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Judgment
CASE under Section of 17(i)(1) of the Consumers Protection Act 1986 praying that in the circumstances stated in the affidavit filed herein, the State Commissioner will be pleased to direct the opposite parties- 1. To pay Rs. 93000/- under Marine Insurance Policy; 2. To pay interest at 18% per annum of Rs. 93000/- with effect from 20.12.1988 till the date of realisation. 3. To pay Rs. 3,000/- per month towards loss of income from 20.12.88 till the date of realisation. 4. To pay Rs. 2,800/- incurred in salvage operations; 5. To pay costs.
THIS case coming on for hearing upon perusing the Memorandum of affidavit filed herein, and upon hearing the arguments of Mr. V. Gourishankara Rao, Advocate for the petitioner and of Mr. A.V.D. Narasimha Rao, Advocate for the Respondents 1 and 2 the Court made the following "Order" : - The complainant owned a fishing boat No. KKD 842 having purchased the same by taking loan from the Bank of India and being an unemployed graduate eking out his living by doing fishing operations. Necessary licences were obtained under the Andhra Pradesh Minor Ports Harbour Crafts Rules, 1962. From the inception, the above fishing boat was insured with the opposite parties, that is, the National Insurance Company Limited at its Vijayawada branch under Marine Insurance Policy, the last renewal being for a period of one year from 29.12.1987 to 28.12.1988 for a sum of Rs. 93,000.00. The boat was inspected by the Port Authorities and necessary inspection fee was paid on 04.02.1988.
While so, according to the complainant while conducting fishing operations on 20.12.1988 near Thetupuram village, Tangutur Mandal, Prakasham District, the boat sunk into the sea. The crew, after being saved by other fishermen in caterans, informed the complainant about the disaster on the next day. Immediately on 22.12.1988, the complainant reported the incident to the first opposite party. He also reported the incident to the Superintendent of Police, Port Officers and the District Collector. He also got arranged search parties in boat Nos. NZM 20 and MVM 364, the drivers of which sent reports on 26.12.1988 and 10.1.1989 stating that in spite of intensive search, they could not find the boat of the complainant and reported that it must have been stuck up at the bottom of the sea. The complainant paid a sum of Rs. 1,400.00 to each of the boat on 26.12.1988 and 10.1.1989 respectively. By letter No. 44 R/89 dated : 23.1.1989 the Assistant Director of Fisheries informed the Collector that he has also personally visited the spot and after inquiring into the accident, agreed with the remarks of the Assistant Director of Fisheries that the boat sank into the sea and also sent a copy of the first opposite party. The Superintendent cf Police, Prakash District also informed the first opposite party by letter C.N. 102/C2/89 dated 04.03.1989, with a report stating that the inquiry revealed that there is no foul play regarding the drowning of the boat and requiring the first opposite party to settle the insurance claim. As the boat sank, the Harbour Craft licence issued to boat No. KKD 842 was cancelled by the Port Officer on 31.07.1989. The opposite parties instead of settling the insurance claim, although they were informed of sinking of the boat on 22.12.1988, wrote a letter to the complainant on 01.08.1989 asking him to visit and submit the bills by 7.8.1989 and also recorded a statement from him on the same day. As required by the first opposite party, the complainant submitted all the bills on 13.09.1989. As the opposite parties did not settle his claim, the complainant has got issued a legal notice on 15.10.1990 claiming Rs.93,000.00 with interest at 24% per annum; a further sum of Rs. 2,800.00 towards the amount spent on salvage operations; loss of Rs. 3,000.00 per month and sundry expenditure of Rs. 3,600.00. A reply was sent on 28.11.1990 repudiating the claim and also alleging that the complainant has not disclosed the fact of Hypothecation to the opposite parties at the time of insurance and they also did not admit that the boat had really sunk into the sea. Thereafter, the above complaint was filed before the State Commission claiming : - (i) Rs. 93,000.00 under Insurance Policy with interest at 18% per annum from 20.12.1988 till the date of realisation. (ii) a sum of Rs. 3,000.00 per month towards loss of income from 20.12.1988 till the date of realisation. (iii) Rs. 2,800.00 incurred in salvage operations and costs.
