State Consumer Disputes Redressal Commission
M/S United India Insurance Co. Ltd., vs V. Datchinamoorthy, on 24 June, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY FRIDAY, the 24th day of June, 2011 First Appeal No.5/2009 M/s United India Insurance Co. Ltd., Repd. By its divisional Manager, Having its Office at no.46, J.N.Street, Puducherry-1. .. Appellant Vs. V. Datchinamoorthy, S/o Vellathan @ Kuppusamy, South Street, Nallavadu & Post, Ariyankuppam Commune, Puducherry. . Respondent (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.5 of 2007, dated 8.12.2008) Consumer Complaint No.5 of 2007 V. Datchinamoorthy, S/o Vellathan @ Kuppusamy, South Street, Nallavadu & Post, Ariyankuppam Commune, Puducherry. . Complainant Vs. M/s United India Insurance Co. Ltd., Repd. By its divisional Manager, Having its Office at no.46, J.N.Street, Puducherry-1. .. Opposite Party BEFORE: HONBLE JUSTICE THIRU J.A.K.SAMPATHKUMAR PRESIDENT TMT. K.K.Ritha, MEMBER
THIRU K.ELUMALAI, MEMBER FOR THE APPELLANT:
Thiru B.Mohandoss, Devasundari, S.Lalitha, K.Ilango, P.Manivannan, K.Velmurugan, Geetha & S.Manopriya Advocates, Puducherry.
FOR THE RESPONDENT:
Tvl A.Viveganandane & S.Agilan, Advocates, Puducherry O R D E R (By Honble Justice President) The appeal is filed by the Opposite Party/Insurance Company against the order of the District Forum, Puducherry in C.C.No.5/2007, dated 08.12.2008 granting partial claim of the complainant.
2. The case of the complainant is referred hereunder:
The complainant is a fisherman and owner of a motor fishing boat bearing registration No. P.f.P.246 Engine No.ALMU 400/9 LVEM-055355 and gear box No.MH-001693 and name of the boat is SRIL VALLATHAMMAN THUNAI. The said boat was hypothecated at State Bank of Hyderabad, Puducherry Branch, No.198, Kamaraj Salai, Pondicherry-11 and the same was duly registered at the office of Fisheries and Fishermen Welfare, Government of Puducherry.
3. The complainant had insured the boat at the opposite party on 08.12.2004 under Policy No.11701/22/04/00001 by paying a sum of Rs.51,066/- under the scheme of MARINE HULL Insurance Policy. The policy period was 8.12.2004 to 7.12.2005. Again, the policy was renewed for the period between 8.12.2005 to 7.12.2006 under Policy No.011701/22/05/00001.
4. Moreso, the boat was registered with Pondicherry Motor Boat Owners Association, Pondicherry. The boat was tied at jetty the Fisheries Department, Thengaithittu, Pondicherry.
5. While so, on 26.12.2004, the boat tied at the Fisheries Department, Thengaithittu, Pondicherry, swept and washed away in the Tsunami to the distance of 2 kilometres from Jetty into wet land of Thengaithittu village. The boat was extensively damaged in Tsunami devastation and the same was timely intimated to the opposite party. Immediately opposite partys office surveyor also visited the spot and taken account of damages caused to the boat in Tsunami.
6. On 27.01.2005, the complainant submitted the claim form through his banker State Bank of Hyderabad, Pondicherry along with necessary documents to the opposite party which included the estimation of the damage to the boat. In spite of repeated reminders, the opposite party/insurance company had not settled the claim. Hence, the claim petition.
7. The objections of the opposite party is referred hereunder:
The complaint deserves dismissal for not impleading the State Bank of Hyderabad, Puducherry Branch as a party. The opposite party took prompt steps to process the claim made by the complainant in accordance with the terms and conditions of the insurance policy concerned. It deputed Messrs S.Wilson and Company, Surveyors and Investigators to inspect the insured vessel and submit report on damage to the same. The Surveyor Mr.Wilton Rollance inspected the boat on 05.01.2005 and subsequently submitted report dated 31.03.2008 stating among other things that the loss to the insured boat was caused by the Tsunami waves that hit the Eastern Coast of India on 26.12.2004 as a result of a severe earthquake which hit the Cost of Summetra. As per his report, the damage to the vessel was assessed at Rs.2,89,669/-
8. The Government of Puducherry had paid a sum of Rs.4,50,000/- to the Complainant as compensation for retrieval of the boat and repair works for hull and machinery for seaworthy condition.
9. The complainant had availed the benefit of compensation given by the State to the extent of Rs.4,50,000/- which is more than the loss suggested by the Surveyor which is only to the tune of Rs.2,89,669/-. However, the opposite party estimated the damage caused to the boat to the tune of Rs.1,09,670/- which fact was informed to the Branch Manager, State Bank of Hyderabad and advised him to settle the claim in this regard.
10. Though the complainant was well aware of the offer made by the opposite party, he had not come forward to settle the claim.
11. As per the marine hull insurance policy conditions, the amount insured of Rs.7,00,000/- (Rs.4,60,000 and Rs.2,40,000/- towards hull and machinery respectively) can be paid only for total loss and constructive total loss. It is not so in this case. Hence, the claim is liable to be rejected summarily.
12. More so, there was no delay on the part of the opposite party in processing the claim and settling the claim. Whereas the complainant had not approached the opposite party to accept the offer made by them to settle the claim. There is no merit in the claim. Hence, the petition is liable to be dismissed.
13. Two witnesses examined and seventeen exhibits marked on the side of the complainant.
14. One witness examined and thirteen exhibits marked on the side of the opposite party.
15. The District Forum after analyzing both oral and documentary evidence placed in this case, found that the complainant is entitle to only partial claim and accordingly passed the order in the following manner:
Claim Award
1. Rs.7,00,000/- with 18% interest towards Rs.2,89,669/- with 12% p.a. from Damage to the boat 27.1.2005 till date of realization.
2. Rs.30,000/- with 18% interest towards -NIL_ excess payment
3. Rs.5,00,000/- compensation towards -NIL-
mental agony
4. Rs.15,000/- costs of the complaint Rs.3,000/- towards cost of proceedings
16. Aggrieved by the order, the opposite party/Insurance Company filed the present appeal.
17. Heard the arguments of both sides.
18. The points for consideration are:
1.
Whether the survey report Ex.R4 dated 31.03.2005 is not binding on the opposite party?
2. Whether the opposite party disputed the genuineness of Ex.R4 at any point of time till the disposal of the case?
3. Whether the order of the District Forum based on Ex.R4 is not in order?
4. To what other relief the parties are entitled?
19. POINTS No.1 to 3:
The complainant had insured his boat at the opposite party/Insurance company on 8.12.2004 under Policy No.011701/22/04/0001 by paying a sum of Rs.51,066 under the scheme of Marine Hull Insurance Policy.
The policy period was 8.12.2004 to 7.12.2005. Again, the policy was renewed for the period between 8.12.2005 to 7.12.2006 under Policy No.011701/22/05/0001. Even during the year 2007, the said policy was renewed. 1) Ex.C2, Ex.C3 = Ex.R1. 2) Ex.C13 & 3) Ex.R12, Ex.C17 are relevant documents to this effect. Ex.R13 is the guidelines for the Insurance Policy. There is no dispute in this regard.
20. While so, on 26.12.2004, the boat tied at the Fisheries Department, Thengaithittu, Puducherry, swept and washed away in Tsunami to the distance of 2 kilometres from jetty into wet land of Thengaithittu village. The boat was extensively damaged in Tsunami devastation and the same was timely intimated to the opposite party claiming compensation for the same. Ex.C5 is the claim form dated 27.01.2004. Thereafter, the complainant sent reminders to the opposite party on two occasions. Ex.C7, dated 09.03.2005 and Ex.C8 dated 15.05.2005 are proof to this effect. In the mean time, complainant had also lodged a complaint to Mudaliarpet Police Station in this regard on 02.01.2005.
Ex.C4 is a proof to this effect. The opposite party did not challenge these facts and in fact admitted the same.
21. More so, the complainant obtained a certificate regarding cost of extensive damage caused to the boat under dispute. Ex.C6 is the valuation certificate dated 27.01.2005.
22. So also the complainant paid a sum of Rs.2,00,000/- to retrieve the boat. Ex.C9 is the certificate dated 15.03.2005 issued by the Fisheries Association to the complainant for having received a sum of Rs.2,00,000/- to retrieve the boat under dispute.
23. Since the disputed boat was under mortgage with State Bank of Hyderabad, Puducherry, the banking authorities taken steps to claim dues from the opposite party, under the valid insurance policy in the name of the complainant. Letter dated 28.04.2005 (Ex.R2) and letter dated 03.08.2005 (Ex.R3) are proof to this effect.
24. In the meantime, the opposite party appointed a surveyor to inspect the boat under dispute and to value the damage caused to the said boat. The said surveyor submitted a report dated 31.03.2005 valuing the damage caused to the said boat at Rs.2,89,669/-. Ex.R4 is the surveyors report dated 31.3.2005. In fact, the opposite party relied on Ex.R4 as his document, not confronting to the contents contained therein.
