Ld Advocate for both parties are present. Judgement is ready and pronounced in open Commission in 4 pages 2 separate sheet of paper.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case are that the Complainant is a permanent resident under the Jurisdiction of this Commission. The Complainant is the owner of Vessel under the name and style “F B Neel Madhab” Mechized of 2011 registered at Asst. Director Contai by port of Registration and Authority which is fishing vessel being No. IND-WB-CN-MM-1860 & 12/12/2017 which will ply at Digha, Bay of Bengal. The Complainant took an insurance of Rs. 24,65,000/- being policy No. 51260022160100000003 from 23.09.2016 to 22.12.2016 from the Opposite Party against the said vessel whose annual premium was Rs. 25,390/-. On 25.09.2016 the said vessel was fishing in the Digha Sea (Bay of Bengal) got burst at about 3:00 P.M. for which the said vessel had been damaged very badly and after rescue the vessel was taken to Patuyaghat Jetti. The Complainant informed the said incident to the Opposite Party on 26.09.2016. According to the Opposite Party the Complainant arranged for repair the said vessel at Patuyaghat and the total cost of repair is Rs. 2,75,546/- and all the receipts of repair cost have been deposited to the O.P. The Complainant demanded the said cost in time, but the Opposite Party has repudiated the claim by a letter dated 29.01.2018 for which the Complainant has been suffering from mental agony. The Cause of action of this case has been arose on and from 29.01.2018. Hence the Complainant prays for directing the op to pay the said repair cost of Rs. 2,75,546/- to the Complainant with 10% interest from 26.09.2016 till realization, to pay a compensation of Rs. 2,00,000/- to the complainant for mental agony, to pay a litigation cost of Rs. 20,000/- to the Complainant for conducting of this case, to give other relief to the Complainant which this Commission may deem fit and proper.

The op has contested the case by filing written version against the complainant stating inter alia that  save and except the statements which are the matters on record all other statements as made in para 1 to 7 of the Complaint are false, baseless, fictitious statements having no bearing with this O P and denied.  It is very much denied that on 25.09.2016 the stated vessel was fishing in the Digha Sea (Bay of Bengal) or got burst at about 3.00 p.m. or the stated vessel has been damaged very badly or it was taken to Patuyaghat Jetty after rescue. It is very much denied that the Opposite Party made any advice to repair or the Complainant arranged for repair the stated vessel at Patuyaghat or the total cost of repair is Rs. 2,75,546/-. It is very much denied that any stated cause of action of this case has arisen on or from 29.01.2018. All the prayers as made in para or sub-paras (a) to (d) in the complaint are false, baseless and illegal and the Complainant is not entitled to the relief(s) on his Complaint as prayed for or any relief from this Ld. Forum.  The statements which are not specifically admitted by this O.P. shall in no way be deemed to have been admitted by this O.P. The instant complaint is not maintainable in its present form, prayer and in law. The instant complaint is liable to be rejected. The instant complaint is not maintainable on the principles of waiver, estoppels and acquiescence. The instant complaint is not maintainable as per various provisions of the West Bengal Marine Fishing Regulation Act, 1993 and the Rules framed there under. The Complainant can not get any benefit for his own willful fault, latches and clear violation of the terms and conditions of the Insurance Policy. The instant complaint is barred by the provisions of the Insurance Act and also by various provisions other laws of the land. The Opposite Party most humbly submits that the Marine Hull named ‘FB Neel Madhab’ was proposed to be insured with this O.P. for the payment of premium of policy  by installment and the contract of insurance was a concluded contract and net piecemeal  contract. Only the advantage was given for payment of premium by installments, and as the installments cheque dt. 22.03.2017 was dishonoured by Bank for insufficient Fund, the policy was canceled since inception with information to complainant. Vide letter dated 31.03.2017. It is the prime Condition that the owner shall go on voyage on fulfilling the  mandatory conditions laid down in the various provisions of the West Bengal Marine Fishing Regulation Act, 1993 and the West Bengal Marine Fishing Regulation Rules, 1995 as amended upto date. It is further submitted here that none of the personnel in the vessel at the stated time of incident, including the driver/crew of the vessel were authorized to go on the vessel for marine fishing like the vessel itself. Accordingly the owner of the vessel allowed his vessel in an illegal fishing Operation and as such in no way entitled to claim any indemnification or anything as claimed in this case for the alleged loss of his vehicle. Further investigation in the matter of such alleged bursting of the Engine of the vessel at deep sea are taken up by the Opposite Party and as such the Opposite Party hereby craves leave to submit additional written version in future on discovery.  The instant Consumer case being otherwise bad is liable to be rejected with exemplary cost to the Opposite Party. |

Points for determination are:                                                           

1. Is the case maintainable in its present form and in law?   

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

We have carefully perused and assessed the affidavit of the complainant, written version filed by op, evidence of both parties and other documents. We have anxiously considered the arguments advanced by the Ld counsel of rival parties.

