BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 323/2008 against C.C. 86/2003, Dist. Forum, Kakinada
Between:
1) Kaladi Kabir, S/o. Kama Raju
Age: 69 years, Bhyravapalem,
East Godavari Dist.
2) Presingi Narayana
S/o. Durgaiah
Age: 48 years, Yetimoga
Jagannaickpur
Kakinada. *** Appellants/
Complainants.
. And
The Oriental Insurance Company Ltd.
Sri Krishna Complex, Near Girls High School
Kakinada, Rep. by its Divisional Manager *** Respondent/
Opposite Party
Counsel for the Appellant: M/s. V. Gourisankara Rao.
Counsel for the Resps: M/s. R. Brizmohan Singh
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE EIGTH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) The appellants are unsuccessful complainants.
2) The case of the complainants in brief is that they owners of mechanised fishing boat bearing No. FNZM 590 registered with port authorities at Nizampatnam, and got it insured with the respondent for Rs. 6,30,000/- covering the period from 10.11.2000 to 9. 2. 2001. While so on 30.1.2001 while they were conducting fishing operations between Bhavanapadu and Kalingapatnam at about 10.00 p.m. the driver and one of the Luskar found that the boat was floating down due to jerks and jolts and waster was gushing inside and observed that the stern gland, and stern tube flanges were getting shacked, and concluded that stern tube was broken. Despite their efforts to bail out the water the boat sunk into the sea. The crew jumped into the sea to save their lives and one of the fishing boats FNZM 737 which was passing nearby rescued them. They brought them to Visakapatnam. On receipt of report the complainants informed the said fact to the insurance company. Immediately a surveyor was appointed to who conducted enquiry. Despite repeated search operations they could not trace out the boat. All through they were waiting with a fond hope that the insurance company would settle the claim and when they did not, they filed the complaint claiming Rs. 6,30,000/- covered under the policy with interest together with compensation of Rs. 50,000/- towards mental agony and costs.
3) The insurance company resisted the case. While denying each and every allegation made in the complaint it alleged that as soon as the message was received they immediately appointed M/s. J. B. Boda Surveyors, Visakapatnam. The surveyor after obtaining notarized affidavits from the owner, driver and crew though they were contradictory submits their report. When the report was not satisfactory and doubts had arisen with regard to genuineness of the claim they appointed another surveyors M/s. Siser & Ravi Associates on 18.3.2002. They took up the investigation and found that except berthing of boats from 25.1.2000 to 27.1.2000 at Nizampatnam there was no evidence to show that the boat was sunk. There was also discrepancies in the berthing statements given by the crew when compared with records of port authorities. Since the claim was not proved it was repudiated on 31.1.2003. The complainants were not entitled to the amount claimed or any compensation. In view of the fact that several questions were involved it was only Civil Court that was competent to try the matter and therefore prayed for dismissal of the complaint with costs.
4) The complainants in proof of their case filed their affidavit evidence and examined Kaladi Yedukondalu, driver of fishing boat No. FNZM 590 as PW1; Doma Venkateswarlu, Laskar as PW2- ; Gedala Dhana Krishna, driver of fishing boar No. FNZM 737 as PW3, and Potabattula Satyanarayana, driver of fishing boat No. FKKD 538 as PW-4 and got Exs. A1 to A9 marked. Refuting their evidence the insurance company filed the affidavit evidence of its Divisional Manager and examined A. Sisir Kumar, private investigator as RW1 and got Exs. B1 to B11 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainants could not prove that the boat was traveling between Bhavanapadu and Kalingapatnam. It opined that the alleged fishing boat No. FNZM 590 was berthed at Nizampatnam fishing harbour from 25.1.2000, to 27.1.2000 and there after the said boat had not entered into Nizampatnam port evidenced under entry Ex. B10. They could not prove that even the rescue of the crew by the boats as stated by the complainants were not proved to be berthed on the relevant dates in any of these ports. When it being the case, and in the absence of record that the boat was sunk, the repudiation was just and therefore dismissed the complaint.
