KARSANBHAI RANCHHODBHAI TANDEL vs ORIENTAL INSURANCE CO LTD

APPELLANT was the complainant before the State Commission where he had filed the complaint alleging deficiency in service on the part of the respondent - Oriental Insurance Company.

BRIEFLY stated the facts of the case are that the appellant who was the owner of a fishing boat named ''msv Gomti Maa'' bearing Registration No. BLS-3921 had taken Marine Hull Insurance Policy for Rs. 10. 00 lakh from the respondent-Oriental Insurance Company for the period 10. 8. 1993 to 9. 8. 1994. It was the case of the appellant/complainant that the insured boat sailed from Bulsar under Port Clearance No. 41 dated 6. 8. 1993 for Bombay on 11. 8. 1993. Weather was good for navigation at that time. However, after sailing for nearly more than two hours from Bulsar to Bombay, the weather suddenly changed and stormy winds and stormy waves started. The crew did whatever was possible to keep the boat under control but the sea water entered the lower portion of the boat, as a result of which, it sank in the sea on 11. 8. 1993 at around 12. 00 noon off Bubar (a place on the route from Bulsar to Bombay ). It was the case of the appellant/complainant that the crew was saved by another boat named ''karunasagar''. The incident was reported to the opposite party who appointed Surveyor based on which the Insurance Company repudiated. the claim on flimsy and unsustainable grounds. It is in these circumstances a complaint was filed before the State Commission where the matter was contested by the respondent/ opposite party and the State Commission after hearing the parties and perusal of material record dismissed the complaint with cost of Rs. 10,000 payable by the appellant/complainant. It is in these circumstances, this appeal has been filed before us. Despite notice issued on 19. 12. 2007 for 23. 1. 2008, none is present from the appellant side. Since, even at second call no one appeared, we go in passing this order based on the material record.

We have carefully gone through the Memo of Appeal filed before us and also the material brought on record including pleadings.

THERE is no disputing fact that two main grounds have been taken by the Respondent Company for repudiating the claim. Firstly, that the factum of an earlier policy taken by the Appellant from M/s. United Insurance Company for Rs. 5. 00 lakh was not brought within the notice of the respondent at the time of obtaining policy from them and secondly, as per the report of the Surveyor, the boat had already sunk a few days before the policy was taken on 10. 8. 1993 which has been believed by the State Commission hence, this appeal is before us. It is the case of the appellant that as far as they are concerned, they did not withhold any information. All the information was given to the officer of the respondent who had filled in the form and since he does not know English language, he does not know what was filled in by the officer concerned. As far as he is concerned, he has given the information on the point of having earlier policy from United Insurance Company. In fact, in the first ground of appeal, it is the case of the appellant, that this is of no consequence.

AFTER perusal of material record, we find that this is of some consequence. Like State Commission, we are not satisfied as to why the insurance cover which was for Rs. 5. 00 lakh with United Insurance Company was increased to Rs. 10. 00 lakh while taking the policy from the respondent-Oriental Insurance Company. It is also important to know that the earlier policy had a life valid from 9. 4. 1993 to 7. 10. 1993 for Rs. 5. 00 lakh. It is also the admitted position that in this policy there was a provision that it was laid up during the South-West or North-East monsoon. We are unable to appreciate as to why instead of paying the premium for monsoon period on the existing policy, obtained from United Insurance Company, the appellant decided to obtain another policy without really revealing the factum to the respondent about the existing policy? The appellant has not explained at all any reason, including either in the complaint filed before the State Commission or in the Memo of Appeal filed before us, as to the ground for increasing the insured amount from Rs. 5. 00 lakh to Rs. 10. 00 lakh. In our view, the appellant did not approach the Consumer Forums with clean hands. One of the important grounds for dismissing the complaint by the State Commission is that no evidence was led by the appellant/complainant about the episode of sinking. Primary evidence in this case would have been the statements of the crew of both the vessel ''msv Gomati Maa'' as well as crew of the rescue vessel ''karunasagar''. On both these points, the report of the Surveyor M/s. J. Bashir and Associates brings out the appellant''s case in a very dismal position. As per the survey report at page No. 8, despite repeated suggestions/ directions by the Surveyor to the insured, to produce the stated crew of the insured boat and/or the rescue boat for examination, none was ever produced. In the Memo of Appeal filed before us the only defence taken is that affidavits of the crew were produced which should be relied upon. We see no merit in this case. It was incumbent on the appellant to prove his case that the boat did leave shore on 11. 8. 1993 and the crew was rescued at the time of sinking of the boat. His failure to do so on the basis of primary evidence, which he alone could have produced, has to be held against the appellant and this is precisely what has been done by the State Commission. As far as the factum of the boat having sunk on 11. 8. 1993 or before that date is concerned, the report of the Surveyor is quite a revelation. We would like to produce the whole report but space constraints prevents us from doing so. But, it should be recorded that the report of the Surveyor should be read as part and parcel of this order because the Surveyor has reached his conclusion after inquiry from Customs Authorities, Port Authorities, Surveyor appointed to value the boat and also from the Customs House, Bulsar, not to say from the Umarsadi Customs Authorities (the jurisdiction within which the boat is reported to have sunk) and also inquiry from the crew members from other boats who had sailed along with ''gomati Maa'' as well from the owner of the rescue vessel ''karunasagar''.

