IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                    Thursday the  13^th day of  January, 2022

                                       Filed on 16.01.2019

Present

1.  Sri.S.Santhosh kumar, BSc. LLB (President)

2.  Smt.C.K.Lekhamma, B.A, LLB (Member)

                                                          In

                                         CC/No.14/2019

                                                     Between

Complainant:-                                    Opposite parties:-

Sri.Bhaskaran, S/o of Kannan             1        Sri.P.D Rajendran,

Aged 58 years                                             Owner “House boat named ‘Manikandan’”

Kannasserikuni House                                   Near Kuppappuram Jetty,

Post Thikkode Panchayath                           Alappuzha District

Kozhikkode District                                    Pin : 688011

Pin : 673529                                                (Adv.Sri.R.Sanalkumar)

(Adv.Sri.Abhilash C Soman)             

2.       M/s National Insurance Company Ltd,

                                                                   Changanachery Branch

                                                                   Parakkadvil Complex, Opposite No.1

Private Bus stand

                                                                   Place Road, Changanachery, Kerala

                                                                   Pin : 686101

                                                                   (Adv.Sri.C.Muraleedharan)

                                                     O R D E R

SMT.C.K.LEKHAMMA (MEMBER)

Complaint filed under section 12 of Consumer Protection Act 1986. 

Complaint briefly stated are as follows:- 

 Complainant is the father of late Rijesh, aged 32 years who died in a Houseboat accident on  14.09.2014 at 10 PM at Punnamada lake, who was the part of a 6 member team of his friends and  families. The deceased and his friends hired a houseboat named ‘Manikandan’ from the opposite party  No.1 on 14.09.2014 at 11 AM from Pallathuruthi for a day trip. They paid Rs. 10,500/- (Rupees Ten  thousand and five hundred) as the rent of the houseboat which belongs to the 1st opposite party. The  houseboat was a double decor having two bedrooms. The trip started at 11.AM from Pallathuruthi and  after visiting many locations the boat halted at Punchiri jetty at 6.00 PM. While they were resting at the  houseboat Rijesh went to the upper deck at 10.00 PM for urinating. The houseboat was not having any  covering and thus Rijesh slipped off from the houseboat and fell into the water. His friends and the  boat driver attempted to save Rijesh but in vain as they could not track him and his dead body was  found on the next day that is on 15.09.2016 at 5.45 AM. 

          The late Rijesh was an electrician by profession. He was residing along  with his parents and brother. The above accident happened only due to the carelessness and negligence  on the part of opposite party No.1. The houseboat was not having proper protection or covering to  prevent such types of accidents. Also, the driver had not given any proper instructions or warning to the  passengers while opening the door. The said houseboat was constructed without proper security  measures and it was halted at a place where the depth of the water was 2 meters. The opposite party  No.1 had not taken proper care and caution as well as failed to provide protective measures while  allotting the houseboat to the tourists. If the driver of the boat employed by the opposite party No.1  was vigilant and extended proper care and caution, the accident could not have happened. The  opposite party failed in providing adequate safety measures which a prudent man running this type of  business should ordinarily exercise while allotting the houseboat. 

          Sri.Rijesh was the sole breadwinner of his family. The complainant is aged 56 years and is a  coolie. The complainant is suffering from pain on both legs and as such he is not in a position to pursue  his work. The main income of his family was shattered by the sudden demise of Rijesh. The loss cannot  be ascertained in terms of money considering the age, profession, and character of Rijesh. The complainant claims Rs.10 lakh as compensation due to the recklessness and negligence on the side of  the opposite party No.1. The houseboat bearing No.KIV/ALP/HB/0712/2011 was insured with the  second opposite party . The opposite party No.1 being the owner of the boat and opposite party No.2  as the insurer of the boat is jointly and vicariously liable for the above loss of the complainant. The  complainant’s son and his friends have hired a commercial houseboat. Being the legal heir of the  deceased, the complainant is a consumer within the definition under the Act.

          The cause of action for this complaint has arisen in the Kainakary village where the place of  accident is situated within the local limits and jurisdiction of this forum. Hence the complainant  approached before this Commission for following reliefs. 

a) Direct the opposite parties to pay an amount of Rs.10,000,00/- (Rupees Ten lakhs) as compensation to  the complainant. 

2. Version of the 1st opposite parties is as follows:- 

          The 1^st opposite pary contented that the complainant is not a consumer within the definition under the Consumer Protection Act. He is not entitled to get  any compensation from the 1st opposite party. 

The complaint is neither maintainable in law nor sustainable on facts. It is barred by limitations. The  complaint preferred a complaint before the CDRF Kozhikkode and it was dismissed for want of territorial  jurisdiction on 08.05.2018 the present complaint filed by suppressing the above facts. Hence it is not  maintainable. It is true, that the deceased , his friends and families were hired the houseboat owned by  the 1st opposite party on 14.09.2014 at 11 AM from Pallathuruthy for a one day trip. While the  houseboat halted at Punchiri jetty the deceased went to the side of the houseboat at about 10 PM and  as he was trying to get outside the protective fence he slipped off from the boat and fell into the  water. The said accident happened due to negligence on the part of the deceased. 

          There was no negligence or carelessness on the part of the 1st opposite party. The allegation that  the houseboat was not having proper protection or covering to prevent such type of accident is not  correct. The houseboat has proper barricades and fences to prevent such types of incidents. There was  no negligence on the part of the cruise members of the said houseboat. The alleged incident happened  solely due to the rash and negligent act of the deceased. He ignored the warnings and directions given  by the boat cruise when he went to the upper deck of the boat. 

          The complainant is not entitled to get any compensation from the 1st opposite party. There was  no negligence or latches on the part of the 1st opposite party. There is no cause of action for the  complaint and the cause of action stated is not correct. The 1st opposite party is not liable to pay any  compensation to the complainant. Hence the complaint is to be dismissed at the cost of the opposite  party. 

3.      Version of the 2nd opposite party is as follows:- 

 The complaint is not maintainable either in law or on facts. The complaint is hopelessly time barred. The cause of action arose on 14.09.14 the complaint was filed on 16.01.19 hence the complaint  is liable to be dismissed on the ground of delay. There is no deficiency in service on the part of this  opposite party warranting the jurisdiction of this Forum. The complainant never submitted any claim  before the company nor intimated any claim so far. No claim was reported by the alleged insured,  1st opposite party also. So that no investigator can be appointed to investigate the real cause of the  incident and enter into a final decision regarding the liability of this opposite party hence the complaint  is not maintainable and may be dismissed in-limine with cost of this opposite party. The houseboat by  name Manikandan was insured under Marine Hull Policy in the name 1st opposite party Mr.Rajendran  for the period from 26.03.14 to 25.03.15 for the loss of houseboat, personal accident converges to  crews and passengers. The personal accident coverage for 6 passengers is Rs.1,00,000/- each per passenger subject to the policy conditions. Since no claim was made this opposite party was not in a position to  entertain the claim. Hence no question of repudiation arises therefore there is no deficiency in service  on the part of the company and this opposite party is not liable to pay any amount. 

          It is understood that the registration and license of the boat were not renewed during the period  of the incident, moreover, it is also understood that no permission was given for the upper deck. Hence  on both counts, this opposite party is not liable as it is a violation of policy conditions. The houseboat  must be perfect in all aspects. There is negligence on the part of the deceased also as he was not taken  proper care of and not obtained any assistance from the crew members. The amount claimed in the  complaint is not correct and cannot be allowed. 

There is no merit and bonafide in the complaint and no cause of action for the complaint. The  cause of action stated is not correct. The complainant is not entitled to get any of the reliefs prayed for  in the complaint. The complainant is not entitled to get any amount as compensation and interest from  the opposite party. There is absolutely no deficiency in service, this opposite party is unnecessarily  dragged into litigation without any cause or reason and hence this opposite party is entitled to get  compensatory cost. 

4. The points for determination are as follows:- 

1. Whether the complaint is barred by limitation? 

2. Whether the 1st opposite party has committed any deficiency in service? If so what would be the quantum  of compensation? 

