IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 12th day of July, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 62/2017 (filed on 08-03-2017)
Petitioners : 1) Cochin Saniwares,
Arunapuram, Pala.
Rep. by its Managing Partner
Manesh Joy,
S/o. Joy Nadukkara,
Nadukkara House,
Kadaplamattom P.O.
Kottayam – 686 571.
2) Manesh Joy,
S/o. Joy Nadukkara,
-do-
3) Sunesh Joy,
S/o. Joy Nadukkara,
do-
4) Rosily Thomas,
D/o. N.J. Thomas,
-do-
(Adv. Lal P.K. and Adv.P.N. Somasekharan Nair)
Vs.
Opposite Parties : 1) The Manager,
State Bank of Travancore,
Kadappattoor, Pala – 686 575.
2) The Manager,
SBI General Insurance Co. Ltd.
“Natraj” 101, 201 & 301,
Junction of Western Express High
Way & Andheri Kurla-Road,
Andheri (East), Mumbai – 400069.
(Adv. Agi Joseph)
O R D E R
Sri. Manulal V.S. President
The complaint filed under Section 12 of the Consumer Protection Act, 1986.
Crux of the complaint is as follows:
First complainant is a partnership firm and the complainant two to four are the managing partners of the partners of the first complainant. First complainant is engaged in the retail business of building materials such as tiles and sanitary equipments. First complainant is a loanee of the first opposite party bank. First opposite party is also acting as the agent of the second opposite party. First complainant is insured under the standard fire and special perils insurance policy of the second opposite party vide insurance policy no. 786380-01. Due to the heavy rain during the second week of May 2014 in Pala areas, the basement of the go-down of the first complainant got wet and lost its natural normal strength and as a result of it, the retaining walls constructed for the sole purpose of support to the tile boxes and on which the tile boxes were kept slanting, collapsed resulting in the damage of the tiles. The collapse of the retaining wall was the result of subsiding of that ground portion of the godown as a result of the continuous heavy rain during this period.
Immediately first complainant intimated the incident to the officers of the opposite parties and as per their direction sent a letter to second opposite party on 14-5-2014 intimating this incident. On receipt of the information the surveyor of the second opposite party came to the spot and assessed the damage on 21-5-2014. Even before his arrival it came to the notice of the first opposite party that the damage caused was not 80 boxes alone as stated in letter dated 14-5-2014 , instead it was 150 boxes of tiles,. Out of this 150 boxes, 80 boxes were of RAK 2x2 vitrified tiles and 67 boxes were of Johnson ceramic 2x2 tiles. This was brought to the notice of the surveyor and as per his instruction another letter was sent to the second opposite party on 4-6-2014 intimating the loss of total 150 boxes of tiles. Accordingly the surveyor visited the site again on 6-6-2014. After a long time the first complainant got a letter dated 22-9-2014 from the second opposite party rejecting the claim of the complainant. The claim was rejected by the second opposite party stating that there was no flood at the site as claimed by the complainant and the fall of the wall was not due to any peril covered under the policy. It is further stated in the said letter that the surveyor could not find any symptoms of flooding scene. Aggrieved by this the first complainant on 30-9-2014 sent a letter to the Grievance Redressal committee of the second opposite party. But the second opposite party did not take any action on it.
It is averred in the complaint that the complainant never had a case alleged by the second opposite party in the repudiation letter that the collapse of the retaining wall was the result of flooding at the site due to heavy rain. The complainant never put such a claim. The fall of the retaining wall was the result of the subsidence of the ground portion of the go-down in the continuous and heavy rain during the period. The surveyor first visited the plot on 25-1-2014 and the second visit was on 6-6-2014. The surveyor who visited the site found damaged tiles and the wall collapsed due to the subsidence of the land.
There was violation of natural justice as well as violation of the specific clause in the insurance policy agreement. The second opposite party violated the terms of the agreement by not intimating the rejection of the claim within 30 days to the complainant. The first complainant is entitled to get the cost of the damaged tiles and the cost of reconstruction charges of the damaged retaining wall along with compensation for deficiency in service from the opposite parties.
First complainant has filed a complaint before this Commission against the opposite parties as CC 66 of 2015 for the same reliefs sought for in this complaint on 12-3-2015. To meet the technical objections, which were raised by the opposite parties, the complainant filed a petition to withdraw the complaint with the right to file fresh suit. It was granted and hence this complaint.
