Decided on March 12,2010

A. Johnson Appellant


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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