KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISISON

VAZHUTHACAD, THIRUVANANTHAPURAM

CC.10/06

JUDGMENT DATED: 11.3.2010

PRESENT

JUSTICE SRI.K.R.UDAYABHANU            : PRESIDENT

SRI.M.K.ABDULLA SONA                        : MEMBER

G. Soman, Proprietor,                                  : COMPLAINANT

Rohini Silk House, Pulamon,

Kottarakara, Kollam District.

(By Adv.R.Bahuleyan)

                   Vs.

The New India Assurance Co. Ltd.,              : OPPOSITE PARTY

Represented by its Branch Manager,

New India Assurance Co. Ltd.,

Branch Office,Kasturba Builidngs,

Pulaman(PO), Kottarakara.

(By Adv.V.K.Anilkumar)

JUDGMENT

JUSTICE SRI.K.R.UDAYABHANU  : PRESIDENT

The case of the complainant is that he was running a textile shop M/s Rohini Silks and that the stock in the shop was insured with the opposite party/Insurance Company for a sum of Rs.32,00,000/- .  The goods were hypothecated with SBT during the period of insurance.   On 26.3.04 at about 9.30 p.m the shop building caught fire and  textile  goods worth more than Rs.30 lakhs  were destroyed.  The police registered the case as Crime No.310/2004.  The surveyor inspected the premises and filed report.  The claim of the complainant was repudiated on 18.7.05 alleging that the goods destroyed included goods stocked in the terrace of the building which is not an approved construction  and also on the ground that the complainant is not the proprietor and hence has no insurable interest.  Since the commencement of the policy he has not carried out any additional construction or modifications or extension in the Rohini tower building.  He was running the business as his proprietary concern  although he has availed a loan from the Bank on production of an unregistered  deed jointly executed by his wife and 2 sons.  It is also alleged the claim has been repudiated after 15 months of the occurrence.  The above repudiation is illegal. He has claimed as 30,00,000/- as compensation towards the value of the goods destroyed.

2. The opposite parties have filed version contending that the fire had occurred in the accessory construction in the open terrace which was a temporary  unauthorized construction.  The policy is only with respect to  authorized construction of M/s Rohini Silks.  It is also contended that the policy was issued to the proprietary concern with the complainant as a proprietor.  It is seen that in the Kerala State General Sales tax returns of M/s Rohini Gold Palace and Silks the address of dealer is given as Mrs.Valsalakumari.K. The deed of partnership produced before S.B.T. Kottarakkara would show that  the shop was a partnership containing 4 partners.  The quantum of the loss is also disputed.

3. The evidence adduced consisted of the testimony of  PW1, DWs 1 to 3; Exts.A1 to A6 and B1 to B15.

4. PW1 the complainant has testified in terms of the averments contain in the complaint.  He has also produced the policy claim form, renewal letter, copy of FIR, title deed of the building in the name of the complainant and ownership in the name of the complainant.

5. DW1 is the surveyor who submitted Ext.B1 survey report, Ext.B2 series of photos and Ext.B8 as well as Ext.B14 plan of the building.  DW2 the Panchayat Secretary was testified that the entire building is an unauthorized construction.  DW3 is the Manager of SBT.

6. On a verification of Ext.A1/B3 policy we find that there is no description of the building as such.  It is only mentioned as shop building.  No objective evidence has been produced to establish the fact that the construction in the terrace portion was effected subsequent to obtaining the policy.  The goods in the constructed portion of the terrace as well as in the floor below were destroyed in fire.  In the absence of the evidence in this regar