BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 339/1997 Dated: 30..03..2009
Complainants:
1. N. Kanakappan Nair, Greeshma Cini House, Mandapathinkadavu, Ottasekharamangalam, Thiruvananthapuram R. Vasantha Kumari, W/o N. Kanakappan Nair,Vasantham, Kunnanadu, Pazhanada-P.O Aneesh. K.V., S/o 1st complainant ..do.. Greeshma, D/o 1st complainant ..do..
(By Adv. S. Sisupalan)
Opposite parties:
The Senior Divisional Manager, The New India Assurance Co.Ltd., Kottarathil Building, Palayam, Thiruvananthapuram. The Branch Manager, The New India Assurance Co.Ltd., Sree Hari Building,. Bus Stand Junction, Neyyattinkara.
(By Adv. M. Nizamudeen)
This O.P having been heard on 16..03.2009, the Forum on 30.03..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that 1st complainant was running a Cinema Theatre named and styled as Greeshma Cini House at Mandapathinkadavu, that the said theatre with equipments was insured with opposite parties for Rs.5,00,000/-, that on 18/10/1996 there was a flood in the area and the entire theatre was flooded, the generator, fans, speaker, furniture fittings, accessories and all other equipments were destroyed, that the matter was immediately informed to the opposite parties, and that 1st complainant suffered a loss of Rs.2,25,000/- due to flood. 1st complainant entrusted all bills, vouchers and receipts to the opposite parties and the same was accepted, and after a lapse of 3 months complainant was informed by the opposite parties that the loss caused to the theatre assessed by the surveyor was only Rs.2,654/-. Hence this complaint to get claim amount of Rs.2,25,000/- with 18% interest per annum and compensation from the opposite parties.
2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that the 1st complainant insured the said theatre with equipments for Rs.5,00,000/- for the period from 12/6/1996 to 11/6/1997, that on intimation of the claim from the 1st complainant, the opposite parties deputed an independent licensed surveyor, who assessed the loss of Rs.5,154/- applying the conditions of average clause as the building, generator and accessories, fans etc.and screen were under insured, and that as per policy conditions policy excess of Rs.2,500/- is to be deducted. After deducting the said amount the insured was sanctioned Rs.2,654/- which was not accepted by the 1st complainant. The amount claimed by the complainant is highly exaggerated, baseless and false. Opposite parties have not committed any deficiency in service. Hence opposite parties prayed for dismissal of the complaint with cost.
3. The points that arise for consideration are:
Whether the 1st complainant has suffered damage due to the flood? If so, what is the extent of damage? Whether there has been deficiency in service on the part of opposite parties? Reliefs and compensation?
4. In support of the complaint, 1st complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P18 were marked. PW1 has been cross examined by the opposite parties and Exts. D1 series and D2 were marked through PW1. The Village Officer, Ottasekharamangalam, has been examined as PW2, Ext.P19 was marked and cross examined by the opposite parties. The Proprietor, Poozhanadu AMS Furniture Mart, has been examined as PW3, Exts. P20, and P20 (a) were marked and cross examined by the opposite parties. Mr. Girish Babu has been examined as PW4 and cross examined by the opposite parties. In rebuttal, the 2nd opposite party has filed an affidavit of himself as DW1 and Exts. D3 series & D4 were marked, and cross examined by the complainant. The surveyor has been examined as DW2 and cross examined by the opposite parties.