IN the common counter filed by both the opposite parties, it was firstly stated that the complaint filed under Section 2(g) and (e) of the Consumer Protection Act, 1986 is not maintainable and there is no receiving the report from the complainant, the opposite parties have deputed one Mr. D. Kodanda Ramaiah, INvestigator to go into the facts of the incident and submit a report after necessary investigation; and the complainant was not able to furnish the required information to him. The complainant has submitted some documents on 13.08.1989 after a lapse of nearly eight months of incident. There was conflict of versions, the circumstances leading to the disaster, gave doubt with regard to the sinking of the boat and the matter was entrusted for investigation to M/s. Satyam INvestigation Services. The complainant sought time on 20.6.1991 from M/s Satyam INvestigation Services. The complainant sought time on 20.6.1991 from M/s Satyam INvestigation Services for the production of the proof for examination, but did not produce them before the investigators. It was submitted that the investigators finalised the investigation and submitted the report in January, 1992 and immediately thereafter the opposite parties released loss voucher for Rs. 93,000.00 in favour of the complainant with a requisition to return the same to enable the opposite party to release cheque. IN the meanwhile, the complainant filed the above case against the opposite parties and they are ready to release the cheque for Rs. 93,000.00. Lastly, they denied the liability of interest or loss of income. In the reply affidavit, the complainant asserted that he informed the opposite parties on 22.12.1988 itself about the accident and the Police Department, Fisheries Dept., and Revenue Department have reported about the sinking of the boat stating that there was no foul play. It is only after filing of the above consumer dispute case before the State Commission on 25.03.1991 and when it was posted for appearance to 15.6.1991, the opposite party started taking action for the settlement of the claim. There is no lapse or delay on the part of the complainant. The opposite parties offered the settlement only after filing of the above case. The hypothecation or taking of loan from the bank is immaterial so far as the Insurance Policy is concerned and there is a suit pending between the bank and the complainant in OS No. 33 of 1982 and paying the amounts as directed by the High Court in AS No 1591/88. As there is delay in settlement of claim apart from interest, the complainant is also entitled to loss of income for all these months.
HAVING regard to the aforesaid allegations, the questions that arise for consideration are : (i) Whether the claim is a Consumer Dispute and the complaint is maintainable under Section 2(g) and (e) of the Consumer Protection Act, 1986? (ii) Whether there is delay on the part of the opposite party and settling the claims of the complainant. (iii) Whether the opposite party is liable to pay interest on the amount insured from 20.12.1988 till the date of payment of realisation? (iv) Whether the opposite parties are liable to pay the costs of salvage incurred by the complainant and a further sum of Rs. 3,000.00 per month being the loss of income of the complainant on account of the sinking of the boat?
