Jagdish Prabhudessai, Member—
By this Order, we shall dispose of the present Complaint dated 6.10.2016 filed by the Complainant herein against the Opposite Party herein inter alia alleging certain 'deficiency in service', under Section 17 of the Consumer Protection Act, 1986.
2. The brief facts of the case are as follows:
I. The Complainant in his complaint has alleged that he runs the proprietorship firm through its proprietor Mr. Raj Lotlikar and that he is the owner of barge M.V. Kaustubh bearing Regn. No. MRH-500 registered with Captain of Ports – Mormugao, Goa on 22.4.1975, which was built by M/s. Chowgule & Co. Pvt. Ltd., Sirigao, Goa, hereinafter referred to as the “said vessel”. The case of the Complainant is that the said vessel was sea worthy, properly manned and duly insured with the Opposite Party under the Marine Hull Insurance Policy No. 131700/22/2012/87 under ITC Hulls 1.10.1983 with 3/4ths collision liability amended to 4/4th collision liability and the insurance premium was paid regularly. The policy was active at the time of accident.
II. It is alleged that the said vessel was anchored and awaiting dry dock for annual survey at Adpai, Dhurbat, Near ferry Point, with the crew on board i.e. one oilman, 2 sailors and the master, where on the night of 16th February 2012 i.e. about 23.30 hours, the accident occurred whereby an unknown barge collided the said vessel and the said vessel due to the impact of the collision shifted into the mangroves and grounded. The crew members on board who were resting after their dinner on hearing the noise of the collision, rushed out to see what happened and they found that the said vessel was hit by an unknown barge which had already left after the collision and that the said vessel due to the impact of collision was shifted into the mangroves and was grounded. The unknown barge which collided with the said vessel could not be identified due to darkness. The crew members checked the engine room and other tanks and saw that the water had entered into the engine room and it was getting flooded at rapid pace. The crew members took steps to control the inflow of water in the engine room by starting the water pump in the deck as the engine room pumps were half submerged in water due to flooding, but however the water could not be controlled. The master of the said vessel immediately contacted the owner of the said vessel and requested to send additional pumps which the owner rushed and supplied by 00.30 hours, but the inflow of the water in the engine room could not be still controlled due to high tide and the pumps could not control the rise of water in the engine room. The engine room was totally flooded and the said vessel was partially sunk.
III. The Complainant alleged that immediately the Complainant intimated the Opposite Party by a letter dated 17.2.2012 about the accident and requested the Opposite Party to immediately appoint their Surveyor and register the claim under the policy. The Captain of Ports was also informed about the accident. An inquiry of the accident was also instituted by the Captain of Ports and a casualty report was submitted by the owners on 17.2.2012. Thereafter the master and the crew were interrogated by the Captain of Port, surveyor of the Opposite Party and a sworn Affidavit was submitted at the time of interrogation. That first Surveyor, Stewart Surveyors & Assayers Pvt. Ltd., who were appointed by the Opposite Party carried out the preliminary inspection of the said vessel on 17.2.2012 and the Complainant was asked to immediately take action to secure the said vessel and to refloat it and keep them informed on day-to-day basis regarding the progress of work and also asked the Complainant to submit all the documents of the said vessel along with the actions taken.
IV. The Complainant further alleged that the Complainant was informed by the Captain of Ports to immediately salvage the said vessel and that as the quotations were aside by the first surveyors of Opposite Party from various salvage of the said vessel the Complainant immediately put up an advertisement on 19.2.2012 on the leading newspapers for quotation for salvage of partially sunk said vessel on “No cure—No pay” basis.
V. The Complainant also alleged that since the quotations received from various salvors for the salvage operations were high and M/s. Earthmovers accepted to do the salvage operations for Rs. 13 lacs plus taxes, the tender was allotted to M/s. Earthmovers for the salvage operation. The said vessel was refloated on 11.3.2012 and was towed and brought to M/s. Trimurti Yard, Dabolim on 21.3.2012. The Complainant also alleged that the entire work of salvage operation was completed by Earthmovers and Completion Certificate was issued by them on 27.3.2012 along with the invoice No. EM/KAUSTUBH/12-13/021 dated 27.3.2012. The Complainant further alleged that the total cost of salvage sue and labour and delivery charges amounted to Rs. 19.28 lakh which the Complainant has paid against the various bills incurred which are annexed hereto along with this complaint. The Complainant further states that for the repairs of the Hull and machinery including dry docking and other charges estimated to about Rs. 72,91,500. The Complainant lodged a claim of Rs. 92,20,400 including salvage/hull and machinery repairs with the Opposite Party vide letter dated LGM/12-13/KB/0076 dated 1.7.2012.
VI. The contents of paras 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of the complaint are self-explanatory as they narrate the details about the facts and circumstances of this case and would be referred to in greater details in the foregoing paras of this Order.
VII. The Complainant has given the details of the alleged facts relating to deficiency in service at para No. 37 of the complaint, which are self-explanatory.
