State Consumer Disputes Redressal Commission
Mms Maritine India Pvt Ltd vs Reliance General Ins Co Ltd on 30 November, 2018
CC/14/179 1/29
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Complaint Case No. CC/14/179
1. MMS MARITIME INDIA PVT.LTD.
Office at 401, Raheja Plaza,
15/B, Shah Industrial Estate,
Off.Andheri Link Road, Andheri (W),
Mumbai 400 053.
2. MMS CO. LTD.,
A Company incorporated under the laws of
Japan and having its office at:
Surfeel Nakameguro Building,
1-18/-12, Kamimeguro, Meguro-ku,
Tokyo, Japan.
3. SUREKHA SURESHRAO WADWALKAR,
Mother of the deceased late Shri Saurabh
Sureshrao Wadwalkar,
Resident of Gururao Galli,, Kandhar,
Dist. Nanded MS.Nanded,
Maharashtra. ...........Complainant(s)
Versus
1. RELIANCE GENERAL INSURANCE
CO.LTD.,
Registered Office at Relinace Centre,
19 Walchand Hirachand Marg,
Ballard Estate, Mumbai 400 001 and having its
policy issuing office at 570, Rectifier House,
Naigaum Cross Road, Wadala (W),
Mumbai 400 031.
2. ACCIMATE INSURANCE & RISK
MANAGEMENT SERVICES PVT. LTD.,
Having its office at:
38/39, Jamna Building, L.T. Marg, .........Opponent(s)
Dhobitalao, Mumbai 400 002.
CC/14/179 2/29
BEFORE:
Mrs.Usha S. Thakare, Presiding Judicial Member
Mr.A.K. Zade, Member
For the Advocate Mr.Charles D'souza
Complainant(s):
For the Advocate Mr.A.S. Vidyarthi for opponent no.1.
Opponent(s): Advocate Ms.Saloni Sulakhe for opponent no.2.
ORDER
Per Hon'ble Mrs.Usha S. Thakare - Presiding Judicial Member:
(1) Complainants have filed consumer complaint u/sec 17 of the Consumer Protection Act, 1986 by alleging deficiency in service against the opponents and for adopting unfair trade practice. The complainant no.1 is a company incorporated under the provisions of Companies Act, 1956 and it is registered. The complainant no.2 is a company incorporated under the laws of Japan. Both the complainants are part of Melji Shipping Group (Japan). Complainant no.1 inter alia provides manpower services and amongst others maintains a dedicated pool of seafarers for tanker operations so as to address the manpower requirements of the complainant no.2 and Melji Shipping Group (Japan). The complainant no.3 is the mother and dependent of deceased Shri Saurabh Sureshrao Wadwalkar who was an insured covered by the insurance policy issued by the opponent no.1. The opponent no.1 is an insurance company which issued the insurance policy in question to the complainants. The opponent no.2 is an insurance agent who negotiated the insurance in policy in question.
(2) It is the case of the complainants that the complainant no.1 maintains a dedicated pool of seafarers for tanker operations so as to CC/14/179 3/29 address the manpower requirements of the complainant no.2 and Melji shipping Group (Japan). The complainant no.1 provides the Indian Seafarers with necessary training and organizes workshops and seminars for the Indian Seafarers as well. The complainant no.2 periodically enters into agreements with the Indian Seafarers (Service Agreements) pursuant to which the Indian Seafarers are deployed on board the vessels operated by the complainant no.2. During the term of service Agreements the Indian Seafarers are covered by appropriate insurance through the respective Protection and Indemnity Clubs (P & I Clubs). The Insurance provided by the respective P & I Clubs did not cover the Indian Seafarers while on shore in India. Therefore, in and around July, 2012, the complainants decided to avail of an accident and health insurance cover for the Indian Seafarers while on shore. To facilitate the process of procuring an appropriate insurance policy for the Indian Seafarers, complainant no.1 and the opponent no.2 entered into a Memorandum of Understanding in October 2012 (MOU). Requirements of the complainants were explained to the opponent no.2. The opponent no.1 was required to identify the suitable insurer to meet the requirements of the complainants. Eventually the opponent no.2 short listed the opponent no.1 as the insurer who would issue an insurance policy which would meet the requirements of the complainants. Incidentally opponent no.2 is one of the Official Agents of opponent no.1.
