State Consumer Disputes Redressal Commission
The Branch Manager,New India Assurance ... vs A. Siluvaidhasan,S/O. Alphonse, ... on 20 January, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.A.K. Annamalai, M.A., B.L., M.Phil., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER F.A.832/2010 [Against order in C.C.16/2006 on the file of the DCDRF, Kanyakumari District @ Nagercoil] DATED THIS THE 20th DAY OF JANUARY 2012
1. The Branch Manager, | Appellants / 1st & 2nd Ops.
New India Assurance Co. Ltd., | Pillars Gate, Opp: to Anna Salai, | Balamore Road, Nagercoil 629 001, | Kanyakumari District. | |
2. The Divisional Manager, | New India Assurance Co. Ltd., | Divisional Office, No.4113, Victoria Road, | Tuticorin 628
001. | Vs. A. Siluvaidhasan, | Respondent/Complainant S/o. Alphonse, | 15/45, Port Street, Colachel, Colachel Post, HoH | Kanyakumari District. | The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.5 lakhs the total loss as per the agreed value policy sue and labour charges with 12% interest from the date of expiry of 3 months from the date of accident till realization of the award amount, award all incidental expenses incurred by the consumer including the loss of fishing income and for the mental agony and suffering, which is estimated as Rs.2 lakhs and to pay the cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.19.07.2010 in C.C.16/2006.
This appeal coming before us for hearing finally on 05.01.2012, upon hearing the arguments of the either counsel and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants /1st & 2nd Ops : M/s.N.Vijayaraghavan, Advocate.
Counsel for the Respondent/Complainant : M/s. A.R. Nixon, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The respondent/complainant, who is the owner of the fishing vessel called Pushpa Malar bearing Registration No.ALP.3189, had insured the same for Rs.5 lakhs under the Policy No.720505/22/02/00020. The said Vessel while in the fishing operation at Kerala waters, sunk due to an accident on 27.8.2003 and its crew members who had jumped out of the Boat, where rescued by a Boat called Selvial and the crews who were injured also treated in the hospital.
3. The attempt of the complainant for the salvage of the boat failed, and the accident was informed to the Insurance Company who had deputed a Surveyor to settle the genuine claim, but despite the clarification submitted by the complainant even to the second surveyor, after a lapse of one year and seven months, the claim was repudiated without assigning proper reason though the second surveyor appointment is not maintainable.
4. The opposite parties without seeking further clarification, arbitrarily and negligently taking a decision, repudiated the claim, thereby caused deficiency in service, practicing unfair trade practice. The opposite parties have no right to repudiate the genuine claim, since the policy was alive under which they have given an undertaking to indemnify the damage. In view of the deficiency committed by the opposite parties, the complainant is constrained to file a case, seeking direction to pay a sum of Rs.5 lakhs, on the basis of total loss, including incidental expenses.
5. The opposite parties admitting the insurance coverage for the Vessel belonged to the complainant, resisted the case as follows:
The opposite parties after receiving a telegram, arranged for a survey through Cap.Krishnan & Co., who visited the spot and conducted a detailed enquiry, submitting a report on 29.12.2003. As per the Survey Report, the cause of mishap was not under the circumstances stated by the complainant and there were contradictions and inconsistence. On the date of the alleged accident, there was no weather warning or any peril of the Sea and therefore, the Vessel did not sunk due to any accident as stated by the complainant. The Discharge Card issued or obtained for crewmen also did not reflect the accident or total loss of the vessel. As per the documents available, the complainant has not paid the required charges for fishing off Cochin since it is the practice of the Port, the toll will be collected for the days on which the boat calls at the Port with catch. The Chief Engineer, CPT has informed that the complainant had paid the toll for 22.08.2003 on 4.9.2003.
6. The investigation entrusted to Cap. Krishnan & Co., though submitted a report on 3.1.2005, there was no second survey and it was only an investigation, which is different survey. The complainant has not submitted the required explanation in time and the Insurance Company was unable to investigate the claim to save the public Financial Institution. Therefore, based upon the materials collected by the Investigator and Surveyor as per the terms and conditions of the policy, the claim was repudiated, specifically on the basis of various discrepancies in the claim and therefore, the complainant is not entitled to any amount much less the assured amount, praying for the dismissal of the complaint.
7. The District Forum perusing 27 documents, produced on behalf of the complainant as well as 8 documents placed before it by the opposite parties, evalued the same, supported by affidavits, statements given by the Crewmen etc., which brought to surface, that the appointment of second surveyor though called Investigator is not acceptable that the complainant had proved the sinking of the Vessel, which was not disproved by the appointment of any competent authorities, that though there was no Sea peril on the date of accident since it is the case of the complainant that the accident had occurred due to breakage in the stuffing box, resulting water entering into boat, causing total loss and despite the proof, since claim not settled that should be construed as deficiency in service. In this view, a direction came to be issued to pay a sum assured namely Rs.5 lakhs, with interest thereon at 6% per annum from the date of complaint with costs of Rs.1,000/-, as per the order dated 19.07.2010, which is impugned by the opposite parties, on various grounds.
8. The complainant claiming, that during the currency of the policy, his fishing vessel Pushpa Malar bearing Registration No.ALP.3189 had sunk at Kerala water due to an accident on 27.08.2003, has filed the case for the sum assured on the basis of total loss since the claim was repudiated under Ex.A18, which reads The Survey report/investigation report and found that various inconsistencies in the claim and your failure to prove the genuineness of the claim, the competent authorities of our company decided to repudiate the claim. The opposite parties in the Written Version in Para 2, have admitted about the insurance of the Mechanized Fishing Vessel Pushpamalar for the value of Rs.5 lakhs, covering the risk of constructive total loss. Though such a policy was given, for which, premiums were collected periodically, based upon valuation report, as seen from Ex.A3, the opposite parties in a way disputing the accident, creating doubt based upon the alleged inconsistency as pointed out, repudiated the claim, compelling the complainant to come to the Consumer Forum with success, resulting this appeal. In view of the admitted position, regarding insurance, ownership, it is not necessary for us to go into detail further.
9. The main dispute appears to be the accident said to have taken place on 27.08.2003. In the repudiation letter, it is not the case of the opposite parties, as pointed out, there was no accident, there was no total loss by the Vessel sinking in the Sea, whereas, it was a case of the opposite parties, the survey report and investigation revealed various inconsistence in the claim as well as the genuineness of the claim is not proved.
The survey report namely Ex.A3 does not disclose that there was no accident, though it is said, the Vessel was not lost under the circumstance stated by the insured. It is not the finding of the surveyor or the Investigating Officer under Ex.A3 and Ex.A4 that there was no total loss, and in fact pointing out certain discrepancies in the statement given by the crewmen, as well as taking into account improbability namely according to the Surveyor and Investigating Officer, the injuries could not have occurred to the person, due to the mishap, entertained doubt that the vessel was not lost as claimed by the complainant, taking into account the further fact, there was no bad weather, forgetting the fact, it is not the case of the complainant that there was any bad weather on the date of the accident, that alone caused the loss of the vessel. Therefore, in this case, it is not fare on the part of the opposite parties, to repudiate the claim on the ground that as per the weather report given by the authority concerned, since there was no bad weather, could not have lost the vessel, the fact being, the Vessel could sunk for other reasons also, which appears to be the case of the complainant here.
Therefore, as recorded by the District Forum, we are unable to concur with the conclusion arrived by the Surveyor as well as Investigator though they are one and the same namely Cap. Krishnan & Co., as rightly held by the District Forum, when the first surveyors report is available, the Insurance Company has no authority, has no right to appoint another surveyor, naming them as Investigator and if at all when they felt that the first survey report is not acceptable, they should have reported to the authority concerned under the Insurance Act, who alone is competent to appoint another surveyor, which is the settled procedure not followed in this case. Therefore, based upon the observations given by the Surveyors in Ex.A3 and Ex.A4, we feel, the denial or repudiation to settle the claim is not proper and if it is made out, the complainant had lost his boat by accident in the Sea, then on the basis of the total loss, Insurance Company is liable to pay the sum assured.
