BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^ST MAY, 2016

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

COMPLAINT NO.337/2012

(Admitted on 24.11.2012)

Mr. P.V.Ravindran ,

S/o Kunhi Raman,

Aged about 54 years,

Residing at Koragappa Compound,

Old Kent Road,

Mangalore.                                                   …….. COMPLAINANT

(Advocate for the Complainant: S.K.Ullal)

          VERSUS

The Oriental Insurance Co.Ltd.,

Divisional Office,

Beauty Plaza, Balmatta Road,

Mangalore – 575001,

Rep. by its Divisional Manager.           ……. OPPOSITE PARTY

(Advocate for Opposite Party : Sri Anil Kumar K.)

                                                                                                       ***************

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant is a registered owner of Mechanized Fishing Vessel “INDIAN FISHERIES”  bearing No.F-MNG 1005.   The above said fishing vessel was insured with the Opposite Party under the policy No.42220/22/2010/411 and endorsement No.42220/22/2010/411/001 and 42220/22/2010/411/002 covering all the risks including TL, CTL, OTL, SC, SRCC, PA to Crew etc.   The above said vessel was insured for a sum of Rs.10,00,000/-

It is stated that on 22.08.2010 at about 2.00 am the said boat was proceeding for fishing, off Mangalore Coast in about 20 fathoms depth of water bottom part of the vessel came in contact with a hard object.  Immediately sea water started gushing into the vessel from the bottom part.  The crews including the tindel tried their level best to pump out the water through engine driven bilge pump and manual operated bilge pump.  As the quantity of the incoming water was much more than water could be pumped out from the vessel.  As a result level of the water in the vessel increased dangerously, the crews of the boat found imminent danger to their life.  To save their life they sought help of other vessel through wireless.  The other fishing boat i.e. Sea Rock and Al-Sameer came to their rescue.  They secured the said vessel and tried to tow it towards Mangalore Wharf.   At about 3.00 a.m., the engine of the accident vessel got submerged in the water and ceased to function.  However, the rescuing vessels proceeded with towing.  When the accident vessel proceeding in about 15 fathoms of deep water, it sunk up its deck level.     The damaged boat totally sunk in the sea again on 23.08.2010 and 24.08.2010, with the help of the salvager, efforts being made to salvage the vessel but in vain.  It is stated that sunken boat suffered total loss and the Complainant has spent Rs.2,08,000/- for salvage operation, sue and labour. The Complainant reported the accident to the Opposite Party and also the concerned authorities and submitted all the necessary documents to process the claim.  But the Opposite Party has no reasonable cause delaying the settlement.  Because of the delay the Complainant suffered huge loss and thereafter issued a legal notice and called upon to comply with the demand made therein but the Opposite Party Company failed to comply the same.  Hence, the above complaint filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.14,08,000/- alongwith interest from 22.08.2010 till realization and compensation  plus cost of the litigation expenses, etc.

II.      1. Version notice served to the Opposite Party by R.P.A.D.   

The Opposite Party appeared through their counsel filed version admitted the policy but it is contended that the policy endorsement not covered all the risks including TL, CTL, OTL, SC, SRCC, PA to Crew, etc.  It is also denied the value of the said vessel was Rs.10,00,000/- as on 22.08.2010.   It is also denied the occurrence of the accident in the manner which explained in the complaint by the Complainant.  The Opposite Party states that the Complainant has not submitted any documentary proof such as video clipping, photographs as to salvages operation allegedly carried out. Therefore, the claim of the Complainant is under investigation and denied the deficiency and prayed for dismissal of the complaint.

III.     1.  In support of the complaint, P.V.Ravindran (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and got marked Ex C-1 to C-4. One Mayyadi S/o Ibrahim, Kotepura, Ullal, Mangalore (RW-2) filed affidavit and answered the interrogatories served on him.   On behalf of Opposite Party one Sri Gopikrishna Rao M., Administrative Officer, Oriental Insurance Co. Ltd., Divisional Office, Mangalore (RW-1) filed counter affidavit and answered the interrogatories served on him and got marked as Ex.R-1 to Ex.R-7.    

          In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

            We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                          Point No.(i): Affirmative.

                         Point No.(ii) & (iii): As per the final order. 

REASONS

IV.     1.  POINTS NO. (i) TO (iii):

The facts which are admitted is that the Complainant is the absolute and registered owner of the mechanized fishing vessel by name Indian Fishers bearing regd. No. FNMG, 1005 was insured with the Opposite Party as per the terms of the policy bearing Policy No.42220/22/2010/411, valid from 05.11.2009 to 04.11.2010 for a sum of Rs.10,00,000/-.

Now the points are in dispute between the parties before this Fora is that, on 22.08.2010 the above said boat was met with an accident while proceeding for fishing and suffered total loss, thereafter submitted the claim before the Opposite Party Company.  

The Opposite Party Company not settled the claim.  The Opposite Party Insurance Company on the contrary contended that the claim of the Complainant is under investigation to ascertain the genuineness of the claim and the claim is still pending. 