(3) It is alleged that the opponent no.2 arranged a meeting between the authorized representative of the complainant no.1 and the authorized representative of the opponent no.1. The reason for availing an accident insurance for the Indian Seafarers, as well as the complainants other requirements were discussed at length at a CC/14/179 4/29 meeting held on 12th July, 2012. The details of the arrangement between the complainant no.1 and the complainant no.2 qua the Indian Seafarers were also explained to the opponents in a meeting. The opponents assured the complainants that the Indian seafarers would adequately covered by the insurance policy to be issued by the opponent no.1. Relying on the assurance given by the opponents in a meeting the complainants amongst others decided to avail an accident and health insurance cover for the Indian Seafarers from the opponent no.1. Copy of agreement was promptly forwarded to the opponent no.2 by an e-mail on 24th July, 2012 as per demand. The opponent no.2 forwarded the agreement to the opponent no.1. The opponent no.1 acknowledged the receipt of the agreement and confirmed that the insurance policy proposed to be availed would cover the Indian Seafarers while on shore as required by the complainants. In view of confirmation provided by the opponents the complainants decided to avail the Group Accident Policy and Group Health Insurance Policy for the Indian Seafarers, their spouse and children from the opponent no.1. On 21st September, 2012 the complainant no.1 paid premium of Rs.5,85,613.99 towards Accident Insurance Policy. The complainant no.1 also paid sum of Rs.23,21,507/- towards Health Insurance Cover to the opponent no.1. Complainant no.1 paid amount of Rs.2,90,712/- to the opponent no.2 as consideration for services. On 12th October, 2012 the opponent no.1 issued a Group Accident Insurance Policy bearing No.1109322914000001. Policy was valid for the period 1st October, 2012 to 30th September, 2013. The complainant no.1 received policy on 18th October, 2012 and was to cover the Indian Seafarers while on shore as assured by the Opponents.
CC/14/179 5/29(4) It is further alleged that upon receipt of the policy the complainant no.1 was shocked to realize that terms of the policy were not as agreed between the parties at the meeting on 12th July, 2012. The complainant no.1 immediately informed the opponent no.2 that the terms of the policy were not as per the agreement. The opponent no.2 assured the complainant no.1 that the Indian Seafarers were adequately covered by the policy while on shore. Meanwhile on 6th October, 2012 one Saurabh Sureshrao Wadwalkar was on shore met with a fatal road accident in Khadki, Taluka Daund, District - Pune. He was on shore pursuant to agreement and undergoing training as preparatory for rejoining the vessel of the complainants. On 26th October, 2012 the complainant no.1 had filed a claim under the policy along with requisite documents to the opponentnno.1. The opponent no.1 deputed its authorized agent to the site and thoroughly investigated the case. On 20th December, 2012 the opponent no.2 raised further invoice for the services provided to the complainant no.1 towards the Group Health Policy. On 6th February, 2013 one Mediprobe Services sought certain documents from complainant no.1 in respect of the claim filed by the complainant no.1 under the policy. Necessary information was duly provided by the complainant no.1 vide letter dated 8th February, 2013. The complainant no.1 followed up the processing of the claim with the opponent no.1. The claim was persuaded through the opponent no.2. To utter shock and surprise of the complainants, on 19th February, 2013 the opponent no.1 repudiated the claim filed by the complainant no.1 on the ground that the deceased was contractual employee of the complainant no.1 and therefore, not covered under the policy. On 5th April, 2013 the complainant no.1 addressed a letter to opponent no.1, inter alia highlighting that the CC/14/179 6/29 policy had been issued pursuant to extensive discussion between the complainants and representatives of the opponent no.1 and the opponent no.2. It is highlighted that policy was availed for the purpose to cover the risk in respect of Indian Seafarers while on shore and the opponent no.1 had confirmed also after going through the agreement. There was a letter correspondence between the parties. The claim of the deceased is squarely covered by the terms of the policy. The opponent no.1 is attempting to avoid performance of its obligations under the policy. It is alleged that such conduct amounts to deficiency in service and also it is unfair trade practice. Ultimately legal notice was issued to the opponent no.1, but, of no use. Therefore, the complainants have filed consumer complaint and requested that the opponents be declared as guilty of deficiency in service and unfair trade practice. The complainants have prayed that the opponent no.1 be directed to pay amount of Rs.50,00,000/- under the policy to the complainants or dependents of the deceased with interest @18% per annum from the date of wrongful repudiation of the claim. The complainants have also claimed amount of Rs.10,00,000/- towards mental agony and hardships and amount of Rs.5,00,000/- for deficiency in service and unfair trade practice. They have also claimed amount of Rs.1,00,000/- towards costs of the proceeding.
(5) The opponent no.1 resisted the claim by filing written version and denied all adverse allegations. It is specifically denied that the opponent no.1 is guilty of deficiency in service and unfair trade practice. It is submitted that the consumer complaint is liable to be dismissed with costs as it is not maintainable. The complainants are not entitled to file the complaint before the Consumer Forum which is not the appropriate forum to seek such a relief. Claim of the CC/14/179 7/29 complainants has been fully investigated by the Insurance Company. After having fully satisfied that the claim is not maintainable it was rejected. The appropriate remedy in such a case is by way of regular civil suit in Civil Court where both the parties will have elaborate trial of the case. The case involves complicated questions and it requires full trial. The consumer complaint is not maintainable for want of pecuniary jurisdiction. The complainants have claimed amount of Rs.69,00,000/- with interest and therefore barred by pecuniary jurisdiction.
