Tamil Nadu

North Chennai

179/2013

Mrs.R.Usha - Complainant(s)

Versus

M/S.United India Insurance Co.Ltd Rep by its Branch Manager - Opp.Party(s)

Michael Marie Antony

09 May 2016

ORDER

                                                            Complaint presented on  :  19.09.2013

                                                                Order pronounced on  :  09.05.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

MONDAY THE  09^th DAY OF MAY 2016

 

C.C.NO.179/2013

 

 

Mrs.R.Usha,

W/o. V.Raju,

No.69, S.N. Chetty Street,

Royapuram, Chennai – 600 013.

                                                                                            ..... Complainant

 

..Vs..

 

	M/s. United India Insurance Co.Ltd., Rep. by its Branch Manager, No.19, Andiappa Gramani Street, Royapuram, Chennai – 600 013.
	...Opposite Party

Date of complaint                                  30.09.2013

Counsel for Complainant                      :Mr. Michael Marie Antony

Counsel for Opposite party                      :M.B.Gopalan

 

 

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

           The Complainant owns a mechanized fishing boat bearing Registration Number TN 02 MFB 221 used for fishing at Kasimedu Fishing Harbor area. The driver of the above said boat is her husband, Mr.V.Raju, a qualified fishing boat driver trained from the Fisheries Staff Training Institute, Chennai. She was earning her livelihood by catching and selling fishes.  Thus, fishing is the family profession of the Complainant. The boat and its crew would venture into the sea depending upon the climatic conditions and the sea tides.  The diesel for running the boat is purchased from the Fisheries Department, Government of Tamil Nadu, which provides diesel at a subsidized rate. The above said boat was insured with the Opposite Party under the Hull and Machinery in Policy Number 011501/22/08/01/00001269 for an insured sum of Rs.3,00,000/- for the period from 12.10.2008 to 11.10.20009. On 16.08.2009, her husband along with the crew returned home in the morning after selling the fishes at the Kasimedu Fishing Harbor area and anchored the boat in the sea. During the night at about 10 p.m on 16.08.2009, when the watchman returned after his supper, he found the  boat was missing from its anchorage and immediately informed the same to the Complainant. The next day (17.08.2009) morning, they once again went in search of the missing boat and at last located it some 15 kms away along the shores broken into pieces at the coast of Ennore near the Coramandal Corporation of India at North Chennai. The Complainant humbly submits that the boat  which was moored in the pier was pulled away from the wharf and drifted into the sea due to sea winds and had hit against the rocks laid on the shore to avoid sea corrosion, thereby resulting in complete damages to the motor boat. The Complainant made a Complaint to the Fishing Harbor Police Station in respect of the damages sustained to her motor boat on 16/17.08.2009 and the same was recorded in CSR No.62/2009. The police authorities after due investigation issued a certificate on the genuineness of the accident. The Complainant immediately intimated the damages caused to her motor boat to the Opposite Party due to the perils of the sea. Further all the necessary documents for processing of a Total Loss claim were submitted to the Opposite Party. The Opposite Party appointed one surveyor named Mr. Badrinarayanan to assess the loss caused to her motor boat and he surveyed and submitted report.  An investigator also named Mr.Sunder Rajan was appointed to conduct investigation and to submit his report to the Opposite Party confirming the genuineness of the claim. Meanwhile, the Complainant herein received a letter dated 25.11.2011 sent on 02.12.2011 by the Opposite Party stating that the subject claim has been closed as the claim was not due to any peril under the policy and the claim is found to be non-genuine. The act of Opposite Party in not settling the claim of the Complainant is nothing but sheer negligence and Deficiency in Service on the part of the Opposite Party. Hence the Complainant filed this Complaint claiming Insurance amount   for the loss of boat, compensation for financial loss and mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Opposite Party admits that the Complainant Boat Insured with him for the period 12.10.2008 to 11.10.2009 for Rs.3,00,000/- . The Complainant claimed that the Boat had returned from fishing on 16.08.2009 and had been anchored at Kasimedu fishing harbor on the night 16.08.2009 and found missing and on the next day on search the boat was found at Ennore coast about 15 kms away in a broken condition.   Mrs.Willson surveyor appointed by the Opposite Party to assess the loss. The said surveyor assessed loss of boat at Rs.2,65,000/- based on information and documents furnished by the Complainant. However one Mr.Kathavaraiyan sent a telegram dated 13.09.2009 to the Complainant that the claim was false as  there was no such occurrence. Further one Mr.P.Raja advocate sought information under the Right To Information Act dated 27.11.2009 from the fishing department about the Complainant boat. The Assistant Director of Fisheries reply dated 04.08.2009 that the vessel was not running and operating for fishing and hence the subsidized diesel was stopped for the Complainant vessel from August 2009. Therefore the plea of the Complainant she had taken her vessel for fishing and returned on 16.08.2009 is not true. The fuel pass book entries contend purchases for the month of July, August 2009  are manipulated. Therefore the claim made by the Complainant was not honoured by the Opposite Party and prays to dismiss the Complaint.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT:1

          The admitted facts are that the Complainant Mrs.R.Usha owned a Mechanized   Fishing Boat and the same was insured with the Opposite Party  under Hull and Machinery Policy for the period 12.10.2008 to 11.10.2009  and the said policy is marked as Ex.A2   and the Complainant’s  husband who is a fishing boat driver  evidenced by  Ex.A1  certificate.

