Judgment:
JUSTICE SHRI. K.R. UDAYABHANU, PRESIDENT
The appellants are the opposite parties/Insurance Company in CC.539/01 in the file of CDRF, Kozhikode. The appellants are under orders to pay a sum of Rs.53,500/- towards the insured sum and Rs.5,000/- as compensation and Rs.500/- as costs.
2. It is the case of the complainant that he is conducting a rice mill and that the premises and stock in the building were insured for a sum of Rs.4,59,000/-. On 20.4.01, the water tank of the building complex in which the complainants shop is situated got burst and water overflowed to the complainant shop and godown and the entire stock was destroyed. The complainant suffered a loss of Rs.53,500/-. The claim was repudiated on the ground that the rice stock was damaged as the rice bags got wet due to water logging in the slab above and over flowing of water down and that it is not a peril covered by the policy.
3. In the version filed, it is contended that there is no water tank as alleged and that rain water that flowed from the roof slabs got collected as the outlet was blocked due to external particles like sediments etc. There was no mention about the bursting of the tank when the matter was informed to the opposite parties. The surveyors report is also to the fact that the rain water got accumulated as the outlet was blocked and the water overflowed and hence the same is not a peril by the policy.
4. The evidence adduced consisted of the testimony of Exts.P1 to P6 and R1 to R4 series.
5. The Forum has relied on the testimony of PWs 1 to 3, the complainant and the neighboring shop keeper and the contractor who executed the repair works respectively to find that the water tank of the building had burst. Ext.P6 photographs also showed that there is a tank on the top of the building. The same would show the damaged water tank and also that the roof under the water tank as in a damaged position. Fire, lightning, explosion of gas in domestic appliances, bursting and overflowing of water tank are specifically covered by the policy as seen from Ext.P1 policy. There is no contra evidence to the version of PWs 1 to 3. In the above circumstances, we endorse the finding of the Forum that the rice bags were damaged due to the bursting of the water tank and as such the complainant is entitled to be indemnified.
6. We find that as to the quantum of damages, the Forum has not made any independent examination. The Forum has allowed the amount as claimed in the complaint ie; Rs.53,500/-. In Ext.R2 survey report, the surveyor has quantified the amounts as to the damages as follows:-
âThe cost of articles totally destroyed as Rs.52,247/-. The policy excess is 5% and the same amounts to Rs.2,612.35. Less the policy excess the amount would be Rs.49,634.65. The salvage value assessed is Rs.10,837.50. The net loss is rounded to 38,797/-. â
7. There is no specific contention with respect to the valuation done by the surveyor. In the circumstances, the order of the Forum in this regard is modified as the amount ordered to be paid appears excessive. The complainant will be entitled for a sum of Rs. 38,797/- with interest at 9% per annum from the date of complaint ie; 15.11.01. The direction of the Forum to pay a compensation of Rs.5000/- is set aside. The order with respect to cost is sustained.
8. In the result, the complainant will be entitled for a sum of Rs. 38,797/- with interest at 9% from 15.11.01 and cost of Rs.500/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 25.10.11 the date of this order.
9. The appeal is allowed in part as above.
The office will forward the LCR along with the copy of this order to the Forum below urgently.