Upon notice from this commission second opposite party appeared before this commission and filed version. Though the notice was duly served to the first opposite party, they did not care to appear before the commission and file version
Version of the first opposite party is as follows:
The complaint is not maintainable. The complainant had already filed a petition as C.C. 66 of 2015 before this commission. The said petition was dismissed on 20-1-2017 and there was no permission for filing a fresh complaint on the dismissal order dated 20-1-2017. The present complaint is barred by resjudicata. As per order XXIII rule 2 limitation will run from the date of cause of action and withdrawal of suit will not exclude the period of limitation. The present complaint was filed on 6-3-2017. Hence the complaint is barred by limitation. The complainant is a commercial firm and obtained the policy as part of their commercial transaction. Hence the complainant is not a consumer within the meaning of the consumer protection act. The complainant is a partnership firm and is not registered. Hence the complainant has no right to initiate legal proceedings for and on behalf of the firm.
The single line un-plastered middle wall was collapsed due to the weak construction and due to the weight caused by stacking of packets of floor tiles on the side of the wall. Due to the collapse the stack of tiles kept in both sides of the wall was broken. Complainant’s go-down is situating on the side of Ettumanoor –Pala road. No flood occurred in that area as alleged in the complaint on 13-5-2014. There is no river situating near to the go-down and there is no chance for occurring a flood. The road in front of the go-down, which is lying few feet below the go-down building, was not flooded at the time of loss. The hard paper packets, in which the floor tiles are packed, were not found wet and soaked in water. No flood damage was found occurred in the area near to the insured go-down. The damages caused to the complainant is not within the purview of terms and conditions of the policy. As per the assessment of the surveyor the damage and loss caused to the complaint is only Rs. 80,000/-. There is no damage of 150 box of tiles of RAK and Johnson company. It is submitted in the version that if the forum found that the insurance company is liable to pay the amount and in such circumstances Rs. 10,000/- has to be deducted as policy excess as per the terms and conditions of the policy.
It is the duty of the complainant to make available for the inspection of the premises for opposite party without any change or removal of articles from the same nature and condition of the peril happened. The explanation made by the complainant in such tune is for covering up the real fact and for getting undue advantage. The insurance company has intimated the rejection of the claim within time and processed the claim as early as possible on the basis of the information submitted by the complainant. There is no violation of natural justice or deficiency in service on the part of the second opposite party.
Evidence of this case consists of deposition of Pw1 and exhibit A1 to A12 from the side of the complainant. One Radha V.S. who is the TP claim executive of the first opposite party filed proof affidavit in lieu of chief examination for and on behalf of the first opposite party and Exhibits B1 to B3 were got marked.
On evaluation of complaint, version and evidence on record we would like to consider the following issues.
- Whether the complaint is maintainable or not
- Whether there is any deficiency in service on the part of the opposite parties?
- If so what are the reliefs and costs?
For the sake of convenience we would like to consider the issues 1 to 3 together.
Admittedly the first complainant is a partnership firm engaged in the retail business of building materials such as tiles and sanitary equipments and the complainant two to four are the managing partners of the first complainant. Exhibits A1 is the certificate of registration of the first complainant firm. There is no dispute on the fact that the first complainant had availed SBI General Standard Fire and special perils insurance policy vide exhibit A2 policy certificate from the second opposite party. The specific case of the complainant is that due to heavy and continuous rain during the second week of July 2014 in Pala the basement portion of the go-down of the first complainant got wet and lost its natural normal strength and as a result of it, the retaining walls constructed for the sole purpose of support to the tile boxes collapsed due to subsiding of that ground portion of the go-down. Thereby the tile boxes were kept slanting were damaged.Pw1 would deposed the claim of the first complainant to indemnify the damages under Exhibit A2 policy was repudiated by the first opposite party stating illegal reasons and the same was communicated vide exhibit A5 letter dated 22-9-2014.
On the other hand the first opposite party contended that the complaint is not maintainable on various grounds. It was contended by the first opposite party that the complainant is a commercial firm having different branches and obtained the policy as part of their commercial transaction and the complainant is not a consumer within the meaning of the consumer protection act. No doubt, the complainant happens to be a partnership firm and runs the same for earning profit. However, that alone is not suffice to strip it off the status of 'consumer'.
According to Sec. 2(1)(d) of the Consumer Protection Act, 1986, 'consumer' means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Further, in terms of Sec. 2(1)(m)(i) of the Consumer Protection Act, 1986, 'person' includes a firm whether registered or not. Therefore, it was a misnomer to hold that being a partnership firm, the complainant could not be treated as a consumer. In Karnataka Power Transmission Corporation & Anr. V. Ashok Iron Works Pvt. Ltd., (2009) 3 SCC 240: 2009 (1) Supreme Court 762, the Hon'ble Apex Court has been pleased to hold that a company registered under the Companies Act, 1956 is the "person" within the meaning of person as given in Sec. 2(m) of the Consumer Protection Act, 1986 and partnership is exclusively covered under the said Section.
