Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986.

                   2. The case of the complainant is stated as follows:  The complainant is the Proprietor of Amulya Industry Konni.  This is a small scale industry unit which is a mill having 12 machinery for grinding grain in to flour and also for powdering different types of spices, coffee nuts etc.  There is also a machine for extracting Oil from copra and a pady Huller machine also attached to this unit.  The complainant contented that, the opposite party is the insurer of the said industry from the beginning itself.  This industry insured with the opposite party for Fire and special perils under policy No.101700/11/12/11/ 00000458 and valid from 21.01.2013 to 20.01.2014 for a sum of Rs.10,00,000/-.  According to the complainant on 27.02.2013 at 2 am a fire broke out and the factory building along with industrial wiring and electrification, machinery, raw materials etc were completely damaged due to the said fire.  The Fire and Rescue station authorities of Pathanamthitta arrived at the spot and they extinguish the fire after 2 to 3 hours and they have assessed the value of the   property involved as Rs. 20,00,000/-  and the loss assessed as Rs.8,80,000/-.  An another independent expert assessed the loss as Rs.14,10,800/-.  The complainant has submitted to the opposite party the report of the Station Officer, Fire and Rescue Station, Pathanamthitta and the assessment report of the independent expert.  The opposite party has given only Rs.2,20,000/- as the insurance amount to the complainant.  Even though, the complainant made several request but all the beseech are also ignored by the opposite party.  At last the complainant sent a registered letter to the opposite party on 19.09.2014, but the same is also ignored.  The complainant categorically stated that, he sustained heavy loss and the opposite party is liable to pay Rs.10,00,000/- as an insurance amount to the complainant.  The complainant request to allow Rs. 7,80,000/- with 12% interest and other relief from the opposite party.

                   3. This Forum entertains the complaint and issued notice to the opposite party for their appearance.  The opposite party appeared before the Forum and filed his version as follows.  According to him, the complainant is not maintainable either in law or on facts.  He admitted that, the complainant is running a flour Mill under the name and style Amulya Industries at Konni and also admitted that, the insurance company issued a Standard Fire and Special Perils Policy vide policy No. 101700/11/12/11/00000458 to the complainant for a period of 21.01.2013 to 20.01.2014.  According to him, the insurer has given insurance coverage to the flour mill only.  As per the policy, the building covered for an amount of Rs. 3,00,000/-, the machinery covered for Rs.5,00,000/- and the stock of curry powder, coffee powder etc covered for Rs.2,00,000/-. He also admitted that the total sum insured is Rs.10,00,000/-.  The opposite party admitted that, the complainant has submitted the claim stating that the factory building was caught fire on 27.02.2013 at 2 am due to short circuit of the electricity and damages caused to building, machineries and stock of trade and claimed a sum of Rs.10,00,000/- towards the loss in terms of the insurance policy.  He is not admitting that the Fire and Rescue Station, Pathanamthitta had assessed a loss of Rs. 8,80,000/- for this fire occurrence.  The assessment report of the independent expert surveyor for an amount of Rs. 14,10,800/- is also  denied by the opposite party.  According to him, the claim of the complainant is settled for an amount of Rs.2,20,500/- on mutual consent.  The opposite party again stated that, the flour mill machineries were mostly obsolete model and the said surveyor did not deduct the depreciation appropriately.  The insured fail to submit the certificate from the electrical inspector who assigns the reason for the fire.  The insured has taken the policy for flour mill only but he was operating the Oil mill also for which there is no insurance coverage.  According to the opposite party the insured is having license for running flour mill only but he is running Oil mill also in the same premises.  The flash point of oil is very higher than flour mill.    While taking the insurance policy, all the material points are suppressed by the complainant.  He again stated that, the insured is duty bound to disclose all material facts at the time to taking the insurance policy.  According to the opposite party subsequent to the accident the complainant changed the flooring by tiles and new electrical panel board was fixed and the height of the wall was also increased.  The roof of the building was constructed with wooden roof truss.  The insurance company is only liable to pay the loss to the extent of the sum assured and not liable to the cost of the improvement which the complainant has made.  The opposite party stated that, all these facts discussed with the complainant and on mutual consent on 21.07.2014 they settle the claim for Rs. 2,20,500/-.  As a final settlement the complainant precedes the said amount.  The complainant is estopped from claiming further amount after settling the claim as stated above.  The opposite party again contented that, there is no deficiency in service on the part of the opposite party and the complainant is not entitled to get any amount towards loss or damages under the above claim.  The opposite party requested to dismiss the above complaint as against the opposite party.

