State Consumer Disputes Redressal Commission
Hiren Marin Transport Services vs Bajaj Allianze Gen Ins Co Ltd. on 31 May, 2023
Details DD MM YY
Date of disposal 31 05 2023
Date of filing 08 02 2012
Duration 23 03 11
BEFORE THE CONSUME DISPUTE REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
Complaint No.08 of 2012
M/s. Hiren Marine Transport Services
Partnership Firm,
Having Address at,
Hapa, GIDC,
Nr. Ambica Way Bridge,
Jamnagar - 361001 ....Complainant
Vs.
Bajaj Allianz General Insurance Co. Ltd.
601-2, 606, Prasham,
6th Floor,
Beside Dharam Cinema,
Kasturba Gandhi Road,
Rajkot - 360001 .... Opponent
BEFORE: Dr. J. G. Mecwan, Presiding Member.
APPERANCE: S.C. Shah, L.A. for the Complainant,
Mr. V.P. Nanavati, L.A. for the Opponent
ORDER BY DR. J. G. MECWAN, PRESIDING MEMBER
JUDGMENT
1. The facts giving rise to the present Complaint are as set out herein under:
1.1 It is the case of complainant that the complainant is partnership firm represented through its partner Mr.Hiren J Nanda. The complainant is owner of Barge "Pankaj Sagar" which is sailing vessel and partner Hirenbhai is self employed and using said vessel / Barge for giving on hire for earning livelihood. The complainant had obtained Marine Hull Policy from opponent with sum insured of Rs.45 lakhs and opponent RUTVIK CC-08-12 Page 1 of 24 issued policy on receipt of premium as consideration and issued policy no OG-09-1022-00000031 from 4/2/2009 to 3/2/2010. 1.2 It is the further case of complainant that during policy period and during Barge operations on around 7.00 hours 6/12/2009 said Barge overturned and sunk in the Sea near Bedi port. The opponent insurance company was informed and Opponent Company appointed Admire Marine Services Private Limited who carried our preliminary survey on 6/12/2009 and issued his preliminary survey report to opponent insurance company on 9/12/2009. Thereafter opponent has appointed another surveyor he has requested to furnish various documents. 1.3 It is the submission of complainant that the complainant cooperated in all respects and supplied all documents and details in support of claim to enable surveyor G P Dave & Sons to assess the loss.
1.4 It is the further case of complainant that as suggested by Surveyor, efforts to bring up/ fetch sank barge salvage was also tried. Public advertisement was also given for said work. Two persons M/s.Anwer Abbas Kara and Padhiar's Hitech Engineering services suggested for their charges which was submitted to surveyor however thereafter persons backed out and withdrawn their offers for salvage operation. In the said situation the complainant wrote to insurance company on 9/11/2010 and said that costs of repairing and salvages expenses is exceeding the value of Barge of Rs.45 lacs and hence requested to consider as "total loss" and to pay the claim under policy. RUTVIK CC-08-12 Page 2 of 24 1.5 It is the case of complainant that thereafter reminders was sent for settlement of claim on 10/12/2010, 3/1/2011 and 29.01.2011, but the complainant was surprised to receive letter from Opponent Company dtd.15/2/2011 rejecting the claim. In repudiation letter it was stated that company has received report from surveyor and based on its report the company has rejected the claim. It is stated that vessel was unseaworthy at the time of incident and also there was no operation any insured perils at the time of loss.
1.6 It is the case of complainant that this action of rejecting the genuine claim by Opponent Company was shocking and no opportunity was ever given to complainant before rejecting the claim. The complainant was also not informed about survey report and therefore complainant through Advocate Bipin Jhaveri sent legal notice and pointed out illegal rejection of claim and also asked for copy of survey report on which reliance was based for rejecting the claim. The opponent company by letter dtd 9/6/2011 sent reply and also sent copy of survey report of G P Dave & Sons.
1.7 It is the further case of complainant that the complainant sent another legal notice through Adv S J Mehta on 1/9/2011. As the survey report of G P Dave & sons was not proper and illegal and based on presumptions and surmises, the complainant informed that another expert opinion of qualified surveyor will be furnished to company. Thereafter with letter dtd. 14/12/2011 through Adv S J Mehta, Survey report dtd.
12/12/2011 of B G Bhatt & Company was sent and requested to RUTVIK CC-08-12 Page 3 of 24 reconsider the claim but when nothing favorable heard, the complainant has filed present complaint on 3/2/2012 in this consumer commission to get claim amount Rs. 45 lacs with 12% interest and survey fee Rs. 64,361/-.
