Judgment:
COMMON JUDGMENT:
SHRI. K. CHANDRADAS NADAR, JUDICIAL MEMBER
The order of the CDRF, Palakkad in CC.176/03 is challenged in these appeals. In FA.382/12 the complainant is the appellant. He was a stockist and retail seller of Allopathic medicines, surgical items etc. It is alleged that in order to cover the risks of his business he had availed a fire insurance claim policy from the opposite party for Rs.21 lakhs. The policy covered the entire risks of his business. In the early morning hours of 19.2.03 at about 2 a.m a fire broke out in the adjacent shop room and spread to the complainants premises. As a result articles valued at Rs,6,12,306.59 were lost or damaged. In addition theft had also occurred in the complainants premises. In connection with the occurrence Crime No.54/03 was registered in the town South Police Station, Palakkad. Intimation regarding the occurrence was served on the opposite party immediately. But the opposite party served notice on the complainant that his claim had been allowed to the tune of Rs.40,600/- only, which in no way compensated the loss sustained by the complainant. On receipt of notice, the complainant caused a notice to be sent through his lawyer to the opposite party calling upon to pay Rs.6,12,306.59 being the loss sustained along with interest thereon. The opposite party sent reply raising false and untenable contentions. The complainant had furnished all relevant documents to the opposite party. The surveyor had not prepared inventory of the articles in the presence of the complainant. No notice was also served regarding the surveyors visit. The act of the opposite party is clear deficiency in service on their part. Hence the complaint for compensation.
2. The opposite party admitted that the complainant had availed a fire insurance policy to the tune of Rs.21 lakhs. The opposite party had offered to compensate the complainant on the loss sustained to his stock based on the actual inventories taken by the IRDA surveyor and his report. The entire inventory was prepared in the presence of the employee of the complainant and copy was given to him. The opposite party had offered fair and true compensation for the loss suffered by the complainant. There was no deficiency in service on their part. Hence the complaint was liable to be dismissed.
3. Once the Forum dismissed the complaint holding that the services availed by the complainant was for commercial purpose. That order was reversed by this Commission and the forum was directed to dispose of the matter on merits. Thereafter, one witness was examined on the side of the complainant and Exts. A1 to A7 were marked. The Insurance surveyor was examined as DW1 on the side of the opposite party and Exts.B1 to B3 were marked. The CDRF, Palakkad as per judgment dated 29.9.11 held that there was deficiency in service on the part of the opposite party but allowed only 75% of the claim amount as compensation. Hence the appeal by the complainant for the full amount. The compensation allowed was more than what was assessed by the insurance surveyor. Hence the appeal by the opposite party/New India Assurance Company Ltd.
4. The only question that arises for consideration is whether any deficiency in service on the part of the Insurance Company is established and if so whether the compensation awarded by the CDRF, Palakkad requires any modification.
5. Admittedly, the complainant was a stockist and retail seller of Allopathic medicines, surgical items etc. and the risks of his business was covered by a valid fire insurance claim policy for Rs.21 lakhs issued by the opposite party when fire broke out on 19.2.03 and loss of valuable items stored in the shop of the complainant happened.
6. Ext.B1 is the survey report submitted by the Insurance surveyor and loss assessor. It is seen from Ext.B1 as well as other documents such as Ext.A3 that the fire originated on the rear side of KKS Footwear which was located on the northern side of the shop of the complainant. The fire spread from there to the shop of the complainant. There is no dispute on these aspects. It further appears that the shop of the complainant was divided in to 3 rooms. The roof of the building had been almost totally burnt and Ext.B1 report is that it has to be completely replaced. The wooden ceiling of the middle room was also found badly burnt. The report further states that the medicines and equipments stored in the middle room had been exposed to fire and had been subjected to high temperature, and had become totally useless. Those medicines and equipments were also found very badly wet due to water jet forced from the Fire Tenders. The rear side room ceiling was also found badly burnt. However, not much damage was noted in the front room, where the maximum quantity of medicines had been stored. The surveyor was convinced that the medicines and other allied items stored in the middle room were not fit for human consumption and the cost of those items had to be compensated. Ext.A3 report of the Drugs Inspector also shows that the drugs stocked in the second and third room were damaged due to radiation of heat and due to the water used to extinguish the fire and was not fit for use.
7. Ext.B1 report adds âwe took the complete details of the stock items in this room (middle) after examining individually, the designation of the item, quantity, MRP rate etc. have been noted. Except very few items all the rest were found badly wet. The details have been given in the annexure 1. As a whole there are 470 items and the cost at MRP rate works out to Rs.57,033.17â. After deducting the value of items, the expiry dates of which were over, an amount of Rs.50,956.06 was recommended by the Insurance surveyor as compensation.
8. It is pertinent to notice that as per Ext.B1 survey report, the insured could produce only 30 invoices. All the rest of the invoices were reported to have been perished during the fire fighting operation. It is obvious from the report that the surveyor has assessed the value of items lost only with respect to those items covered by invoices. Thus the report shows that all the items lost in the fire occurrence were not assessed by the Insurance surveyor. It is obvious from the survey report that as per the computerised account, the stock of medicines as on 18.2.03 was found to be Rs.13,73,423.19. Ext.A1 is the copy of computerised statement of the stock of medicines and it confirms the surveyors report. Not only that Ext.A2 copy of stock statement submitted to the Canara Bank shows the value of stock of medicines at Rs.1900276/-. Thus the magnitude of the medicines stocked justifies the policy of Rs.21 lakhs availed by the complainant. This is the report of the Insurance surveyor also. Considering the quantity of medicines stored and the extent of damage brought out in evidence the claim that articles worth Rs.6,12,306.59 was lost in the incident appears to be the probable version. The report of the Insurance surveyor cannot be accepted at all. The complainant took policy for Rs.21 lakhs with the view that in case of any mishap as the present one the entire risk is properly covered. But the Insurance Company underestimated the loss sustained by the complainant. This was clear deficiency in service on their part as held by the CDRF, Palakkad. However, the forum limited the compensation awarded to 75% of the claim amount. There is no rational basis for the same. If that be so, the complainant is entitled to the entire compensation claimed. It follows that Appeal No.382/12 is liable to be allowed. FA.126/12 is liable to dismissed and the order of CDRF, Palakkad is liable to be modified accordingly.
In the result, Appeal 126/12 is dismissed. Appeal 382/12 is allowed and the complainant is awarded compensation of Rs.6,12,000/-. The opposite party/appellant in Appeal 126/12 shall pay the said amount within one month with interest at the rate of 9% per annum from the date of complaint till realization and the cost ordered by the forum. The parties shall bear their costs in the appeal.