         4. This Forum peruse the complaint, version and the records from both side and we frame the following issues for consideration.

1. Whether the petition is maintainable before this Forum?
2. Whether any deficiency in services are proved on the part of opposite parties as alleged by the complaint?
3. Regarding the relief and costs?

        5.  In order to prove the case of complainant he filed a proof affidavit in lieu of chief examination and he is examined as PW1 in this case and marked Ext.A1 to A33.  In which A5, A12,A28,A32 , A33 are marked subject to proof.  Opposite party has not adduced any evidence on their side and the case is posted for hearing.  The complainant and opposite party filed argument note in favour of them.  The proof affidavit of PW1 is more or less as per the tune of the complainant before this Forum.  The Ext.A1 is the Standard Fire and Special Perils Policy, Ext.A2 is the First Information Report registered by Konni Police, Ext.A3 is the First Information Statement issued from Fire and Rescue Station, Pathanamthitta and their report is marked as Ext.A4.  Ext.A5 is the list of machinery destructed in fire, Ext.A6 is a cash bill dated 11.03.2013 for Rs.46,700/-, Ext.A7 is the copy of cash bill dated 15.05.2013 for Rs.318.33, Ext.A8 is the copy of cash bill dated 15.05.2013 for Rs.3,259/-, Ext.A9 is the copy of cash bill dated 04.03.2013 for Rs.26,289/-, Ext.A10 is the copy of cash bill dated 31.07.2013 for Rs.3,255/-, Ext.A11 is the copy of cash bill dated 13.08.2013 for Rs.2,160/-, Ext.A12 (subject to proof) is the copy of cash bill, Ext.A13 is the copy of cash bill dated 15.05.2013 for Rs.27,018/-, Ext.A14 is the copy of cash bill dated 24.07.2013 for Rs.5,959/-, Ext.A16 is the copy of cash bill dated 29.07.2013 for Rs.871/-, Ext.A15 is the copy of cash bill dated 24.07.2013 for Rs.14,568/-, Ext.A17 is the copy of cash bill dated 28.10.2013 for Rs.27,400/-, Ext.A18 is the copy of  cash bill dated 07.11.2013 for Rs.22,963/-, Ext.A19 is the copy of cash bill dated 07.11.2013 for Rs.3,563/-, Ext.A20 is the copy of cash bill dated 09.11.2013 for Rs.10,000/-, Ext.A21 is the copy of cash bill for Rs.12,478/-, Ext.A22 is the copy of cash bill dated 09.11.2013 for Rs.27,594/-, Ext.A23 is the copy of cash bill dated 09.11.2013 for Rs.19,047/-, Ext.A24 is the copy of cash bill dated 04.04.2013 for Rs.19,790/-, Ext.A25 is the copy of work agreement and Ext.A26 is the copy of receipt dated 19.11.2013, Ext.A27 is is the copy of bill dated 24.01.2013 for Rs.35,779/-, Ext.A28 series (4 Nos.) (subject to proof) are the copy of statement showing the price of Kopra, Ext.A29 series (4 in Nos) are the copy of cash bill dated 12.03.2013 for Rs.31,905/-, dated 21.03.2013 for Rs.63,140/-, dated 02.04.2013 for Rs.228/- and dated 02.04.2013 for Rs.5,251/-, Ext.A30 series (5 Nos) (subject to proof) are the cash bill dated 13.08.2013 for Rs.266/-, 03.04.2013 for Rs.346/-, 12.03.2013 for Rs.4,100/-, 21.03.2013  for Rs,.1,420/- and 02.04.2013 for Rs.2,200, Ext.A31 is the labour charge bill, Ext.A32 (subject to proof) is the estimate and plan prepared by Sakeer Hussain.K.A, Department of Urben Affairs, Govt. of Kerala and Ext.A33 (subject to proof) is the cash bill showing the labour charges for Rs.41,900/-. As per the chief examination of the complainant his industrial unit comes under small scale industrial unit of Kerala and 12 machineries functioning in his unit.  As per the testimony of PW1, the building, all the machinery and the raw materials for the production are insured  with the opposite party for an insured amount of Rs. 10,00,000/-.  According to the PW1, on 27.02.2013 at 2 am as a result of the short circuit of electricity the building, machineries and raw materials stocks were destroyed by the said fire and the Fire and Rescue Station, Pathanamthitta had assessed a loss of Rs. 8,80,000/- as the damage of the fire incident.  In order to prove the case he produced and marked Ext.A1 the Policy Certificate.  Ext.A2 is the copy of the F.I.R prepared by the Konni Police Station and Ext.A3 is the F.I Statement lodged by the complainant before the Sub Inspector of Konni Police Station.  Through this Ext.A2 and Ext.A3 the fire occurrence happened at 27.02.2013 at 2 am is proved.  Ext.A4 is the fire occurrence report of the Fire and Rescue Station, Pathanamthitta in favour of the complainant.  Ext.A5 is the list of machineries destructed in the fire.    As per Ext.A5 a loss of Rs. 14,10,800/- is assessed.  As per Ext.A6 to A31, the complainant exhibited the cost of the materials and labour charges which he incurred for the re construction of the building and machinery.  As per Ext.A6 to Ext.A31 and Ext.A33 an amount of Rs.7,23,261/- has been spend  by the complainant to restore the building and the machinery.  The opposite party cross examined the PW1 in detail but nothing brought out to disbelieve the credibility of PW1.