2. In this complaint complainant has produced following Documentary evidence:-
Particulars
1. Copy of insurance policy for the period 04.02.2009 to 03.02.2010
2. Copy of valuation report issued by G.P. Dave & Sons on dtd. 25.01.2008 for Rs.
45,00,000/-
3. Copy of Opponent surveyor and Complainant correspondence of various dates with surveyor, port officer and others annexed collectively
4. Copy of Gujarat Maritime Board certificate with other documents along with Affidavit of Hamid Haji Surani, Abdul Aslam S.K., Ajij Ibrahim Raga collectively.
5. Copy of new west-coast Diving Services report 12.12.2009 along with necessary documents.
6. Copy of Complainant and Opponent surveyor correspondence along with salvagers letters collectively annexed form page 77 onwards.
7. Copy of Complainant address to opponent by dtd. 09.11.2010, 10.12.2010,
03.01.2011, reply by opponent dtd. 05.01.2011, complainant reminder by dtd. 29.01.2011 annexed collectively.
8. Copy of repudiation latter dated 15.02.2011, legal notice copy of advocate Bipin Jhaveri, reply to notice of advocate by opponent 06.06.2011 and copy of survey report, complainant advocate further notice against survey report received with notice reply by dtd. 01.09.2011 and further final notice 14.12.2011 with IRDA approved surveyor opinion cum report of dtd 12.12.2011 submitted to opponent for compliance said documents annexed collectively
9. Copy of Letter of Creative Services to complainant dtd. 25.09.2009
10. Copy of Ultrasonic Survey report dtd.25.09.2009
11. Copy of Calibration Certificate
12. Copy Of Certificate No. 09TM105 By Indian Register of Shipping favouring Creative Services Surat dtd. 06.05.2009
13. Copy of License - Letter of Authority for delivery of certificate of competency -
Abdul Aslam showing 2nd class inland Master dtd 05.10.2007
14. Copy of Preliminary Survey report of Admire Marine Services Private Ltd. dtd.
09.12.2009 Further Opponent insurance company has submitted following document in this matter:-
Perticulars
1. Copy of Marine Hull Policy No. OG/09/2222/1022/00000031 with its wordings. RUTVIK CC-08-12 Page 4 of 24
2. Copy of Final Survey Report of M/s. G.P. Dave & Sons with Annexure dtd. 24.01.2011
3. Copy of letter of repudiation dtd. 15.02.2011
3. In this matter opponent insurance company has submitted written statement which is on record at page no. 149-154. Opponent has also filed rejoinder which is also on record at page no. 203-205
4. Argument of the Complainant:
Ld. Adv. for the complainant argued out that complainant is owner of Barge Pankaj Sagar, and unfortunately it sunk on 6/12/2009. The value of Barge was Rs.45 lakhs and survey report of G P Dave & Sons which was issued by him on 25/1/2008 showing value of Rs.45 lakhs and policy is issued for the sum insured of Rs.45lakhs for which premium was paid and risk was covered. During policy period on 6/12/2009 Barge was sunk and there is total loss of Barge and hence complainant is entitled to claim total loss amount of Rs.45 lacs.
4.1 Ld. Adv. for the complainant further argued out that it is very clear form the repudiation letter of insurance company that Opponent Company has relied upon the observations and finding of surveyor G P Dave & sons but in said survey report of G P Dave & sons has used"...possibility"
and "Ruled out" words in reason no. 1 to 6 and hence it is clearly first creating GHOST and then trying to KILL IT. All his observations are ill- founded, illegal, wrong, arbitrary and full of personal prejudices and whims.
4.2 Ld. Adv. for the complainant submitted that all such observations and findings are perverse, illegal and made with a view to deny genuine RUTVIK CC-08-12 Page 5 of 24 claim. Further it is stated that surveyor had pressurized and threatened our master to sign the prepared statement and actual sea condition was not recorded by surveyor and their declared sea to be calm and no collision of our barge with another barge. It is further stated that surveyor has not considered various documents like (a) Ultrasonic report no 408 dt.25/9/2009 (before accident on 6/12/2009) showing thickness between 6.2mm to 11.9mm which were normal and also that barge shell and bottom had normal thickness and Barge was in seaworthy condition at the time of sinking at Sea off Bedi Anchorage. Ld. Adv. further argued out that surveyor has wrongly and knowingly not considered Masters License and declared his sukhani but it is clear that at the time of sinking the barge was operated by a qualified master and engine driver and barge was in seaworthy condition.
