BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.9/2017

Dated this the 18^th  day of June 2018

(Date of Institution: 07.04.2017)

Gnanavel, son of Gopal       

No.43, South Street, Pannithittu            

Kirumampakkam Post        

Puducherry – 607 402.

….     Complainant

Vs

The Divisional Manager                  

The United India Insurance Company Ltd.,

Divisional Office                                 

No.46, Jawaharlal 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

Tmt.  D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru K.S. Calaivanane, Advocate                  

FOR THE OPPOSITE PARTY:  Thiru D Ravichandiran, 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  directing the opposite party to pay a sum of Rs.8,00,000/- as compensation to the complainant under insurance policy number 011700/22/14/01/00000150 for the damage of the fishing boat bearing Regn. No. IND-PY-PP-MM-973; to pay a sum of Rs.1,50,000/- towards compensation for the deficiency in service by delaying in processing the insurance claim, harassment and unfair trade practice by the opposite party and to pay a sum of Rs.25,000/- to cost of this litigation.

2.  The case of the complainant is as follows:

          The complainant stated that he is the owner of mechanized fishing boat bearing the name "Yogam" and the boat has been registered by the Government of Indian through Department of Fisheries and Fishermen Welfare cum Registering Authority, Puducherry on 03.07.2012 vide Regn. No. IND-PY-PP-MM-973.  The mechanized fishing boat consists of wooden marine hull and the machineries.  The length, breadth and depth of the hull is 12.750, 4.250, 2.850 meters respectively and the engine number is 400BXEM 34027 with 122 HP capacity.  The STB fishing hull is used for fishing in deep sea and also shore fishing continuously for 2 to 5 days.   The complainant insured his boat for Rs.8.00 lakhs vide policy No. 011700/22/14/01/00000120 for the period from 29.10.2014 to 28.10.2015 by paying a yearly premium of Rs.32,148/- against the loss, damage, liability or expenses covering IFVC TL/CTL (including S, SC, SL), CRO along with the additional adverse weather warranty.  Before insuring the boat or renewing every year, the opposite party had surveyed and valued the fishing hull.  Only based on the Survey and Valuation Report for fishing hull submitted by the Surveyor Cum Valuer appointed by the opposite party, the fishing boat of the complainant is insured.  The complainant has insured his boat from the year 2012-2013 till 2014-2015 i.e. for the last three years.  At the time of finally insuring the boat for the period 29.10.2014 to 28.10.2015 by paying a yearly premium of Rs.32,148/-, as per the report of the Surveyor / Valuer the condition of the hull was found intact and engine trail run was given during inspection and the performance of the machinery was satisfactory.   The complainant's boat was regularly maintained by the complainant in good condition.  While so, on 08.10.2015 the complainant's boat bearing registration number IND-PY-PP-MM-973 was taken at about 12.30 p.m. from Pondicherry fishing harbor for fishing as usual on 5 days fishing trip.  While the boat was fishing in the deep sea along Marakkanam area on 08.10.2015 at about 6.00 p.m. the wind blow was heavy and the water current was also drastic and the weather became bad as it happens unexpectedly.  Due to drastic water current and rise of waves, the boat had to rise and fall while trawling with the net.  As the hull was bombarded by the waves due to such sudden adverse weather, the sea water started to leak from the bottom of the hull into the boat.  In order to avoid the boat from sinking, the crews of the boat drove it towards the light house point that was visible at that time after informing the complainant over mobile phone.  Since the leakage developed due to drastic water current and waves, the crews could not bring the boat to any safe place like habour and constrained to drive it to the shore of Alambarai coastal village near Kadapakkam.  But the boat could not be driven to the shore due to shallow water near the shore and therefore, the crews swam to the shore and as they reached the shore around 8.00 p.m. they found the boat caught fire and totally damaged.  The complainant further submitted that the boat sank only due to the sudden leakage caused by bad weather due to inconsistent wind-blow and sea-current that usually happens while full moon or no moon day is ahead.  The bad weather raises the intensity of the waves and the flow of water current that results in damage in the wooden hull and causing leakage in the bottom of the hull due to which the crews had to drive it in heavy speed to the shore, got stranded near the shore and caught fire and ultimately resulted in damage and loss of the complainant's STB fishing boat.  But for adverse weather, the complainant's boat would not have damaged.  Hence, the opposite party being the insurer is liable to compensate the complainant.  That on 09.10.2015 the complainant informed the matter to the opposite party after giving complaint to the Station House Officer of Soonambedy Police Station, Tamil Nadu.  The complainant also informed about the damage to the Department of Fisheries and Fishermen Welfare, Puducherry on the same day.  The opposite party sent their Surveyor on 09.10.2015.  The complainant submitted claim form to the opposite party along with all relevant documents.  The opposite party dragged the complainant from January 2016 to process the insurance claim under some pretext and finally on 27.08.2016 the complainant received a letter dated 24.08.2016 from the opposite party repudiating the claim of the complainant on the ground that the loss was not due to any of the perils insured under the policy.  Thereafter,t he complainant sent a letter dated 31.08.2016 to the opposite party reconsider their decision of "no claim".  But the opposite party advised the complainant to send a representation to their Grievances Cell.  Therefore, on 29.09.2016, the complainant sent another representation to the Grievances Cell.  However, without properly considering the truth and events, the opposite party's grievances cell failed to consider the claim of the complainant with the illogical inference that the proximate cause of damage was due to wear and tear of the hull which was already weak and not due to any insured peril covered under the policy through their letter dated 11.10.2016.   Hence, this complaint.

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

The complaint is neither maintainable in law nor on facts.  The events narrated in the complaint are false and pigments of fertile imagination clothing to his own needs only with an intention to grab the public money.  The opposite party denied that the Complainant’s boat was regularly maintained by the complainant in good condition, while it is so on 08.10.2015 the complainant’s boat bearing registration number IND-PY-PP-MM-973 was taken at about 12.30 pm from Pondicherry fishing harbor for fishing as usual on 5 days fishing trip and while the boar was fishing in the deep sea along Marakanam area on 08.10.2015 at about 6 pm the wind blow was heavy and the water current was also drastic and the  weather became bad as it happen unexpectedly and due to the drastic was current and rise of waves, the boat had to rise and fall while trawling with the net and the hull was bombarded by the waves due to such sudden adverse weather, the sea water started to leak from the bottom of the hull in to the boat and in order to avoid the boat from sinking the crews of the boat drove it towards the light house point that was visible at that time after informing the complainant over mobile phone, since the leakage developed due to the drastic water current and waves, the crews could not bring the boat to any safe place like harbor and constrained to drive it to the shore of Alambarai coastal village near Kadappakkam, but the boat could not be driven to the shore due to shallow water near the shore and therefore the crews swam to the shore and as they reached the shore around 8 pm they found the boar caught fire and totally damaged. Further denied that the boat sank only due to the sudden leakage caused by bad weather due to inconsistent wind blow and sea current that usually happens while full moon or no moon day is ahead and the bad weather raises the intensity of the waves and the flow of water current that results in damage in the wooden hull and causing leakage in the bottom of the hull due to which the crews had to drive it in heavy speed to the shore, got stranded near the shore and caught fire and ultimately resulted in damage and loss of the complainant’s STB fishing boat bearing registration number IND-PY-PP-MM-973 and the complainant’s boar damaged only because of adverse weather and this opposite party liable to compensate the complainant as per the insurance contract vide policy number 011700/22/14/01/00000120 insured for the period from 29.10.2014 to 28.10.2015 for a sum of Rs.8,00,000.  This opposite party submitted that it is true that the fishing boat bearing registration number IND-PY-PP-MM-973 of the complainant is insured with them for the period from  29.10.2014 to 28.10.2015 for a sum of Rs.8,00,000/- with a restricted cover of IFVC TL/CTL including S,SC,SL) CRO with adverse weather warranty.  Further this opposite party immediately after the intimation given by the complainant on 09.10.215 with regard to the alleged grounding due to flooding of water and subsequent fire to the complainant’s fishing boat bearing registration number IND-PY-PP-MM-973 this opposite party appointed a competent surveyor to inspect and assess the damages if any caused to his fishing vessel and to enquire about the related facts.  As such their surveyor visited the sea shore of Alamparaikuppam, Marakanam on 13.10.2015, 15.10.2010 and 28.01.2016 and inspected the damaged fishing vessel and also made discreet enquiry with regard to the connected facts and submitted his detailed survey report in No.INS:J-15/15/16 date 18.06.2016 with photos and collected documents and he concludes the cause of loss is that “ the hull was already very old and according to the statement of the insured and the crew somehow the hull developed leak while fishing and water started gushing into the vessel uncontrollable.  The driver immediately steered the vessel to the shore to save their lives straining the engine.  It is suspected that the exhaust of the engine got over heated and resulting in the hull planks catching fire”.  The surveyour appointed by them concluded in his report that, “ the hull was finally destroued by the fire but before that it got grounded and before that it got flooded due to water ingress into the hull.  In this case the predominant cause which sets in motion the chain of events is the flooding of the hull which was not caused by an insured peril. The purchase of only 50 litres of diesel for the final voyage indicates that the vessel was not to sail deep into the sea for fishing during this voyage.  There is discrepancy in the list of crew declared to the Fisheries Dept. and the view reportedly sailed and there was less number of crew than specified.  Further submitted that surveyor’s report. They also perused the documents collected by him.  The perusal of the documents very well reveals that the claim of the complainant not seems to be genuine.  