BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION :HYDERABAD
F.A.No.430/2008 against C.D.No.128/2004, Dist. Forum,East Godavari at Kakinada.
Between:
Kamadi Nookaraju,
S/o.Peraiah,
Yetimoga,
Kakinada-2,
East Godavari District. …Appellant/
Complainant
And
The Divisional Manager,
Oriental Insurance Company Limited,
Divisional Office, Sri Krishna Complex,
Near Girls High School,
Kakinada,
East Godavari District. … Respondent/
Opp.party
Counsel for the Appellant : M/s. V.Gowrisankar Rao
Counsel for the Respondent : Mr.Bhaskar Poluri
CORAM: SMT. M.SHREEHA, HON’BLE MEMBER
AND
SRI K.SATYANAND, HON’BLE MEMBER
MONDAY,THE THIRTY FIRST DAY OF AUGUST,
TWO THOUSAND NINE.
Oral Order: (Per Smt M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.128/2004 on the file of District Forum, East Godavari Dist., Kakinada the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant constructed the boat in the year 1990 at Kakinada by obtaining loan from M/s.Godavari Finance Corporation, Kakinada and he got it registered with Fort authorities , Kakinada under registration no.FKKD 025 on 24.5.1990 in his name and also insured his boat with the opposite party company under policy no.432504/400/00051/MH/95/025 dt. 27.6.1994 for a sum of Rs.8 lakhs and paid subsequent premiums. The complainant got driving license from Fisheries Training Institute, Kakinada and Tindal-cum-Driver competency certificate from the Director of Ports, Kakinada in the year 1987 and 1988 respectively. The boat was being operated for fishing grounds of Kakinada, Annavaram, Pentakota, Uppada, Nalldivi Byravapalem and Machilipatnam etc. On 22.11.1994 while the boat went for fishing in Machilipatnam fishing grounds, the driver/complainant noticed that the boat was moving ahead on netting by taking jolts with heavy bump at the left side of the boat. The luscars got into the boat and found that the inner compartments were fully filled with water and they resorted to bailing of water from the boat with buckets and hand pumps. They checked all sources for ingress of water, but only ascertained that the water was coming into the boat very rapidly and it was opined and confirmed by the driver/petitioner that the cause of ingress of water was due to breakage of stem tube anywhere in its length or the hull around the stem tube could be damaged or both could have happened. In order to save the boat and lives from the unexpected havoc, the driver was navigating the boat towards shore to make it run aground. The boat gradually sunk and drowned completely in the sea at about 3 p.m on 22.11.1994 between Manginapudi and Gollaplem area. After a short period of time the complainant and other crew were rescued by another boat FKKD 340 which was coming in that route and they reached Kakinada at about 10 p.m. on 22.11.1994. The complainant intimated the mishap to the respondent, port officer, Kakinada and other concerned authorities in the night of 22.11.94. As per the instructions of the surveyors of opposite party, the petitioner submitted all the documents and statements pertaining to his boat, accident etc. to the surveyor in the month of March,1995. Inspite of several requests, the opposite party did not settle the claim. Hence the complainant approached the District Forum to direct the opposite party to pay Rs.8 lakhs with interest at 18% p.a. from the date of accident together with costs.
Opposite party filed counter stating that immediately after receiving the intimation, opposite party appointed surveyor M/s.Metcalf and Hodgkinson Pvt. Limited, Kakinada who submitted their report dated 3.10.1996 stating that the claim of the complainant is not genuine and recommended for repudiation. The claim form which was a very essential document for the insurer for settling the claim was not submitted till 4.11.96. The opposite party constrained to appoint another investigator by name K.Nazeeruddin Ahmed to investigate into the matter and after thorough investigation made by the investigator he submitted his report dt.26.3.97 stating that the claim of the complainant was false and recommended for its repudiation. The opposite party repudiated the claim of the complainant by letter dated 22.10.99 addressed to the complainant who had refused to receive the said cover. The opp.party repudiated the claim on the following grounds:
“1.The jerking and bumping of the boat can only be felt either due to collision or grounding or in case of any major break down of either of the trawling wires.
2. In the event of any compartment being flooded the after part of the boat gradually get trimmed down by aft. resulting in the boat’s speed slowing down and giving the driver an indication due to increase in weight of the boat as the weight of the boat is going down due to flooding.
3. Discrepancy in the statements regarding the actual time of the casualty of Boat FKKD 025.
4. Discrepancy in the statements regarding the time taken to travel from the place of casualty i.e. between Gollapelm and Manginapudi and Kakinada Harbour. It is reported that, the rescue boat left the place of casualty at 6 p.m. on 22.11.94 and returned to Kakinada Harbour at 10 p.m. on 22.11.94 itself which means the journey time involved was only 4 hours. The normal considered minimum time is stated to be 14 hours and certainly no one at any cost would travel within 4 hours as stated by the petitioner, crew of the boat F KKD 025 and also the crew of the rescue boat.