VIII. The Complainant, after the Opposite Party has repudiated the claim on the aforesaid grounds, has filed the present complaint with the following prayers :
“(a)The Opposite Party may be directed to pay the claim amount of Rs. 92,40,000 and further may be directed to pay interest at the Bank rate prevailing;
(b) For costs;
(c) Any other order as deem fit in the facts and circumstances of the case.”
3. The Opposite Party on receiving the notice has filed their written version inter alia opposing the case of the Complainant on the following amongst other grounds :
I. The Opposite Party alleged that the present complaint is frivolous and an abuse of the process of law since there is no 'deficiency in service' or any negligence on the part of the Opposite Party in dealing with the claim of the Complainant. The Opposite Party also alleged that the barge M.V. Kaustubh was insured under Marine Hull policy No. 131700/22/2012/87 for the period 9.7.2011 to 8.7.2012 and further that the said Policy was obtained by the Complainant by misrepresenting material facts about the Survey Certificate and that non-use declaration of the same would be submitted to the Captain of Ports. The Opposite Party invoked Clause 4 of Institute Time Clauses (Hulls) 1.10.83 forming part and parcel of the said Policy in the event of change of the Classification of Society of the Vessel, etc. and as such the Policy stood terminated as and from 9.7.2011 on expiry of the Survey Certificate on 9.7.2011. Thus the claim for the alleged damage to barge on 16.2.2012 is not maintainable.
II. The Opposite Party also alleged that on the same day i.e. on 17.2.2012, they appointed Surveyors Stewart Surveyors & Assayers Pvt. Ltd. (now known as M/s. Alex Stewart Insurance Surveyors and Loss Assessors Pvt. Ltd.) for preliminary survey. The contents of paras 6 to 9 of the written version are self-explanatory as giving details of the survey conducted. The said Surveyor submitted preliminary Survey report and thereafter the Status Report, the copy of which reports are relied upon by the Opposite Party. Since the Complainant for the first time submitted a monetary claim on 4.7.2012 for estimated damage and salvage, the Opposite Party appointed another A category Surveyor Mr. Subhash Chander & Associates since the first Surveyor since the first Surveyors being B category is restricted to upto Rs. 25,00,000. The contents of para 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the written version are self-explanatory as they refer to the Surveyor's report and the letters between the said Surveyor, Complainant and the Opposite Party as also contain the details of the grounds mentioned in the status report of the second Surveyor. The Opposite Party also alleged that the said Surveyor submitted his report dated 1.11.2013 stating that the cause of flooding is not established as due to any insured peril.
III. The Opposite Party also has given the details of the various correspondence entered between the Complainant and the Opposite Parties from time-to-time as regards the subject matter of the claim vide para Nos. 24, 25, 26, 27, 28 and 29 of the written version.
IV. The Opposite Party alleged that the barge M.V. Kastubh bearing Regn. No. MRH-500 being 40 years old was in a very dilapidated condition and being beyond economical repairs the same was to be scrapped, broken and sold. The Opposite Party also denied that the barge was anchored awaiting dry dock for annual survey, or with crew on board as alleged. It is also denied that on the night of 16.2.2012 at about 23.30 hours an unknown barge collided with the barge or due to impact of the collision the barge shifted to mangroves and grounded. The allegations of unknown barge hitting on the night of 16.2.2012 at 23.30 hours is a false and fabricated story. There had been no evidence whatsoever of any damage or tell- tale evidence of any vessel hitting the barge. Her old mooring ropes were intact where she was moored to mangroves. Due to mining closure in 2011 and without any business and considering her dilapidated conditions due to poor maintenance and repairs beyond economicability and useless for want of business, and was to be scrapped, broken and sold. They also alleged that unknown barge hitting on the night of 16.2.2012 at 23.30 hours is a false and fabricated story.
V. The contents of para 32 of the written version are self-explanatory. The Opposite Party denies that the Captain of Ports instituted an inquiry of the alleged casualty and that the master and crew were interrogated by the Captain of the Ports. The Opposite Party alleged that a false and fabricated Affidavit of purported Master Ibrahim Mulla was submitted in support of the claim. The Opposite Party alleged that it is the duty of the owner as prudent uninsured to minimize the loss by taking suitable measures and salvage the vessel and hence it is idle to allege that loss minimization measures are done at the instance of the Surveyor.
VI. The Opposite Party denied that it is established and recognized practice followed by ship owners and their underwriters of appointing adjusters for settlement of claims. It is stated that Average Adjusters had no role to play in the present claim as there was no question to any adjustment to be made, and moreover the Surveyor has not certified the loss as in required under Section 64UM(2) of the Insurance Act, 1938. Therefore there was no question of appointing Average adjuster Leena Mody for settlement of the claim. Neither the Average Adjuster Leena Mody accepted the appointment as the Average Adjuster and had no role to play in the claim. It is further alleged that there was no question of holding joint meeting between the Complainant and the Surveyor and it was made clear to the Complainant that the standard and acceptable method of bottom inspection is only by dry docking the barge at the Complainant's cost. It is further alleged that the Complainant was given enough time and opportunities to prove the loss by the Surveyor but failed to do so, and as such was warned of closing the claim if he fails to establish the cause of loss. It is alleged that after any loss is reported and claim is made to the Opposite Party is required to get a report from the licensed Surveyor under Section 64UM(2) of Insurance Act, 1938 certifying the proximate cause of loss and the loss is due to insured peril and the loss assessment thereof. There was no question of any joint discussion with the Opposite Party on Report of the Surveyor. It may be noted that the Opposite Party was only required to get a report from the licensed surveyor as required under Section 64 UM(2) certifying the loss as payable under the policy for further processing the claim, or to reject the claim based on Survey Report. It is alleged that there was no question of reconsidering its decision to close the claim as 'No claim' or for the reason alleged as the same had been considered by the Surveyor in their report. It is denied that any repair job of barge was done at Rassain Marine Works Goa on recommendation of Surveyor of Captain of Ports. The so called bills of Rassain Marine Works are false, fake and fabricated.
