D.O.F:13/06/2019 D.O.O:11/07/2022
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD
CC.No.110/2019
Dated this, the 11th day of July 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Ahammed Sherif, Aged 50 years,
Chairman & Managing Director Malabar
Veneers Pvt; Ltd, Kuniya : Complainant
P.O Periya, Kasaragod District – 671316
(Adv: P.Narayanan)
And
The Manager,
United India Insurance Co. ltd
Kanahangad Branch Office,
Nithyanada Building
Kanhangad, P.O Kanhangad – 671315 : Opposite Party
Kasaragod District
(Adv: C Damodaran)
-
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed for compensation on the ground of service deficiency on the part of the opposite party .The facts of the case in brief is that the complainant's plywood factory is insured with the opposite party as per Policy No.102001111 P117897158. The opposite party has received premium from complainant for insuring the articles machinery, building, plywood stocked and employees. On 19. 04.2018, the chimmini of the factory fell down due to natural calamity and there by the factory got damaged along with chimmini. The roof of the building and electrical fittings, the DD Saw repair and its meter, the plywood stored were also got damaged .The complainant could not operate the factory and he closed the same .During the closure the complainant has paid Rs.1,37, 600/- as wages to the workers. The complainant has repaired his factory by replacing the chimmini by spending Rs.7,40,450 /-, roof by spending Rs.96,000/- , electric fittings by spending Rs.18,500/-, DD Saw repair by spending Rs.22,000/-, and DD Saw motor by spending Rs Rs.38,000/-. There was a stock of plywood worth of Rs.1,60,000/- and there was core veneer worth Rs.2,10,000/- which are also damaged causing Ioss to the complainant .The total Ioss incurred by the complainant as estimated by him would by at Rs. 15, 00,000/- including Rs.2,43,000/- being the damages for the mental agony and hardships . The complainant has informed the loss to the opposite party by submitting a claim form. A Surveyor was appointed by the opposite party, who prepared a report by assessing the damages. Even though the complainant sustained a damages of Rs.15,00,000/- the opposite party has sanctioned only Rs.2,91,850/- in an arbitrary manner. The complainant is entitled to get Rs.15,00,000/- towards the loss sustained by him as per the policy conditions .The complainant issued a registered Lawyer's Notice dated 13 12.2018 for which the opposite party issued a false and frivolous Reply. Since the opposite party evaded the payment of the entire amount there is service deficiency. Hence this complaint is filed for a direction to the opposite party to pay Rs.15,00,000/- with interest towards insurance amount, Rs. 20,000/- towards damages and Rs.10,000/- towards costs.
The opposite party entered appearance through their counsel and filed written Version.
As per the written version of the opposite party the complaint is false, frivolous, vexations and as such not sustainable at law. The opposite party admitted the policy and submitted that the opposite party has allowed Rs.2,91,850 /- as per Survey Report. The claim is settled on the basis of Survey Report and the complainant had no grievance against the Survey Report till the date of Lawyer's Notice. He was free to engage a surveyor of his own choice. The instant complaint is only experimental. The claim regarding payment of Rs.1,37,600/- to the workers on account of closure of business is not payable as per the policy condition, the same being remote loss. Only direct Ioss caused and the expense incurred subject to depreciation, salvage, policy excess based on policy terms and conditions alone is payable as per survey report.
Alteration and modification is not covered as per the policy condition. Repair work of the same kind and capacity to make the machine in as is and where is condition alone is payable. For example, broken asbestos sheets are replaced by costly Tata Iron sheets. Cost of repair of DD Saw' s Electrical motor is not payable as in spite of Surveyor's specific instruction to inform him while dismantling and repairing the said machine was not complied with . The surveyor was kept in darkness as regards dismantling and repair of DD Saw electrical motor. It is the duty of the insured to extend all cooperation to the surveyor while assessing loss. The allegation that loss assessed arbitrarily is denied as false.
There is no service deficiency on the part of the Opposite Party. The claim is excessive .The complaint is liable to be dismissed with costs, as the complainant is not entitled for any relief.
The complainant filed proof affidavit in lieu of chief examination and documents
Ext. A1 to Ext. A3 and Ext. X1 Series are marked .The Ext - A1 is the copy of Lawyer's notice dated. 13.12.2018, Ext. A2 is the Postal acknowledgement card , Ext. A3 is the Reply notice sent by opposite party. Ext. X1 series are the copy of the file related to claim submitted by the complainant.
The opposite party did not adduce any oral evidence but produced certain documents and marked as Ext. B1 to Ext. B3 The document Ext B1 is the Survey Report. , Ext.B 2 is the copy of the Insurance policy Standard Fire and Special Perils policy. Ext. B 3 is the Quotation / Estimation issued by Kallingal Metal Industries.
Based on the pleadings and evidence of the rival parties in this case, the following
issues are framed for consideration.
1. Whether the complainant is entitled for any further amount towards the insurance benefit?
2. Whether there is any service deficiency on the part of any of the opposite party ?
3. If so, what is the relief?
For convenience, all these issues are considered together.
