Per Shri P.N.Kashalkar, Hon’ble Presiding Judcial Member:
This complaint has been filed by the complainant through power of attorney holders against The New India Assurance Co. Ltd. impleading its head office and divisional office at Gandhidham as opposite parties. According to complainant, they are owner of vessel called “MSV Annasagar”. Said vessel is registered as a mechanized sailing vessel with post office Gujrat Maritime Board Mandvi (Kutch) under certificate dated 22nd September, 2000 under the M.S.Act, 1956. On the basis of valuation report the complainant proceeded to insure the said vessel with New India Assurance Co.Ltd. under Marine Hull Insurance Policy bearing no. 22211600 00137. The policy covered all voyages for a period of one year from 2nd November, 2000 to 1st November, 2001. The amount insured under the said policy was for `55,30,000/- which was the value of the vessel. The complainant paid premium from time to time under said policy totally amounting to `17,207/-. According to complainant on 05/11/2000 said vessel met with an accident while on voyage from Dubai to Iran. Complainant states that Captain and Crew heard some noise and felt something had hit the bottom of the vessel. Within no time the vessel was full of seawater and it started sinking. The vessel had a total number of 14 people on board. Complainant states that the captain of the said vessel then instructed the Crew to jump out from the vessel as quickly as possible. Captain took utmost care to save the said vessel. One other vessel MSV Kailash which had started search operation of the vessel had came to rescue the sinking vessel. All the crew members of the said vessel climbed on board the vessel MSV Kailash and reached Dubai and from Dubai they left on 11th November, 2000 to reach Mandvi by vessel MSV Yogeshwar. However, the said vessel Annasagar could not be rescued and sank in the water. Complainant pleaded that opp.party no.2 was telephonically informed about the same. Opp.party appointed J.Basheer & Associates Surveyors Pvt. Ltd. as surveyor. By letter dated 08/11/2000 surveyor J.Basheer & Associates Surveyors Pvt. Ltd. requested the complainant to furnish about 28 documents enlisted in the complaint. Said surveyor stated in the said letter that they would process the claim after receipt of said documents. Complainants sent a telegram to the opposite party no.2 dated 14/11/2000 informing them about the sinking of their said vessel “ Annasagar” and requested them to appoint their agent to do a survey. J.Basheer & Associates Surveyors Pvt. Ltd. visited Mandvi-Kutch on 7th and 8th December, 2000 in order to conduct survey/investigation into the alleged sinking of the vessel “ Annasagr” on 5/011/2000. Complainant states that during the said visit Nakhwa, Malam and Driver of the vessel who were engaged/working on the vessel since the time it left Mandvi port on 17th October, 2000 had informed that normally vessels from Mahdvi sail in ballast since cargo is not available for loading. The survey took a report from them as to how the said vessel sank. They had told the surveyor that vessel had gone to Dubai and in Dubai it had loaded cargo of dates to be taken to Port Khorramshahr in Iran and while coming back to Dubai it had sunk on 5the November, 2000.
Complainant in his complaint referred to various correspondence made by him with the said surveyor. Complainant pleaded that opp.party was delaying the matter on one or other pretext despite supply of all the documents to them. Complainant by their letter dated 12/03/2004 informed to opp.party no.2 that they had supplied all the documents required by them as back as on 08/04/2002 and again enclosed certain documents required by them and requested them to look into the matter as soon as possible. However, the grievance of the complainant is that despite this claim of the complainant has not been processed by the opp.party. Ultimately, complainant sent notice through their advocate on 06/07/2004. Despite this notice the opp.party had not taken any steps to process their claim and to make payment in respect of claim. Opp.party had not sent reply to their notice but on 18/08/2004 opp.party no.2 requested the complainant to clarify certain points in order to enable them to process their claim. Complainant pleaded in para 31 that failure on part of opp.party to pay the amount as per claim submitted to the opp.party amounted to gross deficiency in service. They alleged that opp.party have willfully failed and neglected and deprived the complainant of their legitimate claim in respect of vessel which had sank while on voyage. Complainant pleaded that there was delay on the part of opp.party in processing their claim and therefore, opp.party hae been grossly deficient in service under Section 2(1) (g) of Consumer Protection Act, 1986 and as such complainant prayed that this Forum be pleased to hold that opp.party had rendered deficiency in service and was grossly negligent on their part to pay their valuable claim. Complainant also prayed that opp.party should be directed to pay to the complainant a sum of `55,30,000/- with interest @12% p.a. from 14/09/2000 till 24/09/2000 amounting to `80,92,233/-. They also claimed `3 Lakhs as compensation for their deficient service. Complainant have filed affidavit and certain documents in support of the complaint.