5. Points (i) to (iii) : It has been the case of the complainant that the 1st complainant, who is the owner of the Greeshma Cini House, insured the theatre and fittings for an amount of Rs.5,00,000/- with the opposite parties the New India Insurance Company, that on 18/10/1996 there was a flood in the area and the entire theatre was flooded, generator, fans, speaker, furniture fittings, accessories and all other equipments were destroyed on this account, that the matter was immediately informed to the opposite parties, and that a surveyor was deputed by the opposite parties belatedly for inspection. It has also been the case of the complainant that 1st complainant was requested by the opposite parties to replace the damaged things, repair and rectify the insured item and furnish bills there of, that the 1st complainant submitted the detailed estimate regarding the damages to the tune of Rs.2,25,000/-, to opposite parties along with bills, vouchers, receipts etc.and that opposite parties replied that their surveyor accessed a loss of only Rs.2,654/- and the estimate and bills furnished by the complainants are highly inflated. It has been rebutted by the opposite parties by submitting that the policy was issued to the 1st complainant in good faith on the representations made by the complainant, that opposite parties' surveyor assessed a loss of Rs.5,154/- and submitted his report dated 4/11//1996, and that after deducting the policy excess of Rs.2,500/-, the complainant was sanctioned Rs.2,654/-, which was not accepted by the complainants. It has been pleaded in the version that during survey it was found that only minor damages were caused to the insured property, and flood water drained within hours. Ext.P1 is the Fire policy dated 10/6/1994, issued by the opposite parties to the 1st complainant's Greeshma Cine House. Ext.P2 is the Fire policy dated 12/6/1995 issued by the opposite parties the said Cini house. Ext.P3 is the Fire policy's dated 12/6/1996. As per Ext.P3, the period of insurance is from 12/6/1996 to 11/6/1997, sum insured is Rs.5,00,000/-. Description of property includes, building (Rs.3,00,000/-), generator, fan, speaker, equipments, furniture fittings (Rs.1,95,000/-) and screen (Rs.5,000/-). Ext.P4 is the receipt dated 12/6/1996 issued by the opposite parties to the complainant. Ext.P5 is the letter dated 17/1/1997 addressed to the 1st complainant by the opposite parties, requesting him to said bills in order to settle the flood claim on policy without delay. In the said Ext.P5, there is a reference of the survey conducted by Mr. K.G. Ayyappan Nair. In response to Ext.P5 letter, complainant issued a reply dated 11/2/1997 to opposite parties by Ext.P6. It is stated in Ext.P6 that complainant is sending the photostat copies of vouchers and expenditure caused to him due to the loss suffered due to flood. Ext.P7 is the bill dated 6/11/1996 issued by Citi Star Fashion to the complainant, for Rs.5,500/- towards Theatre Screen stitching charge plus cloth. Ext.P8 is the cash bill dated 22/10/1996 issued by Aji Auto works to Greeshma Cini House for Rs.10,000/- towards the generator set its fitting. Ext.P9 are photos with negatives. Ext.P10 is the certificate dated 9/7/2006 issued by the Executive Engineer, PWD stating that the building of Greeshma Cini House is structurally sound for conducting cinema shows for a further period of six months from 14/5/1996 to 13/11/1996 under normal weather conditions. Ext.P11 is the certificate dated 11/11/1996 issued by the Executive Engineer, Building Division stating that the building of Greeshma Cine House, Mandapathinkadavu is structurally sound for conducting cinema show for a further period of six months from 14/11/1996 to 13/5/1997 under normal weather conditions. Ext.P12 is the certificate dated 25/6/1996 issued by the Electrical Inspector, Thiruvananthapuram to Greeshma Cine House showing the details of equipments. Ext.P13 is the certificate dated 23/6/1997 issued by the Electrical Inspector, Thiruvananthapuram to Greeshma Cini House. Ext.P14 is the receipt dated 25/5/1992 issued by the opposite parties. Ext.P15 is the detailed estimate for rectification works due to the damages caused by the natural calamity (flood) to Greeshma Cini House, prepared by Girish Babu.K.S. Exts.P16 & P16(a) are Goods Vehicle Records showing the Carriage of generator set. Exts. P17 & P18 are case summary and discharge records issued by Sree Chitra Thirunal Institute for Medical Sciences & Technology, Trivandrum. Ext. P19 