BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.27/2013

Dated this the 10^th day of March 2017

(Date of Institution:03.06.2013)

R. Pothiraj, son of Ramasamy

184, Tsunami Nagar, Murthikuppam,

Puthukuppam, Manapet P.O.,

Bahour Commune, Puducherry – 607 402.

…      Complainant

vs

The Branch Manager

United India Insurance Company Ltd.,

46, Nehru Street,

Puducherry – 605 001.

…      Opposite party

BEFORE:

            THIRU. A. ASOKAN, B.A., B.L.,

            PRESIDENT 

THIRU V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT                  :  Thiru.R.K. Prem Coumar,  Advocate.

FOR THE OPPOSITE PARTY                :  Thiru.D. Ravichandran, Advocate

O R  D  E  R

(By Thiru.V.V. STEEPHEN, Member)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Order payment of a sum of Rs.8,29,011.85 incurred as expenses to repair the mechanized boat damages caused due to Thane Cyclone by the complainant
2. Order interest at 18% on Rs.8,29,011.85 from the date of claim till the date of payment of the amount;
3. Order a sum of Rs.2,00,000/- towards the mental agony suffered by the complainant due to deficiency in services;
4. Order cost of Rs.5000/-.

        2.  The case of the complainant is as follows:

          The complainant is the owner of mechanized fishing boat bearing Regn. No. IND-PY-PP-MM 104 and named 'PORSELVI' and insured the same with the opposite party for a sum of rs.25.00 lakhs and had paid a premium of Rs.60,665/- by demand draft dated 29.11.2011 issued by The Syndicate Bank, Puducherry.  The policy number is 011700/22/11/01/00000008 dated 30.11.2011 for a period of one year from midnight of 08.12.2011 till midnight of 07.12.2012 and the complainant is in possession of the policy.  That the said policy is a marine hull and machinery policy.  On 29.12.2011 in the Thane Cyclone, the said boat was damaged and the same was informed to the opposite party through letter dated 03.01.2012 and requested the opposite party to inspect and to pay the insurance amount.  On 13.01.2012 the complainant gave owner statement to one G. Srinivasan, the Survey or of the opposite party and had detailed the damages to the mechanized boat and a copy was forwarded to the opposite party mentioning that one R. Balasubramanian had earlier visited from the office of said Srinivasan one week earlier and inspected the damages to the mechanized boat.  The marine hull claim form was issued by the office of the opposite party on 18.01.2012 and the complainant filled it up and gave an estimate of Rs.7.00 lakhs as damages to the boat.  Later, the complainant sent a reminder letter dated 23.03.2012 to the opposite party reminding it about the earlier letter and also mentioned that the surveyor had visited and inspected the damaged boat and even after a lapse of 75 days no insurance amount has been released by the opposite party.  In the same letter, the complainant had mentioned that the quotation given by him for the repairs might escalate over and above the quotation approximately by about a lakh due to the presentation of budget by the government and also requested the opposite party to release a sum of Rs.5.00 lakhs towards initial payment of insurance amount to repair the damaged boat since he did not have the necessary money with him.  On 29.03.2012 the complainant wrote a letter to the Director of Fisheries, Government of Puducherry stating that a sum of Rs.12.00 lakhs would be needed to repair the boat which is worth Rs.35.00 lakhs as on that date.  Further he had mentioned in the letter that he had given quotation of Rs.6,73,000/- after taking into consideration of Rs.4.5 lakhs which is to be paid by the Government of Puducherry as announced by the Chief Minister.  He had also mentioned about the sum of Rs.50,000/- spent by him to retrieve the boat and to set it afloat.  Further, he had questioned the Director of Fisheries, Government of Puducherry in denying this compensation of Rs.4.5 lakhs since he had insured the boat with the opposite party.  Since the opposite party did neither give initial advance to repair the boat as neither requested nor settled the insurance amount and thus the complainant was unable to carry on his profession after repairing the boat.  