BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 16th February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.283/2013
(Admitted on 08.11.2013)
Mr. Mohammed Sharief,
S/o T.A. Bava,
Aged about 50 years,
Residing at Barkath Manzil,
Mahakalipadpu, Jeppu, Mangalore.
….. COMPLAINANT
(Advocate for the Complainants: Smt. MNA)
VERSUS
The Oriental Insurance Co. Ltd.,
Divisional Office,
Beauty Plaza, 2nd Floor,
Balmatta Road, P.B. No.48,
Mangalore 575 001.
Represented by its Senior,
Divisional Manager.
…........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri AKK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims his boat with Registration No.IND.KA.01.MM.201 was insured with opposite party as per the terms of the policy for the period 03.11.2011 to 02.11.2012 for a sum of Rs.15,00,000 covering sea hazards including the risk of Total Loss, CTL, OTL, SC, SRCC and PA to crews. On 17.8.2012 the boat with 8 crew members ventured into high seas for ten days fishing starting from Mangalore South Warf. While fishing in about 28 fathoms of deep in water the crew found water is gushing into engine room. Immediately they made all attempts to prevent water coming into the boat and also tried to pump out the water using bilge pump unable to prevent it they have to abound the boat and were rescued by other two boats the boat could not be save resulting in total loss to complainant. This was reported to the concerned authorities. The opposite party despite laying claim have not settled complainant’s claim. Hence seeks the relief as mentioned in the complaint.
II Opposite party in his written version admits insurance cover issued to the complainant’s boat. Receipt of the claim in respect of the boat in question is admitted. Immediately thereafter the opposite party arranged surveyor through a competent surveyor who after investigation called for certain document from complainant which was not complied by the complainant. The documents submitted by the insurance show the replacement of the engine in 2011 in new one was fixed and thereby material change in the risk to be covered by the submitting fresh proposal form by furnishing the changes effected intimating by the opposite party the vessel of 18.15 meters length was fitted with an engine of 122 BHP. The original construction was subsequently refitted with engine with 236 BHP capacity without making any changes in the Hull dimensions to meet the increased engines power which was not authorised by the registration authority. No documents or photographs produced to meet the salvage produced by complainant. The liability is denied due to non cooperation on the part of the complainant himself. Documents submitted by complainant is not considered at the time of availing of the policy. Hence seeks dismissal.
2. In support of the above complainant Mr. Mohammed Sharief filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite parties Mr. Raghu Naik (RW1) Assistant Manager, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R4 and marked Ex.A1 at the time of judgment as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i) : Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The policy covering risk issued to the boat of complainant in question is not in dispute. Hence complainant as consumer and opposite party as service provider is established. The claim of complainant in respect of total loss of the vessel namely the boat is not disputed by opposite party but the dispute is raised by opposite party on the count that the engine of the boat changed from 122 BHP to 236 BHP power was not intimated to opposite party with new proposal form and that is the reason for the delay in considering the claim. This is the case where the opposite party has neither accepted nor rejected the claim of the complainant. Even in the written version opposite party only says the liability if any of opposite party is subject to the extent of sum insured under the policy subject to policy excision and deduction. Hence there is a dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.
POINTS No.(ii): The vessel of the complainant namely the boat before issue/renewal of the policy every year is being inspected by a competent authorised surveyor appointed by opposite party and based on his valuation of the vessel fresh policy is issued and the policy issued were renewed is not at all disputed by the parties. In fact the learned counsel for opposite party admits the engine of the boat was changed in 2011 before the issue of the policy for covering the risk during the period of accident from 122 BHP to 236 BHP capacity. The grievance of opposite party is such change in condition of the boat which is a material alternation is not intimated to opposite party and there was no fresh proposal form submitted by complainant. However even the learned counsel for opposite party did not dispute that before the issue of the policy in question covering the risk a surveyor appointed by opposite party held inspection of the complainant’s boat after it was fitted with new engine of 236 BHP and given report to opposite party it is only after giving that report the complainant issued policy in question coving the risk of complainant.
2. Ex.R1 is the proposal form given by complainant showing the engine capacity at 122 BHP and the valuation for insurance at Rs.15 lakhs. This proposal is dated 2nd November 2007. Ex.R2 valuation report of the boat of complainant by one Mr. K Prabhakhar, Engineer, Valuer & Insurance Surveyor as per which is dated 14th November 2007 and it is admitted on the basis of such report new policy issued. Ex.R3 similar surveyor report dated 1.11.2010. Ex.R4 surveyor report dated 17th November 2011. At Ex.R3 the engine capacity is shown as BHP/RPM 122/2000 at Ex.R4 of 17th November 2011 the engine capacity is shown as BHP/236 and RPM 1800.
3. The opposite party produced the entire case file pertaining to the claim made by the complainant with opposite party which is not specifically marked. Hence it is now marked at Ex.A1. As seen from Ex.A1 the spiral bind file contains the copy of the intimation given by the complainant to registration authority namely Asst. Director of Fisheries, Fisheries Department, Port, Mangalore, it is dated 28.7.2011. It also contains an endorsement for receiving the original on 28th July 2011. As seen from this letter complainant sought permission to replace the engine of the boat from 130 BHP to 240 BHP. The copy of the letter dated 28.10.2011 in the file also contain another letter of 28.10.2011 addressed by the complainant to Sr. Divisional Manager of opposite party under which opposite party was intimated in writing of fitting of new engine with its full description include its BHP as 236 and RPM 1800.
4. The only point canvased for opposite party is in the RC of the boat there was no change made in respect of the change of engine. It is true the change was not made in the RC of the boat by the concerned authorities. But the policy in question covering the risk of complainant was issued after information received from complainant and also the surveyor of the change in the engine. As the copy of the policy at Ex.A1 mentions the risk covered mention as 3.11.11 to 2.11.12 much after the intimation given to opposite party by complainant of change in the engine of the vessel. Hence opposite party cannot complain that it was not intimated in the change of the engine either to opposite party or to the registered authority Asst. Director of Fisheries, Department of Fisheries, Port, Mangalore. Opposite party having issued the policy covering risk including of total loss knowing fully well the facts in our view cannot be permitted escape liability to pay the damages to the complainant. Hence we are of the opinion that there is deficiency in service on the part of the opposite party. Hence opposite party shall be directed to pay the final loss to insured value of the vessel the boat of complainant i.e. 15 lakhs.
5. Even though the complainant immediately after the accident informed opposite party about the total loss of the vessel did not consider either positively or negatively even after surveyor’s report of the entire claim bills did not make payment. Considering the delay we are of the opinion that apart from directing opposite party to pay interest on the amount mentioned above at 10% per annum from the date of legal notice i.e. 21.8.2013 shall be directed to pay a sum of Rs.75,000/ towards mental agony stress and hardship inclusive of cost of the complaint is just and proper.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is allowed. Opposite party is directed to pay Rs.15,00,000/ (Rupees Fifteen Lakh only) to complainant with interest at the rate of 10% per annum from the date of legal notice i.e. 21.8.2013 till the date of payment.
2. Opposite party shall also pay Rs.75,000/ (Rupees Seventy Five thousand only) as damages caused to complainant and inclusive of cost of the complaint.
3. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 16th February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Mohammed Sharief
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the Registration Certificate
Ex.C2: Copy of the Policy
Ex.C3: 21.08.2013: Office copy of the legal notice
Ex.C4: Postal acknowledgement
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Mr. Raghu Naik, Assistant Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: Proposal Form submitted by complainant
Ex.R2: Valuation report dated 14.11.2009
Ex.R3: Surveyor report dated 01.11.2010
Ex.R4: Valuation report dated 17.11.2011
Ex.A1: Book of M.F.B. T.A. Marine II (Book contains 83 Sheets)
Dated: 16.02.2017 PRESIDENT