(6) It is admitted that the opponent no.2 being one of the official agents of the opponent no.1 arranged the meeting between the authorized representative of the complainant no.1 and the opponentno.1 with the intention to discuss the interest of the complainants to secure and avail accident and health insurance cover for the Indian Seafarers. Accordingly, the opponent no.1 issued the insurance policy to the complainants considering the interests of the Indian Seafarers and requirements of the complainants. Complainants have purchased the Group Personal Accident Insurance Policy from the opponent no.1 vide Policy No.1109322914000001 dated 12/10/2012. The Insurance Policy was issued upon the agreed terms and conditions to cover Indian Seafarers while on shore. It is informed that Mr.Saurabh Sureshrao Wadwalkar who was on shore and was undergoing training as preparatory for rejoining the vessel of the complainants met with a fatal road accident in Pune and died due to fatal injuries. Consequently, the complainantno.1 filed a claim on 26th October, 2012. The Insurance Company repudiated the claim of the complainants since the claim was beyond the scope of the policy terms and conditions. The complainants purchased the insurance policy with the intention to strictly secure the interests of CC/14/179 8/29 the Indian Seafarers while on shore. With this acknowledgement, the opponent no.1 issued the Group Personal Accident Insurance policy to the complainants.
(7) It is submitted that the Insurance Policy was to cover permanent employees of the MMS Maritime (India) Private Ltd. As per the verification conducted and the documents provided it has been discovered that the deceased was working in the MMS Maritime (India) Private Ltd., as a contractual worker. Clause 11 of the Policy Schedule states that only permanent employees or seafarers of the company are covered under the Group Personal Accident Insurance. The documents provided by the complainant's office show that the deceased was a contractual employee at the time of his death. The deceased being contractual employee of the complainants, neither the dependents nor the insured is entitled for claim under the policy. The opponent has rightly repudiated the claim. The complaint is misconceived. It is without merit and liable to be dismissed with costs.
(8) The opponent no.2 by filing written version opposed the consumer complaint by submitting that the consumer complaint is false, vexatious, misconceived and filed with an aim to malign and damage the reputation of the opponent no.2. There is no element of negligence or deficiency in service rendered by the opponent no.2 to the complainant. The opponent no.2 is neither guilty of deficiency in service nor engaged in any unfair trade practice.
(9) It is submitted that the opponent no.2 is Accimate Insurance & Risk Management Services Private Limited which is a service provider. It provides insurance and allied services to corporate, professionals CC/14/179 9/29 and individuals. The opponent no.2 fixed meeting with the General Manager - Finance & Corporate Affairs of Complainant no.1 to discuss and understand their needs and requirements. The opponent no.2 after having a long meeting with the complainant no.1 sent a mail setting out in detail the minutes of the meeting and details of the Insurance. The opponent no.2 emailed the complainant quotes as per the specifications provided by the complainant in the month of January, 2012. The opponent no.2 had given over 40 quotations from various insurance companies with different permutations combinations trying to fit the needs of the complainant no.1. The complainant no.1 short listed the opponent no.1. The complainant no.1 requested the opponent no.2 to arrange meeting with the opponent no.1. The Opponent no.1 instantly arranged a meeting between the authorized representative of opponent no.1 and the complainant. The meeting was held on 10th July, 2012 where authorized representative of opponent no.1 and the complainant no.1 discussed and negotiated the terms, conditions and clauses. The complainant no.1 explained the concept of on shore seafarers and other terms which they wanted the authorized representative of opponent no.1 to understand and incorporate in the policy.
(10) It is submitted that the complainant no.1 i.e. MMS Maritime of India Pvt. Ltd., is the principal agent of Meikai Marine Services (Tokyo) Co. Ltd. The complainant no.1 is a placement agency only deploying and looking after the welfare of the seafarers and office staff. After much deliberation and after getting confirmation from the company Secretary of opponent no.1 policies were issued in the name of the principal Meikai Marine Services (Tokyo) Co. Ltd. through their principal agent M/s. MMS Maritime (India) Pvt. Ltd. Complainant no.1 got the insurance as per their requirement.
CC/14/179 10/29Somewhere in August,/September, 2012, the complainant no.1 approached opponent no.1 for to avail policies namely Group Accident Policy and Group Mediclaim Insurance for their office staff and onshore seafarers. The complainant no.1 issued four cheques for premium of the said insurance policies. Cheques were in turn handed over to opponent no.1 on 25th September, 2012. On 23rd October, 2012 the opponent no.1 received an email from the complainant no.1 about the death claim of one of the policy holders namely Late Mr.Saurabh Wadwalkar who passed away on 6th October, 2012 in a fatal accident. Immediately, the opponent no.2 informed about the said claim to opponent no.1. Opponent no.2 was already working on collecting all the documents and papers for the claim. All the documents were submitted to opponent no.1 for processing the claim. The opponent no.1 appointed a surveyor to scrutinize the documents and conduct a physical and document verification. The opponent no.2 was aware of the procedure. It had guided and counseled the complainant no.1 about the same. Opponent no.2 also helped and assisted the complainant no.1 to keep all the necessary documents in place. The complainant no.1 was shocked and appalled on receiving the repudiation letter. The reason cited by the complainant no.1 was that the policies issued were for permanent employees and not for contractual seafarers. The opponent no.1 was taking insurance for onshore seafarers itself suggests that the seafarers were on contractual basis. Since the opponent no.1 is in business of insurance for over many years, the opponent no.1 should be well versed with the terminology and concept of onshore seafarers. The complainant no.1 issued reply to repudiation letter dated 19th February, 2013. The opponent no.2 has stated that the opponent no.2 has settled several claims of the CC/14/179 11/29 complainant no.1 with the opponent no.1. Fifteen Mediclaims for seafarers bearing the same terms and conditions and nine office staff mediclaims were settled. The opponent no.1 has no vested interest in the claims. The opponent no.2 are consultants and provide expertise and recommendations about the adequacy of insurance cover and about the insurer. They are not insurance agents and are only consultants. The opponent no.2 is service provider but not guilty of deficiency in service or unfair trade practice. Opponent no.2 was surprised to receive the repudiation letter. Opponent no.2 has tried its level best to procure best possible insurance cover for the complainant no.1. In fact, the opponent no.1 did not have any issue for securing the claim for Mediclaim for seafarers but have issue for settling the claim for accident policy. The opponent no.2 is not guilty for deficiency in service and consumer complaint is liable to be dismissed against the opponent no.2.