4.3 Ld. Adv. for the complainant stated that the opponent insurance company has blindly followed wrong observations of surveyor G P Dave & Sons and has wrongly rejected the claim by letter dtd. 15/2/2011 4.4 Ld. Adv. for the complainant further argued out that after receipt of Survey Report of GP Dave and Sons from Insurance Company the complainant had sent another expert independent survey assessment report of Mr. Bhasker G Bhatt dated 12/12/2011 showing that complainant has suffered loss of Rs 45 lacs and complainant has also filed affidavit of Mr. Bhasker G Bhatt in support of his report and hence the contents of survey report is duly proved on record. RUTVIK CC-08-12 Page 6 of 24 4.5 Ld. Adv. for the complainant submitted that the burden to prove that complainant was owner of vessel, duly covered under policy of insurance, vessel sunk during policy period due to perils, insured under policy and complainant has suffered loss of Barge is sufficiently discharged on record, by affidavit of complainant in complaint and also rejoinder affidavit and also all necessary documents on record as the barge sunk there is total loss and hence Opponent Company is legally liable to reimburse the loss of Rs.45 lacs under policy.
4.6 Ld. Adv. for the complainant further argued out that as against that the insurance company has not proved their contentions as to why claim is not payable. The claim is rejected by letter dtd.15/2/2011 which is signed by one officer and reply is signed by another officer Mr Gaurang S Raviya, Deputy Manager. It is stated in rejection letter that office of Opponent Company has relied upon survey report of G P Dave & Sons and copy of said report is produced on record. It is however submitted that said report is under challenge in this complaint. The rejection letter is also under challenge in this case. Burden to prove that claim is not payable under policy conditions is on insurance company and it has failed to discharge the same on record of this case. In any case it seems that surveyor has shown personal prejudices and presumed various reasons for loss of barge and thereafter tried to rule out same on his own and said that loss is not payable because of any peril covered under policy which is nothing but deficiency in service and complainant is RUTVIK CC-08-12 Page 7 of 24 legally entitled for claim amount of loss and also compensation and costs.
4.7 Ld. Adv. for the complainant concluded that Hon'ble commission may be pleased to award Rs. 45 lacs with interest and also award compensation and costs in favor of the complainant and against opponent insurance company.
5. Argument of the opponent:
Ld. Adv. for the opponent argued out that the present Complaint is not maintainable under the Consumer Protection Act as the services of the Opponent have been engaged for commercial purpose since the Complainant as per its own admission is engaged in the business of large scale carriage of goods in their barges. Taking of an insurance policy for such purpose is for protecting the property or interest of commercial organization. Thus, the purpose of insurance policy is to protect the interest of a commercial organization. Hence, services of insurance in such cases are part of commercial activity.
5.1 Ld. Adv. for the opponent submitted that the Opponent has repudiated the claim of the Complainant vide its detailed repudiation letter dated 15/02/2011 issued by its Jamnagar office wherein the grounds for repudiation have been elucidated. The Opponent, in its repudiation letter has referred the observations of the licensed, independent surveyors and the claim has been rightly repudiated by the Opponent on basis of the detailed findings/investigation contained in the final survey report RUTVIK CC-08-12 Page 8 of 24 confirming that the insured vessel was unseaworthy and that the loss was not caused by any of the insured perils.
5.2 Ld. Adv. for the opp. further argued out that the surveyors were appointed by the Opponent as prescribed under the applicable provisions of Section 64 UM of the Insurance Act which is a statutory appointment and only surveyors duly licensed by IRDAI (Insurance Regulatory & Development Authority of India) are appointed for carrying out survey/assessment. The insured/Complainant cannot appoint any surveyor nor can the Complainant refer the claim to any other expert as the statutory provisions stipulates that only an insurer can appoint a surveyor and so this contention of the Complainant that the report of expert appointed by them has to be given credence, stems from an utter ignorance of the provisions of insurance law.
5.3 Ld. Adv. for the opponent submitted that the opponent had issued a Marine Hull Policy covering the risk of vessel "Pankaj Sagar" for a sum insured of Rs. 35,00,000/- and Rs. 10,00,000/- for the Hull and Machineries respectively. The said policy was subject to the trading warranty as well as the clauses, endorsements, etc. which were noted in and attached with the policy.
5.4 Ld. Adv. for the opponent argued out that the complainant reported/intimated the claim of insured cargo barge "Pankaj Sagar". The complainant reported that the insured barge had capsized and sunk at sea area off Bedi encourage on 09.12.2009. Upon receipt of the said claim intimation, the opponent appointed a duly authorized and licensed RUTVIK CC-08-12 Page 9 of 24 surveyor M/s. G.P. Dave and Sons to carry out the final survey and the said surveyor have collected relevant information and documents for the purpose of survey and assessment of loss. The surveyors have issued final survey report on 24.01.2011 which was subject to the terms and conditions of the Marine Hull Policy issued to the complainant. 5.5 Ld. Adv. for the opponent argued out that it is pertinent to note that M/s. G. P. Dave & Sons were approached by the complainant for the purpose of obtaining certificate of general condition/valuation report of self-propelled barge M.V. Pankaj Sagar'. Said certificate was issued on 25.01.2008. Said certificate had observed that "as the barge was resting on 'HARD' during low water, mooring test of main propulsion machinery could not be taken by us. It was reported by barge Master that the performance of engine is satisfactory without any abnormal vibration/noise." It is further submitted that the complainant with oblique motive has alleged that the barge was dry docked at Rosy dock in the month of August 2009 for couple of weeks to replace worn out plates of the bottom, cargo hall, plates of the junctions on side wings and wherever required to be replaced were changed with new welded joints. It is submitted that the complainant has not produced any document to support the said allegation before the surveyor or provided any such document to the insurance Company.
5.6 Ld. Adv. for the opponent submitted that the complainant had submitted to the surveyor, during the survey and assessment of loss, a report of thickness gauging pertaining to bottom steel plates of their barge carried RUTVIK CC-08-12 Page 10 of 24 out in the month of August/September, 2007, whereby it was observed that the plates were worn out. Moreover, there is no evidence to prove the contrary that the plates were replaced. Thus, it clearly transpires that the complainant is playing fraud against the honourable State Commission by making assertion regarding replacement of worn out plates of the bottom and other repairing.
5.7 Ld. Adv. for the opponent argued out that based on the report of thickness gauging pertaining to bottom steel plates of the barge which was carried out in the month of August, 2007, it was found that the thickness of bottom plate in way of port side buoyancy tank was thinned down to 3.2 mm to 6.5 mm as against the normal thickness of 10 mm. In such circumstances, the surveyor has specifically observed that the complainant did not provide any evidence on record that such plates were changed to restore the normal thickness to keep the barge in sea-
worthy condition.
5.8 Ld. Adv. for the opponent submitted that the complainant had along with the rejoinder affidavit has produced certain documents including the alleged gauging report dated 25.09.2009. It is pertinent to note that the complainant has not proved the said documents. It is submitted that the complainant has never provided the said documents to the surveyor or the insurance company and therefore the said documents are not admitted. It is submitted that the said documents are not supported by way of an affidavit of the concerned person issuing the document and therefore the same are not to be considered.
RUTVIK CC-08-12 Page 11 of 24 5.9 Ld. Adv. for the opponent argued out that the complainant had alleged before the surveyor at the time of issuance of the General Condition/Valuation Report in January, 2008, that the plates were replaced, however, the Hon'ble Commission may consider the fact that the complainant has again allegedly replaced the plates in August/September, 2009. It is therefore significant to consider the actual condition of the bottom plates which are allegedly required to be replaced within short span.
5.10 Ld. Adv. for the opponent submitted that after due verification it was further found that Abul Aslam S.K, Master of the barge 'Pankaj Sagar' was not possessing any valid certificate of competence permitting him on inland vessels within the Gujarat State. It is submitted that the said Master claimed to have certificate of competency but said certificate did not have any endorsement indicating validity of said document for working in the State of Gujarat. Thus, the manning of the barge was improper which renders the barge as unseaworthy.
5.11 Ld. Adv. for the opponent argued out that the barge has always carried less than her carrying capacity of 500 tons. It is reported on the date of casualty to the barge that it was carrying only 375 M. Tons of cargo as declared in the boat note. Thus, there was no possibility that the barge could sink as a result of development of crack in hull structure due to stress on account of excessive loading.
