State Consumer Disputes Redressal Commission
Jsw Ispat Steel Pvt. Ltd., vs National Insurance Co. Ltd., on 7 November, 2017
`STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/11/328
M/s.JSW Steel Ltd.
Formerly known as Ispat Industries Ltd.
Registered office at
JSW Centre, Bandra Kurla complex
Bandra (E), Mumbai 400 051.
And its corporate office at
Casablanca, Plot no.45
Sector 11, CBD Belapur, Navi Mumbai
Through their Authorized representative
Mr.Biswajit Pal, Assistant Manager (Legal) .....Complainant
Versus
National Insurance Co.Ltd.
Registered office at 3 Middleton Street
Kolkata 700 071 and
Mumbai Divisional office at
Sterling Building, 1st floor
65, Marzban Road
Mumbai 400 001. .........Opponent
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
A.K.Zade, Member
PRESENT:Mr.Ajay Pawar -Advocate for complainant
Mr.Sanjay Krishnan-Advocate for opponent.
ORDER
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
1. M/s.JSW Steel Ltd. has filed consumer complaint against opponent- M/s.National Insurance Co.Ltd. u/sec.12 r/w. section 17 of Consumer Protection Act, 1986 by alleging deficiency in service. The consumer complaint is filed to direct the opponent to pay sum of Rs.97,24,874.20 ps. with interest @ 18% p.a. till the date of payment. Cost of litigation is also claimed.
12. The complainant is a company incorporated under the Indian Companies Act, 1956. The complainant was formerly known as "Ispat Industries Ltd." Presently, it is known as M/s.JSW ISPAT Steel Ltd. w.e.f. 28/06/2011. The complainant is engaged in the business of manufacturing steel and inter-alia owned the mother vessel 'Ispat Star'. The opponent is a company incorporated under the Indian Companies Act, 1956 and is a leading insurance service provider in India providing insurance services to various sectors. The opponent has its registered office at Kolkata and Divisional office at Mumbai. Sometime in the year 2007, complainant applied to opponent for providing an insurance cover with respect to vessel "Ispat Star". Pursuant to the application, the opponent issued a Marine Hull and Machinery Policy No.260200/22/07/4100000010 on 30/11/2007 for a period of one year starting from 30/11/2007 on payment of premium of Rs.13,86,916/-. Insured value was Rs.30 crores.
3. The vessel had obtained all statutory permissions and was regularly carrying out operations as instructed by the complainant complying with the warranties and conditions as mentioned in the said insurance policy. According to complainant, the vessel in usual course of her operations arrived at Outer Anchorage at the port of Kandla on 21/01/2008 and was awaiting berthing. Eventually, the said vessel got her turn to berth on 28/01/2008. The said vessel was struck head-on by another vessel MV 'Yong Sheng' resulting in damage to the said vessel on the bow areas at about 1728 hours. The collision incident also resulted in personal injuries sustained by five crew members, the Pilot and the Master as well. The complainant duly intimated the opponent through their brokers on the same day i.e.28/01/2008 about the collision incident with respect to said vessel. Subsequently, on 30/01/2008, the opponent appointed M/s.J.Basheer & Associates Surveyors Pvt.Ltd., as the surveyor in the matter to conduct survey of the collision damage sustained by the said vessel. The said surveyors conducted a detailed survey on 31/01/2008 of the said vessel which was at Port of Kandla.
24. Sometime in January 2009 the complainant duly lodged its claim for Rs.3,81,04,224/- with the opponent on account of damage suffered by the said vessel. The said surveyors appointed by the opponent, published their conclusive report on 15/07/2009 after conducting a detailed enquiry assessing the damage sustained by the said vessel as a consequence of the collision. The complainant received survey report on 20/11/2009. In survey report dated 15/07/2009, it was confirmed by the surveyors that there was in fact a physical damage to said vessel due to the collision with MV 'Yong Sheng'. The surveyors analyzed the damage to the tune of Rs.87,31,105.68, which should be paid as a 'reasonable cost' for repairing the said vessel, after deducting the deductibles under the said insurance policy i.e.Rs.19,00,000/-. Thus, the total amount of Rs.68,31,106/- became due and payable by the opponent to the complainant under the terms of said insurance policy.