On perusal of the oral as well as documentary evidence available on record, we find that the above said boat is duly insured with the Opposite Party as per policy No. 42220/22/2010/411. On the date of accident the fishing vessel was covered under the insurance. Now the points for consideration is whether there is a deficiency in service on the part of the Opposite Party Company for delaying the settlement of claim till this date.  However the Insurance Company in their version denied the accident in the manner explained in the complaint by the Complainant but there is no any material evidence produced before this Fora to substantiate their denial.  On the contrary the Opposite Party produced the survey report i.e. Ex.R-1, the said surveyor conducted the spot survey and investigation by serving interrogatories to all crews, tindel of the rescued boat and also the salvagers and thereafter concluded that due to the accident the boat was suffered total loss and further in page No.5 to 6 under the headline SEAWORTHINESS, WEATHER WARNING, TRADING, REGISTRATION, the surveyor concluded that the vessel was in the seaworthy condition  and there was no weather warning, the vessel is within the stipulated trading zone and the registration of the vessel is as per prevailing law/rules.  Further in survey report in page No.6 under the headline: DUTY OF INSURED, the surveyor opined that there is breach of warranties.   Again in page No.6 under the underline CAUSE OF DAMAGE, the surveyor concluded that the misact to the boat is accidental and due to insured peril which resulted in total loss.    Apart from the above the assessment of loss of vessel the surveyor concluded that the vessel met with mishap and sunk in the sea.  The efforts of insured to recover the vessel from the sea met without success and the insured vessel lost in the sea alongwith its all accessories and equipments and therefore he had assessed as total loss of the vessel.  When that being so, the Complainant suffered total loss and he is entitled to the sum insured i.e Rs.10,00,000/-. 

The next point that arise for our consideration is that, the Complainant claimed Rs.2,08,000/- towards the salvages expenses.  To prove the same the Complainant submitted the bills before the surveyor which are produced by the Opposite Party and marked as Ex.R-2 to Ex.R-6 for a sum of Rs.2,08,000/-.  The Complainant also examined one Mr.Mayyadi CW-2 who made attempt the salvage work of the Complainant vessel and admitted the issuance of bill i.e. Ex.C-4/ R-4 and receipt of the bill amount.  The Opposite Party not produced any contra evidence to disprove the salvage expenses.  Therefore, in our view the Complainant is entitled for salvages expenses also.   

Further the Opposite Party insurance company contended that the Complainant has not submitted any video clippings / photographs toward salvages operation.  But there is no condition in the policy that the video clipping and photographs of the salvage work are mandatory to settle the claim.    It is surprised to note that how the Insurance Company expect the Complainant to produce the video clippings and photographs when the vessel is sinking in the sea.  It is impossible to arrange for the video clipping and photographs in that situation.  The defence taken by the Insurance Company is nothing but illusion.    However the Opposite Party Company inspite of receiving survey report not settled the claim till this date shows their gross negligence, for that the Opposite Party is Company is liable to pay adequate damages to the insured.  Since the Opposite Party failed to follow the procedure and to settle the claim within the prescribed period the Opposite Party Company is liable to pay interest, above the bank rate.

It is settled positon that the time limited for the insurance Company either to settle or repudiate the claim within 3 months in the instant case, admittedly the accident took place on 22.08.2010 the surveyor visited the spot on 25.08.2010 and submitted his report after one year i.e. 28.09.2011 and confirmed the total loss but the Opposite Party till this date, even after the lapse of 4 ½ year neither repudiated the claim nor settled the claim. There is no justifiable reason to substantiate their version.  Therefore, we hold that the Opposite Party Company has committed deficiency in service as well as Unfair Trade Practice. 

In view of the above reason,  we hereby directed the Opposite Party to pay Rs10,00,000/- alongwith 12% per annum from the date of accident till the date of payment and also to pay to the Complainant Rs.3,000/- as cost of the litigation expenses  and payment shall be made within 30 days from the date of receipt of this order.

In the present cases, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.

          In the result, we pass the following:  

ORDER

The complaint is allowed. The Opposite Party i.e. The Oriental Insurance Co. Ltd., shall pay to the Complainant a sum of Rs.10,00,000/- alongwith interest @12% per annum from the date of accident till the date of payment and further pay a sum of Rs.3,000/- as cost of the litigation expenses.  Payment/compliance shall be made within 30 days from the receipt of this order.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 6 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of May, 2016).

    PRESIDENT                           MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum            D.K. District Consumer Forum

                        Mangalore.                                         Mangalore.

                               ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – P.V.Ravindran  – Complainant.

CW2 – Mayyadi S/o Ibrahim, Kotepura, Ullal, Mangalore –

Documents produced on behalf of the Complainant:

Ex C1 – Copy of the Registration Certificate.

Ex C2 – Copy of the Insurance Policy.

Ex C3 – Office copy of the legal notice with postal receipt.

Ex C4 – Postal Acknowledgement

Witnesses examined on behalf of the Opposite Parties:

RW-1: Gopikrishna Rao M. S/o Late Muralidhar Rao M.

Documents produced on behalf of the Opposite Parties:     

Ex R1 – Survey Report with all its annexure including statements of crew,

            weather report etc.

Ex R2 – Receipt dated 22.08.2010 by Noorsha

Ex R3 – Receipt dated 22.08.2010 by Mr.K.Ismail.

Ex R4 – Receipt dated 30.05.2011 by Mayyadi

Ex R5 – Receipt dated 30.05.2011 by Janardana

Ex R6 – Receipt dated 30.05.2011 by Hussain

Ex R7 – Insurance Policy with terms and conditions

            (Original is with the Complainant)

Dated:31-05-2016                                       PRESIDENT