State Consumer Disputes Redressal Commission
M/S Panchajanyam Hosptalities vs Br,Manager,United India Insurace ... on 24 August, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM CC.NO.01/12 JUDGMENT DATED : 24.08.2015 PRESENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER SRI.V.V.JOSE : MEMBER COMPLAINANT M/s.Panchajanyam Hospitalities, The Esquire Inn, K.P.Road, Charummoodu.P.O Alappuzha District Rep.by its Managing Partner, Rajappan Pillai, S/o.Velayudhan Pillai, Residing at Srayes, Komallur.P.O Chunakkara village, Alappuzha District (By Adv.Sri.S.Ajith Prabhav & By Adv.Smt.Sreeja Sasidharan) Vs OPPOSITE PARTY The Branch Manager, The United India Insurance Com.Ltd, T.M.Buildings, Bank Road, Kayamkulam (By Adv.Sri.R.Jagadish kumar) JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER This is a complaint filed under section 17 of the Consumer Protection Act. The complainant is a registered partnership firm running a three star hotel by name "The Esquire inn" at Charumoodu in Alappuzha District. The allegations in the complaint are that the hotel was insured with the opposite party as per standard fire and special perils policy for the period from 25.04.2009 to 24.04.2010. The insured amount was Rs.3, 65,00,000/-. On 05.04.2010 in the evening there was heavy storm and rain and as a result extensive damages were caused to the building roof , roof structure, MP tiles, furniture , machinery and accessories , interior decorations, lifts , fancy light accessories, electrical equipments and installation, three solar panels compound wall, car shed of the complainant's hotel and vehicles. The complainant sustained loss of Rs.25,00,000/- as detailed in the complaint.
2. The complainant submitted duly filled claim form with all the relevant documents on 10.04.2009. But on 25.07.2011 the opposite party issued letter asking the complainant to sign settlement voucher for settling the claim at Rs.2,55,608/- which was the loss assessed by the opposite party. The loss assessed by the opposite party does not correspond to the actual loss sustained to the complainant. Hence notice was sent to the opposite party. Calling upon them to pay Rs.25,00,000/- with additional compensation of Rs.2,000,00/- for the deficiency in service. There upon opposite party requested the complainant to accept the money offered by them. The complainant agreed to receive the amount under protest. But the opposite party was not agreeable. Hence the complaint seeking to realize Rs.25,00,000/- from the opposite party towards the actual loss sustained in the peril. The complainant further seeks to realize compensation of Rs.2,00,000/- for the alleged deficiency in service committed by the opposite party along with the cost of the proceedings.
3. The opposite party, United India insurance company filed version admitting that policy was issued to the complainant as alleged, but contending that they are bound to compensate only the genuine claim as per the recitals of the policy. As soon as claim was lodged by the complainant a government of India approved chartered surveyor was deputed by the opposite party to examine the genuineness and veracity of the actual loss suffered by the complainant. The surveyor in his report assessed a net loss of Rs.3,08,490/-. He also assessed salvage value of Rs.6506/-. The surveyor reported that the present market value of the building machinery and accessories covered by the policy could be estimated at Rs.3,82,50,000/- which was higher than the amount insured. So the insured property was not adequately covered for the purpose of insurance. Accordingly, he calculated the amount payable at Rs.2,78,173/- after deducting policy excess. The opposite party after careful examination of the surveyor's report and after deducting salvage value policy excess depreciation and reinstatement premium arrived at an amount of Rs.2,55,608/- as the maximum amount that can be allowed on the claim. As early as on 25.07.2011 the opposite party sent letter to the complainant with settlement intimation voucher for Rs.2,55,608/- to be signed by them and counter signed by SBT, Kayamkulam, their financiers . But the complainant was not ready to accept the amount and wanted Rs.25,00,000/-./ The claim for Rs.25,00,000/ is highly imaginary excessive and has no legal or factual basis. The complainant under the guise of the claim is trying to extract more money than actually due to them. The opposite party is bound to reimburse the loss only on the basis of the surveyor's report. The complaint is bad for non-joinder of parties as the financier is a necessary party to the proceedings. There is no deficiency in service on the side of the opposite party and the complaint is liable to be dismissed.
4. On the allegations in the complaint and the contentions of the opposite party the following points arise for determination.
1. What is the extent of loss sustained by the complainant due to the alleged peril on 05.04.2010?
2. Whether there is deficiency in service on the part of the opposite party?
3. Whether the financier of the complainant is a necessary party to the proceedings?
4. Reliefs and costs.
5. The evidence consists of the deposition of the complainant as PW1. Four more witnesses were examined on the side of the complainant as PWs 2 to 5, Exts. A1 to A29 were marked on the side of the complainant. The surveyor who assessed the loss is examined on the side of the opposite party as DW1. Ext.B1 is the surveyor's report marked on the side of the opposite party. After the evidence was recorded, arguments were heard.