25. More so, the opposite party sent a letter to the Government of Puducherry and ascertained the compensation amount awarded to the complainant in this regard. Ex.R5 is the letter dated 15.04.2005 sent by the opposite party to the Govt. of Puducherry to ascertain the actual value of damage caused to the boat under dispute. Ex.R6 is the letter dated 09.05.2005 sent by the Government of Puducherry to the opposite party. According to Government of Puducherry, the value of the extensive damage caused to the boat under dispute is Rs.4.50 lakhs. The letter reads as follows:
An amount of Rs.4.50 lakhs was disbursed to the owner as compensation as per decision of the Government of Puducherry for retrieval of the boat and repair works for hull and machinery for seaworthy condition.
In fact, the opposite party relied on Ex.R6 in support of his case without disputing the contents.
26. However, the opposite party without any basis rejected the claim of the complainant and informed the same on 14.09.2005 to the State Bank of Hyderabad, Puducherry Branch. Ex.R7 = Ex.C14 is the letter, dated 14.09.2005 sent by the opposite party to Banking authority. Thereafter, the banking authority informed this fact to the complainant by their letter, dated 27.09.2005 which is marked as Ex.C10.
27. Whereas the banking authority sent a letter dated 14.11.2005 which is marked as Ex.R8 to the opposite party to reconsider the claim of the complainant. In fact, the banking authority issued a lawyers notice dated 15.03.2006 which is marked as Ex.R9 calling upon the opposite party to settle the claim of Rs.7,00,000/- in favour of the complainant.
28. In the meantime, the opposite party obtained a legal opinion dated 16.05.2006 which marked as Ex.R10, to the effect that the claim of the complainant requires settlement as per policy condition. The opinion of the opposite party lawyer was based on the Supreme Court ruling, which is referred hereunder:
1991 A.C.J. 10 Hellen.C.Robello Vs. Maharashtra State Road Transport Corporation Decision:
How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statue has any correlation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course subject to the contract to the contrary or any provision of law.
Legal Opinion:
The case on hand, the obtaining of gain by the insured from the State Government has no correlation with the amount receivable under the contract of insurance. It is on account of fact, the amount receivable under the contract of insurance, is contributory in nature, as the insured has paid the premium On the contrary, the amount received by the insured from the Government is welfare measure, conferred by the Government for which no contribution is received from the owner of the vessel.
The problem on hand may also be analysed from another angle. The principle of equality may be taken as a safer guide at the moment. According to the above principle, there cannot be equal treatment of unequals.
In the matter of granting benefits of indemnity, persons getting compensation from the government, after obtaining any insurance policy by way of payment of premium, should not be treated on par with persons getting compensation from the Government without obtaining any insurance policy. Such a treatment will be considered as arbitrary and against the principles of equality enshrined in Article 14 of the Constitution of India.
For all the reasons stated above, I very earnestly feel that the claim of the insured may kindly be settled in accordance with the terms and conditions of policy as per the norms of your esteemed company.
29. In pursuance of the legal opinion Ex.R10 the opposite party restricted the claim of the complainant and offered to pay a sum of Rs.1,09,670/- as compensation towards the damage caused to the boat under dispute, and thereby diluting the compensation amount referred under Ex.R4 and Ex.R6 which are undisputed documents of the opposite party. Ex.R11 is the letter dated 19.05.2006 sent by the opposite party to the banking authority. On a perusal of Ex.E11, we found that there is no basis in arriving the compensation amount at Rs.1,09,670/- contra to the undisputed documents Ex.R4 and R6. Only on presumption, the opposite party arrived the compensation amount at Rs.1,09,670/-.
30. Since the opposite party failed to settle the insurance claim in spite of repeated letter, the complainant was constrained to issue lawyers notice calling upon the opposite party to pay the compensation amount referred therein. Ex.C11 is the advocate notice, dt. 01.12.2006. Ex.C12 is the acknowledgement of the opposite party. The receipt of Ex. C11 was not disputed by the opposite party. But, the opposite party had not repudiated the claim of the complainant referred in Ex.C11.
31. It is to be noted that the Government of Puducherry arrived at the compensation amount towards the extensive damage caused to the boat under dispute and also towards repair works of hull and machinery for seaworthy condition at Rs.4.50 lakhs. It can safely be presumed that the Government of Puducherry had arrived at the value of compensation only after a detailed investigation of the incident along with Ex.C6 and C9. More so, the opposite party had not disputed the bone fide of Ex.R6. In fact, the opposite party marked the said document in support of his defence.