         6. Point Nos. 1 to 3 :  For the sake of convenience we would like to consider Point No.1 to 3 together.    Regarding the maintainability question it is clear that, the complainant is an insured and the opposite party is the insurer. Regarding the validity of the insurance or regarding the sum assured, there is no dispute between the parties.  Even though the opposite party raised the maintainability contention the opposite party did not succeed to prove the said contention.  Hence point No.1 is found in favour of the complainant.

          7. When we peruse the testimony of PW1, it is clear that, he deposed as per the tune of the complaint and he relied Ext. A1 to A33 in favour of his evidence.  Ext.A1 is the insurance certificate in favour of the complainant and the period of insurance is shown to 21.01.2013 to 20.01.2014.  The insurance is covered for Rs.10,00,000/- as per Ext.A1.  It is pertinent to see that, as per Ext.A1, page 3 the description of property and the sum assured is categorically deposed as following.

         8. As per Ext.A1 page 3, it is clear that, the machinery is insured for Rs.5,00,000/-, the factory building is insured for Rs.3,00,000/- and stock of curry powder, coconut oil , coffee powder which are insured for Rs. 2,00,000/-.  It is true that, the opposite party has a strong case to the effect that, the complainant has only got license to conduct flour mill and he has no license to conduct oil mill.  The opposite party strongly contented that, the oil mill which is conducted by the complainant is not comes under Ext.A1 policy coverage.  But it is clear that, as per Ext.A1 page No.3, stokes are explained as “curry powder, coconut oil and coffee powder”.  If so we can arrive a conclusion that, the oil mill of the complainant is also comes under the coverage of Ext.A1 insurance policy.  The description of the property “2 plant/machinery and accessories the sum assured is Rs.5,00,000/-”.  In this column there is no explanation to the effect that which machinery is insured.  So in order to decide this dispute we have to rely on Ext.A1 and found that, flour mill and oil mill of the complainant are insured under Ext.A1 policy.  At the time of cross examination the learned counsel appeared for the opposite party put certain question to the effect that, the complaint effected some improvement after the taking of the insurance policy, the claim is settled as per the mutual consent between the parties and the oil mill has no insurance coverage etc. are but in all these question the PW1 has given negative reply.   