Having regards had to the facts and circumstances of the case, it appears that the complainant has filed this case claiming his status as insured against the op insurer. The bundle of facts suggests that the complainant has cause of action to initiate case. The case is maintainable in its present form and in law.

It appears from the evidence of the complainant that the Complainant took an insurance of Rs. 24,65,000/- being policy No. 51260022160100000003 from 23.09.2016 to 22.12.2016 from the Opposite Party against the said vessel whose annual premium was Rs. 25,390/-( Annexure- 2&3). On 25.09.2016 the said vessel was fishing in the Digha Sea (Bay of Bengal) got burst at about 3:00 P.M. for which the said vessel had been damaged very badly and after rescue the vessel was taken to Patuyaghat Jetti. The Complainant informed the said incident to the Opposite Party on 26.09.2016 ( Annexure- 4). The insurance policy was valid from  23.09.2016 to 22.12.2016 the period within which accident took place.It is crystal clear that period of insurance coverage was given for 03 months as the premium was accepted by installment for the said period only. It can not be contended that as premium was allowed to pay by installments, the insured can not set forth any claim if the accident occurs in the said insurance coverage period. It is the contention of the op that the Marine Hull named ‘FB Neel Madhab’ was proposed to be insured with this O.P. for the payment of premium of policy  by installment and the contract of insurance was a concluded contract and net piecemeal  contract. Only the advantage was given for payment of premium by installments, and as the installments cheque dt. 22.03.2017 was dishonoured by Bank for insufficient Fund, the policy was canceled since inception with information to complainant. Vide letter dt. 31.03.2017. From the above statements of the op, it appears that op misconstrued the validity period of the insurance policy. There is nothing to do with insurance dated which canceled from the very inception. The accident took place on 25.09 2016 , on the date the short term insurance policy quite valid. The op did not undertake any inquiry from its part ;it sat idle. May be due to the misconception it did not conduct any investigation by any Surveyor. The op has also failed to substantiate the contention that the complainant has violated the mandatory conditions laid down in the various provisions of the West Bengal Marine Fishing Regulation Act, 1993 and the West Bengal Marine Fishing Regulation Rules, 1995 as amended upto date. The complainant has produced all the money receipts ( Annexure 6 series ) showing costs of repair to the tune of Rs. 2,75,546/-. The complainant has got repaired the vessel to the extent of fit for running of the same as per rules andprovisions of the West Bengal Marine Fishing Regulation Act, 1993 and the West Bengal Marine Fishing Regulation Rules, 1995.The op should have entertained the claim to settle the due and genuine insurance claim of the complainant . This omission and gross negligent act on the part of the op tantamount to deficiency of service. The conduct of the op caused harassment and mental agony to the complainant for which he should be adequately compensated.

In the above backdrop, we are of the view that the complainant has succeeded  to bring home elements of deficiency of service  against the op. Therefore, the complainant is  entitled to get  repairing cost of Rs. 2,75,546/- , compensation of Rs. 15,454/-and litigation cost of Rs. 9,000/-from the op for conducting of this case.

 Accordingly both the points are disposed of in favour of the complainant.

Thus, the case succeeds.

Hence, it is

O R D E R E D

That CC/37 of 2020 be and the same is allowed on contest against the op.

The op is hereby directed to pay Rs.3,00,000/- [ Three  Lakh only (repairing cost of Rs. 2,75,546/- , compensation of Rs. 15,454/- and litigation cost of Rs. 9,000/-)] to the Complainant  within 45 days from the date of this order.

In default , the said amount of Rs. Three Lakh will carry simple interest @ 10% per annum from the date of expiry said 45 days  till realization.

The Complainant will be at liberty to put the order into execution if requires.

Let a copy of the judgment be supplied to each of the parties free of cost.