BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st December 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.119/2013
(Admitted on 26.04.2013)
Mr. M Abdul Rahiman,
S/o Mohammed Abdulla,
Aged about 61 years,
Residing near Telecom House,
TATA Compound, B.R. Karkera Road,
Old Kent, Pandwshwar, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Smt. MNA)
VERSUS
1. The Oriental Insurance Co., Ltd.,
Divisional Office,
Vishnu Prakash Building,
Court Road, Udupi, represented
By its Senior Divisional Manager.
2. The Oriental Insurance Co., Ltd.,
Divisional Office,
Beauty Plaza, Balmatta Road,
Mangalore 575 001, represented
By its Senior Divisional Manager.
......OPPOSITE PARTIES
(Advocate for the Opposite Part No.1: Sri. AKK)
(Opposite Part No.2: Ex parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The undisputed facts are the complainant insured his Mechanised Fishing Boat HAYA with opposite party No.1 and while complainants boat proceeded for fishing it was found that its propeller was broken. It was then towed down towards Mechanised Fishing yard for repair. The repairer estimated the cost of Rs.1,92,770/. A claim was made with opposite party No.1 appointed a Surveyor he surveyed and repair were assessed the damage and liability of Rs.1,92,770/ with opposite party No.1 but opposite party No.2 reduced his liability to Rs.68,770/ .
2. The complainant contends there was no just reason to limiting the liability to Rs.68,770/. As such seeks direction to opposite party to pay Rs.1,92,770/ and compensation at Rs.50,000/ interest at 18% on this amounts and legal notice cost at 2,000 totally the claim of Rs.2,44,770/.
II. Opposite party took a stand that it is no bound to pay the amount as claimed as the refitting of the propeller was done on water and there was not necessity of hauling up and re-launching charges of Rs.35,000/. The salvage value of the damaged propeller of Rs.30,000/ is also to be disallowed. Hence seeks to reject the liability.
2. In support of the above complainant Mr. M Abdul Rahiman filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents marked Ex.C1 to C4 detailed in the annexure. On behalf of the opposite party Mr. Sharath (RW1) Divisional Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents marked Ex.R1 to R4 detailed in the annexure.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i): The complainant had insured his boat with opposite party and the surveyor provided and the opposite party refused to pay the entire claim amount of the repair charges in the case and hence there is a live dispute between the parties. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): At Ex.R1 the surveyor mentions after replacement of propeller the vessel was hauled for painting and other routine maintenance work. However it is a farfetched to imagination to replace damaged propeller first under water and then hauling up of the vessel for other maintenance repair work and painting work.
2. As mentioned earlier the damages caused to the propeller of the boat in question while on fishing expedition is not disputed by opposite party the insure company. When complainant laid claim for to the damages caused to the boat admittedly opposite party got the surveyor though the competent surveyor. In his report M/s J. B. Boda Surveyors Pvt., Ltd., at Ex.R1 mentions about insuring and filing the report. In annexure 1 of Ex.R2 boat hauling up and re-launching charge of Rs.35,000/ is shown in the description column as disallowed for the reasons repair was carried out under water hence disallowed. However as seen from Ex.R3 and the attached reports there is nothing to suggest that the changing of the propeller was carried out under water. As such in fact the bill dated 18.2.2012 produced with the other document including issued by one Mr. Narayan Mechanic, South Wharf, Bunder, Mangalore shows Rs.12,000/ for Shaft removing and refitting labour charges. Infact the surveyor did produce the photo of the hauledup damaged boat which is a fact admitted. As such the contention that fitting the propeller was done under water cannot be accepted. There is no indication of the work done under water of refitting the propeller under water. Hence disallowing is amount of Rs.35,000/ is unjustified.
3. It was pointed out for defense the damages of propeller salvage amount of Rs.30,000/ is to be deducted from the total claim laid by complainant. The learned counsel for opposite party pointed out the damaged propeller was of 3 blades and it was replaced after damage with 4 blade propeller. However the surveyor did not make a mention because of such replacement with 4 blade propeller an additional cost occurred in the bill. Hence in the absence of any material of additional cost we are of the view from the total claim of Rs.1,92,770/ of Rs. 30,000/ shall be deducted. Hence the claim of complainant to the extent of Rs.1,57,770/ shall be allowed.
4. In respect of other claim of complainant for damages in our view on this amount of Rs. 1,57,770/ with interest at 9% from the date of offer of Rs.68,770/ till the date of payment of the amount, an amount of Rs.25,000/ towards damages towards mental agony, stress and inconvenience. Legal notice charge of Rs.2,000/ and cost of the proceeding shall also be allowed. Hence we answer point No.2 in the affirmative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is allowed. Opposite parties are directed to pay total claim of Rs.1,57,770/ (Rupees One lakh Fifty Seven thousand Seven hundred Seventy only) with interest at 9% per annum from 6.2.2013 till the date of payment. Opposite party shall also pay Rs.25,000/ (Rupees Twenty Five thousand only) towards mental agony, stress and inconvenience. Legal notice charge of Rs.2,000/ (Rupees Two thousand only) and cost of the proceeding shall also be allowed. Payment shall pay within 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 21st December 2016.
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. M Abdul Rahiman
Documents marked on behalf of the Complainant:
Ex.C1: : Registration certificate
Ex.C2: 08.12.2012 : Office copy of the legal notice with Postal receipt
Ex.C3: : Postal acknowledgement
Ex.C4: 06.02.2013 : Reply notice (original)
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Sharath, Divisional Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: : Surveyors letters with photographs (4)
Ex.R2: : Survey Report of M/s J.B. Boda, Surveyors Pvt., Ltd.,
Ex.R3: : Bills submitted by complainant
Ex.R4: 25.09.2014 : Office copy of reply issued by opposite party To legal notice of the complainant dated 8.12.2012
Dated: 21.12.2016 PRESIDENT