5. It is alleged by the complainant that complainant agreed to the 'reasonable cost' as concluded by the surveyors in their survey report dated 15/07/2009 and again pursued with the opponent for settlement of their claim. However, instead of making any payments to the complainant, as concluded by the said surveyors, the opponent by its letter dated 17/12/2009 enquired with the complainant with regard to the steps taken against the vessel MV 'Yong Sheng' and/or her owners for recovery of the damages. Complainant by letters dated 24/12/2009 and 19/01/2010 sought to explain and clarify to the opponent in detail their position vis-à-vis the vessel MV 'Yong Sheng' and/or her owners. The complainant requested the Insurance company to settle the claim.
6. On 19/01/2010, the opponent by their e-mail addressed to the complainant's Solicitors in London, sought to accept and acknowledge that the amount as suggested by the said surveyor was payable to the complainant. Thereafter, the complainant, repeatedly through their e-mails reminded the opponent to settle their long standing legitimate claim under the said insurance policy. However, the opponent neither replied the 3 reminders nor took any steps to settle the claim. Ultimately, the complainant issued notice through advocate to the opponent on 19/09/2011, which was duly received by the opponent. It was neither replied nor complied. It is alleged that the opponent is interested in prolonging the claim and to harass the complainant. The opponent failed and neglected to settle the valid and genuine claim of the complainant. The complainant has suffered loss. Hence complainant has filed complaint to direct the complainant to pay a sum of Rs.97,24,874.20 with interest and costs of the proceedings.
7. The opponent opposed the consumer complaint by filing written version and denied all adverse allegations. It is specifically denied that the opponent is guilty of deficiency in service. It is submitted that the complainant has not come with clean hands before this Commission. The insured 'Ispat Industries Ltd.' applied to opponent in 2007 for providing an insurance cover with respect to its vessel 'Ispat Star', wherein they claimed to be the owner of the said vehicle. The opponent issued policy covering their vessel for the period 30/11/2007 to 29/11/2008. The said vessel collided with another vessel MV 'Yong Sheng' on 28/01/2008 at Kandla port. The officer of the insured by their e-mail dated 28/01/2008 informed the opponent about the collision. The opponent immediately appointed J. Basheer & Associates as surveyor to assess the damage and loss to the vessel. The surveyor conducted survey of the vessel on 31/01/2008. The insured lodged their claim with opponent in January 2009. The surveyor in his report dated 15/07/2009 observed that the insured has not submitted the repair estimates, which repairs are required to be undertaken on the vessel. Thereafter, the insured allegedly repaired and scrapped the vessel without informing the opponent or the surveyor and without giving opponent and their Assessing surveyor an opportunity to inspect the vessel for final assessment of the actual repairs carried out and to calculate the actual cost of the repair.
48. It is further submitted that the opponent has paid Great Britain pound 51,900 to the insured to be paid to the Solicitors in London, UK to protect the right of recovery against the other offending Vessel "Yong Sheng". In spite of repeated request the Insured has avoided providing credible details on the said recovery proceedings. The insured is duty bound to protect and preserve the Right of recovery against the other vessel. The insured failed to take steps to initiate any legal action against the other vessel to protect the rights of recovery. The complainant suddenly issued an advocate notice dated 19/09/2011 to opponent and its officer demanding recovery of the amount of Rs.68,31,106/-.