VII. The Opposite Party also alleged that the Complainant was told that his clam is rejected and the same cannot be reconsidered. It is denied any oral assurances were given to the Complainant that the claim would be settled or any advice was given to see the Regional Office and or Head Office at Delhi or any assurances were given by Regional Office or Head Office that claim would be settled. The Complainant was told that the claim has been closed as 'No claim'. So also the member of the Parliament was told that the claim has been closed on 17.1.2014 and the same is intimated to the Complainant. 11
VIII. The contents of paras 49, 50, 51, 52 and 53 of the written version are self-explanatory. The Opposite Party therefore prayed that the claim of the Complainant, not being admissible under the Policy, is not maintainable at law and therefore the present complaint deserves to be dismissed with compensatory costs.
4. The Complainant and the Opposite Party herein have filed their respective pleadings as well as Affidavitory evidence together with the relevant documents enclosed thereto. The complaint and the written version of the Opposite Party have been allowed to be amended by this Commission and the respective amendment accordingly has been carried out by the parties. Both the parties have filed their written arguments and their oral submissions in detail have been heard. We have perused the entire record in the light of which we now proceed to record our observation and findings on all the issues arising out of the present complaint as would follow herein below.
5. At the outset it is observed that the Opposite Party has raised strong objections on the grounds of the point of limitation and pecuniary jurisdiction of this Commission to try and entertain the present complaint. However, we do hereby record our finding in regard to the objection as to limitation to the effect that we have already decided the said aspect at the time of admitting the present complaint after hearing both the parties on the Application for the condonation of delay in filing the complaint inter alia condoning the delay. Since there was no appeal/revision against the said Order before higher authority under the Consumer Protection Act, 1986 the said Order has attained finality.
6. We now advert to the preliminary objections vehemently raised by the Opposite Party herein on the point of pecuniary jurisdiction. The Opposite Party has contended that since the value of the services in the present case exceed Rs. 1 crore (Rupees one crore only) this Commission has no pecuniary jurisdiction to try and entertain the present complaint. Both the parties have relied on certain decisions of the higher Courts in support of the respective arguments which citations we have gone through.
7. The Opposite Party has relied upon the 2 decisions of this Commission in, (1) Amit C. Prabhu v. Mrs. Ruksana Sayed in First Appeal No. 13 of 2017, where the Appeal filed against the said Order before Hon'ble National Commission in Re : 2017 (4) CPR 908 was dismissed and (2) Sanjay G. Madkaikar v. Rajendra Vaman Kudnekar in First Appeal No. 81/2017. However, on closer analysis, we are unable to apply the ratio of the said two decisions of this Commission to the present case as the facts and circumstances of the present case are totally different from those figuring in the said two decisions.
In Sanjay Madkaikar's case there was no dispute of pecuniary jurisdiction as it was observed by this Commission that the learned Counsel for both the parties have not disputed the fact that the Forum had no pecuniary jurisdiction and that the Forum could not have dismissed the complaint but ought to have directed the party to file the complaint before the appropriate Consumer Forum.
In Amit Prabhu's case also the facts were quite different in the sense that the amount paid by the consumer has admittedly exceeded Rs. 22 lakh, thus exceeding the pecuniary jurisdiction of the District Forum. Hence we hold that the aforesaid two decisions of this Commission have no bearing on the issue of pecuniary jurisdiction raised by the parties in the present complaint.
8. The Opposite Party also relied on the decision of the National Commission in Ambrish Kumar Shukla v. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC)=2016 STPL 15594 NC. wherein Hon'ble National Commission held as under :
“It is a value of goods or services and compensation claimed which determines pecuniary jurisdiction of Consumer Forum. Act does not envisage determination of pecuniary jurisdiction based upon cost of removing deficiencies in goods purchased or services to be rendered to consumer. If the aggregate of the value of the goods purchased or the services hired or availed by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.”
The Opposite Party herein therefore submitted that Section 17 of the Consumer Protection Act, 1986 does not talk of amount paid for services, but speaks of value of services and therefore the value of services in the present case being Rs. 1 crore 40 lakh under the Policy, the present complaint is clearly beyond the pecuniary jurisdiction of this Commission.
