State Consumer Disputes Redressal Commission
James Mackintosh & Co Pvt Ltd vs The New India Assurance Co Ltd on 7 March, 2018
1 (CC/2011/116)
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Consumer Complaint No. CC/2011/116
James Mackintosh & Co. Pvt. Ltd.
Having office at Darashaw
House, Shoorji Vallabhdas Marg,
Ballard Estate, Mumbai - 400 001 .....Complainant
Versus
The New India Assurance Co. Ltd.
Divisional Office : 111700
Asian Building, Ballard Estate,
Mumbai - 400 001 ......Opponent
BEFORE:
Usha S. Thakare : PRESIDING JUDICIAL MEMBER
A. K. Zade : MEMBER
For the Complainant : Adv. Shri. Bhole
For the Opponent : Adv. Smt. Kalpana Trivedi
ORDER
Per Smt. Usha S. Thakare, Hon'ble Presiding Judicial Member [1] The complainant company has filed consumer complaint under section 12(a) of the Consumer Protection Act, 1986 by alleging deficiency in service against the opponent Insurance Company.
[2] The complainant is a private limited company registered under the Companies Act, 1956. The complainant is engaged in the business of shipping and logistics. The complainant is an owner of a speed boat 'Mackintosh'. The opponent is a public corporation registered under the Companies Act, 1956 and carries on business of insurance. The 2 (CC/2011/116) complainant had taken Hull & Machinery policy bearing no.11170/22/08/01/00000006 on 11/11/2008 from the opponent for the period from 11/11/2008 to 10/11/2009 for the said boat 'Mackintosh'. On 06/12/2008, the said boat 'Mackintosh' met with an accident at 4.25 pm in the sea Mumbai Waters, slipway of Gateway of India. This incident was duly informed by the complainant to the opponent's representative Mr. Sonawane, Development Officer and Dr. Chandrakant Khatri, Divisional Manager by e-mail dated 10/12/2008. By the said e-mail the complainant had requested Mr. Sonawane to appoint Surveyor for survey as soon as possible to expedite the process of insurance claim. Accordingly one Mr. Samad Khanche was appointed as the surveyor by the opponent. After necessary approvals and permissions from Mr. Chandrakant Khatri complainant had dry docked 'Mackintosh' to assess its damage and condition. Preliminary survey took place on 26/12/2008. Thereafter few more surveys took place on 06/01/2009, 12/01/2009, 26/03/2009. Final survey was conducted on 02/04/2009. Survey report was directly submitted by Mr. Khanche to the Divisional Office of the opponent. [3] It is further submitted that, in the mean while vide letter dated 20/01/2009, complainant furnished two claim bills. Claim bill no.01/08-09 for Rs.18,54,900/- was for replacement of two engines and claim bill no.01A/08-09 for Rs.15,39,980/- was for cost of repairs of the two engines. The complainant also discussed the issue related to spare parts and other claims with Mr. Khatri. Vide letter dated 17/04/2009, complainant requested the opponent to consider the assessment value of the claim. In spite of regular follow-up, regarding the status of the claim, it was only in 3 (CC/2011/116) May 2009 Mr.Anil Sonawane informed the complainant that the boat operator Mr. Samir Kardekar did not have necessary competency certificate and on this sole ground the said insurance claim was rejected by the opponent, but formal letter was not issued. The complainant furnished competency certificate to Mr. Anil Sonawane with letter dated 26/05/2009. Said competency certificate was provided by M/S AVA Marine Services Pvt. Ltd. and requested for final settlement of the claim. After submitting necessary competency certificate, the complainant received e-mail from Dr. Khatri of the opponent company on 27/06/2009. Dr. Khatri informed that the claim will not be payable because person steering the boat was not having competency certificate from Maharashtra Maritime Boart/port authorities. The complainant subsequently drew attention of Dr. Khatri towards the fact that the policy did not contain the definition of "Competent Person" and also pointed out that a considerable time was elapsed since the original claim was filed. On 10/09/2009 Dr. Khatri finally issued formal rejection letter to the complainant by stating that claim was not payable, as the person steering boat was not having competency certificate from Maharashtra Maritime Boart/port authorities. In addition, it was also stipulated that the said 'Mackintosh' did not have competency certificate from Maharashtra Maritime Boart/port authorities. In the mean time the complainant sent e-mails to the opponent. However, there was no response from the opponent. Ultimately, notice was issued through Advocate on 09/11/2010. The opponent miserably failed to perform their duties and responsibilities towards the policy holder. The complainant had suffered monetary loss. Ultimately, complainant has filed this consumer complaint 4 (CC/2011/116) with request to declare the opponent as guilty of deficiency in service. It is requested to direct the opponent to pay to the complainant an amount of Rs.27,64,626/- towards claim. Complainant has claimed interest on this amount and legal expenses.
[4] The opponent has resisted the claim of the complainant by filing written statement and denied all adverse allegations in toto. It is specifically denied that the opponent is guilty of deficiency in service. It is admitted that the complainant is a owner of speed boat namely 'Mackintosh' and it had taken Hull & Machinery Insurance cover from the opponent under the policy bearing no. no.11170/22/08/01/00000006 for the period from 11/11/2008 to 10/11/2009. It is also admitted that the speed boat 'Mackintosh' met with an accident on 06/12/2008 and intimation was given to the opponent on 10/12/2008 by e-mail. The opponent appointed surveyor namely Mr.Samad Khanche, who conducted the survey and assessed loss. It is submitted that during the survey, it was noted that, at the time of accident the said Vessel/speed boat was in control of employee of the concerned service of steering, M/S AVA Marine Services Pvt. Ltd. The employee stated to the Surveyor that in their vicinity there is no any certifying agency to impart training of such speed boat and to certify them till date and moreover. It is alleged as per condition no. 19.1, the claim of the complainant was not admissible and was repudiated as per the policy condition no.19.1. It is condition of the insurance contract that, when the concerned vessel was underway the assured named in the schedule to the policy or other competent person shall be on board and in control of the said vessel. One Mr. Samir S. Kardekar was in control of and was steering the 5 (CC/2011/116) said Vessel/speed boat 'Mackintosh'. When said accident took place, he did not hold any such certificate issued by Maharashtra Maritime Boart/port authorities being competent person to steer the said speed boat, which is clear breach of the policy condition no. 19.1 of the said policy. The complainant approached the Grievance Cell of the opponent. This Grievance Cell also repudiated the claim of the complainant on the same findings. Repudiation of the claim was within the frame work of terms and conditions and cannot be treated as deficiency in service. Repudiation of claim is just and proper. Government of India owned company can not deviate from the terms and conditions and principle of insurance. Claim of the complainant is not tenable and liable to be dismissed with costs. [5] Under these circumstances, following points arise for our determination and we record our findings for the reasons below:-
Sr.No. Points Answer
1 Whether opponent is guilty of deficiency No
in service?
2 What order? As per final order
REASONS : POINT NO.1
[6] To substantiate claim of loss and compensation Mr. A. Ravishankar,
the Principal Officer of the complainant company has laid his evidence by filing an affidavit. The complainant has relied upon policy no. 11170/22/08/01/00000006 for period of 11/11/2008 to 10/11/2009, letter correspondence between the parties, survey report dated 06/04/2009, claim bills, repudiation letter, competency certificate of Mr. Samit Kardekar and documents filed along with affidavit of evidence. To give counter blow, 6 (CC/2011/116) Regional Manager of the opponent namely Mr. J.S. Tonk has filed his affidavit of evidence. Both the parties have filed brief notes of argument. Heard learned Advocate Mr. Bhole for the complainant and learned Advocate Smt. Kalpana Trivedi for the opponent.
[7] It is admitted fact that the complainant is a owner of Speed Boat 'Mackintosh'. The complainant had taken Hull & Machinery policy bearing no. 11170/22/08/01/00000006 for period of 11/11/2008 to 10/11/2009 with respect to speed boat 'Mackintosh'. Policy in favour of complainant is at Exh. 'A' at page no.17. Said boat 'Mackintosh' met with an accident on 06/12/2008 at 4.25 p.m.in the sea Mumbai Waters, slipway of Gateway of India. The accident and loss was informed to the opponent's representative on 10/12/2008 vide Exh. 'B'. Opponent had appointed a Surveyor. Preliminary survey was taken place on 26/12/2008 followed by two surveys dated 06/01/2009 and 12/01/2009. On 20/01/2009, the complainant submitted two claim bills with letter dated 20/01/2009. Claim bills are at Exh. 'D' and 'E'. One more survey was carried out on 26/03/2009. On 06/04/2009 final survey report was submitted as per Exh. 'C'. All these facts are not at disputed. So also letter correspondence between the parties is not challenged. The complainant issued notice to the opponent through Advocate on 09/11/2010. By keeping admitted facts in mind, let us proceed to appreciate, whether the opponent is guilty of deficiency in service.
[8] The Surveyor in final survey report dated 06/04/2009 assessed insurance claim as Rs.9,43,705/- on account of loss due to an accident of said speed boat 'Mackintosh'. Still insurance company/opponent has 7 (CC/2011/116) rejected the insurance claim. Insurance claim of the complainant is repudiated on the ground that the person steering the speed boat Mr. Samir Kardekar was not competent person. It appears that the claim was repudiated in view of condition no.19.1 of the insurance policy issued by the opponent in favour of the complainant. Condition no.19.1 is as under, "It is a condition of this insurance that, when the Vessel concerned is under way the Assured named in the Schedule to the policy or other competent person(s) shall be on board and in control of the Vessel."
It is harped upon the fact that said Mr. Samir Kardekar did not hold any certificate of competency from Maharashtra Maritime Board/port Authorities under Inland Vessel Act, 1970 and as such there is breach of policy condition no.19.1 of the said policy.
[9] Learned Counsel Shri. Bhole for the complainant in his reply argued that definition of 'competent person' is not given in the insurance policy. Complainant's boat operator AVA has been in the business for many years and about of 90% of speed boat operation in Mumbai is undertaken by them. Competency certificate is issued by AVA. Competency certificate provided by AVA certifies that boat operator Mr. Samir Kardekar has an experience of 13 years, which itself speaks about experience, who has been operating the boat for such a long time.
[10] It is the stand of the opponent that AVA did not provide training for steering speed boat. The opponent has placed reliance on the statement of Mr. Phiiroz Contractor, M.D. of AVA. Certificate issued by AVA Marine 8 (CC/2011/116) Services Pvt Ltd. Issued by MD is at Exh. 'H', page no.47. It shows that AVA Marine Services Pvt. Ltd. has been in the business of managing and maintaining private Yachts since 1983, mainly in Mumbai. These boats very from sailing vessels with engines to fast speedboats and large diesel cruisers. It is certified that on behalf of the Employers, AVA Marine Services Pvt. Ltd. employs boat crews for manning and operating these yachts and train them in the daily maintenance and operation of their individual yachts.
[11] By certificate at Exh.'H', Managing Director of AVA Marine Services Pvt. Ltd. certified that Shri. Samir S. Kardekar, currently the driver of speed boat 'Mackintosh' belonging to M/s James Mackintosh and Co. Pvt. Ltd. has been in their employment from May 1995 till to date. He is a very experienced speedboat driver as can be expected after 13 years of service in the same type of craft, and they have no hesitation in certifying his competency in this field.
[12] It can be gathered from the certificate issued by Managing Director of AVA Marine Services Pvt. Ltd., that AVA Marine Services Pvt. Ltd. did not provide training for steering speed boat. They only employ boat crews for manning and operating yachts and train them in the daily maintenance and operation of their individual yachts.
[13] Mr. Samir S. Kardekar, in charge of the boat did not come forward with the affidavit of evidence to prove his competency. Certificate issued by AVA Marine Services Pvt. Ltd. can be said to be a 'experience certificate' of Mr. Samir S, Kardekar.
9 (CC/2011/116) [14] The Surveyor in survey report has observed that, it was found that the person steering such Vessels (speed boat) needs to be certified by Maharashtra Maritime Board, thereby authorising the same to handle/steer the Vessel while sailing. As Mr. Sameer S. Kardekar, who was in control of and was steering the said vessel-speed boat "Mackintosh Reg. No. SP-108"
While sailing and whilst the said accidental incidence having taken place doesn't possess any such certificate - the requisite condition to steer such Vessels (Speed Boats), Hence under such circumstances and the conditions of the said clause no. 19.1 for speed boats, the claim doesn't fall under acceptability and hence the said claim cannot be settled. [15] It is further urged that, the complainant has given one certificate provided by AVA Marine Services Pvt. Ltd. to the opponent as a competency certificate. Even after receipt of the said certificate, claim of the complainant was rejected by the opponent.
[16] During course of argument, it was admitted that the speed boat 'Mackintosh' was duly registered. Learned counsel Mr. Bhole vehemently urged that the opponent was incorrect in holding that Mr. Samir S. Kardekar was not a competent person to steer the speed boat 'Mackintosh'. Opponent is deficient in giving service. Certificate issued by AVA Marine Services Pvt. Ltd. should have considered by the opponent and should have hold that Mr. Samir S. Kardekar was competent to drive the boat. Learned counsel Mr. Bhole has taken us to the definition of word 'competence' from the Webster's Dictionary.
10 (CC/2011/116) [17] Meaning of word 'competence' as per Webster's Dictionary is "the quality or state of being functionally adequate or of having sufficient knowledge, judgment, skill or strength."
[18] It is true that in policy word 'competent person' is not defined. In case in hand, provision of Inland Vessels Act 1917 will attract. The provision of section 21, 22 and 25 are relevant.
Section 21 of Inland Vessels Act, 1917 is as under
Grant of masters', serangs', engineers' and engine-drivers' certificates of competency. -
(1) The State Government or such officer as it may, by notification in the Official Gazette, appoint in this behalf, shall grant to every person who is reported by the examiners to possess the prescribed qualifications, a certificate of competency to the effect that he is competent to act as a first-
class master, second-class master or serang, or as an engineer, first-class engine-driver or second-class engine-driver, as the case may be, on board an inland 84 [mechanically propelled vessel] Section 22 of Inland Vessels Act, 1917 speaks about the Grant of masters', serangs', engineers' and engine-drives' certificates of service.
Section 25 of Inland Vessels Act, 1917 is as under, 25 Certificates to be held by master and engineer of vessel of one hundred or more horse-power. -An inland 97 [mechanically propelled vessel] having engines of 98 [one hundred] or more nominal horse-power shall not proceed on any voyage unless she has-
(a) as her master a person possessing a first-class master's certificate granted under this Act, or a master's 99 [certificate granted or deemed to be granted under the Merchant Shipping Act, 1958 (44 of 1958)], 100 [or a master's licence granted under section 22A and applicable to such vessel and voyage], and 11 (CC/2011/116)
(b) as her engineer a person possessing an engineer's certificate granted under this Act, 101 [or granted or deemed to be granted under the Merchant Shipping Act, 1958 (44 of 1958)], 100 [or an engine-driver's licence granted under section 22A and applicable to such vessel and voyage].
[19] It is the case of the opponent that policy is governed by the terms and conditions regulated by the Tariff Advisory Committee and the opponent cannot deviate from standardized terms and conditions stipulated therein. The opponent is a Government of India undertaking, who handles public funds and as such opponent has to take all reasonable care to scrutinize all the documents. It is rightly urged on behalf of the opponent that AVA Marine Services Pvt. Ltd. is not authorised by any Act to issue competency certificate. Competency certificate is to be issued by designated authority. Speed Boat 'Mackintosh' was with 400 BHP engines and should be having first class home trade Master and qualified engineer/driver. [20] We are not inclined to place reliance on this certificate issued by AVA Marine Services Pvt. Ltd. It is to be noted here that by an order dated 28/01/2015, opportunity was given to the complainant to address the Commission under which Law and under which authority AVA Marine Services Pvt. Ltd. is competent to issue certificate. Roznama dated 28/01/2015 is as under.
"Heard for some time. Learned Advocate of the complainant is directed to address the Commission under which Law and what authority is competent to issue the certificate to the Navigator about its competency. Learned Advocate of the opponent is directed to address the Commission on which enactment is applicable to the contract of insurance and definition of person as competent. So also, learned Advocate 12 (CC/2011/116) of the opponent is directed on the contents of repudiation letter, results thereof outside the terms and conditions of the contract."
[21] In pursuance of these directions, the opponent has submitted details by letter dated 27/04/2015. The complainant did not take any pain to submit required information.
[22] The complainant has duly proved that, on the date of accident speed boat 'Mackintosh' was duly registered. The opponent has no grievance about the registration of the boat. As boat was duly registered, premium of insurance was accepted by the company. But the material question is about the competency of the person, who was steering the boat at the relevant time. The complainant failed to prove that Mr. Samir S. Kardekar was holding competency certificate as required under the provisions of the Inland Vessels Act, 1917. The Inland Vessels Act, 1917 came into force on 07/02/1917. The policy was obtained on 11/11/2008. Provisions of the Inland Vessels Act, 1917 are applicable. AVA Marine Services Pvt. Ltd. is not recognised as authority to issue competency certificate. AVA Marine Services Pvt. Ltd. has no authority to certify any person for sailing vessel or speed boat. It is not made clear under which provision of Law AVA Marine Services Pvt. Ltd. has issued a certificate. Certificate issued by AVA Marine Services Pvt. Ltd. is not of any help to the complainant to establish that at the relevant time of an accident boat was steered by the competent person. We find no hesitation to hold that Mr. Samir S. Kardekar, who was in control of and was steering speed boat 'Mackintosh' did not hold certificate issued by Maharashtra Maritime Board being competent person to steer the 13 (CC/2011/116) speed boat. It is clear cut breach of condition of the policy. The opponent rightly repudiated claim within the frame work of legal provision and terms and conditions of the policy. It cannot be treated as deficiency in service. With this view, we arrived at the conclusion that the complainant failed to prove that the opponent is guilty of deficiency in service. As a result, we answer point no.1 as negative and pass the following order.
ORDER
1. Complaint is dismissed.
2. Parties to bear their own costs.
Pronounced on 7th March 2018 [Usha S. Thakare] Presiding Judicial Member [A.K.Zade] Member kk