9. The opponent denies that the complainant was formerly known as "Ispat Industries Ltd." presently known as "JSW Steel Ltd." w.e.f. 28/06/2011. It is stated that "Ispat Industries Ltd." and "JSW Steel Ltd." are two distinct legal entities. The opponent is not aware about any transaction of purchase of majority shares of the insured by the complainant or any arrangement amongst them, as the insured and/or the complainant have neither informed nor have they produced any relevant documents before this Commission or provided to opponent. The opponent is not aware about status of the complainant and their activity. The opponent issued policy to insure covering their vessel "Ispat Star". The complainant is the stranger to the insurance contract. It is the insured that has paid the premium towards the policy. Therefore, complainant cannot be considered as 'consumer'. The vessel was under the ownership and trial of the insured. It was the representative of the insured, who by their official e-mail informed the opponent about collision. The complainant is not the insured. The policy is in the name of the insured. The complainant came into existence on 28/09/2011. Therefore, policy dated 30/11/2007 could not have been in the name of the complainant. The insured has not informed the opponent about any arrangement with the complainant. Legal entity which did not exist at the time of incident cannot have contacted, informed and/or 5 intimated either this opponent or even the surveyor. It was the insured who lodged the claim with opponent. The complainant made vague statement.
10. It is further submitted that survey report of J.Basheer & Associates dated 15/07/2009 is a report assessing the preliminary damages sustained by the vessel. Said report is not conclusive one. The insured did not submit repair estimate to the opponent for its consideration. The opponent performed their part of contract but the insured has failed, avoided and ignored to perform their part of contract. The amount of Rs.68,31,106/- was only an assessment of loss towards reasonable cost of damage repairs and associated expenses, which was agreed to by the insured. The reasonable cost of damage repair and associated expenses is just and fair estimation worked out by the surveyor and the insured and it is not the actual cost of the repair work carried out on the said vehicle. The complainant has concealed and avoided bringing this fact before the Commission. The insured did not provide any repair quotation for the opponent's surveyor's consideration. The insured did not inform the opponent while carrying out the repair. Insured disposed of the vessel as a scrap even before the inspection of the damage repair carried out and finalizing the assessment of loss by the surveyor. There is a breach of terms of policy conditions. The insured has tried to make a false claim. It is denied that the opponent accepted and acknowledged the amount as suggested by the surveyor, was payable to the insured or to the complainant. The complaint is mischievous. The complainant never communicated with the opponent on the subject matter of the insurance i.e. Ispat Star. The surveyor's report is not binding on the opponent. It is only a guiding factor either to allow or decline the claim. The complainant is not insured. The complainant has nothing to do with the vessel. Due to breach of policy conditions, the complaint is liable to be dismissed with costs.
11. On these pleadings of the parties, following points arise for our determination and we record our findings for the reasons below:-
6 Sr.No. Points for consideration Findings
1 Whether complainant is a consumer? Yes
2 Whether consumer complaint is Yes
maintainable?
3 Whether opponent is guilty of Yes
deficiency in service?
4 Whether complainant is entitled to Yes, As per final order
claim? If yes, to what extent?
5 What order? As per final order
12. Heard learned counsel Mr.Ajay Pawar for the complainant and Mr.Sanjay Krishnan-Advocate for opponent.
As to point nos.1 & 2:
13. The opponent raised the objection pertaining to tenability of consumer complaint. It is urged that the insurance policy is in the name of 'Ispat Industries Ltd.' and the cover is available to 'Ispat Industries Ltd.' for its vessel named 'Ispat Star'. The insurance policy was issued on 10/11/2007. The alleged incident of collision occurred on 02/01/2008. The claim for damages was filed by 'Ispat Industries Ltd.' with the opponent around January 2009. All the correspondence in this claim is exchanged by the officers of 'Ispat Industries Ltd.' However, the complaint is filed by "M/s.JSW Ispat Steel Ltd." and the insurance cover was in the name of 'Ispat Industries Ltd.' The complainant failed and avoided to plead and support their claim with valid corroborative evidence as to how any legal right has accrued upon present complainant "M/s.JSW Ispat Steel Ltd." when insurance cover is in the name of 'Ispat Industries Ltd.' The insured has never informed the opponent about any change of management and, therefore, complaint is required to be dismissed on the ground that the complainant is not insured and does not hold any insurance policy in its name. The complainant is not entitled to file said complaint as it does not hold any insurance policy.