3. Whether the 2nd opposite party is liable to indemnify the complainant? 

4. Reliefs and costs if any? 

5. The complainant was examined as Pw1, Exts.A1 to A6 were marked, thereafter Pw2 to Pw5 were examined  and Ext.X1 was also marked.Rw1 to Rw3 were examined from the side of the opposite party and Ext. B1 was  marked. The counsel for the complainant field argument notes and we have heard both sides. 

5. Points.Nos.1 to 3 

The case of the complainant is that his son Rijesh and his friends booked a houseboat owned by the 1st  opposite party on 14/9/2019, selecting a day and night package for Rs.10,500/-. The boat was insured by the  2nd opposite party . After the day trip, the boat halted at the jetty at about 6 pm. While resting at the  houseboat, the complainant's son Rijesh came out of the room and he slipped and fell into the water through the gap of back door near the staircase at about 10 pm and he died, Pw2is the eyewitness of the incident. The first  opposite party was not present at that time, the driver of the boat jumped into the water and attempted to  save his life but he couldn’t save him. The untoward incident occurred due to the dereliction of the duty and  deficiency in service of the 1st opposite party. The 2nd opposite party, the Insurance Company is bound to pay  the insurance amount to the complainant.

Ext.A1 is the copy of the inquest, A2 is the copy of the FIR, A3 is the copy of Seen Mahazar, A4 is the copy of the  Postmortem report, Ext.A5 is the copy of the Death certificate, and Ext. X1 is the copy of the Certificate of the  Registration of the boat. 

The 1st opposite party contended that the accident was due to negligence on the part of the deceased since he  had taken all the precautions to avoid such incidents. When at the time of the accident the crew of the boat  tried his level best to save the life of the deceased. The deceased had ignored the warning and direction given  by the crew of the boat. 

The 2nd opposite party resisted the allegations in the complaint and stated that the complaint is barred by  limitation and the complainant failed to file a petition to condone the delay. The accident was not reported  and never submitted any claim before them by the 1st opposite party. The houseboat involved in the accident  was insured under Marine Hull policy in the name of the 1st opposite party for a period from 26.3.14 to 25.3.15  for the loss of the houseboat, personal accident coverage to Crews and passengers. The personal accident  coverage for 6 passengers is Rs.1,00,000/-each per passenger subject to the policy conditions.Ext.B1 is the  policy terms and conditions. 

The opposite party raised the contention of limitation for filing this complaint. IA.No.367/2021 filed by the  complainant for condoning the delay in filing the complaint was already heard and decided in favour of the  complainant. Therefore, the question of limitation can not be raised. 

Late Rijesh, who availed paid service from the 1st opposite party , while conducting the service the untoward  incident had occurred. The complainant is the father of late Rijesh so he is being the beneficiary and also the  legal heir of the deceased and he has every right to file a complaint under sec.2(1)(b)(v) of the Consumer  Protection Act 1986. 

Exts A1 to A4 documents revealed that the cause of death is drowning. No dispute has been raised about the  cause of death. In Ext., A1 and A2 it is mentioned that when pw2, Shyju was watching the TV he saw the  deceased has come out of the room and had gone near the side door of the boat.Pw2 heard the sound of fall,  he rushed to the spot and he saw Rijesh was drowning. 

 It is to be noted that the contradictory statement of Rw1 and Rw2 about the accident and about the safety  measurements they were adopted for the passengers.Rw1, the 1st opposite party deposed that he has not  appointed a cruising guide in his boat but the contention in his version, the deceased did not obey the  directions of the cruising guide. Further, he deposed that he was in the boat at the time of the accident.  But the witness RW2, the driver of the boat, deposed that RW1 was not present in the boat at the time of the  accident. So at the time of the accident, nobody was with RW2 and the passengers. In Ext.A3, the copy of seen  mahazar it is narrated that on the Eastern side of the boat there is a half door with a lock. Suppressed said facts  by Rw2, he deposed that 5’ Dbcw DÅ {Kn ap³ hi¯pw A¸À sU¡nepw D­v.  If so, that might have been reported in  Ext.A3 seen mahazar.  Further deposed that 8 aWn¡v tijw bm{X-¡mÀ apdn-¡p-Ån Ib-dn-sb¶v Dd¸v hcp-¯nb tijw Ign-¡m³ t]mbn.  Further adds A¶v Sn.-hn. 8.30 ]n.-Fw.-hsc {]hÀ¯n-¨p.  The cause of death is not being disputed so it can not be ruled out that  the deceased slipped and fell through the half door into the water since the half door had no sufficient height  or it was not locked properly. During cross-examination, Rw1 agreed like so, he deposed that lÀPn-¡m-csâ aI³ dntPjv t_m«nsâ sskUn \n¶ kabw sX¶n-ho-Wp.  sÌbÀ tIknsâ hmXn-ensâ hgp-Xn-eqsSbtà hoWXv (tNm-Zyw) AsX (D-¯-cw).  It is crystal clear from the evidence that opposite party No. 1 has committed negligence in taking  necessary precautions for the protection of passengers.

