State Consumer Disputes Redressal Commission
Osman Ali Shiru vs New India Assurance Co. Ltd on 23 January, 2023
Details DD MM YY
Date of disposal 23 01 2023
Date of filing 03 09 2013
Duration 20 04 09
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
Consumer Complaint No.83 of 2013
Shakil Osman Ali Shiru,
Legal heir of Osaman Ali Shiru brought
On record as per the order dated 20.10.2015
Below amendment application of the
Original complainant.
Res: Mota Salaya, Tal: Mandvi,
Dist: Kachchh ...Complainant.
V.s
New India Assurance Co. Ltd.
Veraval Branch Office
3rd Floor, Suvidha, Subhash Road
Veraval 362 265 ...Opponent.
=============================================================
BEFORE: Mr. I. D. Patel, Judicial Member
APPERANCE: Mr. A. D. Solanki L.A. for the complainant,
Mr. V. P. Nanavaty L.A. for the opponent.
==============================================================
ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The present Consumer Complaint has been filed under Section 17 (A) (i) of the Consumer Protection Act 1986 (for short "the act") by Osman Ali Shiru the power of attorney holder a legal heir of Emnabai Hajiali Shiru, (the complainant/insured) against the opponent Insurance Company seeking relief as prayed for in para G of the complaint which are as under:-
1. The complainant prays before the Hon'ble Commission that it may order the opponent to pay Rs. 40,00,000/- which is the claim amount along with interest of 12% since 11.08.2006 to till realisation.
2. To pay the cost of Rs. 50,000/- in filing this complaint.
3. To pay the compensation of Rs. 50,000/- towards mental agony and stress.
4. Any other equitable relief suitable to the Hon'ble Commission.
That during the pendency of the complaint original complainant that is the power of attorney holder and legal heir of Emnabai Hajiali Shiru, viz. Osman Ali Shiru, died as on 15.04.2015. Hence, his legal heir and power of attorney holder of insured deceased Emnabai Hajiali Shiru namely Shakil Osman Ali Shiru, is brought on record as a legal heir of the original complainant vide order dated 20.10.2015.
2. The conspicuous part of the material facts given birth to the present complaint may shortly be directed at the outset so, as to appreciate the merit of the complaint and challenge against it. That as per the case of complainant Emnabai Hajiali Shiru, obtained Marine Hull Insurance Policy from the opponent Insurance Company for the period from 27.10.2005 to 26.10.2006 for a Ship name "Kesari". It is further, the case of the complainant that due to bad weather condition the said Ship namely "Kesari" was grounded and broken into two pieces on or around 17.02.2006 in the sea shore at RAS SALGAR. Thus, there was a total loss of insured subject. Hence, Emnabai Hajiali Shiru lodged the claim of the total loss of insured subject with the opponent Insurance Company by providing all necessary documentary evidence which were in his possession. However, the opponent Insurance Company had time and again requested for providing same set of all documents which were not possible for the complainant to procure. It is further, the case of the complainant that the complaint has time and again represented before the opponent that all the document requirement have been fulfilled vide letter dated 01.01.2013 as stated in the complaint in detail as Clause A to Clause K. It is further, the case of the complainant that though the complainant has provided all the required document which were in his possession to the Insurance Company for processing his claim. The Insurance Company vide their letter dated 04.03.2013 close the file or the claim of the complainant arbitrarily and mechanically and without any application of mind and with Mala Fide intention and therefore, the complainant has filed the present complaint claiming Rs. 40,00,000/- with interest at the rate of 12% from the opponent Insurance Company and other relief as prayed for in relief para of the complaint.
