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State Consumer Disputes Redressal Commission

Shri. Akkadevi Matsa Vyavsaya Vikas ... vs United India Insurane Co. Ltd. on 9 March, 2016

RBT/CC/14/575                                                            1/7


      BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
                COMMISSION, MAHARASHTRA, MUMBAI

            Complaint Case No. RBT/CC/14/575 in CC/10/29

Shri Akkadevi Matsa Vyavsaya Vikas
Matchhimar Sahakari Sanstha Maryadit,
Through Gat Pramukh,
Shri Nagaji Vithu Mhatre,
Bhal, Post Vadhav, Tal.Pen, Dist.Raigad.     ...........Complainant(s)
                   Versus
Branch Manager,
United India Insurance Co.Ltd.
Panvel Branch
114/115, Nurani Mansion, Tapal Naka,
Netaji Subhash Chandra Bose Marg, Panvel,
Dist.Raigad.                                 ............Opp.Party(s)

BEFORE:
          P.B.Joshi, PRESIDING JUDICIAL MEMBER
          Narendra Kawde, MEMBER

For the
Complainant:           Adv.Santosh Patil
For the Opp. Party:
                       Adv.Ashita Parmar
                                ORDER

Per Mr. P.B.Joshi, Presiding Judicial Member [1] Consumer complaint was filed with the intention that a policy called 'Marine Hull and Machinery Policy bearing no.121001/22/7/01/0000002 in respect of shipping boat known as 'Devachi Jejuri'. On 05/10/2007, said boat sailed for fishing and when it was returning, it was noticed that water had entered into the room of the engine. On investigation, the leader of the board found that a plank of the board had become loose, due to stroke of some hard and blunt substance. As a result, the flow of water could not be stopped and the boat sank and got drowned in the sea. A claim was lodged by the complainant with the opponent insurance company. A surveyor was appointed by the insurance company. The surveyor filed his report. As per the surveyor, loss RBT/CC/14/575 2/7 weather and it was not under the terms of the policy. The surveyor also reported that for fishing in marine, licence is necessary, but no such licence was produced before the surveyor. After receiving the report of the surveyor, the opponent repudiated the claim of the complainant. This complaint is, therefore, filed by the complainant.

[2] The complaint was resisted by the opponent by filing written version. Admitting the insurance, opponent raised an objection that there was no fishing licence for the said boat and hence insurance company is not liable to pay any amount. It was also contended that loss of the vessel was not because of peril covered under the policy and prayed for dismissal of the complaint.

[3] The complaint was dismissed by this Commission and hence matter went to the Hon'ble National Commission in First Appeal No.330/14. The Hon'ble National Commission remanded the matter to this State Commission for passing a fresh order after recording its finding on the question as to whether the complainant possessed the requisite fishing licence in respect of boat in question on 05/10/2007 or not? If not whether on account of want of the said licence, the insurance company stood relieved from its obligation under the policy or not.

[4] In view of the above discussion and order of the Hon'ble National Commission, following points arise for our consideration and our findings on them are noted as below:-

Points Findings

1. Whether the complainant had a fishing No licence in respect of boat in question on 05/10/2007?

2. Whether on account of want of the fishing Yes licence, the opponent insurance company stood relieved from its obligation under the policy or not.

3. Whether the complainant is entitled for No the amount claimed in the complaint?

4. What order? As per final order.

POINT NO.1 :-

[5] The complainant, even after remand, has not filed any fishing licence. However, he has filed one registration certificate at page no.88. However, that is not fishing licence. It is only registration of the said vessel issued by the Registering Authority, Bandar Adhikari, Mora, Maharashtra Maritime Board, Mumbai. Thus, it is clear that no fishing licence is filed by the complainant even the matter was remanded by the Hon'ble National Commission. Thus, it is clear that there was fishing licence with the complainant in respect of the boat in question on 05/10/2007, the day of incident. Hence, we answer Point No.1 in negative.

POINT NO.2 :-

[6] The learned advocate for the opponent argued that as the complainant was not having fishing licence of the boat on the relevant date, the activity of fishing was illegal and the opponent is thereby relieved to pay the amount under policy. The learned advocate for the complainant has submitted that the claim of the complainant be allowed on Non-standard basis. He relief on the authority reported in III (2006) CPJ 284 (NC), S.Kamala vs. New India Assurance Co.Ltd. It was observed by the Hon'ble National Commission that --

"there is no disputing fact that the appellant had only a registration of the vehicle and had no licence. The very fact that the 'Heading' under which this provision has been made, reads as 'Trading Warranty', makes it clear that would imply that is it the word 'Warranty' which will carry the day one way or the other and in our mind, there RBT/CC/14/575 4/7 terms and conditions of the policy as also the attachment issued to the policy speak of 'Trading Warranty' and in the body of these paras, the crucial word is 'Warranted' vessel. Thus, it will be quite that these both conditions will be indicating or associated with the terms of 'Warranty' as the heading in both the conditions will be indicating or associated with reading of the term 'Trading Warranty' as it appears in the body of the Policy will make clear that violation of any local law (like operating without licence) would at best amount to violation of a 'Warranty' clause. We also have no difficulty in accepting the contents of Section 35(iii) of the Marine Insurance Act, 1963, but in our view, the insurer would have got away with the taking advantage of this provision but for the fact that the Insurance Companies themselves have, for good reasons, decided to settle the claim for breach of 'warranty' treating them as non-standard claim, hence Section 35(iii) of the Marine Insurance Act would stand compromised to that extent as we are reasonably sure that at the time of drawing these 'Guidelines' to be followed by the Insurance Companies, the provisions of Marine Insurance Act, would have been within their knowledge and yet they have agreed to settled the cases on non-standard basis in terms of breach of warranty."

[7] Learned advocate for the complainant has submitted that in present matter, terms and conditions of the policy were not given to the complainant and hence those are not binding on the complainant. The policy is at page no.21 of the complaint compilation. Learned advocate submitted that no terms and conditions were given along with the policy. Advocate for the opponent has submitted that there are standard terms and RBT/CC/14/575 5/7 along with the policy. After going through the policy, we find it is mentioned in the policy that "COMPANY HEREBY PROMIESE AND AGREES with the Assured, their Executors, Administrators and Assigns that they will insure against loss, damage, liability or expense subject to the clauses, endorsements, conditions and warranties mentioned in the schedule and/or attached hereto." On recital in the documents filed on record by the complainant makes the position clear that conditions and warranties were attached to the said policy. Hence, contention of the complainant that conditions and warranties were not given to him and hence those were not binding on the complainant cannot be accepted.

[8] Learned advocate for the complainant has submitted in view of the said authority of the Hon'ble National Commission that claim may be allowed on non-standard basis. Learned advocate for the opponent has contended that as the complainant was not having fishing licence in respect of boat in question on the relevant date, the opponent insurance company is not liable for any payment under the policy. We find much substance in the said submission of the advocate for the opponent as the Hon'ble National Commission in the authority relied by the complainant has observed that the insurance would have got away with the taking advantage of this provision i.e.not having fishing licence. No doubt, in that case, Hon'ble National Commission has allowed the claim under non-standard basis as insurance company itself decided to settle the claim for breach of warranty treating non-standard claim. However, that is not the position in the present case. Fishing without necessary fishing licence is illegal activity and hence that activity cannot be protected as it is against the law and hence the complainant is not entitled for any amount and opponent is not liable to pay any amount as claim.

Oriental Insurance Co.Ltd. However, after going through the said authority, we find that said authority is not helpful to the complainant for the simple reason that in the said case, vehicle insured was for personal use but used on hire and hence settlement of claim on non-standard basis was directed.

[10] The Learned advocate for the complainant has also relied on the authority reported in - I (2000) CPJ 1 (SC) - M/s.Modern Insulators Ltd. vs. Oriental Insurance Co.Ltd. Even that authority is not helpful to the complainant, as it was only on the point that the terms and conditions containing the exclusion clause were not communicated and it was held that respondent cannot be relieved of the liability under policy. Here, that is not the position. Here, we have discussed that required fishing licence was not with the complainant. Fishing activity without fishing licence is an illegal act and hence the facts of those two authorities relied upon by the advocate for the complainant are not helpful to the complainant. In view of the above discussion, it is clear that in absence of the fishing licence in respect of boat in question on the relevant day, the complainant is not entitled for any amount under the policy and the opponent is relieved from the liability of the policy because of the illegal act of the complainant. Hence, we answer the point No.2 accordingly.

POINT NO.3 :-

[11] In view of finding on point no.1 and 2, complainant is not entitled to any amount. Hence, we answer the point no.3 in negative. In view of question of point no.1 to 3, complaint deserved to be dismissed. Hence, we pass the following order.

ORDER (1) Consumer complaint stands dismissed RBT/CC/14/575 7/7 (3) One set of the complaint compilation be retained and rest of the sets be returned to the complainant.

(4) Copies of the order be furnished to the parties free of cost forthwith Pronounced Dated 9th March, 2016.

[P.B.Joshi] PRESIDING JUDICIAL MEMBER [Narendra Kawde] MEMBER pg