9. At this stage, it is submitted that the Complainant herein has also referred to the aforesaid decision in Ambrish Kumar Shukla's case in his additional written submissions has advanced the arguments that in Ambrish Kumar Shukla's case there were large number of consumers who had a common interest i.e. in the allotment of several flats in a project/building, where the allotments/bookings/purchases were made on different dates, and/or agreed cost of the flat and/or the area of the flat was identical in all the bookings/allotments/ purchases and it is in this circumstances the Court considered the point of jurisdiction. The Complainant further argued that the above position is not so in the present case and since the present complaint is filed on different facts and circumstances, therefore, the said Judgement cannot be made applicable.
10. The Complainant, in our opinion, has rightly placed reliance on the following decision of the State Consumer Redressal Commission, Maharashtra at Mumbai in Complaint No. CC/17/1181 in M/s. N.D. through its Proprietor Mr. Suresh M. Khanchandani v. United India Insurance Co. Ltd. wherein it was held as follows:
“It was submitted that initially the consumer complaint was filed before the learned District Forum, Thane. However, District Forum, Thane returned the complaint by passing Order that it does not fall within the jurisdiction of the District Forum and that is why the consumer complaint is filed before this Commission. There is reference of the Judgement of Hon'ble National Commission in the case of Amrish Kumar Shukla & 21 Ors. v. Ferrous Infrastructure Pvt. Ltd. in Complaint No. 97 of 2016, dated 7th October, 2016, in the order of the District Forum for concluding that District Forum has no jurisdiction. However, we find that there is nothing in the said Judgment of Amrish Kumar Shukla (supra) to show that claim amount is to be valued on total insured sum. However, here, it is admitted fact that the sum insured is Rs. 45,00,000. However, claim is only of Rs. 11,81,558 and only by mentioning that in view of the Judgment in Amrish Kumar Shukla (supra) case, District Forum has no jurisdiction, cannot sustain. Thus, we find that the valuation is to be made on the basis of the amount claimed and not on the basis of the amount of sum insured.”
11. In S.P. Singla Construction Pvt. Ltd. v. Oriental Insurance Co. Ltd., 2016 (1) CPR (NC) 357, Hon'ble National Commission held as follows:
“5. A bare reading of above averments made by the Appellant in its complaint, it is clear that Appellant has categorically stated that though Surveyor has assessed the loss to the tune of Rs. 1,47,83,400 but Appellant restrict its claim not beyond Rs. one crore, as per provisions of Section 17(1)(a)(i) of the Act.
6. When Appellant itself has restricted its claim upto Rs. one crore only, then only State Commission has the jurisdiction to try such complaint. We fail to understand, that when Appellant itself restrict its claim upto Rs. one crore, then on what basis State Commission refused to entertain the complaint.”
We accordingly hold that the aforesaid decision fairly and squarely applies to the facts and circumstances of the present case.
12. In Sangeeta Sathir Singh v. UNITECH Ltd., Chandigarh, decided on 1.5.17, Hon'ble State Commission held as under:
“Before making any reference to the merits of the case, we would like to decide an objection raised by the Opposite Parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that the Complainant has sought refund of an amount of Rs. 49,69,639 along with interest @ 15% p.a. compounded quarterly, from the respective dates of deposits, till realization, compensation to the tune of Rs. 10 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs. 1 lac. At the time of arguments, it is argued by Cousel for the Opposite Parties that if the entire claimed amount is added, along with interest claimed, it will cross Rs. 1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla and 21 Ors. v. Ferrous Infrastructure Pvt. Ltd., Consumer Case No. 97 of 2016, decided on 7.10.2016. We are not going to agree with the submission raised. This Commission, in the case of Surjit Singh Thadwal v. M/s. Emaar MGF Land Pvt. Ltd. and Another, Consumer Case No. 484 of 2016, decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Co-operative Sugar Mills Ltd. v. National Insurance Co. Ltd. and Ors., II 2003 CPJ 81 (NC) held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed is not to be added in the relief sought.”
13. In Shahbad Co-operative Sugar Mills Ltd. v. National Insurance Co. Ltd., II (2003) CPJ 81 (NC)=2003 (2) CPC (NC) 68, Hon'ble National Commission has held as under:
“3. Complaint was filed with the following prayer:
‘It is therefore respectfully prayed that the complaint be allowed and the Opposite Parties be directed to pay the claim to the tune of Rs. 18,33,000 plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the Complainant be ordered to be paid to the Complainant.'
4. Bare reading of the prayer made would show that the interest claimed by Appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000 the interest @ 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under Appeal, therefore, deserves to be set aside.
14. In the light of the aforesaid decisions of the Higher Courts on the point of pecuniary jurisdiction, we are inclined to hold that we are unable to agree with the arguments of the Opposite Party herein that the value of services in the present case is Rs. 1 crore 20 lakh being the total insured amount under the Policy and since in the present case the claim of Complainant is Rs. 92,40,000 with interest at prevailing Bank rate which taken together exceeds Rs. 1 crore and therefore this Commission will have no pecuniary jurisdiction. On the other hand we have no hesitation whatsoever to agree with the contention of the Complainant that this Commission has pecuniary jurisdiction as the value claimed by the Complainant is Rs. 92,20,400 which if taken along with the premium to be paid i.e. Rs. 1,20,303 amounts to Rs. 93,40,703 which is below Rs. 1 crore. We therefore reject the argument of the Opposite Party on the point of pecuniary jurisdiction and do hereby hold that this Forum has pecuniary jurisdiction to try and entertain the present complaint considering the fact that the Complainant has consistently valued his claim for the amount of Rs. 92,20,400 without claiming any amount of compensation and with the rate of interest as would be allowed by this Commission.