3. That the notice of the complaint has duly served upon the opponent New India Insurance Co. Ltd. and Mr. V. P. Nanavaty, has appeared on behalf of the Insurance Company and filed the written statement denying each and every allegations and averment made by the complainant in the complaint. It is further, contended by the Insurance Company in the written statement the complainant is duty bound to provide the subject document as per the terms and conditions of the Hull Machinery Insurance/sailing vessel Policy. It is also submitted by the Insurance Company that in spite of continuous reminders to provide the subject document the complainant fail to provide a true translation of the document which were in Arabic, duly certificate by the competent authority. It is also further, submitted by the Insurance Company that the complainant also requested to provide the weather report because there was a doubt in the mind of the surveyor in view of the fact that crew of the vessel made statement that they were a small non motorized light boat for 47 hours before they were rescued. So, as per the contention of the Insurance Company the weather condition at the relevant time was quit and in spite of said fact crew had informed that insured vessel sunk which is quit not possible as the vessel was a large wooden vessel the weather was not bad to sink and unpowered wooden light boat with 9% thus, the facts regarding sinking of vessel was un clear in survey and according to surveyor had intimated that the claim had not been proved on the balance of probabilities that "Kesari" into a word lost as a result of and insured wherein and accordingly surveyor had not recommended to settle the loss on total loss basis and considering the facts stated in the survey report and on account of non submission of the require document by the insured/complainant document translated in to English and certified by the appropriate authority opponent have only alternative to close the file as into no claim and accordingly as per the contention of the Insurance Company there is no deficiency in service on the part of the Insurance Company and therefore, the complaint filed by the complainant against the Insurance Company is not maintainable in eye of law and hence the Insurance Company prays for the dismissal of the complaint of the complainant with heavy costs.
4. That the complainant in support of his complaint produced the following documentary evidence.
Mark Document Copy/Original
A Insurance Policy 211304/22/05/00053 Original/Copy
along with letter from the opponent
B Inspection/valuation Report Copy
C Power of Attorney Original
D Certificate of Registry of Sailing Vessel Copy
E Certificate of Inspection of Sailing Vessel Copy
F Port Clearance Copy
G Exit Permit Copy
H 4 Photographs evidencing the loss of the Original
vessel
I Map evidencing the place of loss of the Copy
vessel
J Newspaper Articles on the incident Copy
K Airline Tickets of Crew Members Original
L Statement of the captain of the vessel- Copy
Jusabhai Shiru
M Statement of Husain Sidikbhai Copy
N Letter of the Gujarat Maritime Board dt. Copy
22.06.2009
O Letter of the Ministry of Shipping dt. Copy
09.03.2012
P VRC Cancellation Certificate Copy
Q Letter written by the Insurance Copy
Intermediary of the complainant dt.
29.11.2010 to the opponent
R Letter written by the Insurance Broker of Copy
the complainant dt. 11.01.2011
S Letter from the opponent dt. 01.02.2013 Copy
T Letter of the complainant dt. 08.03.2013 Copy
U Letter from the opponent dt. 02.04.2013 Copy
5. That the opponent Insurance Company has produced the following documentary evidence.
Sr. No. Particulars Date
01 Policy No. 2130422050100000005
with its wordings
02 Report of surveyor M/s. W. K. 11.08.2006
Webster
03 Letter of the opponent to the 02.04.2013
complainant
The complainant has also filed rejoinder affidavit of the written statement filed by the Insurance Company which is produced at page 101 to 103.
6. Argument of the Ld. Advocate of the complainant Ld. Advocate of the complainant Mr. A. D. Solanki, has submitted that the owner of the Ship named "Kesari" Shrimati Emnabai Hajiali Shiru had taken Hull Machinery Insurance/sailing vessel Policy from the opponent Insurance Company for the period of 27.10.2005 to 26.10.2006 of sum insured of Rs. 40,00,000/- it is further, submitted by the Ld. Advocate of the complainant Mr. A. D. Solanki, that the said vessel was loaded with Date (Khajur) from Iraq and started her journey from Dubai in the year 2006 and on and around 17.02.2006 at about 9.30p.m. due to the bad weather condition vessel suffered a dangerous mishap and vessel was grounded and broken into 2 pieces near Jazirat Karan at LETI:
27:44:88 and Logi 49:50:00 at about 33 miles away from sea shore at RAS SALGAR. Therefore, on account of the total loss of the vessel namely "Kesari" complainant lodged the claim with the opponent Insurance Company by providing all necessary documents. However, the Insurance Company has close the file of the complainant and informed the complainant vide letter dated 04.03.2013. Hence, being aggrieved and dissatisfied by the said action of the Insurance Company the complainant filed the present complaint against the Insurance Company on the ground stated in the complaint seeking relief of Rs. 40,00,000/- with 12% interest from the opponent Insurance Company. It is further, submitted by the Ld. Advocate Mr. A. D. Solanki, that the main ground stated in the letter dated 04.03.2013 closing the claim file of the complainant is non submission of necessary document by the complainant but the said ground is not just and proper and Insurance Company has falsely repudiated the claim of the complainant on the said ground because vide letter dated 08.03.2013 address to the opponent Insurance Company original Insured of the vessel namely Emnabai Hajiali Shiru, submitted all the necessary documents to the Insurance Company and vide said letter also the insured had again submit require document for the ready reference of the Insurance Company. So, that the Insurance Company can process the claim of the complainant expeditiously.
7. It is also further, submitted by Ld. Advocate A. D. Solanki, that the insured has also stated in the said letter to the Insurance Company that the complainant do not have an expert to translate Arabic documents in English language and she has also stated in the said letter that under which circumstances she has not in a position to provide document as require by the Insurance Company. It is further, submitted by the Ld. Advocate Mr. A. D. Solanki, that whatever documents required by the Insurance Company from the complainant as per letter dated 01.02.2013 page No. 65 are already submitted to the Insurance Company and also produced the same in this complaint as a mark A to U on page 11 to page 70 and he has also submitted that the document namely Cargo Manifest is not available with the complainant likewise document namely Marine Casualty report Mercantile Marine Department is also not available with the complainant since the said document in the year 2006. Furthermore, Ld. Advocate A. D. Solanki, has also submitted that the document namely Weather Report from the British Metrological Office is concerned as per the survey report produced by the Insurance Company on page 92 to 94. On page 93 surveyor has categorically stated that the surveyor will obtain independent weather report from the British Metrological office. So, the same is not required to send by the complainant to the Insurance Company. Likewise, as per survey report page No. 92 document namely pre-departure translated English language will also obtained by the surveyor in the Insurance Company. So, the said document is also not required to be submitted by the complainant to the Insurance Company. So, sum and substance of the argument of the Ld. Advocate Mr. A. D. Solanki, is that though the complainant has provided all the documents which were in possession to the Insurance Company at the relevant point of time but Letter on in the year 2013 Insurance Company has falsely ask certain document from the complainant to make the delay of processing of the claim of the complainant and such action of the Insurance Company is not just and proper.
8. That the Ld. Advocate Mr. A. D. Solanki has submitted that as per the surveyor report produced on page 92 to 94 surveyor came to the conclusion that vessel was adequately crewed or was see worthy at the relevant time and complainant has not proved that "Kesari" Ship was lost as a result of insured peril and accordingly surveyor is not recommend the total loss of the ship but the said conclusion of the surveyor is not based on record and documentary evidence produced by the complainant and Ld. Advocate Mr. A. D. Solanki, has submitted that as per the documentary evidence produced by the complainant in this case and as per the statement of the Captain namely Jusabali Shiru, as per the statement of the Khalasi Husain Sidikbhai the incident in question the ship "Kesari" totally sink in the water of Arabian territory. So, as per the submission of the Ld. Advocate Mr. A. D. Solanki, deducting Rs. 3,00,000/- from the total sum insured of Rs. 40,00,000/- as per the Policy in question the complaint is entitled to get Rs. 37,00,000/- for the total loss of the ship namely "Kesari", from the opponent Insurance Company.
9. That Ld. Advocate of the complainant Mr. A. D. Solanki, has submitted that the accident in question took place on 17.02.2006 complainant lodged the claim with the Insurance Company on 21.02.2006 and on 01.02.2013 Insurance Company has ask certain document from the complainant for processing his claim unlawfully. Hence, the complainant is entitle to get 12% interest on the claim amount from the date of lodging of claim i.e from 21.02.2006, and in support of the said submission Ld. Advocate Mr. A. D. Solanki, has place reliance upon the decision of the National Commission in Consumer Case No. 716/15 in case of M/S. Tobacco Enterprise of India Vs. New India Assurance Co. Ltd. and Ld. Advocate Mr. A. D. Solanki, has also place reliance upon the decision of the National Commission reported (II) 2015 CPJ 183 in case of Oriental Insurance Company Vs. Kamadi Nookaraju that Ld. Advocate Mr. A. D. Solanki, has also submitted that the citations submitted by the Ld. Advocate Mr. V. P. Nanavaty, on behalf of the Insurance Company on the point of interest are based on the facts of the said cases and hence, same are not applicable in this case because herein this case the Insurance Company took 7 years of time in processing of the claim of the complainant. So, on account of inordinate delay there was a great economic loss cost to the complainant. Therefore, the complainant is entitle to get 12% interest from the date of lodging of the claim i.e since 21.02.2006 or at least from the date of 11.08.2006 as per relief para.
10. Per contra Ld. Advocate of the opponent Mr. Darshil Parikh on behalf of the Ld. Advocate Mr. V. P. Nanavaty, has submitted that on receipt of the claim of the complaint the opponent Insurance Company had requested to the Policy holder namely Emnabai Hajiali Shiru, vide letter dated 10.03.2011 as well as letter dated 01.02.2013, page 65 to provide 11 important documents as mentioned in the letter dated 01.02.2013 as well as Insurance Company also requested the insured to provide the document which establish that the captain Jusabali Alibhai Shiru was adequately qualify to command a vessel of this size but insured has not provided the same to the Insurance Company for a long time. Therefore, the Insurance Company constrain to write a letter dated 01.02.2013 page 65 to the insured to provide the necessary document as mentioned in the said letter but the insured has not provided the said document also to the Insurance Company. Therefore, considering the survey report vide letter dated 04.03.2013 Insurance Company close the claim file of the insured due to non submission of the claim requirements. It is further, submitted by Ld. Advocate Mr. Darshil Parikh, that thereafter the complainant has filed the documents along with this complaint as mark A to mark U as per list page 9. Ld. Advocate Mr. Darshil Parikh has also submitted that on comparison of the documents produced by the complainant in this complaint vide documentary evidence list page 9 of the complaint with the documents ask by the Insurance Company from the insured as per letter dated 01.02.2013 it appears that document shown at serial No. 1 in letter dated 01.02.2013 namely VRC original for verification is produced by the complainant vide mark P page No. 59. Furthermore, document at serial No. 2 Namely certificate of inspection in original is produced vide mark E page No. 25 by the complainant. That the document at serial No. 3 namely Port Clearance certificate in original for verification with it English translation is produced vide mark F at page No. 28 but the said certificate is not produced originally with English translation by the complainant. Furthermore, he has also submitted that complainant has not produced document shown at serial No. 4 in the latter dated 01.02.2013 and the complainant has not produced document of serial No. 5 namely Cargo Manifest. That the Ld. Advocate Mr. Darshil Parikh has also submitted that the complainant has produced document at serial No. 9 namely Marine Casualty report of Mercantile Marine Department at page 57 and complainant has produced document shown at serial No. 10 statement of Tindal to port/custom on page 42 mark L and complainant has produced document shown at serial No. 11 namely original Insurance Company Policy at page 11 and 12 as a mark A. So, as per the submission of the Ld. Advocate Mr. Darshil Parikh, on account of non submission of claim requirement/document to the Insurance Company by the Policy holder for processing her claim lastly Insurance Company close the claim of the complainant on that ground vide latter dated 04.03.2013. So, as per the submission of Ld. Advocate Mr. Darshil Parikh, since the Policy holder had not provided necessary require document to the Insurance Company in the English translation and certified by appropriate authority for a long time the Insurance Company is constrain to close the claim of the complainant and therefore, as per the submission of Ld. Advocate Mr. Darshil Parikh, there is no deficiency in the service on the part of the Insurance Company for closing the claim file of the Policy Holder. That the Ld. Advocate Mr. Darshil Parikh has alternatively submitted that if the commission come to the conclusion that the Policy holder is entitle to get compensation as prayed for on account of sinking of her vessel name is "Kesari" in the Arabian Sea water and thereby, there is a total loss of vessel to Policy holder then as per the submission of the Ld. Advocate Mr. Darshil Parikh, in the Insurance Policy that the sum insured of the vessel is Rs. 40,00,000/- but Rs. 3,00,000/- amount is deductible from the total sum of assured of Rs. 40,00,000/- therefore, at the most the insured is only entitle to get 37,00,000/- by way of total loss of vessel name "Kesari".
11. That the Ld. Advocate Mr. Darshil Parikh has also vehemently submitted that the complainant had ask 12% interest on Rs. 40,00,000/- since 11.08.2006 till its realization as per relief per of the complaint. But as per his submission though CP Act does not contain any provision for grant of interest but on account of catena or cases interest can still be awarded taking recourse of Section 34 of Civil Procedure Code, sin order to do complete justice between the parties. Interest can be awarded only from the date of filing the complaint till it is actually paid and interest cannot be awarded prior to the date of filing of the complaint and for the submission Ld. Advocate Mr. Darshil Parikh has place reliance upon the decision of the Hon'ble Apex Court reported 2011 (11) SCC page 269 in the case of Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. That the Ld. Advocate Mr. Darshil Parikh, has also place reliance upon the decision of the Hon'ble Apex Court in the case of M/S. Chengalrayan Co-operative Sugar Mills Vs. Oriental Insurance Co. Ltd. & anr. and submitted that interest ought to have been awarded from the date on which complaint filed before the commission. That the Ld. Advocate Mr. Darshil Parikh, has also place reliance upon the decision of the Hon'ble National Commission rendered in Revision Petition No. 2445/14 in case of M/S. Abhisekh Road Ways Vs. National Insurance Co. Ltd. As well as on the judgment of the National Commission rendered in the First Appeal No. 944/16 in the case of National Insurance Co. Ltd. Vs. M/S. Ganesha International and submitted that interest cannot be awarded from the earlier date and more particularly when there is an inordinate delay on the part of the petitioner to file the Consumer Complaint and interest can only be paid from the date of filing of the complainant and not from the date of incident i.e. prior to the filing of complaint that Ld. Advocate Mr. Darshil Parikh has also place reliance upon the decision of National Commission rendered in Consumer Case No. 1435/16 in the case of M/S. V. K. Gupta & Associates Vs. New India Assurance Co. Ltd. and submitted that interest can be awarded from the date of filing of the claim and not prior to that. So, as per the submission of the Insurance Company Ld. Advocate Mr. Darshil Parikh, that the decision taken by the Insurance Company for closing of the file of the Policy holder claim is just and proper and there is no deficiency in service at the most alternatively the complainant can entitle to get 37,00,000/- with some reasonable amount of interest from the date of filing of complaint.
12. That as per the pleadings as well as documentary evidence produced by the complainant and the opponent Insurance Company in this matter it appears that insured namely Emnabai Hajibai Siru, had taken Policy for Hull Machinery Insurance-sailing vessel name is as "Kesari" for the period of 27.10.2005 to 26.10.2006 and sum insured of the Policy is Rs. 40,00,000/- that it also appears from the record of the case that to the said vessel named "Kesari" was loaded with the Date(Khajur) from Iraq and had started her journey from Dubai as on 16.02.2006 and on and about 17.02.2006 the said vessel sink/submerged in Arabian Sea water near Sea shore at RAS SALGAR on account of bad weather condition. Hence insured lodged the claim with the Insurance Company but vide letter dated 04.03.2013 opponent Insurance Company close the claim file of the insured due to non submission of claim requirements. Hence, the complainant file the present complaint against the opponent Insurance Company and claim for the relief as stated in the relief para of the complaint.
13. It is the defence of the opponent Insurance Company that though the Insurance Company had ask the require document for process of the claim of the insured time and again but the insured had not provided the same therefore, the Insurance Company close the claim file of the complaint so, in this complaint the important issue involved are that whether the action on the part of the Insurance Company closing the claim file of the insured due to non submission of his requirement is legal and valid or the same is arbitrary and not in accordance with the law or is there is any deficiency in service on the part of the Insurance Company and if yes than what relief complainant is entitle to from the Insurance Company. That in order to decide/adjudicate the said issues this commission has to perused the material on record namely pleadings of the parties and documents along with the submission of the Ld. Advocate of the parties.
14. Thatthis commission has considered the material on record and submission of the Ld. Advocate of both the parties in great detail.