Initially, complainant obtained fishing cum Diesel permit form the office of the Deputy Director of fisheries and fishermen welfare, Puducherry on 08.10.2015 at 11.35. a.m. by mentioning the names of the five crew members, but the first information report in crime No.7802/2015 of Chunambedu P.S. dated 15.10.2015 was lodged by one Ezhilmaran as driver of the complainant’s fishing vessel.  His name was not mentioned in the permit and apart from this the name mentioned in the FIR as crew members also not tallied with the permit.  As such they obtained permit only for 50 litres of diesel for deep sea fishing.  In addition to this, with regard to the fire of fishing vessel, in FIR complainant narrated that “immediately after reaching the shore when they saw the fishing vessel, it caught fire with heavy sound”, but the certificate issued by the village Administrative officer, Vembanur village and the Certificated issued by the Inspector of police, Costal security group, Mamallapuram are in different manner.  Apart from this there was no rough weather as alleged by the complainant on 08.10.2015.  The weather report of the Meteorological Department dated 11.04.2016 very well reveals that there was no weather warning against fishing on the noon of 08.10.2015.  Therefore by perusing the surveyor’s report and other related documents and as submitted above, this opposite party expressed their inability to admit the claim of the complainant vide their letter dated 24.08.2016.  Hence, there is no deficiency of service on the part of the opposite party as alleged by the complainant.  This opposite party processed the claim of the complainant with due diligence and at last due to the lack of genuineness in his claim, this opposite party negated his claim in a bonafide manner.  The complainant’s fishing vessel was 20 years old one and due to the poor maintenance it was not seaworthy, and the alleged flooding of hull which was not caused by an insured peril. Even as per the averment of the complainant the hull caught fire only after its grounding and before that it was flooded with water.  Therefore this complaint is not maintainable and deserves for dismissal.    Thos opposite party denied that on 9.10.2015 the complainant informed the matter to the opposite party after giving complaint to the station House Officer of Soonambedu police station, Tamil Nadu and he also informed about the damage of this boat to the Department of Fisheries and Fishermen Welfare, Puducherry on the same day and the opposite party dragged the complainant from January 2016 to process the insurance claim under some pretext and the Grievance cell of the opposite party has also deliberately and intentionally failed to consider the claim of the complainant with the illogical inference that the proximate cause of the damage was due to wear and tear of the hull which was already weak and not due to any insured peril covered under the policy through their letter dated 11.10.2016.  The above averments are totally false, this complainant lodged complaint with the Chunambedu P.S only on 15.10.2015 with different version in a delayed manner after consultation and deliberations and this opposite party processed the claim of the complainant in a genuine manner and arrived at a conclusion after considering all the record and the report submitted by the surveyor.  As such, the Grievance cell also taken only logical inference by considering the relevant records in a proper manner.   This opposite party denied that the averments in the complaint that the wooden boat is properly maintained as it involves lives of human beings and a boat with proper maintenance will be in good condition for more than 20 years and sustained bad weather and the opposite party is very particular in ascertaining the condition of the fishing hull and engine every year before insuring the boat and they never compromise with the condition of the boat and the reasons adduced for repudiating the claim is absurd and baseless and the opposite party failed to consider that the condition of the hull and engine was excellent at the time of insurance and the opposite party has repudiated the claim on unfounded grounds in order to escape from their liability to make good the loss of the complainant.   It is pertinent to note that there is no weather warning on the date of alleged incident the weather report of the Meteorological Department dated 11.04.2016 very well reveals that there was no weather warning against fishing on the noon of 08.10.2015.  This clearly reveals that the fishing vessel of the complainant was not fit to withstand an ordinary weather condition and the engine also not worked properly due to poor maintenance.  Hence the opposite party negated the claim of the complainant in a proper manner by applying their mind and also by considering the relevant records.  Therefore, the claim made by the complainant is not sustainable.  Hence, prayed for dismissal of the complaint.