5.The statement of the members of crew of the boat F KKD 025 to the effect that all of them were close to each other while swimming and floating in the sea after they had jumped out from their boat and facilitating the rescue boat crew to easily pick them up during the darkness i.e. between 5 pm to 6 pm in the month of November 1994 and that all of them were rescued safe without any casualty.
6. No person from other fishing boat has witnessed the alleged sinking between 3 p.m. to 4 p.m. on 22.11.94 in the sea between Gollapalem and Manginapudi .
7. The petitioner being said to be the experienced driver, could not place any marking buoy near the place of the alleged mishap, which normally the other experienced drivers will do.
8. It is surprised to note that, the petitioner said to be the experienced driver stated that, he was become confused and was in confound state at the time of the happening and therefore he could not place a marking buoy.”
Hence the opposite party submits that there is no deficiency in service on their behalf and seek dismissal of the complaint.
The District Forum based on evidence adduced i.e. Exs.A1 to A10 and Exs.B1 to B10 and pleadings put forward dismissed the complaint without costs.
Aggrieved by the said order the complainant preferred this appeal.
The learned counsel for the appellant/complainant submitted that the boat sank in the sea within 12 days of commencing voyage and the repudiation letter dt.22.10.1999 was never served on the complainant and more over the repudiation was done after four years of the sinking of the vessel. He submitted that the cause of the sinking of the boat was due to ingression of water into the boat, due to breakage of stem tube which falls under ‘sea perils’ as per the terms and conditions of the policy. The repudiation letter was filed by the opposite party before the District Forum only on 7.12.2001. The District Forum failed to see that the loss of the vehicle falls under Clause 6.22 of the terms and conditions and the crew of the sunken boat was also interrogated and their statements were recorded on 25.11.1994 . The surveyor also did not trace the sunken boat and there is no basis for the surveyor to come to the conclusion that the claim was not genuine.
Hear both sides . We have perused the material on record. The respondent/opp.party also filed written arguments.
The facts not in dispute are that the complainant who is the boat owner of F-KKD-025 insured it with the opposite party on 27.6.1994 for Rs.8 lakhs and the policy was in force by the date of mishap. While the boat was conducting fishing operations on 22.11.94 the driver noticed that the boat was moving ahead on netting taking jolts with heavy bump at the left side of the boat. The luscars got into the boat and found that the inner compartments were fully filled with water and immediately they resorted to the bailing of water from the boat with buckets and hand pumps but the water level increased speedily. After checking all sources for ingress of water, the complainant opined that it is due to breakage of the stem tube anywhere in its length or the hull around the stem tube could be damaged or both could have happened. Within a short time, water entered into the engine and inspite of signals made by the crew, no boat rescued them and they jumped into the sea with life buoys and empty oil cans to save their lives and that the boat completely drowned on 22.11.1994 at 3 p.m. It is an admitted fact that the opposite party appointed a surveyor M/s.Metcalfe and Hudgkinson Pvt. Ltd. who recorded the statements of the crew on 25.11.94 and inspite of search/salvage operations conducted by the complainant with the assistance of the professional salvers the boat could not be traced.
We observe from the record that the complainant first filed a complaint C.D.No. 126/96 before this Commission and this Commission passed an order on 14.2.2003 as follows:
“The opposite parties have appointed investigators as admitted by them and their report is awaited. The incident took place on 22.11.1995. The surveyor’s report is filed on 3rd October, 96. The complainant filed the claim forms on 9.11.96. Investigators are appointed. But the complainants have rushed with this complaint on 11.11.96 i.e. two days after filing the claim forms. Though, the opposite parties admitted that investigators were appointed, no report is filed. The claim is also not finally disposed of by the opposite parties. Having regard to these circumstances, we are of the opinion that while holding that the filing of the complaint is premature, we prefer to peruse the report of the investigators, if any, filed and if for any reason, it is not filed so far, the opposite parties should take a decision within a period of two months from the date of receipt of this order. The question of deficiency in service as alleged by the complainant as well as the effect of delay in taking a decision in finalising the claim would be considered after a decision is taken by the opposite parties within the period mentioned above , in a proceeding that may be initiated by the complainant if he considers/aggrieved by the said order.”
This commission gave two months time to file report and matter was also referred to Lok Adalat but thereafter the matter was remanded to the District Forum as the pecuniary jurisdiction of the State Commission was extended from Rs.20 lakhs to Rs.1 Crore. Thereafter the complainant filed a fresh complaint seeking direction for settlement of the claim of Rs.8 lakhs with interest at 18% p.a. The case of the opposite party is that the incident took place on 22.11.94 and the survey report was submitted on 3.10.96 and the complainant submitted his claim on 4.11.96 which was received by the opposite party on 9.11.96 and the investigator submitted his report on 26.3.97 and the claim was repudiated on 22.10.99 within three years from the date of submission of the claim forms. The learned counsel for the respondent/opposite party submits that the complainant had failed to discharge the burden of proof that the proximity cause of loss was due to peril of sea. He also failed to establish that this respondent had unreasonably repudiated the insurance claim.