Now, let us appreciate that, a person who takes insurance policy, does so for the sole purpose of indemnifying insured goods from unforeseen perils and not for generating profit/commercial purpose. Therefore, the status/nature of activity of the first complainant could not be a determining factor for consideration of the maintainability of the case and the dispute could not be considered as a commercial dispute.
Another contention of the opposite party that the complaint was barred by limitation on the ground that the first complaint filed by the complainant was dismissed by our predecessor without granting permission to file a fresh complaint on same cause of action. According to the complainant the commission is not competent to split the prayer of the complainant into two and allowing one and rejecting the other. Counsel for the complainant relied on a decision reported in 1981 KHC 142. In that judgment the Hon’ble High court of Kerala has held that “The preponderance of judicial pronouncement appears to be that it is not competent for the court to divide a composite prayer into two, and allow one of them, rejecting the other; either the court should allow the application to withdraw from the suit with permission to institute a fresh suit for the subject matter or reject the application for withdrawal from the suit, requiring the plaintiff to prosecute the proceedings till its termination”.
In Chandrakant Pandurang Shingade v. Sau. Manjusha Chandrakant Shingade, , decided on 06-08-2019 it was observed by Hon’ble High Court of Bombay that : “Contention of the Applicant that though Plaintiff was permitted to withdraw the suit but in absence of express liberty to institute fresh suit, second suit was not maintainable, cannot be accepted. In as much as prayer for withdrawal and liberty to file fresh suit cannot be split up in two parts viz. withdrawal and liberty to file fresh suit. It has to be allowed as whole or rejected as whole. It is well settled that if an application is made for withdrawal of the suit with liberty to file suit, it is not open for the Court to grant only permission for withdrawal, without liberty to institute the proceedings, though it is open for the Court to reject such application.”
The High Court of Calcutta, in the case of Sukumar Banerjee (supra) has, in para 5, observed as under:
It appears that Title Suit No.284 of 1977 was permitted to be withdrawn by the learned Munsif. The plaintiff made a prayer for liberty to bring a fresh suit. No order was given thereon, but that prayer was not refused. In the Bench case of Golam Mahomed v. Shibendra reported in (1908) ILR 35 Cal 990 at p. 995, it has been stated that when the plaintiff files an application to withdraw from the suit with liberty to sue afresh, on which an order was passed on the same date giving permission to withdraw the suit and although nothing was said in that order as to the plaintiff's liberty to institute a fresh suit on the same cause of action that order ought to be read along with the application, on which it was passed. It has already been indicated that that prayer was not refused. Hence, it is held that that order has the effect of granting permission to the plaintiff with liberty to sue afresh on the same cause of action.
Similar was the view of a Division Bench of Orissa High Court in the case of Hari Basudev Vs. State of Orissa- AIR 2000 Orissa 125. Here in case in hand our predecessors disposed the earlier complaint as withdraws vide order in IA. No 25 of 2017. The said order is marked as exhibit A12. Going through the affidavit and the interlocutory application we can see that the prayer therein was to withdraw the complaint with liberty to file a fresh complaint on same cause of action. In the light of the judgments cited supra we can only infer that our predecessors disposed the said IA as the complaint is withdrawn with liberty to file fresh complaint on same cause of action . Thus we are of the opinion that there was no delay in filing this complaint and the complaint is not barred by limitation or resjudicata. . Therefore we find the point number 1 in favour of the complainant and complaint is maintainable.
Point number 2
As discussed earlier the first complainant had availed SBI General Standard Fire and special perils insurance policy vide exhibit A2 policy certificate from the second opposite party. The specific case of the complainant is that due to heavy and continuous rain during the second week of July 2014 in Pala the basement portion of the go-down of the first complainant got wet and lost its natural normal strength and as a result of it, the retaining walls constructed for the sole purpose of support to the tile boxes collapsed due to subsiding of that ground portion of the go-down. Thereby the tile boxes kept slanting were damaged. Immediately the first complainant intimated the incident to the opposite party vide exhibit A3 letter. On receipt of Exhibit A3 intimation the opposite party deputed a surveyor for spot examination. The said surveyor inspected the go-down and submitted exhibit B3 report to the opposite party. Pw1 would deposed that the claim of the first complainant to indemnify the damages under Exhibit A2 policy was repudiated by the first opposite party stating illegal reasons and the same was communicated vide exhibit A5 letter dated 22-9-2014.