4. Points for determination:-

1.Whether  the complainant is a  Consumer?

2. Whether the act of op attributed to any deficiency 0f service and unfair trade practices?

3 .Whether the complainant is entitled for any relief?

5. The complainant was examined as CW-1 and exhibits C1 to C16 were marked. On the side of opposite Party Thiru. Parthiban, Senior Assistant of  the Opposite Party’s Concern was examined as RW1 and  Exhibits R-1 to R7 were marked  through him and Mr. Wilton Rollance, Insurance Surveyor of the OP company was examined as Rw-2.

             6.  Both side records and evidence were carefully perused by this Forum.

7. Point No.1:

On the perusal of the Ex. C1 it is observed that the complainant is the owner of the mechanized fishing boat bearing the name “YOGAM’ Vide Regn. No. IND PY-PP-MM-973 registered by the Government of India through Dept. of Fisheries & Fishermen Welfare-cum-Registering Authority, Pondicherry and insured the same  for a sum of Rs. 8 lakhs with the OP vide policy No.0011700/22/14/01/00000120 for a period  between 29/10/2014 and  28/10/2015 on payment of annual  premium of Rs 32,148 vide Ex. C-2.  Hence the complainant is considered to be a consumer as against the opposite party. This point is answered accordingly.

8. Point No.2:

It is submitted by the complainant that the complainant is the owner of the mechanized fishing boat under the name “YOGAM” duly registered by the Govt. of  India through  the Dept. of Fisheries, Fishermen Welfare-cum-Reg. Authority, Pondicherry vide Regn No. IND PY /PP/MM973 dated 3/7/2012 vide Ex.C1 and the same was duly insured with the OP company for a sum of Rs.8 Lakhs vide policy No. 011700/22/14/00000120 for a period  covering between 29/10/2014 and 28/10/2015 on a yearly payment of premium of Rs.32,148/- against the loss, damage and of loss or damage arising out of adverse weather condition as per 
Ex. C2.

           9. It was further submitted by the complainant that on 8/10/2015 the aforementioned boat was taken to sea for fishing from  the Pondicherry fishing harbour, while so at around  6 p.m. the wind flow was heavy and the   waves were high due to adverse weather which is a common course of event happens unexpectedly and as a result of which  the hull was damaged  and sea water started gushing into the boat and to avoid from sinking, the boat was driven off to the shore and reached Alambakarai coastal village and crews therein swam to the shore  and saw the boat which they came was  on fire and totally damaged.  Hence the OP being the insurer  of the  boat was informed of the incident and the damage caused to the boat and claimed for  insurance amount but the OP  had repudiated the claim for the reason that the damage was not due to any of the perils insured under the policy Ex.C-2. Inspite of repeated attempts  with the OP’s official concern  seeking for the settlement of the claim, the complainant’s claim was not considered by the OP. Hence the complainant filed this complaint before this Forum  seeking for the relief as claimed in the complaint.

          10. It is contended by the OP that since the Fishing Vessel of the complainant was old and not properly maintained by the complainant, the fishing vessel got damaged and it was not due to any of the perils insured under the policy, but on the perusal of records it was observed that the  insurance was issued  only on the basis of the Survey and Valuation Report issued by the Surveyor of the OP concern Ex C-3 which speaks about the condition of the vessel and the sea worthiness of it.  On the perusal of the Surveyor Report Ex. C3 dated.29/10/2014 issued prior to the complaint  mentioned incident  it is observed  that the Surveyor has given a report stating that fishing hull was found intact  and certified that the overall condition of the boat as “Good” and assessed the value of the vessel at Rs.8 Lakhs and only on this report Ex.C-3 the insurance policy was issued by the OP. Hence when the Surveyor  of the insurance company has certified that the fishing vessel is in fit condition and thereafter  the incident  the OP’s raising the contention that the hull was old  and damage was caused due to that doesn’t hold good.

