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UNITED INDIA INSURANCE COMPANY LTD. V/S P. PURUSHOTHAMA PANICKER, decided on Monday, July 10, 2000.
[ In the Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram, Appeal No. 871 of 1999. ] 10/07/2000
Judge(s) : L. MANOHARAN, PRESIDENT & PROF. R. VIJAYAKRISHNAN, MEMBER
Advocate(s) : P.M.M. Najeeb Khan. S. Reghukumar.
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    L. Manoharan President:1. The opposite parties in O.P. 534/95 on the file of the Consumer Disputes Redressal Forum Alappuzha is the appellant. The complainant alleged before the District Forum he is the owner of the merchant fishing vessel by name “Ajithkumar” which was insured with the opposite party because of rough weather at Thottappally on 13.11.1992 the vessel which was anchored at Purakkad got damaged before the crew could save the vessel the hull was torn off and was beached the propellor and shaft and parts of the engine also got damaged. The matter was informed to the opposite parties who appointed Surveyor he filed Exbt. B11 survey report (wrongly shown in the Appendix as B10). The Surveyor valued total expenses towards salvage expenditure at Rs. 10 500/-. The complainant maintained that as a matter of fact the salvage process involved an expenditure of Rs. 46 561.50 paise. He alleged that the failure to settle the claim for the said amount would constitute deficiency of service he wanted relief. In the version by the opposite party they contended that the complaint is barred by limitation the expenses towards the relaunching of the vessel to the sea at Purakkad and towing the same to Cochin since was not part of salvage but was only a partial loss as per the terms and conditions of the policy the complainant is not eligible for the same. In short they maintained that the complainant is entitled to only Rs. 10 500/- which they had already offered. Therefore they maintained that there is no deficiency of service they wanted dismissal of the complaint. The complainant gave evidence as P.W. 1 and produced Exbts. Al and A2. On behalf of the opposite party R. W. 1 was examined and produced Exbts. B1 to B13. On a consideration of the said material the District Forum found that in addition to Rs. 10 500/- the complainant is eligible for expenses Rs. 1 000/- towards towing charge and Rs. 9 000/- to make the vessel seaworthy. The complainant was also awarded Rs. 2 000/- towards mental agony and Rs. 1 000/ - towards costs. The said direction is under challenge in this appeal.2. Learned Counsel for the appellant maintained that the view taken by the District Forum that the complainant is entitled to compensation towards re-hauling of the vessel and also towing charges of the vessel to Cochin are not in agreement with the policy conditions. He maintained that the same in the circumstances could only be partial loss. On the other hand learned Counsel for the respondent sought to support the direction by the District Forum maintaining that the complainant is eligible for the expenditure towards salvage. Salvage is saving the vessel from further loss. Since though the vessel was enchored at a comparatively calm part of the sea at Purakkad since due to turbulance of the sea it was not safe for the vessel to be there and there was every chance for it getting more damaged which could ultimately end in capsizing of the vessel temporary measures had to be taken so that the vessel may not capsize. Then further repairs had to be attended consequently according to the learned Counsel the re-launching of the vessel as well as towing the same to Cochin would constitute part of the salvage process; according to him a restricted meaning cannot be given to salvage process.3. The first question that would arise for consideration in the nature of the argument is whether the complaint is barred by limitation. It is seen that the complaint was filed on 9.11.1995. Exbt. Al the letter to the complainant requiring him to accept Rs. 10 500/- before 30.11.1993 is dated 9.11.1993. Under Section 24(A) of the Consumer Protection Act 1986 period of limitation is two years from the date of accrual of the cause of action. Here the cause of action to be accrued on the expiry of one month period fixed in Ext. A1. The cause of action would be on 30.11.1993 the complaint having been filed on 9.11.1993 is within time. Even taking the date of Exbt. Al as the accrual of the cause of action the 9th day of November has to be excluded. Limitation would then start only from 10.9.1993 and the complaint having been filed on 9.11.1993 is within time. Now the next question for consideration is whether the complainant is eligible for Rs. 1 000/- towards expenses in rehauling the vessel back to the sea and whether himself is entitled to towing charges of the vessel from Purakkad to Cochin Rs. 9 000/- It may in this connection be mentioned the claim of the complainant as is revealed from Exbt. Bill survey report is Rs. 13 000/- towards re-hauling the vessel back to the sea and Rs. 14 968/- towards towing charges of the vessel to Cochin. The District Forum allowed only Rs. 1 000/- towards re-hauling of the vessel back to sea and Rs. 9 000/- towards towing charges of the vessel to Cochin after re-launching. The complainant has alleged that he had to incur an expense of Rs. 13 000/- for re-hauling and Rs. 14 968/- towards towing charges. He produced Exbts. B5 and B6 receipts. These receipts along with other receipts were produced by the complainant before the opposite parties in support of his claims and the opposite parties produced the same before the Forum. While the complainant was examined he proved the same in the cross-examination. There is no specific challenge as to the genuineness of the receipts. So the claim towards these two items is supported by the said records as well as the evidence of P.W. 1. The District Forum on a consideration in the context of the attending circumstances and the nature of the claim came to the conclusion that towards re-hauling instead of Rs. 13 000/- the complainant is entitled to only Rs. 1 000/- and as already indicated towards towing charge though the complainant’s claim was for Rs. 14 968/- is entitled to only Rs. 9 000/-.4. The challenge of the learned Counsel for the appellant as already noted is that the complainant as per the conditions in the policy is not entitled to any amount towards both items as according to the learned Counsel this cannot be treated as part of salvage and the same could only be partial repair towards which the complainant is not eligible to be paid. So the crucial question now for consideration is whether the said two items could be treated as part of salvage.5. This has to be considered in the backdrop of what complainant has alleged and the evidence of P.W. 1. He said the vessel had to be anchored in a comparatively calm place because general condition of the sea was rough at that time. The complainant’s case was it was quite unsafe for the vessel to be at that place at Purakkad because of the weather condition then existed. Therefore after attending urgent repairs the vessel had to be taken to Cochin to a safer boarding place for attending the repairs. The fact that the sea at that time was rough at Purakkad is not denied by R.W. 1. Having regard to the fact that the vessel had to be anchored at a comparatively calm part of the sea because general condition of the sea at Purakkad was rough if the proprietor of the vessel thought that after attending the essential repairs it has to be taken from Purakkad to safer place so that the repairs can be attended the same cannot be said to be not part of the salvage particularly when the meaning of salvage would include the act of saving imperilled property from loss. When a particular condition in a contract of insurers is either vague or capable of two interpretations the one in favour of the insured has to be adopted. Having a restricted meaning in the circumstance would be adverse to the interest of the insured. Ofcourse an interpretation in favour of the insured is possible only when the condition is either vague or capable of two interpretations. Having regard to the fact that the basic fact that the vessel required to be secured to a safer place the view taken by the District Forum in this regard cannot be faulted. As already noticed the District Forum did not award the whole claim putforth by the opposite party even though the said claim was supported by Exbts. B6 and B7. The probabilities of the case in the nature of the materials before it was evidently taken into account by the District Forum in fixing the quantum.6. It is urged by the learned Counsel the award of interest from the date of the claim cannot be supported as according to him the insurer is entitled to take atleast two months’ time from the date of filing the Surveyor’s report for settling the claim. The report of the Surveyor Exbt. B11 is dated 18.4.1993 two months would have expired on 18.6.1993. The award of interest on the total amount of Rs. 12 500/- at 12% has to be from 18.6.1993. The submission by the learned Counsel for the appellant since they were willing to pay Rs. 12 500/- and complainant was not amenable to receive the same the said amount would not carry interest cannot be accepted because when he is entitled to a total amount of Rs. 20 500/- as compensation the claimant was not bound to accept an offer to pay only part of the same. The only modification required in the impugned order is as regards the interest as is indicated above.7. In the result the appeal is dismissed subject to the aforesaid modification. In the circumstances there will be no order as to costs in this appeal.