Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member

This consumer complaint relates to alleged deficiency of service on the part of opposite party-Insurance company in repudiating the claim for loss of motorized fishing vessel which alleged to have sunk near the Satpati port on the night of 25/7/2000.  Complainants claimed compensation restricted to the value of insurance of `9,50,000/-, further claimed `50,000/- as compensation towards mental torture, etc. and `50,000/- as cost.

It is the case of the complainants that motorized fishing vessel bearing registration no.VMR 2743 and named as ‘DARIYA DAULAT’ (Herein after referred as “MFV”) with the O.P./Insurance company for three months for the period 22/8/2000 w.e.f. 2.00 p.m. to 21/11/2000. The estimated value of MFV was `15,39,776/- and it insured for `9,50,000/- (`8,50,000/- for hull and machinery and in addition to it `1 lakh for fishing net and rope). On said MFV Mr.Vista Bhana Bariya of Dahanu was appointed as a Tandel (i.e.Captain of the vessel).  On 22/8/2000 Tandel of the vessel obtained from the custom inspector, Maroli a PC to proceed from Maroli Port to Bhaucha Dhakka.  As on 23/8/2000 was ‘Gokulashtami’ the Khalashi sailed of in the said vessel on 24/8/2000.  At the boundary of the Maroli Port due to some snags in the engine, the engine stopped working and the crew anchored the vessel.  Next day morning on 25/8/2000, after repairing the said vehicle it proceeded further in the evening towards Mumbai.  However, within few hours due to forceful wind accompanied with torrential rain and gigantic waves started rocking the vessel and in such condition the said vessel started drifting towards Satpati.  It ultimately, collided against the rocks and the planks of the vessel started breaking, water entered into it and the engine stopped. Crew abandoned the vessel and reached the shore.  The vessel sunk there.  The crew during the night waited at the shore and on the next day morning informed owner of the vessel, namely, complainant no.1 –Mr.Dilip Ashok Bari.  Thereafter, matter was reported to the authorities.  Insurance claim was made on 26/8/2000. Insurance company appointed surveyor.  It is further alleged that the Insurance company’s surveyor forced the complainant to sign the letter dated 05/7/2000 purporting withdrawal of the claim and, thereafter, claim file was closed.  Feeling aggrieved thereby this consumer complaint is filed.

O.P./Insurance company (herein after referred as “Insurance company”) resisted the consumer complaint by filing written version dated 09/11/2001.  It is categorically submitted that it is false and fabricated claim.  Vessel as per investigator’s report dated 11/9/2000, was actually sunk on 20/8/2000. Suppressing this fact, the insurance policy was taken and making it effective from 22/8/2000 at 2.00 p.m.  When these facts were brought to the notice of the complainants, they voluntarily withdrew the claim and the surveyor accordingly submitted his report.  Report of the surveyor was based upon information which was collected from the official records of wireless office of Indian Customs at Satpati and the copy of which is incorporated in the surveyor’s report, supra.  Therefore, it is further submitted on behalf of the Insurance company that their alleged repudiation of the claim (closure of claim file) being justified, no consumer complaint would lie and there is no deficiency of service on its part.

          We heard both the parties and perused the record.

In the instant case, on behalf of complainants, affidavits of Shashikant Gangaram Bari who claimed to be power of attorney holder of complainant no.1 Mr.Dilip Ashok Bari is filed.  (One affidavit is by way of rejoinder dated 28/6/2002 and claim affidavit is dated 26/4/2002). Complainants themselves did not file any affidavit on their own.  Affidavit of power of attorney holder is not of much help to the complainant particularly when the material facts relating to the complaint viz. relating to the withdrawal of insurance claim per letter dated 05/09/2000 cannot be of any personal knowledge of said power of attorney holder.  About the accident and the controversy as to when actually vessel sunk also cannot be of any personal knowledge of the said power of attorney holder.  There is absolutely no evidence adduced on behalf of the complainants to counter the evidence adduced on behalf of Insurance company, namely, that of surveyor and investigator Mr.A.M.Gawarikar and its manager Mr.A.C.Agarwal.

Complainants also failed to substantiate their case.  The documents on which the complainant placed reliance, namely, report dated 26/8/2000 of Custom Inspector by the Tandel of the vessel, panchanama dated 26/8/2000, the certificate dated 29/8/2000 issued by Gram Panchayat Karyalaya Satpati are not tendered in evidence per section 13(4) of the Consumer Protection Act, 1986.

Affidavit of surveyor Mr.A.M.Gawarikar affirm the facts as stated in the surveyor’s report dated 11/9/2000.  Said report cannot be termed as arbitrary since it based upon the actual interrogation of the concerned people and collecting official record such as reports about sinking of MFV on 20/8/2000, supra.  When these facts were specifically brought on record, the onus shifts on the complainants to establish that the vessel was actually sunk on the night of 25/8/2000 around 9.00 p.m. near Satpati. Complainants miserably failed to discharge said onus on them.  Further, after the complainants admit withdrawal of the claim vide letter dated 05/9/2000, they allege that such withdrawal was obtained under coercion or threat of reporting the matter to the police about  fabrication of false case, but, they failed to substantiate the same.  Under the circumstances, report of the surveyor which is duly established in this case and on the basis of which the insurance claim was treated as closed vis-à-vis repudiated, cannot be faulted with.  Therefore, no service deficiency on the part of Insurance company could be alleged, nay, established against the Insurance company by the complainants and thus, the complainants are not entitled for any compensation for alleged deficiency of service from the Insurance company.  We hold accordingly and pass following order:-

                                      ORDER

Consumer complaint no.250/2001 stands dismissed.

In the given circumstances, the parties are left to bear their own costs.

Copies of the order be furnished to the parties.