           9. The learned counsel appearing for the opposite party submits an argument note before the Forum.  As per the said argument note, one of the main contention is that the opposite party paid an insured amount of Rs.2,20,500/- on the basis of a settlement on mutual consent.  At the same time, at the time of adducing evidence in this case the opposite party has not produced any documents to prove this contention.  If the above said Rs. 2,20,500/- paid as mutual consent what prevented the opposite party to produce a reliable evidence to prove the said issue.  Apart from it, opposite party argued that, the complainant accepted the above said amount without raising any objection.  In order to prove this fact also the opposite party fails to produce any record on their side.  The learned counsel appearing for the complainant cited a decision reported as 2015(2) KLT 996(SC), the dictum is ‘Court always lean in favour of advancing the cause of justice where a clear case is made out for so doing,  since justice and reason is at the heart of all legislation.’  When we are pronouncing an order of this Forum we have to follow this spirit and message of this decision of our Honorable Supreme Court. The counsel of the opposite party argued that, the settlement award was received by the complainant without raising any objection and the claim was settled with his full  knowledge and consent which he is admitted in his cross examination.  In cross examination the question is “താങ്കളുടെ claim നിയമാനുസരണം  2,20,800/- രുപയ്ക്ക്  settle ചെയ്തു എന്നും അതിനുശേഷം താങ്കള്ക്ക് ഈ വിധം ഒരു ഹർജി കൊടുക്കാൻ അവകാശം ഇല്ല എന്നും പറയുന്നു.  (A) ശരിയല്ല. ടി  amount ഞാൻ കൈപ്പറ്റിയത് ഒരു  objection കൊടുത്തല്ല”.  According to the opposite party the complainant accepted the said amount as a result of settlement and with full consent.  But when we peruse the above portion of testimony of cross examination it is clear that, the above said amount is not a settled amount and not by mutual consent the amount is paid.  More over the complainant cited a decision reported by the Honorable Supreme Court in United India Insurance  Vs Ajmer Singh Cotton Mills 1999 III CPJ 10 (SC).  In the said judgment the Hon’ble Supreme Court observed as follows. ‘The observation of the State Commission in Jiyajeerao Cotton Mills Ltd. Vs New India Assurance Co.Ltd. (Original Petition No. 52 of 1991 decided on November 28, 1991) shall always be construed in the light of our finding of the judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint.  Under the circumstances the appeals are allowed.  In the light of this decision the plea of estoppel against the complainant for filing this complaint is also not sustainable.  Another important argument put forwarded by the opposite party is that, the contentions of Ext.A26 series are not genuine.  When we examine Ext.A28 series it is understood that, these are certain vouchers connected to the price of copra from four persons.  At the time of marking these documents the opposite party has not raised any objection regarding the marking of the said document.  We do admitted that, at the time of cross examination regarding Ext.A28 a question is asked “താങ്കള് Ext.A28 ആയി കൊപ്രയുടെ നഷ്ടം സംബന്ധിച്ച പ്രമാണം പരിചയക്കാരായ ആളുകളിൽ നിന്നും എഴുതി തയ്യാറാക്കി Forum മുമ്പാകെ കളവായി ഹാജരാക്കിയതല്ലേ ? (A) അല്ല Therefore it is clear that, though in cross examination the opposite party challenged the genuineness but the answer is not in favour of the opposite party.  The presence of that copra in the mill is additional evidence in favaour of the complainant for the functioning of the oil mill.  

          10. Another important contention of the opposite party is that,  only the flour mill of the opposite party insured under the insurance policy and the oil mill is not comes under the said policy.  As stated earlier, as per Ext.A1 page No.3 the description of property and the sum assured is categorically explained.  There it  seen that, the machinery of the complainant is insured for Rs.5,00,000/- and not specified which machine is insured in serial No.3 of the said page.  Again it is stated that, the coconut oil is one of the category of stocks described in the said Ext.A1 page No.3.  In the light of this description we can safely rely Ext.A1 page No.3 and find that, the oil mill is also included in the insurance scheme otherwise the description coconut oil would not find a place in the said exhibit. 

            11. It is true that, through evidence on documents the complainant proved that, he suffered a loss of Rs. 8,80,000/- it is proved through Ext.A4 Fire Occurrence Report of the Fire Station Officer, Pathanamthitta.  It is also proved that, as per the Ext.A5 (Subject to proof) a loss of Rs.14,10,800/- is calculated.  Anyway as per Ext.A1 policy certificate it is clear that, the total insurance amount is covered for Rs. 10,00,000/- only.  It is admitted that, the complainant has received Rs. 2,20,500/- from the opposite party.  Therefore the said received amount has to be reduced from the total amount allowed.

               12. Considering the above findings, we find that the complainant has adduced sufficient evidence to prove his case against the opposite party.  In the light of the evidence adduced by the complainant we find that, the opposite party has committed deficiency in service against the complainant.  The complainant is eligible to get reasonable relief on the basis of this petition.  Hence point No.2 and point No.3 are find in favour of the complainant.

            13.   In the result we passed the following orders:

1. The opposite party is directed to pay an amount of Rs. 7,80,000/- (Rupees Seven Lakh Eighty Thousand only) with an interest of 10% as insurance amount to the complainant from the date of this order till its realization.

2. The opposite party is directed to pay Rs.10,000/- (Rupees Ten Thousand only) with an interest of 10% as compensation to the complainant till its realization from the date of this order.

3. A cost of Rs.3,000/- (Rupees Three Thousand only) is also allowed to realize from the opposite party with 10% interest till its realization from the date of the order.

     Declared in the Open Forum on this the 30^th day of November, 2015.

                                                                                   (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                         (President)

Smt. K.P. Padmasree (Member – I)               :    (Sd/-)

Smt. Sheela Jacob (Member – II)                  :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  M.M Varghese

Exhibits marked on the side of the complainant:

A1   :   Copy of Standard Fire & Special Perils Policy

A2  :    Copy of First Information Report registered by Konni Police.

A3   :   Copy of First Information Statement issued from Fire and Rescue Station  

            Pathanamthitta.

A4    :   Copy of Report of First Information Statement.

A5    :   Copy of List of machinery destructed in fire.

A6    :   Cash bill dated 11.03.2013 for Rs.46,700/-,

A7    :   Copy of cash bill dated 15.05.2013 for Rs.318.33/-

A8    :   Copy of cash bill dated 15.05.2013 for Rs.3,259/-

A9    :   Copy of cash bill dated 04.03.2013 for Rs.26,289/-

A10  :   Copy of cash bill dated 31.07.2013 for Rs.3,255/-.

A11  :   Copy of cash bill dated 13.08.2013 for Rs.2,160/-

A12  :   Copy of cash bill(subject to proof).

A13  :   Copy of cash bill dated 15.05.2013 for Rs.27,018/-.

A14  :   Copy of cash bill dated 24.07.2013 for Rs.5,959/-.

A15  :   Copy of cash bill dated 24.07.2013 for Rs.14,568/-.

A16  :   Copy of cash bill dated 29.07.2013 for Rs.871/-.

A17  :   Copy of cash bill dated 28.10.2013 for Rs.27,400/-.

A18  :   Copy of  cash bill dated 07.11.2013 for Rs.22,963/-.

A19  :   Copy of cash bill dated 07.11.2013 for Rs.3,563/-.

A20  :   Copy of cash bill dated 09.11.2013 for Rs.10,000/-.

A21  :   Copy of cash bill for Rs.12,478/-

A22  :   Copy of cash bill dated 09.11.2013 for Rs.27,594/-.

A23  :   Copy of cash bill dated 09.11.2013 for Rs.19,047/-.

A24  :   Copy of cash bill dated 04.04.2013 for Rs.19,970/-.

A25  :  Copy of work agreement.

A26  :  Copy of receipt dated 19.11.2013.

A27  :  Copy of bill dated 24.01.2013 for Rs.35,779/-.

A28 series (4 in Nos.) : Copy of statement showing the price of   

                                    Kopra (subject to proof)  

A29 series (4 in Nos.) :  Copy of cash bill dated 12.03.2013 for

                                     Rs.31,905/-, dated 21.03.2013 for Rs.63,140/-,

                                     dated 02.04.2013 for Rs.228/- and dated 02.04.2013

                                     for Rs.5,251/-.

 A30 series (5 in Nos) :  Cash bill dated 13.08.2013 for Rs.266/-, 03.04.2013

                                    for Rs.346/-, 12.03.2013 for Rs.4,100/-, 21.03.2013  for  

                                    Rs.1,420/- and 02.04.2013 for Rs.2,200/-.

A31 :    Copy of Labour charge voucher dated 11.08.2013 for Rs.79,764/-.  

A32 :    Estimate and plan prepared by Sakeer Hussain.K.A, Department of  

            Urben Affairs, Govt. of Kerala.

A33 :    Cash bill showing the labour charges for Rs.41,900/-.

Witness examined on the side of the opposite party: Nil

Exhibits marked on the side of the opposite party: Nil.

                                                                                                  (By Order)

Copy to:- (1) M.M Varghese, Proprietor, Amulya Industry, Konni,

                   Melute Jiss Villa, Mangaram Muri,

                   Konni Village, Pathanamthitta.

              (2) The Manager, United India Insurance Co.,

                   Kizhakkedathu Building, Post Box No.34,

                   Pathanamthitta.

              (3)  The Stock File.