          5. According to the Complainant the said boat was taken to sea for fishing by her husband and after fishing he returned with boat on 16.08.2009  night   and  the boat was anchored at Kasimedu harbor and at about 10.00 p.m on that night when the watchman returned after his dinner, he found that the boat was missing from its  anchorage and he immediately informed the Complainant   and  the Complainant and others searched and on the next day morning she found the boat  at 15 kms away from the seashore in broken pieces and then the Complainant made a Complaint  to the police  and they registered Ex.A3 CSR  and thereafter they issued Ex.A4 certificate that the boat was missing and thereafter the Complainant made a claim based on the policy to the Opposite Party.

          6. Ex.A5 is the registration certificate in respect of the boat in the name of the Complainant. Immediately on receipt of information about the boat was broken into pieces from the Complainant the Opposite Party appointed a surveyor, who enquired about the boat accident and filed his Ex.B1 report. The Insurance also appointed an investigator, Vasu Associate who investigated and filed Ex.B2 report. The surveyor said in his report that the incident took place due to wind, rain and current. Ex.B1 report proves the case of the Complainant that the anchored boat was missing and later found into pieces due to wind, rain and current. The surveyor assessed the loss of the boat at Rs.2,65,000/-. In both the reports Ex.B1 & Ex.B2, the surveyor and the investigator found that the claim is valid.

7. However, the Opposite Party received a telegram from one Mr.Kathvaraiyan raised doubts over the claim of the Complainant and one Mr.P.Raja advocate also sent a  letter to the Opposite Party that he received reply under RTI enquiry from the Assistant  Director Fisheries and in the said reply  Ex.B4 dated  27.11.2009 that the Complainant vessel not in running  condition and not operating for fishing and hence the subsidized diesel was stopped for that particular vessel. The investigator found in Ex.B2 report that by name Mr.Kathavaraiyan ever resided in the address given by him and therefore the telegram was given with fictitious name.  The investigator  also further stated in his report that the fuel was last drawn on 10.08.2009 and confirming the presence and usage of boat till that date. Further, Ex.A6 is the renewal diesel pass book issued by the fisheries department for purchase of the subsidized diesel to the Complainant proves that the Complainant purchased 500 ltr. diesel on 04.08.2009, 750ltrs. diesel  07.08.2009 and 250 ltrs. diesel on 10.08.2009.  Further, it is not known who Mr.P.Raja advocate is and what his interest to enquire with the fisheries department was.  The Opposite Party which came into possession of the correspondence between Mr.Raja and the Fisheries Department, cannot thereby abandon the reports of their own experts and latch on to the third party communication which does not reveal the scope or purpose of the enquiry. Mere suspicion and surmises cannot be proof of fraud. Therefore the Opposite Party non settling the claim of the Complainant is not sustainable, since  the boat have been damaged due to the perils of the sea which is covered under the Ex.A2 policy  and therefore, we hold that the Opposite Party committed Deficiency in Service.

8. POINT:2

          The Complainant is entitled for the loss assessed by the surveyor for her boat at Rs.2,65,000/- as per Ex.B1 surveyor report. The Complainant claim a sum of Rs.12,00,000/- towards financial losses due to delay in settling the claim by the Opposite Party. The Opposite Party surveyor and investigator gave report that the claim of the Complainant is genuine. However a telegram from one Mr.Kathvaraiyan and RTI information furnished by an advocate Mr.P.Raja would have stalled the Opposite Party in settling the claim. Therefore in respect of financial losses the Complainant is not entitled. As the Opposite Party having not settled the claim of the Complainant, the Complainant suffered with mental agony is acceptable and for which a sum of Rs.30,000/- can be awarded besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs. 2,65,000/- (Rupees two lakhs  sixty five thousand only) towards damages of the boat to the Complainant and also to pay a sum of Rs.30,000/- (Rupees thirty thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 09^th   day of May 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated	Mechanized Fishing Boat Driver Training Certificate of the Complainant’s husband
Ex.A2 dated	Hull and Machinery Policy of TN 02 MFB 221 with Endorsement (12.10.2008-11.10.2009)
Ex.A3 dated 24.08.2009	CSR 62/09
Ex.A4 dated 25.08.2009	Police Certificate
Ex.A5 dated 04.07.2005	Certificate or Registration of TN 02 MFB 221
Ex.A6 dated 15.06.2009	Renewal Diesel Pass Book issued by the Fisheries Department, Government of Tamil Nadu
Ex.A7 dated 25.11.2011	Repudiation Letter by the Opposite Party
Ex.A8 dated 30.11.2011	Letter by the Complainant to the Opposite Party
Ex.A9 dated 23.12.2011	Letter from the Opposite Party
Ex.A10 dated 21.10.2010	Investigation Report Addendum
Ex.A11 dated 01.08.2015	RTI Application to Fisheries Department
Ex.A12 dated 01.09.2015	Reply from Fisheries Department
Ex.A13 dated 08.08.2014	Reply from Fisheries Department

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1 dated NIL                        Survey Report

Ex.B2 dated NIL                        Investigation Report

Ex.B3 dated 06.11.2009                      RTI Application of Mr.P.Raja, Advocate

Ex.B4 dated 27.11.2009                      Reply of Fisheries Department

Ex.B5 dated 27.01.2011                      Letter from Fisheries Department to Opposite

                                                  Party

Ex.B6 dated 17.04.2013                     Insurance Ombudsman Order  

.

 

 

MEMBER – II                                                               PRESIDENT