          11. It was submitted by the complainant that the boat was hit by high tides due to bad weather  and damaged  the  hull resulting in gushing of water into the boat.  On perusal of the evidence of the Surveyor RW-2 it was observed by the Forum that it was  during the season of North-West Monsoon where bad weather will occur frequently this incident had happened and hence the submission of the complainant that adverse weather prevailed at the time of the incident has to be taken into consideration.  Further it was admitted by the Surveyor RW2 that it was only during this season  lots of boat get damaged.  The version of RW-2 during  his cross examination is as follows.

”It is true that  Oct – Nov months are north –west monsoon.it is true that during the above mentioned season only  the bad weather will occur  frequently  and lot of the boats would  get damage during  that  season only .”

Hence it can be inferred  from the evidence of RW-2  that there was a bad weather i.e., adverse weather  at the time of the complaint mentioned incident and the flooding of the vessel was caused due to the  said adverse weather and  the hull planks catching fire due to the  overheating of the exhaust of the engine  as reported by the Surveyor might have been due to the excessive speed of the boat driven by the crews to reach the shore to avoid sinking of the vessel. 

          12.  It is further observed by the Forum that the Fishermen will not venture into sea for fishing by risking their lives in taking an unconditioned boat as they are the only bread winners of the family and it is their only means of livelihood and hence, the contention of the OP that the vessel was damaged due to lack of proper maintenance cannot be taken into consideration and the repudiation of the claim by the OP for the same reason is not tenable.

          13. It is contended by the OP that the discrepancies in the list of crew  declared to the Fisheries Department  by the complainant with that of the  number  of crew reported  to have went into the sea and that of the purchase of  a small quantity of 50 lit. of diesel  from the Fisheries Dept. construed to believe that the fishing vessel was not taken  into the deep  sea on the date of alleged incident but on the perusal of the complaint, it is observed by the Forum that  the vessel was set off to sea  for fishing from the Pondicherry Fishing Harbor and thereafter the fire reported  to have happened  to the vessel is at the offshore of the Alambaraikuppam village, Kadapakkam, Kanncheepuram District  is supported by the report  of the Inspector of Police, Mamallapuram Ex-R6 and by the report of the VAO  Ex. R5  and the FIR  registered as Crime No. 780/2015  before the Chunnambedu P.S, Kancheepuram District Ex R4 and hence the contention raised by the OP that the vessel was not set to sail deep into the sea for fishing cannot be taken into consideration.  Further the attitude of the Opposite Party in repudiating the claim  based on the minor discrepancies  such as variation in  the time of the incident reported, number  of crews  etc.etc. does not gain any appreciation and  these cannot be considered for adjudication  in this case  as that of a criminal case.  It is further observed by this Forum that if the OP alleges that the incident has not happened as alleged by the complainant then it is for the OP to prove and establish that the proximate cause of the incident happened otherwise.

 14.   Hence in view of the observations made in the paras supra it is held that  the  opposite party is  liable for the  mental agony, loss, physical hardship and monetary loss  suffered by the complainant due to the deficiency of service  and of the Unfair trade practice  of the  opposite party and  as the fishing vessel is completely damaged and the value  of the loss is assessed by the Surveyor at
Rs.7,30,000 as per the Surveyor Report dated 18/06/2016 Ex R-2, the complainant is entitled for the same towards the insurance claim.  This point is  answered accordingly.

15. Point No.3:

In result the complaint is hereby allowed and

1. The Opposite party is directed to pay a sum of  Rs .7,30,000( Rupees seven lakhs & thirty thousand) towards the insurance  claim of the fishing vessel.
2. To pay a sum of Rs.25,000/-  as compensation towards the mental agony, loss, physical hardship & monetary loss due to the deficiency of service and of the unfair trade practice of the Opposite Party.

3. To pay a sum of Rs5000  towards the cost of the proceedings

                    Dated this the 18^th day of June 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           09.08.2017           Gnanavel  

OPPOSITE PARTY'S WITNESS:  

RW1           17.10.2017           Parthiban, Senior Assistant

RW2           05.12.2017           S. Wilton Rollance, Insurance Surveyor

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:   

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER