JAGADAM BHAIRAVA MURTHY vs Oriental Insurance Co. Ltd

APPELLANT was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondent, Oriental Insurance Co. Ltd. (hereinafter referred to as Insurance Company).

VERY briefly stated the facts leading to filing the complaint were that the appellant/complainant who was the owner of a fishing boat bearing registration No. KKD 1288, was insured with the respondent-Insurance Company for a sum of Rs. 1,50,000 for the period from 12.12.1987 to 11.12.1988. It is the case of the complainant that on 4.12.1988 while boat was engaged in fishing operations off the coast of Annavaram in East Godawari District, the boat sank at about 1.00 p.m. on 4.12.1988. It is the case of the complainant that they were rescued by another boat bearing registration No. KKD 1028. It is noteworthy to mention here that the owner of the Boat No. KKD 1288 was himself driving the boat along with four other crew members. The matter was reported to all concerned including the respondent-Insurance Company, who appointed a Surveyor who after detailed investigation and visiting the spot along with complainant submitted his report on 4.3.1989 with the remark that "the reported total loss of fishing vessel KKD 1288 may not be true". Based on this report as also exchange of correspondences and after verification, the claim was repudiated by the respondent-Insurance Company on 29.7.1991. It is in these circumstances, a complaint was filed before the State Commission, who after hearing the parties and perusal of material on record especially the report of the Surveyor dismissed the complaint, hence this appeal before us. We heard the learned Counsel for the appellant and perused the material on record.

Like State Commission, the appellant has not been able to satisfy us or show us any evidence, in any manner, in support of his contention that the complainant along with crew were rescued by KKD 1028 more so when the surveyor in his report has clearly stated as follows: "4. The mechanised fishing vessel No. KKD 1028, which rescued the crew of the vessel KKD 1288, was reportedly based at Kakinada. Despite several visits to Jagannaickpur, Kakinada, we were unable to locate the said Boat No. KKD 1028. The other fishermen of that locality informed us in each instance that the vessel had gone out to sea for fishing. They were, however, unaware of the incident of loss of KKD 1288."

(Emphasis supplied)

IN our view, this ground itself should have been enough to dismiss the claim of the complainant, as nothing has been shown, that if the boat sank, then how did they reach the sore? Their failure to do so hits the very foundation of the complainant''s case. It is the contention of the appellant that they had carried out salvage operation in the presence of M/s. Dharmadi Appa Rao & Party. The Surveyor of the said M/s. Dharmadi Appa Rao & Party has recorded the following statement: "It is pertinent to report here that the insured, Mr. Jagadam Bhairava Murthy, accompanied our Surveyor in the fishing vessel No. KKD 1315 @ 1300 hours on 10th December, 1988 when he only showed us the location at sea where his vessel KKD 1288 was reported to have sunk and returned to Kakinada by 2130 hours on the same day. No search/salvage operations were carried out in our presence. In addition the salvage contractor, Mr. Dharmadi Appa Rao did not visit the reported site of loss along with us on 10th December, 1988 or any other day. Our inquiries in person with the crew of the fishing trawler Nos. KKD 1212 and KKD 1139 revealed that they did not carry out any salvage or search operations for the reported sunken vessel KKD 1288. We, therefore, conclude that the insured salvage contractor have submitted false statements in order to, perhaps, deceive all concerned."

THIS remains unrebutted even before us. No affidavit of the said M/s. Dharmadi Appa Rao & Party has been filed before any Fora, rebutting in any manner, this particular observation of the Surveyor, in view of which, we find that the appellant has completely failed to meet this observation of the Surveyor. As rightly held by the State Commission in a catena of judgments of the Hon''ble Supreme Court as also of this Commission, the report of the licensed Surveyor cannot be brushed aside lightly, and in this case, as cited above, the appellant has completely failed to rebut the finding of the Surveyor both before the State Commission as well as before us. The Surveyor also made the following observation in his report: "We enquired with the local dealers of marine equipment and were informed that a test certificate is issued for Usha-Martin wire ropes of 9 mm diameter and the breaking stress is certified of 35 KN. We are of the opinion that while attempting to haul in the fishing net, other weaker sections of the arrangement such as the fishing net itself, should have parted before a stress of 35 KN could be reached to break the wire rope so suddenly." This technical point has not been met by any evidence or expert opinion either before the State Commission or before us either in the memo of appeal or bringing any other evidence contrary to the finding returned by the Surveyor.

IN view of above, we find no ground to interfere with the well-reasoned order passed by the State Commission on merits.

AS far as the delay in finalising the case by the respondent-Insurance Company is concerned, the State Commission has awarded the cost of Rs. 5,000 to be payable to the complainant by the respondent, which in our view, is sufficient and does not call for any interference. In view of above, we find no merit in this appeal, hence dismissed. Appeal dismissed.