15. That Insurance Company has close the claim file of the insured due to non submission of the required document as stated in the letter dated 04.03.2013 and on the other side it is the case of the complainant that the complainant already submitted necessary required document which were in her possession to the Insurance Company after lodging the claim and insured have also offered reasonable plausible explanation for not providing certain document to Insurance Company. That in this case along with the complaint complainant had produced document at mark A to U with documentary evidence list page 10 to page 70 and as per the say of the complainant insured had submitted to the Insurance Company at the time of lodgement of the claim. Hence, we have to perused the same along with the letter dated 01.02.2013 of the Insurance Company address the insured Emnabai wherein Insurance Company had asked 11 document mentioned in the said letter in order to process the claim of the insured and Insurance Company have also requested the insured while this letter to provide the document which established that Captain Jusanbai Alibhai Shiru was adequately qualified to command a vessel of this size. Therefore, we have to see that whether the necessary require documents were submitted by the complainant to the Insurance Company or not from the documentary evidence produced from mark A to U. That the Insurance Company has asked document namely VRC original for verification as per letter dated 01.02.2013 at serial No. 1 from the insured and insured has produced the said document at mark P page 59. Furthermore, the Insurance Company has also ask document at serial No. 2 as per letter dated 01.02.2013 from the insured namely certificate of inspection in original which is produced by the insured mark E page 25 the Insurance Company has also ask the document namely Port Clearance Certificate in original for verification with English translation at serial No. 3 while letter dated 01.02.2013 which is produced by the insured vide mark F page 28 in Arabian language.
16. That the complainant has also produced document at serial No. 4 namely exit permit in original for verification at mark G page 13 in Arabian language. That the insured had not produced or submitted document shown at serial No. 5 in the letter dated 01.2.2013 and insured has also not produced the document at serial No. 6 as per letter dated 01.02.2013 namely weather report from the British Metrological Office. Furthermore, the insured has also not submitted document at serial No. 7 namely Note of Protest for evidence of Saudi Investigation/exclusion regarding sinking because Saudi investigator has not issue the same to the insured. Furthermore, the insured has also produced document as shown at serial No. 8 in letter dated 01.02.2013 namely, VRC cancel certificate as mark P page 59 that insured has not produced document in serial No. 9 Marine Casualty Report of Mercantile Marine Department since, the said letter is very old that the insured has produced the document shown at serial No. 10 letter dated 01.02.2013 namely statement of tinder Port/custom at page 42 mark L and complainant has also produced original Insurance Policy at mark A documents shown in the letter dated 01.02.2013 in English language. So, the whatever, document ask by the Insurance Company from the insured vide letter dated 01.02.2013 most of the documents produced by the insured as stated herein above to the Insurance Company, that furthermore, if we perused the letter dated 08.03.2013 written by the insured to the Insurance Company wherein, also the insured have categorically stated that the Insurance Company appointed Mr. Thakkar, as the investigator and the insured staff has given due support to Mr. Thakkar, for the investigation and handed over all the documents demanded by him. Not only that the insured has also again submitted require document for the ready reference for the Insurance Company and in the said letter insured has also stated that he has no any expert available to translate Arabic document into English and insured has also stated in the said letter that it is namely practice to submit all original documents to the relevant officer of the next call port hence, it is not possible for her to give the same. Furthermore, the insured has also clarifying in the said letter that so far the document ask by the Insurance Company namely weather report from the British Metrological Office concern after the tenure of 5 years it was difficult for insured to obtain weather report and therefore, insured had submitted affidavit of the tinder who witnesses the sinking vessel.
17. That if we perused the surveyor report dated 11.08.2006 which is produced at page 92 to 94 in this matter on page 93 it is mentioned by the surveyor that the surveyor will try and obtain independent weather report from the British Metrological Office. So, there is no necessity to submit the said document by the insured to the Insurance Company. So looking to the documentary evidence produced by the complainant and looking to the letter dated 08.03.2013 of the insured address to the Insurance Company it appears that the whatever documents were available with the insured at the time of incident insured had submitted to the Insurance Company for processing the claim even if we perused the letter dated 22.06.2009 page 53 address to Indian Consulate Saudi Arabia by the Additional Port Officer Mandvi, Kutch, Gujarat Maritime Board, the Competent authority has also requested the Saudi Arabia Authority to sent detail information with evidence of the sailing vessel which is loss on 17.02.2006 in Saudi Arabia Sea as it is needed for the claim of the said lost vehicle to the state authority but it appears that the Gujarat Maritime Board who is competent authority has also not received said document from the Saudi Arabia authority and when the Insurance Company has appointed investigator and surveyor then it is also responsibility of the investigator and surveyor to obtain necessary document from the competent authority which are not in the possession of the insured or insured is not able to procure the same from the competent authority but here in this case it appears that investigator as well as surveyor of the company had not made any sincere effort to obtain the necessary certain document to process the claim of the insured. For over a long time and that called inordinate delay in processing the claim. Even, if we perused the statement of Jusanbhai Alibhai Shiru the captain of the vessel recorded by the investigator Officer of the Insurance Company wherein also the captain categorically stated that they have demanded necessary papers of incident of the vessel from the Saudi Arabia Port Authority. But they have not provided the same, therefore, it appears that the insured was not in a position to obtain certain document from the Saudi Arabia Port Authority, and therefore, he had not produced the said document in the Insurance Company. But that does not mean that the insured had totally fail to fulfil the demand of the Insurance Company for providing documents for processing of the claim and therefore, according to my considered view the action of the Insurance Company for closer of the claim file of the insurer on the ground of non submission of require document is totally unjustified and wrong and without any valid reason and that amounts to be deficiency in service on the part to the Insurance Company.
18. Now, the next question arise for the determination of this commission is that when there is a deficiency in service on the part of the Insurance Company then how much amount of compensation due to the total loss of the vessel insured is entitle from the Insurance Company. That as per the statement of Jusabali Alibhai Shiru the captain of the vessel page 42 to 46 and as per the statement of Husain Sidikbhai the Khalasi of the vessel page 49 to 51 it appears that on account of weather condition the Saudi Arabia Sea as on 17.02.2006 Sea water was ingress in the Ship with the result thereof the vessel broken and ultimately sink into the Sea. With the result thereof, the captain and other crew members shifted into the Life Boat and they have also rescued by the Saudi Arabia Authority that is Saudi Arabia Navy. Furthermore, if we perused the letter dated 22.06.2009 written by the Assistant Port Authority, Mandavi, Kutch, Gujarat Maritime Board to the Indian Consulate Saudi Arabia demanding detail information with evidence said sailing vessel it appears that the vessel of the insured is total lost in the Arabian Sea in. Even on the perusal of the certificate issued by the Gujarat Maritime Board dated 03.04.2012 the vessel of Osman Ali Shiru got total loss. So, from the perusal of the said document it appears that the vessel namely "Kesari" of the Osmanali Shiru sink or submerge in the Arabian Sea water on account of bad weather condition and the vessel got total loss.
19. That the surveyor of the Insurance Company vide reported dated 11.08.2006 not recommended pay out of a total loss of the vessel on account of the lack of evidence regarding the sinking of vessel but according to view of this commission the said observation and finding of the surveyor is not just and proper and it is against whatever documents produced by the insured with the Insurance Company and as stated earlier when the Arabian Port Authority had not provided evidence regarding the incident question to the Gujarat Maritime Board how insured can provide the same to the company but whatever, documentary evidence submitted by the insured to the Insurance Company it can be inferred or assumed that the incident took place in the Arabian Sea water on 17.02.2006 wherein, the vessel namely "Kesari" of the insured completely sinked and totally lost. Therefore, when there is a total loss of the vessel insured name is "Kesari" as per the settle position of Law and as per the Policy in question the insured/complainant is entitle to compensation from the Insurance Company. That as per the Policy in question the sum insured of the Policy is 40,00,000/- but Rs. 3,00,000/- is deductible from the sum insured of 40,00,000/- which comes Rs. 37,00,000/-. So, herein this case the complainant is entitle to get to 37,00,000/- ( Thirty Seven Lakhs ) by way of compensation on account of total loss of vessel namely "Kesari" from the opponent Insurance Company. So, I awarded the same to the complainant by way of compensation.