Point Nos.1 & 26. Admittedly the three star hotel by name "The Esquire inn" belonging to the complainant partnership firm was insured with the opposite party as per standard fire and special perils policy for the period from 25.04.2009 to 24.04.2010. The total sum insured was Rs.3,65,00,000/-. The allegation is that on 04.05.2010 in the evening in the heavy storm and rain extensive damage were caused to the building roof, roof structure MP tiles, furniture, machinery and accessories, interior decorations, lifts, fancy light accessories electrical equipments and installation, three solar panels of 2000 litres compound wall, car shed of the three star hotel and vehicles. It is alleged that the complainant sustained loss to the tune of Rs.25,00,000/-. The surveyor deputed by the opposite party assessed the damage sustained to the property of the complainant and on that basis the opposite party offered to settle the claim at Rs.2,55,608/- which sum was not adequate according to the complainant. Hence he approached this commission alleging deficiency in service on the part of the opposite parties.
7. Ext.A1is the standard fire and special perils policy issued by the opposite party. As per Ext.A1 loss destruction or damage directly caused by storm, cyclone, typhoon, tempest, hurricane, tornado flood or inundation excluding those resulting from earth quake volcanic eruption or other convulsions of nature are covered. It may be at once mentioned that rain alleged in the complaint is not a peril covered by the policy. Heavy storm is alleged as the cause of the damage to the roof and other structures and this is one of the perils covered by the policy. In a case of this nature it is incumbent on the complainant to establish that there was peril as alleged in the complaint that as a result of the peril damage was caused to the insured structures, the extent of the damage sustained and that the complainant had spent that much amount to restore the insured structure to the original position. The principle here is one of restoration to the original position and not renovation or improvement. In other words, because of the misfortune a complainant is not entitled to derive profit or more benefit while restoring the damaged structure to the original position. So the short question is whether there is satisfactory evidence on these aspects.
8. Soon after the claim the opposite party appointed a chartered surveyor and loss assessor to assess the damage sustained to the insured property. Ext.B1 is the report filed by him. The report deals with the various aspects on which evidence is required to adjudicate a case of this nature. It is seen from Ext.B1 that the bar hotel building is an A class construction with RCC and AC sheet roofing. The plinth area of the building is 14,150 sq.ft. On the northern side of the building is kayamkulam punalur main road. The report confirms the allegation that rain and heavy wind (storm) happened in the evening at about 4.30 pm on 05.04.2010. It may be mentioned at once that considering the fact that the incident happened in April, the strong wind and rain was a local phenomenon normal during summer rains. Even during monsoon in Kerala no incident of storm is reported .Western winds may reach 45 to 60 kms speed, but can rarely be said to attain the speed of storm. So the fact appears to be that heavy wind accompanied by rain caused the AC sheet roofing on the southern side auditorium and hall collapse and as a result damage to fancy lights roof tiles etc happened. However, this aspect needs no further discussion as the peril is admitted and that damage happened as a result of a peril covered by the policy.
9. Surveyor has reported that due to falling impact of AC sheet roof interior decorations big hanging fancy light in the conference hall etc were broken and collapsed. So also due to the falling impact of tile from the top floor solar panels provided over the open terrace were broken and spoiled. 2000 litres solar water heaters and three glass panels were totally broken and spoiled. As a result of the top roof MP tiles falling over two wheelers and one other vehicle garaged in front of the building they were damaged. That the strong wind and heavy rain was a local phenomenon can be found from the fact that the surveyor has reported damage over an area of around five kilometers only. In the complaint interior decorations and lifts are included among the items damaged. This shows that the claim of the complainant is exaggerated and a lift in an RCC structure is not likely to be damaged in a strong wind of this magnitude. So at the outset itself the complainant has shown the intention to do all renovation possible at the expense of the insurance company under the guise of the damage caused by the strong wind. The surveyor visited the premises on 06.04.2010, 07.04.2010, and 11.04.2010. At the time of his inspection the debris left by the strong wind were available for verification. The surveyor has given the details of the damages noticed and the amount required to repair and restore the property to the original position. He also reported that there was under insurance. He has assessed a total damages of Rs.2,28,493.86/-. After deducting permissible amounts such as policy excess the insurance company has offered an amount of Rs.2,55,608/- to the complainant. The question is whether there is acceptable evidence adduced by the complainant to prove that he sustained damage in excess of what was offered to hold that the opposite party has committed deficiency in service.
10. It is pertinent to notice that this commission is not acting as an appellate authority to review repudiations or part repudiations of claims by the insured. Only when there are patent reasons to say that there is deficiency in service, this commission is entitled to interfere. The surveyor has observed that in assessing the damage PWD approved rates were followed. He also observed that the compound wall was partially damaged due to falling impact of a tree from nearby property. There was no observatory within 25 kilometers of this area. So he was not in a position to get data from the meteorological department.