is the letter (reply) issued by the Village Officer to the 1st complainant. Ext.P20 & P20(a) are the voucher and quotation issued by AMS Furniture Mart, Poozhanadu. Ext.P21 is the voucher issued by Shibu.R. Ext.D1 series are the photos taken by the insured. Ext.D2 is the Fire Insurance Claim Form dated 28/10/1996. Ext.D3 is the survey report dated 4/11/1996. Ext.D4 is the copy of the letter dated 12/5/1997 describing the basis of assessment of loss, issued by the opposite parties to the 1st complainant. In his cross examination, 1st complainant affirmed that on 22/10/1996 the surveyor of the opposite parties did not come to the complainant's theatre. When asked the complainant about Ext.P12, he said the items stated in Ext.P12 were there in the theatre prior to the flood. When asked whether the generator was itemised in Ext.P12; PW1 replied that it was not in Ext.P12 certificate but in other certificate the existence of generator was stated. It is to be noted that in Ext.P12 there is a column for equipments wherein the 6th equipment is generator but the said row is kept blank. When asked about Ext.P13, PW1 deposed that he received Ext.P13 after the renovation works in the theatre after the flood. On a suggestion that on 18/10/1996 there was no generator in the theatre and hence it was not stated in Ext.P12, PW1 replied that it is against facts and added that there was generator in the theatre since 1990. It is deposed by PW1 that the said generator was transported on 18/10/1996 and 22/10/1996 for repair, for which receipts like Exts.P16 & P16(a) were issued by the vehicle owner. No material on record to show the existence of generator in the theatre on or prior to the date of flood. On going through Exts.P12 & P13 it appears that there was no generator in the theatre, but the veracity of which was challenged by the opposite parties by showing that registration number of the vehicle, whether private or public was not seen mentioned in them. Further, on being asked about the seats in the theatre, PW1 replied that there were 366 seats in the theatre, out of which 150 seats for first class, 150 seats for second class and 60 seats for third class, that the seats for first and second class were made up of wood and plywood and the seats for third class were cushioned and that except the seats for second class all other seats were fixed peremanently. When asked the complainant about the reason for flood, complainant deposed, that it was due to heavy rain and opening of shutter of the Neyyar Dam. On a suggestion that was not the shutter opened after formal announcement through media. PW1 said it was not in his notice. Ext.D3 is the survey report dated 4/11/1996 and surveyor oral examined as DW2. As per Ext.D3, the request of survey was 22nd October 2006, and the date of survey was also 22nd October 1996. It is stated in Ext.D3 that the insured had produced an estimate of Rs.2,25,000/- towards compensation of loss faced him due to flood on 18/10/1996. After inspecting the loss of the building and scrutinising the estimate given by the insured, survey assessed as follows: Assessment of Loss: A. Building Estimate Assessed (Rs.) Amount(Rs.)
a) Labour charges for cleaning inside & outside of the theatre 6000.00 60 labourers @ Rs.100/-
Allowed 40 labourers @ Rs.100/- 4000.00
b) Replacing damaged bamboo mats allowed 8 bamboo mats worth 8000.00 Rs.1,200/- and tar coated hard brown paper worth Rs.500/-
Total cost: Rs.1700/-. After applying 50% Depreciation 850.00
Labour charges to remake & refit 6 labourers @ Rs.125/- 750.00 c) Cement water proof painting 1080.00 1080.00 d) Amount required for rectifying the foundation settlement of the main building 20000.00 N.A
(Repairing of the same is not considered, because there was no damages to the foundation) -------------------------------- Total of A. 35080.00 6680.00 --------------------------------
B. Machineries & accessories:
a) Amount required for repairing the damaged chairs 50200.00 36mts of rexine required for 54 seats and 36 back rests. Cost of the same comes Rs.3600/-. After applying 50% depreciation 1800.00
Cost of cotton & coir fibre worth Rs.1500/- 2250.00
Labour charges for repairing 12 labourers @ Rs.125/- 1500.00
b) Amount required for fitting the chairs with angles, bolts & nuts, reapers, concreating etc. 29500.00 N.A
c) Rectify the damages of the generator set 10000.00
Dismantling, cleaning & refittings of the generator including 1500.00 warnishing 10 labourers @Rs.150/- d) Replacing speakers & ampliier 24000.00 N.A