Since the Government of Puducherry was offering Rs.4.5 lakhs as a welfare measure to rehabilitate the fishermen to carry on their profession and since the complainant was also ascertained as a beneficiary, he wrote letters on 02.04.2012, 30.04.2012 and 30.05.2012 to the Director of Fisheries requesting for the compensation of Rs.4.5 lakhs and also wrote about his claim of insurance amount from the opposite party.  Further the complainant stated that he received information that a sum of Rs.7.00 lakhs had been assessed as damages to the boat by the Surveyor of the opposite party.  That inspite of several letters to the opposite party, the opposite party neither replied nor handed over the insurance amount after assessment of damages to the boat and obtaining a report from its Surveyor.  The complainant also stated that Rs.4.5 lakhs given by the Government of Puducherry is not adequate to cover the expenses incurred by the complainant since he incurred a sum of Rs.14,77,311.85/- in making the boat seaworthy.  The complainant received survey report dated 09.05.2012 and the report has made unnecessary deductions and disallowed legitimate claims and arrived at a sum of Rs.2,53,675/- at the net loss to the complainant which is arbitrary and unreasonable, estimating the loss amount as Rs.7.00 lakhs.   The complainant issued a legal notice to the opposite party on 16.09.2012, the same was received by the opposite party and gave reply on 26.09.2012 stating that the Department of Fisheries and Fishermen Welfare, Government of Puducherry had through letter dated 23.03.2012 had requested it to furnish the list of persons who have made claim with the opposite party and the claim amount in order to avoid dual payment and further mentioned that the name of the complainant was in the list.  Further, it is alleged that the complainant had given a letter dated 24.05.2012 stating that the compensation given by the Government of Puducherry was enough to repair the boat and that he is not making any claim for the insurance amount and had also informed the Government of Puducherry about the same. It is stated by the complainant that he has forced to execute letters by the opposite party in order to avail the compensation from Government of Puducherry.  The complainant further stated that the reply legal notice sent by the opposite party has not mentioned anything about the Surveyor report and the assessment of damages to the boat and the amount payable to the insured.  The opposite party is duty bound to settle the claim of insurance amount on surveying the damaged boat and it cannot state that the compensation of Rs.4.5 lakhs received by the complainant would put an end to the insurance claim of Rs.7.00 lakhs made to it initially and any money spent later to repair the mechanized boat to make it sea worthy and it is bound by the contract of insurance  to pay the insurance claim amount and it is wrong to state that it would amount to dual payment.  The compensation given by the Government of Puducherry is not paid on any insurance policy taken by the complainant with the Government of Puducherry.  Further, the G.O. Rt. No.07/2012-FY dated 23.02.2012 issued by the Government of Puducherry would show that the complainant has been mentioned as the beneficiary and his name is mentioned in Sl. No. 37.  Further the compensation of Rs.4.5 lakhs given to the mechanized boat owners is a welfare measure irrespective of whether the beneficiary had insured the boat or not and it also states about the guidelines about the disbursement of compensation.  Further the G.O. is silent about the insured boats or the non-insured boats, non-mechanized boats etc and no separate guidelines have been issued about that category and disbursement of compensation regarding them.  The question of dual payment would arise only when payment are made under two different insurance policies and not when an amount is paid by the Government of Puducherry to the complainant which can be termed as a welfare measure.  Hence, this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

          The complaint filed under section 12 of the Consumer Protection Act is nether maintainable in law nor on facts and is liable to be dismissed in limine with compensatory costs.   It is admitted by the opposite party  that the complainant’s mechanized boat IND PY-PP-MM 104 was insured with them and he made a claim alleging that his boat was damaged due to Thane cyclone at Thengaithittu harbor on 29.12.2011 and on complainant's information Surveyor inspected the boat on 13.01.2012 and the complainant gave details of damages as owner's statement to one G. Srinivasan with copy marked to the opposite party.    The opposite party denied that inspite of all efforts taken by the complainant in assisting the opposite party for getting settlement of insurance claim of Rs.7,00,000/- as detailed in the hull claim form dated 18.01.2012, opposite party has not settled the claim and also not paid the advance of Rs.5.00 lakhs demanded by the complainant towards repair charges and also denied that the complainant incurred a sum of Rs.14,77,311.85 as total expenses in making the boat seaworthy and the surveyor appointed by the opposite party made unnecessary deductions and disallowed letigimate claims.  The opposite party also denied that the complainant was compelled to give a letter dated 15.05.2012 to the opposite party stating that  he is not claiming insurance amount and since the complainant needed urgent money he gave the said letter.  It is stated by the opposite party that during the pendency of complainant's claim with this opposite party and consequent upon Thane cyclone, the Department of Fisheries and fishermen Welfare, Government of Puducherry by their letter dated 23.03.2012 informed the opposite party that the Government of Puducherry has proposed to extend damage compensation to mechanized boat owners of Puducherry in respect of Thane Cycle and requested the opposite party to intimate the claims on inusrnace settlement pertaining to the fishing boats of the person listed in the said letter, in order to avoid dual payment / compensation for damages to fishing crafts.  Complainant's name was figured first in the said list.  Further stated that on 24.05.2012 this complainant on his own approached this opposite party and gave a letter informing that the compensation awarded by the Government of Puducherryt for the damages caused to his fishing boat was sufficient and therefore not pressed the claim laid before them.  Based on the said letter, this opposite party by their letter in No.011700/Hull/CL/2012-13 dated 24.05.2012 informed the Director of Fisheries and Fishermen Welfare, Government of Pondicherry that the complainant is holding insurance policy with them and withdrawan the claim made with them.   Based on the said letter.  Directorate of Fisheries and Fishermen Welfare, Government of Puducherry, released compensation to 11 Mechanized fishing boat (MFB) owners/ insurance policy holders, including this complainant and subsequently they has also informed the fact of disbursement of compensation amount to this opposite party vide letter No.1-1/ Thane Cyclone Relief/The (MFD)/11-12, dated 20.07.2012.  As per said letter, this opposite party has been specifically informed that his Complainant has been paid Rs. 4,50,000/- towards compensation for the damage caused to his boat due to Thane Cyclone and that the said amount was released only based on the certificate issued by the insurance company stating that the policy holders have given up their claim.  It has been further directed in the said letter that any claim regarding damages may not be settled to the beneficiaries form the insurance company, so as to avoid dual payment.    This opposite party also stated that after receipt of letter of withdrawal of his claim, they informed the pending claims to the Government and also confirmed with this complainant about the claosure of his claim and further informed that his claim will not be entertained in future.  The complainant knowing fully well about the decision arrived by the Governemtn approached the Director of Fisheries and Fishermen Welfare, Government of Pondicherry vide his letters dated 29.03.2012, 02.04.2012 and 30.04.2012 requested them to release the comepsnation  in addition to his insurance claim.  But the Governemnt not considered his request, hence, he withdraw his claim with this opposite party and after receipt of his final instalment from Directorate of Fisherties and Fishermen Welfare, Government of Puducherry, immediately he served advocate notice dated 16.09.2012 to revive the already withdrawn claim and instituted this complaint as if that there is deficiency in service on the part of this opposite party.  The opposite party stated that as a public sector insurance company, there is no necessity for this opposite party to insist this complainant to withdraw his claim for the purpose to repudiate his claim.  They never insisted this complainant to withdraw his claim at any point of time.  The complainant voluntarily and with malafide intention had on his own volition given such a letter of withdrawal, since he sensed that the compensation payable by the Government would be fairly higher than that of compensation if any to be paid by the opposite party for the actual loss sustained. 

          4. This opposite party further denies the averment in the complainant that the G.O.Rt.No.07/2012-FY dated 23.02.2012 issued by the Government of Puducherry would show that Rs. 4.5 Lakhs has been paid as  a welfare measure irrespective of whether the beneficiary had insured the boat or not and it also states about the guidelines about the disbursement of compensation.

          5. The complainant has no locus standi to claim any compensation by suo motu assessing the damage.  The surveyor appointed by this opposite party inspected the damaged boat and assessed the actual loss and estimated the damages to a tune of Rs. 4,20,000/-.  This Complainant received Rs. 4,50,000/- from Government , i.e., more than the actual loss sustained.  This opposite party denied that the G.O. Rt. No. 07/2012-FY dated 23.02.2012 issued by the Government of Puducherry would show that Rs.4.5 lakhs has been paid as a welfare measure irrespective of whether the beneficiary had insured the boat or not and it also states about the guidelines about the disbursement of compensatin.  The complainant has no locus standi to claim any comepsnation by suo motu assessing the damage.  The complainant himself estimnated the damages to his boat as Rs.7.00 lakhs vide hull claim form dated 18.01.2012, but now filed this complaint as if he incurred Rs.14,77,311.85 as total expenses.  The bills filed along with this complaint are all created only for the purpose of this complaint.  The claim made by the complainant is exhorbitant not supported by any genuine documents.  Even the Surveyor appointed by this oppoiste party inspected the damaged boat and assessed the actual loss and estimated the damages to the tune of Rs.2,53,675/-.  This complainant received Rs.4.50 lakhs from the government i.e. more than the actual loss sustained.  Further the G.O. cited by the complainant is in no way connected with the facts of this case and it is only a sanction order.  This complainant made a claim with this opposite party for the alleged damages caused to his mechanized boat IND PY-PP-MM  104.  During the pendency of his claim, Government of Puducherry decided to grant relief to the damaged  boats.  Knowing fully well that Government if not inclined to release damages to the insured boats and they are also taking precautionary measures and   clarifying with the insurance companies to avoid dual payment , this complainant mischievously and intentionally approached this opposite party and withdrawn his claim in a voluntary manner and made them to send a letter to Government that there is no claim by this complainant and after receipt of the damages given by the Government or after cheating the Government, he again come forward to revive his withdrawn claim and thereby to defeat the intention of the Government.  He is trying to use this opposite party as an aid to grab the public money.  Now with utmost urgency he is initiating legal proceedings only to threaten this opposite party and thereby to obtain unlawful gain.  He intends to cheat both the Government of Puducherry and this opposite party.  His unlawful act should not be entertained and it has to be curbed with.  Hence, prayed for dismissal of the complaint. 

6. On the side of the complainant the complainant was examined as CW1 and Exs.C1 to C27 and Ex.R1 were marked through CW1 and on the side of the OP one V. Anbalagan, Assistant, United India Insurance Company Ltd., Pondicherry was examined as RW1 and Exs.R2 to R5 were marked through RW1 and one N. Elaya perumal, Deputy Director Fisheries Department, Puducherry was examined as RW2 and Ex.R6 was marked through him. 

7. POINTS FOR DETERMINATION:

1. Whether the complainant is a Consumer
2. Whether the OP has attributed any act of deficiency of service towards the complainant.
3. Whether the complainant is entitled for any relief?

8. POINT No.1:

          The complainant is the owner of the Mechanised Fishing Boat registered with the Government of India, Ministry of Agriculture, Department of Animal Husbandy, Dairying and Fisheries, having registration No. IND-PY-PP-MM-104 and named as PORSELVI as per Ex.C2 and the same was  insured with the OP for a sum of Rs.25.00 lakhs on payment of premium of Rs.60,501/- and obtained Marine Hull and Machinery Insurance Policy No.011700/22/11/01/00000008 dated 30.11.2011 for a period one year from Midnight of 08.12.2011 till Midnight of 07.12.2012 (Ex.C1) and the claim for damages raised by the complainant against the OP regarding the incident occurred was within the period of insurance and hence, the complainant is a Consumer as against the OP.   This point is answered accordingly.

9. POINT No.2:

          The complainant submitted that the complainant is the owner of the Mechanised Fishing Boat as per Ex.C2 concerned in this case and insured the boat with the OP for a sum of Rs. 29.00 lakhs on payment of premium of Rs.60,501/- and obtained Marine Hull and Machinery Insurance Policy No.011700/22/11/01/00000008 dated 30.11.2011 for a period one year from Midnight of 08.12.2011 till Midnight of 07.12.2012 vide Ex.C1.  It was further submitted by the complainant due to Thane cyclone on 29.12.2011 the boat concerned was damaged and got stranded.    Hence, the complainant submitted claim form Ex.C5 with the OP claiming damages for the boat as the incident occurred is within the period of insurance.   But, the claim was closed by the OP contending that a withdrawal letter of the claim dated 24.05.2012 Ex.R1 was given by the complainant to the OP and hence, the claim was closed as withdrawn by the complainant.  Further the government has provided relief measures by granting a sum of Rs.4.50 lakhs to each of the boat owners affected by the Thane cyclone as per the names listed in the Government Order dated 23.02.2012 Ex.C6 which included the complainant herein. 

          10. It is submitted by the complainant that the OP compelled the complainant to give a withdrawal letter dated 24.05.2012 Ex.R1 for the claim raised by the OP so as to avail the relief amount of Rs.4.50 lakhs from the government.  It was contended by the complainant that the OP is bound by the contract of insurance to pay the insurance claim amount and the compensation of Rs.4.50 lakhs paid by the government is only a welfare measure and has nothing to do with the contract of insurance entered into between the complainant and the OP and the claim form submitted by the complainant on 18.01.2012 is not repudiated by the OP.  Hence, this complaint. 

          11. On the perusal of the records and evidence of the complainant and OP, this Forum observes as follows:

          12. It is observed by the Forum that admittedly, the policy (Ex.C1) obtained by the complainant was in subsistence at the time of Thane cycle occurred on 29.12.2011 which caused damage to the mechanized fishing boat of the complainant and it was also admitted by the complainant that a sum of Rs.4.50 lakhs was received from the government as relief measures through the Fisheries Department, Puducherry for the damages incurred to the boat concern due to Thane Cyclone.  The only issue is to decide whether the complainant is entitled for the claim from the OP for the damages incurred to the boat due to the Thane Cyclone inspite of the fact that the complainant has received a sum of Rs.4.50 lakhs as relief measures sanctioned by the government for the damage incurred to the boat due to the Thane Cyclone. 

          13. It is contended by the OP that since the complainant has given a letter dated 24.05.2012 (Ex.R1) withdrawing the claim for the damage to the boat, the claim of the complainant was closed and further the complainant has received a relief assistance to a tune of Rs.4.50 lakhs from the government towards the damages occurred to the boat due to the Thane Cyclone, but, the contention of the complainant is that the letter Ex.R1 was obtained on compulsion by the OP.  The perusal of the letter issued by the Director of Fisheries Department to the OP dated 20.07.2012 Ex.R5 which reads as follows:

          "It is also further informed that the above mentioned 11 nos. of MFB owners have obtained letter from your Office stated that they will not make any claim in respect of any damages to the boat due to Thane Cyclone".  Hence, this Office has released compensation to the 11 boat owners, based on certificates issued by Insurance Company.

          Therefore, it is informed that any claim regarding damages may not be settled to the beneficiaries from your insurance company, so as to avoid dual payment."  it is observed by the Forum that the complainant was constrained to issue withdrawal letter of claim for damages (Ex.R1) to the OP in order to avail the relief measures sanctioned by the government.  Further, the G.O. dated 23.02.2012 (Ex.C6) does not specify anywhere that it is a condition precedent for becoming a beneficiary under the order Ex.C6 and the same is elicited during the cross examination of RW2, who is the Deputy Director, Fisheries Department, wherein, it states that "There is no stipulation in Ex.C6 that the insured boat owner have to give a letter stating that they are not claiming the insurance amount in order to avail the compensation given by the government for the boats affected in the Thane cyclone".    It is further observed by the Forum that the contract of policy of insurance is entered only between the complainant and OP and the government is not a party to the contract of policy of insurance Ex.C1.  The relief obtained from the government is only a welfare measure and an amount of Rs.4.50 lakhs was received by all the affected mechanized fishing boat owners due to the Thane cycle irrespective of the fact that whether the boats were insured or not and the same is supported from the evidence of RW2 wherein, he states during the cross examination that "We have paid compensation amount to the boat owners affected by Thane Cyclone irrespective of whether they have insured the boat or not as per the Government Abstract dated 23.02.2012 vide Ex.C6.  As per the guideline given in the Ex.C6, there is no specific mention regarding dual payment for boat owners who have already issued."  The Counsel for complainant also relied upon a citation in F.A. No. 5/2009 of Hon'ble State Commission, Puducherry, [M/S UNITED INDIA INSURANCE COMPANY LTD., PUDUCHERRY VS DAKSHINAMOORTHY] wherein, the ruling of the Hon'ble Supreme Court reported in 1991 A.C.J. 10 Hellen. C. Robello vs Maharashtra State Road Transport Corporation was relied upon by the Hon'ble State Commission, Puducherry in deciding the F.A. 5/2009 dated 24.06.2011.  The observation is as follows:

       "How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract.  Similarly, how an amount receivable under a statue has any correlation with an amount earned by an individual.  Principle of loss and gain has to be on the same place within the same sphere, of course subject to the contract to the contrary or any provision of law."

       "The case on hand, the obtaining of gain by the insured from the State Government has no correlation with the amount receivable under the contract of insurance.  It is on account of fact, the amount receivable under the contract of insurance, is contributor in nature, as the insured has paid the premium"

"On the contract, the amount received by the insured from the Government is welfare measure, conferred by the Government for which no contribution is received from the owner of the vessel".

"The problem on hand may also be analysed from another angle.  The principle of equality may be taken as a safer guide at the moment.  According to the above principle, there cannot be equal treatment of unequals."

"In the matter of granting benefits of indemnity, persons getting compensation from the government, after obtaining any insurance policy by way of payment of premium, should not be treated on par with person getting compensation from the Government without obtaining any insurance policy.  Such a treatment will be considered as arbitrary and against the principles of equality enshrined in Article 14 of the Constitution of India."

"For all the reasons stated above, I very earnestly feel that the claim of the insured may kindly be settled in accordance with the terms and conditions of policy as per the norms of your esteemed company."

Hence, in this context, it is observed by the Forum that the Contract of Insurance Ex.C1 between the complainant and the OP was in subsistence and the complainant is entitled to claim for damages incurred to the boat due to the Thane cyclone and the act of the OP closing the claim of the complainant amounts to deficiency of service and it caused great hardship and mental agony to the complainant. 

          Regarding the assessment of damages to the boat.  It is observed by the Forum that the complainant has not taken any steps to prove the itemized expenses mentioned in the Exs.C14 to C23 by examining any of the person who had issued the same to substantiate the relief claimed to an amount of Rs.8,29,011/-  and hence, in this context, this Forum is inclined to rely only on the final survey report (Ex.C24) for assessing the quantum for the damages caused to the boat and find it as just and necessary to award the same as compensation for the damages caused to the boat due to the Thane cyclone as the complainant was duly indemnified by the OP as per the contract of insurance and the complainant is also entitled for reasonable amount of compensation for the mental agony and hardship suffered by the complainant due to the act of deficiency of service by OP.  This point is answered accordingly.

          14. POINT No.3:

          In the of the discussions made in para supra, it is held that the OP is liable for mental agony suffered by the complainant due to the deficiency of service of OP and the complainant is entitled for the insurance claim for the damaged boat and other reliefs. 

          15. In the result, the complaint is allowed and the OP is directed to pay the complainant  

1.  A sum of Rs.2,53,675/- towards the insurance claim of the boat for the damage occurred due to Thane cyclone.
2. A sum of Rs. 25,000/- towards the mental agony suffered by the complainant due to the deficiency of service.
3. A sum of Rs.5000/- towards cost of this proceedings.

  Dated this the 6^th  day of March 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           07.07.2014           R. Pothiraj                 

OPPOSITE PARTY'S WITNESS:   

RW1           17.04.2015           Anbazhagan, Assistant of OP1 company

RW2           26.10.2016           N. Elayaperumal, Deputy Director, Fisheries

Department

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTYS' EXHIBITS:  

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER