State Consumer Disputes Redressal Commission
The Senior Divisional ... vs M/S. Neelakantan And Sons Pvt. ... on 13 October, 2011
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.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Tmt.Vasugi Ramanan, M.A., B.L., MEMBER F.A.116/2009 [Against order in C.C.No.801/2004 on the file of the DCDRF, Chennai (South)] DATED THIS THE 13th DAY OF OCTOBER 2011 The Senior Divisional Manager, | National Insurance Company Ltd., | Appellant / Opposite Party Divisional Office IV, No.169, | Anna Mount Road, | Chennai 600 002. | Vs. M/s. Neelakantan and Sons Pvt. Ltd., | Respondent / Complainant 2, 1st Floor, Gokul Towers, | No.7, C.P. Ramasamy Road, HoH | Chennai 600 018. | The respondent as complainant filed a complaint before the District Forum against the appellant/opposite party praying for the direction to the opposite party to Rs.4,40,000/- being the loss sustained by the complainant together with interest at 18% per annum, to pay Rs.1 lakh as compensation for mental agony and hardship and to pay the costs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order, as per the order of the District Forum dt.23.12.2008 in C.C.801/2004.
This appeal coming before us for hearing finally on 21.09.2011, 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 Appellant / Opposite Party : Mr.N.Vijayaraghavan, Advocate.
Counsel for the Respondent/ Complainant : Mr.R.Murari, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. Factual matrix for the appreciation of the case as follows:-
The complainant, who is carrying on the business of Marine Engineering, had taken a Marine Hull Policy, for the dumb barge on 08.09.95, for the period covering till 7.09.96, for the sum assured Rs.5 lakhs, which includes loss or damage to the barge caused by the perils of the sea, rivers, lakes or other navigable water. The dumb barge called Bharadwaj sank along with some piling machinery on 11.05.96 due to rough sea condition, during the above said policy period, which was informed not only to the Tuticorin Port Trust, but also to the opposite party. Based upon the policy, the complainant claimed a sum of Rs.4,40,000/-, answering the queries raised by the opposite party, as well as furnishing the documents as required by them. Though the claim was lodged, immediately after the occurrence on 11.5.96 and despite several reminders, there was no response and after roughly about 4 years, the claim was repudiated, on 18.7.2000, as if, the damage is not covered under the policy, alleging there was no peril, further informing that the barge was not water tight, coupled with poor maintenance, rendering the barge unseaworthy, which are all false. Even after the repudiation, the complainant explained the position, requested to reconsider the claim, which was not considered by the opposite parties, thereby they have committed negligence and deficiency in service, coming within the definition of the Consumer Protection Act. Thus alleging, the case came to be filed, claiming a total sum of Rs.5,40,000/- including a compensation, for mental agony.
3. The appellant/opposite party admitting the policy, questioning the claim, as if, the same is not maintainable, since it is a commercial one as well as barred by limitation, further contending that there was no peril on the date of alleged incident and if at all anything had happened to the dumb barge, that may be due to deterioration/weakening of the angles flats welded/bolted to join the section of the pontoons, insufficient strength of the connecting members between pontoon sections, resulting in parting away of the two sections, which are not covered under the policy, that at the time of the alleged incident, the dumb barge was not functioning within the port area, thereby the complainant had violated the conditions of the policy of the insurance and based upon these alone after elaborate discussion, claim was rightly repudiated, which cannot be termed as deficiency in service, praying for disposal of the case, denying further averments in the complaint also.
4. The District Forum, mainly taking into account that the claim was repudiated after the lapse of 4 years and this inordinate delay alone should be construed as deficiency in service, placing reliance upon the National Commissions ruling and without considering the actual damage, directed the opposite party to pay a sum of Rs.4,40,000/-, being the loss sustained by complainant and a sum of Rs.25,000/-
as compensation, for mental agony, in addition to, sum of Rs.3,000/- as costs, as per the order dated 23.12.2008, which is challenged.