714. It is vehemently urged on behalf of the opponent that the complainant is a corporate body with operations in iron, steel, mining, energy and infrastructure. The complainant is primarily formed for a commercial activity. The complainant is among top 20 business houses in the country and leader in national speciality steel market. The insured had availed the services of the opponent for protection and enhancement of its commercial interest in its business activity. The services availed off by the insured is for commercial purposes and therefore, complainant cannot be termed as 'consumer' under the provisions of Consumer Protection Act, 1986. Therefore, complaint filed by the complainant is not tenable and this Commission has no jurisdiction to decide the consumer complaint.
15. During the course of arguments learned counsel Mr.Pawar has drawn our attention to the pleadings of the complaint. The complainant in clear terms stated in the cause title and discussed in the complaint that the complainant was formerly known as 'Ispat Industries Ltd.' and with effect from 28th June 2011, its name changed to 'JSW Ispat Steel Ltd.' and presently known as 'JSW Steel Ltd.' w.e.f. 01/06/2013. It is argued that 'JSW Steel Ltd.' bought majority stake into 'Ispat Industries Ltd.' in the year 2011 and subsequently, the complainant was renamed as 'JSW Ispat Steel Ltd.' Due to acquisition by JSW Steel Ltd., the entity 'Ispat Industries Ltd.' did not cease to exist and/or its rights and liabilities did not extinguish, but it was merely renamed and, therefore, the complainant has all the rights, title and interest to claim under the insurance policy. Learned Advocate Mr.Pawar has drawn our attention to Certificate of Incorporation consequent upon change of name issued by Government of India-Ministry of Corporate Affairs, which is at Exhibit 1 of complaint compilation.
16. Government of India-Ministry of Corporate Affairs, Registrar of Companies, West Bengal issued a fresh Certificate of Incorporation consequent upon change of name. Registrar of Companies, West Bengal certified that 'Ispat Industries Ltd.' which was originally incorporated on 23/05/1984 under the Companies Act, 1956 has changed its name to JSW 8 Ispat Steel Ltd. from 28th June, 2011. The said certificate issued by Government of India-Ministry of Corporate Affairs, Registrar of Companies, West Bengal, supports the pleadings and submission of the complainant.
17. The Hon'ble High Court, Bombay, vide its order dated 3rd May, 2013, sanctioned a composite scheme of Amalgamation and arrangement amongst JSW Ispat Steel Ltd., JSW Building Systems Ltd., JSW Steel Coated Products Ltd., and JSW Steel Ltd. and their respective shareholders and creditors. Therefore, with effect from 1st June, 2013, the complainant is known as JSW Steel Ltd. The copy of the High Court order dated 03rd May 2013 and copy of Form no.21 filed with Registrar of Companies is annexed to the complaint compilation at Exhibit-2 and Exhibit-3. In view of the above changes, the complainant has all rights, title and interest to claim under the insurance policy.
18. Marine Hull and Machinery Policy bearing no.13060011100100200339 for the period from 07/10/2010 to 06/10/2011 was issued in favour of the complainant by the opponent. It was valid when the insured vessel met with an accident. The claim for damages was filed by the complainant with the Insurance Company. The collision incident was communicated to the opponent on the same day i.e.28/01/2008. At the time of accident, insurance policy was in force. Claim of the insured was not considered by the opponent well within time. It was neither accepted nor rejected. Consequently, consumer complaint came to be filed on 13/12/2011. At that time name of the insured was changed. In all fairness, the complainant has disclosed old name of the complainant as well as changed name in the complaint as well as in the title clause. Subsequent change was again noted down in the complaint by way of amendment. If the complainant has filed complaint is filed in the original name, certainly the opponent would have taken objection to the old name and tenability of consumer complaint on that ground. On the date of filing consumer complaint, the company was known as "JSW Ispat Steel Ltd." Therefore, consumer complaint was 9 rightly filed by the complainant in the said name. Subsequently, the name was again changed to "JSW Steel Ltd." as per order passed by Hon'ble High Court.
