BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 116/2006 Filed on 06.04.2006 Dated : 30.04.2010 Complainant :
Harbour Engineering Department represented by its Executive Engineer, Office of the Executive Engineer, Fishery Harbour Project Division, Vizhinjam P.O, Thiruvananthapuram.
(By adv.Paraniyam Devakumar, Addl.Govt. Pleader)
Opposite parties :
Divisional Manager, United India Insurance Co. Ltd, Divisional Office, 3rd Floor, Child Welfare Complex Building, L.M.S Compound, Thiruvananthapuram. The Deputy Manager, Regional Office, United India Insurance Company, Saranya, P.B.No. 1181, Hospital Road, Kochi. The Chairman and Managing Director, United India Insurance company, 24, White Road, Chennai – 600 014.
(By adv. R. Jagadish Kumar)
This O.P having been heard on 15.03.2010, the Forum on 30.04.2010 delivered the following : ORDER SMT. S.K. SREELA, MEMBER
Brief facts of the case are the following : Harbour Engineering Department which is a Government Department functioning under the state of Kerala is the complainant in this case. For the purpose of dredging at the Vizhinjam Harbour basin, the pontoon for mounting sand pump from Neendakara was brought to Vizhinjam. After completion of the work, the said pontoon which was insured with the United India Insurance Co. Ltd, for an amount of Rs. 4,00,000/- was towed through the sea to Neendakara from Vizhinjam and on the way due to heavy wind they could not proceed the pontoon and hence were compelled to abandon it in the sea. Subsequently the matter was informed to the Insurance Company and since the claim was not settled positively, the complainant has approached the Forum for reliefs. Opposite parties have filed their version contending as follows: The original petition is not maintainable either on facts or law. It is hopelessly barred by limitation. This O.P cannot be instituted by the complainant as he is not a consumer as defined under the provision of Consumer Protection Act. MMD permission is necessary to bring the pontoons from Neendakara to Vizhinjam and here this has not been followed. Columns 19, 20 & 21 of the O.P shows that this is the second forum which the complainant is approaching because he has already agitated this dispute before the Insurance Ombudsman and since the proceedings there might have got dismissed, he is again approaching this Hon’ble Forum. Even if the complainant is entitled to any amount his right has flown away since time has elapsed. The Advocate General has advised the complainant to initiate Civil action and that advice is flouted and this Hon’ble Forum is being moved and the same is an abuse of process of Law. Hence they prayed for dismissal of the complaint. The issue of maintainability of the complaint was considered as a preliminary issue on the grounds that whether the complainant is a consumer, whether the complaint is barred by limitation, whether this complaint involves voluminous evidence and whether the Advocate General’s letter bar the jurisdiction of this Forum. All the 3 points were found in favour of the complainant and hence the complaint was found maintainable vide a detailed order. The said order on maintainability forms part of this order. On the part of the complainant, PW1 has been examined and marked Exts. P1 to P19. Opposite parties had no evidence. From the contentions raised, following issues arise for consideration now. Whether there is any deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed?
Points (i) & (ii):- The case of the complainant is that for the purpose of dredging at the Vizhinjam Harbour basin, pontoon for mounting sand pump available at Neendakara was towed through the sea to Vizhinjam and after completing the works it was towed through the sea to Neendakara from Vizhinjam. Due to heavy wind they could not proceed the pontoon since the boat was damaged and it was compelled to abandon in the sea. Since the pontoon for mounting sand pump and its accessories were insured for an amount of Rs. 4 lakhs, the loss of pontoon was informed to the Insurance Company with relevant details. But the same was not settled and hence this complaint. The opposite parties have taken out a contention in the version that MMD permission is necessary to bring the pontoons from Neendakara to Vizhinjam and this has not been followed in this case for which the complainant has pleaded that since the pontoon is not a self propelled vessel towage permission from the MMD was not required. Further it was argued for the complainant that the opposite parties have raised the query regarding MMD after a lapse of 6 years. As per Ext. P3(a) it is evident that the claim form duly filled has been forwarded to the opposite parties on 23.05.1989 and from Ext. P5(a) dated 24.08.1992 i.e; after more than 3 years from the date of submission of the claim form it could be seen that the opposite parties have informed the complainant that ’so far your case is not being attended by the concerned dealing office, we were under the impression that the matter has already been settled by our Trivandrum office level........’