CONSUMER DISPUTES REDRESSAL FORUM
PALAKKAD, KERALA
Dated this the 29th day of December, 2011
Present: Smt. Seena. H, President
: Smt. Preetha. G. Nair, Member
: Smt. Bhanumathi. A. K, Member Date of filing: 10/12/2003.
CC / 198 /2003
N.T. Babu,
S/o N.T. Thomas,
Proprietor, Toy Palace,
Court Road,
Palakkad. - Complainant
(BY ADV. K. BALACHANDRAN)
Vs
The Manager,
United India Insurance Co. Ltd.,
Surya Complex,
T.B. Road,
Palakkad - Opposite party
(BY ADV. C. MOHANRAM)
O R D E R
BY SMT. PREETHA. G. NAIR, MEMBER
Complainant's case in brief is that due to heavy rain and wind on 20th night of April 2003, the advertisement board of size 20” X 4” which was installed on the top of adjacent building uprooted from the foundation with concrete blocks along with pillar and parapet fell down on the complainant's shop, thereby complainant's building completely fell down and caused damages to entire shop including furniture and electric wirings. The complainant's shop a tiled building consists of three rooms. Due to fall aforesaid entire structure that is tiles, rafters, reapers, roof and shop and board, pillar and parapet of adjacent building fell on the articles kept in the rooms. Some of the reapers, rafters and tiles were found hanging. The rain continued for four days. Due to heavy rain, the water from the ceiling of adjacent building was flowing to the shop rooms and water was stagnated there. The complainant informed the opposite party, the insurer of his shop and the Manager, South Indian Bank, Palakkad about the incident. He insured his shop and articles with the Insurance Company for an amount of Rs. 5,25,000/- on 29/04/2002 and it expires on 28/04/2003. Complainant availed loan from South Indian Bank, Palakkad and bank officials used to visit and verify the stock frequently. The Surveyor appointed by the opposite party visited the shop only after 5pm on 21/04/2003 and took photos of shop and promised to come on next day. The Surveyor came on 22/04/2003 at 11am and verified the articles kept in the front room and middle room. Since entire roof, tiles, rafters, reapers and pillars, board and parapet had fallen on the shop and everything was being in a heap and shutter of the complainant's shop could open only partially. When the Surveyor and complainant entered the shop they found that entire fallen articles seen as a heap and the rain water of the complainant's shop and adjacent room was flowing in the shop room. On 22/04/2003 he could verify only articles kept in front room and middle room, prepared list of items completely damaged articles. Then on 23rd, 24th and 25th also Surveyor came but he could not verify articles kept in the last room, Since entire roofing materials and parapet and pillar of adjacent shop had fallen on the goods and goods were buried underneath. Actual lost could not be assessed by the Surveyor. He was reluctant to assess actual loss even after the request made by the complainant. The Manager, South Indian bank and opposite party were also visited the shop room and they were all convinced the damage of the entire articles. Inspite of repeated requests the opposite party did not settle the claim and contends of survey report were not informed to the complainant. The complainant did not get any intimation regarding the settlement of claim from the opposite party. When the South Indian Bank insisted the complainant to pay the loan amount the complainant went to Bank on 21/07/2003 and the Manager of the bank informed him that they got intimation from the opposite party that the opposite party was willing to settle the matter for Rs. 44,000/- which was disproportionate to the actual damages. But the opposite party did not inform the fact to the complainant even after repeated requests to settle the claim. At the time of calamity goods of worth more than Rs. 4.7 lacs were kept in the shop and the entire articles along with furniture and electric wirings were damaged. Opposite party has to settle the matter within 3 months. Since they did not settle the claim the complainant had to suffer heavy loss. Hence this petition is filed claiming actual damages and damages sustained due to non settlement within 3 months. The complainant prays to award compensation of Rs. 4,92,456/- and damages of Rs. 54,750/- with interest @ 12% p.a. from 21/05/2003 till date of payment and costs.
Opposite party entered appearance and filed their version as follows:
The opposite party admitted the calamity and damages to the building and articles. The complainant has submitted a claim form with regard to assess the loss. A surveyor was deputed by the Insurance Company as per the policy condition. As per the survey report, the Surveyor has assessed the loss as Rs. 56,764/- less salvage value of Rs. 6,000/-. So the total amount assessed by the Surveyor was Rs. 50,764/-. Out of the said amount as per the policy condition a sum of Rs. 10,000/- was deducted as excess and opposite party has made an offer to settle the claim for and opposite party asked the complainant to sign the discharge voucher to make payment as per letter dated 14/07/2003. But the complainant was not prepared to accept the same and hence no payment was made. The offer made by the opposite party was on the basis of survey report. There is no deficiency in service on the part of opposite party and the complaint of this nature is not maintainable and the same is liable to be dismissed. There is no deficiency of service on the part of opposite party as alleged by the complainant. “Complainant's allegations regarding the loss assessed by the Surveyor is not correct and Surveyor has not assessed the actual loss and he has only verified the articles kept in the front room and middle room but has not verified the articles kept in the last room” are all denied by this opposite party. The complainant is not a consumer as defined under the Consumer Protection Act. He has no case that he is conducting the business exclusively for earning for his livelihood and is self employed. Hence the complaint is liable to be dismissed with costs.