A notice has been issued by this Commission and in response to the notice opposite party has filed written statement and pleaded that “MSV Annasagar” owned by the complainant was insured with the opp.party for commercial purpose. Hence, the complaint under Consumer Protection Act, 1986 is not maintainable and same should be dismissed with costs. They however admitted that vessel was insured on 02/11/2000 and said vessel was reportedly on voyage from Khorram Shahr Iran with cargo of Dates of 125MT to Dubai. During the voyage the vessel Tandel had anchored the vessel off Indravi Island and was holding the vessel till 03/10/2000. When other mechanized sailing vessels were plying without any hindrance by weather, this particular vessel stayed on anchorage without any valid reason. It is reported that on 04/11/2000 the weather was fair and the engine was working normally and suddenly the weather became rough with high winds and huge waves and weather deteriorated and water started entering the vessel. The Tandel ordered the Khalasis to Jettison the cargo. He could contact one vessel Kailash and requested the vessel for help, which then took the crew members on his vessel. However, the vessel Annasagr sank subsequently. The complainant lodged the claim on the opp.party subsequently and the same was investigated by J.Basheer & Associates Surveyors Pvt. Ltd. and they issued their report.
According to opp.party, complainant failed to mention date of issuing the policy in the complaint. The policy was issued on 02/11/2000. the first installment of the premium was received on 02/11/2000. The vessel was already sailing in high seas off the coast of Iran prior to issuing the policy. The claim has arisen within two days from the date of issuing the policy. There is every possibility that the said vessel had already sunk on high seas prior to issuing the policy and the complainant was aware of the same mishap. It was also found that vessel was possibly carrying cargo from the Iraq which was banned for trading under United Nations Resolution. As such, said claim is not payable. The company pleaded that complainant had not came to this Forum with clean hands. Opp.party further pleaded that complainant had simply paid first installment of insurance premium and within two days claim had arisen because of sinking of the ship Annasagar. The company admitted that J.Basheer & Associates Surveyors Pvt. Ltd. were appointed for assessing loss/investigation and they had asked certain documents from the complainant. The company pleaded that there is no delay on the part of the underwriters/opp.parties. The complainants themselves failed to give satisfactory answers to important queries despite several letters to them by the underwriters/opp.parties and their surveyors/investigators. The company denied that it had not taken steps to process the claim of the complainant. Opp.party-insurance company pleaded that claim was highly complicated and technical in nature and hence clarification were called for continuously from the complainant and the complainant had not clarified on most important points and therefore, the claim remained pending as the complainants failed to comply. Insurance company pleaded that there was no deficiency in service or delay in dealing with claim of the complainant. Opp.party pleaded that it was the failure on the part of complainant to clarify the information asked for and hence the claim could not be considered. The company denied that the claim made by the complainant for `55,33,000/- is due and outstanding and payable to the complainant. According to opp.party, they are not liable to pay the said sum or any another sum or interest and pleaded that they are not guilty under Section 2 (1)(g) of Consumer Protection Act, 1986. The opp.party pleaded that complainant’s claim is not maintainable neither payable. Therefore, it prayed that complaint should be dismissed with costs.
On the basis of these pleadings, the only two points that arise for out consideration and our findings thereon are as under:-
Issues Findings
1. Whether the complaint is maintainable despite
the fact that vessel insured was for commercial
purpose? Yes.
2. Whether the opp.party proves that the complainant
has failed to furnish the requisite information and
therefore, the claim is not payable.? Yes
3. What order if any? Complaint stands dismissed.
We heard submissions of Smt.bindu Jain, Proxy Advocate for Adv.Smt.Nidhi Singh for complainant and Adv.Ms.Bhakti Barve for opposite party.
Findings
As far as point no.1 is concerned, we are finding that insurance cover was taken by the complainant for their vessel Annasagar. They were owners of the said vessel and policy was issued to cover the voyage made by the vessel Annasagar and in fact, during the voyage when vessel was between Dubai and Iran, opp.party had issued insurance cover by accepting the premium. Insurance company as underwriters give service to those who purchase policy. Any deficiency in service on the part of insurance company can be taken cognizance by this Commission or any Forum under Consumer Protection Act, 1986 if there is allegation in the complaint that opp.party is guilty of deficiency in service and such type of complaint cannot be thrown away simply on the ground that complainant had purchased policy for commercial purpose. In fact any vessel owned by anybody is always for commercial purpose because they have to transport the goods by sea from one port to another either within India or beyond Indian shores. So, such type of services rendered by insurance company clearly fall within purview of deficiency in service of Section 2 (1) (g) of Consumer Protection Act, 1986. Therefore, we are of the firm view that such services are covered under Consumer Protection Act, 1986 and objection taken to the entertainment of this complaint is appearing without any substance. We therefore record our finding on issue no.1 in the affirmative.
As reagrads point no.2 is concerned, we are finding that complainant had filed complaint on the ground that after lodging of their claim, insurance company had no doubt appointed surveyors J.Basheer & Associates Surveyors Pvt. Ltd. Either surveyors or insurance company were not settling their claim and this was the main grievance made out by the complainant in their complaint. In the written statement a clear cut stand has been taken by the opp.party that insurance company had written several letter and asked the complainant to submit certain essential documents for processing their claim. One such letter is addressed by insurance company to J.Basheer & Associates Surveyors Pvt. Ltd., copy of which is given to the complainant (Exhibit C-21). It is pertinent to note that insurance company wrote another letter (Exhibit C-25) which is annexed to the written statement dated 18/08/2001 and asked the complainant to clarify four points, namely,
“1. Please send us the signed weather reports of 4,5, & 6.11.2000.
2. Also, please clarify the anchorage of vessel at Indravi Island for 5 days as at the same time other vessels were plying in that area.
3. Kindly let us have the weather report for above 5 days i.e. 26/10/2000 to 03/11/2000.
4. Lastly, let us know why the banned cargo was loaded on the vessel.”
It appears that complainant was shying to give answers to these queries and this was the reason why opp.party had not processed their claim. It is also pertinent to note that company had not repudiated the claim only on the ground that complainant had not produced the vital documents on record. Further during the pendency of the complaint by letter dated 25/03/2005 the company sent a letter to the complainant and informed the complainant categorically that in the absence of requisite information forthcoming from the complainant, they conveyed to the complainant why they were unable to settle the claim and hence they repudiated the claim. They further informed the complainant to please make a note that they reserved their rights to raise any further points in relation to repudiation of this claim. So, ultimately during the pendency of the complaint, opp.party-insurance company sent repudiation letter and on perusal of the said letter, we are finding that, insurance company ultimately decided to repudiate the claim on finding that complainant was not giving answers to the queries raised either by their surveyors or by underwriters company i.e. insurance company/opp.party herein.
In totality of the circumstances, we are finding that complainant did not co-operate with the surveyor and opp.party-insurance company to enable it to process the claim. There were several letters sent by J.Basheer & Associates Surveyors Pvt. Ltd. to the complainant to provide one information or other, but complainant failed to provide the requisite information. What is pertinent to note is the fact that if as per United Nations resolution the trading with Iran by all the nations who are members of United Nations was banned, how it is that complainant had undertaken the contract with Iran to carry goods from Dubai to Iran port and vice-versa. The complainant had not valid reasons to throw light on this query. So, there was impasse between the parties and ultimately, when insurance company found that complainant had moved this Commission by filing complaint, they sent repudiation letter on 25/03/2005.
Thus, we are finding that repudiation of the claim in the circumstances, is appearing to be proper and complainants themselves invited repudiation of the claim by not co-operating with the surveyors or with the insurance company. In the circumstances, we hold that there was no deficiency in service on the part of opp.party. What is pertinent to note is the fact that company placed on record repudiation letter dated 25/03/2005 and complainant had not filed any amendment application seeking to amend the complaint and seeking to challenge the repudiation letter sent by the insurance company during the pendency of the complaint.
Thus, for all these reasons, we hold that opp.prty had taken reasonable care and precaution to process the claim and had ultimately sent repudiation letter which it had placed on record. In the circumstances, we hold that opp.party is not guilty of deficiency in service and we are finding no substance in the complaint. Hence, we pass the following order:-
:-ORDER-:
1. Complaint stands dismissed.
2. In the given circumstances parties are left to bear their own costs.
3. Copies of the order herein be furnished to the parties free of costs.
