AGHANA AQUA FARMS vs Divisional Manager, New India Assurance Co. Ltd.

THIS complaint is filed under Section 12 r/w Section 17 of the Consumer Protection Act, 1986, by M/s. Aghana Farms, Dharwad, against the opposite party-the New India Assurance Co. Ltd., alleging deficiency of service in repudiating the insurance claim.

THE factual matrix of the case as set out in the complaint are as follows : THE complainant had obtained a brakish water prawn insurance for the crop of Tiger Prawns cultivated in 4 ponds covering an area of 3.30 hectares. 3 lakh seeds of P. mondon variety had been stocked in the ponds on 2.4.1995 to mature within 4 months. THE insurance covered a period of 4 months from 20.6.1995 to 19.10.1995 and the sum assured was Rs. 5,88,000/-. THE complainant paid a sum of Rs. 11,995/- towards premium as reflected in the policy issued. When the cultivation process was on, the complainant noticed in August, 1995 that some of the prawns were dying. This information was conveyed to the opposite party, who instructed the complainant to get the prawns tested at the University of Agricultural Sciences, College of Fisheries, Mangalore. Accordingly, a sample was sent for testing and on 24.8.1995 Dr. Indrani Karunasagar, Professor and Head of Deptt. of Microbiology issued a certificate stating that the prawns were dying of a viral disease (Systemic Ectodermal and Mesodermal Baculovirus).

It is alleged that when the certificate was sent to the opposite party with a claim, the opposite party informed that the claim will be considered when a survey report is received. However on 18.12.1995 the opposite party informed that the claim cannot be settled since the mortality has not exceeded 80% in terms of Clause 9 of the policy conditions. Aggrieved by such repudiation, the complainant filed this complaint seeking relief in a total sum of Rs. 9,45,500/-, which included the assured sum of Rs. 5,88,000/-.

THE opposite party have filed their objection contesting the complaint on the following grounds : (1) THE complainant filed the claim on the premises that his prawns were dying due to white-spot disease, furnishing a certificate issued by the College of Fisheries, Mangalore. This report was based on a sample of just 4 dead prawns from out of the 3 lakh prawn seeds stocked in the 4 ponds. THE College authorities had issued the certificate without even a visit to the farm to see the actual conditions surrounding mortality. THE report, therefore, lacks credibility and cannot be accepted. (2) THE prawns had attained commercial size when the peril occurred. In fact, the Fisheries College certificate places the average weight of prawn at 25-30 grams. Hence there was no reason why the complainant had not harvested the crop to his best advantage. In fact on 11.8.1995, healthy prawns have been harvested in the presence of the Surveyor Sri Divakar. After harvesting optimum crop, the complainant has filed a claim on the basis of a created peril to make wrongful gain. (3) When opposite party''s technical officer Dr. Jagannath visited the farm in July, 1995, Sri Ratnakar Naik, the insured, had informed him that prawns from pond No. 1 had been harvested and sold in Goa market. Later, when the Surveyor visited the farm, the live prawns and dead prawns were harvested separately and the total weight of the dead prawns were arrived at 866 kgs. on physical weighment. THE complainant in his claim form has in fact mentioned more or less the same figure of 877.05 kgs. THE loss assessed by the Surveyor and the loss mentioned in the claim form are, therefore, virtually the same. This is only a partial loss not exceeding about 14% and hence the complainant has no claim worth the name under the policy. As per Clause 9 of the policy conditions, no claim is admissible under the policy if the loss percentage in a pond due to any of the covered perils is below 80%. For these and other reasons set out in the version, it is prayed that the complaint be dismissed as not maintainable.

Both the parties have filed their affidavit evidence. Exs. C1 to C6 are marked by consent. No oral evidence is sought to be adduced by either party. We have heard Mr. Ravi B. Naik, learned Counsel for the complainant and Mr. K. Suryanarayana Rao, learned Counsel for the opposite party.

IN the context of the rival contentions, the only issue which needs to be framed is whether the opposite party has prepetrated any deficiency in service as alleged by the complainant. The dispute arose when the opposite party turned down the claim of the complainant under the policy on the premises that the conditions stipulated in the policy are not fulfilled. There is no dispute in this case with regard to the issuance of a brakich water prawn policy for an assured sum of Rs. 5,88,000/- covering a period from 20.6.1995 to 19.10.1996. There is also no dispute that the peril occurred during the subsistence of the policy. The payment of premium by the complainant is also not disputed. But the point on which the parties do not see eye-to-eye relates to the mortality ratio of prawns when the peril struck in August, 1995. According to the complainant, he had requested the Backwater Fisheries Development Association of Karwar as instructed by the opposite party to inspect the spot to assess the loss and accordingly the officials of the Association had inspected the ponds on 14.8.1995 and had certified that the loss was between 85 and 90 percent. From a copy of the report placed on record it is seen that the assessment is stated to have been made on physical examination of loss of prawns. However, this certificate has been issued not on 14.8.1995 as stated by the complainant, but on 15.9.1995 which is much later than the assessment carried out by the Surveyor. According to the survey report, the survey was carried out on 11.8.1995 and on that date the crop was harvested since the growth of unaffected prawns were good and good price was available for them. If that be so, how the Association has come to the definite conclusion that the mortality percentage was between 85 and 90 has not been explained by the complainant. It is also not confirmed whether any representative of the opposite party was present when the officials of the Association inspected the ponds and evaluated the loss. Mr. Suryanarayana Rao, learned Counsel, however submitted that when the Surveyor inspected the ponds and evaluated the mortality rate, the complainant and his supervisor were present and in fact the samples were taken out from the ponds with the assistance of one of the employees of the complainant. The learned Counsel for the complainant has however stated that the survey was made without any notice to the complainant and hence the survey report cannot be relied upon. According to the survey report, the expected yield was around 6,300 kgs., but after carrying out harvesting and after segregating diseased prawns there was a shortage of only 877 kgs. which confirmed only about 14% mortality and not 85 to 90 percent as claimed by the complainant. The Surveyor has however not filed any affidavit in support of his evaluation nor the opposite party has chosen to examine him and hence the learned Counsel for the complainant has urged that the survey report lacks any evidentiary value. It is true that the Surveyor was at the spot for evaluation at the right time unlike the officials of the Association, but then, so long as no stamp of authenticity by way of an affidavit is forthcoming, we have to concede that the complainant was right in saying that the survey report cannot be taken cognisance of as evidence. It is relevant at this juncture to see what are the conditions stipulated in the policy which, according to the opposite party, have not been fulfilled. Clause No. 9 of the policy condition on which reliance was placed to repudiate the claim reads as follows : "No claim should be admissible under the policy if the loss percentage in a pond due to any of the covered perils is below 80%."

According to this clause the insured is entitled to a claim under the policy only when the mortality on account of the perils covered is 80% or exceeds 80%. The basic dispute between the parties, therefore, relates to the percentage of mortality in the crop in the 4 ponds which according to the complainant had exceeded 80%. However we find that in the claim submitted to the opposite party, the complainant has mentioned the loss as under : "5(a). Whether the accident Partial loss or disease caused total loss of prawns or only partial loss ? If partial loss, what is the extent of loss ? (% of loss) 877.50 kg. (Eight hundred seventy sevenkg. only).

THIS estimate of loss, coming as it does from the complainant himself in an important document like the claim form is an admission which is in the nature of a substantive evidence requiring no corroboration. A party''s own statement is admissible against him since what a party himself admits to be a fact is liable to be taken cognizance of as true. According to Section 58 of the Evidence Act, the facts admitted need not be proved. In this premises, we have to hold that out of about 6,300 kgs. of output estimated, the loss on account of the peril was only to the extent of 877 kgs. of prawn. In fact, the Surveyor also has estimated that the loss is to the extent of 877 kgs., which, in relation to the expected yield, works out to a mere 14%. THIS percentage of mortality is far below the mortality rate of 80% prescribed under Clause 9 of the policy conditions and hence we are not in a position to find fault with the action taken by the opposite party in repudiating the claim preferred by the complainant under the policy. The complainant has failed to establish that the opposite party has perpetrated any shortcoming in the nature of its duties under the contract amounting to deficiency of service under the Consumer Protection Act and hence we hold that there is no merit whatsoever in the complaint. In this view of the matter, the complaint is liable to be dismissed. Hence we make the following. ORDER The complaint is dismissed. No costs. Complaint dismissed.