KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 660/01

JUDGMENT DATED : 27.09.08

PRESENT:

JUSTICE SRI. K.R. UDAYABHANU       : PRESIDENT

SMT. Valsala sarangadharan   : member                  

SHRI. M.K. ABDULLA SONA                 :  MEMBER

                   :  HON. MEMBER

The Manager                                            

Oriental Insurance Co. Ltd.,

P.B. No.11, Kayamkulam,                        :  APPELLANT

Pin : 690 502.

(By Adv. S.S. Kalkura, R.S. Kalkura,

 & G.S. Kalkura)

Vs.

Sri. V. Prasad, Pulintharayil,

Pathiyoor, Koorikkad,                                : RESPONDENT

Pin : 690 508.                                 

JUDGMENT

SHRI. M.K. ABDULLA SONA : MEMBER

          This appeal prefers from the order dated: 10.01.01 passed by the CDRF, Alappuzha in the file of OP. No.456/98. The appellant is the first opposite party and the order passed by the Forum  below has directed the opposite party to pay a sum of Rs.50,000/- as the loss caused to the bricks and Rs.5,000/ as damage caused to the shed total sum of Rs.55,000/- with 12% from the date of complaint till realization and cost of Rs.500/-.

2.      The brief of the case is that the complainant in the aforesaid complaint who is the owner of the brick klin was to be fired on 11.6.98 and on 14.6.98 the same brick klin was caught fire due to heavy wind and the shed which was erected and it was destroyed. The incident was during rainy season and there was no cover on the brick klin. The result of the incident that the heavy rainy water fell on the brick klin and due to heavy heat for portion of the bricks were fell on the earth and caused damage. The shed and the bricks were insured fire policy for the period from 11.5.98 to 10.5.99. The matter was reported to the company and the revenue authorities and the police. The complainant further alleged that though a surveyor visited this spot he did not value the loss sustained. The surveyor wrongly reported that the cause for the fire was due to the improper maintenance of the brick klin and the company is not liable to compensate the loss. The complainant filed an amendment petition on 25.5.99 which was also allowed.

3.      The opposite party appeared and filed version. According to him he deputed the surveyor and after the receipt of the report of the surveyor the matter was examined and repudiated the claim in good faith. It is admitted that a policy was issued to the building and stock-in-trade of the complainant for the period of 11.5.98 to 10.5.99. There was only the temporary shed caught fire by spreading of fire from the klin and not due to any other reason and the bricks stocked partially collapsed and damage occurred not due to any external agency but due to the defect in stocking. The opposite party stated that the damage caused to the temporary shed and brick klin are not due to the peril covered in the policy but due to the spreading of the fire from the brick klin and due to the defective stocking of brick in the klin. The opposite party acted fairly, reasonably, justifiably within the frame work of law, custom and policy condition and analyzed, entire material, documents and survey report and entered into a fair finding. Therefore the opposite party prayed for dismissal of the complaint.

4.      The complainant was examined as PW1, and another witness was also examined on behalf of the complainant as PW2 and marked as Exts.P1 to P3 from the part of the complainant. The branch manager of the opposite party and their surveyor as examined as RW1 and RW2 respectively and marked the documents produced by them as Exts.D1 to D4.

5.      As per the available evidence in the case, the Forum below found that the opposite party to commit deficiency in service and directed the opposite party to pay Rs.50,000/- as the loss caused to the bricks and Rs.5,000/- as damage for the shed with 12% interest from the date of complaint and also with cost of Rs.500/- to the complainant. The counsel appeared for the appellant who submitted that the surveyor to assess the damages and found out the cause of fire etc. As per the Ext.B4 & survey report the surveyor has quantified the net loss of the klin shed worth Rs.5,000/- and the loss of Rs.17,905/- bricks collapsed @ Rs.1.10/- per bricks will come to Rs.19,695.50/- and after deducting the salvage value of Rs.4923.97. The net loss of bricks will come towards the sum of Rs.14,771.63/- and further he submitted that the surveyor has found that the alleged loss has occurred due to fire and the brick klin collapsed due to the defective stocking. He further argued that the Forum below went wrong in suo-motu calculation of the loss without any materials or equipment. The salvage value and net loss was not calculated by it. The broken bricks also can be used for construction purposes and can be sold out at a low rate. Another submission is that the Forum below ought to have kept in mind the fact that the country burnt brick making S.S.I unit of the respondent has no permanent roof and was erected on a lease hold premises. The appellant prays for, set aside the order of the Forum below on the ground that the calculation of loss assessed by the Forum below is without any norms and principles. The counsel appeared for the respondent argued that the findings of the Forum below is legally sustainable especially in the action of RW1. The surveyor who did not give any data regarding the details of damaged bricks and taken measurement etc.

6.      This Commission gone through the entire evidence adduced by both sides in the Forum below and the arguments of counsels for the appellant and respondent. It is no doubt that the complainant and the opposite party did not give any conclusive evidence to arrive the actual loss caused to the complainant on account of the damage caused to the bricks. In this incident, it is very difficult to do the arithmetical home work for calculating the quantum of the loss and damage. In this case both the appellant and the respondent have no datas and stock details of the bricks and had it also improbable and impossible to fix a quantum of the material already damaged. It is also not possible and practical to direct the respondent to produce the stock register and other details of the stock of the bricks etc. In this circumstances the calculation done by the Forum below in only a available option. The Forum below assessed that the cost of one brick as Rs.1.25 and calculated the total loss of bricks damage is fixed on Rs.40,000/-. In this way the total amounts is coming to Rs.50,000/- in the absence of no other methods; the good faith and common sense is the evidence and the law even though appellant and the respondent admitted the incident. In the circumstance damage is a certain and the compensation is a remedy. The awarding compensation is accordance with law and evidence. This is a Forum established accordance with the provisions of the Consumer Protection Act, to redress the disputes without complications and by simple way.

7.      By considering the evidence and fact of this case we are not seen any reason to interfere in the order passed by the Forum below. We have a strong opinion that the interest awarded by the Forum below is not necessary to consider the fact of the case. It also that the cost of Rs.500/- is also reducing to Rs.250/- the compensation in the damages for the bricks and damaged caused to the shed as fixed as Rs.50,000/- and Rs.5,000/- respectively. We modify the order accordingly, and we confirmed the order passed by the Forum below with the above modification.

In the result, the appeal is partly allowed and the parties are directed to suffer their respective costs. The points are answered accordingly.

M.K. ABDULLA SONA    :  MEMBER

JUSTICE K.R. UDAYABHANU     : PRESIDENT

Valsala sarangadharan    : member