10. According to the complainant, when the Vessel Pushpamalar was in fishing operation at Kerala water, it sunk due to an accident. Nature of the accident is not explained, in the complaint or in the affidavit. After the accident [alleged] the Serang namely the complainant had given a Note of Protest on 30.08.2003, informing about the accident, wherein, it is stated Stuffing box was found broken and inflow was controllable, further informing despite their earnest attempt in their endeavor to block stuffing box also failed, leading to irretrievable position, followed by crews jumping, who were saved by M.B.Selvial. The persons who were in the boat by name Prabhakar, Siluvai, Jaypal and Michael Adima have filed a sworning affidavit, notarized by the competent authority, in which, they have picturised the accident vividly, informing further, how they were brought ashore on 28.8.2003 early morning, out of 5, three were admitted in the hospital, for that also, affidavits were filed as seen from Ex.A8 and Ex.A9. After the accident, as evidenced by Ex.A10, they were attempted to retrieve the salvage and the same failed though a sum of Rs.8,000/- said to have been incurred, which is also supported by Ex.A11.
11. The complainant who is a serang has given a statement to the Police informing that they had been to fishing on 25.8.2003 and when they were in deep sea on 27.8.2003 during night hours 7.30 p.m., they heard noise inside the boat and inspection revealed, the damage in the stuffing box resulting sinking of boat. Thus, when there was an accident, the complainant had taken all possible steps to inform the same, to the authorities including furnishing or recording statements also. Not only that, he has also informed to the Port Office, Alleppey Port, requesting the cancellation of the registration, which was admitted as seen from the Certificate-Ex.A13, which would reveal that this vessel was registered in Alleppey Port on 24.6.2003 and the same was cancelled as the Vessel reported sunk in the sea, following due to failure of the Engine on 28.8.2003.
12. The incident or accident had taken place on 27.8.2003 to this Vessel, was registered, in the Alleppey Port on 24.6.2003, that is just two months prior to the date of the incident.
Therefore, the learned counsel for the appellants would contend that this document must be a concocted document and if the claim was genuine, they should have registered the vessel prior to that, in which submission, we are unable to find any logic. Probably, when they have utilized the services of the Alleppey Port, they have registered though originally registered at Colachel Port, which is not prohibited since no rules was brought to our notice, this kind of registration is prohibited or barred under any law. Therefore, doubting about the registration, just prior to two months in Alleppey Port, we cannot say, all the documents are created for the purpose of this claim, ignoring the fact, the opposite parties, also admitting the valuation, collecting premium, issue policies periodically from 1999 onwards, since the boat was registered at Colachel also and at the complainant requested, registration to be cancelled, which was carried out on 14.10.2003 as evidenced by Ex.A14 supported by Ex.A1. In all these documents, the loss of the vessel by sinking is reported as 27.08.2003.
The capacity to drive the boat by Serang namely the complainant is vouch safed by Ex.A15 not challenged and in fact it is not the case of the opposite parties, that the vessel was sailed by incompetent person, resulting this accident.
13. Immediately after the incident on 28.08.2003, telegram was given as evidenced by Ex.B2 informing that the vessel Pushpamalar sunk at 40 fathoms of Cochin on 27.08.2003 seeking arrangement of survey. Therefore, the claim was lodged as seen from Ex.A16 wherein also, the sailing of the vessel on 25.8.2003 and sunk of the vessel on 27.8.2003 is reported, claiming total loss of Rs.7 lakhs, including salvage expenses of Rs.16,000/-.