Transporting of geneator 900.00 N.A
From GVR Nos. 6 & 7 (3&4) dated 19/10/96 & 22/10/96 it is clear that the GVRs are fault because from 19/10/96 to 22/10/96 the said vehicle had not plied for any other trip. In the GVRs the Reg.No.of the veicle is not mentioned -------------------------------- Total of B. 114600.00 7050.00 -------------------------------- C. Screen:
Replacing the screen 6000.00
In photos taken by the insured, the screen was lifted and the same was out of danger. Assume that the bottom of the same became wet. So the labour charges to clean & dry the screen is allowed (6 labourers @ Rs.100/-) 800.00 -------------------------------- Total of C. 6000.00 800.00 -------------------------------- D. Other Items:
Amount demanded by M/s. Anjo Movies 45000.00 N.A
Amount required for development work 24320.00 N.A Total amount assessed is : A+B+C+D = Rs.14530 Surveyor, in his report, applied the conditions, average clause as, the building, generator, and accessories, fan etc and screen were under insured, that is not insured to their full value. Submission urged by the opposite parties is that though the assessment of loss was for Rs.14,530/-, condition of average clause due to under insurance and compulsory excess of Rs.2,500/-, as per fire policy 'C' had further reduced the amount to Rs.2,654/-. Though the surveyor has been vehemently cross examined by the complainant, no question has been put to the surveyor relating to the replacement value of building, machinery and accessories, geneator, fan, speaker, equipments, screen mentioned by the surveyor in his report. As such the replacement value of Rs.10,00,000/- mentioned in his report remain unchallenged. On going through the survey report and deposition of DW2, the total amount assessed by the surveyor to the tune of Rs.14,530/- appear to be reasonable. In view of the facts that the risk covered was to the extent of Rs.5,00,000/- whereas it is stated to be there at the spot the replacement value of Rs.10,00,000/-, it is apparent that this is a case of under insurance, as such the opposite parties are liable to pay and the complainant is entitled to get the amount proportionately on account of insurance. The stand of the Insurance Company is that it is liable to the extent of Rs.2,654/-. 6. Taking into consideration of the totality of the circumstances of the case including the risk covered and replacement value, we are of the view that it will be expedient and justice will be well met, if the complainant is awarded a sum of Rs.10,000/- against all his claims. In the result, complaint is partly allowed. Opposite parties shall pay the complainant a sum of Rs.10,000/- (Rupees Ten thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only). The said amounts shall carry interest at the rate of 18%, if not paid within two months from the date of receipt of this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of March, 2009.
G. SIVAPRASAD PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad. O.P.No.339/1997
APPENDIX I. Complainants' witness: PW1 : N. Kanakappan Nair PW2 : Presanna Chandran Nair PW3 : Misiha Das PW4 : Gireesh Babu
II. Complainants' documents: P1 : Fire policy "c" No. 1176050403401 issued at Neyyattinkara on 10/6/1994 P2 : " No.1176050403921 " " on 12/6/1995 P3 : " No.1176050404368 " " on 12/6/1996 P4 : Receipt No.A-610010 dt. 12/6/1996 P5 : Regd. With A/D letter dt. 17/1/1997 addressed to the complainant P6 : Copy of reply letter dt. 11/2/1997 to the opp. Party. P6(a) Acknowledgment card P7 : Receipt of bill dt. 6/11/1996 P8 : Receipt of cash bill dated 22/10/1996 P9 : Photographs (2 numbers) (series) P10 : Copy of stability certificate dt. 9/5/2006 P11 : " dated 11/4/1996 P12 : Copy of Govt. Order dt. 25/6/1996 P13 : " No.B1/3236/97 dt. 23/6/1997 P14 : Receipt No.527605 dt.25/5/1992 P15 : Detailed Estimate P16 : Copy of Goods Vehicle Record (GVR) (2 Nos.) P17 : Case Summary and discharge record dt. 2/12/1997 P18 : " dated 2/12/1997 P19 : Letter dated 18/3/1997 addressed to the complainant P20 : Voucher dated 3/11/1996 P20(a) : " dated 25/10/1996 P21 : " dated 22/10/1996
III. Opposite parties' witness: DW1 : Vijayakumaran Nair DW2 : K.G.Ayyappan Nair
IV. Opposite parties' documents:
D1 : Photo No.1 (series) D1(a) " No.II D1(b) " No.III D1(c) " No.IV D2 : Fire Insurance Claim Form of policy No.1176050404368 D3 : Survey Report dt. 4th November 1996 with photographs D4 : Copy of letter dated 12/5/1997 issued to the complainant by opposite party.
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 339/1997 Dated: 30..03..2009
Complainants:
1. N. Kanakappan Nair, Greeshma Cini House, Mandapathinkadavu, Ottasekharamangalam, Thiruvananthapuram R. Vasantha Kumari, W/o N. Kanakappan Nair,Vasantham, Kunnanadu, Pazhanada-P.O Aneesh. K.V., S/o 1st complainant ..do.. Greeshma, D/o 1st complainant ..do..
(By Adv. S. Sisupalan)
Opposite parties:
The Senior Divisional Manager, The New India Assurance Co.Ltd., Kottarathil Building, Palayam, Thiruvananthapuram. The Branch Manager, The New India Assurance Co.Ltd., Sree Hari Building,. Bus Stand Junction, Neyyattinkara.
(By Adv. M. Nizamudeen)
This O.P having been heard on 16..03.2009, the Forum on 30.03..2009 delivered the following:
ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that 1st complainant was running a Cinema Theatre named and styled as Greeshma Cini House at Mandapathinkadavu, that the said theatre with equipments was insured with opposite parties for Rs.5,00,000/-, that on 18/10/1996 there was a flood in the area and the entire theatre was flooded, the generator, fans, speaker, furniture fittings, accessories and all other equipments were destroyed, that the matter was immediately informed to the opposite parties, and that 1st complainant suffered a loss of Rs.2,25,000/- due to flood. 1st complainant entrusted all bills, vouchers and receipts to the opposite parties and the same was accepted, and after a lapse of 3 months complainant was informed by the opposite parties that the loss caused to the theatre assessed by the surveyor was only Rs.2,654/-. Hence this complaint to get claim amount of Rs.2,25,000/- with 18% interest per annum and compensation from the opposite parties.
2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that the 1st complainant insured the said theatre with equipments for Rs.5,00,000/- for the period from 12/6/1996 to 11/6/1997, that on intimation of the claim from the 1st complainant, the opposite parties deputed an independent licensed surveyor, who assessed the loss of Rs.5,154/- applying the conditions of average clause as the building, generator and accessories, fans etc.and screen were under insured, and that as per policy conditions policy excess of Rs.2,500/- is to be deducted. After deducting the said amount the insured was sanctioned Rs.2,654/- which was not accepted by the 1st complainant. The amount claimed by the complainant is highly exaggerated, baseless and false. Opposite parties have not committed any deficiency in service. Hence opposite parties prayed for dismissal of the complaint with cost.
3. The points that arise for consideration are:
Whether the 1st complainant has suffered damage due to the flood? If so, what is the extent of damage? Whether there has been deficiency in service on the part of opposite parties? Reliefs and compensation?
4. In support of the complaint, 1st complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P18 were marked. PW1 has been cross examined by the opposite parties and Exts. D1 series and D2 were marked through PW1. The Village Officer, Ottasekharamangalam, has been examined as PW2, Ext.P19 was marked and cross examined by the opposite parties. The Proprietor, Poozhanadu AMS Furniture Mart, has been examined as PW3, Exts. P20, and P20 (a) were marked and cross examined by the opposite parties. Mr. Girish Babu has been examined as PW4 and cross examined by the opposite parties. In rebuttal, the 2nd opposite party has filed an affidavit of himself as DW1 and Exts. D3 series & D4 were marked, and cross examined by the complainant. The surveyor has been examined as DW2 and cross examined by the opposite parties.