(11) Considering the submissions made before us, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons given below:-
Sr.No. Points Finding
(i) Whether consumer complaint is : Yes.
maintainable before Consumer
Fora?
(ii) Whether the opponents are guilty : Only opponent
of deficiency in service and no.1 is guilty of
unfair trade practice? deficiency in
service.
(iii) Whether the complainants are : Yes. From
entitled to claim amount of opponent no.1.
Rs.50,00,000/- under Group
CC/14/179 12/29
Accident Insurance Policy
No.1109322914000001 with
interest?
(iv) Whether the complainants are : Only
entitled for compensation for Complainant
mental pain and agony? no.3 is entitled
for
compensation as
per final order.
(v) Whether the complainants are : Yes. Entitle to
entitled for compensation on claim for
account of deficiency in service complainant
and unfair trade practice? no.3.
(vi) Whether the complainants are : Yes. As per
entitled for costs of litigation? order.
(vii) What order? : As per final
order.
(12) To substantiate the claim both the parties have led evidence by filing affidavits and relied on insurance policy, repudiation letter and correspondence between the parties. On behalf of the complainants Mr.Gurunathan Chockalingam, the General Manager - Finance and Corporate Affairs and authorized signatory of the complainant no.1 has filed his affidavit of evidence. Ms.Komal Bolakani has filed affidavit and led her evidence by filing affidavit on behalf of the opponent no.2. The opponent no.2 has relied on documents which are at annexure A to H and which are filed along with written statement. Opponent no.1 has relied on affidavit of evidence of Amit Sharma to disapprove the claim of the complainant and to establish the defence. Both the parties have filed brief notes of arguments. Heard. Ld.Counsel Mr.D'souza for the complainants. Advocate Mr.Vidyarthi for the opponent no.1 and Advocate Ms.Saloni Sulakhe for the opponent no.2.
CC/14/179 13/29ADMITTED FACTS (13) It is admitted fact that the opponent tno.2 arranged meeting between the Authorized representative of the complainant no.1 and the opponent no.1 with an intention to discuss the interest of the complainants to secure and avail accident and health insurance cover for Indian seafarers. The opponent no.1 issued the insurance policy to the complainants considering the interest of the Indian Seafarers and requirements of the complainants. The complainants have purchased Group Personal Accident Insurance Policy from the opponent no.1 having its Policy No. 1109322914000001 dated 12/10/2012. The insurance policy upon agreed terms and conditions was to cover Indian seafarers while on shore. Saurabh Sureshrao Wadwalkar (seafarer) who was on shore met with a fatal road accident in Pune and died due to consequences. The complainant no.1 filed claim on 26th October, 2012. The Insurance company repudiated the claim of the complainants by holding that claim was beyond the scope of the policy terms and conditions. Insurance policy, repudiation letter and correspondence between the parties are not at all disputed.
(14) By keeping in mind the admitted facts and the defence raised by the opponents let us proceed to appreciate the points for determination:
As to point no.(i):
(15) It is vehemently argued on behalf of the opponent no.1 that the consumer complaint does not disclose any cause of action.
Consumer complaint is misconceived which is liable to be dismissed with costs. The complainants are not entitled to file present CC/14/179 14/29 complaint as consumer forum is not an appropriate forum to seek relief claimed by the complainants. The proper remedy is to file a regular civil suit in a Civil Court as the present complaint requires elaborate trial. The consumer forum cannot entertain the complaint as complicated questions of law and facts are involved in case in hand.
(16) In reply, Ld.Counsel for the complainants urged that simple question is involved in case in hand. It is to be decided whether the complainants are entitled for the claim as per the insurance policy issued by the opponent no.1, particularly, when the opponent no.1 accepted huge amount of premium from the complainants but refused the claim of the complainants on death of seafarer. The point involved in case in hand can be decided before the Commission on the evidence available on record. We find substance in the arguments advanced on behalf of the complainants.
(17) Hon'ble Apex Court while passing judgment in the case of Dr.J.J.Merchant and others v/s. Shreenath Chaturvedi on 12/08/2002 in Appeal (Civil) no.7975/2001 held as under:-
"It was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity CC/14/179 15/29 to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
(18) In view of the ruling laid down by the Hon'ble Apex Court, we do not find substance in the objection raised on behalf of the opponent no.1.
