THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 9th DAY OF JANUARY, 2023
APPEAL NO. 1992/2012
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
The Oriental Insurance Company Ltd,
Rep. by its Authorized Signatory,
Regional office, 2nd Floor, ...Appellant/s
Sumangala complex,
(Opp. HDMC), 2nd Floor,
Limnigton Road, Hubli-580 020
(By Sri.Manoj Kumar.M.R, Advocate)
-Versus-
M/s. Balaji Trade Links,
Represented by its Proprietor,
Ramesh S/o Ramachandra Patil
Aged about 42 years, Occ. Business ... Respondent/s
Near KSRTC Bus Stand,
P.B.Road, Taluk & District Haveri-10
(By Sri.K.A.Patil, Advocate)
O R D E R
BY SRI RAVI SHANKAR, JUDICIAL MEMBER
The Opposite Party in complaint No.17/2012 has preferred this appeal against the order passed by the District Consumer Commission, Haveri which directed this appellant to pay an amount of Rs.4,00,000/- towards claim made by complainant along with compensation of Rs.5,000/- for mental agony and Rs.5,000/- for litigation cost and submits that the complainant had obtained two polices towards his stock of goods in shop, one policy bearing no.471191/48/2010/263 for assured amount of Rs.15,00,000/- and another policy bearing no.471191/48/ 2010/264 for assured amount of Rs.10,00,000/- and both polices are in force from 27-11-2009 to 26-11-2010. Such being the case on 23-9-2010 at mid night there was heavy rains in Haveri due to which the premises of the complainant flooded with water and entire products kept in shop promises were damaged, the damaged goods was worth of Rs.30,00,000/-. The said facts was immediately informed to the Opposite Party and surveyor was appointed and said surveyor also investigated and assessed the loss to the tune of Rs.10,31,320/-. Subsequently, the insurance company after obtaining the survey report and offered for settlement of the claim to the tune of Rs.1,28,827/- for which the complainant refused to accept the claim settlement and filed a complaint before the District Consumer Commission alleging deficiency in service. The District Consumer Commission after trial allowed the complaint and directed this appellant to pay an amount of Rs.4,00,000/- towards loss of goods. The order passed by the District Consumer Commission is not in accordance with the terms and conditions of the policy. The complainant had not claimed, the claim from both policies, the complainant has claimed compensation only from one policy and after investigation the surveyor assessed the loss to the tune of Rs.10,31,320/- out of which the complainant prepared to retain the affected 114 appliances for a salvage value of about 55% that amounting to Rs.5,93,944/- as such the liability of this appellant was restricted to Rs.4,89,500/-. Subsequently, since there is heavy under the insurance by applying appropriate average clause sum assured of Rs.10,00,000/- against the value of the stock of Rs.35,25,977/-, the liability comes around Rs.1,38,827/- and deduction of Rs.10,000/- was made towards policy excess and offered to pay Rs.1,28,827/-, but the District Consumer Commission without considering the said conclusion had allowed the complaint. Hence, prays to set aside the order passed by the District Consumer Commission.
2. Heard from both parties.
3. On going though the certified copy of the order, memorandum of appeal and documents produced before the District Consumer Commission, there is no dispute that after the loss suffered by the complainant due to heavy rain, he claimed for compensation by virtue of the policies obtained. The appellant in his memorandum of appeal has submitted that, the complainant though had obtained two polices had claimed a compensation under one policy vide no.471191/48/2010/263 for an assured amount of Rs.10,00,000/. The surveyor was appointed and he has assessed the loss to the tune of Rs.10,83,344/- and the complainant has retained affected 114 appliances and after deduction of the said value of the said affected appliances to the tune of Rs.5,93,944/- the liability upon this appellant to pay Rs.4,89,500/-. Since the claim was made under one policy for Rs.10,00,000/- they have applied average clause and arrived for payment of Rs.1,28,827/- hence prays to set aside the order. Whereas on perusal of the order passed by the District Consumer Commission, we noticed that, when two policies were obtained on the said promises for the same stocks kept in the promises it is not necessary to claim under the two polices, if the complainant claimed for under one policy, it is deemed that the claim also made under another policy, hence arrived for payment of the claim to the tune of Rs.4,00,000/-. We noticed here that, the surveyor assessed the loss to the tune of Rs.10,83,344/-, after deducting an amount of Rs.5,93,944/, the Opposite Party is liable to pay Rs.4,89,500/-. The stands taken by the Opposite Party that the complainant only made claim under one policy which was assured to the tune of Rs.10,00,00/- is not acceptable, it is deemed that when the loss suffered to the entire premises the claim has to be settled under both policies though the complainant had made the claim under one policy. Instead of that, the Opposite Party had applied average clause and reduced the payment of compensation to Rs.1,28,827/- after deducting policy excess of Rs.10,000/-. According to us, the average clause applied by the appellant at the time of settlement amounts deficiency in service. The District Consumer Commission after thorough discussion has arrived payment of Rs.4,00,000/- towards loss which according to us, is not in accordance with law. The surveyor has assessed the loss to the tune of Rs.10,83,344/- after deduction of retention of 114 appliances to the worth of Rs.5,93,944/- it comes around Rs.4,89,500/-. Hence, the complainant is entitled to get an amount of Rs.4,89,500/- towards the loss suffered by him by virtue of two policies. As such the order passed by the District Consumer Commission is liable to be modified. Accordingly, we proceed to pass the following:-
O R D E R
The appeal is dismissed.
The impugned order dated 22-8-2012 passed by the District Consumer Disputes Redressal Commission, Haveri in CC.No.17/2012 is modified as under;
The Opposite Party/appellant is directed to pay an amount of Rs.4,89,500/- to the complainant along with a compensation Rs.5,000/- towards mental agony and Rs.5,000/- towards litigation expenses.
The Opposite Party/appellant is further directed to comply the above order within 30 days from the date of receipt of the order. Failing which, the payable amount (including cost and compensation) shall carry 9% interest from the date of this order till realization.
The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to the complainant.
Send a copy of this order to both parties as well as Concerned District Commission.
Member Judicial Member
