State Consumer Disputes Redressal Commission
Maritime Engineers vs National Insurance Co. Ltd. on 31 March, 2009
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. 11/0/2005 DATE OF FILING: 12.4.2005 DATE OF FINAL ORDER: 31.03.2009 COMPLAINANT Maritime Engineers Under the proprietress-ship of Smt. Kanta Bagaria 35, Diamond Harbour Road, Kolkata 700 027 Being represented by its authorized signatory Mr. Harish Agarwala OPPOSITE PARTIES 1) The Senior Divisional Manager Division No.IX National Insurance Co. Ltd. 18, Rabindra Sarani Kolkata 700 001 2) The Regional Manager Regional Office, CRO-I National Insurance Co. Ltd. 8, India Exchange Place Kolkata 700 001 3) The Chairman-cum-Managing Director Head Office, National Insurance Co. Ltd. 3, Middleton Street Kolkata 700 071 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE COMPLAINANT : Mr. Sujoy Basu, Advocate FOR THE OPPOSITE PARTIES : Mr. S.N. Dutta, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The complainant engaged in ship repairing workshop had obtained a Marine Policy on 31.7.2001 from the OP1 when OP1 agreed to grant insurance coverage for the Old Marine Diesel Engine to be transported from Pickup site to the place of unloading at Marine Engineering College Campus, Taratola for a total sum of Rs.44 lacs. OP1 appointed Mr. M.N. Zutshi, Surveyor for pre-dispatch survey.
The Old Marine Diesel Engine which was to be installed in the Marine Engineering and Research Institute to impart practical training to engineering students was checked by actual trial operations jointly by the Engineer Officers of the Institute and the Maritime Engineers on 17.5.2001. M/s. JCC India was entrusted for transportation of the engine to be delivered to the Marine Engineering College from the Pickup site and the charges were paid in full. The transit commenced at 22 hrs. on 05.8.01 for transporting the said engine and the trailer carrying it capsized on 16.8.01 one side falling heavily on the concrete foundation which was the place of installation. The complainant intimated the OP1 by letter dated 17.8.01 and M/s. Mehta & Padamsey Surveyors Pvt. Ltd. was appointed Surveyor by OP1 and the report was submitted on 20.8.01 followed by a final report on 21.12.2001.
Even after submission of the report by the Surveyor, the OP1 remained silent. After repeated reminders the OP1 wrote a letter dated 26.4.02 to the complainant to provide documents which were duly supplied by the complainant by letter dated 09.5.02. On 14.5.02 complainant sent four original documents according to the requirements.
The complainant received one letter on 05.9.01 dated 27.8.02 from the OP1 wherein OP1 stated that the peril occurred after expiry of the duration of the policy and, therefore, loss is not admissible. It was also stated that there was unreasonable delay in transit after arrival of the vehicle of the campus gate and accordingly the file was closed as No Claim. The complainant immediately wrote to OP1 by letter dated 11.9.02 requesting to send a survey report and other clarifications obtained from the surveyors.
The OP1 sent letter to the complainant dated 01.10.02 giving the grounds for repudiation of the claim.
The OP2 for further review of the claim had appointed another Surveyor, Mr. Jyotirmay Ghoshal to examine certain aspects of the claim by letter dated 15.9.03. The complainant rendered full cooperation to the said Surveyor. The Surveyor Mr. Ghoshal carried on the survey work and by his letter dated 02.9.04 informed the complainant that one Mr. S.N. Jha, ex-Commander of the Indian Navy was imparting his assistance for investigation of the damage to the said engine. Till the end of 2004 Surveyors were appointed one after another, inspection and enquiries were going on time to time and ultimately Mr. J. Ghoshal submitted his report on 10.11.03 with addendum reports dated 12.11.03 and 28.11.03 to the OP2 inspite of repeated requests and reminders the OPs had neither settled nor had repudiated the claim. Ultimately the complaint was filed for a sum of Rs.47,68,831/- against OP1 on account of the loss due to damage of the Marine Diesel Engine, Rs.1 lac as compensation for harassment, interest and cost.
After the written version was filed, the parties adduced evidence by filing evidence on affidavit to which questionnaires were submitted and replies were filed thereto.
Heard Mr. Sujay Basu, the Ld. Advocate for the Complainant who referred to the records and the pleadings including the pre-transport survey and the scope of the policy. It is further contended that there was no laches on the part of the complainant and delay had occurred under circumstances beyond the control of the complainant when the trailer reached the gate of the destination, the situation became worse due to rain and ultimately the trailer had to be detouched when the engine fell down. It is contended that though the cost of repairing of engine was found prohibitive and its dismantling was uneconomical, the assessment made by the Surveyor was unreasonably low and that too without assigning any reason.
It is further argued by the complainant that referring to the report submitted by Mr. J. Ghoshal that when the machine was tested by trial run thrice before dispatch, findings on its function could not depend on further empirical test. It is also the contentions of the complainant that the report of Mr. Ghoshal showed that the insurance was of the engine only and not of the auxiliary parts. It is argued that operation of the machine after the accident was not possible as the same could have consequential other accidents.
Mr. S.N. Dutta, the Ld. Advocate for the Insurer referred to the Annexure J to the written version for contending that machine was found in operation even after the accident and so there cannot be total loss and the claim on such basis cannot be entertained. The second contention of Mr. Dutta is that when there was no prior assessment of the weight of the machine, the conditions of the policy were violated and, therefore, no payments become due under such a policy. The next contention of Mr. Dutta is that no proper inspection was allowed of the said machine even when Investigator was subsequently appointed and Mr. J. Ghoshal was appointed only after the letter dated 2003 and, there being no certificate of road-repair etc., compensation could not be asked for from the Insurer.
After considering the respective contentions and perusal of the papers and records available we find that the original Surveyor appointed at the earliest stage before dispatch of the engine acted properly and there is no material to show any irregularity in it. Insurer has also not held the said report irregular in any way.
No doubt appropriate authority has power to appoint subsequent surveyors but no such decision has been produced.
The working of the said engine was checked up by actual trial operations and was found suitable.
On consideration of the respective facts and circumstances argued by the respective lawyers for the parties we find that undoubtedly there was delay on the part of the Insurer in the matter of taking a decision as regards the claim of the complainant. It is apparent that the Surveyors and Investigators have been appointed from time to time and the matter has been delayed substantially. No reason has been shown as to why the Insurer could not take its own decision after considering the report of the first surveyor who was appointed and held investigations after the accident. The OP in its affidavit has failed to make out a case justifying delay in the matter for such a long time. The OP also failed to give reasons as to why subsequent Investigator and Surveyors had to be appointed when admittedly no appropriate authority took any decision on materials existing at the relevant point justifying keeping the matter pending instead of deciding the same in accordance with law after considering the report of the first surveyor.
With regard to the subsequent surveyors appointed also we find that there is no reason as to why matter was allowed to proceed in the manner it has been done. On the contrary nothing has been shown as a reason for not accepting the report of the first surveyor and the quantum of loss suffered due to the said damage.
As regards the grounds for repudiation contained in letter dated 01.10.2002 we find that the first ground was that peril occurred after expiry of the duration of policy. This is not acceptable as the policy was for transit, loading and unloading and accident took place during this period before the unloading when it was still in transit. As regards the second and third grounds when the insurer held predespatch inspection by surveyor at the instance of Insurer and there was no adverse report by such surveyor the second and third grounds are also not acceptable.
In the above circumstances we are of the opinion that the complainant should have been directed to be paid the amount of loss suffered by him as assessed by the first surveyor on the basis of the report submitted by it and on the basis of the quantum of loss allegedly suffered by the complainant. The complaint is, therefore, allowed and the OP1 is directed to pay Rs.24,90,000/- to the complainant within two months from the date of this order. In case of default the complainant will be entitled to recover the amount along with a sum of Rs.50,000/- towards compensation and interest @ 9% p.a. for the period of default.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT