KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 488/2003
JUDGMENT DATED. 29.07.2011
PRESENT:-
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
APPELLANT
The Oriental Insurance Co. Ltd.,
Branch Office, Jameela Complex,
Manjeri,
Rep. by its Deputy Manager, Branch Office,
Jameela Complex, Manjeri
( Rep. by Adv. K.N. Sivasankaran & Associates)
Vs.
RESPONDENTS
,
1. P. Beeran Koya,
S/o Kuttiali, Pandi House, Kadalundinagaram.
2. The Branch Manager, Canara Bank
Anangadi, Kadalundinagaram P.O.
( R2 Rep. by Adv. Sri. M.R. Gopalakrishnan Nair)
JUDGMENT
M.V. VISWANATHAN : JUDICIAL MEMBER
The appellant is the first opposite party and respondents are the complainants and second opposite party respectively in O.P. No. 157/02 on the file of CDRF, Malappuram. The complaint therein was filed alleging deficiency in service on the part of the first opposite party/Oriental Insurance Company Ltd in repudiating the insurance claim preferred by the complainant as insured with respect to its country made mechanized boat bearing registration No. KMFF 2485. Notice in the said complaint was served on the first opposite party and that the first opposite party/Oriental Insurance Company Ltd entered appearance. The Insurance Company filed written version denying alleged deficiency in service. They admitted that the complainant’s country made Boat was insured with the first opposite party /Insurance Company and the same was destroyed in an incident which taken place on 10.6.2001. The first opposite party justified their action in repudiating Insurance claim on the ground that the incident occurred during the laid up time of the insured boat and that the” laid up time” for the said boat was from 1.6.01 to 15.8.01 and that the incident which took place on 10.6.01 is not covered by the Insurance policy. Thus, the first opposite party prayed for dismissal of the complaint in O.P. 157/02.
2. The second opposite party, a branch manager, Canara Bank, Anangadi Branch entered appearance and filed written version. The second opposite party contended that there was no deficiency in service on their part and that the loan amount due under the loan transaction entered in to between the bank and the complainant was due to the Bank and that the second opposite party/Bank is to be paid from the Insurance claim amount. It is further submitted that the first opposite party/Insurance Company failed to issue the original Insurance certificate to the second opposite party/bank. Thus, the second opposite party prayed for dismissal of the complaint filed against them.
3. Before the Forum below Exts. P1 to P5 and R1 to R20 documents were produced and marked on the side of the parties to the complaint in O.P. 157/02. On an appreciation of the documentary evidence on record, the Forum below passed the impugned order dated 14.1.2002 directing the first opposite party to pay the complainant a sum of Rs. 2,86,400/- together with interest @12% per annum from 20.6.01 till realization and a cost of Rs. 2,000/- The first opposite party is also directed to pay, to the second opposite party/bank the amount due to the second opposite party bank from the complainant. Out of the aforesaid insurance amount of Rs. 2,86,400/- Aggrieved by the said order, the present appeal is filed by the first opposite party /Oriental Insurance Company Ltd.
When this appeal was taken up for final hearing, there was no representation for respondents 1 and 2. We heard the learned counsel for the appellant/first opposite party. He submitted his arguments based on the grounds urged in the Memorandum of the present appeal and argued for the position that the respondents 1 and 2 , the insured and the second opposite party/bank were bound by the terms and conditions of the policy of insurance and that the insured country made mechanized Boat was used during the laid up period and so the appellant/first opposite party is not liable to indemnify the first respondent/complainant (Insured) for the damages sustained by him. Thus, the appellant prayed for setting aside the impugned order and to dismiss the complaint in O.P. No. 157/02.
4. There is no doubt that the first respondent/complainant insured his country made mechanized Boat bearing registration No. KMFF 2485 with the appellant/first opposite party, Oriental Insurance Company Ltd. There is also no dispute that the insured vessel was completely destroyed on 10.6.2001 while the said vessel was engaged in fishing. It is also an admitted that the said incident of 10.6.01 occurred while the Marine Hull Policy was in full force. But the appellant/first opposite party, Insurer of the vessel repudiated the Insurance claim preferred by the first respondent/complainant (insured) on the ground that the vessel was banned from doing fishing during the laid up time.
5. Ext. R1 is Photostat copy of the Marine Hull policy No. 442201/12/0MH/34/2001. The said policy was for the period from 26.8.2000 to 25.8.2001. It was insured as Country Craft fishing with the name Sam-Sam with insured amount of Rs. 2,87,400. The name of the complainant is shown as the insured. The said Marine Hull Policy contains trading warrantees as follows.
6. Warranted vessel engaged in fishing operations connected therein on the coasts of the Karnataka, Kerala, and West and South costs of –Tamil Nadu up to and including Gulf of Mannar and not beyond 50 Nautical Miles into the sea from shore. (Warranted vessal laid up from 1st June to 15th August (b. d.i))
7. It is the case of the appellant/first opposite party that the insured vessel was having a laid up period from 1st June to 15th August and that the incident in which the insured vessel was destroyed on 10.6.2001 during the aforesaid laid up period and thereby the insurer is not liable to indemnify the loss suffered by the complainant/insured.
8. The second opposite party, Canara Bank has got the case that the insured vessel was hypothecated to Canara Bank, Anangady branch and the vessel was insured at the request of Canara Bank in order to safeguard the interest of Canara Bank which had given loan to the complainant on hypothecation of the insured vessel. The aforesaid case of the second respondent/second opposite party Canara Bank can be believed and accepted because of the entering in R1 Marine Hull Policy. The schedule to the said policy would make it clear that the insured vessel was hypothecated to Canara Bank, Anangady. The name of the assured is shown as P. Beerankoya, Kadalundi Nagaram(H.Y.P. Canara Bank, Anangady). In the event of such a bank clause, the insurer of the vessel was bound to issue the Insurance policy to the Hypothecated bank. It is to be noted that as per the Hypothication Agreement, the Financier namely Canara Bank, Anangady can only be the owner of the insured vessel. In such a situation, it was the duty of the appellant/opposite party insurance company to issue the insurance policy to the second opposite party , Canara Bank, Anangady. There is no case for the appellant/first opposite party that the policy was issued to the Canara Bank, Anangady branch.
9. The complainant has also got a case that the clause regarding laid up period from 1st June to 15th August was made by the first opposite party insurance company subsequent to the claim preferred by the complainant/insured, on getting this insured vessel destroyed in the incident of 10.6.2001. The complainant has also got a case that the policy of Insurance was not served on him and he was under bonafide belief that the policy was issued to the financier, Canara Bank, Anangady. But, the said case of the complainant and the second opposite party/Bank has been denied by the appellant/ first opposite party, Oriental Insurance Company Ltd. There is nothing on record to support the aforesaid denial made by the appellant/first opposite party. No evidence to show that the original policy was issued to the complainant/insured or to the bank which had the hypothecation. Definitely there will be document with the first opposite party, Oriental Insurance Company Ltd regarding Issuance of the policy. But no such document is forth coming from the side of the appellant/first opposite party to substantiate their contention that the policy was issued to the insured or to the financier
10. The Forum below can be justified in coming to the finding that the warranty condition regarding laid up period was incorporated subsequently by way of addition/interpolation. A perusal of the lower court records would show that two Photostat copies of the Marine Hull Policy are produced from the side of the appellant/first opposite party and those copies are marked as Ext. R1 and R11. The incorporation of the warranty condition regarding laid up period in R1 and R11 would give clear indication that the said condition was incorporated subsequently. In R1, the said warranty condition “(warrantied vessel laid up from 1st June to 15th August (b.d.i) The said warranty condition is type written continuously as part of the trading warranties. But in R11 Marine Hull Policy Copy after a space it is type written on the last line at the bottom of trading warranties. The said warranty conditions is as follows. “ Warrantied vessel laid up from 1st June to 15th August (b.d.i). The very inclusion of the said condition in R1 and R11 Marine Hull Policy copies would make it crystal clear that the said warranty condition was incorporated subsequently. It would in turn establish the fact that in the original marine Hull policy there was no such warranty condition regarding laid up period. The appellant/opposite party Oriental Insurance Company Ltd could make such conditions because of the fact that the insurance company had not issued the original policy to the insured or to the Financier. Thus, the Forum below can be justified in holding that there was no warranty condition /trading warranty regarding laid up period in the original policy.
11. The Forum below has also considered the entries in R20 Marine Hull Proposal Form submitted by the complainant /insured. It is also to be noted that R20 proposal form was submitted by Canara Bank with A/c. No. ALF 5/1999 P. Beerankoya Pandi House, Kadalundi,Nagaram, It can be seen that the Marine Hull policy was taken by Canara Bank in the name of the complainant P. BeeranKoya. It is to be noted that in R20 Proposal form, the Column provided for laid up period is kept blank. If there was any such laid up period for the purpose of the said contract of insurance, then the laid up period with dates should have been found a place in R20 Proposal Form. The aforesaid circumstance is a strong reason to support the case of the complainant. The Forum below has rightly relied on the said reason discard the case of the first opposite party/insurance company regarding laid up period.
12. The Forum below directed the first opposite party, Insurance company to produce the entire records with respect to the issuance of R1 Marine Hull policy. But the first opposite party Insurance Company miserably failed in producing the entire file regarding the said Marine Hull Policy. No reasonable explanation is forthcoming from the side of the first opposite party /Insurance Company for their failure to produce the entire file regarding the issuance of the policy.
13. It can be concluded that the appellant/first opposite party/ Insurance company suppressed the original file inorder to safe guard their interest of not giving the Insurance claim to the complainant. It can be very safely be concluded that the appellant/first opposite party , Insurance Company was bound to honour the Insurance claim preferred by the first respondent/complainant.
14. The finding of the Forum below that there was deficiency in service on the part of the first opposite party/Insurance Company is to be upheld. This Commission is of the view that the approach and the method adopted by the appellant/first opposite party would also amount to unfair trade practice.
15. Admittedly the appellant/first opposite party had deputed a surveyor to assess the loss suffered by the complainant/ insured on account of the destruction of the insured Country Boat on 10/6/2011. The surveyor assessed the damages at 2,86,600/- The vessel was insured for Rs. 2,87,400/- Unfortunately the Forum below has taken the insured amount at Rs. 2,86,400/- and the same was awarded to the complainant/insured. This Commission is pleased to uphold the aforesaid award passed by the Forum below. The learned C.D.R.F. Malappuram has also rightly awarded interest @ 12% per annum from 20.6.2001 till realization with cost of Rs. 2,000/- In all respects; the impugned order is to be confirmed. Hence we do so.
In the result, the appeal is dismissed. The impugned order dated 14.1.2002 passed by CDRF, Malappuram in O.P. No. 157/02 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
ST
