V.K.JACOB vs DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD

THIS complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service on the part of the opposite party in settling an insurance claim for a sum of Rs. 7,23,075/-.

THE material allegations in the complaint are as follows: THE complainant was conducting an Automobile Workshop by name Vadakkekudiyil Auto Works at Muvattupuzha. THE workshop of the complainant was insured with opposite party under Fire Policy ''C'' for the period from 20.1.1995 to 19.1.1996 for a sum of Rs. 7,50,000/- which includes building, machinery and accessories, stocks and stock-in-process and a premium of Rs. 1,496/- was paid. Ext. PI is policy. THE complainant also insured the machinery under machinery insurance policy for the period from 16.5.1995 to 15.6.1996 for a sum of Rs. 1,57,450/-, on payment of Rs. 3,306/-. Ext. P2 is the said policy. The fire occurred on 15th July, 1995 at about 1.30 a.m. in the workshop in which the workshop, machinery and a bus (which was garaged for repair) were completely burnt down and destroyed. The fire was put under control by the Fire Force which came immediately to spot. Ext. P2 series are photographs showing the extent of damages occurred. Loss and damages were duly intimated to the Insurance and Police Authorities. The claim form alongwith necessary details were also furnished. The complainant assessed the loss at Rs. 7,23,075/- in respect of the workshop and machinery. Sri. T. Subash, who was deputed by the opposite party visited the workshop and conducted a preliminary survey. He informed that he will be conducting a detailed survey before the report is submitted. To the knowledge of the complainant no further survey was conducted. Inspite of repeated requests made by the complainant, the opposite party has not taken any further steps or action to complete the survey and settle the claim. The Police Authorities visited the workshop and investigated the matter. Exts. P4 and P5 are First Information Report and scene mahazar prepared by the Muvattupuzha Police. A crime was registered and they made investigations and submitted a report before the Judicial First Class Magistrate''s Court, Muvattupuzha. The owner of the bus has filed a case against the complainant. The police ascertained the cause of the accident as electric short-circuit. Finding that no action was taken the complainant caused to issue a notice Ext. P6 dated (sic.) through lawyer requesting to settle the claim without further delay. Ext. P7 is the report dated 28.7.1995 of the Divisional Officer, Fire Force, Ernakulam, and Ext. P8 is balance sheet dated 10.7.1995 prepared by Johney and Co., Chartered Accountants in respect of the Workshop destroyed under fire. Inspite of receipt of notice the opposite party did not settle the claim. The complainant alleged that there is no reason to repudiate the claim. On these allegations this complaint was filed.

A version was filed in the form of an affidavit by the opposite party, in which the coverage pleaded in the complaint was admitted. It is further averred that in the claim form Ext. R1 submitted by the complainant, the complainant mentioned initially against Item No. 5 namely nature and cause of loss as "Not known" which entry he subsequently on second thought deleted and corrected as "may be a short-circuit in the wiring". A Surveyor was depute and he submitted Ext. R2 report. According to him, the fire originated from some other sources and not due to electrical short-circuit. It is also stated that the accident occurred due to wilful act of the insured complainant. It was further stated that the loss assessed by the Surveyor is at Rs. 1,84,553/-. A retired Superintendent of Police made investigation and his report is Ext. R3 and in the report it is stated that the fire occurred as a result of planned and wilful action of the complainant who probably wanted to claim a huge amount from the Insurance Company. It is also averred that regarding the above fire accident the Assistant Executive Engineer, Electrical Major Section, Muvattupuzha, sent a report to the Sub- Inspector of Police, Muvattupuzha, which is evidenced by Ext. R4 and in the said report it is stated that the fire accident could not be attributed to electrical short-circuit. The workshop is housed in a dilapidated shed with asbestose, asphaltic and tin-sheet roofing. The complainant was not running the workshop. The machinery kept in the workshop was not damaged to the extent alleged by the complainant and there is no deficiency in service. Therefore the complaint is liable to be dismissed.