32. Similarly, it is to be noted that the surveyor appointed by the opposite party to arrive at the value of the damage caused to the boat under dispute, after inspection and verification of records. The surveyor reported, as per Ex.R4 that the value of damage to the boat under dispute was at Rs.2,89,669/-. The opposite party had not disputed the contents of Ex.R4 at any stage . It can easily be presumed that the surveyor had submitted the said report only after taking note of the facts in Exs.C6 and C9. In fact, the opposite party as RW1 had stated in this regard as follows:
.It is true that in Ex.R4 at page No.7 our surveyor assessed the charges for sue and labour charges of Rs.2,12,500/-. It is true that our surveyor allowed Rs.2,89,669/- as net assessed amount..
We intimated the quantum of assessment to the bank but not to the complainant.
33. From the narration of events, we are of the considered opinion that Exs.R4 and R6 are in binding nature against the opposite party and the same can be relied upon to arrive at a just decision of the case under dispute.
34. In this case, the District Forum relied upon Ex.R4 and rendered a finding and allowed a partial claim of the complainant. We do not find any error apparent on the face of the records. The order of the District Forum in awarding partial claim on the basis of Ex.R4 is in order and the same does not require any interference and accordingly the same is confirmed.
34. Hence, we answer these issues against the opposite party.
35. ISSUE No.4:
The narration of events under issues No.1 to 3 exposes the indifferent attitude of the opposite party in settling the claim of the complainant in the following manner:
i) The complainant made a claim application as per Ex.C5 as early as on 27.01.2005 for which the opposite party did not repudiate the claim nor replied to the same till now.
ii). The complainant sent reminder letters on 09.03.2005 and 15.03.2005 as per Exs.C7 and C8 respectively for which the opposite party did not reply to the same.
iii). The complainant sent an advocate notice dated 1.12.2006 as per Ex.C11 calling upon the opposite party to settle the claim. Though the opposite party received the said notice as per Ex.C12, he had not replied to the same till now.
iv). Though the opposite party ascertained from the Government of Puducherry about the value of damage to the boat under dispute at Rs.4.50 lakhs as per Ex.R5 and R6, he had not settled the amount to the complainant in that line so far.
v) Though the opposite party ascertained through his surveyor about the value of damage to the boat under dispute at Rs.2,89,669/- as net assessed amount as per Ex.R4, he has not settled at least this amount to the complainant so far.
vi) Though the counsel for the opposite party given an opinion to the opposite party to settle the claim of the complainant as per Ex.R10 dated 16.5.2006, the opposite party did not settle the claim so far.
vii) Without any authenticated evidence the opposite party on surmise diluted/restricted the value of the damage to the boat under dispute, ascertained under Exs.R6 and R4. at Rs.1,09,670/- and sent a letter to the banking authority and not to the complainant to settle the claim to that extent.
viii) The contract is between the complainant and the opposite party with reference to the insurance policy under dispute. Since the mechanized boat under dispute is under mortgage, the insurance premium amount has been paid to the opposite party through State Bank of Hyderabad, Puducherry. The insurance premium has been paid only by the complainant to the opposite party and the contract is between them only. There is no dispute in this regard. Whereas the opposite party denied the claim of the complainant as the complainant not impleaded State Bank of Hyderabad, Puducherry as a party to the proceedings through the opposite party was aware that banking authority has nothing to do with the policy conditions entered into between the complainant and opposite party. The opposite party ventured to deny the claim by such an absurd defence.
ix) Though the opposite party of his own without any proof, estimated the value of damage to the boat under dispute at Rs.1,09,670/- he has neither tendered the same to the complainant directly before the institution of the complainant nor tendered the amount to the complainant at least before the District Forum on the first hearing date. More so, the opposite party has not even tendered the amount to the complainant atleast before the State Commission. AS per record, the claim is pending from 26.12.2004, i.e the date on which the boat under dispute was affected by Tsunami.
x) The indifferent attitude of the opposite party against the consumer like present complainant was exposed by the State Commission in F.A.No.10/2009 dated 12.05.2011 in C.C.No.39/2006 dated 31.12.2008 of District Forum, Puducherry. In spite of that, the opposite party namely, M/s United India Insurance Co. Ltd had not changed that indifferent attitude in settling the claim against the consumer like the complainant.
36. For the reasons narrated above, this Commission award cost of the proceedings at Rs.25,000/- (Rupees Twenty-Five Thousand only) against the appellant/opposite party payable to the complainant forthwith.
37Hence, this issue is answered against the appellant/opposite party.
38. In the result, the appeal is dismissed with costs. The order passed by the District Forum in Consumer Complaint No. 5 of 2007, dated 8.12.2008, is hereby confirmed.
Dated this the 24th day of June, 2011 (J.A.K. SAMPATHKUMAR) PRESIDENT (K.K.RITHA) MEMBER (K.ELUMALAI) MEMBER