Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal filed by org. complainant whose complaint No.17/2004 was partly allowed by District Consumer Disputes Redressal Forum, Sindhudurg by judgement dated 28/12/2004. While allowing the complaint partly, District Consumer Disputes Redressal Forum directed the New India Assurance Company Ltd., Ratnagiri to pay a sum of `3,71,500/- to the complainant along with interest @ 6% p.a. from 01/01/2001 till the date of actual payment and also directed to pay `2,000/- for mental distress and `1,000/- towards costs. Not satisfied with the claim partly allowed by the District Consumer Disputes Redressal Forum, org. complainant has filed this appeal.
2. This appeal was pending on the file of this Commission since 2005 and it was placed before us for disposal on 18/08/2011. On finding that the appellant was not present and appellant had not taken steps even for seeking circulation before this Commission, we directed the office to issue notice to the appellant returnable on 18/10/2011 i.e. today. Notice was sent by the office on 01/10/2011 by the ordinary post. Despite sending of notice, nobody is present today for hearing. So, at the stage of admission itself, we propose to dispose of this appeal.
3. We perused the impugned order. We are finding that Shri Anant Vithoba Anbhavane had taken insurance cover for their boat having registration No.F-VNG/03/493 styled as “Sagar Pushp” from the opponent/Insurance Company. They had taken policy styled as “Marine Hull Policy bearing No.22/152204/03562 for period 28/04/2000 to 27/07/2001. The policy cover was for the sum assured of `6 Lakhs. They had paid premium of `8,154/-. The complainants had further taken personal accidental risk of 10 crew members of the said boat. The said vessel was given to one Shri Ganesh Rajaram Prabhu for fishing on the sea. On 27/07/2000 at 7.00 a.m. when the crew members were trying to catch fish with the help of net, because of accident water started coming into the vessel and therefore, with the help of another fishing boat, the crew members were rescued but the Boat “Sagar Pushp” could not be saved and completely sank. The complainants reported this fact to the Custom Department, Tahasildar and Police. As accident occurred during the policy period, claim was lodged with the necessary documents with the opponent/Insurance Company. Opponent vide letter dated 08/01/2002 repudiated the claim and therefore, consumer complaint was filed against the opponent by legal heirs of deceased insured Anant Vithoba Anbhavane for getting damages alleging deficiency in service on the part of opponent/Insurance Company.
4. Opponent/Insurance Company resisted the consumer complaint by filing written version. They denied the allegations made in the complaint. It was pleaded that boat/vessel sank into the sea without any accident and therefore, it was not covered under the said policy. It was pleaded that as per Report of Port Officer, Ratnagiri in clause 74 it was mentioned that, “cause of casualty is due to loosening of the bottom wooden plank……….causing sinking of the boat and hence total loss”. The Insurance Company pleaded that the insured did not maintain the vessel properly and the wood of the planks decayed and due to the defect in the boat it sank and therefore, they were not liable to pay insurance claim of `6 Lakhs. As such, the Insurance Company repudiated the insurance claim. They had appointed Surveyor Shri Gavande, who also reported that the insured did not take proper care and vessel sank without any accident. Surveyor was also of the opinion that the insured was not covered under the policy. Therefore, the Insurance Company pleaded that they had rightly repudiated the claim. They also pleaded that the vessel was used for commercial purpose and therefore, consumer complaint should not be entertained and tried by the District Consumer Disputes Redressal Forum.
5. On the basis of affidavits and documents placed before it, the Learned District Consumer Disputes Redressal Forum held that complainants were consumers and that by repudiation of the legally lodged claim, the Insurance Company was guilty of deficiency in service and that the service of any kind is covered under Section 2(1)(o) of Consumer Protection Act, 1986 and since, boat was livelihood of the complainants, repudiation of the claim was bad in law. Income of the boat was used for livelihood of the complainants and it was not amounting to commercial purpose and therefore, District Consumer Disputes Redressal Forum held that for the deficiency in service, the consumer complaint filed by the complainants is tenable in law. District Consumer Disputes Redressal Forum then held that because of accident, the vessel had sank into the sea and the crew members were required to be rescued with the help of another fishing boat MFV Chiranjivi. Even after making best efforts said boat could not be saved and it sank totally. The claim lodged was payable on the basis of total loss, but since Surveyor had reported that the loss could be upto `3,71,500/-, District Consumer Disputes Redressal Forum allowed the complaint partly and directed the Insurance Company to pay `3,71,500/- and further directed to pay `2,000/- for mental distress and `1,000/- as costs to the complainants. Not satisfied with the inadequate compensation granted, org. complainants have filed this appeal.
6. Since both the parties are absent, we perused the documents and affidavits filed by both the parties and also perused the order passed by the District Consumer Disputes Redressal Forum and we are finding that the order passed by the District Consumer Disputes Redressal Forum is appearing to be just and proper and it does not require enhancement in the amount of compensation awarded in the circumstances obtainable. After accidental sink of the fishing boat in question, respondent/Insurance Company had appointed Surveyor Shri Gavande, who had surveyed the incident and had estimated probable loss occasioned to the complainants to the extent of `3 ,71,500/- and acting on the said Survey Report, District Consumer Disputes Redressal Forum directed the Insurance Company to pay said amount with interest. In our view the order on the whole passed by the District Consumer Disputes Redressal Forum in favour of the appellants is just and proper and it is sustainable in law and there is no need to enhance the compensation that granted by the District Consumer Disputes Redressal Forum which was based on the Survey Report. Surveyor appointed by the Insurance Company is an independent person and Expert in the field. Therefore, District Consumer Disputes Redressal Forum rightly awarded compensation of `3,71,500/-. We find no merit in the appeal filed by the org. complainants for enhancement of the compensation. Hence, we pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 18th October 2011.