(19) The next objection raised on behalf of the opponent no.1 is that the policy was obtained for commercial purpose and therefore, the complainants are not the consumers within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986. The consumer complaint is not tenable. Therefore, consumer complaint is not maintainable before this Commission.
(20) The question is, whether insurance policy is taken by the complainants for commercial purpose? The opponent no.1 Insurance company issued insurance policy in favour of the complainants after accepting huge amount towards premium. At the time of death of seafarer late Mr.Saurabh Sureshrao Wadwalkar, the insurance policy was in force.
(21) It is settled principle of law that the contract of insurance has nothing to do with the commercial purpose. The respondent did not obtain insurance policies for gaining profit. To gain profit was not the primary aim of the complainants while obtaining insurance policies. The contract of insurance is contract of indemnity and, CC/14/179 16/29 therefore, there is no question of commercial purpose in obtaining coverage. The insured who takes the insurance policies cannot trade or carry on any commercial activity with regard to insurance policy taken by him.
(22) In the case of Harsolia Motors v/s. National Insurance Co.Ltd.
reported in MANU/CF/0083/2004, Hon'ble National Commission while deciding Appeal no.159 of 2004 on 03/12/2004 in para 23 and 24 observed as under:-
"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."
(23) In case of M/s.Polyplex Corporation Ltd. v/s. National Insurance Co.Ltd. and others reported in 2017(2)CPR 58 (NC), Hon'ble National Commission held as under:-
CC/14/179 17/29"that the insurance policy is availed for indemnifying the loss which the insured may suffer and therefore, the services of the insurer are availed for protection and not for making profit. It is immaterial whether the loss is on account of destruction or damage of a product or it is on account of the insured being deprived of the profit, which it would in the normal course have made, by use of the insured product."
(24) It is to be noted here that while deciding case of M/s.Polyplex Corporation Ltd. v/s. National Insurance Co.Ltd. and others reported in 2017(2)CPR 58 (NC), the Hon'ble National Commission has placed reliance on the ruling laid down by the Hon'ble National Commission in the case of Harsolia Motors Vs. National Insurance Co. Ltd. I(2005) CPJ 27 (NC) cited supra. The observation of the Hon'ble National Commission in para 7 is as under:-
"7. The first question which arises for consideration is as to whether the complainant can be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act or not. It has been held by this Commission in Harsolia Motors Vs. National Insurance Co. Ltd. I(2005) CPJ 27 (NC) decided on 03.12.2004 that since an insurance policy is taken for reimbursement or for indemnity for the loss which may suffer on account of insured perils, the services of the insurer cannot be said to have been hired or availed for a commercial purpose and therefore, this Commission does possess the requisite jurisdiction to entertain a consumer complaint wherever a CC/14/179 18/29 defect or deficiency in the services rendered by an insurer is made out. The learned counsel for the OP states that as far as the loss of profit is concerned, the claim would not be covered by the decision of this Commission in Harsolia Motors (supra). I however, find no merit in this contention. In Harsolia Motors (supra), this Commission upheld the plea that the insurance policy is availed for indemnifying the loss which the insured may suffer and therefore, the services of the insurer are availed for protection and not for making profit. It is immaterial whether the loss is on account of destruction or damage of a product or it is on account of the insured being deprived of the profit, which it would in the normal course have made, by use of the insured product. So long as the reimbursement on account of loss of profit is one of the -5- products of the insurance policy, it remains covered by the decision in Harsolia Motors (supra). Therefore, I find no merit in the contention that the insurance policy to the extent it pertains to reimbursement on account of the loss of profit, cannot be the subject matter of a consumer complaint".
(25) In view of above rulings we do not find any substance in the arguments on behalf of the opponent no.1 to challenge the maintainability of complaint.
(26) Another ground raised by the opponent no.1 to challenge the maintainability of the consumer complaint is the pecuniary CC/14/179 19/29 jurisdiction. It is argued that considering the sum assured under the policy and prayer of the complainants the consumer complaint of complainants is barred by pecuniary jurisdiction.
(27) To consider pecuniary jurisdiction, what is relevant is amount of premium paid by the complainants while obtaining insurance policy and not the sum assured. The complainants decided to avail of a Group Accident Policy and a Group Health Insurance Policy (for the Indian seafarers, their spouse and children) from the opponent no.1. On 21st September, 2012 the complainant no.1 paid premium of Rs.5,85,613.99 to the opponent no.1 towards Accident Insurance Policy. It is to be noted here that the complainants also availed Health Insurance Cover from the opponent no.1 by paying premium of Rs.23,21,507/- for Indian seafarers. By filing consumer complaint the complainants have requested to declare that opponent no.1 is liable to pay to the complainants or to the dependents of deceased an amount of Rs.50,00,000/- due and payable under the policy. In addition, the opponents have claimed interest @18% per annum on the amount of Rs.50,00,000/- from the date of wrongful repudiation of claim till realization of the amount. They have also claimed amount of Rs.10,00,000/- towards compensation for mental pain and agony to the complainant no.3, amount of Rs.5,00,000/- is claimed towards deficiency in service and amount of Rs.1,00,000/- is claimed towards costs of litigation. Amount of Rs.3,00,000/- is also claimed from the opponent no.2 towards deficiency in service. If the amount of premium and other reliefs are considered the claim is within pecuniary jurisdiction of this State Commission.