. This communication itself reveals the irresponsible and lethargic attitude of the opposite parties. Again on 28.01.1993 as per Ext. P5(b), the opposite parties have informed the complainant that they are looking into the matter and it will be settled soon. Again as per Ext. P5(e), the complainant has brought to the attention of the opposite parties that even after a lapse of more than 5 years, the claim has not been settled. Finally as per Ext. P8, the opposite parties have sought for some clarifications for further proceeding the matter which are the following: Whether MMD permission has been obtained and if no the reason for not obtaining such permission and whether the passage from Neendakara to Vizhinjam was insured. The interesting aspect to be noted at this juncture is that, the clarification has been sought for on 29.08.1996 i.e; after a long lapse of 7 years. The opposite parties have nowhere explained the reason for such a long delay. Anyhow, the details regarding clarification have been informed by the complainant to the opposite party vide Ext. P9 dated 23.09.1998. As per the clarifications sought for, the complainant has replied that permission from MMD is not required as the pontoon is not a self propelled vessel. The learned counsel for the opposite party had put a question to PW1 that “MMD-i¤¨T clearance C¿¡·Y¤ ¨J¡Ù® policy conditions violation B¨X¼¤« compensation cvJ¡u company- ´® f¡Ú¬Yi¢¿ F¼¤« dsi¤¼¤ (Q) mj¢i¿, T¢ ±dJ¡j« Hy communication-D« J¢¶¢i¢¶¢¿ (A). Witness adds: A¹¨c¨iÆ¢v 2,88,291/- j¥d 30.03.2005- v Alt offer ¨Oà¤h¡i¢y¼¢¿.”. It is true that on 30.03.2005, the complainant has been offered an amount of Rs. 2,88,291/- towards the claim amount, but the opposite parties have not given any split up details of the amount though it is seen requested by the complainant as per the documents produced on their behalf. In spite of the contention that MMD is required for the instant case, the opposite parties have not produced any document to support the same. The complainant has submitted that MMD is required for self propelled vessel only and the one involved in the instant case is not a self propelled one. Opposite parties have not produced any document to prove otherwise. From the documents and evidence on record, it could be found that obviously the opposite parties have not performed their service promptly and within the stipulated period. The contention put forward by the opposite party is without any base and hence not acceptable. The object of insurance is to place the insured in the same financial position which he was occupying before the happening of the risk covered by the policy of insurance by making good the loss caused due to the risk. The insurance company is required to finalise a claim, at any rate, expeditiously as otherwise the insured will be put to much loss and hardship. In the instant case the insurance company was unable to settle the claim for more than 7 years after the risk had taken place. This delay in settling the claim under any circumstances result in imperfection, inadequacy in the quality, nature and manner of performance of the services which the insurance company has undertaken to render which definitely amounts to deficiency in service. We cannot but express our concern at the inordinate delay in settlement of claim. From the letters issued by the opposite party to the complainant (produced by the complainant) itself it is clear that though various opinions were taken to enable them to come to any settlement, how slack they are in settling the claim. Their own department i.e; the Regional Office was under the impression that the matter has been settled which is evident from Ext. P5(a) which reads that “.......... we regret to note that so far your case is not being attended by the concerned dealing office, we were under the impression that the matter has already been settled by our Trivandrum office level.......”. This communication is seen sent after a period of 3 years from the date of claim. Moreover, the Insurance company had offered Rs. 2,88,291/- on 30.03.2005 and the opposite parties took nearly 16 years to make an offer to that effect. We consider this is a clear deficiency in service. We find that the amount of Rs. 2,88,291/- actually admitted by the opposite parties should be paid to the complainant with 9% interest from 23.05.1989 till realization. Since interest has been ordered there is no separate order as to compensation. In the light of the above discussions, we allow the complaint. The opposite parties are hereby ordered to pay an amount of Rs. 2,88,291/- with 9% interest from 23.05.1989 till realization along with a cost of Rs. 3,000/- to the complainant within a period of one month from the date of receipt of the order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of April 2010.