19. Opponent should have decided the claim of the insured within reasonable period. If the claim was decided within reasonable time, prior to change in name i.e. prior to 28/06/2011, then the insured was in a position to file the consumer complaint in the name of 'Ispat Industries Ltd.' that is the name which was prevailing at that time. Due to subsequent change, insured was constrained to file the consumer complaint in the existing name. Thus, it is clear that complainant, 'Ispat Industries Ltd.', 'JSW Ispat Steel Ltd.' and 'JSW Steel Ltd.' are one and the same entity. The change of name was approved by Registrar of Companies. The change was communicated to general public. The change was effected on the basis of public documents. In view of the above discussion, we are of the opinion that consumer complaint is maintainable before this Commission.
20. The opponent has raised another objection for tenability of the complaint on the ground that consumer complaint is not filed by Mr.Sanjay Mishra, who was authorized to file consumer complaint by resolution dated 12/11/2010 passed in a meeting of Board of Directors of 'Ispat Industries Ltd.' Learned counsel Mr.Krishnan has drawn our attention to the resolution dated 12/11/2010 and urged that Mr.Sanjay Mishra was never permitted to delegate his powers. The consumer complaint is filed by Assistant Manager (Legal) Mr.Biswajit Pal. The complaint is not tenable as it is not filed by the authorized person.
21. It is true that Board of Directors of the complainant company resolved that Mr.Sanjay Mishra, Vice President (Legal) be and is hereby appointed as the attorney of the Company, in place and instead of Mr.Hemant Kumar, for such purposes and such powers, authorities and discretions as embodied in the draft Power of Attorney. Mr.Vinod Garg, Executive Director (Commercial) of the Company was severally authorized to execute, on behalf of the Company, the said Power of Attorney, in favour 10 of Mr.Sanjay Mishra, Vice President (Legal).
22. We have perused authority letter dated 23/11/2011. It shows that Mr.Sanjay Mishra, Constituted Attorney of 'Ispat Industries Ltd.' now known as "JSW Ispat Steel Ltd." authorized Mr.Biswajit Pal, Assistant Manager(Legal) as authorized representative of the company for signing and filing the complaint before the State Commission in the matter of JSW Ispat Steel Ltd. v/s. National Insurance Co.Ltd. The authorized representative was authorized to take all appropriate steps incidental thereto in this regard on behalf of the company and to do the needful acts.
23. The consumer complaint is signed, verified and filed by Mr.Biswajit Pal, Assistant Manager (Legal) on the basis of the authority letter dated 23/11/2011 issued by Mr.Sanjay Mishra. Mr.Sanjay Mishra was constituted attorney of the complainant company. As Constituted Attorney in pursuance of power of attorney dated 15/11/2010 authorized Mr.Biswajit Pal to sign and file the consumer complaint. Mr.Biswajit Pal was authorized to sign pleadings, to execute documents, writings or assurances and declarations to protect the interest of the company, to institute, sign, verify and file any application and to engage an advocate. Mr.Sanjay Mishra, Constituted Attorney exercised his powers and authorized Mr.Pal to file the complaint. It cannot be said without authority. Mr.Mishra acted on the basis of power of attorney executed in his favour. The act cannot be said to be illegal. Considering the authority letter dated 23/11/2011, Mr.Pal was entitled to file consumer complaint. It cannot be termed as without any authority. The objection is untenable. The consumer complaint filed by Mr.Pal is tenable.
24. Advocate Mr.Sanjay Krishnan for opponent vehemently urged that complainant cannot be termed as 'consumer' and the consumer complaint is not tenable. The complainant is engaged into commercial activity for commercial gains. Hence, complainant cannot be termed as 'consumer' within the meaning of section 2(1)(d) of Consumer Protection Act, 1986. He has harped upon the fact that the complainant is a corporate body with operations in iron, steel, mining, energy and infrastructure. The complainant 11 is primarily formed for a commercial activity. The complainant is among top 20 business houses in the country and leader in national speciality steel market. The insured had availed the services of the opponent for protection and enhancement of its commercial interest in its business activity. The services availed off by the insured is for commercial purposes, which purpose is expressly excluded from the ambit of Consumer Protection Act, 1986. Therefore, complaint filed by the complainant is not tenable and this Commission has no jurisdiction to decide the consumer complaint.
