compensation to the complainant. So the Insurance company issued only a cheque of Rs.52,000/- towards compensation to the loss sustained to the complainant. The policy has coverage over Rs.10,00,000/- The complainant is entitled to get the balance Rs.4,89,200/- . Hence the complaint. The opp.party filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The opp.party issued a Standard Fire and Special Perils Insurance Policy bearing policy No.100705/11/06/11/00001271 in favour of the complainant for a period of one years starts from 20.10.2006 to 19.10.2007. The coverage under the policy is based on the contract between the insurer and the insured subject to the General exclusions and condition s of the policy According to the General conditions of the policy, condition No.1 shows that, the policy shall be voidable in the event of mis-representation, mis-description of non disclosure of any material particular. Condition No.6[1] clauses [a] [b] and their explanations shows the duties lies up on the insured on the happening of any loss or damage in this regard. It is mandatory on the part of the insured to give notice forthwith thereof to the company and shall within 15 days after the loss or damage, or such further time as the company may in writing allow in that behalf deliver to the company. The complainant shall also at all times at his own expense produce, procure and give to the company all such further particulars plans, specification books, vouchers, invoices, duplicates or copies thereof, documents investigation reports proof and information with respect to the claim and the original and cause of the loss and circumstances under which the loss or damage occurred and any matter touching the liability or amount of liability of the company as may be reasonably required by or on behalf of the company together with a declaration on oath or in other legal form of the truth of the claim and any matter as connected therewith. No claim under this policy shall be payable unless the terms of the conditions have been complied with. The alleged trespass of the rioting mob to the complainant’s company the mischief done there on 30.11.2006. The opp.party got information about the alleged incident only on 5.12.2006. So on 5.12.2006 the opp.party issued the relevant claim form to the complainant with proper direction to submit the full details of the alleged loss to the complainant. The complainant lodged the FIR only on 11.12.2006 at 17.30 hours. The complainant submitted the claim form only on 19.12.2006. At the time of submitting the claim application the complainant did not claim any amount in particular for the damage to the machineries as stated in the complaint. The claim form submitted by the complainant shows that the item of policy affect is stock only and nothing else and the extent of loss is Rs.541200/- on account of the loss of cashew kernels kept in the premises. He did not claim any amount on account of the alleged loss happened to the machinery. Therefore the averment that the complaint suffered a loss to the tune of Rs.3,41,200/- on account of damage to the cashew kernels on different sizes kept in the premises and another loss happened to the tune of Rs,2,00,000/- for the damage happened to the machineries including the motor of the frying machine etc. re absolute false hood. The complainant produced the FIR No.556/2006 before the Kilikollur Police Station, a cutting of Malayala Manorama daily dated 1.12.2006 and some unauthenticated purchase and sales bills, countersigned by a chartered accountant only. The surveyor after thorough investigation observed that the insured complainant was not keeping proper books of account, day book, purchase or sale register, stock book maintained, audited balance sheet, copy of sales bills, work in progress report, legal registration etc but he claimed a total loss to the extent of Rs.5,41,200/- Based on the stock seen in the business premises, available records and the stock declared by the insured as on 30.11.2006 the surveyor assessed the actual loss as Rs.77,725/- The opp.party ready to produce the surveyor’s report and fire claim note by this opp.party before this Forum. The complainant could not produce all relevant papers connected with the stock as on the date of incident, and as such the opp.party deducted 20% out of the amount assessed by the surveyor and settled the claim fur Rs.52,000/- which is genuine and reasonable. Hence the opp.party prays to dismiss the complaint. Points that would 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 is examined. Ext. P1 to P5 are marked. For the opp.party DW1 and 2 are examined. Ext. D1 to D6 are marked. POINTS: There is no dispute that the complainant has taken a standard Fire and Special Perils Insurance Policy bearing Policy No.100705/11/06/11/00001271 from the opp.party and the policy was in effect during the fire incident date. According to opp.party the coverage under the policy is based on the contract between the insurer and the insured subject to the General exclusions and conditions of the policy. The complainant submitted the claim form after 14 days from the date of incident ie. On 19.12.2006. Any way on receiving the claim application on 19.12.2006, the opp.party deputed a qualified surveyor to determine the actual loss happened in the complainant’s factory. The act of appointment of surveyor shows that the opp.party was ready to give the actual compensation to the complainant. As per Ext. D1the description of risk covered are stock of Raw cashews Kernels, stock in process and finished good. According to DW.2, he has prepared Ext. D3 survey report based on the stock seen in the business premises, available records and the stock declared by the insured as on 30.11.2006. The surveyor assessed the actual loss as Rs.77,725/-. Surveyor stated that the complainant was not keeping proper books of account, day book, purchase or sale register, stock book audited balance sheet, copy of sales bills, working progress report, legal register etc. For proving the details regarding sales and purchase, the complainant produced Ext.P5 document. Marking of that document was objected by the opp.party as it is not an authenticated document. Then Ext.P5 was marked subject to admissibility. But the complainant did not try to prove the authenticity of Ext.P5. Hence Ext.P5 cannot be taken into account. Opp.party examined the surveyor as DW.2 and marked the survey report as Ext. D3. Survey report itself is an evidence in the absence of overwhelming evidence to contrary. Here the complainant failed to prove higher loss suffered by him. Hence from the available evidence we are of the view that the complainant is entitled to get Rs.52,000/- fie. Deducted 20% out of the amount assured by the surveyor and Rs.10,000/- deducted as policy excess. In the result, the complaint is allowed in part and opp.parties are directed to pay Rs.52,000/- to the complainant with 9% interest from 8.1.2007 ie the survey report till the date of payment. No compensation and cost ordered. The order is to be complied with within one month from the date of receipt of this order. Dated this the 30th day of November, 2009. . I N D E X List of witnesses for the complainant PW.1. – A. Thulaseedharan Nair List of documents for the complainant P1. – Policy certificate P2. – Claim forum P3. – Copy of FIR P4. – Letter from SBT., Kollam, Main Branch dt. 13.6.07 P5. – Details of the sales and Purchase and Stock List of witnesses for the opp.party DW.1. – T. Leela DW.2. – Sunil Radhakrishnan List of documents for the opp.party D1. – Original policy issued to the complainant dated 20.10.2006 D2. –Claim form D3Survey report D4. – FIR D5. – Fire Claim note D6. – Copy of application. |
