BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.24/2013

Dated this the 10^th day of March 2017

(Date of Institution:20.05.2013)

U. Kathavarayan @ Mahalingam  

Son of Uthukattan                

No.24, Rajiv Gandhi Nagar 

Veerampattinam, Puducherry – 605 007.

…      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.12,00,000/- incurred as expenses to repair the mechanized boat damages caused due to Thane Cyclone by the complainant
2. Order interest at 18% on Rs.12,00,000/- 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 the mechanized fishing boat bearing Registration No. IND-PY-PP-MM 835 and named ‘K. MAGESHWARI’.  He had insured the mechanized boat with the opposite party for a sum of Rs. 29,00,000/- and had paid a premium of Rs. 67,447/- by cash on 02.12.2011 and the Policy No. is 011700/22/11/01/00000009 dated 05.12.2011 for a period of one year from midnight of 02.12.2011 till midnight of 01.12.2012.  The insurance policy is a marine hull and machinery policy. He had stationed his mechanized boat at Thengaithittu Harbour and on 29.12.2011/30.12.2011.  Thane Cyclone struck Thengaithittu Harbour during 2.30 A.M to 11.00 A.M and the mechanized boat was damaged due to it and the complainant immediately informed the opposite party about it through his letter dated 06.01.2012 and stated that his boat was damaged and got stranded due to the THANE cyclone and requested the opposite party to inspect and to pay the insurance amount.  The complainant obtained the marine hull claim form and filled it up sent it to opposite party on 03.01.2012.  Since the insurance amount was not settled even after two months after the inspection of the surveyor of the damaged boat in the normal course of time and since the complainant and the dependant families were out of profession due to the damage to the boat the complainant had no other way out than to avail the amount of Rs.4.5 Lakhs  given as welfare measure for THANE cyclone hit fisherman and in order to avail that the opposite party compelled the complainant 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 letter in these circumstances and obtained the amount of Rs.4.5 Lakhs form Government of Puducherry in order to repair the boat and make it sea worthy and carry on his profession otherwise he along with ten other families which helped him in his profession would be put great hardship, agony and financial problems.  On receipt of letter dated 15.05.2012 from the complainant the opposite party had sent a letter dated 10.10.2012 to the complainant stating that it closed the claim as “Claim withdrawn by the insured”.  The complainant herein received the insurance claim through letter dated 09.11.2012 to the opposite party.  In this letter the complainant stated that the Government of Puducherry had so far paid him a sum of Rs. 4.5 Lakhs which is not adequate to cover the expenses incurred by the complainant.  The complainant herein has incurred a sum in excess of Rs. 9, 00,000/- and he requested for a sum of Rs. 4,50,000/-. 

          3. The  complainant sent a legal notice dated 08.12.2012 to the opposite party and the same was received by the opposite party and a reply legal notice dated 27.01.2013 was sent by the opposite party to the complainant and admitted that the boat was insured with the opposite party and denied the other facts mentioned in the legal notice sent by the complainant.

          4. Further in the reply legal notice it is mentioned 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 person who have made claim with the opposite party in order to avoid dual payment and also falsely stated that the Government of Puducherry has paid compensation only to insurance policy holders.  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. 9,00,000/- 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 opposite party has not given a copy of the surveyor report in spite of oral demands by the complainant. The complainant is duty bound to offer at lease the amount specified in the surveyor report in order to show its bonafine in settling the insurance amount.  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 Rs.4.5 Lakhs has been paid as a welfare measure irrespective of whether the beneficiary has insured the boat or not and it also states bout the guidelines about the disbursement of compensation.  The opposite party is bound by the contract of insurance to pay the insurance claim amount and cannot plead that if paid would amount to dual payment after receipt of compensation of Rs. 4.5 Lakhs by the complainant form Government of Puducherry.  The complainant states that 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 under the statute and under the contract of insurance the opposite party is duty bound to pay the insurance amount and nonpayment would amount to deficiency of service on the part of the opposite party and hence this complaint.

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

          The complaint filed under section 12 of the Consumer Protection Act is neither 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 835 was insured with opposite party and he made a claim alleging that his boat was damaged due to Thane cyclone at Thengaithittu harbor on 30.12.2011.  The opposite party denied that he was compelled to give a letter dated 15.05.2012 to the opposite party in which he had stated that in order to get immediate money he wanted to avail the amount of Rs. 4.5 Lakhs given as a welfare measure for THANE cyclone hit fisherman and in order to avail that the opposite party compelled the complainant 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.  The opposite party stated 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 this opposite party that the Government of Puducherry has proposed to extend damage compensation to mechanized boat owners of Puducherry in respect of  Thane cyclone and requested the opposite party to intimate the claims on insurance settlement pertaining to the fishing boats of the persons listed in the said letter, in order to avoid dual payment/ compensation for damages to fishing crafts.  Complainant’s name was also figured in the said list.  On 15.05.2012 this complainant on his own approached this opposite party and gave a letter informing that he is not pressing the claim laid before them and also requested them to return the claim letter.  He has also undertaken that he would not make any claim in future with regard to the damage caused due to Thane cyclone.  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.  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 damaged 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 vide their letter dated 10.10.2012  and further specifically informed him that “ We close the claim as ‘CLAIM WITHDRAWN BY THE INSURED’ and we will not entertain this claim further’’.  This complainant after receipt of the said letter not come forward to raise his objection that this opposite party insisted him to withdraw his claim, he simply received the said letter and waited till the receipt of his final installment on 18.10.2012 from Directorate of Fisheries and Fishermen Welfare, Government of Puducherry and immediately after receiving the entire compensation form Government, he come forward with a letter dated 09.11.2012 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.  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.  He voluntarily and with malafide intention has 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.

