BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.5/2013
(Admitted on 04.01.2013)
Mr. Nazeer Ahmed,
S/o U. Iddinabba,
Aged about 55 years,
Residing at Arkula House,
Farangipete Post, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri MNA)
VERSUS
The Oriental Insurance Co. Ltd,
Divisional Office,
Beauty Plaza, Balmatta Road,
Mangalore 575 001,
Represented by its 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 insured his mechanised Fishing Boat Ocean Fisheries with opposite party from 15.7.2011 to 14.7.2012. On 7.9.2011 at 2 PM the boat with 7 crew members ventured to the high seas for seven days fishing and they were returning to Mangalore South Wharf on 14.9.2011 for unloading the fish. Due to sudden change in the sea and weather, high rising waves the ship sank and of the crew only one survived and body of another was located. On 19.11.2011 the matter was reported to the authority including opposite party the opposite party did not consider the complainant’s claim in spite furnishing of all the documents did not attend and tainted with the malafide hence seeks the relief claimed.
II. Opposite party in the written version denied all the material allegations but admitting the policy coverage issued to complainant s boat. He mentions that under clause 3 of Marine Hull Policy the warranted vessel shall not be employed during adverse weather conditions notified by the concerned port authorities/Director of Fisheries and under clause 4 as warranted during adverse weather, vessel shall remain in safe waters properly moored and if already at sea shall return in safe return forthwith as soon as they become aware of the adverse weather condition. On 4.9.2011 weather warning was issued by No.3 Coast Guard District, Karnataka for that next 3.4 days the sea to be rough/very rough including heavy rain/gusty wind/high swell had requesting the fishermen may be advised/altered to venture in to the sea for fishing. This detailed weather information was notified by the Assistant Director of the Fisheries, Department of Fisheries, Government of Karnataka to the fishermen and concerned authority on 05.09.2011 the weather report allegedly obtained by the complainant from India Meteorological Department, Chennai, is contrary to the weather Report/Warning issued by No.3 Coast Guard District, Karnataka. On 4.9.2011 the weather condition prevailed on the date of alleged incident, the parties are bound by the local weather warning. The delay is caused because of non co operation of complainant himself for the survey. Hence seeks dismissal of the complaint.
2. In support of the above complainant Mr. Nazeer Ahmed filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C3 and as detailed in the annexure here below. On behalf of the opposite parties Mr. Gopikrishna Rao. M (RW1) Divisional Office of OP at Mangalore 1, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R6 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 counsel for complainant filed oral arguments. Opposite party 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 insurance policy issued to the vessel covering the risk and as the entire loss of the vessel is not at all in dispute. The coverage issued to complainant’s vessel covering the risk during the period of incident is admitted by opposite party but opposite party dispute the liability on the count of adverse weather condition issued by the competent authority and not followed by the complainant and thereby under the exclusion clause there is no liability on the part of the opposite party. Hence not only the relationship of consumer and service provider between the parties but there is refusal of opposite party to indemnify the complainant under the loss of ship amounts to deficiency in service as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No. (ii): The only question is whether the adverse weather condition was notified to the fishermen by the competent authorities. So as per Ex.R1 is the copy of insurance policy opposite party can repudiate the claim. There is condition in the policy and there is adverse warning the policy holder is not accept to mention to see for damages caused under the circumstance opposite party is not liable to indemnify the complainant the policy holder.
2. Ex.R2 a fax massage issued by Indian Coast Guard its headquarters No. 3 it is dated 04th SEP 11 in the 4th column with File number as 736 and in the first column mentions as from the commander No.3 Coast Guard District Karnataka. At the top there is date mentioned as 5.9.11 at 11.21 and fax number is mentioned as 886716703091 824 240 Jul. 06, 2010 09:03am P1. There is mention that copies forwarded to DDF Karwar.
3. Ex.R3 is notification issued by Assistant Director of Fisheries, Department of Fisheries dated 5.9.2011 mentioning adverse weather condition as reported from the weather department of adverse condition to 3-4 days and for giving instructions to the fisher men to inform the fishermen and to take advance steps. Ex.R3 is similar Notification by the Assistant Director of Fisheries, Department of Fisheries dated 5.9.2011 about the said adverse weather condition.
4. Thus it is clear the documents only mentioned that the adverse condition was given to give direction to fishermen not to venture into the sea. However there is nothing on records produced before this Forum to show whether such information was conveyed to the fishermen. It was pointed out by learned for complainant in case of adverse weather condition there shall be specific stages of the nature of the whether condition and that flag of particular number giving a specific warning to the fisher men has to be hoisted at the port. This aspect was not contradicted on behalf of opposite party. There is no evidence produced by opposite party in the first place about hoisting of flag intimating the warning to the fishermen. There is also no evidence tendered by opposite party to show this weather warning was duly broadcast/telecast through radio/TV to the public. Hence the existence of whether condition as claimed by opposite party was not conveyed to complainants; but in this case it is to be noted adverse weather condition mentioned at Ex.R1 is for the period of 3.4 days from 4.9.2011 but incidence occurred on 14.9.2011. Even otherwise as referred from Ex.R1 whether it is genuine document or not is open for serious suspicion as there are 3 different dates at Ex.R2 as already mentioned. As such they are not include excess the version of opposite party as to that there was suffice warning to complainant not to venture into the sea and to return from the sea and there by applicably of the exclusion clause to the complainant s claim.
5. As seen from Ex.R4 the survey’s report there is copy of the diesel pass book that will be the copy of the diesel produced it shows the entry of load of diesel in the month of August on 22nd and 29th of 2011 when the vessel was not expected to venture into the sea thereby showing this vessel of complainant was in the habit of disobeying the warnings/conditions of period of fishing. However whether wading the vessel with diesel or not in August in our consider view has nothing to do in the facts and circumstance on the case on hand. Hence we are of the view the failure of opposite party to consider the claim of the complainant favourably is nothing but deficiency in service on their part.
6. Admittedly the policy coverage for the vessel under the policy issued by opposite party is of Rs.9,50,000/ opposite parties shall be directed to pay to the complainant with the future interest at 9% from the date of complaint till the date of payment. As to claim for damage in our view opposite party shall be directed to pay Rs.50,000/ and towards legal notice charges a sum of Rs.2,000/ and advocate fee fixed at Rs.5,000/ shall be ordered. Hence we answer in the affirmative.
POINTS No. (iii): Wherefore the following
ORDER
The Complaint is allowed with cost. Opposite party is directed to pay Rs.9,50,000/ (Rupees Nine lakh Fifty thousand only) to complainant with interest at the rate of 9% from the date of complaint till the date of payment.
2. Opposite party is also directed to pay Rs.50,000/ (Rupees Fifty thousand only) as damages to complainant and to pay Rs.2,000/- (Rupees Two thousand only) towards legal notice to complainant.
3. Advocate fee fixed at Rs.5,000/- (Rupees Five thousand only).
4. Payment shall be made within 30 days from the copy 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 21st 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. Nazeer Ahmed
Documents marked 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
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Gopikrishna Rao. M, Divisional Office of OP at Mangalore-1,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Insurance policy copy pertaining to marine hull bearing Registration No.91.KA.01.KF.0845
Ex.R2: Weather warning message issued by Coast Guard
Ex.R3: Weather warning letter issued by Fisheries Department
Ex.R4: Survey Report of M/s J. Basheer & Associates Surveyors Pvt Ltd.
Ex.R5: Copy of Complainant’s letter dated 22.09.2011 and 15.09.2011
Ex.R6: Copy of Deputy Director of Fisheries, Mangalore letter Dated 18.01.2011
Dated: 21.02.2017 PRESIDENT