Proof affidavit of complainant and his Manager were filed and marked Exts. A1 to A12 on his side and inspection report called from the South Indian Bank marked as Ext. XI on the side of complainant. Proof affidavits of opposite party and Insurance Surveyor were filed and Exts. B1 to B3 marked on their side. Questionnaire filed by the opposite party was also answered by the complainant and complainant filed questionnaire to test veracity of the report and proof affidavit of the Surveyor.
The complaint dismissed by finding that the issue involved in the complaint could not be disposed of in a summary manner and so the parties to the complaint were relegated to Civil Court. Then the complainant preferred an appeal before the Hon'ble State Commission. The State Commission set aside the order dated 26/11/2005 and the matter is remanded for fresh disposal on merits. Both parties not adduced further evidence. Matter was heard.
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?
Issues I & II
Admittedly there is a valid policy on the date of calamity. The dispute is with regard to the quantum of damages. The Surveyor had assessed the loss at Rs. 56,764/-. The complainant stated that the surveyor had visited on 21st ,22nd, 23rd and 24th and he could not verify the articles due to heavy rain. In Ext. B1 report, the surveyor in findings of the survey stated that the shop was examined and it was found that the broken roof tiles have fallen over the stock. Further stated that on 25/04/2003 again visited and the physical stock of the shop was taken with the help of the insured. The total value of stock taken by the Surveyor on 25/04/2003 was Rs. 1,76,026/-. On 29/04/2003 the damaged items were segregated and listed. The Surveyor stated in the report that the rain water have entered into the insured shop and the materials like cement, paint and oxide have damaged due to penetration of rain water and glasses have broken due to fall of ceiling materials. The complainant has not produced evidence to show the damages of furniture. Moreover the complainant has not produced the list of damaged furniture. The complainant stated that he had submitted a stock statement on 31/03/2003 and then bank officials conducted inspection on 08/04/2003. The calamity occurred on 20/04/2003. Ext. XI shows the bank officials conducted inspection on 08/04/2003. Complainant filed questionnaire and answers filed by the Surveyor. In the questionnaire 6th question was regarding the preparation of damaged stock by the Surveyor. The answer to the question No.6 was given by the surveyor:- icnbÃ. tISph¶ apgph³ km[\§fpsS enÌv X¿mdm¡nbn«pÅXpw BbXv ]cmXn¡mc³ kz´w Ibv¸Sbn FgpXn H¸n«v X¶n«pÅXpamWv. tjm¸v ]cntim[n¨v tISph¶ km[\§fpsS enÌv X¿mdm¡nbn«pÅXpw Physical Bbn tÌm¡v ]cntim[n¨Xpw 25.04.-2003 \mWv. ]cmXn¡mc³ tISph¶ km[\§fpsS enÌpw tÌm¡v enÌpw At¶ Znhkw kz´w Ibv¸Sbn X¿mdm¡n X¶n«pÅXpamWv. BbXv tImSXnbn kÀsÆ dnt¸mÀ«ns\m¸w lmPcm¡nbn«p . In Ext. B2 and Ext. B3 shows the damaged items and stock in the complainant's shop. The findings of the Surveyor and Ext. A5 series photos shows that the rain water entered into the insured shop and the materials damaged.
On verification Ext. B2 and B3 shows the damaged item and the stock kept in the shop completely destroyed. The date of calamity happened on 20/01/2003. In Ext. B1 report Surveyor noted the date of survey on 21/04/2003. The surveyor stated that the shop was examined and it was found that the broken roof tiles have fallen over the stock. The under signed has visited again on 25/04/2003 and the physical stock of the shop was taken with the help of the insured. The findings of the surveyor was that water has entered inside the shop and he could not taken the list of stocks on 21/04/2003 to 24/04/2003. So the surveyor visited again on 25/04/2003 and taken the list of stock. Further the surveyor stated that the total value of stock as on 25/04/2003 was Rs. 1,76,026/-. But the opposite party produced the stock statement taken by the Surveyor on 25/04/2003 and marked as Ext. B3. The total amount stated in Ext. B3 is Rs. 2,83,026.50 (118645 + 64365 + 45955 + 47529.50 + 6532.00). In Ext. B2 the total amount of damaged item is Rs. 60,990/-. The opposite party has not produced evidence to show that the items mentioned in Ext. B2 were included in Ext. B3. So the total amount of stocks taken by the Surveyor is Rs. 3,44,016.50 (2,83,026.50 + 60,990). On verification in Ext. B2 and B3 shows that the stocks in shop was glass, cement, paint, oxides, primer, emary paper, aluminium pipe, putty blade, PVC sheet, chock powder etc. The surveyor stated that the shop is dealing in paints and hardware items. Ext. A8, A9 series shows that stationary items also kept in the shop. Normally all these stocks are damaged due to rain water. The complainant stated that Surveyor verified and selected damaged goods from Ext. B3 and prepared a list of damaged goods (Ext. A4) on the same day. But the Surveyor stated that the damaged items were segregated and listed. The opposite party produced the survey report along with Ext. B2 and Ext. B3. The Surveyor stated that due to the fall of the concrete blocks, the roof tiles and structure have broken and as it was raining the rain water has entered into the shop and some of the items of the shop damaged. But the surveyor has not taken the list of stocks on the first date ie, on 21/04/2003. The complainant stated that the value of damaged goods is Rs. 4,70,000/-. No documentary evidence was produced by the complainant to show that total amount of Rs. 4,70,000/- of stocks kept in the shop on 20/04/2003. In Ext. XI, the inspection report from the bank shows that the bank officials conducted last inspection on 08/04/2003 and the total value of goods was 5 lacs. The calamity occurred on 20/04/2003. Further the complainant argued that he submitted a stock statement on 31/03/2003 to the bank for the total amount of stock was 4,70,000/-. The bank manager filed statement that the bank has not prepared any statement on 31/03/2003 on the stock position in the complainant's shop. In the present case the complainant ran a shop and the business was conducted. There was no dispute that no business was conducted from 31/03/2003 to 20/04/2003 on the side of complainant. Ext. A3 series shows the weather report on 20/04/2003. Also the surveyor submitted that the proximate cause of loss is storm, which has prevailed in and around Palakkad town on 20/04/2003. Even though the Surveyor had visited on 21st, 22nd, 23rd and 24th he could not verify the articles because there was heavy rain and water has entered inside the shop. The stocks of glass, paint, red oxide, snowcem etc. damaged, it could not be used at all. The surveyor did not mention the position of furniture and wiring in the report. The complainant has not produced evidence to show the damages of furniture and wiring. The complainant has not produced any account book, bill books, stock register, or invoices to show that the goods worth Rs. 4.70 lacs were kept in the shop room at the time of incident. The surveyor in the answers stated that he had inspected all the rooms and taken the list of stocks and damaged items. No contradictory evidence produced by the complainant.
In the nature and circumstances of the case we find that the stocks kept in the shop was destroyed due to rain water. The Surveyor assessed the total amount of Rs. 3,44,016.50 as the stocks and damaged items kept in the shop.
In view of the above discussions we are of the view that there is deficiency in service on the part of opposite party. Hence complaint allowed. We direct the opposite party to pay complainant an amount of Rs. 3,44,016.50 with 12% interest from the date of filing of the complaint to date of order and pay Rs. 3,000/- 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 receipt of order till realization.
Pronounced in the open court on this the 29th day of December, 2011
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Preetha.G.Nair
Member
Sd/-
Smt. Bhanumathi.A.K
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext. A1 – Letter issued by Insurance Surveyor to the complainant dated 10/05/2003.
Ext. A2 (Series) – 3 Nos. - Letter sent by complainant to opposite party along with postal receipt and acknowledgment due.
Ext. A3 (Series) – 3 Nos. - Letter sent by the opposite party to Meteorological Centre, Thiruvananthapuram.
Ext. A4 – List of damaged items.
Ext. A5 – Photographs with negatives (3 Nos.).
Ext. A6 – Register of Wages for the period from 2001 January.
Ext. A7 – Letter by V.S Associates to the complainant dated 23/08/2000.
Ext. A8 – Letter by Gajapriya Transport Co. to the complainant subject to short delivery of brush dated 28/08/2001.
Ext. A9 (Series) –2 Nos. - Letters sent by Corporate Stationary Private Limited dated 28/07/2000 and 02/05/2000.
Ext. A10 – Letter sent by Lloyd George Co. dated 08/09/2000.
Ext. A11 – Purchase order by Ralisn Engineering dated 21/07/2000.
Ext. A12–Terms and condition of the policy issued by the United India Insurance Co. Ltd.
Ext. XI– Inspection report produced by The South Indian Bank, Palakkad Branch.
Exhibits marked on the side of the opposite party
Ext. B1 – Survey Report issued by the Insurance Surveyor (Loss assessor) dated 06/07/2003.
Ext. B2 – List of damaged items produced by the complainant.
Ext. B3 – List of stock submitted by complainant as on 25/04/2003.
Witness examined on the side of the complainant
Nil.
Witness examined on the side of the opposite party
Nil.
Cost allowed
Rs. 3,000/- (Rupees Three thousand only) allowed as cost of the proceedings.