(28) We would like to refer the judgment of the Hon'ble National Commission in Consumer Case No.3404/2017, Vaaan Infra Pvt. Ltd.
CC/14/179 20/29V/s.Liberty Videocon General Insurance and Anr. delivered on 16th April, 2018. It was held by the Hon'ble National Commission that, it is the premium paid by the insured to the Insurer and not to the extent of the sum insured which constitutes the agreed consideration.
(29) In view of above discussion we find no hesitation to hold that the consumer complaint is within pecuniary jurisdiction of this Commission. Consumer complaint is maintainable. As a result we answer point no.(i) for determination in affirmative.
As to point No.(ii):
(30) Complainant no.1 - MMS Maritime India Pvt. Ltd., is a company incorporated under the provisions of the Companies Act, 1956. The complainant no.2 - MMS Co. Ltd., is a Company incorporated under the laws of Japan. Both the complainants are part of Meiji Shipping Group (Japan). The role of complainant no.1 is that the complainant no.1 provides manpower services and maintains a dedicated pool of seafarers for tanker operations so as to address the manpower requirements of the complainant no.2 and Meiji Shipping Group (Japan). Deceased Saurabh Sureshrao Wadwalkar was seafarer, who was an insured covered under the insurance policy issued by the opponent no.1. The complainant no.3 is the mother and dependent of deceased Saurabh Sureshrao Wadwalkar. The complainant no.1 provides Indian Seafarers with necessary training and organizes workshops and seminars for the Indian Seafarers. The complainant no.2 periodically enters into agreements with the Indian seafarers pursuant to which the Indian Seafarers are deployed on board vessels operated by the complainant no.2. During the terms of CC/14/179 21/29 service agreement the Indian Seafarers are covered by appropriate insurance through the respective Protection and Indemnity Clubs.
However, the insurance provided by the respective P & I Clubs did not cover the Indian Seafarers while on shore in India. Therefore, in the month of July, 2012, the complainants decided to avail of an accident and health insurance cover for the Indian Seafarers while on shore. This is the background why the complainants felt it necessary to obtain accident and health insurance cover for Indian seafarers while on shore.
(31) The complainant no.1 and the opponent no.2 entered into Memorandum of Understanding (MOU) in the month of October, 2012, which is at Exhibit-A along with the complaint. In MOU the scope of services was to be provided by opponent no.2 are finalized and narrated. As per MOU the terms of policy are to be procured through the opponent no.1. The requirements were explained to the opponent no.2. It was for the opponent no.2 to find out suitable insurer. Opponent no.2 found out opponent no.1 as insurer as per the requirements of the complainants.
(32) It is the stand of the complainant that the opponent no.2 is agent of the opponent no.1. The opponent no.2 arranged meeting between the authorized representative of the complainant no.1 and opponent no.1. However, the opponent no.2 in written version denied that he is agent of the opponent no.1. However, Opponent no.1 in written version at paragraph no.4 in clear terms admitted that the opponent no.2 being one of the official agents of the opponent no.1 arranged meeting between the authorized representative of the complainant no.1 and the opponent no.1 with an intention to discuss the interest of the complainants to secure and avail accident and health CC/14/179 22/29 insurance cover for Indian Seafarers. Accordingly, opponent no.1 issued the insurance policy to the complainants considering the Indian seafarers and requirements of the complainants. In paragraph no.5 it is also admitted that Group Personal Accident Insurance Policy was purchased by the complainants on 12/10/2012. Insurance policy upon the agreed terms and conditions was to cover Indian Seafarers while on shore.
(33) Opponent no.2 in written version denied that opponent no.2 is an insurance agent and submitted that opponent no.2 is only consultants. The opponent no.2 is a service provider and accepted consultancy charges from the complainants. The opponent no.2 admits that the opponent no.2 had arranged meeting with the authorized representative of the opponent no.1 on 10th July, 2012. In the said meeting the complainant no.1 explained in detailed reason and rationale behind availing insurance cover for on shore seafarers and their staff. The complainant no.1 clarified explicitly as to how and why they required the insurance cover for the seafarers. The complainant no.1 also expressed that they were interested in availing insurance for seafarers. In view of the admission on behalf of the opponent no.1 and submissions made by the opponent no.2 in written version as well as in affidavit of evidence we hold that the opponent no.2 is the agent of the opponent no.1. It is to be noted here that the opponent no.2 tried its level best to procure best insurance cover for the complainant no.1. One claim of the complainants was settled by opponent no.1 through intervention of opponent no.2. Opponent no.2 has settled over 20 claims for office staff and seafarers. Certainly he has done all these acts as an Agent of the opponent no.1.