15. We now turn to evaluate and assess the evidence on record as regards overall merits of the case and now proceed to record our observations and findings in respect of the issues pertaining to overall merits of the case.
16. It is pertinent to note that the Opposite Party herein has seriously raised objections in their pleadings as well as Affidavitory evidence. Their main objection is to the effect that the said vessel was not sea worthy nor was properly manned as is evident from her unusual survey Certificate as also by required qualified and sufficient crew. The Opposite Party also deposed in their Affidavit-in-Evidence that the barge was laid off due to her poor maintenance and dilapidated condition as is highlighted in the survey reports. They also objected the claim on the ground that the said barge, not being sea worthy, ought not to have been in water but in dry dock after 9.1.2011.
17. In this respect, the Complainant has replied and met with the aforesaid objections by relying on the survey reports and the correspondence between the parties. The Complainant averred in his Affidavit that the Opposite Party has never been honest in their intention to settle the legitimate claim of the Complainant and has raised unreasonable and irrational objections only with a view to frustrate the valid claim of the Complainant. The Complainant has categorically deposed in his Affidavit that he has complied all requirements of the existing rules and that the said vessel was perfectly sea worthy and there were no defects whatsoever with the said vessel.
18. The Complainant vide his Affidavit-in-Evidence dated 23.3.2017 has categorically deposed vide para No. 33 thereof, on the point of discharging the burden of proof by abiding with the instructions of the second Surveyor, on terms as follows:
“(a)I say that I had taken efforts to discharge the burden of proof.
(b) As of date and the right to discharge the burden of proof cannot be prematurely extinguished and also that there is no objective and conclusive proof of an external peril and/or an uninsured peril.
(c) The condition of barge at the time of first survey is no indication that the entire barge was in a dilapidated condition and that the flooding occurred due to such dilapidated conditions. Such a conclusion is premature to arrive at, until the area of the bottom plating from where there was ingress of water is inspected and evidence recorded. Here it is to be taken note that the Captain of Ports had certified the said vessel for top repairs and bottom repairs were due and the said vessel was waiting for dry dock.
I say that I had conducted top repair job of the barge at Rassaim Marine Works at Rassaim Goa on recommendations of the acting surveyor i.e. Captain of Ports and I also submitting the bills to the Opposite Party and other authorities, the copies of which have been annexed in the complaint.
I say that every year there is an annual survey that is conducted by the surveyor appointed by the Captain of Ports and only after proper survey the Captain of Ports issues one year survey validity and further may issue an extension of further 3 months which is given after thorough inspection of the vessel every month. Further after the 3 months extension a short term survey is conducted of the entire hull/bottom/engine (hull and machinery and other requisite pertaining to the survey) after taking the vessel in dry dock and a final extension of 3 months is given. This procedure is conducted to see that the vessel is sea worthy. In the case of the said vessel the acting Captain of Ports was the Surveyor and the short term extension was granted by him on 9.4.2011 for 3 months after the inspection of the bottom of vessel in dry dock after due inspection of the entire hull/bottom/engine (hull and machinery and other requisite pertaining to the survey) under Indian Vessel Act. Here it is to be mentioned that the Captain of Ports had extended the survey Certificate i.e. upto 9.7.20111 as per the provisions of Indian Vessel Act 1917 and that the said vessel was sea worthy. After the extension period was complete I applied to the Captain of Ports for conduct of the annual survey. Since the said vessel was sea worthy as per the Captain of Ports, the chances that the said vessel was in a dilapidated condition and that the flooding occurred due to such dilapidated condition does not arise at all. I say that the Captain of Ports has also issued the letter of impediment for safe navigation in the waters. If at all the condition of the said vessel was dilapidated, the Opposite Party ought to have rejected the claim then and then itself and could have intimated to me rather than have me run between pillars to get the claim settled, which is also a 'deficiency in service'. However the same was not intimated to me with malafide intentions of harassment which this Complainant has been resorted to."
19. In our considered opinion we find no reason to disbelieve the fact that the said vessel was sea worthy and that the Opposite Party has failed to discharge the burden that it was in dilapidated condition. In this regard the Opposite Party has deposed at para 10 of the Affidavit-in-Evidence that the barge was lying abandoned at Adpai, Durbhat, Near Ferry Point since 9.1.2011 due to non-renewal of her Annual Survey Certificate due to her poor maintenance and bad condition which was beyond economical repairs and maintenance, being 43 years old barge and in dilapidated condition.
We are duty bound to observe that these uncorroborated allegations of the Opposite Party has remained tall and unproved allegations and speculations only. Mere allegation cannot take place of proof.
20. It is also noted that the Opposite Party has heavily and solely relied on the Reports of the two Surveyors appointed by them. In this regard it has to be noticed that Complainant has challenged the contents and the findings of the preliminary report and the status report of the first surveyor as well as the findings of the status report of the second surveyor inter alia deposing vide his Affidavit that there was a lot of time intervention between the reports of the two Surveyors because of un-co-operative and adamant attitude of the Opposite Party herein. The Complainant has rightly deposed at para 29 of his Affidavit-in-Evidence as follows :
"I say that the second surveyor had to submit its report after investigation and on the basis of this report the claim ought to have been settled. However the second surveyor took time from its appointment i.e. from 12.7.2012 to 11.11.2013 (approx. 16 months) for conducting its investigation and giving its status report on 1.11.2013. The second surveyor gave its remarks and reserved its comments on the claim as cause of loss is not yet established and that I had not submitted complete information/documents as requested after the first inspection. I say that all the documents that were asked I provide to the Opposite Party which was available with me.
Further as the second surveyor had inspected the vessel much later he has passed insinuating remarks of the condition of the vessel in his report as he has inspected the vessel on a later day and therefore his opinion is biased. I say that the photos taken showing the damaged condition is taken in the later part of the survey. I say that the said vessel was submerged in the salty sea water for a period of about 23 days. I say that on the accident salvage date the barge was in a fair good condition, the photos of which can be seen from the newspaper and the copies available with the Captain of Ports. Annexed are the copies of the photos of the said vessel at Exhibit 5.”
Though both the Surveyors are otherwise qualified to be appointed as Surveyors, we are at loss to understand as to what is their reputation, experience and professional expertise in the respective field. We also fail to understand as to why the Opposite Party herein has failed to obtain and file the sworn statements on the Affidavits of the said two surveys in support of their finding in the respective report, since the alleged facts and findings were within the realm of their exclusive personal knowledge though engaged in official activity. If the said two surveys were to file their supportive Affidavits, we would have been in better and safer position to attach more credibility and weightage to the findings of their respective reports submitted to the Opposite Party herein especially when the Opposite Party has wholly and solely relied on their Reports while repudiating the claim of the Complainant.
21. After full perusal of the documents annexed to the written version and Affidavit-in-Evidence of the Opposite Party, we find that the Opposite Party has failed to substantiate their averment made at para 13 of their Affidavit-in-Evidence that the Report of Captain of Ports dated 20.7.2012 is a false and fabricated report. Merely because the said report is annexed to the Affidavit-in-Evidence of the Complainant for the first time, the said Report dated 20.7.2012 does not lose its relevancy and credibility.
22. The Opposite Party has also failed to prove with reliable supportive evidence that there was no question of continuation of the Policy under Institute Time Clauses (Hulls) 1.10.83 as the vehicle was not at sea or in distress or at a point of refuse or of call, but was at safe place on hard at the yard at the time of expiry of the Policy. The Complainant on the other hand, has rightly pointed out all relevant circumstances relating to the necessity and desirability of the renewal of the said Policy.
23. The Opposite Party has also failed to establish their defence that the alleged casualty on 16.2.2012 due to unknown barge colliding with barge M.V. Kaustub and later, due to impact of the collision shifted into the mangroves and grounded is a false and fabricated story to carve out a cause for lodging a false claim under the Policy.
24. The Opposite Party has also raised another plea while opposing the claim of the Complainant that the Complainant had to only dry dock the vessel and do the bottom inspection and get the loss certified by the licensed surveyor under Section 64 UM(2) of Insurance Act, 1938, all at the Complainants cost and that the Complainant had failed to dry dock the barge for bottom inspection and thus failed to establish the cause of loss. The Complainant states that he has carried out all measures to prove that the loss was due to the peril of the sea, inasmuch he has carried out the ultrasonic test, dug up the channel during low tide for bottom inspection, suggested alternate options that can be availed and also asked the Opposite Party to renew the insurance policy and has sufficiently discharged the burden of proof.
25. We now advert to the evidence on record in regard to the submission of report to the Captain of Ports as per the existing rules applicable.
(i) The Complainant, in this regard has relied on Rule 60 (1) of the Goa, Daman & Diu Port Rules, 1983 that reads as under:
‘the owner of any craft involved in any accident or casualty in a Port, shall report such accident or casualty to the Port Authority within 48 hours of the happening of such accident or casualty or as soon thereafter as possible.’
(ii) As per Rule 61 of the said Port Rules, 1983 Inquiry into Casualties is as under :
‘(1) the Port authorities may conduct inquiries for official purposes,
(2) in case the owner of the craft involved desires to obtain the report of the inquiry made by the Port Authority, the owner of the craft involved shall request the Port Authority, to conduct the inquiry into it and apply for the report.’
(iii) As per the Survey Certificate at page 140 of the complaint i.e. Exhibit O Colly it is clearly stated that:
‘In case of any accident occasioning of life or any material damage, affecting the seaworthiness or efficiency of the vessel either in the hull or any part of the machinery or equipment a report by letter, signed by the owner or the master, is to be forwarded to the Captain of Ports, within 24 hours after the happening of the accident or as soon thereafter as possible.’