Here the specific case of the complainant is that his plywood factory is insured with the opposite party as per Policy No.1020011 11 P117897158. The opposite party has received premium from complainant for insuring the articles machinery, building, plywood stocked and employees. On 19. 04.2018, the chimmini of the factory fell down due to natural calamity and there by the factory got damaged along with chimmini. The roof of the building and electrical fittings, the DD Saw repair and its meter, the plywood stored were also got damaged .The complainant could not operate the factory and he
closed the same . During the closure the complainant has paid Rs.1,37, 600/- as wages to the workers. The complainant has repaired his factory by replacing the chimmini by spending Rs.7,40,450 /-, roof by spending Rs.96,000/- ,electric fittings by spending Rs.18,500/-, DD Saw repair by spending Rs.22,000/-, and DD Saw motor by spending Rs Rs.38,000/-. There was a stock of plywood worth of Rs.1,60,000/- and there was core venear worth Rs.2,10,000/- which are also damaged causing Ioss to the complainant .The total Ioss incurred by the complainant as estimated by him would by
at Rs. 15, 00,000/- including Rs.2,43,000/- being the damages for the mental agony and hardships . The complainant has informed the loss to the opposite party by submitting a claim form. A Surveyor was appointed by the opposite party, who prepared a report by assessing the damages. Even though the complainant sustained a damages of Rs.15,00,000/-, the opposite party has sanctioned only Rs.2,91,850/- in an arbitrary manner. The complainant is entitled to get Rs.15,00,000/- towards the loss sustained by him as per the policy conditions.
The opposite party’s argument is that they have allowed Rs.2,91,850 /- as per Survey Report. The claim is settled on the basis of Survey Report and the complainant had no grievance against the Survey Report till the date of Lawyer's Notice. He was free to engage a surveyor of his own choice. The instant complaint is only experimental .The claim regarding payment of Rs.1,37,600/- to the workers on account of closure of business is not payable as per the policy condition, the same being remote loss. Only direct Ioss caused and the expense incurred subject to depreciation, salvage, policy
excess based on policy terms and conditions alone is payable as per survey report.
Alteration and modification is not covered as per the policy condition. Repair work of the same kind and capacity to make the machine in as is and where is condition alone is payable. For example, broken asbestos sheets are replaced by costly Tata Iron sheets. Cost of repair of DD Saw' s Electrical motor is not payable as in spite of Surveyor's specific instruction to inform him while dismantling and repairing the said machine was not complied with . The surveyor was kept in darkness as regards dismantling and repair of DD Saw electrical motor. It is the duty of the insured to extend all co operation to the surveyor while assessing loss. The allegation that loss assessed arbitrarily is denied as false. There is no service deficiency on the part of the Opposite Party. The claim is excessive.
The opposite party argues that the insurance under the policy is subject to conditions clauses, warranties, exclusions etc. attached. The opposite party states that the claim regarding payment of Rs.1,37,600/- to the workers on account of closure of business is not payable as per the policy condition, the same being remote loss. Only direct Ioss caused and the expense incurred subject to depreciation, salvage, policy excess based on policy terms and conditions alone is payable as per survey report.
The Ext B1 is the Survey Report a per which the surveyor assessed and calculated the loss and damages as per the policy conditions . The surveyor reports that the total claim payable is only Rs.3,07,174/- It is clear that the surveyor arrived at this amount after applying several deductions .
The Ext. X 1 series are the copy of file related to the claim of the complainant.
The claim of the complainant is for Rs.15,00,000/- But the total estimate of claim attached to the claim form shows that the loss is Rs.12,56,550 /- including Rs.1,31,600/- the salary and compensation paid to the workers.
It appears that the surveyor took this as the basis for his calculation. But when the surveyor took the figures, he arbitrarily omitted certain items. In the summary assessment (page 8), he took the estimate of Building as Rs.96,000/- But this Rs.96,000 /- is the estimate of Roof & fitting only. The surveyor omitted Rs. 18,500/- of Electrical fittings & Labour charges which is also part and parcel of the Building . In the same way the surveyor took the estimate of Plant & Machinery as Rs.7,40,000 /- But he omitted the estimate of DD Saw Repair ( Rs 22,000/-) and estimate of DD Saw
electrical Motor (Rs.38,000/-) which are part and parcel of the Plant & Machinery. So it appears that there is arbitrariness in calculation on the part of the Surveyor.
So it appears that calculations in various heads are not by considering all the aspects and the surveyor calculated the amount in order to minimize the quantum of insurance benefit.
But the complainant has not taken steps to appoint a Surveyor and to get a more reliable report. In the absence of such a report this commission has no way but to accept the Ext. B1 Report with some additions. The amount omitted by the surveyor will be added to the total amount payable. Therefore the amount will be Rs.3,07,174/-+ Rs .18,500/-+ Rs. 22,000/-+ Rs. 38,000/- = Rs.3,85,674/- Here even though the surveyor estimated the total claim payable to the sum of Rs.3,07,14/- the opposite party allowed
only Rs. 2,91,850/- , deducting further. Therefore the complainant is entitled to Rs.3,85,674/- - Rs.2,91,850/- = Rs.93,824/-.
The attempt of the insurer, the opposite party to minimize the insurance benefit and cause Ioss to the insured amounts to service deficiency on the part of opposite parties, due to which the complainant suffered mental agony. Therefore the Opposite Party is liable to pay compensation for that. This commission hold that Rs.20,000/- will be a
reasonable amount of compensation.
ln the result , the complaint is allowed in part and the Opposite Party is directed to pay a total amount of Rs.93,824/- with 8% interest per annum from 13.06.2019, the date of complaint till payment, to the complainant . The Opposite Party is also directed to pay Rs. 20,000/- (Rupees Twenty thousand only) towards compensation for mental agony and hardships and Rs. 5,000/- (Rupees Five thousand only) towards the costs.
Time for compliance is 30 days from receipt of the copy of the Judgment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Copy of Lawyers
A2- Postal acknowledgment card
A3- The reply notice to sent by OP
B1- Survey Report
B2- Copy of the insurance policy
B3- Quotation/Estimation
X1- Copy of the file related to claim submitted by the complainant.
Witness Examined
Pw1- Ahamed Sherif
Dw1- Raghunathan Puthanpurayil
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