20. That the next question arise as to whether the complainant is entitle to get interest on the amount compensation on account of inordinate delay of the processing of the claim or on account of wrongful closer of the claim file of the insured and if Yes from where and what rate of interest. That Ld. Advocate of the complainant Mr. A. D. Solanki, had submitted that the incident was taken place as on 17.02.2006 the insured lodged the claim as on 21.02.2006 and surveyor submitted his report as on 11.08.2006 how so ever Insurance Company wrongly close the claim file of the complainant vide letter dated 04.03.2013. hence, complainant is entitle to get 12% interest from the dated of lodgement of the claim or at the most from of submission of survey report i.e from 11.08.2006 as per the decision of the Hon'ble National Commission rendered in Consumer Case No. 776/15 in the case of M/S. Tobacco Enterprise of India Vs. New India Insurance Co. Ltd. Per contra Ld. Advocate Mr. V. P. Nanavaty, has vehemently oppose the submission of the Ld. Advocate of the complainant Mr. A. D. Solanki, and submitted that as per the decision of the Hon'ble Apex Court reported 2011 (11) SCC 269 Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. There is no provisions in the CP Act to grant interest on the amount of compensation how so ever taking recourse of Section 34 of the CPC the interest can be awarded only from the date of filing of complaint and not prior to that the Ld. Advocate of the Insurance Company has also place reliance upon the decision of the Hon'ble Apex Court in the case of M/S. Chengalrayan Co-operative Sugar Mills Vs. Oriental Insurance Co. Ltd. as well as on the decision of National Commission namely Revision Petition No. 2445/14 M/S. Abhishek Road Ways Vs. National Insurance Co. Ltd. and the decision of the National Commission First appeal No. 944/16 National Insurance Co. Ltd. Vs. M/S. Ganesha International and Consumer Case No. 1435/16 M/S. V. K. Gupta & Associates & ors. Vs. New India Assurance Co. Ltd.
21. I have considered the submission as well as citation of the Ld. Advocate of the parties with regard to the issue of award of interest. That all the citation of the Ld. Advocate of the parties are based on peculiar fact and circumstances of the case hence, question of interest has to be decided looking to the peculiar facts and circumstances of the case that herein this case insured has lodge the claim in the year 2006 and also provided all necessary document which were in his possession to the Insurance Company however, the Insurance Company had not process his claim till 2013 and in the year 2013 Insurance Company had wrongly close his claim file on account of non submission of require document. That the surveyor has submitted his report as on 11.08.2006. Therefore, as per the considered view of this commission it would be deem fit and proper to award 8% interest from the date of 11.08.2006 i.e. from the date of submission of surveyor report on the amount of compensation of Rs. 37,00,000/- to the complainant which would meet the end of justice. Hence, I award the same to the complainant.
22. That on account of closing the claim file of the complainant wrongly though the complainant has submitted necessary document to the Insurance Company and incident in question took place in the year 2006. So, in fact the insured is entitle to get the amount of claim in the year 2006 but Insurance Company has not paid the said amount and without any just and proper reason close the file which cause great mantel harassment and inconvenience to the insured and insured has also suffered huge economic loss on account of unjust action on the part of the Insurance Company and insured/complainant has to file the present complaint against the Insurance Company to get his dues from the Insurance Company. Therefore, the complainant is entitle to get Rs. 15,000/- on the head of mental harassment and Rs. 10,000/- for the cost of the litigation. Hence I award the same to the complainant.
23. Based on the above discussion the present Consumer Complaint No. 83/13 requires to be partly allowed against the opponent Insurance Company and accordingly I passed the following final order.
ORDER
1. The Consumer Complaint No. 83/13 filed by the Complainant against the Opponent New India Insurance Company Limited is hereby partly allowed. Opponent Insurance Company is directed and ordered to pay Rs. 37,00,000/- ( Thirty Seven Lakhs ), along with the interest at the rate of 8% from the date of 11.08.2006 till its realization to the complainant.
2. The opponent Insurance Company shall also pay compensation for mental harassment and agony to the complainant of Rs. 15,000/- and also pay Rs. 10,000/- on the head of cost of litigation to the complainant.
3. It is hereby directed that the opponent Insurance Company shall comply the present order within 30 days from the receipt of the copy by this order.
4. The opponent shall bare its own costs.
5. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 23TH January 2023.
(I. D. Patel) Judicial Member.