FOR this purpose, we would like to re-produce below in toto the findings/comments along with the conclusion of the surveyor: findings/comments: (1) The vessel MFV ''gomti Maa'' Regd. No. BLS-3921 had valid Insurance Cover with United India Insurance Company Limited, Navsari till 7. 10. 1993, with Warranty to Lay-up during South West monsoon i. e. till 15th August. (2) Sri R. M. Patel, Surveyor found to have submitted the Condition and Valuation Report without actually inspecting the vessel and verifying the facts. If he would have been careful and judicious, the loss would have been brought to the notice of the Underwriter on time. (3) The valuation of Rs. 10,00,000 for the vessel is very much on the higher side. (4) Thinking of taking another policy would have emerged, as a second thought by the insured, after probably trying unofficially with the United India Insurance Company Ltd. , Navsari and failing. The letter of UIICO to Customs Inspector, Valsad gives that impression. (5) Customs Inspector of Valsad had stated in his letter dated 20. 8. 1993, that he heard the vessel sunk somewhere near Umarsadi from one of his staff on 10. 8. 1993. (6) The rescue boat MFV ''karunasagar'' owner Shri Kantibhai Laljibhai had admitted that his vessel had rescued the crew members of MFV ''gomti Maa'' on 8. 8. 1993. (7) The Tindel of MFV ''meenavati'', BLS03511, Shri Radial Haribhai, who had sailed his vessel alongwith MFV ''gomti Maa'' had also stated that their vessels sailed on 8. 8. 1993 and MFV ''gomti Maa'' had sunk on the same day. (8) The insured vide his letter dated 7/8. 10. 1993 vide Serial No. 6 had stated that the vessel had sailed at 0800 hrs. on 11. 8. 1993. That means the insured had not waited for the Surveyor to conduct Condition and Valuation Survey, as it was the requirement of the Underwriter prior to Underwriting the business. (9) The Umarsadi boat MFV ''moto Prasad'' crew members who had carried 2 of the crew members of MFV ''gomti Maa'' had also said that the incident had occurred on 8. 8. 1993. (10) The Customs Inspector, Valsad had confirmed in this statement dated 20. 8. 1993 that the vessel had taken endorsement for sailing on 8. 8. 1993 only. (11) The Umarsadi Customs Inspector and Kolak Customs Inspector also confirmed that there was an incident on 8. 8. 1993, but no one came forward to lodge official report. (12) The insured had declared in the proposal form as the vessel was not insured with any other underwriters. (13) The signature in the proposal form is not of the owner of the vessel MFV ''gomti Maa'' as his signature can be seen in other documents/ letters written by him (All in Gujarati ). (14) The insured had not presented the crew members of ill-fated vessel and also not submitted any documents such as Panchnama duly notarized by Customs Officials, Port Officers/customs Authorities report, Marine Casualty Form-6, copy of Port clearance, notarized statement of crew members. (15) The premium payment suggests that all along the insured was directly paying by cheque/cash. That means his statement that he was not aware of his vessel having Insurance Cover till 7. 10. 1993 is hard to believe. (16) The insured before obtaining Insurance Cover, had taken Port Clearance for sailing to Bombay. That only goes to prove that he had already decided to sail out the vessel.

Conclusion: based on our inquiry/investigation, perusal of records/documents and also the statements of various agencies and rescue vessel owner, we are of the opinion that the vessel MFV ''gomti Maa'' Registered No. BLS-3921 would have sunk on 8. 8. 1993 before obtaining Insurance Cover from the Oriental Insurance Company Limited i. e. on 10. 8. 1993. Further, the vessel MFV ''gomti Maa'' would have sunk by picking up water through hull planking as narrated by the insured due to weak and unseaworthy hull structure. This is obvious from the facts that a number of Fishing Vessels, which had sailed around the same time and date and experienced similar sea condition as by MFV ''gomti Maa'' had reached Bombay safely on time. "

ALL these findings remain completely unrebutted. No material/evidence has been brought to record by the appellant to rebut any of these findings which are based on record/ statements of witnesses and people in authority. In the aforementioned circumstances, we find no merit in this appeal. Hence, dismissed. Appeal dismissed.