The policy period of coverage is not n dispute . It is also not in dispute that the said boat was insured on 27.6.1994 and on 22.11.94 itself the boat was drowned and was never traced. The first ground for repudiation of the opposite party is that
“1.The jerking and bumping of the boat can only be felt either due to collusion or grounding or in case of any major breakdown of either of the trawling wires.
2. In the event of any compartment being flooded the after part of the boat gradually get trimmed down by aft, resulting in the boat’s speed slowing down and giving the driver an indication due to increase in weight of the boat as the weight of the boat is going down due to flooding. “
We find this contention unsustainable in the absence of any documentary evidence or affidavit of any technical person filed in support of this argument. With respect to discrepancy in statements regarding time taken to travel from the place of casualty i.e. between Gollapalem and Manganapudi and Kakinada harbour, it is the case of the opposite party that the journey time is only 4 hours whereas the normal considered minimum time is stated to be 14 hours and certainly no one could travel within four hours as stated by the complainant. We find force in the contention of the counsel for the complainant that the rescue boat F KKD 340 brought the ill fated boat F KKD 025 to Kakinada through Bhyravapalem Canal due to which 5 to 6 hours of the journey time was saved instead of coming over the sea route. The next contention of the opposite party is that the complainant being an experienced driver could have placed marking buoys. Merely because the driver who is also the owner of the boat who also admitted that in the state of confusion he forgotten to take the marking buoys, opposite party cannot justify their repudiation on this ground. We also observe from the record that the opposite party had admitted that Ex.B8 repudiation letter dt.22.10.99 which is three years from the date of submission of claim form and it is also pertinent to note that this repudiation letter was admittedly returned with the postal endorsement ‘not known’ and never reached the complainant. When it is not in dispute that the complainant submitted his claim form on 4.11.96 and the investigator filed his report on 26.3.97, we are of the considered view that the opposite party did not give any substantial reasons for the claim to be repudiated on 22.10.99 which is two and a half years after the investigator’s report. We rely on the judgement of the Apex Court in 1986-99 Cons. 4781 NC 1998(2) CLT 489 SC between UNITED INDIA INSURANCE CO.LTD vs. MKJ CORPORATION wherein the Apex Court held
that for settling or rejecting an insurance claim two months time is reasonable time. In the instant case not only the Insurance Company has taken 3 long years to repudiate the claim, they have also not furnished the surveyor’s report copy to the complainant. When it is not in dispute that the boat was not traced, the contention of the Insurance Company that there was discrepancy in the statements of the crew and that the boat would be subject to jerking and bumping either due to collusion on ground in case of any major breakdown is unsustainable. We find force in the contention of the complainant that there was breakage of stem tube and the water rushed into the boat and this falls under clause 6.22 of the terms and conditions under Sea Perils . It is not the case of the opposite party that there is any exclusion clause excluding cause of drowning of the boat . We have gone through the schedule of policy filed by the opposite party in which under ‘Interest Insured’ : “Hull , Machinery & & Equipment” is included . We also observe from the record that Patta Brahmaswamy, Rekhadi Kasulaiah, Gadela Bhaskara Rao, Kollu Bhyravaswamy, Palepu Sathiraju , Gaedala Tatallu and Kollu Rambabu have signed a statement in which they clearly stated that when they were fishing in the deeper regions on 22.11.94 near Machilipatnam and were returning, they saw signals from some persons at about 4 p.m. and noticed that the crew were swimming with the help of life buoys and empty oil cans and immediately they hurled a rope at them and pulled them to board their vessel one after another and the crew informed that the boat drowned due to sudden ingress of water and all of them were taken on their boat and returned Kakinada at about 10 p.m. As per these statements time taken by the rescuing boat was 6 hours and not 4 hours as stated by the opposite party in their grounds of repudiation . Even otherwise these signed statements clearly establish that the crew were rescued during that time while swimming in that area and the boat had indeed sunk as per the statements of the crew . We have perused the statements of crew in which they have clearly stated that they have made their best efforts to arrest ingress of water, but water levels raised on the deck and boat started drowning . In the absence of any affidavits by any technical persons grounds of repudiation of the respondent/opposite party with respect to statements of crew and the sinking of the boat are unsustainable. We are also of the considered opinion that taking 3 years time to repudiate the claim itself amounts to deficiency in service. Moreover the survey report or repudiation letter were not even handed over to the complainant and therefore taking into consideration the facts and circumstances we are of the considered view that the repudiation of the claim by the opposite parties is unjustified and we set aside the order of the District Forum and allow this appeal directing the opposite party to pay insured amount of Rs.8 lakhs with interest at 6% p.a. from the date of repudiation i.e. 26.10.99 till the date of realization together with costs of Rs.3,000/- .
In the result appeal is allowed . Order of the District Forum is set aside directing the opposite party to pay the insured amount of Rs.8 lakhs together with interest at 6% p.a. from the date of repudiation i.e. 26.10.99 till the date of realization together with costs of Rs.3000/-. Time for compliance four weeks .
MEMBER
MEMBER
DT. 31.8.2009
