A. JOHNSON Vs. DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.
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M.V.VISWANATHAN, JUDICIAL MEMBER -
(1.) THE complainant filed under
Section 12 read with Section 17 of the Consumer Protection Act, 1986.
(2.) THE case of the complainant is as follows: the complainant is the owner of the building No. IX, 26 -27A and is doing fish processing
business in the said building and premises by the name and style Matha
Fish Merchants. The said building and machinery etc were insured with the
opposite party Oriental Insurance Co. Thiruvananthapuram under Fire
policy C with additional perils. The building and machinery etc were
insured for a sum of Rs. 9,50,000. The said policy was issued based on
the proposal dated 21.4.99 submitted by the complainant along with fire
policy C additional perils such as flood, inundation, storm and
tempest, particularly sea erosion. The opposite party issued the Fire C
policy with the additional perils by policy NoC -59/2000. The said policy
was renewed by renewal policy and there was such a policy for the period
from 21.4.2000 to 20.4.2001. The opposite party issued policy No C -69/01
covering the risks for an amount of Rs. 9,50,000. On the night of 7th
June, 2000 there was heavy rain, flood and inundation and thereby the
insured property was damaged heavily. The Arabian sea became very rough
in the coastal area and the sea condition became very violent, giant
waves started dashing against the sea coast. Whereby the sea invaded and
flooded over towards main land and causing damage to houses and other
building. Due to the heavy flood inundation on account of sea invasion
the insured building and the property of the complainant were totally
collapsed and damaged. The complainant intimated the matter to the police
and revenue authorities on 8.6.2000. The complainant submitted the
insurance claim before the opposite party for an amount of Rs. 6 lakhs.
The opposite party deputed one surveyor who visited the insured premises
and collected the details. It was followed by an investigation by the
investigator deputed by the opposite party/insurance co. M/s T.S.
Ramaswamy and Co. surveyors conducted the final survey and assessed the
loss. The surveyor M/s T.S. Ramaswamy visited the insured premises on 2
occasions and collected the details and had detailed discussions with the
complainant. During the discussion with the surveyor it was agreed to
settle the insurance claim at Rs. 2,97,500/ - The complainant requested
the insurance Company to effect payment of the said settled amount. But
the opposite party issued letter dated 29.3.01 repudiating the insurance
claim on the ground that the peril causing damage sea erosion is not
covered under the policy of insurance. It is also stated that the sea
erosion as a peril is not included in any of the section of Fire Tariff.
The complainant issued another letter dated 18.4.01 stating the true
facts and claiming the insurance amount. But the opposite party was not
prepared to honour the insurance claim. The action on the part of the
opposite party would amount to deficiency. The policy of insurance would
cover peril which caused damage and loss to the complainant/insured.
Thus, the complainant claimed a sum of Rs. 5,26,214/ - with interest at
the rate of 24% per annum from 8.6.2000 with a further claim of
compensation of Rs. 10,000/ - for the loss and injuries suffered by the
complainant due to the negligence on the part of the opposite party. He
also claimed cost of the proceedings.
(3.) THE opposite party filed written version contending as follows; The complaint is not maintainable. The complainant has no locus standi to
file such a complaint. There is no consumer relationship between the
complainant and the opposite party. Complicated question of law and facts
are involved the complaint and the dispute has to be referred to a civil
court for adjudication. The complainant availed the policy from the
opposite party under the Fire policy. As per the terms of the said policy
damages caused by perils of fire, lightening, explosion, implosion,
impact of rail, road vehicles or aircraft, riot, strike, malicious
terrorist damages are only covered. Typhoon, Haricare, tornado, cyclone
or other atmospheric disturbances such as flood and inundation are
totally excluded. The complainant had sought in the proposal form for
covering sea erosion. The opposite party made it clear to the complainant
that the said peril could not be covered as it was not contemplated under
the All India fire Tariffs. The allegation of the complainant that
additional perils such as flood, inundation, storm, tempest particularly
sea erosion are covered by the policy is not fully correct. And the said
claims are made to harass and vex the opposite party. The complaint
itself is filed as a test case. There was no delay, negligence and lapse
on the part of the opposite party. The complaint is liable to be
dismissed with compensatory cost of Rs. 10,000/ -
The points that arise for consideration are: -
1) Whether the complaint in OP.72/01 is maintainable in law?
2) Whether the dispute involved in the complaint in OP.72/2001 is to be referred for the adjudication of a Civil Court?
3) Whether the complainant is a consumer coming within the ambit of the Consumer Protection Act, 1986?
4) Whether there was any deficiency in service as alleged by the complainant?
5) Whether the damage or loss caused to the insured properties are covered under the P1 and P2 policies issued by the opposite party Oriental Insurance Co. Ltd?
6) What order as to relief and costs? ;
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