Opposite party contended that the claim of the complainant was repudiated on the ground that there was no Subsidence and Landslide of the site on which the go-down situates. On perusal of exhibit A5 repudiation letter we can see the repudiation of the claim was on the ground that the damages to the stocks of tiles was not due to any of the perils covered under the standard fire and special perils insurance policy. Clause VIII of exhibit b2 which is none other than A2 is as follows
VIII” Subsidence and Landslide including Rock slide Loss, destruction or damage directly caused by Subsidence of part of the site on which the property stands or Land slide/Rock slide excluding:
(a) the normal cracking, settlement or bedding down of new structures
(b) the settlement or movement of made up ground
(c) coastal or river erosion
(d) defective design or workmanship or use of defective materials
(e) demolition, construction, structural alterations or repair of any property or groundwork or excavations”
Thus the opposite party is liable to indemnify the complainant only if the damage is caused due to the subsidence and Landslide including Rock slide Loss, destruction or damage directly caused by Subsidence of part of the site on which the property stands or Land slide/Rock slide occurred.
On perusal of exhibit B3 surveyors report we can see that it was reported by him that he had inspected the go down on 21-5-2014 and 6-6-2014. He further reported that the wall of the open shed of the go down was constructed with single line unplastered hollow bricks. It is stated in Exhibit B3 that the road in front of the go down is lying few feet lower than the go-down and the said road was not affected with flood at the time of loss. He further reported that the hard paper packets, in which the floor tiles are packed, were not found wet and soaked in water. The surveyor categorically reported that no wide spread wind or flood damage was occurred in the area near to the insured go down. Though, the Pw1 deposed before this commission that the collapse of the retaining wall was the result of the subsidence of the ground portion of the go-down, as result of continuous heavy rain , but in complaint it was stated that due to heavy and continuous rain during the second week of July 2014 the basement portion of the go-down got wet and lost its natural normal strength and as a result of it, the retaining wall collapsed. Moreover Pw1 did not adduce any evidence to prove that there was heavy rain in Pala on that period and thereby the subsiding of the ground portion of the godown was occurred. The complainant submitted that they were indemnified by another insurer in subsequent year for the damages due to heavy rain. The aforesaid submission would not help the complainants to prove that the damage sustained by them in the year 2014. Exhibit A3 and A4 proves the intimation regarding the damage was given to the complainant on 14-5-2014. It is pertinent to note that the complainant had given only intimation regarding the damage on 14-5-2014 and not filed the claim application with the opposite party. Admittedly the surveyor inspected the place on 21-5- 2014 and 4-6-2014. Thus the argument of the complainants that the damages caused could not be assessed by the surveyor due to the delay in inspection cannot be accepted.
In the light of above discussed evidence we are of the opinion that the complainants have failed to prove their case with cogent evidence. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 12th day of July, 2021
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Manesh Joy
Exhibits marked from the side of complainant.
A1 – Copy of registration form A (2365/2016) maintained under Section 59 of the
Indian Partnership Act, 1932.
A2 – Copy of insurance policy dtd.31-03-14
A3 – Copy of letter dtd.30-09-2014 issued by 2nd complainant
A4 – Copy of letter dtd.04-06-14 by 2nd complainant to Customer Care, National
Insurance.
A5 - Copy of letter dtd.22-09-14 by 2nd opposite party to 1st complainant
A6 – Copy of letter dtd.30-09-14 from 1st complainant to M/s. SBI General
Insurance Co. Ltd Grievance Redressal Officer.
A7 – Invoice dtd.09-05-14 from R.A.K. Ceramics India Pvt. Ltd.
A8 – Invoice dtd.31-07-13 from H&R Johnson (India)
A9 – Advance tax utilisation receipt dtd.20-08-2013 from Kerala Commercial Tax
Department
A10-Copy of re4ceipt dtd.11-08-2013 from Pushpak Logistics Pvt. Ltd.
A11 – Copy of partnership deed between 2nd, 3rd and 4th complainants.
A12-Copy of judgment in CC No.66/2015 dtd.20-01-17 from CDRF Kottayam.
Exhibits marked from the side of opposite party
B1 - Judgement in CC 66/2015 dtd.20-01-17 from CDRF Kottayam
B2 – Copy of policy terms and condition by SBI General Insurance
B3 – Copy of final survey report No.SR/SBIGI/04/14-15 dtd.30-07-14
By Order
Senior Superintendent