5.12 Ld. Adv. for the opponent submitted that the surveyor, after obtaining appropriate information and as admitted by the complainant that RUTVIK CC-08-12 Page 12 of 24 weather condition in the morning of 6.12.2009 prevailing at Bedi encourage was normal. The crew members of the barge had also confirmed that their barge was double banked on other barges on Tar board side of the vessel and due to calm state of sea and normal winds, the barges were not rolling, pitching or pounding and/or not banging bodily against each other. Thus, the possibility that the barge sunk as a result of development of any leakage due to contact/raging damage were also ruled out.
5.13 Ld. Adv. for the opponent argued out that the opponent, after receipt of the final survey report scrutinized the entire report and repudiated the claim on 15.2.2011. The opponent has communicated the said repudiation to the complainant. The survey report is self explanatory which has given all reasons for repudiation of the claim. It is further submitted that the report of the surveyor is based on sound reasoning. The surveyor has prepared the report after checking all the documents and information gathered during the processing of the claim. In such facts and circumstances of the matter, there is no deficiency in service or unfair trade practice on the part of the opponent as alleged by the complainant. Thus, the honourable State Commission has no jurisdiction to try and decide the complaint in question under the Consumer Protection Act, 1986.
5.14 Ld. Adv. for the opponent submitted that the complainant has sought to produce a Loss Assessment Report cum opinion of Shri Bhaskar G. Bhatt dated 12.12.2012. It is submitted that as per the provisions of the RUTVIK CC-08-12 Page 13 of 24 Insurance Act, 1938 read with Insurance Surveyors and Loss Assessors Regulations, appointment of 2nd surveyor is illegal and such practice has been depreciated by the Hon'ble Apex Court. It is submitted that the said surveyor has not examined or verified the barge in question. He is not qualified to issue any such opinion. Neither said surveyor has any such licence as has been obtained from IRDA. Thus, the report of the said surveyor has no value in the eye of law. It is submitted that said surveyor has further alleged that he has collected the information that one Mr. Dipakbhai Panjari had replaced worn out plates of bottom, cargo hall, plates of junction of side wings and wherever required to be replaced were changed with new welded joints. It is submitted that the said surveyor has not collected and produced any document to support such claim of stranger Mr. Dipak Panjari.
5.15 Ld. Adv. for the opponent argued out that there is neither any clause for payment of interest as prayed for by the complainant nor there is any clause of for payment of professional fees for opinion of expert surveyor as the same is contrary to the provisions of the Insurance Act, 1938 read with IRDA Regulations.
5.16 Ld. Adv. for the opponent concluded that In view of the above, the complainant has failed to prove that there was deficiency in service or unfair trade practice on the part of the opponent insurance company and therefore the present complaint requires to be dismissed with cost. In support of argument Ld. Advocate for the opponent has submitted following judgments.
1. I(2014)CPJ 369 (NC), Sunanda kishor bhad v. United India Ins. Co. Ltd. RUTVIK CC-08-12 Page 14 of 24
2. IV (2021) CPJ 1 (SC), Khatema Fibers Ltd. v. New India Assurance Co. Ltd.
6. Merit of the Case:
I have gone through the record of this case and rival contention submitted by both the parties.
It is an averment of opponent insurance company that present Complaint is not maintainable under the Consumer Protection Act as the services of the Opponent have been engaged for commercial purpose since the Complainant as per its own admission, is engaged in the business of large scale carriage of goods in their barges and obtained insurance policy for such purpose is for protecting the property or interest of commercial organization. Thus, the purpose of insurance policy is to protect the interest of a commercial organization. Hence, services of insurance in such cases are part of commercial activity. Further from the record produced in this case it is clear that opponent insurance company has relied upon survey report dtd. 24.01.2011 of M/s. G.P. Dave & Sons for rejecting the claim. In repudiation letter following main reasons are given:
(a) Thickness of bottom plates inn Way of portside Buoyancy tanks was thinned down to 3.2 mm to 6.5 mm as against the normal thickness of 10 mm. There is no evidence on record that such plates were changed to restore the normal thickness to keep the barge in sea worthy condition RUTVIK CC-08-12 Page 15 of 24
(b) Mr. Abdul Aslam working on board of Barge "Pankaj Sagar" did not possess any valid certificate of competency to work in the state of Gujarat and no certified engine driver was on board 6.1 Hence looking to the above, following points are required to be decided to adjudicate this matter:
(i) Whether complainant falls in the definition of 'consumer' under C.P. Act or not?
(ii) At the time of sinking, whether the thickness of bottom pates of Barge were less than 10mm?
(iii) Whether barge was operated by qualified master and engine driver at the time of sunk?
6.2 As far as point (i) above is concerned it is an averment of opponent insurance company that the insured is not a consumer within meaning of section 2(1)(d) of consumer protection act. Since it is dealing in the commercial activities, however the argument of opponent insurance company has no merit in view of the findings of Hon'ble Supreme Court in Harsholia Motors vs. National Insurance Company I (2205) CPJ 27 (NC).
The Hon'ble Supreme Court in Harsholia Motors case held as under:
"Applying the aforesaid test we have to find out two things:
(i) whether goods are purchased for resale or for any commercial purpose?
Or
(ii) (ii) whether the services are availed for any commercial purpose?
Therefore, the two fold classification is commercial purpose and non- commercial purpose.
If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Such illustration could be that a manufacturer who is producing one product A', for such production he may be required to purchase articles, which may be raw-material, then purchase of such RUTVIK CC-08-12 Page 16 of 24 articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air- conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the consumer forum under the Act. Similarly, a hospital which hires the services of a medical practitioner, it would be a commercial purpose. But, if a person avails of such services for his ailment it would be held to be not a commercial purpose. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose. In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit.
In the light of the above judgment of Hon'ble Supreme Court in the instant case when insured has taken policy only for indemnification of actual loss and it is not intended to get profit and hence in the opinion this commission complainant is a consumer within the meaning of section 2(1)(d) of act.
6.3 As far as point (ii) above is concerned it is an averment of opponent insurance company that the thickness of bottom plates inn way of port side buoyancy tank thinned down from 3.2 mm to 6.5 mm as against the normal thickness of 10 mm. and there after there is no any evidence on record that such plates were changed to restore the normal thickness. In this regard Ld. Adv. Mr. Shah has drawn attention of this commission to the copy of ultra sonic testing report No. 408 dtd. 25.09.2009 of M/s. Creative Services Surat which is on record at page no. 207-210 and that was issued after completion of necessary repairs. In this report it is mentioned that the thickness of bottom plates were between 6.2 mm to 11.9 mm which were normal.
RUTVIK CC-08-12 Page 17 of 24 Hence looking to the above document, it is very clear that at the time of accident on dtd. 06.12.2009 bottom plates thickness were between 6.2 mm to 11.9 mm which were normal 6.4 Further for the insurance evaluation purpose M/s. G.P. Dave and sons has submitted survey report of said barge on 25.01.2008 which is on record on 171-174 wherein at page no. 174 observed as under:
No. S/3452-VA-04/2008 The self propelled cargo barge "Pankaj Sagar" is primarily being employed for transportation of dry bagged/bulk cargo from shore to ship and visa verse and it is on the whole in a satisfactory condition of upkeep and maintenance. We are of the opinion that the Steel hull structure of the mechanized barge M.V. "Pankaj Sagar" has not deteriorated. The engines of the said barge are also in serviceable condition and having operational efficiency. It is also our opinion that the self propelled Cargo Barge "Pankaj Sagar" is fit in all respect to withstand ordinary perils associated with inland Waterways. In our opinion, that the risk is acceptable.
:-V A L U A T I O N -:
Taking in to consideration the above facts as also the physical condition/status of the barge as earlier brought out by us, its age, price escalation existing market rates for a barge of similar size and construction and also the freight earning capacity of the barge, we estimate the present market value of self propelled cargo barge M.V. "Pankaj Sagar", registration No. B.P.1382 in seaworthy condition, at around Rs. 45,00,000.00/- (Rupees Forty Five Lacs Only). The barge can safety be insured/reinsured at the same value as under: STEEL HULL AND SUPER STRUCTURE............Rs. 35,00,0000.00/- MACHINERY & ACCESSORIES.........................Rs. 10,00,000.00/-
TOTAL...............Rs. 45,00,000.00/-
We have taken a total of 10 Nos. Colored Photographs of the aforesaid above Craft, These Photographs, as taken by us, are attached as "ANNEXTURE" to the Original of this Survey Report.
Issued without prejudice. The findings mentioned above are for the time and place of our inspection/attendance. This report is prepared and issued to ascertain GENERAL CONDITION of the craft only for obtaining Hull and machinery insurance cover from the underwriters. This report is not intended for any purpose other than INSURANCE EVALUATION. Looking to the above document it is crystal clear that steel hull structure of the mechanized barge "Pankaj Sagar" has not deteriorated and it was fit in all respect to withstand ordinary perils associated with Inland waterways 6.5 Moreover report of New vest cost diving services dtd. 12.12.2009 is also on record at page no. 73 wherein this company has carried out diving job to inspect the condition of the barge and submitted report to the complainant. In this report following details are shown:
A. Inspected all manhole cover and found in place B. Propeller bush in good condition.
RUTVIK CC-08-12 Page 18 of 24 C. We have not found any damage of bottom plate.
D. About 1.0.M (Fwd) & 1.5M (Aft) under the sea mud.
E. The barge in empty condition.
F. Present Barge position : Top : Port side / sea " Stbd Side As shown above, in the said report it has been mentioned that "we have not found any damage of bottom plate" Thus this report clearly shows that there was no any damage of bottom plate.
Further, copy of 'certificate of survey' is also on record. This certificate establish that the vessel was tested by approved agency who had performed NDT for measuring hull thickness and it was accepted by surveyor in charge of Gujarat Maritime Board who had issued certificate as vessel is fit to carry goods and this certificate was valid up to 05.03.2010.
Thus in the opinion of this commission, the above documents clearly proves that bottom plates of Barge were in normal condition and the observation of the surveyor M/s GP Dave & Sons that thickness of plate thin down to 3.2 mm to 6.5 mm and that is responsible to put barge unseaworthy condition is only presumption and it cannot be accepted. 6.6 As far as above (iii) point is concerned it is an averment of opponent insurance company that as per section 31 of Inland (Motor) Vessel Act 1917, certificate of competency/license shall have effect throughout state in which it is granted and hence certificate of competency issued by West Bengal Government to Mr. Abdul Aslam is not valid in Gujarat. In this matter Ld. Adv. Mr. Shah has drawn attention of this commission to the certificate issued by Gujarat Maritime Board(Form-B) which is for tindel/Master registration wherein at page 32 name of Abdul Aslam is shown with his address and that entry has been made on 31.03.2008. RUTVIK CC-08-12 Page 19 of 24 Thus the above document clearly establish that certificate of competency which was issued by west Bengal government is accepted by Government of Gujarat and hence Gujarat Meritime Board has mentioned name of Abdul Aslam in 'Form B'. Therefore in the opinion of this commission when name of the Abdul Aslam was shown in the Master registration form then it is crystal clear that Mr. Abdul Aslam SK was working as Master on "Pankaj Sagar" and was possessing valid certificate of competency permitting him to work on Inland vessels in the territory of Gujarat State.
Over and above 'certificate of surveyor' issued by Government of Gujarat issued under act of 1 of 1917 for Inland (Motor) vessel is also on record in which following has been shown PORT OF GRT/NRT M/E BHP NAME OF MASTER & REGISTRY & ENGINE DRIVER O.NO WITH NO. & GRADE PF CERTIFICATE BEDI PORT GRT:- CUMMINS 235*2= (01) MR. ABDUL ASLAM BP-1382 SK 2ND CLASS MASTER.
466.19 TONS 470BHP/ CERTIFICATE NO:-0261.
(02) MR. TAJUL QAMAR. 1ST
NRT:- 1800RPM CLASS E.D.(M) CERTIFICATE
NO:-07715.
268.16TONS
In this certificate, name of Master and Engine driver are shown and this certificate is issued by Gujarat Maritime Board. Hence in the opinion of this commission this certificate is also establish that competency certificate of Abdul Aslam issued by West Bengal is accepted by Gujarat Maritime Board to work on inland vessels in the territory of Gujarat state.
RUTVIK CC-08-12 Page 20 of 24 6.7 Further copy of Harbor craft license of "Pankaj Sagar" is also on record at page no. 36-40 wherein it has been shown that license was renewed from 29.05.2009 to 28.05.2010.
Moreover copy of 'certificate of registration' of Motor vessel under section 19F of Indian Vessel Act 1917 (1 of 1917) is on record at page no. 45. This certificate was issued on 13.01.2008 before accident and in this certificate following has been shown:
This is to certify that in accordance with section 19F of Inland Vessel Act, 1917(1 of 1917), the registration requested for vessel MV. Pankaj Sagar has been approved by this office. Therefore Gujarat Board hereby Grants and Authorizes certificate Registry to the vessel whose particulars are given below.
Thus above two certificates clearly establish that the said "Pankaj Sagar"
was in good and in seaworthy condition and all legal requirements were duly complied with. Further the Gujarat Maritime Board, Bedi Port has also issued valid permission like 'Harbor craft license' and also issued 'Tindel/Master registration certificate' according to law only after verifying necessary details/certificates. Therefore on the basis of all these certificates issued by Government of Gujarat the complainant was authorized to operate barge in Inland water of Gujarat state as barge was in Sea worthy condition.
