LAGADAPATI CHANDRASEKHAR vs New India Assurance Company Ltd.

MR. K. Ranga Rao, Member-This is a complaint filed under Section 17(a) read with Section 12 of the Consumer Protection Act, 1986 with the following allegations.

THE complainant is a resident of Kakinada in East Godavari District and the owner of the mechanised fishing Pablotype boat bearing No. KKD 1681 which was constructed in 1986. THE said boat was registered at Kakinada Port and the complainant has been paying the registration charges every year. THE complainant insured the said boat with the New India Assurance Company Limited Branch at Kakinada (opposite party) and obtained a Marine Hull Insurance Policy No. 82581/2/0269/131 for the period from 24.12.1987 to 23.3.1988 for a sum of Rs. 1,00,000/- and the premium is Rs. 1,073/-. After coming to know .that there is potentiality for fishing in Bhairavapalem of Kakinada the complainant after making necessary preparations for fishing, conducted operations on the evening of 1.3.1988. Again on the next day i.e. on 2.3.1988 at about 3.00 p.m. he sent his boat for fishing operations after the driver checked the level of engine oil, propeller, shafts, etc., of the boat and confirmed the suitability for fishing operations. THE boat got good amount of fish and prawns in the 1st and 2nd hauls till 11.30 a.m. on that day and when they started 3rd haul at about 12.00 noon on that day there was a sudden change in the weather and the intensity of the "sologam wind" increased gradually resulting in the sea becoming rough and raising of currents severely. When the boat was started for going to Kakinada, a big wave hit the boat on its right side and the boat turned turtle on its left side suddenly. THE crew was thrown into the sea. THE boat completely sank in the sea at about 2.00 p.m. THE crew was rescued by another crew of Royya type boat of Sri Bandana Tatabbai of Kakinada. THE complainant immediately informed the Port Office at Kakinada about the accident. He also informed the opposite party by way of a telegram on the same day. He also orally informed the opposite party about the accident. He tried his best to trace the boat with the help of the salvage party viz. Dharmadi Appa Rao and party on 3.8.1988 and 4.8.1988 but in vain. He submitted all his documents to the Surveyor appointed by the opposite party. THE Surveyor submitted a report to the opposite party with the statements of his crew and others and recommended for settling the claim of the complainant. THE Divisional Manager of the opposite party informed the complainant when he met him in his office that he directed further investigation in the matter. One D. Appa Rao who was appointed as Investigator investigated into the matter and sent a report. THE complainant came to know that the opposite party appointed another Investigator by name Metcalfe survey company to investigate the matter, but so far the claim of the complainant was not settled. THErefore there is deficiency in service on the part of the opposite party. THE opposite party is liable to pay the policy amount of Rs. 1,00,000/- with interest @ 12% per annum from 2.3.1988 till the date of realisation. Hence the complainant prays for a direction to this opposite party to pay a sum of Rs. 1,00,000/-, with interest @ 12% per annum from 2.3.1988 till the date of realisation, compensation of Rs. 25,000/- and costs. The opposite party filed its version/ counter contending that the complaint is far from truth on the facts of the case, that there is neither deficiency of service nor unfair trade practice on the part of the opposite party, that the complainant is not a consumer, that in view of the investigation report of Metcalfe & Hodgkinson (Pvt.) Ltd., Visakhapatnam stating that the complainant''s claim is fraudulent, the opposite party repudiated the claim of the complainant and that there is no liability to indemnify the complainant''s claim. It is also stated in the counter that the complainant has to prove that his boat KKD 1681 was in a sea worth condition for conducting fishing operation on 1.3.1988 and his boat sank in the sea due to rough weather, that the certificate given by the Mateorological Department mentions that the sky was cloudy but the sea was smooth, that it was learnt that the complainant transferred his ownership to somebody at Nizampatnam even before the date of the alleged accident, that according to the survey report of B. Appa Rao the complainant sold the engine covered as machinery item under the marine hull policy to a mechanic at Kakinada and that the complainant made fraudulent claim. It is also stated in the counter that the insurance policy does not cover consequential losses such as interest, damages, costs, etc., and that the complainant has to approach the Civil Court for necessary reliefs.

The complainant has not filed any documents. He has also not filed his proof affidavit. The opposite parties filed some documents and they were marked as Exs. B-l to B-8. No affidavit was filed on behalf of the opposite party.

THE point for consideration is whether there is deficiency of service on the part of the opposite party and whether the complainant is entitled to the amount claimed by him. The case of the complainant is that his boat KKD 1681 was insured with the opposite party for a sum of Rs. 1,00,000/- for the period from 24.12.1987 to 23.3.1988 and the said boat sank in the sea due to rough weather while conducting fishing operations near Bhairavapalem at about 2.00 p.m. on 2.3.1988 and that the boat could not be traced in spite of a thorough search made by a salvage party of D. Appa Rao and party and that therefore he is entitled to the insurance amount of Rs. 1,00,000/- together with interest from 2.3.1988 till the date of payment.