CC/14/179 23/29(34) Seafarer Saurabh Sureshrao Wadwalkar died due to an accident when he was on shore. Complainant no.1 persuaded the claim under the policy with the opponent no.1. The claim of the complainants was repudiated by the opponent no.1 by letter dated 19th February, 2013 on the ground that deceased was contractual employee and was not covered under the said policy. After repudiation of claim the complainant no.1 addressed letter dated 5th April, 2013 to opponent no.1, which is at Exhibit-Q. The opponent no.1 replied the letter as per Exhibit-R dated 17th June, 2013. The complainant no.1 disputed contents of letter. Said letter dated 17th July, 2013 was sent to the Insurance Regulatory and Development Authority by the complainant no.1 vide letter dated 9th July, 2013. The letter dated 9th July, 2013 was replied by the opponent no.1.
(35) It appears that death claim of Saurabh Sureshrao Wadwalkar was rejected on the ground that the deceased was not the permanent employee but the contractual seafarer. He was never intended to be covered under the policy. In repudiation letter it is the stand of the opponent no.1 Insurance Company that only permanent employees at MMS Maritime India Pvt. Ltd., who are on shore are covered. The policy is for permanent employees of MMS Maritime India Pvt. Ltd. As per letter dated 8th February, 2013 issued by MMS Maritime (India) Pvt. Ltd., deceased Saurabh Sureshrao Wadwalkar was contractual employee at MMS Maritime (India) Pvt. Ltd. Repudiation letter is at Exhibit-P at page 121. In repudiation letter it is said that "In view of the above, we regret to inform you that your claim against the subject policy is not payable on account of material non-disclosure that the deceased was a Contractual Employ. Please note that no benefits are payable under the above mentioned policy to the insured."
CC/14/179 24/29(36) Ld.Counsel Shri Vidyarthi for opponent no.1 has drawn our attention to page 119. It is the letter dated 8th February, 2013 issued by the complainant no.1 to the Manager of the opponent no.1. In this letter, Type of employment of deceased Saurabh Sureshrao Wadwalkar is shown as 'Contractual'. Ld.Advocate Mr.Vidyarthi urged on the basis of Group Personal Accident Schedule - Exhibit G that policy is for permanent employees (seafarers) MMS Maritime India.
(37) To counter blow the plea, Advocate Mr.D'souza for the complainants argued that the opponent no.1 did not find any defect while granting claim of the complainant no.3 under the Mediclaim policy. The claim under the said policy was for lesser amount. When the claim under Group Personal Accident policy is filed it was rejected on unreasonable grounds. There is clear-cut deficiency in service on the part of the opponent no.1.
(38) The Indian Seafarers while on shore are not covered by the P & I Clubs. Therefore, they decided to obtain policy from the opponent no.1 through opponent no.2. Requirements were explained to opponent no.2. The opponent no.2 arranged a common meeting between the parties. The intention and reason for obtaining policy from opponent no.1 was thoroughly discussed in meeting dated 12th July, 2012. At the meeting the arrangement between the complainant no.1, the opponent no.1 and the opponent no.2 qua the Indian Seafarers was explained to the opponent no.2 and the requirements of the complainants qua the purpose and need for an insurance policy were clarified. The issue of Indian Seafarers was made clear in the meeting and brought to the knowledge of the CC/14/179 25/29 opponent no.1. Copy of agreement between the complainant no.1 and the complainant no.2, qua the Indian Seafarers was immediately forwarded to opponent no.2 by e-mail dated 25th July, 2012. The copy of agreement was also forwarded to the opponent no.1 and the opponent no.1 acknowledged the receipt of the agreement. The opponent no.1 confirmed that the insurance policy proposed to be availed would cover the seafarers while on shore. These facts are not challenged by the opponents.
(39) The complainant no.1 and no.2 obtained Group Accident Policy and Group Health Insurance Policy for Indian Seafarers, their spouse and children. The Group Accident Policy was issued in favour of complainant nos.1 and 2. The policy applied in the event of permanent partial disability, permanent total disability and death. The sum insured would not exceed 24 times monthly gainful employment of any person and subject to maximum of Rs.50,00,000/- per insured life. The minimum age of beneficiary was 18 years and maximum age was 70 years. Seafarer - Saurabh Sureshrao Wadwalkar was on shore on 6th October, 2012. He met with a fatal accident in Khardi, Taluka and District Pune. Claim was filed with the opponent no.1 on 26th October, 2012 which was rejected. The complainants provided necessary information of claim to the opponent no.1 after lodging the claim.
(40) It is pertinent to note here that claim was rejected mainly on the ground that deceased was contractual employee of the complainant no.1. It is harped upon by the complainants that the opponent no.2 failed to ensure that the terms of the policy were as per the discussion in meeting. The complainants were shocked to see the terms and conditions of the policy as they realized that terms were CC/14/179 26/29 not as per the discussion in the meeting. It was agreed to cover seafarers on shore, otherwise, there was no use of obtaining policy from the opponent no.1. Wrongful repudiation of the claim amounts to deficiency in service.
(41) The opponent no.1 has allowed the Mediclaim policy. The terms and conditions of Mediclaim policy and Group Accident Policy are one and the same. While allowing the Mediclaim policy the opponent no.1 did not raise the issue that the deceased was contractual employee. This issue was raised only when claim was lodged under Group Accident Policy. The terms and conditions mentioned in Medicalim policy are not disputed. Indian Seafarer died prior to receipt of full terms and conditions. Therefore, objection could not be raised pertaining to terms and conditions of policy before lodging the claim. The opponent no.1 was supposed to issue policy with terms and conditions as agreed in the meeting. If the terms are not as per the discussion the opponent no.1 could have repudiated the mediclaim also. But, the Mediclaim in respect of deceased was allowed and benefit under Group Accident Policy was repudiated. Rejection of claim defeats the purpose of obtaining the policy. The Opponent no.1 repudiated the claim under Group Accident Policy without any sufficient reason. It amounts to deficiency in service. The opponent no.1 is guilty of deficiency in service.
(42) However, the opponentno.2 cannot be said to be a guilty of deficiency in service. The opponent no.2 is an Agent of the opponent no.1. At its instance meeting was held between the parties to discuss terms and conditions of the policy. The opponent no.2 collected documents and papers for the claim since the complainant CC/14/179 27/29 no.1 informed the opponent tno.2 about the death of seafarer. The opponent no.1 had appointed surveyor to scrutinize the documents who conducted a physical and document verification. The opponent no.2 acted to counsel to the complainant no.1 about the claim and assisted the complainant no.2 to keep all the documents in place. It is submitted on behalf of the opponent no.2 that the complainant no.1 and opponent no.2 were dumbstruck to find the reason for rejection of the claim. The opponent no.2 pleaded and harped upon the fact that opponent no.1 was well aware that the policies were taken for seafarers on shore. It is pleaded that the opponent no.1 was regularly taking insurance for seafarers, itself suggests that seafarers are on contractual basis. The opponent no.1 is in the business of Insurance Company over many years. The opponent no.1 should be well versed with the terminology and aspects to the seafarers.
(43) As per own pleading of the opponent no.2 it has settled various claims of the complainant no.1 with opponent no.1. The opponent no.2 was shocked by seeing the reason of repudiation of the claim filed by the complainants. It is the pleading and argument on behalf of the opponent no.2 that opponent no.1 was aware of the situation and repudiation based on the reason which is frivolous. The opponent tno.2 has tried its level best to procure the claim with the Insurance company through the complainant no.1. The opponent no.1 did not have any issue for clearing the claim for mediclaim for seafarer but have issue for settling the claim for accident policy. Under these circumstances, the opponent tno.2 cannot be said to be deficient in service. In view of above discussion we hold and declare that opponent no.1 is guilty of deficiency in service. Opponent no.2 is not guilty of deficiency in service.
CC/14/179 28/29As to point nos.(iii), (iv), (v), (vi) and (vii):
(44) It is duly proved that the opponent no.1 has wrongly repudiated the claim under Group Accident Insurance Policy and guilty of deficiency in service. The complainant is mother of late Saurabh Sureshrao Wadwalkar. At the time of accidental death of her son valid insurance policy was in force. Being mother the complainant is entitled to get amount of Rs.50,00,000/-. She was dependent on the deceased. The complainant no.3 is entitled to claim amount of Rs.50,00,000/- under Group Accident Insurance Policy from the opponent no.1.
(45) The complainant no.3 lost her son in an accident. The genuine claim was repudiated by the opponent no.1. Complainant no.3 is entitled for compensation of Rs.1,00,000/- for mental pain and agony and amount of Rs.1,00,000/- towards deficiency in service. The complainants required to file the consumer complaint to get the justice. They are required to appoint counsel to contest consumer complaint. The complainants are entitled to get amount of Rs.50,000/- towards costs of litigation. Accordingly, we hold that complainant no.3 is entitled to get amount of Rs.50,00,000/- as claim under the policy, amount of Rs.1,00,000/- as compensation for mental pain and agony, amount of Rs.1,00,000/- on account of deficiency in service and amount of Rs.50,000/- towards costs of litigation from the opponent no.1. The opponent no.1 is liable to pay the above amounts to the complainant. The opponent no.1 is liable to pay interest @9% per annum on amount of Rs.50,00,000/-
from the date of repudiation of claim i.e. since 19th February, 2013 CC/14/179 29/29 till realization of the amount. In the result we pass the following order:
ORDER
(i) Consumer complaint is partly allowed against opponent no.1.
(ii) It is hereby declared that opponent no.1 is guilty of deficiency in service.
(iii) Opponent no.1 is directed to pay amount of Rs.50,00,000/- (Rupees Fifty Lacs Only) to the complainant no.3 under Group Accident Insurance Policy with interest @9% per annum from the date of repudiation of claim i.e. since 19th February, 2013 till realization of the entire amount.
(iv) The opponent no.1 do pay to the complainantno.3 amount of Rs.1,00,000/- (Rupees One Lac only) towards compensation for mental pain and agony and amount of Rs.1,00,000/- (Rupees One Lac only) as compensation on account of deficiency in service.
(v) The opponent no.1 do pay an amount of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant no.3 towards costs of litigation and shall bear its own costs.
(vi) Consumer complaint stands dismissed against opponent no.2
(vii) Copies of this order be furnished to the parties Pronounced on 30th November, 2018.
[Usha S. Thakare] Presiding Judicial Member [A.K. Zade] Member ep