6.8 In view of the above discussion, it is crystal clear that surveyor appointed by insurance company has not considered various documents i.e. copy of ultrasonic report dtd. 25.09.2009 showing thickness between 6.2mm to 11.9mm, report of New Vest Cost diving Services and further surveyor has wrongly and knowingly not considered Master's license. As per documents submitted in this matter, it is clear that at the time of RUTVIK CC-08-12 Page 21 of 24 sinking, the barge was operated by a qualified master and engine driver and it was in Sea Worthy condition Thus reasons given by surveyor for the sinking of barge are not proves and therefore it is believable that cause of sinking of barge is accidental in nature.
6.9 From the record produced in this case it is clear that opponent insurance company has relied upon survey assessment report of M/s GP Dave & Sons for rejecting the claim but in view of this commission the survey report has to be taken as an opinion.
Hon'ble National Commission in M/s Rajkamal & Co. Vs. United India Insurance Co. has held as under:
"it is for the Insurance Co. to examine the report and the documents produced by the Insured whether the before the surveyor, apply its mind and then come to an independent finding claims of the insured were inflated or not. Repudiation of a claim without such proper application of mind is not justified."
6.10 Ld. Adv. for the opponent insurance company has submitted judgment of Hon'ble Supreme Court in Khatema Fibers Ltd. vs. New India Assurance Co. Ltd. and argued out that consumer forum cannot subject the Surveyor's report to forensic examination of its anatomy just as a Civil court do but in the instant case surveyors has not considered so many documents and master's license issued by Gujarat Maritime Board and therefore in the opinion of this commission surveyor has not performed his duty and responsibilities in a manner prescribed by the regulations as to their code of conduct:
IRDA has prepared the insurance surveyors and loss assessors (Licensing, Professional requirement and code of conduct) Regulation wherein duty of surveyor is shown in section 13 which read as under: RUTVIK CC-08-12 Page 22 of 24
"13. (l) A Surveyor and loss assessor shall, for a major part of the working time, investigate, manage, quantify, vali- date and deal with losses (whether insured or not) arising from any contingency, and report thereon, and carry outthe work with competence, objectivity and by strictly adhering to the code of conduct expected of such surveyor andprofessional integrity loss assessor. (2) The following, shall, inter alia, be the of a surveyor and lossduties and responsibilities assessor:- (ii) maintaining confidentially and neutrality without jeopa rdizing the liability of the insurer and claim of the insured;-14- Hence looking to the above, regulation in the instant case also surveyor has prepared his report without considering important documents and therefore in the opinion of this commission surveyor has not performed his duty as per regulation.
6.11 In view of the above discussion it is the considered opinion of this commission that after receiving the survey report the insurance company should have considered all the facts and documents and then decided the insurance claim, but this commission believes that the insurance company has failed to do so and shown deficiency in service hence complainant is entitled to get claim amount.
6.12 As per record of this case, complainant has appointed Mr. Bhaskar Bhatt as an expert and obtained survey report but there is nothing on record that Mr. Bhatt is IRDA approved surveyor and hence in the opinion of this commission this report of Mr. Bhatt has no value in the eye of law and hence complainant is not entitled to get amount of Rs. 64,361/- Survey fee.
7. In this case, before accident, for the valuation purpose, GP Dave & Sons has prepared survey report of Barge, and shown Rs. 45 lacs valuation of the said Barge. As salvage of Barge not obtained in this matter and hence RUTVIK CC-08-12 Page 23 of 24 looking to the facts of this case, in the opinion of this commission if opponent insurance company pay Rs. 45 lacs to the complainant as per valuation report, on total loss basis with 9% interest then it would meet end of justice in this matter and therefore following final order is passed.
ORDER
1. Present Complaint No. CC.08 of 2012 is Partly Allowed.
2. Opponent Insurance Company is ordered to pay Rs. 45,00,000/- (Rs.
Fourty Five Lacs Only) to the complainant with 9% interest from date of filing of complaint till its realization.
3. Opponent insurance company is ordered to pay Rs. 10,000(Rs. Ten Thousand Only) to the complainant as cost of complaint & bear its own cost if any.
4. Opponent Insurance Company shall comply with this order within 60 days from the date of this order.
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 31st May 2023 [Dr. J.G. Mecwan] Presiding Member.
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