25. We are not impressed by the arguments advanced on behalf of the complainant. The consumer complaint is based on the contract of indemnity. It is admitted fact that Marine Hull and Machinery Policy bearing no.13060011100100200339 for the period from 07/10/2010 to 06/10/2011 was issued in favour of the complainant by the opponent after accepting premium from the complainant. The opponent agreed to provide services to the insured. The opponent is especially service insurance provider. The complainant becomes a 'consumer' of opponent on payment of insurance premium. The contract of insurance has nothing to do with 'commercial purpose'. By procuring insurance policy complainant did not earn any revenue or profit. The policy was obtained to protect the assets of the company against the loss. Availing of services from the opponent does not mean that services were hired for 'commercial purpose'.
26. In case of M/s.Polyplex Corporation Ltd. v/s. National Insurance Co.Ltd. and others reported in 2017(2)CPR 58 (NC), in para 7 Hon'ble National Commission held 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 12 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 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".
27. We find no hesitation to hold that complainant is a 'consumer'. Consumer complaint filed by the consumer is maintainable before the State Commission. The complainant has filed consumer complaint to agitate the consumer dispute. The complainant has raised allegations of deficiency in service against the opponent. This Commission has jurisdiction to decide the consumer dispute. In view of these reasons, we find no hesitation to answer point nos.1&2 in affirmative. Hence, we answer point nos.1&2 in affirmative.
13As to point no.3:
28. To substantiate the allegations of deficiency in service, Mr.A.C. Manoharan Nair, working as Junior Manager of complainant company has filed affidavit of evidence. To give counter blow, Mr.Sheroo S.Bhansali, Divisional Manager of National Insurance Co.Ltd. has filed an affidavit. The opponent has also relied on affidavit of surveyor Mr.J.Basheer. Both the parties have relied on various documents.
29. It is admitted fact that the complainant is a company incorporated under the Companies Act, 1956. The opponent is also a company incorporated under the Companies Act, 1956 providing insurance services. The complainant company applied to opponent for providing an insurance cover with respect to vessel 'Ispat Star'. The opponent issued a Marine Hull and Machinery Policy No.260200/22/07/4100000010 on 30/11/2007 for a period of one year starting from 30/11/2007 on payment of premium of Rs.13,86,916/-. The policy was valid during 30/11/20007 to 29/11/2008. Insured value was Rs.30 crores. During the insurance coverage the vessel met with an accident. The vessel arrived at Outer Anchorage at the port of Kandla on 21/01/2008 and was awaiting berthing. Eventually, the said vessel got her turn to berth on 28/01/2008. The said vessel was struck head- on by another vessel MV 'Yong Sheng' resulting in damage to the said vessel on the bow areas at about 1728 hours. The collision incident also resulted in personal injuries sustained by five crew members, the Pilot and the Master as well. The incident of collision is not in dispute.
30. The evidence and the documents on record show that the complainant duly intimated the opponent through their broker about the collision on the day of accident i.e.28/01/2008. The document to that effect is at Exhibit B. On 30/01/2008, the opponent appointed M/s.J.Basheer & Associates Surveyors Pvt.Ltd., as the surveyor in the matter to conduct survey of the collision damage sustained by the said vessel. The said surveyors conducted a detailed survey on 31/01/2008 of the said vessel and submitted a report on 15/07/2009, which is at Exhibit C, page no.40 of complaint compilation.
14The claim of the complainant was neither rejected nor accepted by the opponent.
31. The survey report dated 15/07/2009, clearly shows that there was in fact a physical damage to the vessel "Ispat Star" of the complainant, due to collision with another vessel MV 'Yong Sheng'. The surveyor engaged by the opponent after analyzing the damage sustained by the said vessel due to the collision incident and concluded that an amount of Rs.87,31,105.68 should be paid as a 'reasonable cost' for repairing the said vessel, after deducting the deductibles under the said insurance policy i.e. Rs.19,00,000/- . Thus, the total amount of Rs.68,31,106/- was calculated by the surveyor of the opponent as damages.
32. The complainant has filed on record correspondence between the parties. The complainant agreed to the reasonable cost as concluded by the surveyor in the survey report. The complainant pursued with the opponent for settlement of the claim. The opponent by letter dated 17/12/2009 enquired with the complainant with regard to the steps taken against the vessel MV 'Yong Sheng' and/or her owners for recovery of the damages. Vide letters dated 24/12/2009 and 19/01/2010 the opponent directed the complainant to explain and clarify to the opponent in detail their position vis-à-vis the vessel MV 'Yong Sheng' and/or her owners. Copies of the letters are at Exhibit D, E & F. On 19/01/2010, the opponent by their email addressed to the complainant's Solicitors in London, copy of the same was sent to complainant, sought to accept and acknowledge that the amount as suggested by the said surveyor was payable to the complainant. Copy of email dated 19/01/2010 is at Annexure G of complaint compilation. Record shows that the complainant repeatedly requested the opponent by emails to settle their long standing legitimate claim under the insurance policy. It is brought to our knowledge that those emails were not replied. No steps were taken by the opponent to settle the claim. Emails are at Exhibit H. We find substance in the arguments advanced on behalf of the complainant that inordinate delay in settlement of the genuine claim amounts to deficiency in 15 service against the opponent.
33. Learned counsel for the opponent Mr.Krishnan urged that the claim of the insured was not decided due to want of substantial information. Delay was caused solely due to insured's own conduct of not responding to repeated communications. The complainant cannot take advantage of its own wrong.
34. We do not find any substance in this submission. The opponent failed to respond emails sent by complainant. Requests were neither replied nor complied. A reputed insurance company cannot be expected to take unusual long time in taking final decision of claim filed by the insured. The opponent appointed the surveyor. The surveyor submitted his report and counted 'reasonable cost' for loss/damages. The complainant had agreed to accept 'reasonable cost' as concluded by the surveyor but the surveyor's report was not acted upon. No satisfactory reason was given by the Insurance company for not accepting the report of the surveyor appointed by the opponent itself. Report of the surveyor has a probative value. Surveyors are appointed under the statutory provisions and they are the link between insurer and insured when question of settlement of loss or damage arises. The accident occurred in the year 2008 and till today the claim of the complainant is not finalized by the insurance company.
35. Annexure G in complaint compilation is the letter written by the opponent to Solicitors of the complainant, which is at page no.82 of complaint compilation. Said letter was in response to email dated 18/01/2010. It is mentioned in the said letter that 'PA claim of the ISPAT STAR has been assessed finally for INR 87,31,106 (before application of policy deductible of INR 19,00,000). Please note that fees paid/payable have not been included in this figure. Matter has been referred to Average Adjuster and we are awaiting their Final report."
36. The opponent has raised another objection and criticized the complainant by saying that the complainant failed and neglected to provide necessary documents to opponent. The complainant did not repair the vessel 16 but sold as scrap. It is harped upon the fact that M/s.J.Basheer and Associates Surveyors Pvt.Ltd. submitted their report dated 15/07/2009 observing that insured has not submitted the detailed assessment, which are undertaken on the vessel. It is the duty of the insured to firstly provide the quotation to the opponent and thereafter, the surveyor shall assess the quotation and upon communication from the opponent on an agreed quotation, the insured ought to carry out the repair in the presence of the Assessing Surveyor and upon completion of the repair a final survey shall be conducted and thereafter only upon furnishing of the actual repair bills by the insured the claim would be allowed by the opponent. The insured firstly did not provide any repair quotation for the opponent's surveyor's consideration. Thereafter insured provided three quotations.
37. Copies of affidavit of evidence and the copies of correspondence show that the opponent made baseless allegations against the complainant. By letter at Annexure G of complaint compilation, it is informed to the complainant and their Solicitors that the 'PA claim of the ISPAT STAR has been assessed finally. It is also informed that the matter has been referred to Average Adjuster and they are awaiting their Final report.' On 19/09/2011, notice was issued to the opponent. Time and again it was reminded about pending insurance claim. The notice was not replied by the opponent. The opponent have raised the objections but failed to point out the genuine reasons for non granting genuine claim of the insured.
38. The surveyor in his report held that Pilot of Vessel MV Ispat Star observed to have exercised safe maneuvering as stipulated in Prevention of Collision at sea/Rule of Road. Pilot of MV Ispat Star Captain Vipul Madaan was the senior most Pilot of the Kandla Port, with about10½ years of experience. The Pilot on board MV Yong Sheng Captain M.S.Singh was having only three months of experience in Kandla Port. The collision was occurred due to mistake of Pilot of the Vessel MV Yong Sheng. It is also held that Master of Vessel M.V.Yong Sheng is responsible for the damages caused to the vessel of the insured.
1739. The insured replied the letter dated 05/05/2009. The meeting was held with Insured's representative Mr.Vijay Kumar on 08/05/2009. Insured had forwarded two box files containing several documents of insured. Some documents were illegible. On 12/05/2009 insured furnished certain details/documents. Those documents were perused by the surveyor and subsequently had meeting with the insured on 26/05/2009 to discuss in detail. The details were discussed with insured's representatives Mr.R. Nair and Mr.Vijay Kumar. The surveyor noticed that the vessel was found managed by M/s.Stemships Shipping and Logistics Pvt.Ltd. as on the date of incident. The surveyor opined that the insured neither forward repair specifications and quotations to the surveyor nor arrived at a reasonable repair cost. At the same time, it is observed that the insured had forwarded a comparative statement of three repair work shops. Repair quotations were found to be identical. The surveyor noticed that commencement of repair work was started from 03/03/2008 and completed by 26/03/2008. In spite of all these observations, the surveyor arrived at an amount of Rs.68,31,106/- towards 'reasonable cost' of damages, repairs and associated expenses which were incurred by the insured/complainant. The surveyor assessed the loss to the tune of Rs.68,31,106/- but the claim was not finalized. The survey report was not acted upon.
40. The Hon'ble Apex Court while deciding the issue of settlement of insurance claim in case of valued policy in the matter of Oriental Insurance Co.Ltd. v/s. Ozma Shipping Company and another reported in (2009) 9 Supreme Court Cases 159 in para 18 & 19 held as under:-
"18. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies.18
19. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed."
41. Ultimately, report of adjuster was also received. The details of assessment claim are on record at page no.281 to 286. The opponent had appointed adjuster for assessing the claim. As per said adjuster the claim amount is assessed to Rs.51,16,650/- and as per his addendum report the amount is further assessed to Rs.51,01,602/-. The opponent was supposed to finalize the claim as per report of the adjuster. The report of adjuster M/s.Richards Hogg Lindley was not acted upon. The opponent should have settled the claim as per report of adjuster.
42. The opponent failed to consider the genuine claim of the complainant under the insurance policy. The claim was not considered and it was kept pending for long time. The opponent accepted premium from the complainant. Insurance policy was in force. The opponent avoided to honour the claim of complainant on unreasonable ground. The act of the opponent amounts to deficiency in service. The opponent is guilty of deficiency in service as the opponent neglected and refused to settle the just and valid claim of the complainant. The complainant is entitled for an amount of Rs.51,01,602/- as per report of the adjuster under contract of indemnity in view of insurance policy. The opponent is liable to pay interest @ 9% p.a. on the amount of Rs.51,01,602/- from the date of filing of consumer complaint i.e. 13/12/2011 till realization of amount. Complainant is entitled for an amount of Rs.30,000/- towards costs of litigation. With this view we answer point no.4 for determination in affirmative and pass the following order:-
19ORDER
1. Consumer complaint is partly allowed.
2. It is hereby declared that opponent is guilty of deficiency in service.
3. Opponent is directed to pay an amount of Rs.51,01,602/- with interest @ 9% p.a. from the date of filing of consumer complaint i.e. 13/12/2011 till realization of amount.
4. Opponent to pay an amount of Rs.30,000/- towards costs of litigation to the complainant and shall bear its own.
5. Opponent to comply the above order within a period of two months from the date of this order, otherwise, said amount will carry interest @ 12% p.a. from the date of filing of the consumer complaint till realization of amount.
6. Copies of the order be furnished to the parties.
Pronounced on 07th November, 2017.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER Ms 20