Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member This appeal takes an exception to the order dated 20/03/2010 passed in consumer complaint No.98/2009, Shri Ganpat Rama Madhavi V/s. The New India Assurance Co. Ltd., by District Consumer Forum, Raigad (‘Forum below’ in short). Undisputed facts are that a fishing boat belonging to the respondent/org. complainant was insured with the appellant/org. O.P. (hereinafter referred as ‘Insurance Company’) for total sum of `7,50,000/-. On 02/05/2007 around 6.00 a.m. water entered into the said boat due to displacement of wooden plank at the bottom or breaking of such wooden plank. As a result, said boat sink. Police report was made and thereafter, on 18/06/2007 insurance claim was made which stood repudiated on 23/07/2008 and further, reconfirmed the said repudiation on 15/06/2009. Consumer complaint was thereafter filed as per the date mentioned in the impugned order it was filed on 01/09/2010. While copy of consumer complaint produced in the compilation of appeal memo mentioned it as September 2009. The Insurance Company resisted the consumer complaint firstly stating that it is time-barred since it is filed beyond two years from the date of event i.e. accrual of cause of action without any application for condonation of delay and on the second count, it justified its repudiation stating that sinking of boat cannot be lingered to perils of the sea. Forum below, however, rejected the contention of the Insurance Company on both the counts and awarded claim to the extent of `7,42,000/- towards cost of loss of boat and `10,000/- towards mental torture and also awarded `3,000/- as cost. Feeling aggrieved thereby this appeal is preferred by the Insurance Company. We heard both the parties. Perused the papers. In the instant case as could be seen, Forum below grossly erred in understanding the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., III (2009) CPJ 75 (SC). Accrual of cause of action is to be the date on which the event of loss of boat occurred i.e. 02/05/2007. In either way i.e. September 2009 which is the date which is mentioned on the copy of complaint or 01/09/2010 i.e. the date mentioned about filing of the consumer complaint in the impugned order; the consumer complaint is filed beyond two years after the date of accrual of cause of action and that too without any application for condonation of delay and therefore, in view of Section 24-A of Consumer Protection Act,1986 (hereinafter referred to as ‘the Act’ for brevity) the consumer complaint was barred by limitation and as such taking cognizance thereof by Forum below was per se illegal and not proper. We hold accordingly. There is hardly any evidence adduced on behalf of complainant to show as to how incident occurred and particularly, reasons for dislodgement or breaking of wooden plank through which water entered into the vessel and as a result of which it sank. Investigation-Survey Report of Surveyor has its own sanctity, it cannot be brushed aside lightly unless one finds that it is arbitrary and lacks sanctity due to fault per se shown therein. Such is not the case before us. Therefore, appreciation of this piece of material by the Forum below is perverse and cannot stand in the eyes of law. Admittedly, the sea was calm and this fact is even confirmed by the Metrological report on record. The phrase ‘perils of the sea’ is explained by Learned Author B.C. Mitra in his book “The Law Relating to Marine Insurance” (1998 New Edition) as under :- “The phrase “perils of the sea” seems to be used much as the expression “dangers of the streets” is used. The latter expression refers to dangers which are peculiarly incident to being in or passing along the streets. Thus, rain is not a peril of the sea, but at most a peril on the sea, since it has no peculiar connection with the sea or the navigation thereof, but ice obstructions and shoals from some of the peculiar vicissitudes of navigating the seas. The expression “perils of the sea” has the same meaning in policies of insurance and contracts of carriage, and the rule of looking to the proximate cause applies in relation to both. The expression refers only to fortuitous accidents or casualties of the sea. It does not include the ordinary action of the wind and waves. It is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by the expression. The words do not protect, for example, against the natural and inevitable action of the winds and waves, which result in what may be described as wear and tear. There must be some casualty, something which could not be foreseen, as one of the necessary accidents of adventure, see 1985(2) AJI.E.R.712 (H.L).” The Surveyor considered all these aspects in his detailed survey report and particularly, its internal pages No.19to23 and ultimately reached to the conclusions drawn and on the basis of which the Insurance Company repudiated the insurance claim. Thus, action of repudiating insurance claim by the Insurance Company cannot be said as arbitrary, unjust or unlawful. If it is so, then there is no deficiency in service which can be attributed to the Insurance Company within meaning of the Act and therefore, awarding any insurance claim by way of compensation on the basis of deficiency in service is per se not proper. Thus, the impugned order cannot be supported on this count also. Reliance is also placed on decision of House of Lords in the matter of Rhesa Shipping Co. S.A. V/s. Fenton Insurance Co. Ltd., [1985] Vol.2. This case and the facts before us, supra, if at all favours the Insurance Company. For the reasons stated above and the findings recorded, we pass the following order :- -: ORDER :- 1. Appeal is allowed. The impugned order dated 20/03/2010 is quashed and set aside and in the result, consumer complaint No.98/2009 stands dismissed. 2. In the given circumstances, both the parties shall bear their own costs. 3. Copies of the order be furnished to the parties. | 
