M.SURYA NARAYANA GUPTA vs NEW INDIA ASSURANCE CO. LTD.

THE complainant obtained a Miscellaneous Accident Insurance Policy for 8 fish tanks spread over to an extent of 8 Hectares in Srirampuram village under Policy No. 4761080501733 for a sum of Rs. 9,60,000/- from 15.12.1994 to 19.2.1995. While so the prawn was affected by disease on 7.2.1995 and he immediately intimated the same by telegram and also by telephone to the opposite parties 2 and 3 who appointed a Surveyor and the latter conducted the survey from 8.2.1995 to 13.2.1995. Though the Surveyor in his report dated 8.5.1995 reported that there is loss of crop due to ''Vibriosis'' disease and estimated the loss at Rs. 4,97,101/- the opposite parties instead of settling the case repudiated the same by their letter dated 27.11.1996 on untenable grounds. Hence the complainant filed this complaint claiming a sum of Rs. 10,46,240/- together with interest at 24 per cent per annum besides a sum of Rs. 5,000/- for mental agony etc.

THE opposite parties in their counter while admitting the issuance of the policy stated that though the claim arose on 7.2.1995 the complainant intimated them on 8.2.1995. As there was no intimation within 12 hours of the occurrence the Company is absolved of its liability to pay any amount. Further there was no intimation in writing which is also mandatory. THE complainant has not taken insurance from the date of stocking. THE complainant is also aware of the prevalent conditions which are prone to disease in the coastal area. Apprehending the imminent risk he obtained the policy which is not permissible. THE Surveyor also observed contamination of water, cyclone, drop in salinity and temperature which contribute for the attack of disease and as such they are not liable for payment of any amount under the policy. THE complainant besides filing his affidavit filed Exs. A-1 to A-21 while the opposite parties filed counter affidavit of their Administrative Officer and marked Exs. B-1 to B-4. The point, therefore, that arises for consideration is, whether there is any deficiency in service on the part of the opposite party and if so, to what extent ?

The policy in question is not disputed. There is also no dispute that the policy came into force from 15.12.1994 to 19.2.1995 for a sum of Rs. 9,60,000/- on the date of stocking is also not disputed as 20.9.1994 which is also mentioned in the policy. Ex. A-1 also contains the date of stocking as 20.9.1994.

IT is the case of the complainant that he noticed the disease on 7.2.1995 and immediately informed the opposite parties by telegram and also by telephone. The Surveyor was instructed as 6.00 p.m. on that day who visited the farm at 5.00 a.m. on 8.2.1995. The Surveyor also mentioned in his report Ex. B-3 that intimation to the insurer was received by telegram on 7.2.1995 as well as telephonic information to Kakinada Divisional Office which is the third opposite party and information was received by the Surveyor at 6.00 p.m. on 7.2.1995 itself and the conducted survey from 8.2.1995 to 14.2.1995. These details in the survey report Ex. B-3 clearly show that there is no delay on the part of the complainant and he brought it to the notice of the third opposite party promptly when he noticed the disease on 7.2.1995. Therefore, the allegation that information was not passed on to the opposite parties within 12 hours is incorrect. IT is the contention of the opposite parties that intimation was not given in writing. From the admitted facts and the survey report Ex. B-3 it is clear that the opposite parties intimated the Surveyor by 6.00 p.m. the very same day i.e., on 7.2.1995 and the Surveyor had reached the ponds the very next day in the early morning. As the Surveyor has stated that intimation was given by telegram, the allegation that information was not given in writing is not correct. Even otherwise no prejudice is caused to the opposite parties even if intimation was given by telephone or orally. Hence, this objection also lacks force. The next objection is that the complainant has not taken the policy from the date of stocking. It is not brought to our notice any such condition that the complainant should take the policy from the date of stocking particularly when the date of stocking was disclosed by the complainant which is also incorporated in the policy. When the opposite parties have issued policy with knowledge and wide open eyes that the date of stocking was 20.9.1994, we do not think that they can plead this as embargo to settle the claim. It is the case of the complainant that the prawn died due to ''Vibriosis'' disease. We have to see how far this allegation.

THE survey report Ext. B-3 shows that nature of loss is due to ''Vibriosis''. THE Surveyor also concluded in his concluding para of the report that as the mortality had occurred due to ''Vibriosis'' the subject loss would fall within the scope of the policy. In Ex. B-2 policy ''Vibriosis'' disease is also included as one of the diseases under the heading ''Other Perils''. Ex. A-21 is the analysis report of Brackish water fish farm of GIFE dated 14.2.1995 issued by Indian Council of Agricultural Research, Kakinada. In that report it is clearly stated that on analysis of the dead prawn sent on 10.2.1995 by the complainant they found that the death may be due to ''bacterial and viral infection''. In the Text Book "Aquaculture in India" by C. Gnaneswar and C. Sudhaker at page 174 it is mentioned ''Vibriosis'' in shrimps is a major bacterial disease and some of the symptoms are, nerve chord become red in colour, lack of appetite leads to reduced feed in take, the digestive tube is found empty and mortality commences within 2-3 days of infection. Hence these materials clearly show that the prawn died due to ''Vibriosis'' which is a peril covered under the policy. The complainant shifted prawn from Pond No. 6 to Pond No. 9 for the purpose of pond preparation under permission of the opposite party which is evident from the endorsement dated 31.12.1994 on the Miscellaneous Accident Insurance Policy. The Surveyor also focussed his attention to the management of the ponds and he observed that the farm was having guidance of Dr. B.N. Murthy, Ph. D. who is highly qualified in prawn culture at Indian Council of Agricultural Research (ICAR) and has 12 years of experience in Fishery Department. He assisted proper management. The outlet, inlet water systems are found good. He finally concluded that the complainant practised standard culture systems. For all these reasons we are of the opinion that there is no defect in the farm management.

NO doubt feeble objections are raised by the opposite parties that in the coastal area there is prevalence of spread of disease during the period of obtaining policy and, therefore, the complainant apprehending imminent risk obtained the policy. In fact any body would obtain the policy in case of unforeseen risk. If the policy is obtained for foreseeing some risk, it cannot be said that the policy is obtained by suppression of material information. NObody knows, whether any epidemic outbreaks or there would be spread of any bacterial disease. So also the allegation that there is contamination of water cyclone or drop in salinity and temperature which caused the attack of disease and as such the opposite parties are not responsible for the loss, cannot be accepted, in view of what has been observed above that there is no defect in the farm management. For all these reasons, it is clear that there is deficiency in service on the part of the opposite parties in repudiating the claim of the complainant. NOw the question is what is the loss sustained by the complainant.

THE Surveyor estimated input cost of 8 ponds at Rs. 10,46,239.26, in pond Nos. 4 and 5 the mortality is less than 80 per cent he has disallowed the claim of prawn in those tanks. He calculated the loss of prawn in respect of other tanks and arrived at the figure at Rs. 4,97,101/-. We do not find any ground to differ from this. Accordingly we allow the complaint directing the opposite parties to pay a sum of Rs. 4,97,101/- with interest at 9 per cent per annum from the date of the complaint till realisation with costs of Rs. 10,000/-. Time for payment six weeks. Complaint allowed.