D.O.F. 25.11.2010
D.O.O. 27.03.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 27th day of March, 2012.
C.C.No.281/2010
Ayar Kasmi,
S/o. Abdul Khader,
A.K. House, : Complainant
Near Vellackal, Azheekkal Ferry,
Kannur District.
(Rep. by Adv. K. Gopakumar)
1. Secretary,
Azhikode Kadappuram
Fisherman Development Welfare,
Co-operative Society Ltd.,
No.DF(D) 191/93,
P.O. Azhikode South, : Opposite Parties
Kannur District.
(Rep. by Adv. N. Baburajan)
2. Manager,
Matsyafed,
Maplabey Fisheries complex,
Kannur.
O R D E R
Smt. K.P. Preethakumari, Member
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite parties to pay the benefit of insurance ` 96,987 with 12% interest from 28.04.2010, the date of accident along with ` 25000 as compensation with cost.
The case in brief of the complainant is that opposite party is a registered welfare society constituted for welfare of fisherman and 2nd opposite party provides funds for aids to 1st opposite party and the complainant and his son are the members of the above said society. The complainant received ` 1,56,380 from 1st opposite party for purchase of fishing materials as agreed by 2nd opposite party. At the time of disbursement of that amount the complainant and his son executed an agreement with 1st opposite party and as per this agreement the fishing materials purchased by the complainant insured with 2nd opposite party and 1st opposite party collected ` 4339 towards input insurance. The fishing materials are insured against the loss due to fire, theft, riot etc. As per the stipulations in the agreement the Insurance amount will be paid to 2nd opposite party and 2nd opposite party is liable to indemnify the benficiaries for the loses due to the above reasons. On 28.04.2010, materials worth ` 96,987 had stolen from the fishing boat and the complainant lodged a complaint before the C.I. of Police, Valapattanam on the same day and informed 1st opposite party also. But the police fail to trace out the lost materials. So a certificate is issued by the SI of Valapattanam on 10.06.2010 for producing before the Insurance authority. Complainant had submitted all the relevant bills concerning the purchase of lost articles and the certificate issued by S.I. Valapattanam. The 1st opposite party informed the complainant that they have forwarded the claim to 2nd opposite party for getting the insurance benefit. But the opposite parties have not disbursed the insurance benefit to the complainant and no reply is also received from the opposite parties. Hence the complaint.
In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version. 1st opposite party filed version admitting that the complainant is a member of 1st opposite party and beneficiary of the IFDP 2007-08 scheme of Matsyafed. The complainant and his son Saleem have availed loan from Matsyafed under IFDP scheme for purchasing fishing inputs amounting ` 1,56,380. Accordingly an agreement was executed on 21.05.09 between 1st opposite party and the complainant and his son Saleem. The complainant has paid ` 4,339 as premium to the society and the society has remitted the above amount to 2nd opposite party and hence the society has no responsibility towards the premium and for the claim of the complainant. It is also admitted by 1st opposite party that an ice box, 2 set nets, one propeller etc were lost on 28.04.10 and it was not recovered eventhough a complaint was lodged to the Valapattanam P.S. and the complainant has made a claim to 2nd opposite party through 1st opposite party. The allegations that the fishing materials are insured against the loss due to fire, theft, riot etc as per the terms and conditions of agreement with 1st opposite party and 1st opposite party has not replied regarding the claims and 1st opposite party is also liable for the claim etc are not correct. There is no privity of contract or agreement of insurance between 1st opposite party and the complainant. Clause 3 of agreement executed between 1st opposite party and complainant says that the fishing inputs of the complainant should be insured against loss due to fire, theft, natural calamities, riots etc and the same should be continued till the agreement lasts. 1st opposite party has no insurance scheme of its own. The complainant had insured the inputs with 2nd opposite party, under its insurance scheme called MISS. So if the complainant has any claim, the same should be put forwarded to the 2nd opposite party who is the insurer. It is the liability of 2nd opposite party to indemnity the loss incurred to the complainant under the insurance scheme. So there is no deficiency of service on the part of 1st opposite party and hence the complaint is liable to be dismissed.
2nd opposite party also filed version admitting that the complainant had insured the fishing inputs and 2nd opposite party has received `4339 through 1st opposite party as insurance premium, as per the Matsyafed input security scheme. But as per the terms and conditions of Matsyafed input security scheme, the scheme doesn’t cover losses due to theft and the beneficiary has to submit the application to Matsyafed officer within one week of occurrence of incident for getting compensation under the scheme. District Manager obtained a detailed report on the complaint on 01.11.11 from the Assistant Manager, Matsyafed who is in charge of cluster-11 Matsyafed under whose jurisdiction 1st opposite party is working. As per the report the terms and conditions of insurance scheme had been communicated to the complainant under proper acknowledgment and in the terms it was clearly mentioned under on which grounds the claim will be considered for compensations. As per clause 9 of guidelines the beneficiary has to submit application to matsyafed within one week of occurrence of incident for getting compensation and in case of the complainant, the incident was occurred on 28.04.10 and the information had been reported only on 11.06.06. Moreover since the theft is not covered under the scheme, matsyafed is not liable to pay compensation to complainant under the scheme and hence the complaint is liable to be dismissed.
Upon the above contentions the following issues have been raised for consideration.
1. Whether there is any deficiency of service on the part of opposite parties?
2. Whether the complainant is entitled to any relief as prayed?
3. Relief and cost.
The evidence in the above case consists of the oral testimony of PW1 and Ext.A1 to A6.
Issues No.1 to 3 :
The case of the complainant is that eventhough he had insured his fishing inputs with 2nd opposite party against loss due to fire, theft, riot etc and paid necessary premium, they have not paid the claim amount of `96,987 as claim for the theft of his fishing inputs. In order to prove his case he has produced documents such as agreement, receipt dated 27.05.09 by 1st opposite party, receipt dated 27.05.09 by 2nd opposite party, complaint filed before Valapattanam P.S., certificate issued by Valapattaname P.S., letter from 1st opposite party to 2nd opposite party dated 11.06.10 etc. According to the complainant he has insured his fishing input for against loss of theft also. But 2nd opposite party who is the insurer contended that they have not insured the fishing input against theft. But the complainant has produced copy of agreement executed between the 1st opposite party and the complainant and the 1st opposite party has produced its original. This agreement was executed on 21.05.09, between the complainant, his son and the 1st opposite party at the time of availing the fishing inputs worth `1,56,380 from 2nd opposite party through 1st opposite party. Admittedly 1st opposite party is a society and it helps its members to avail loans from Matsyafed ie 2nd opposite party for purchase of fishing inputs. It is also admitted by opposite parties that if the loan is sanctioned the beneficiary has to execute an agreement with the society according to the terms and conditions of Matsyafed containing the various clauses regarding the supply of fishing. Inputs, repayment of loan, hypothecation clause of fishing inputs supplied etc. The opposite parties further admits that the 2nd opposite party has formulated an insurance scheme called Matsyafed Input Insurance Scheme and the beneficiary has to pay such amount as decided by the 2nd opposite party as insurance premium towards MISS and the complainant has paid the same. So according to the admission, it is seen that the terms and conditions of the agreement executed between 1st opposite party and the complainant is supplied by Matsyafed. The clause 3 of the A1 agreement says that “Aán, sImSp-¦m-ä,v ISÂt£m-`T, tamj-WT, Iq«-e-lf F¶nh aqew aÕ-y-_-Ô-t\m-]-I-c-W-§Ä \jvS-s¸-Sp-¶-Xn-s\-Xn-tcbmbn C³jq-d³kv]-²-Xn-bn KpW-t`m-àm-¡Ä AT-K-§-fm-tIXpT Cu IcmÀ XpS-cp-¶n-S-t¯m-fT CXp \ne-\nÀt¯--Xp-am-Wv. C{]-Im-cT e`n-¡p¶ FÃm-Xp-I-bpT kT-L-¯nsâ ta¸dª ]²-Xn-bn-te-¡p-f-f-XpT aÕ-y-s^-Un\p bYm-bp-àT B XpI A§s\ \miT kT-`-hn¨ `mKtam AYhm AtX hne-bv¡p-f-f-Xp-T- AtX C\-¯nÂs¸-«-Xp-amb apgp-h³ km[-\-§tfm ]I-cT \ÂIm-\mbn Dt].-bm-K-s¸-Sp-¯m-hp-¶-Xp-amWv”. This shows the Matsyafed itself give a mandatory direction to the beneficiary who avails fishing inputs that they have to insure their fishing inputs so received from Matsyafed. But as per admission by 1st opposite party for such insurance 2nd opposite party has formulated an insurance scheme called Miss and accordingly `4339 was received by 2nd opposite party through 1st opposite party from the beneficiary. This shows that the 2nd opposite party has an insurance scheme for insuring the fishing inputs supplied by them for theft also. If it is otherwise they have to given a direction to the complainant or the 1st opposite party to the effect that the insurance is exclusive of theft and have to insure with some other agency for theft. No such documents are produced before the Forum. Moreover 2nd opposite party has not denied the contention forwarded by 1st opposite party that the agreement A1 was executed as per the terms and conditions of 2nd opposite party. Moreover it is admitted by 1st opposite party that the insurance premium was paid by the complainant as per direction of 2nd opposite party. Above all the 2nd opposite party has not produced any documents or oral evidence. 2nd opposite party also admits that the complainant has paid `4339 towards premium and insured the fishing equipment as per the direction. The 2nd opposite party have no case that the terms and conditions of A1 was not provided by them. From the above discussion it is seen that it is the duty of 2nd opposite party to prove that the fishing inputs of the complainant has not insured against theft. No steps was taken by 2nd opposite party on this behalf. It is seen that the 2nd opposite party has produced the terms and conditions of a policy, but it was not seen marked and not proved by the 2nd opposite party that it was the terms and conditions of the policy through which 2nd opposite party has insured the fishing input of the complainant. So it is seen that along with clause (3) of the agreement Ext.A1 along with the admission that the complainant has insured with the 2nd opposite party as per MISS the lost articles. Moreover the letter dated 11.06.10 issued by 1st opposite party to 2nd opposite party shows that 1st opposite party has taken all necessary steps to insure the fishing inputs with 2nd opposite party as per clause(3) of Ext.A1. The 1st opposite party also contended that there is no written contract with 1st opposite party by 2nd opposite party with respect to insurance and they have not received any documents with respect to this from the 2nd opposite party. So it can be inferred that the 2nd opposite party has insured the complainant’s lost fishing inputs against theft also. So we are of the opinion that there is deficiency of service on the part of 2nd opposite party in repudiating the claim of the complainant and hence 2nd opposite party is liable to pay the value of lost fishing inputs 96,987 along with ` 1000 as cost of the proceedings to the complainant. Since it is found that 1st opposite party has no role in repudiating the claim, they are exonerated from liabilities and order passed accordingly.
In the result the complaint is allowed directing the 2nd opposite party to pay the value of lost article ` 96,987 (Ninety six thousand nine hundred and eighty seven only) with ` 1000 (Rupees One Thousand only) as cost of the proceedings to the complainant within 30 days of receipt of this order, otherwise the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the Complainant
A1. Agreement
A2. Receipt
A3. Receipt
A4. Complaint copy filed before Valapattanam P.S.
A5. Certificate issued by S.I., Valapattanam P.S.
A6. Report given by 1st OP to 2nd OP.
Exhibits for the opposite party
Nil
Witness examined for the complainant
PW1. Complainant.
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