ON behalf of the complainant PW 1 was examined and Exts. P1 to P13 were marked and on behalf of the opposite party RW 1, a retired Police Officer, was examined the Exts. Rl to R4 were also marked. The following points arise for consideration : (i) Whether there is any deficiency on the part of the opposite party in settling the insurance claim made by the complainant? (ii) If so, what is the relief to which the complainant is entitled? (iii) What is the order as to the cost?

POINT No. (i): There is no dispute that the complainant insured the workshop and also the machineries under Exts. P1 and P2 policies and a fire occurred on 15th July, 1995 while both the policies were in force. It is also not in dispute that the complainant filed a claim form which is marked as Ext. Rl. It is contended in the version filed by the opposite party that initially as against Column 5 relating to circumstances leading to loss to the complainant, the complainant mentioned "not known" but later it was struck down and corrected "may be short-circuit on wire". We do not find any reason to draw any adverse inference from this. As a matter of fact what was the real reason for peril can be found out only after making proper enquiry and immediately the complainant may not be able to know definitely what was the real reason and that might be the reason why he initially mentioned as ''not known'' but on further verification he might have learnt that it may be due to short-circuit from the wire. It is significant to note that he has only written "may be due to short-circuit from wire" and did not assert that it was due to short-circuit. At that stage it may not be possible to gather the real reason for fire. It is difficult from this circumstance to assume mala fides on the part of the complainant. Another piece of document relied on by the opposite party is Ext. R2, the report of the Surveyor. It is admitted in the report that workshop was completely burnt and damaged. It is also stated that a bus bearing Registration No. KL 7B-9070 kept in the same workshop was also burnt and damaged due to fire. It is further stated that he could understand that fire occurred on 15.7.1995 at 1.30 hrs. and the accidental fire originated from the roof side of the Automobile Workshop building and the fire instantaneously spread to other part and the bus kept in the workshop building also got fire and damaged and the Automobile Workshop building was mostly gutted. The roofing materials were found burnt and damaged. It is also stated that the engine of the bus also is suspected to have got damaged. It is further stated that there is no evidence to show that the cause of fire was due to malicious act. It also states that according to the report of the Fire Force and Police F.I.R. the fire seemed to be originated from the service wiring electrical short- circuit and spread to the whole building and then spread to the bus kept inside the Automobile Workshop building and since the Automobile Workshop building is of Class "C" construction with light sheet roof and wooden panel thallies at the sides of the office room, wooden pillars and wooden frame the fire instantaneously spread out and as the result the Automobile Workshop building and its inside contents were mostly gutted. Surveyor also states that at the time of his inspection the service wire connected by the Kerala State Electricity Board with the main board which was made up of the metal sheet was only found burnt and damaged due to the fire originated from some other source and therefore the cause of fire by electrical short-circuit can be ruled out. Ultimately he stated in his opinion the fire seemed to be originated from the bus which was kept in the Automobile Workshop building as stated above and it is due to wilful act of the insured. It is also stated that in the special remarks column that as per the policy the above mentioned Automobile Workshop building as ''A'' class construction but really it is ''C'' class construction. Therefore there is a breach of warranty. Ext. R3 is the report filed by a Retired Superintendent of Police who was deputed to make an investigation by United Insurance Company in respect of a claim made by G. Gopalan who is the owner of the bus which was damaged in the fire. He stated that there is no evidence to show that the accident took place on account of short-circuit of wire and the Assistant Executive Engineer, Major Section of the Kerala State Electricity Board, who investigated the building and electrical installation took the view that there was no possibility due to short-circuit of electricity. It is also stated that Mr. (sic), insured, in that case has filed a private complaint against Mr. Jacob before the Judicial First Class Magistrate''s Court, Muvattupuzha, alleging that a loss of Rs. 6 lakhs was caused to him due to the damages caused to his bus by fire as a result of rash and negligent act of Jacob by lighting matches and the same was taken into file by the Court and that also shows even insured is suspecting damages to the insured by a wilful act of Jacob who is the complainant herein. Ext. R4 is stated to be a report filed by the Assistant Executive Engineer to Sub-Inspector of Police. He states that there is no possibility of causing fire due to short-circuit. Sri R. Achuthan Nair, the Retired Superintendent of Police who made investigation was also examined and he stated that Ext. R3 was a report prepared by him. He stated that he prepared the report Ext. R3 on behalf of two Insurance Companies namely the Oriental Insurance Company and United India Insurance Company and he stated the report was addressed to United India Company who asked him for investigation first and a copy was supplied to Oriental Insurance Company. He however admitted that report does not say that he prepared the report at the instance of Oriental Insurance Company. He stated that incident occurred on 14.7.1995 and he submitted the report on 4.5.1996, 10 months after the occurrence. He stated that Ext. R2 mentions about his investigation. He further stated that it is not on the basis of his report that the Insurance Company stated that it was V.K. Jacob, the complainant herein, who caused the fire. But in his report he has stated so. It is seen that the report was prepared on 30.9.1995. He further stated that he examined one K.K. Surendran. He has not given any signed statement to him. He promised to give a signed statement on the next day but he did not do that. To a specific suggestion whether in O.P. 63/96 on the file of the District Forum, Ernakulam, his report as considered by the District Forum but the case was decided in favour of the complainant he replied that he does not know. He also does not know whether the Insurance Company has filed appeal before this Commission and it was dismissed by this Commission. He had gone to the house of Jacob only once. He denied the suggestion that report was prepared to help the Insurance Company. As indicated above, the fire accident took place on 14.7.1995, but we find that the report was submitted only 10 months thereafter. As indicated above the report was not acted upon by me District Forum, Ernakulam, in O.P. 63/93 and the decision of the District Forum was confirmed by this Commission. After careful examination of the report we are unable to accept the opinion contained in Ext. R3 that the fire occurred due to the wilful act of complainant. The opinion is not based on valid material. We do not find any acceptable evidence to come to the conclusion that the occurrence took place as a result of wilful action of the complainant. In the F.I. statement given by the complainant it has been stated that the fire occurred due to electric short-circuit. Ext. P5 is the mahazar. The mahazar also does not show really there was any foul play in the matter. Ext. P7 is the report by the Fire Force and it is stated therein that was caused due to electric short-circuit. Ext. P8 is the balance sheet as on 30th June, 1995, prepared by Johney & Company, Chartered Accountants, in regard to the complainant''s workshop and the total liabilities and loss is shown as Rs. 7,86,962.20 Ext. P9 is the order passed by the District Forum in O.P. 63/96. The District Forum took the view that there was nothing on record to entertain any suspicion that fire accident was not a natural accident. Ext. P10 is an affidavit filed by Sri George, son of Mathai, the owner of Standard Electrical Works and he stated that the Surveyor of Oriental Insurance Company Sri M.N. Parthasarathy stated in his report that on 3.8.1995 he made an inspection in his workshop. He stated that no machinery belonging to V.K. Jacob was kept in his workshop as stated in that report and Parthasarathy has also not seen any such machinery. Ext. P11 is the detailed estimate for the proposed workshop building prepared by C.S. Mohamed Chackengal of Charcon Engineers and he stated Rs. 2,65,000/- is required for construction of the shed as per the estimate. Ext. P12 is the estimate for electrical fittings amounting to Rs. 37,196/- prepared by John Joseph, a licenced wireman. In the evidence of PW 1 he described the report of the Investigator deputed by the Insurance Company wilfully caused the fire as totally untrue. Nothing has been elicited from PW 1 in the cross-examination which would indicate against the version of the complainant with regard to the incident. In short we do not find any acceptable evidence to show that the accident took place as a result of wilful act of the complainant. The foregoing discussion would show that the repudiation of the claim was not justified and we therefore direct the opposite .party to settle the claim. The Insurance Company will fix the quantum of compensation within a period of one month from the receipt of this order. The opposite party will pay to the complainant an amount of Rs. 1000/- towards cost. The complainant also will be entitled to interest at the rate of 12% on the amount of compensation fixed from 15th September, 1995, till payment. This is on the basis that a period of two months from the date of accident is required for settlement of the claim. Complaint allowed.