KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 336/12

JUDGMENT DATED. 17.08.2012

PRESENT

SHRI. M.K. ABDULLA SONA             :  HON. ACTING PRESIDENT

SMT. A. RADHA                                  :  MEMBER

APPELLANT

United India Insurance Co. Ltd.,

Branch Office, Kottayam,

Rep. by Asst. Manager T. Seshmi,

United India Insurance Co. Ltd.,

Divisional Office-I, L.M.S. Compound,Thiruvananthapuram.

            ( Rep. by Sri. Adv.  R. Jagadish Kumar)

                                                          Vs

RESPONDENT

Thomson Elastomes,

Rep. by Managing Partner, Arun Thomas A-125,

Poovanthuruthu Industrial Estate,

Kottayam, residing at Thyparambil House,

Velloothuruthi, Kottayam

JUDGMENT

M.K. ABDULLA SONA : HON. ACTING PRESIDENT

          On this day this appeal came before this Commission for final hearing, the counsel for the appellant is present and there is no representation from the part of the respondent.  This appeal preferred under the order of the CDRF, Kottayam in C.C. No. 106/09 dated 29.2.2012: the Forum below allowed the complaint in part and ordered to pay Rs. 1,64,376.00 with 12%  interest by the opposite party to the complainant.  The interest was ordered to pay from 5/12/2008 till the date of realization.  The Forum below also ordered to pay an amount of Rs. 2,000/- as a cost of the proceedings of the case. 

2.  The case of the complainant is that he is a holder of a Standard Fire and Special Perils policy for his factory during business in making Foam beds.  During the pendency of the policy the fire broke out in the insured’s premises and as a result finished goods, semi finished articles, raw materials, machineries and wiring of the building suffered damages was Rs. 3,94,720/- claim was lodged and the opposite party was offered to pay only Rs. 4,618/- since the amount was meager, the complainant refused to accept the same and moved to the Forum below for getting Rs. 5lakhs as compensation.  The opposite party contended that the complainant who was a commercial establishment and that they were not entitled to invoke the provisions of the C.P. Act and that the police and Fire brigade report is the fire occurred due to undergoing heating and running process which is an exclusive clause under policy and that the loss which occurred on that aspect had to be deducted and that there was under insurance.  The visible claim was only Rs. 16,200/- and again from that there was policy excess and under valuation.  The amount payable was only Rs. 4,625.81. The Survey report had clearly mentioned these aspects.  The evidence consists of Ext. A1 to A4 from the part of the complainant and Ext. B1 to B8 from the part of the opposite party accordingly.  The Forum below heard both sides and found that there is a valid insurance policy at the time of the accident. According to the surveyor who was appointed by the opposite party found an under insurance with regard to the valuation of the machinery, the actual loss assessed for the machinery deducting under insurance is Rs. 3,825/-  loss of stock Rs. 10,800/- loss of stock under drying process Rs. 1,48,176/- the opposite party taken a view that as per the exclusion of the policy conditions, since the damage is due to over heating and the complainant is only entitled for Rs. 4,618/- according to the survey report (Ext. B5) the total loss assessed by the surveyor is Rs. 1,64,376/-  The Forum below taken a view that as per the  finding in point No. 1 & 2,  the complaint was allowed in part.

          3.  The counsel for the appellant vehemently argued on the  ground  of appeal memorandum that the complaint is not maintainable as per the provision of the Consumer Protection Act.  It is a commercial establishment. Again contended that there is an under insurance and in Ext. B1 exclusion in part 5 of the policy does not cover

a)      First 5% to each and every claim subject to minimum of Rs. 10,000/- by applying the average clause the amount comes only Rs. 4,625/-

4.  The counsel for the appellant submitted that the order passed by the Forum below is not accordance with the provision of the Consumer Protection Act (Amendment 2002).  According to this amendment, any person who engaged in trade or business on any self earning venture for his livelihood  who is coming under the purview of Consumer Protection Act.  This contention of the appellant is not legally sustainable and there is no evidence adduced by the appellant/opposite party to prove that this is under insurance. 

In the circumstance, the order passed by the Forum below is strictly accordance with the provisions of law and evidence.  It is legally sustainable.

In the result, this appeal is allowed in part and the order passed by the Forum below is modified.  This commission set aside the order of interest and cost in the result portion of the order passed by the Forum below.  The appeal is disposed accordingly.

     The office is directed to sent a copy of the order and the L.C.R. to the Forum.

                               M.K. ABDULLA SONA  : ACTING PRESIDENT

                                A. RADHA                     :  MEMBER

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