So far as the first contention is concerned, it is now settled that the repudiation of insurance claim by the opposite party is a Consumer Dispute coming within the purview of the provisions of Consumer Protection Act, 1986 and the complaint is, therefore, maintainable. With regard to the second and third contentions, it has to be seen that the boat sunk on 20.12.1988. The complainant informed the opposite parties about the sinking of the boat on 22.12.1988 itself. It is also to be seen that the Superintendent of Police, on 4.3.1989, the Assistant Director of Fisheries on 23.1.1989and according to the proceedings of the District Collector, also show that the boat sank on 20.12.1988 and that no foulplay is suspected. It is only after a period of nearly eight months, on 1.8.1989, the first opposite party asked the complainant to visit them and submit bills. According to the complainant, the opposite party recorded his statement and he submitted the bills on 30.8.1989. Sri D. Kodanda Ramaiah was appointed by the Company some time in January, 1989 to inquire into the incident, but ultimately he did not submit his report except stating that there is some kind of suspicion about the sinking. Thereafter M/s. Satyam Investigation Services were appointed for investigation and they submitted a report on 7.1.1992 that there is no foul play and the boat sank on 20.12.1988. Thus it is seen that the complainant has given his statement and also submitted the bills as early as on 13.9.89. It is also clear by that time, that the police, Fisheries and Revenue Departments have reported that there is no foul play in the sinking of the boat on 20.12.1988. Thereafter, the appointment of investigating agencies to find out the truth or otherwise of the accident and for the delay caused on account of it, the opposite parties are responsible. Ultimately, the Satyam Investigation Services reported that the boat sank on 20.12.1988. So far as the complainant is concerned, he gave a statement and submitted the bills, which were acknowledged by the opposite parties on 13.09.1989. The delay caused in non-payment of the claim thereafter is purely on account of the delay caused by the opposite parties. In these circumstances, we are satisfied that the opposite parties are liable to pay interest on the sum of Rs. 93,000.00 from 13.09.1989, that is, the date on which the claimant''s statement was recorded and he has produced the relevant bills, at the rate of 18% on Rs. 93,000.00 till the date of payment.
IT is not in dispute that the opposite parties offered to pay the insured sum of Rs. 93,000.00 and as they have agreed to pay this amount, they are liable to pay Rs. 93,000.00 to the complainant with interest as mentioned above.
WITH regard to the claim of the complainant for a sum of Rs. 2,800.00 incurred towards salvage operations, the complainant produced the receipts for payment of Rs. 1,400.00 to the owner of boat No. NZM 20 on 26.12.1988 and another sum of Rs. 1,400.00 to the owner of boat No. MVM 364 engaged in searching of the boat and thus the complainant has incurred this expenditure of Rs. 2,S00.00towardssalvageope rations. The complainant is, therefore, entitled for the sum of Rs. 2,800.00. The last submission is that the complainant is entitled at the rate of Rs. 3,000.00 per month towards the loss of income from the boat for the period from 20.12.1988 until the date of payment of insured claim. The Counsel relied on the decision of the National Consumer Disputes Redressal Commission, New Delhi-Abhaya Kumar Panda v. M/s. Bajaj Auto Limited reported in I (1992) CPJ 88 (NC) and contended that he is entitled for the claim mentioned above. In the said case before the National Commission the National Commission held : "that the vehicle supplied was defective and the respondent/manufacturer is to replace the vehicle by a new Auto Trailer of the identical specifications after verification by testing and inspection that it is free from defects." It also granted compensation for loss of earnings at the rate of Rs. 2,000.00 per month from January, 1989 (that is the date of delivery of vehicle) till the day the vehicle is replaced."
In the instant case, before us, it is not a case of defective manufacture and there cannot be any direction that the opposite parties should replace the sunken boat. The policy merely covers a sum of Rs. 93,000.00. The question of replacement of the fishing boat does not arise. So long as the opposite party cannot be directed to replace the boat the liability to pay the loss of earnings had the boat been replaced on the date it sank does not arise. At the best the complainant was only entitled to interest on the amount insured, which has already been granted to the complainant. Since there is no obligation on the part of the opposite party to replace the boat, we cannot accept the contention of the complainant''s Counsel that he was entitled for payment of Rs. 3,000.00 towards loss of income from the vehicle, which he would have earned, as there is no obligation on the part of the opposite party to replace the boat. In the circumstances, the claim for payment of loss of income is rejected.
IN the result, there shall be a direction to the opposite parties to pay a sum of Rs. 93,000.00 (Rupees ninety three thousands only) to the complainant with interest at the rate of 18% from 13.9.1989 till the date of payment of realisation. The opposite parties are further directed to pay a sum of Rs. 2,800.00 (Rupees two thousands eight hundred only) towards salvage expenses incurred by the complainant. The complainant is entitled to costs of Rs. 500.00 (Rupees five hundred only). In the result, the complaint is allowed to the extent mentioned above. Complaint allowed with costs.