         PW5, the survey and the Port officer deposed that as per the records, the validity of the survey certificate  is only up to 13.3.2014. Seemingly during the period of the accident, the houseboat did not have a valid fitness  certificate. Nothing is on records that the 1st opposite party has taken any necessary precautions about the  protection of the passengers.  

         From the above discussions, it is understood that Rw2 was alone at the time of the incident so he could not  save Rijesh since he was the only experienced person in the boat to swim. Though it is the bounden duty of  1^stopposite party to ensure the protection of his customers as he agreed with them , he failed to take important  safety measures to appoint another experienced person along with Rw2 for the protection of the passengers if  one more person was available there who knows swimming they might have saved the life of Rijesh.  Admitted  by 1^st opposite party during his cross-examination that Rijesh slipped through the gap of half-door into the  water. This is a grievous lapse of safety precautions by the 1^st opposite party 1. Due to his negligent acts, the  complainant has lost his son. We can understand the pathetic condition of the complainant and his family who  lost their son who was the breadwinner of the family, due to the sole negligence on the part of the 1st  opposite party which resulted in severe mental agony to the complainant and his family. The said acts of the 1^st opposite party attribute deficiency in service. Therefore, we conclude that the 1st opposite party is liable to pay compensation to the complainant. 

Then we have to find out the answer to the following question. 

1. Whether the 2nd opposite party is liable to indemnify the complainant with regards to the accident? 

Firstly, the 2nd opposite party produced and marked Ext.B1 policy with terms and conditions, during cross examination, Rw3, who deposed that Ext.B1 was issued from Changanassery Branch of the said opposite party  and the same is not attested by him. The counsel appearing for the complainant pointed out his doubt about  the genuineness of Ext.B1.On a perusal of the said document, it seems that the terms and conditions attached  along with the policy are not the part of policy. Both are printed on different kinds of paper. 

 Secondly, the original policy was issued on 25.3.2014 but it appears that Ext.B1 has been signed at  Changanassery on 5.12.2017, the said discrepancy is pointed out in the complainant's argument notes. The  original policy is not produced by the 1st opposite party. Either the officer, who issued the same or the officer  who signed Ext.B1 is not mounted in the box. On this point the learned counsel for the complainant placed a decision rendered by Hon'ble Delhi HC in National Insurance Company Ltd. Vs. K.R.Murgeshan &Ors. 2013(2) ALL MR (JOURNAL) 21 Wherein the original policy was not produced by the policyholder, in this circumstances the  insurance company was entitled to lead secondary evidence to prove the policy but the policy for the relevant  period has not been placed on record what is stated in section 63 of Evidence Act. 

1. Certified copies given under the provisions hereinafter contained; 

2. Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; 

3. Copies made from or compared with the original; 

4. Counterparts of documents as against the parties who did not execute them;

5. Oral accounts of the contents of a document given by some person who has himself seen it. 

         In which it is found that in the absence of original policy, the insurance company has failed to produce  secondary evidence within the meaning of section 63 of the Evidence Act. The above decision is squarely  applicable in this present case since the original policy is not produced by the 1st opposite party and the 2nd  opposite party has produced Ext. B1, we have already discussed the genuineness and doubtfulness of Ext.B1. 

Further, The 2nd opposite party contended that the policy taken by the 1^st opposite party is a Marine Hull  Policy for total loss including the risk cover for the crew and the passengers, and the liability of the passenger(6)  is fixed as Rs.1,00,000/-each. On a perusal of B1, nowhere does it mention the ‘personal accident ‘liability’. It is  pointed out in the complainant’s argument that even though the 2nd opposite party had admitted the policy  they are hiding the actual policy copy, proposal form, actual terms, and conditions, etc. In support of their  argument, they have produced the Conditions of Marine Hull Policy, taken from the website of the National  Insurance Company. It seems that there are three types of Marine Insurance Policies 1. Marine Insurance Open  Cover 2. Marine Insurance Open Policy 3. Marine Insurance Specific Policy. 

The Overview of said policy as mentioned on the opposite party's site is Marine insurance covers the loss or  damages of ships, cargo, terminals, any transport by which the property is transferred, acquired, or held  between the points of origin and the final destination. Cargo insurance is the sub-branch of marine insurance,  though Marine insurance also includes onshore and offshore exposed property, (container terminals, port, oil  platforms, pipelines), hull, marine casualty, marine liability when goods are transported by mail or courier,  shipping insurance is used instead. Moreover, it appears that Marine Hull policy including ‘marine casualty', it  can be presumed that an event, or a sequence of events, has resulted in any of the following which has  occurred directly in connection with the operations of a ship:- the death of, or serious injury to a person. 

On perusal of Ext. B1 policy, it is understood that the houseboat was insured under Marine Hull Policy  and has personal accident coverage the same is mentioned towards the head ‘Special Peril’:- Total loss,  Collision Liability as per Risk Cover, PA. for 6 (six) passengers at Rs. 1,00,000/- each and PA for 3(three) crew  members at two lakhs each. In addition that towards the head “subject to clause:-Clauses applicable to Marine  Hull Port Risk.” But on the verification of terms and conditions attached to Ext.B1, does not mention anywhere the  ‘personal Accident liability’. It seems that the terms and conditions attached with Ext.B1 are not actual ones. So  the 2nd opposite party suppressed the actual terms and conditions of the policy as argued by the counsel for  the complainant is acceptable. The learned counsel appearing for the complainant invited our attention to the  following decisions rendered by Hon'ble HC of Delhi in Chandro Devi & Ors. V.Jit Singh & Ors., 1989 ACJ 41, the court held that in the absence of proof of the insurance policy by the insurance company it shall be presumed  that the liability of the insurance company is unlimited. Relevant discussion of said case is that:-

 “the insurance company must prove that the policy in question is the “Act only policy. The amount  mentioned by the statute is the minimum amount. But the policy can always cover the higher risk to a third  party by taking an additional premium. It is obligatory on the part of the insurance company to prove the  insurance policy and its terms and conditions. In several decisions by this court, it has been held that where the  insurance company has to produce the insurance policy or prove the same by law, then, it shall be presumed  that the liability of the insurance company is unlimited”. Hence it is found that the insurance company has  failed to prove the insurance policy by law, the liability of the insurance company is unlimited in the present  case. 

         A Division Bench of Hon’ble Delhi High Court in New India Assurance Company Ltd. V. Darshan Singh & Ors, 1992 ACJ 533  held that where the insurance company wishes to take a defense (in a claim petition) that its liability was not  more than statutory liability it should file a copy of the insurance policy along with its defense. It was observed  that a printed copy of the policy would not be enough to prove the plea of limited liability. 

As stated above we have no hesitation to hold that the policy for the relevant period was not proved and  found that the liability of the 2nd opposite party is unlimited in the present complaint. 

 Another aspect to be decided is Whether there is any policy violation on the part of the 1st opposite party  ?. 

Firstly, the 2nd opposite party contended that the registration and license of the boat were not renewed during  the time of the accident. Concerning this point, RW3 deposed about the criteria of the issuance of the policy is  “Registration tcJ-IÄ ImWmsX t]mfnkn sImSp-¡m-dn-tÃ?” “Cu t_m«nsâ tcJ-IÄ I­tijw BWv t]mfnkn issue sNbvX-Xv”.  Further, he deposed that without perusing the concerned documents he could not say whether Ext.B1 is a  renewed policy or not. Secondly, whether an upper deck is permitted for registration?. On perusal of Ext.X1, a  copy of the Registration certificate in which it is written towards the' number of decks' mentioned is  “Twin”. Therefore, we do not find any policy violation as claimed by the 2nd opposite party, the Insurance  Company. 

         Since there was valid insurance for the period from 26.3.2014 to 25.3.2015 with Personal Accident  coverage to crews and passengers and upon perusal of the evidence of Pw5, the Port officer that at the time  there was a valid policy prevailing and also found the liability of the2nd opposite party is unlimited. Therefore,  we come to the irresistible conclusion that for the negligence on the part of the boat owner, the 1st opposite  party there is valid policy coverage at the time of the death of Rijesh and therefore the 2nd opposite party, the  insurance company is vicariously liable to pay the compensation to the complainant. Even though the loss  caused to the family due to the death of a young person who is the breadwinner of the family cannot be  equated in terms of money but considering the limited prayer for granting Rs. 10,00,000/-( Ten lakhs only)  towards the loss of the person, we find that it is adequate to grant that relief, to alleviate the pain and suffering  of the dear and near including his father, Pw1.We have already found that the1st opposite party is liable to pay  compensation to the complainant for deficiency in service at the same time, both opposite parties are also  liable to pay the cost of the proceedings to the complainant. Following assessment concerning the fixation of  compensation made by the complainant based on Hon'ble Apex court judgment is to strengthen their limited  prayer. 

The liability in the present case can be assessed by scrutinizing the evidence available in this case and  fixing the compensation under the different heads of costs as laid down by the Hon'ble Apex court in its  judgment in National Insurance Company Ltd. V.Pranay Sethi and others 2017(16)SCC 680,2017(5)KHC 350.  Based on the above decision the different heads of accounts are shown in the complainant's argument notes is  shown below:- 

Future Prospects

General & Non-Pecuniary damages 

Deduction for personal expenses 

Multiplier Question

Here the age of the deceased “32” multiplier is 16. He was working as an ‘Electrician’; 10,000 Rs/ month  income. 

Unmarried (deduction of personal expenses) ½ 

Future prospectus: 10,000x12x16x1/2 = 9,60,000/- 

Loss of estate: 15,000/- 

Funeral Expenses: 15,000/- 

Transportation: 10,000/- 

Grand Total : 10,00,000/- (Ten lakhs only) 

Point no.5 

Accordingly, the complaint is allowed and direct as follows:- 

1. The first opposite party is liable to pay Rs.50,000/-(Fifty thousand) towards compensation for deficiency in  service to the complainant within the stipulated period mentioned below. Failing which said amount shall carry  interest @8%p.a from the date of complaint till realization. 

2. The 2nd opposite party is liable to pay Rs.10,00,000/-(Ten lakhs) as compensation to the complainant with  interest @8% p.a from the date of complaint till realization. 

3. Both opposite parties are jointly and severally liable to pay 25,000/-(Twenty five thousand) as litigation cost  to the complainant. 

The order shall be comply within one month from the date of receipt of the copy of this order. 

 Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open  Commission on this the 13th day of January, 2022. 

Smt.C.K.Lekhamma (Member)

Sri.Santhosh Kumar (President)

Appendix:-

Evidence of the complainant:-

PW1                           -           Sri.Bhaskaran K.K (Witness)

PW2                           -           Sri.Shyju (Witness)

PW3                           -           Sri.Shine T.K (Witness)

PW4                           -           Sri.M.Chandran (Witness)

PW5                           -           Captain Aswani Prathap (Witness)

Ext.A1                       -           Copy of inquest 

Ext.A2                       -           Copy of FIR

Ext.A3                       -           Copy of seen mahazar

Ext.A4                       -           Copy of postmortem report

Ext.A5                       -           Copy of death certificate

Ext.A6                       -           Copy of certificate of the registration

Ext.X1                       -           Copy of certificate of the registration of the boat.

Evidence of the opposite parties:-

RW1                          -           Sri.P.D.Rajendran (Witness)

RW2                          -           Sri.Mohanan V.S (Witness)

RW3                          -           Sri.Abhilash.S (Witness)        

Ext.B1                       -           Policy terms and conditions

// True Copy //

To

            Complainant/Oppo.party/S.F.

                                                                                                               By Order

                                                                                                         Assistant Registrar

Typed by:- Sa/-

Compared by:-