          6. This opposite party further denied the averment in the complaint 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.

          7. 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.  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 835.  During the pendency of his claim, Government of Puducherry decided to grant relief to the damaged boats.  Knowing fully well that Government is 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.

8. On the side of the complainant the complainant was examined as CW1 and Exs.C1 to C14 and Exs.R1 and R2 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.R3 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 and Ex.R7 was marked on consent.   

9. 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?

10. POINT No.1:

          The complainant is the owner of the Mechanised Fishing Boat as per Ex.C1 and insured with the OP for a sum of Rs.29.00 lakhs on payment of premium of Rs.67,447/- and obtained Marine Hull and Machinery Insurance Policy No.011700/22/11/01/00000009 dated 05.12.2011 for a period one year from Midnight of 02.12.2011 till Midnight of 01.12.2011 (Ex.C2) and the claim for damages raised by the complainant against the OP regarding the incident occurred is within the period of insurance and hence, the complainant is a Consumer as against the OP.   This point is answered accordingly.

11. POINT No.2:

          The complainant submitted that the complainant is the owner of the Mechanised Fishing Boat as per Ex.C1 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.67,447/- and obtained Marine Hull and Machinery Insurance Policy No.011700/22/11/01/00000009 dated 05.12.2011 for a period one year from Midnight of 02.12.2011 till Midnight of 01.12.2011 vide Ex.C2.  It was further submitted that the complainant due to Thane cyclone on 29.12.2011 the boat concerned was damaged and got stranded and hence, the complainant submitted claim form Ex.C3 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 15.05.2012 Ex.R1 was given by the complainant to the OP and hence, the claim was closed as withdrawn by the complainant Ex.C6.  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.C5 which included the complainant herein. 

          12. It is submitted by the complainant that the OP compelled the complainant to give a withdrawal letter dated 15.05.2012 Ex.R1 for the claim raised by the OP so as to avail the relief amount of Rs.4.50 lakhs from the government and further submitted by the complainant that a letter was sent on 09.11.2012 Ex.C7 to the OP to revive the policy Ex.C2 and it was not rejected by the OP.  Hence, on the strength of the letter dated 09.11.2012 Ex.C7 the complainant herein claim for the damages as the OP is bound by the contract of insurance Ex.C2.  Since the OP has not acted upon the letter Ex.C7 the complainant has presented this complaint before this Forum. 

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

          It is observed by the Forum that admittedly, the policy Ex.C2 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 to decide is whether the complainant is entitled for the claim from the OP for the damages incurred to the boat due to the Thane Cyclone on the basis of the letter dated 09.12.2012 Ex.C7 given by the complainant to the OP for the revival of the policy Ex.C2 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. 

          14. It is contended by the OP that since the complainant has given a letter dated 15.05.2012 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 27.12.2012 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.R1to the OP in order to avail the relief measures sanctioned by the government.  Further, the G.O. dated 23.02.2012 Ex.C5 does not specify anywhere that it is a condition precedent for becoming a beneficiary under the order Ex.C5 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.C5 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.  I admit that we have received the letter dated 26.03.2012." and further the letter given by the complainant dated 09.11.2012 Ex.C7 to revive the policy Ex.C2 was not rejected by the OP.  It is 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.C2.  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.C5.  As per the guideline given in the Ex.C5, 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.C2 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 no final survey report was derived by the OP as the claim process of the complainant was closed by the OP for the reason as discussed in the paras supra and it is also not possible now to derive the final survey report by the OP as the boat mentioned herein has ventured into sea after setting right the damages from the available source known to the complainant.  It is further observed that the complainant claimed an amount of Rs. 12,00,000/- based on itemized expenses mentioned in the Exs.C11 to C14, but the complainant failed to prove the same by examining any one of the witness who had issued the same and the Surveyor on reasonable application of mind assessed the loss and filed the Preliminary Survey Report (Ex.R7) and in this context, this Forum is inclined to rely on the preliminary survey report 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.

          15. POINT No.3:

          In view of the discussions made in paras 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. 

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

1.  A sum of Rs.4,20,000/- 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 10^th  day of March 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           28.07.2014           U. Kathavarayan @ Mahalingam

OPPOSITE PARTY'S WITNESS:   

RW1           11.02.2015           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