THE contention of the opposite party is that the Investigator appointed by it to investigate the claim of the complainant investigated into the matter and submitted a report dated 5.2.1990 stating that the complainant sold away the boat to one Palepu Abbulu in August, 1987, about seven, months prior to the accident and that the complainant made a false claim and that in the circumstances the claim of the complainant was repudiated and that there is no deficiency in service on the part of the opposite party. Ex. B-l is the investigation report dated 5.2.1990 given by Metcalfe & Hodgkinson (Pvt.) Ltd. stating that the complainant sold away his boat in August, 1987 to one Palepu Abbulu s/o Venkanna for a sum of Rs. 70,000/- as per the inquiries made by it, that the sea was very moderate at the time of the alleged accident as per the statement of Bandana Tatabbai, who was the driver of the boat KKD 990 which is said to have rescued the crew of the accident boat of the complainant, that there were no oil bills except for eight (8) days during the period from 20.2.1988 to 1.3.1988, that the failure of the complainant to produce the oil bills for the rest of the days during that period shows that the complainant had not conducted any fishing operations and the 8 bills produced by him were only procured for the purpose of this case with a foul play and that the claim of the complainant is fraudulent. It may be noted that the complainant has not produced any material to show that his boat KKD 1681 sank in the sea at 2.00 p.m. on 2.3.1988 while conducting fishing operations. THE opposite party appointed M/s. Metcalfe & Hodgkinson (Pvt.) Ltd. as Investigators of the said Company and they submitted a report Ex. B-l stating that their investigation revealed that there is no acceptable material to show that the complainant''s boat KKD 1681 sank in the sea at the alleged time, that the complainant transferred his ownership of the boat to somebody at Nizampatnam even before the date of incident and that the claim made by the complainant is a fraudulent one. Ex. B-3 dated 8.4.1988 is the weather report given by the Cyclone Warning Centre, Visakhapatnam, wherein it is stated that the sea was smooth at sea area of Bhyravapalem coast on 2.3.1988, (the date of accident) and no weather warning was issued to the fishermen, whereas the complainant contends that the sea was rough at the alleged time and therefore his boat turned turtle and sank in the sea. THE learned Counsel for the opposite party contends that the Investigator appointed by the opposite party submitted a report stating that the claim of the complainant was fraudulent and after applying its mind to the various aspects the opposite party arrived at the conclusion that the claim put forward by the complainant was not tenable and accordingly repudiated the claim of the complainant and therefore there is no deficiency in service on the part of the opposite party. THE learned Counsel placed reliance on a decision in Parees Offset Pvt. Ltd. v. United India Insurance Co. Ltd. & Ors., II (1995) CPJ 9 (NC), wherein it was held by the National Commission as follows : "We find that the Insurance Company has carefully applied its mind to various relevant aspects and had, thereaftere arrived at the conclusion that the claim put forward by the insured was not tenable and the insurer was not liable for reimbursing the alleged loss sustained by the insured. In our opinion, on the facts and circumstances of the case, the repudiation of the liability by the Insurance Company cannot be said to have been made arbitrarily or unreasonably and there is absolutely no reason to think that the decision was taken by the insurer otherwise than in good faith. Such being the position, it cannot be said that there was deficiency in service'' on the part of the Insurance Company so as to entitle the complainant to seek any relief under the Consumer Protection Act, 1986. THE complainant will have to pursue his remedy by way of a civil suit or by resort to arbitration in case there is a provision in that regard contained in the policy of insurance and in either event, he will be able to have all the facts fully investigated and will have full opportunity to urge all his contentions before the Civil Court or the Arbitrator." On the other hand the learned Counsel for the complainant contends that Ex. B-4 report of the Surveyor appointed by the opposite party says that there was truth in the claim made by the complainant and that in the circumstances the repudiation made by the opposite party is arbitrary and is not justified. It is true that Ex. B- 4 report of the Surveyor appointed by the opposite party states that there is no material evidence available from any source which can establish that the owner of the KKD 1681 had abandoned his vessel wantonly and made some fraud. In view of this categorical statement of the Surveyor, the learned Counsel for the complainant contends that the claim of the complainant has to be allowed and the repudiation has to be held as deficiency in service. We are not inclined to accept this contention. Ex. B-l report of the Investigator gives variety of reasons for the conclusion that the complainant made fraudulent claim and Ex. B- 3 weather report shows that the sea was smooth at the alleged time. THErefore it cannot be said that the opposite party had not applied its mind and the decision taken by the opposite party is otherwise than in good faith. In view of the above decision of the National Commission we hold that there is no deficiency in service on the part of the opposite party inasmuch as the opposite party examined the report of the Investigator in detail and came to the conclusion after applying its mind to various aspects of the case, that the complainant''s claim is not genuine. THErefore we hold that there is no deficiency in service on the part of the opposite party as far as payment of policy amount is concerned. THE learned Counsel for the complainant contends that there is abnormal delay on the part of the opposite party in repudiating the claim of the complainant. It may be seen that the opposite party has not filed the repudiation letter. THE complainant has also not filed copy of that letter. Ex. B-l investigation report shows that it was submitted on 5.2.1990. THErefore it follows that the Investigator took nearly two years'' time to complete his investigation and submit his report and we have to hold that there is abnormal delay on the part of the opposite party in repudiating the claim of the complainant and this delay itself amounts to deficiency in service on the part of the opposite party. We are therefore of the opinion that an amount of Rs. 20,000/- can be awarded as compensation to the complainant on this ground. In the result, the complaint is allowed in part and the opposite party is directed to pay compensation of Rs. 20,000/- to the complainant within two months from the date of this order failing which they shall pay interest on the said amount at the rate of 15% per annum from the date of this order till the date of payment. THE rest of the claim of the complainant is negatived without prejudice to the rights of the complainant to approach the Civil Court for appropriate reliefs. THEre shall be no order as to costs in this complaint. Complaint partly allowed. __________________