5. The complainant is a business concerned, doing Marine Engineering Works. In order to provide Pile foundation forming part of civil work, within the port area, they were using a pontoon type dumb barge by name Bharadwaj. Admittedly, the said dumb barge was insured with the opposite party for the period covering 08.09.95 to 7.09.96. A part of the said dumb barge, due to peril of the sea or otherwise, sank along with some piling machinery, in the sea on 11.5.96, which was reported to the opposite party also. Based upon the alive policy on that date, the complainant also claimed assured amount proportionately, which was under
consideration for four years or so.
Giving the hope to the complainant, that amount may come, but Ex.A16 letter alone came dated 18.07.2000, repudiating the claim, informing that there was no proof of operation of any peril, covered under the policy, resulting in the reported Casualty as well as informing Condition No.3 of the policy was violated. Thus, the complainant, unable to get the relief, knocked the doors of the Consumer Forum, which opened, resulting an order adverse to the opposite party Company, which is under challenge.
6. The complainant has claimed, not only compensation for the loss sustained to the barge quantifying the same at Rs.4,40,000/-, but also claimed a sum of Rs.1 lakh for mental agony and hardship, caused to the complainant. As said above, the District Forum ordered the first relief, as prayed and allowed the second relief, a part, directing the opposite party to pay a sum of Rs.25,000/- as compensation, for mental agony.
The complainant is a Company and Company cannot have any mental agony, not being a person/individual as understood though it is a legal entity, entitled to maintain for the first relief. The District Forum not considering this fact, whether the complainant would have suffered any mental agony or not, mechanically, as claimed by the complainant, allowed a portion for mental agony, quantifying the same at Rs.25,000/-, which is unsustainable in our view, as rightly contended by the appellant, irrespective of other merits of the case.
Hence, the second relief given by the District Forum should go.
7. Admittedly, the appellant insured the dumb barge Bharadwaj manufactured or constructed in the year 1989, weighing 45 tones with the opposite party from 08.09.95 to 7.9.96 for the sum assured Rs.5 lakhs. Trading warranty was, within Tuticorin Port and special conditions are also attached that is ITC (Hulls), dated 01.10.83.
The policy covers perils and 6.1 reads This insurance covers loss of or damage to the subject matter insured caused by perils of the seas, rivers, leaks or other navigable waters which we are concerned. Therefore, in order to claim for any loss to the dumb barge, trading warranty should have been complied with, in addition, the claim coming within the ambit of special conditions and warranty, though entire dumb barge was insured, admittedly a portion alone damaged or sank, as seen from the Surveyor Report also. On 11.5.96, a portion of the dumb barge sank along with some piling machinery, and according to the complainant, due to rough sea condition, during the policy period. No other peril is pleaded in the complaint and the subsequent communication between the parties alone pleaded in detail. Mere rough sea condition, may not come within the peril of sea and assuming that also will come, since it is beyond ordinary scene, then the complainant should prove, on the date of the incident, the sea was rough and because of that peril alone, dumb barge sank unexpectedly, for that, we have no materials as rightly urged by the learned counsel for the appellant.
8. In the complaint in Para 4, it is said the mishap occurred due to failure of connections of bulk head compartments of the barge as a result of which a part of the barge was lost, thereby indicating, the mishap had occurred, not due to rough sea or any peril of sea, whereas it should have happened due to failure of connections, though other reasons are attributed, by the opposite party including the conditions of the dumb barge namely it was not water tight and maintenance was poor, for which, we do not have materials. As rightly contended in the complaint itself, after satisfaction and verification alone, the Insurance Company should have insured the dumb barge, and therefore, it is not open to the opposite party to say, at later point of time, it was not water tight and not properly maintained in the absence of clear cut evidence. Therefore, we are very much concerned about the peril and the operation of the barge, as per the conditions of the policy.
8. The dumb barge Bharadwaj expected to function or intended to function within the Harbour limit, which is not in dispute and to that effect alone, in the policy, under the heading Trade Warranty, it is said Within Tuticorin Port Harbour. In this view, any mishap had happened outside the Port, then the Insurance Company may not be liable to compensate. Therefore, it is for the complainant, to make out the case at the first instance that the mishap occurred, within the Harbour limit, for which, there is no plea at all.
Even in the letter dated 3.6.96 [Ex.A4], the complainant has informed the insurance company that the mishap occurred due to failure of connections of bulkhead compartments of the barge, as a result, a sizable portion of the barge lost at sea, where we find no peril or high tide or rough sea as the cause for the mishap. In the claim application also that is Ex.A9, it is said Failure of bulk-head compartments and no peril of sea was pleaded. On the date of alleged incident, there was no weather warming also, as per the documents given by Port Authorities. This being the position, it is impossible to conclude, that the mishap occurred to the dumb barge, due to perils of the sea namely high tide or bad weather condition. Mere accident, disconnection of a portion of the dumb barge, then sinking is not covered under the policy, the policy being Marine Hull Policy, specially intended to cover certain perils, as detailed under Condition No.6 of the policy. As reported by the Surveyor, the dumb barge with equipments on deck, was towed by Tuticorin Port Trust Tug VOC on 11.5.96 from 9.30 onwards and while moving some cracking noise heard, then noticing the welding of angles, flats and connecting bolts between section number 2 and 3 giving way, separating two sections and because of the same, one section capsized and sank. Therefore, it is clear, the incident had not occurred within the Harbour limit, and portion was sunk, not due to peril of sea and for some other reasons, which is not covered by the policy, as rightly contended by the learned counsel for the appellant.
9. The District Forum has also not given any finding regarding the incident and how the quantum was arrived etc., in order to decide the deficiency, except the delay in repudiating the claim. Deficiency is defined as any fault or short coming or inadequacy and it does not including the delay alone whatever may be the period, though it can be taken into consideration, since Insurance Company is expected to decide the matter, within the reasonable time, bringing the same within the meaning, shortcoming not otherwise.
Therefore, only on the ground of delay, we cannot order the compensation, as claimed by the complainant, that too, in the absence of actual value of the damage, which was done by the District Forum, erroneously in our considered opinion.
10. In this case, though the incident had taken place on 11.5.96, claim application was submitted only on 16.5.97 [Ex.A9] though the matter was informed to the Insurance Company as well as Port Authority. Immediately on 1.8.97, the Insurance Company sought clarification [Ex.A10] which was submitted on 23.08.97 [Ex.A11], then number of correspondence had taken place, regarding salvage operation, producing vouchers and based upon that, the opposite party informed on 25.6.99 that the claim is under the active consideration, further informing the result will be intimated immediately. Then subsequent correspondence had taken place, and the Insurance Company has not slept in this matter and as seen from Ex.A16, they have repudiated the matter on 18.7.2000, that is after 3 years or so. In between the period, the Surveyor was asked to assess the value, requested many clarification which consumed time, though the Surveyor has also suggested Rs.2 lakhs, as partial loss subject to other conditions. The Authorities concerned analyzing the surveyor report, the salvage operations were not carried out in the customary manner and the certificate issued by the Port Authority for carrying the piling work within the Harbour, whereas, barge sank outside the Harbour which revealed further that there was violation of policy condition. Only in this way alone, they have consumed time, not intentionally and that delay alone cannot be cause, to come to the conclusion that the opposite parties have committed deficiency in service. If the complainant had proved that they have operated the barge, as per the conditions, then the delay had taken place that can be taken as deficiency, not only ordering the value of the damage, but also ordering compensation for deficiency, which is not possible. The District Forum unfortunately, not considering the merits and demerits of the case, placing reliance on National Commission ruling alone, which may not be applicable to the facts of the case, straight away ordered payment of Rs.4,40,000/- which is incorrect, liable to be upset. For these reasons, though the complaint is maintainable, the complainant is not entitled to any relief, since given, that should be upset.
11. Appeal is allowed, the order of the District Forum in C.C.801/2004, dt.23.12.2008 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, we make no order as to cost, throughout.
12. The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellant / opposite party, duly discharged.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT