State Consumer Disputes Redressal Commission
G. Soman, Proprietor, : Complainant vs The New India Assurance Co. Ltd., on 11 March, 2010
Daily Order
Complaint Case No. CC/06/10
1. G.Soman
Proprietor,Rohini Silk House,Pulamon,Kottarakkara,Kollam
....Complainant(s)
Versus
1. The New India Assurance Co Ltd,Rep.by Branch Manager
New India Assurance Co Ltd,Branch Office,Kasturba Bldg,Pulamon P.O,Kottarakkara,Kollam
....Opp.Party(s)
1. The New India Assurance Co Ltd,Rep.by Branch Manager
New India Assurance Co Ltd,Branch Office,Kasturba Bldg,Pulamon P.O,Kottarakkara,Kollam
....Opp.Party(s)
BEFORE :
HONORABLE JUSTICE SHRI.K.R.UDAYABHANU
, PRESIDENT PRESENT:
None for the Complainant None for the Opp.Party *JUDGEMENT/ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISISON VAZHUTHACAD, THIRUVANANTHAPURAM CC.10/06 JUDGMENT DATED: 11.3.2010 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER G. Soman, Proprietor, : COMPLAINANT Rohini Silk House, Pulamon, Kottarakara, Kollam District.
(By Adv.R.Bahuleyan) Vs. The New India Assurance Co. Ltd., : OPPOSITE PARTY Represented by its Branch Manager, New India Assurance Co. Ltd., Branch Office,Kasturba Builidngs, Pulaman( PO), Kottarakara. (By Adv.V.K.Anilkumar) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
The case of the complainant is that he was running a textile shop M/s Rohini Silks and that the stock in the shop was insured with the opposite party/Insurance Company for a sum of Rs.32,00,000/- . The goods were hypothecated with SBT during the period of insurance. On 26.3.04 at about 9.30 p.m the shop building caught fire and textile goods worth more than Rs.30 lakhs were destroyed. The police registered the case as Crime No.310/2004. The surveyor inspected the premises and filed report. The claim of the complainant was repudiated on 18.7.05 alleging that the goods destroyed included goods stocked in the terrace of the building which is not an approved construction and also on the ground that the complainant is not the proprietor and hence has no insurable interest. Since the commencement of the policy he has not carried out any additional construction or modifications or extension in the Rohini tower building. He was running the business as his proprietary concern although he has availed a loan from the Bank on production of an unregistered deed jointly executed by his wife and 2 sons. It is also alleged the claim has been repudiated after 15 months of the occurrence. The above repudiation is illegal. He has claimed as 30,00,000/- as compensation towards the value of the goods destroyed.
2. The opposite parties have filed version contending that the fire had occurred in the accessory construction in the open terrace which was a temporary unauthorized construction. The policy is only with respect to authorized construction of M/s Rohini Silks. It is also contended that the policy was issued to the proprietary concern with the complainant as a proprietor. It is seen that in the Kerala State General Sales tax returns of M/s Rohini Gold Palace and Silks the address of dealer is given as Mrs.Valsalakumari.K. The deed of partnership produced before S.B.T. Kottarakkara would show that the shop was a partnership containing 4 partners. The quantum of the loss is also disputed.
3. The evidence adduced consisted of the testimony of PW1, DWs 1 to 3; Exts.A1 to A6 and B1 to B15.
4. PW1 the complainant has testified in terms of the averments contain in the complaint. He has also produced the policy claim form, renewal letter, copy of FIR, title deed of the building in the name of the complainant and ownership in the name of the complainant.
5. DW1 is the surveyor who submitted Ext.B1 survey report, Ext.B2 series of photos and Ext.B8 as well as Ext.B14 plan of the building. DW2 the Panchayat Secretary was testified that the entire building is an unauthorized construction. DW3 is the Manager of SBT.