14. The Marine Surveyor appointed by the opposite parties, requested some clarification about the registration of the vehicle, since the same was registered at Neendakara Port, Cochin Port and Alappuzha Port, further informing that the registration was irregular. Though the registration was irregular, admittedly at the time of the incident on 27.08.2003, it was registered at Alleppey Port and for the irregular registration as alleged, explanation was given by the complainant under Ex.A20 informing that every year, he has paid the insurance amount after getting valuation certificate, from the licensed surveyor. In the explanation itself, it is said that due to fishermen unrest in Kerala, he has registered the fishing boat at Azhapuzha Fisheries Office on 24.6.2003 and obtained Cochin Fishing Harbour new number, thereafter it appears, the Surveyor had sought some clarification, as per the communication dated 19.5.2004, for which also, the complainant has submitted the available toll paid receipts, during the period, the vessel was fishing at Cochin, as well as Colachel for the period from 1997 to 2006, in addition, expressing his willingness to produce the crew members of the rescue vessel M.B.Selvial along with all documentation of the rescue vessel at Cochin. Further submitting the attested copy of the documents also and this letter exhibited as Ex.A21 is not challenged. Therefore, if the Insurance Company had any genuine doubt, as per the terms and conditions of the policy, they should have issued notice, to the complainant as well as the crewmen of rescue vessel namely M.B.Selvial, for appearance before the surveyor or the Investigating Officer who ought to have recorded the statements. But, as seen from the records, it seems, they have not summoned the crew members or examined the crew members of the misshaped boat also for clarification.
On the other hand, an attempt was made for fishing in the troubled water, that the injury sustained by some of the crewmen, could not have occurred, as pleaded that there is no material, the toll is collected from fishing vessel, forgetting only on the basis of the arrival with catch toll will be collected, as if, there are no discharge or arrival etc., It is also explained that when the fishing vessel returns with catch, toll is collected and therefore, the non-production of receipts for payment of toll charges cannot be taken as if that the vessel was not sailed or met with an accident on 27.8.2003, this is in accordance with the certificate produced by the opposite parties namely Ex.B4.
15. In the Certificate available dated 15.03.2004, it is said, in the Port, toll is collected only for days on which the boat calls at the Port with catch, thereby indicating the non-payment of toll on the date of the accident or prior to the date of accident will not take us to anywhere, as if the vessel could not have sailed near Cochin Harbour. The Boat was seaworthy till 13.8.2003, as seen from the toll collection by Cochi Port. It is not the case of the opposite parties, that the boat is available elsewhere.
Therefore, taking into account the statement given by the crewmen of Pushpamalar and the cancellation of the registration certificate based upon the accident and sinking of the vessel, we conclude that the case of the complainant regarding the total loss of the vessel must be correct, and unfortunately finding fault in the statements, describing the same as discrepancies, giving benefit of doubt to the Insurance Company, Surveyor has filed the report, which was accepted unfortunately by the Insurance Company, repudiating the claim, which should be construed as deficiency in service. In this case, even there is no alternative case, as if the boat is available, Investigator has not made out a case of no accident should have occurred and this being the position, we find no reason to discard, the claim of the complainant, who had insured a seaworthy vessel by paying premium, based upon total loss. The District Forum considering all the above facts and circumstances of the case, has rightly came to the conclusion, accepting the case of the complainant, in passing the award, which does not warrant to be disturbed.
16. The learned counsel for the appellants invited our attention to certain decisions of the National Commission and those decisions are all not applicable on facts. In fact, in the decision reported in III (2006) CPJ 79 (NC), Driver of insured and that of rescue boat, not produced before investigator, came to a conclusion based upon contradictions that incident premeditated or pre-determined plan, not accident, justifying the repudiation, which is not the case before us.
As pointed out by us, when the doubts were raised, the complainant assured to produce the crewmen and the same was not availed utilized by the Investigator, and therefore, on fact, this ruling is not applicable. Further, the Investigator has not recorded any statements and therefore the statements of the members of the crew cannot be described as prevaricating to create a doubt as held by the State Commission of Andhra Pradesh in Balasadi Kanakarao Vs. United India Insurance Co.
Ltd., reported in 2003 (2) CPR 299.
17. No case was projected, as if, the claim is bogus though genuineness is doubted and therefore, the decision in III (2006) CPJ 211 (NC) is not applicable. Thus, analyzing the facts on hand as well as the submission of the learned counsel for the appellants and by going through the findings of the District Forum, we are of the considered opinion, there was no error, either on fact or on law in the decision rendered and in this view, we refrain ourselves from disturbing the finding, confirming the order.
18. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Nagercoil, in C.C.16/2006, dated 19.07.2010. No order as to costs in this appeal.
S. SAMBANDAM A.K. ANNAMALAI M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT