Kerala

StateCommission

A/15/46

THE ORIENTAL INSURANCE COMPANY LTD - Complainant(s)

Versus

V P ANTONY, MANAGING PARTNER - Opp.Party(s)

31 May 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NO.46/2015

JUDGMENT DATED  31/5/2016

  ^{(Appeal filed against the order in C.C No.316/2009 dt. 29/5/2014 on the file of CDRF, Thrissur)}

PRESENT:

SMT. A. RADHA                                       :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

SHRI. V.V. JOSE                                      :        MEMBER

 

APPELLANT:

            M/s. Oriental Insurance Company Ltd.,

Divisional Office, U-Brothers Building,

Guruvayur Road, Kunnamkulam, Thrissur

– Rep: by its Divisional Manager, Do 11,

Ulloor, Thiruvananthapuram.

(By Adv:   Varkala B Ravikumar)                    

                        Vs

RESPONDENT:

            V.P. Antony, Vadakkethala,

Managing Partner, St. Antony’s Oil & Flour Mill,

Guruvayur, Thrissur.

(By Adv: Unnikrishnan.V)  

JUDGMENT

SMT. A. RADHA  :  MEMBER

          The opposite party is the appellant who came up in appeal against the order passed in C.C.No.316/2009 on the file of CDRF, Thrissur.

          2.  The complainant who is the Managing Partner of St. Antony’s Oil and Flower Mill approached the opposite party as the copra sheds of the mill caught fire on 4/11/2008 and destroyed the building sheds, 3190 kgs of copra and 1500 coconuts.  The total loss incurred was assessed as Rs.1,91,910/- which includes cost of copra and coconuts Rs.1,31,910/- Rs.60,000/- towards damage to the building.  The building and stock were insured with the opposite party and had a valid Insurance Policy for the last 10 years.  On 4/11/2008 by about 9 pm the building caught fire and the fire could be subsidized by the Fire Force and this incident was informed to the opposite party. The insurance surveyor was deputed to inspect and assess the damages.  The complainant was conducting the business on            self-employment basis.  The claim was repudiated by the opposite party.  This act of opposite party amounts to deficiency in service and the complaint is filed for getting Rs.1,91,910/- @ 12% interest along with Rs.25,000/- as compensation.

          3.  It is contended in the version that the complainant is having commercial business and is not the source of income for livelihood.  Hence the complainant is not a ‘consumer’ and does not arise a consumer dispute under the Consumer Protection Act.  The complaint is barred by limitation and is not maintainable.  It is admitted that the complainant is having a Standard fire and Special Perils Policy during the period from 28/12/2007 to 27/12/2008.  The complainant filed the complaint on behalf of the partnership firm and has not produced any evidence to show that he is the Managing Partner.  The other contention is that the policy covers only the main building No.III/168, Guruvayoor Municipality and the smoke house building, which caught fire does not have any building number.  The loss sustained is outside the insured premises which does not cover the policy.  The damage caused to the properties undergoing any heating and drying process is excluded from the scope of policy.  The sum insured for building is Rs.50,000/-, plant and machinery Rs.50,000/- and the stock for           Rs.3 Lakhs.  The smoke house chamber and the storage place of stock is situated separate from the main building has not insured with the opposite party.  As per the survey report the oil mill is situated in Re-survey No.186/10 of Guruvayur Village having Door No.III/68 and the smoke house is at the right rear side corner of the main building (insured building) and around 15 ft away from the main building and it is a separate building.  The opposite party has no liability to pay compensation for damages sustained to the smoke house building and stock in process in the smoke house.  The policy condition excluded the smoke house and the insurance does not cover the loss or damage to the property sustained by its own heating or drying process.  The damage assessed by the surveyor is to the extent of Rs.54,169/- subject to excess Rs.10,000/- to be deducted as per policy.  The policy basically excludes the heating and drying process as per the terms and conditions.  As the special peril claim does not fall within the purview of policy there is no liability to the opposite party as per the terms and conditions of policy.

          4.  The evidence consisted of the oral testimony of complainant as PW1 and Exbts: P1 to P6 were marked.  On the part of opposite party

RW1 was examined and R1 to R8 were marked.  On appreciation of evidence and documents the complaint was allowed which is challenged in this appeal. 

5.  Admittedly there is a valid policy for the main building during the period from 28/12/2007 to 27/12/2008.  It is also an admitted fact that the two copra sheds of the complainant housed in the premises caught fire at about 9 pm on 4/11/2008 which was reported to the opposite party in time.  The fire was extinguished by the fire service and the neighbouring persons and sustained damage to the complainant to the tune of Rs.1,91,910/- which includes the cost of copra, coconuts and damage to the building.  The building and stock were insured with the appellants and hence the claim lodged was repudiated on the ground of exclusion clause in the policy condition.  It is specifically mentioned that the fire and damage occurred during the heating and drying process is excluded as per condition I a (1) and II of the policy and the opposite party repudiated the claim as the complainant is not entitled for the claim.  As per the survey report the insured building has not caught any fire. It is specifically given that the smoke house situated about 15 ft away from the insured building does not cover the policy.  The insurance policy is based on good faith.  It is clear from documents that only the main building is numbered by the Municipality and the building nearby the main building has caught fire during the process of heating and drying of copra.  The definite case of the complainant is that there is only one number for the whole building which comes under the insurance policy.  On going through the documents it is clear that the fire occurred in the smoke house situated about 15 ft away from the insured building.  This was not contradicted by the complainant.  As per the policy the smoke house is not covered.  Further the fire occurred during the heating and drying process which is a clear exclusion clause of the policy.  On that ground also the appellant rightly repudiated the claim and the repudiation is on valid ground.  The repudiation of the claim cannot be termed as deficiency in service and the Forum Below overlooked the terms and conditions of the policy.

          In the result, appeal allowed setting-aside the order passed by the Forum Below.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

A. RADHA           :         MEMBER

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

V.V. JOSE          :        MEMBER

 

 

                                                                                  

Sa.

 

 

 

 

     KERALA STATE CONSUMER

     DISPUTES REDRESSAL

COMMISSION, SISUVIHAR LANE,

VAZHUTHACAUD   

                           THIRUVANANTHAPURAM.

 

 

 

 

APPEAL NO.46/2015

JUDGMENT DATED  31/5/2016

 

 

 

 

 

Sa.