6. On a verification of Ext.A1/B3 policy we find that there is no description of the building as such. It is only mentioned as shop building. No objective evidence has been produced to establish the fact that the construction in the terrace portion was effected subsequent to obtaining the policy. The goods in the constructed portion of the terrace as well as in the floor below were destroyed in fire. In the absence of the evidence in this regard the contention of the opposite party that it was the goods stocked in the terrace portion of the building, which is not covered by B3 policy that was destroyed and hence not covered by the policy could not be upheld.
7. The occurrence of accidental fire as such has been proved from the testimony of PW1 as well as from the documents produced ie, A4/B5 FIR, Ext.B6 scene mahasar, B7 final report of the police.
8. The contention strongly urged is that the complainant suppressed the fact of partnership in existence with respect to the business of the goods which has been insured. Ext.B4 is the deed of partnership from wherein it can be seen that the partners are the complainant, his wife Valsalakumari and their two sons. It is also not disputed that the name of the wife is seen mentioned as the dealer vide B11 certificate issued by the Sales Tax Officer. It is the case of the complainant that the partnership deed was executed only for availing loan from the bank and that he is running it by himself. In view of the fact that the partners are his wife and sons we find no reason to disbelieve the version of PW1. Further he is not gaining anything by the alleged suppression. At best the insurance company may insist for the involvement of the wife of the complainant and their sons with respect to the payment of the insurance claim or direct the complainant to obtain authorization from other partners to receive the amounts.
9. As per Ext.B1 the surveyor has assessed the damages as Rs.23,51,346/- and after applying the average clause the amount eligible is calculated as Rs.12,36,071/-. The declared value is Rs.32 lakhs in the policy. According to the surveyor the worth of the stock at the time of incident is Rs.60,87,276/-. Hence it is the case of under insurance and hence average clause is applicable. The surveyor has also produced Ext.B8 inventory with respect to the existence of the stock at the relevant time. The above amount plus salvage value worked out to Rs.60,87,276/-. The complainant has no case that the stock value did not amount to the above. In the circumstance we find that the amount due to the complainant is Rs.12,36,071/-.
10. We find that the opposite party has repudiated the claim without making any attempt to get the matter resolved. Hence we find that the complainant is entitled for interest. The date of the incident is 26.3.2004, and the date of the claim is 14.5.04. The date of the report of the surveyor is 5.10.04. It is seen that the survey report has been submitted after about 6 months from the date of incident. Hence the opposite party is liable to pay interest from 1.12.2004 allowing a reasonable period for settling the claim. The opposite party is directed to pay interest at the rate 9% from 1.12.2004. The amounts are to be paid within 3 months from the date of receipt of this order failing which the opposite party will be liable to pay interest at 15% from today.
The OP is allowed as above.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.M.K.ABDULLA SONA : MEMBER
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APPENDIX
Complainants Witness:-
PW1 - G.Soman
Opposite parties Witness:-
DW1 - P.T.R.Babu
DW2 -K.P.Sabukuttan Nair
DW3 - C.T.Philip
Complainants Exibits:-
A1 - Copy of insurance policy
A 2 - Copy of insurance claim form
A 3 - Repudiation letter dtd. 18.7.05
A4 - FIR No.310/04
A5 - copy of deed of partnership
A6 - Residential/Ownership certificate
Opposite party's Exibits:-
B1 - Survey report
B2series - Photos
B3 - Final premium of M/s Rohini silks, Prop. G.Soman,Duplicate
Schedule, Attached to and forming part of policy
B4 - Deed
B5 - FIR
B6 - Scene mahasar
B7 - Final report of the police.
B8 - Inventory Status report
B9 - Partnership Letter
B10 - Letter from SBT dtd.19.6.04 to New India Assurance Co. Ltd.
B11 - certificate issued by the Sales Tax Officer.
B12 - Copy of the two receipts from Kottarakkara Grama panchayat
B13 - Revised return for 2003-04
B14- Plan of the building
B15 - Copy of the deed
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
SRI.M.K.ABDULLA SONA : MEMBER
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Pronounced
Dated the 11 March 2010
[HONORABLE JUSTICE SHRI.K.R.UDAYABHANU]
PRESIDENT