(iv) It is therefore observed that towards the compliance of the requirements of Goa, Daman and Diu Port Rules, 1983, the Complainant has reported the accident to the Captain of the Ports and also the Opposite Party vide letter dated 17.2.2012 which is at Exhibit Colly B of the complaint, as the accident that occurred within the Port area. We disagree with the arguments of the Opposite Party that reliance placed by the Complainant on Rule 60 (1) of the Port Rules, 1983 is not applicable in this case since it is not the case of damage to the Port. The fact remains that the accident/incident did occur within the Port area.26. We then proceed to consider two-fold objections raised by the Opposite Party in the present case. Firstly the Opposite Party has contended that there is no police complaint in regard to the accident in the waters as mandatorily required by Section 32 of the Inland Steam Vessels Act, 1917 and due to which the Opposite Party has lost their rights of subrogation under Section 79 of Marine Insurance Act, 1963. The Opposite Party has argued before us that had such mandatory police complaint been filed by the Complainant, the police would have investigated the same and that would have exposed the Complainant of false and fake alleged casualty.
We are unable to agree with this submission as the Complainant has rightly pointed out that this issue as to non-filing of police complaint has been raised for the first time and that nobody and nothing prevented the Opposite Party from insisting for production of the police complaint if it were genuinely required by them and further that there is not even a single communication stipulating the requirement of the production of police complaint from any one of the two Surveyors appointed by the Opposite Party during the time of conducting the said survey. To our minds, the Opposite Party has failed to cite any authority/decision of higher Court to show that the filing of police complaint is mandatory and not directory in every case of the present nature inasmuch as we agree with the submission of the Complainant that this is only a technical ground in the form of the after-thought raised at the stage of final arguments as the repudiation of the claim was not on the ground of non-filing of the police complaint.
27. So also, on the aspect of applicability of the principle of subrogation under Section 79 of the Marine Insurance Act, 1963, we observe that the Opposite Party has not taken up the said plea anywhere in their pleadings or Affidavitory evidence but has raised the objection for the first time at the time of final arguments. Even otherwise we are content to hold that the question of subrogation under Section 79 will arise only when the insurer pays for the total loss either of the whole or in part. In the present case, the Opposite Party has neither paid for the loss nor any such intention was evident from their conduct or otherwise in their correspondence, pleadings or Affidavit-in-Evidence, nor was it ever the case of the Opposite Party.
28. The Complainant on the other hand, has fully supported and corroborated his case with available documents on record so as to warrant an irresistible inference of blameworthy, negligent and unjustifiable deficient acts on the part of the Opposite Party herein. Hence we are fully inclined to accept that the Complainant has rightly pointed out those deficient acts of the Opposite Party vide para No. 27 of his complaint which para can be reproduced as under :
"27. To sum up the 'deficiency in service' :
(a) The Complainant asked for the stamped annexures to the status report, the Opposite Party did not provide the copies. The photos diagram, and other annexures like photo copy of the drawing yard No. 014 and 015 M/s. Pinky Shipyard, photo copy of the drawing No. CO8/M/4 and OS/M/S., photocopy of drawing No. N A of M/s. Chowgule & Co. Borim, Lotulim dated 7.3.1997, drawing of Zuari river sheet No. IV blue print, notorozed statement of Shri Ibrahim H. Mulla, photocopy of Shri Ibrahim Mullas Certificate, newspaper advertisement dated 9.2.2012 and 20.2.2012, statement of Mr. Dilip Kadam, Certificate of Master, Claim Statement, Letter of our appointment dated 12.7.2012 was required for consultation from the appointed M/s. Leena Mody & Associates for further reply and process, but malafidely and intentionally did not provide the same.
(b) The Complainant wanted to discharge the burden of proof of the proximate cause of the flooding and had requested for a joint meeting with the underwriters surveyors, the average adjuster and the owner, the Opposite Party did not pay any head to the request. The Complainant further requested in writing that the damaged area/plate needs to be removed by cutting the same and then necessary investigations need to be conducted but the Opposite Party did not pay any heed to the request.
(c) Non-renewal of insurance policy. Due to non-renewal of policy the dry docking was not possible, as, if the said vessel which was salvaged was moved to the dry dock and of the said vessel again grounded it would have caused loss to the Complainant to remove the grounded vessel. The Opposite Party ought to have renewed the insurance policy but it did not do so. The Opposite Party knew if it reinsured the said vessel it would be an extra burden on them in case there was any further mishap and as also they had malafide intentions of deceiving. Further since as per the policy the insurance could be further covered at pro rata monthly premium after giving a notice in writing when the said vessel was in distress position the Opposite Party refused to further provide the insurance cover as per Clause 1.10.1983 of the policy. The Complainant states that he had given in writing along with the cheques for renewal of the insurance policy to the Opposite Party but the Opposite Party refused to accept the renewal.
(e) Refusal to pay the claim amount is itself a 'deficiency in service'.”
In the above context, we are inclined to take the view that while considering the aspect of 'deficiency in service', we are not to look at each of the above circumstance separately and individually, but the conclusion as to the liability resulting from the acts of 'deficiency in service' on the part of the Opposite Party will have to be arrived at from the overall impact of the aforesaid circumstances taken as a whole and in the context of the totality of the circumstances of the case. On this count we safely conclude that the Complainant has proved his main contentions as set out by him in his pleadings and Affidavitory evidence touching the aspect of the 'deficiency in service' on the part of the Opposite Party herein.
29. In view of our aforesaid findings on merits of the case, we do arrive at a definite conclusion that the Opposite Party never appeared to have been seriously interested in settling the legitimate claim of the Complainant and on the other hand went on raising objections and excuses instead of taking prompt and appropriate remedial measures towards the satisfaction of the said claim. The Opposite Party herein was wholly unjustified in unfairly and improperly rejecting the claim of the Complainant. The Complainant has come forward with convincing evidence to discharge the burden of proof in support of his case. As observed hereinabove the repudiation of the claim is in it
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self a 'deficiency in service' on the part of the Opposite Party in the peculiar facts and circumstances of the this case. 30. We are unable to agree with the contention of the Opposite Party that the Complainant has suppressed material facts and that non-disclosure of material fact entitles the Opposite Party to reject the claim. The Opposite Party has relied on the decision of Hon'ble Supreme Court in Sea Lark Fisheries v. United India Assurance Co. & Anr., III (2008) SLT 242, reported in (2008) 4 SCC 131, wherein Hon'ble Apex Court held that the terms of contract of marine insurance being governed by the provisions of the statute concerned, non-disclosure of material facts required to be disclosed by the statute would render the insurance policy repudiate. In our opinion the said decision cannot be made applicable to the facts and circumstances of the present case where facts are totally different and where we do not find anything on record to hold that there is non-disclosure of material facts on the part of the Complainant. It is to be noted that the Apex Court in the aforesaid case has also further observed that 'whether a particular circumstance which is not disclosed is material or not is essentially a question of fact'. 31. On the contrary, in Smt. Tresia Lilly v. Divisional Manager, National Insurance Co. reported in III (1997) CPJ 64, the Kerala State Consumer Disputes Commission held as under: “We find significantly there is no allegation that the crew purposely made the boat to sink. As a matter of fact it can be seen from the paper reports that along with this fishing boat 3 or 4 other fishing boats had also sunk and it has come out in the case of one boat wherein the claim was settled by the Opposite Party at Rs. 3 lakh and not being satisfied with the compensation awarded the party approached the Civil Court for enhancement of compensation. In the circumstances we feel that there is no proper justification to repudiate the claim. In the report of the surveyor or investigator nothing has been mentioned to indicate that there is no sinking of the boat or the vessel was deliberately made to sink in order to put forward a false claim. We are therefore of the view that repudiation of the claim would amount to 'deficiency in service'". 32. So also in New India Assurance Co. Ltd. v. G.N. Sainani reported in III (1996) CPJ 147 (NC)=1996 STPL 10724 NC, Hon'ble National Commission held as under : “Looking at the facts of the case we find that the Complainant had promptly informed the Insurance Company on 12.4.1984 requesting them to extend the cover of risk and agreeing to pay necessary charges for the same vide their letter dated 2.6.1984. Unfortunately the Insurance Company did not extend the period of insurance in spite of timely intimation and genuine request by the assured and thereafter, repudiated the claim saying that the transshipment from Muscat to Bombay was not within the period of 60 days. The State Commission of Maharashtra having taken note of the circumstances and facts of this case, held that there was clear deficiency on the part of the Insurance Company in not doing so. We are fully in accord with this finding of the State Commission.” 33. We are therefore of the considered opinion that the Complainant in the present case, has succeeded on all the fours in discharging the burden of proof and firmly establishing his case as against the Opposite Party herein with the help of convincing and cogent documentary evidence produced on record. It is only fit and proper to hold that the evidence of the Complainant read with his pleadings and Affidavit, certainly inspires more credibility and confidence bearing remarkable degree of coherence and consistency all throughout. The Opposite Party, on the other hand has miserably failed to substantiate their main allegations justifying their any act/s leading to repudiation of the legitimate claim of the Complainant. Hence, we are duty bound to hold the Opposite Party herein, absolutely and wholly liable at law. 34. We, therefore, unhesitatingly, hold that all the aforesaid acts of commission and omission on the part of the Opposite Party herein, for the reasons stated earlier, unmistakably amount to 'deficiency in service' as defined under the provisions of the Consumer Protection Act, 1986. In the result, we are inclined to allow the present complaint in terms of prayer (a) thereof with rate of interest as specified herein below. We therefore pass the following : ORDER It is hereby ordered that the present Complaint dated 6.10.2016 filed by the Complainant herein against the Opposite Party herein, is hereby allowed. The Opposite Party herein is hereby directed to pay to the Complainant the claim amount of Rs. 92,40,000 (Rupees Ninety Two lakh Forty Thousand only) with interest @ 9% p.a. from the date of filing this complaint till actual payment. The said payment shall be made within 30 days from the date of this Order. There shall be no order as to costs. Complaint allowed.