S.K. SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
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C.C. No. 116/2006 APPENDIX I COMPLAINANT’S WITNESS : PW1 - George Thomas II COMPLAINANT’S DOCUMENTS : P1 - Copy of Marine Hall Acceptance advice dated 26.04.1989. P2 - Letter No. D1-964/87 dated 29.04.1989. P3 - Copy of letter No. D 964/87 dated 15.05.1989. P3(a) - Copy of letter No. D-964/87 dated 23.05.1989. P4 - Copy of letter No. 100400/MEL/1634/90 dated 25.09.1990. P5 - Letter No. CNRO:TECH:MARINE 1300:91 dated 28.05.1991 P6 - Lr. No. 40 GC:CNRO:05:95/1081 dated 30.05.1995. P7 - Lr. No. HO:MH:453:96 dated 13.08.1996. P8 - Lr. No. Mar. Cl. 00010/89:96 dated 29.08.1996 P9 - Lr. No. 404/D4/86/CE dated 23.09.1998. P10 - Lr. No. 8022/D4/99/CE dated 18.01.2001. P11 - Lr. No. 8022/D2/99/CE dated 02.04.2004. P12 - Lr. No. B4/8928/99/CE dated 13.07.2004. P13 - Lr. No. D3/795/96/EE dated 04.11.2004. P14 - Copy of phonogram No. D3/795/96/EE dated 30.11.2004. P15 - Copy of letter No. D3/795/96/EE dated 03.02.2005. P16 - Copy of letter No. 100400:SDM:4256:05 dated 30.03.2005. P17 - Copy of the letter No. D3/795/96/EE dated 11.04.2005. P18 - Lr. No. D3/795/96/EE dated 12.05.2005. P19 - Lr. No. D3/795/96/EE dated 07.06.2005.
III OPPOSITE PARTY’S WITNESS : NIL IV OPPOSITE PARTY’S DOCUMENTS : NIL
PRESIDENT
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER
O.P.No. 116/2006 Filed on 06.04.2006 Dated : 24.03.2008 Complainant :
Harbour Engineering Department represented by its Executive Engineer, Office of the Executive Engineer, Fishery Harbour Project Division, Vizhinjam P.O, Thiruvananthapuram.
(By adv.Paraniyam Devakumar, Addl.Govt. Pleader)
Opposite parties :
Divisional Manager, United India Insurance Co. Ltd, Divisional Office, 3rd Floor, Child Welfare Complex Building, L.M.S Compound, Thiruvananthapuram. The Deputy Manager, Regional Office, United India Insurance Company, Saranya, P.B.No. 1181, Hospital Road, Kochi. The Chairman and Managing Director, United India Insurance company, 24, White Road, Chennai – 600 014.
(By adv. Sri. R. Jagadish Kumar)
This O.P having been heard on 03.03.2008, the Forum on 24.03.2008 delivered the following :
ORDER
SMT. S.K. SREELA, MEMBER
Harbour Engineering Department which is a Government Department functioning under the state of Kerala is the complainant in this case. For the purpose of dredging at the Vizhinjam Harbour basin, the pontoon for mounting sand pump from Neendakara was brought to Vizhinjam. After completion of the work, the said pontoon which was insured with the United India Insurance Co. Ltd, for an amount of Rs. 400000/- was towed through the sea to Neendakara from Vizhinjam and on the way due to heavy wind they could not proceed the pontoon and hence were compelled to abandon it in the sea. Subsequently the matter was informed to the Insurance Company and since the claim was not settled positively, the complainant has approached the Forum for reliefs. 2. The opposite party, United India Insurance Company has filed their detailed version and has insisted to hear the question on maintainability of this complaint as a preliminary issue on the following grounds that since the litigation involves voluminous evidence the same can be tried only before a civil court and as per letter from the Advocate General produced by the complainant the matter can be tried only before a civil court. That the complaint is barred by limitations and it is further contended that the complainant is not a consumer under the provisions of Consumer Protection Act and in the above circumstance both the parties were heard in detail on the question of maintainability of the complaint. 3. Before going into the merits of the case, it is necessary to dispose of the preliminary objections of opposite party. 4. The main points to be considered at this juncture are :- Whether this complainant is a consumer as defined under the provisions of the consumer Protection Act? Whether this complaint is barred by limitation and finally Whether the complaint involves voluminous evidence and whether the Advocate General's letter bar the jurisdiction of this Forum to try this complaint?
5. Point (1):- We have perused the materials on record and also heard the arguments. The complaint is filed by Harbour Engineering Department, which is admittedly a Government Department functioning under the State of Kerala. The question is whether a State Government can be a consumer. Complainant has been defined in Sec. 2(1)(b) of the Act which reads thus: “complainant” means - a consumer; or any voluntary consumer association registered under the Companies Act, 1956(1 of 1956), or under any other law for the time being in force; or the Central Government or any State Government one or more consumer; where there are numerous consumers having the same interest; who or which makes a complaint in case of death of a consumer, his legal heir or representative.
From a bare look to clause (iii) of Sec. 2(1)(b) it is evident that Central Government or any State Government can be a consumer. Complainant is not a commercial establishment but a statutory body. The main objectives of the Government are for public benefit. Here, the opposite party is none other than an insurance company. Further it is a settled position that hiring of services of the Insurance Company by taking insurance policy by complainants even those who are carrying on commercial activities cannot be held to be a commercial purpose. The policy is taken for reimbursement or for indemnifying the loss which may be suffered due to various mishaps. There is no question of trading or carrying on commercial activities in insurance policies by the insured even if the insurance coverage is taken for commercial activity carried out by the insured. Moreover the Insurance companies can be proceeded against in the Consumer Forum for deficiency in service. The National Commission has in M/s Harsolia Motors Vs. M/s National Insurance Co. Ltd., and M/s Diwakar Goiram Porkhayat Vs. M/s National Insurance Co. Ltd.,M/s Tractor House Vs. M/s National Insurance Co. Ltd. First Appeal Nos. 159-161 of 2004 reported in 1986-2005 Consumer 9756 (NS) held that taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose. Taking all this into consideration there is no doubt in our mind with regard to the fact that the opposite party was rendering 'services' as defined in Sec. 2(1)(o) and the complainant is very much a consumer within the meaning of 2(1)(b)(iii) as the complainant had availed of the services of the opposite party for a consideration. The complainant is completely covered by the definition given under Sec. 2(i)(b) of the Act, hence the objection of opposite party is not tenable. 6. Point (2) :- It is contended on behalf of the opposite party that the complaint is hopelessly barred by limitations under the Consumer Protection Act, since the said pump was allegedly lost on 08.04.1989 and the complaint has been filed in 2006. As per the pleadings in para 22 of the complaint, it has been averred that the opposite party has suggested an amount of Rs. 288291/- for settlement of the claim and the communication for the same has been filed by the complainant before this Forum along with the complaint. In this context, it is pertinent to note that there was communication from the opposite party to the complainant in the year 2005 and moreover the correspondence was going on even after that by the complainant. As could be seen from the materials on record, the complainant was continuously in touch with the opposite party. Considering the last communication from the opposite party in the year 2005, as borne by record produced by the complainant, we see this complaint as have been filed within the period of limitation without any delay. 7. Point (3) :- The complainant has filed 21 documents. Most of the documents are communications in between the complainant and the opposite party. Since these documents are only letters, this Forum is of the view that these documents are capable of being determined by summary trial. We do not share the view of the opposite party that this case involves voluminous evidence, hence it is to be agitated before a civil court. As a matter of fact the Forum has only to go into the question of deficiency in service and no expert evidence is required. This can be gone into by this Forum in a summary trial. 8. The counsel of the opposite party vehemently argued that, as per the Advocate General's letter, which has been produced by the complainant itself, the complaint can only be tried before a civil court and this Forum lacks jurisdiction. The complainant's counsel contended that, they have filed this complaint according to the recommendation of the Advocate General, and has accordingly opted to file complaint before the Consumer Forum which is also a civil court according to them. On a perusal of the alleged document, it is seen that, the said communication from the office of the Advocate's General is only a legal opinion with regard to the settlement of insurance claim of lost pontoon in which the Advocate General has opined to take immediate civil action before the civil court. This Forum is not bound by that document and hence that does not oust the jurisdiction of this Forum to adjudicate upon this complaint. It is very clear that the intention of the Act is that while parties may have a right to take remedy by way of civil suit, "consumers" having a grievance that they have been put to loss on account of "deficiency in service" in respect of 'hiring of service' for consideration could be provided with
an alternative cheap, speedy and efficacious remedy before the Statutory Redressal Forums. It is the discretion of the complainant to file the complaint before appropriate court for seeking remedy. Hence the objection of the opposite party is not tenable.
9. In the light of the above discussions, this Forum is of the view that the complaint is maintainable before the Forum.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K.SREELA : MEMBER
| | [HONABLE MR. JUSTICE President] President[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[ Smt. Beena Kumari. A] Member | | 