5. Points (i) to (iii) : It has been the case of the complainant that the 1st complainant, who is the owner of the Greeshma Cini House, insured the theatre and fittings for an amount of Rs.5,00,000/- with the opposite parties the New India Insurance Company, that on 18/10/1996 there was a flood in the area and the entire theatre was flooded, generator, fans, speaker, furniture fittings, accessories and all other equipments were destroyed on this account, that the matter was immediately informed to the opposite parties, and that a surveyor was deputed by the opposite parties belatedly for inspection. It has also been the case of the complainant that 1st complainant was requested by the opposite parties to replace the damaged things, repair and rectify the insured item and furnish bills there of, that the 1st complainant submitted the detailed estimate regarding the damages to the tune of Rs.2,25,000/-, to opposite parties along with bills, vouchers, receipts etc.and that opposite parties replied that their surveyor accessed a loss of only Rs.2,654/- and the estimate and bills furnished by the complainants are highly inflated. It has been rebutted by the opposite parties by submitting that the policy was issued to the 1st complainant in good faith on the representations made by the complainant, that opposite parties' surveyor assessed a loss of Rs.5,154/- and submitted his report dated 4/11//1996, and that after deducting the policy excess of Rs.2,500/-, the complainant was sanctioned Rs.2,654/-, which was not accepted by the complainants. It has been pleaded in the version that during survey it was found that only minor damages were caused to the insured property, and flood water drained within hours. Ext.P1 is the Fire policy dated 10/6/1994, issued by the opposite parties to the 1st complainant's Greeshma Cine House. Ext.P2 is the Fire policy dated 12/6/1995 issued by the opposite parties the said Cini house. Ext.P3 is the Fire policy's dated 12/6/1996. As per Ext.P3, the period of insurance is from 12/6/1996 to 11/6/1997, sum insured is Rs.5,00,000/-. Description of property includes, building (Rs.3,00,000/-), generator, fan, speaker, equipments, furniture fittings (Rs.1,95,000/-) and screen (Rs.5,000/-). Ext.P4 is the receipt dated 12/6/1996 issued by the opposite parties to the complainant. Ext.P5 is the letter dated 17/1/1997 addressed to the 1st complainant by the opposite parties, requesting him to said bills in order to settle the flood claim on policy without delay. In the said Ext.P5, there is a reference of the survey conducted by Mr. K.G. Ayyappan Nair. In response to Ext.P5 letter, complainant issued a reply dated 11/2/1997 to opposite parties by Ext.P6. It is stated in Ext.P6 that complainant is sending the photostat copies of vouchers and expenditure caused to him due to the loss suffered due to flood. Ext.P7 is the bill dated 6/11/1996 issued by Citi Star Fashion to the complainant, for Rs.5,500/- towards Theatre Screen stitching charge plus cloth. Ext.P8 is the cash bill dated 22/10/1996 issued by Aji Auto works to Greeshma Cini House for Rs.10,000/- towards the generator set its fitting. Ext.P9 are photos with negatives. Ext.P10 is the certificate dated 9/7/2006 issued by the Executive Engineer, PWD stating that the building of Greeshma Cini House is structurally sound for conducting cinema shows for a further period of six months from 14/5/1996 to 13/11/1996 under normal weather conditions. Ext.P11 is the certificate dated 11/11/1996 issued by the Executive Engineer, Building Division stating that the building of Greeshma Cine House, Mandapathinkadavu is structurally sound for conducting cinema show for a further period of six months from 14/11/1996 to 13/5/1997 under normal weather conditions. Ext.P12 is the certificate dated 25/6/1996 issued by the Electrical Inspector, Thiruvananthapuram to Greeshma Cine House showing the details of equipments. Ext.P13 is the certificate dated 23/6/1997 issued by the Electrical Inspector, Thiruvananthapuram to Greeshma Cini House. Ext.P14 is the receipt dated 25/5/1992 issued by the opposite parties. Ext.P15 is the detailed estimate for rectification works due to the damages caused by the natural calamity (flood) to Greeshma Cini House, prepared by Girish Babu.K.S. Exts.P16 & P16(a) are Goods Vehicle Records showing the Carriage of generator set. Exts. P17 & P18 are case summary and discharge records issued by Sree Chitra Thirunal Institute for Medical Sciences & Technology, Trivandrum. Ext. P19 is the letter (reply) issued by the Village Officer to the 1st complainant. Ext.P20 & P20(a) are the voucher and quotation issued by AMS Furniture Mart, Poozhanadu. Ext.P21 is the voucher issued by Shibu.R. Ext.D1 series are the photos taken by the insured. Ext.D2 is the Fire Insurance Claim Form dated 28/10/1996. Ext.D3 is the survey report dated 4/11/1996. Ext.D4 is the copy of the letter dated 12/5/1997 describing the basis of assessment of loss, issued by the opposite parties to the 1st complainant. In his cross examination, 1st complainant affirmed that on 22/10/1996 the surveyor of the opposite parties did not come to the complainant's theatre. When asked the complainant about Ext.P12, he said the items stated in Ext.P12 were there in the theatre prior to the flood. When asked whether the generator was itemised in Ext.P12; PW1 replied that it was not in Ext.P12 certificate but in other certificate the existence of generator was stated. It is to be noted that in Ext.P12 there is a column for equipments wherein the 6th equipment is generator but the said row is kept blank. When asked about Ext.P13, PW1 deposed that he received Ext.P13 after the renovation works in the theatre after the flood. On a suggestion that on 18/10/1996 there was no generator in the theatre and hence it was not stated in Ext.P12, PW1 replied that it is against facts and added that there was generator in the theatre since 1990. It is deposed by PW1 that the said generator was transported on 18/10/1996 and 22/10/1996 for repair, for which receipts like Exts.P16 & P16(a) were issued by the vehicle owner. No material on record to show the existence of generator in the theatre on or prior to the date of flood. On going through Exts.P12 & P13 it appears that there was no generator in the theatre, but the veracity of which was challenged by the opposite parties by showing that registration number of the vehicle, whether private or public was not seen mentioned in them. Further, on being asked about the seats in the theatre, PW1 replied that there were 366 seats in the theatre, out of which 150 seats for first class, 150 seats for second class and 60 seats for third class, that the seats for first and second class were made up of wood and plywood and the seats for third class were cushioned and that except the seats for second class all other seats were fixed peremanently. When asked the complainant about the reason for flood, complainant deposed, that it was due to heavy rain and opening of shutter of the Neyyar Dam. On a suggestion that was not the shutter opened after formal announcement through media. PW1 said it was not in his notice. Ext.D3 is the survey report dated 4/11/1996 and surveyor oral examined as DW2. As per Ext.D3, the request of survey was 22nd October 2006, and the date of survey was also 22nd October 1996. It is stated in Ext.D3 that the insured had produced an estimate of Rs.2,25,000/- towards compensation of loss faced him due to flood on 18/10/1996. After inspecting the loss of the building and scrutinising the estimate given by the insured, survey assessed as follows: Assessment of Loss: A. Building Estimate Assessed (Rs.) Amount(Rs.)
a) Labour charges for cleaning inside & outside of the theatre 6000.00 60 labourers @ Rs.100/-
Allowed 40 labourers @ Rs.100/- 4000.00
b) Replacing damaged bamboo mats allowed 8 bamboo mats worth 8000.00 Rs.1,200/- and tar coated hard brown paper worth Rs.500/-
Total cost: Rs.1700/-. After applying 50% Depreciation 850.00
Labour charges to remake & refit 6 labourers @ Rs.125/- 750.00 c) Cement water proof painting 1080.00 1080.00 d) Amount required for rectifying the foundation settlement of the main building 20000.00 N.A
(Repairing of the same is not considered, because there was no damages to the foundation) -------------------------------- Total of A. 35080.00 6680.00 --------------------------------
B. Machineries & accessories:
a) Amount required for repairing the damaged chairs 50200.00 36mts of rexine required for 54 seats and 36 back rests. Cost of the same comes Rs.3600/-. After applying 50% depreciation 1800.00
Cost of cotton & coir fibre worth Rs.1500/- 2250.00
Labour charges for repairing 12 labourers @ Rs.125/- 1500.00
b) Amount required for fitting the chairs with angles, bolts & nuts, reapers, concreating etc. 29500.00 N.A
c) Rectify the damages of the generator set 10000.00
Dismantling, cleaning & refittings of the generator including 1500.00 warnishing 10 labourers @Rs.150/- d) Replacing speakers & ampliier 24000.00 N.A
Transporting of geneator 900.00 N.A
From GVR Nos. 6 & 7 (3&4) dated 19/10/96 & 22/10/96 it is clear that the GVRs are fault because from 19/10/96 to 22/10/96 the said vehicle had not plied for any other trip. In the GVRs the Reg.No.of the veicle is not mentioned -------------------------------- Total of B. 114600.00 7050.00 -------------------------------- C. Screen:
Replacing the screen 6000.00
In photos taken by the insured, the screen was lifted and the same was out of danger. Assume that the bottom of the same became wet. So the labour charges to clean & dry the screen is allowed (6 labourers @ Rs.100/-) 800.00 -------------------------------- Total of C. 6000.00 800.00 -------------------------------- D. Other Items:
Amount demanded by M/s. Anjo Movies 45000.00 N.A
Amount required for development work 24320.00 N.A Total amount assessed is : A+B+C+D = Rs.14530 Surveyor, in his report, applied the conditions, average clause as, the building, generator, and accessories, fan etc and screen were under insured, that is not insured to their full value. Submission urged by the opposite parties is that though the assessment of loss was for Rs.14,530/-, condition of average clause due to under insurance and compulsory excess of Rs.2,500/-, as per fire policy 'C' had further reduced the amount to Rs.2,654/-. Though the surveyor has been vehemently cross examined by the complainant, no question has been put to the surveyor relating to the replacement value of building, machinery and accessories, geneator, fan, speaker, equipments, screen mentioned by the surveyor in his report. As such the replacement value of Rs.10,00,000/- mentioned in his report remain unchallenged. On going through the survey report and deposition of DW2, the total amount assessed by the surveyor to the tune of Rs.14,530/- appear to be reasonable. In view of the facts that the risk covered was to the extent of Rs.5,00,000/- whereas it is stated to be there at the spot the replacement value of Rs.10,00,000/-, it is apparent that this is a case of under insurance, as such the opposite parties are liable to pay and the complainant is entitled to get the amount proportionately on account of insurance. The stand of the Insurance Company is that it is liable to the extent of Rs.2,654/-. 6. Taking into consideration of the totality of the circumstances of the case including the risk covered and replacement value, we are of the view that it will be expedient and justice will be well met, if the complainant is awarded a sum of Rs.10,000/- against all his claims. In the result, complaint is partly allowed. Opposite parties shall pay the complainant a sum of Rs.10,000/- (Rupees Ten thousand only) along with a cost of Rs.1,000/- (Rupees One thousand only). The said amounts shall carry interest at the rate of 18%, if not paid within two months from the date of receipt of this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of March, 2009.
G. SIVAPRASAD PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad. O.P.No.339/1997
APPENDIX I. Complainants' witness: PW1 : N. Kanakappan Nair PW2 : Presanna Chandran Nair PW3 : Misiha Das PW4 : Gireesh Babu
II. Complainants' documents: P1 : Fire policy "c" No. 1176050403401 issued at Neyyattinkara on 10/6/1994 P2 : " No.1176050403921 " " on 12/6/1995 P3 : " No.1176050404368 " " on 12/6/1996 P4 : Receipt No.A-610010 dt. 12/6/1996 P5 : Regd. With A/D letter dt. 17/1/1997 addressed to the complainant P6 : Copy of reply letter dt. 11/2/1997 to the opp. Party. P6(a) Acknowledgment card P7 : Receipt of bill dt. 6/11/1996 P8 : Receipt of cash bill dated 22/10/1996 P9 : Photographs (2 numbers) (series) P10 : Copy of stability certificate dt. 9/5/2006 P11 : " dated 11/4/1996 P12 : Copy of Govt. Order dt. 25/6/1996 P13 : " No.B1/3236/97 dt. 23/6/1997 P14 : Receipt No.527605 dt.25/5/1992 P15 : Detailed Estimate P16 : Copy of Goods Vehicle Record (GVR) (2 Nos.) P17 : Case Summary and discharge record dt. 2/12/1997 P18 : " dated 2/12/1997 P19 : Letter dated 18/3/1997 addressed to the complainant P20 : Voucher dated 3/11/1996 P20(a) : " dated 25/10/1996 P21 : " dated 22/10/1996
III. Opposite parties' witness: DW1 : Vijayakumaran Nair DW2 : K.G.Ayyappan Nair
IV. Opposite parties' documents:
D1 : Photo No.1 (series) D1(a) " No.II D1(b) " No.III D1(c) " No.IV D2 : Fire Insurance Claim Form of policy No.1176050404368 D3 : Survey Report dt. 4th November 1996 with photographs D4 : Copy of letter dated 12/5/1997 issued to the complainant by opposite party.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
