NILKANT R. AMONKAR, VASCO vs NEW INDIA ASSURANCE CO., VASCO

THIS complaint relates to the deficiencies in the service of New India Assurance Co. Ltd. The admitted facts extracted from this consumer dispute are that the complainant''s fishing trawler was insured by the New India Assurance Co. Ltd. for the value of Rs.4 lakhs and the said trawler sank in the sea on 16.7.1991 in an accident. It is also an admitted fact that by communication dated 11.6.1992, the New India Assurance Co. Ltd. (for short ''Assurance Company'') agreed to settle the complainant''s claim up to 60% of the total loss for an amount of Rs.2,47,000/-. The accident of the trawler in question was surveyed through the Surveyor, namely Diamonds Consultancy and the survey report is in possession of the O.P. Thereafter another survey was conducted through J.B. Bode Surveyors Pvt. Ltd., Vasco. The report dated 6.11.1991 is also placed on record.

WE have heard Shri E. Antao, Advocate for the complainant and Shri E. Afonso, Advocate for the O.P. and we have also carefully considered the allegations made by the complainant in his complaint and the defence of the O.P. In view of the fact that the O.P. acquiesced the incident of accident of the trawler in question and volunteered to settle the complainant''s claim upto 60% thereof for the amount of Rs. 2,47,000/-, the only question that survives for our consideration is as to whether the reduction of complainant''s claim from Rs. 4 lakhs to Rs. 2,47,000/- is correct or not. Admittedly, the complainant''s trawler was insured for Rs. 4 lakhs. The accident was surveyed by Diamode Consultancy and after perusal of that report we find that Diamode Consultancy surveyed the AFTbetween3.7.1991 and 7.7.1991 and re-valued at Rs. 6,00,000/-. However, the 0.P. was not satisfied with the said report and thereafter appointed another Surveyor, J.B. Boda Surveyors. We fail to understand when there was the report of Diamode Consultancy, there was no necessity and need for the appointment of another Surveyor. No allegations are made by the O.P. against Diamode Consultancy as to why its report should not be accepted. Under these circumstances, we find that Diamode Consultancy who had the earliest opportunity to investigate the loss caused to the trawler was in a better position to assess the loss of the trawler. In our view, it will be most fair and proper on the part of the O.P. to accept the said report of Diamode Consultancy for purposes of loss of the trawler sustained by the complainant.

Shri E. Afonso, the learned Advocate appearing for the Assurance Company, argued that the complainant breached the warranty conditions of the policy inasmuch as despite the statutory warning, the complainant took the trawler in sea waters. According to Shri Affonso, the complainant is not entitled to any relief since he committed the violation of the warranty conditions. In support of his contention, Shri Affonso brought to our notice that the Government of India Meteoriological Department by its communication dated 7.8.1991 had informed that on 16.7.1991, i.e. the date of the accident to the trawler, there was warning to the fishermen not to go out in the sea. Reliance is also placed on the broadcast made by All India Radio Panaji dated 15th and 16th July, 1991. The letter dated 24.7.1991 shows that such a broadcast was made. There are some other AIR broadcasted messages placed on record. According to Shri Afonso, a reading of these warnings clearly indicate that the complainant had enough warning not to venture in the rough sea and, therefore, despite all these warnings, the trawler was taken to the sea which has resulted in the breach of warranty conditions. We have carefully scrutinyzed these papers and find that the communication to the fishermen and the statutory warning can be issued through the broadcast only. On a reading of the contents of the broadcast dated 15th and 16th July 1991, we do not find that in the said broadcast there is a specific warning to the fishermen not to sail in the sea. The aforesaid warning cannot be said to be adequate to give sufficient notice to all the fishermen not to take the trawlers to the sea. As against this submission of Shri Afonso, the learned Advocate for the complainant also drew our attention to letter dated 17.10.1989 from the Captain of Ports. In that letter, the Captain of Ports, Panaji informed that the area in question falls within the jurisdiction of Port Trust, Mormugao. In turn, Mormugao Port Trust, vide their letter dated 6.9.1991 informed the complainant that no storm signal was hoisted on 16.7.1991 at the Port Signal Station because such a signal is apparently a warning. This circumstance clearly indicates that the complainant had no previous warning to venture out at sea on 16.7.1991 and, therefore, it cannot be said that factually the complainant had breached the warranty conditions of the policy. Another letter dated 14.9.1990 from the Director of Fisheries supports the complainant''s contention. In that letter, it is informed to the O.P. that fishermen in Goa have to follow warning system according to the nature of cautionary flag hoistered at Mormugao Harbour. It is further clarified that it is not mandatory for the fishermen to carry a radio /transistor on the fishing vessels and to listen to all weather bulletins broadcast by AIR. In our view, this letter crystallises the situation in as much as the fishermen gets the warning about the bad weather from the flag hoisted and it is not necessary for them to receive the information about the weather through broadcast. Therefore, assuming for the sake of argument that the necessary weather report was broadcasted by AIR on 15th and 16th July relating to fishermen; yet in our view, firstly, there is no evidence on record to show that the complainant had heard that broadcast and secondly that no storm signal was hoisted on 16.7.91 at the Port Signal Station at Mormugao Port. This factual position makes it clear that the complainant cannot be said to have breached the warranty conditions.

SHRI E. Antao, learned Advocate for the complainant, argued that the real fact is that the trawler in question sank in the sea not due to bad weather but the accident was because of mechanical failure in the trawler. On consideration of the facts and circumstances in this complaint, we are fully satisfied that the O.P. has been deficient in its service in not settling the complainant''s insurance claim for the damage suffered by him with reasonable expedition. We further find that there are no convincing reasons to reduce the complainant''s claim to, the extent of 40% of its loss in this case. In the case of United India Assurance Co., v. M/s. Mohanlal & Sons I (1992) CPJ 132 (NC), the National Commission has held that the reduction of insurance claim for no reason amounts to deficiency in the service of the O.P. In view of this legal position, we find that the O.P. is wrong in reducing the complainant''s claim to the extent of 40%. We find it safe to accept the valuation arrived at by Diamond Consultancy, the Surveyors, as regards the loss caused to the trawler in question. Diamond Consultancy has re-valued the AFT at Rs.6,00,000/-. In our view, since the allegations of the complainant are proved to be correct, the complainant deserves the settlement of his full claim to the extent of Rs.4,35,833/-. However, other claims of complainant for compensation are rejected. Hence we pass the following order : ORDER The complaint is allowed. The opposite party, New India Assurance Company Ltd., Panaji is directed to settle the complainant''s claim for the amount of Rs. 4,35,833/-. The complainant also be paid interest at the rate of 18% p.a. on the aforesaid amount towards compensation for the delay in the settlement of the complainant''s claim. The rest of the complainant''s claim is rejected. The aforesaid amount be paid to the complainant within 30 days from the receipt of this order. Complaint allowed.