6) Aggrieved by the said decision the complainants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have relied the report of M/s. J.B. Boda Surveyors who had confirmed the accident and recommended for payment of amount covered under the policy. The subsequent appointment of M/s. Sisir & Ravi Associates on 28.2.2002 ten months after the accident was to get over the report of M/s. J. B. Boda Suvevyors. Ex. B10 in no way establish that their claim was false. At any rate the repudiation on 31.3.2003 two years after the accident amounts to deficiency in service and therefore prayed that the appeal be allowed.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the mechanized fishing boat No. FNZM 590 of the complainants was insured with the respondent insurance company for Rs. 6,30,000/- covering the period from 10.11.2000 to 9.2.2001. The complainant alleges that on 30.1.2001 water gushed into the boat during the fishing operations and despite their efforts to bail out the water the boat sunk into the sea. They found that that the stern gland and stern tube flanges were getting shacked and due to gushing of water boat sank into the sea. The crew jumped into the sea to save their lives and one of the fishing boats FNZM 737 which was passing nearby rescued them. They brought them to Visakapatnam.
On receipt of report the complainants immediately informed to the insurance company which in turn appointed M/s. J. B. Boda Surveyors Pvt. Ltd. If we may say so, after making exhaustive enquiry the surveyors themselves filed Ex. B7 report dt. 31.10.2001 importantly after conducting search operations opined that
2. The incident is accidental in nature and beyond the control of the vessel
crew/insured.
3. Failure of search operation also due to the change in prevailing sea
current, the wooden hull may have broken and drifted. The solid mass of
engine embedded in the sea bed.
4. Since no adverse remarks or evidences have been observed during our
enquiry, in our opinion, the case may reasonably be considered as total
loss.
We may mention here that the said surveyors had recorded the statements of the crew, enquired with port authorities. They have also scrutinized the valuation and observed:
“We scrutinized valuation report No. CBM/396/2000 dt. 9.8.2000 of M/s. Capt. B. M. Talwar Marine & General Surveyors, Kakinada, which indicates the market value of the insured’s vessel is Rs. 6,95,000/-. Whereas the vessel was insured for Rs. 6,30,000/-. Therefore there is an under insurance of Rs. 65,000/-.”
Finally they informed the insurance company to settle the claim as total loss.
9) Curiously the insurance company 10 months there after, by giving specious reasons appointed M/s. Sisir & Ravi Associates, Chartered Accountants to re-investigate despite repeated pronouncements by the Hon’ble Supreme Court and National Commission that appointment of a second surveyor would be contrary to IRDA regulations. Predictably M/s. Sisir & Ravi Associates picked up a contradiction here and a contradiction there as though they were entitled to oversee the investigation made by the earlier surveyors, and opined that the claim was not genuine. Naturally if one intends to deny the just claims could go on picking up discrepancies. It alleges that it had again recorded the statements from the crew. Their reasoning is undoubtedly flawed. It is in their version:
“According to the notarized statement dt. 29.1.2002 given by the crew of the above fishing boat they have been conducting the fishing for tiger prawns from Visakapatnam harbour for about two months. The above berthing details give some credence to the fact that they were indeed operating in and around the Vishakapatnam port during the said period. But again in the same statement they confessed that they set sail for voyage fishing towards Kalingapatnam and Bhavanapadu at about 5.00 a.m. of 25.1.2001. According to the berthing records the last date on which the above said boat berthed during the month of January, 2002 before the alleged mishap was on 7.1.2001 and after that was again on 29.1.2001. Again in the same statement the crew revealed that while they were fishing in Kalingapatnam at about 10.00 p.m. on 30.1.2001, they noticed continuous torch light signals from the shore side. But as per the berthing records the above boat did berth at Visakapatnam harbour on 30.1.2001. The distance between Visakapatnam and Kalingapatnam is somewhere between 80 to 100 KMs. As per information gathered it takes about 8 to 9 hours to sail from Visakapatnam to Kalingapatnam. In the very same statement the crew also revealed that they brought back the crew of the ill-fated boat on 31.1.2001. This date corroborates with the berthing records.
In the notarized statement dt. 29.1.2002 given by the owner and the crew of the FKKD-538 and FKKD-1123 they revealed that conceding to the request made by the owner of FNZM-590 Mr. K. Kabir, they sent their boats to carry out the salvage operations at about 4.00 p.m on 1.2.2001. According to the berthing records the last date when the above said boats berthed at Visakapatnam was on 31.1.2001 and again not until 16.2.2001 in case of FKKD-538 and 15th February in case of FKKD-1123. The crew of the respective boats also confessed that they returned back fruitless to Visakapatnam in the night hours on 1.2.2001.
Some of the dates mentioned in the notarized statements by the respective owners, driver, and the luskars are not corroborating with the dates recorded in the berthing registers maintained by the port officials. “
This is nothing but fishing out the information in order to discredit the report given by M/s. J. B. Boda Surveyors. They were undoubtedly unsuccessful to prove that the report of M/s. J. B. Boda was not credible. They went to the extent of stating “as regards the observation of M/s. J. B. Boda they have no clue as to the basis for their remarks in their report. The sheet anchor on which the insurance company had repudiated the claim is Ex. B10 extracted by the Dist. Forum which reads as follows :
“……. I am to inform that the fishing boat No. FNZM 590 was berthed at Nizampatnam Fishing Harbor on 25.1.2000, 26.1.2000 & 27.1.2000 for 3 days. An amount of Rs 35/- has been collected towards berthing charges vide this office receipt No. 92816 dt. 27.1.2000.
Further the said M.F. boat No. FNZM 590 has not entered into this fishing harbor till this date.”
10) It is not known from this as to how it could be said that the boat did not travel from Nizampatnam port. In fact very non-mention of berthing of the boat besides overwhelming evidence of the driver and crew of the ill-fated boat and also rescue boat would undoubtedly show that the boat was sunk confirmed by earlier surveyors M/s. J. B. Boda who investigated into the matter. It is settled proposition of law that appointment of second surveyor without recoursing to IRDA regulations is bad under law. The National Commission in New India Assurance Company Vs. Shree Shyam Cotspin Ltd reported in I (2009) CPJ 110 (NC) held that insurance company cannot appoint another surveyor.
“We also like to observe that under Section 64 UM of the Insurance Act, if the insurance company is not satisfied with the assessment of loss made by the an approved surveyor then they can request the IRDA for appointment of another surveyor whose report would have been processed by the ‘Authority’ and then direction was to be given by them to insurer to pay a given amount. This was not done at all.”
The very appointment of second surveyor being illegal, unauthorized and immoral, consequently the report of the second surveyor cannot be accepted. There is no reason why Ex. B7 report of M/s. J. B. Boda shall not be accepted they being appointed at the earliest point of time and confirmed to the facts. When first surveyor had submitted its report on 31.10.2001 One year there after second surveyors were appointed, after duly deliberations, and they bent upon to repudiate the claim. The second surveyor predictably gave a favourable report to the insurance company which were nothing but based on conjectures. The procedure adopted by the insurance company is not only illegal but also un-fair and immoral contrary to the dicta laid down by the Hon’ble Supreme Court in Sri Venkataramana Syndicate Vs. Oriental Insurance Company reported in II (2010) CPJ 1 (SC).
11) A belated repudiation based on second surveyors report cannot be up-held. The complainant could prove that the boat was sunk on the ill-fated day and therefore entitled to the amount covered under the policy. The first surveyor M/s. J. B. Boda had confirmed this fact and there is no reason why the said report shall not be accepted besides the overwhelming evidence produced before the Dist. Forum. The witnesses were cross-examined at length. They could not state as to why the witnesses deposed falsely. No motive was suggested. We are of the opinion that the facts spoken by them were confirmed by M/s. J. B. Boda and therefore we accept their report. We are of the opinion that the complainants could establish their case and that the Dist. Forum did not appreciate the facts in correct perspective in this regard.
12) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is allowed in part directing the insurance company to pay Rs. 6,30,000/- with interest @ 9% p.a., from date of claim till the date of realization together with costs of Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 08. 10. 2010.
*pnr
“UP LOAD O.K.”