11. As against this report the evidence adduced by the complainant consists of the oral evidence of PWs 1 to 5 and Exts.A1 to A29 marked through the witnesses. PWs 2 to 5 either involved themselves in effecting repair work or supervising the repair work. A careful examination of their evidence does not inspire the confidence of this commission to place any reliance on their evidence. The documents marked through them are either estimates or vouchers. It is sufficient to say that all the estimates give no sufficient details of what exactly was the proposed work and other details. For example Ext.A13 is described as an estimate for work in the hotel. The description of the work is electrical serial lamps and necessary cables ELCB , MCB and labour charges and the total estimate is Rs.2,25,000/-. There are no other details. Nobody knows whether the items sought to be installed in the hotel were actually items damaged in the wind. Nobody knows the quality of the items damaged and whether more costly items are sought to be purchased. ELCB, MCB etc are not likely to be damaged in a strong wind for these items are fixed to the RCC structure. Similar is the case with all the estimates produced. Coming to the vouchers produced they are equally without any detail. For example Ext.A23 is a voucher dated 25.10.2010 as per which Rs.2,25,000/-was received " towards electrical works " . So these vouchers and estimates are unacceptable pieces of evidence and the evidence of PWs 2 to 5 is not sufficient to inspire the confidence of this commission in the light of the estimates and vouchers produced by the complainant.
12. In short, though the alleged peril is admitted there is no evidence regarding the damaged structure as it existed before the peril. The only evidence is that of the insurance surveyor who visited the spot immediately after the peril happened. The debris was available for his examination. So he is the only person who got some idea regarding the pre existing state of affairs. Therefore, his estimate of the damage is entitled to be respected. Taking advantage of the damage due to the peril the complainant is not entitled to renovate or improve the quality of the pre existing structure and derive profit in that way. Yet the attempt is to adduce evidence to show that actually so much repairs were affected. But relation and necessity of this repair to restore the property to original state of affairs is not established or attempted to be established. It is in the above background deficiency in service is alleged against the opposite party. The opposite party has relied on the report of the insurance surveyor in partially repudiating the claim. This repudiation was well justified in the background of the evidence available on record. So it cannot be said that the opposite party has committed deficiency in service or that the complainant is entitled to more than what was offered as damages due to the peril. In short the complaint is devoid of merit. The points are answered accordingly.
Point No.3 It appears that the insurance policy was availed at the instance of the financier of the complainant. The contention is that the financier is a necessary party. The financer may be a proper party but not a necessary party to the proceedings for ultimately the alleged damage is that of the complainant.
Point No.4 It follows that the complainant is not entitled to any relief.
In the result, the complaint is dismissed but without costs. It is open to the complainant to receive Rs.2,55,608/- offered by the opposite party in settlement of the claim.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
APPENDIX
List of witnesses for the complainant
PW1 - Rajappan Pillai
PW2 - Santhosh Jyothish Narayana Pillai
PW3 - Gopalakrishna Nair
PW4 - G.Rajappan Assari
PW5 - Biju.S
List of witness for the opposite party
DW1 - Manu.N
List of documents for the complainant
Ext.A1 - United India Insurance Company Ltd (Duplicate)
Prospectus
Ext.A2 - A letter from Advocate to the Branch Manager,
Kayamkulam
Ext.A3 - Postal receipt
Ext.A4 - Acknowledgment card
Ext.A5 - A letter from Branch Manger to the Advocate
dtd :16.11.2011.
Ext.A6 - A letter from Advocate to the Branch Manager,
Kayamkulam
Ext.A7 - Postal receipt
Ext.A8 - Acknowledgment card
Ext.A9 - A letter from Branch Manger to the Advocate
dtd :27.11.2011.
Ext.A10 - Copy of Lords Constructions ,dated 30th July, 2010
Ext.A11 - Copy of Intech Interiors dtd : 30.07.2010
Ext.A12 - Copy of Power on Electrical Designers & Contractors
dtd : 28th July, 2010
Ext.A13 - Copy of Power on Electrical Designers & Contractors
dtd : 28th July, 2010
Ext.A14 - Copy of Sharp Life Company dtd 25th July 2010
Ext.A15 - Copy of work Description
Ext.A16 - Copy of estimate dated 10.06.2010
Ext.A17 - Copy of work Description dtd :25.07.2010
Ext.A18 - Copy of estimte from Silpakala Interior
Ext.A19 - Copy of estimate dtd : 02.05.2010
Ext.A20 - Payment voucher dtd : 25.08.2010
Ext.A21 - Payment voucher dtd : 22.09.2010
Ext.A22 - Payment voucher dtd : 25.10.2010
Ext.A23 - Payment voucher dtd : 25.10.2010
Ext.A24 - Payment voucher dtd : 15.10.2010
Ext.A25 - Payment voucher dtd : 28.10.2010
Ext.A26 - Payment voucher dtd : 30.10.2010
Ext.A27 - Payment voucher dtd : 05.11.2010
Ext.A28 - Payment voucher dtd : 30.10.2010
Ext.A29 - Payment voucher dtd : 20.10.2010
List of document for the for the opposite party
Ext.B1 - Surveyor's Report
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
BE/
KERALA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
SISUVIHARLANE
VAZHUTHACADU
THIRUVANANTHAPURAM
CC.NO.01/12
JUDGMENT DATED : 24.08.2015
BE/