1. THIS complaint is filed under Sections 12 and 17 of the Consumer Protection Act claiming compensation of Rs. 7,65,000/ for loss of vessel,
which was insured with the Opposite Party.
2. SHORTLY stated allegations in the complaint are as follows: Complainant was the owner of a fishing troller with Registration No. NDK. 871,
issued by the Port Officer, Neendakara, Kollam. The troller was insured with the Opposite Party as per policy covering the period from 5.2.1993
to 4.5.1993 on payment of a premium of Rs.9,800/ and it was renewed on 4.5.1993 for a further period of 3 months on payment of a premium of
Rs. 7,200/ and again for another period of 3 months by paying Rs. 7,200/ on 4.8.1993.
On 21.7.1993 while the troller was fishing in the deep sea, suddenly the sea became rough and several boats were capsized causing injury to
several fishermen. Complainant''s troller was one among them. Ext. P1 is the Press report relating to the accident to the vessels. After sinking of the
vessel the crew were rescued and admitted to the District Hospital, Kollam. The discharge certificate issued is Ext. P 2. The complainant filed a
complaint before the Police Station, Ochira regarding the incident on 22.7.1993 and the police registered a case with Crime No. C2/328/PTN/93
regarding sinking of the troller. Ext. P3 is the receipt issued by the police on 3.8.1993 regarding registration of case. The licence was surrendered
to the Port Officer, Kollam, on 6.9.1993. The surrender certificate is Ext. P4. The Port Officer also issued a weather certificate of condition
prevailing at Neendakara on 21.7.1993, which is evidenced by Ext. P5. The accident was duly intimated to the Opposite Party and as per
direction of the Opposite Party complainant submitted a claim petition before the Opposite Party and the Opposite Party con ducted an enquiry.
Finally the Opposite Party issued a registered letter Ext. P6 dated 10.10.1994 repudiating the claim stating that the complain ant has not lost the
trolly and the crew was not competent to operate the troller. The complain ant alleged that the reasons stated by the Opposite Party for repudiating
the claim are not valid or genuine on these allegations the complaint was filed.
A version was filed by the Opposite Party denying the allegations and contending that the claim was repudiated for valid reasons and in good faith.
It was further averred, that detailed survey and investigation through private agencies were conducted and the survey report and investigation
report were considered in detail by the Opposite Party and it is on the basis of these materials the claim was repudiated. In the cir cumstances
there is no deficiency on the part of the Opposite Party. It is further averred that on receipt of the claim intimation, the Opposite Party deputed a
competent Marine and Insurance Surveyor and Loss Assessor M/s. Captain Krishnan & Company to survey and assess the loss. They collected
all the relevant data pertain ing to the alleged sinking of the vessel and another private investigator M/s. Scouts, Vyttila, Cochin was also deputed
and it is based on the survey reports and investigation report of the Surveyors the claim was repudiated. It was further averred that an Express
Warranty contained in the policy is that the vessel should comply with all local regulations and laws regarding registration of fishing licence, but the
complainant has not complied with the warranty contained in the policy. As per the Kerala State Ports and Harbour Craft Rules, 1970, the Serang
and Driver should possess certificate of competency. The vessel was registered at Neendakara on 11.11.1992 and the registration was valid till
31.8.1993. Apart from the aforesaid grounds there are also other grounds to show that the repudiation is valid. It is further averred that the cause
and circumstances leading to the alleged mishap as contained in the statements of crew members and others are neither consistent nor made bona
fide. Weather was seasonal and no weather warning was in force on the date of alleged mishap and this is clear from the certificate issued by the
Port Conservator, Neendakara. Further, weather report issued by the Materiological Department of Government of India also states that on the
date of alleged mishap the wind warning direction was north westernly. The vessel in question was a newly constructed one and was proceeding
north westernly direction and the predominant waves were south westernly as per the Serang and the effect of such waves would be to create
rolling and pitching. It was absolutely improbable that the planks got broken near the stem and there is little change of the vessel experiencing
heavy pounding leading to breaking of planks. The exact cause of the alleged loss is still a mystery. As per the statement of the crew they
approached another fishing vessel at a distance for obtaining assistance. What was informed to the crew of the other vessel is that the
complainant''s vessel is temporarily disabled due to leakage in the injector pipe. The injector leake was rectified soon after and the crew of the
rescue vessel reportedly refused to take the insured vessel to Neendakara and proceeded to north westward for fishing. While proceeding
northwestward another vessel was said to have been seen proceeding to Neendakara and the first rescue vessel requested the south bound vessel
to take the four crew members of the insured vessel to Neendakara. The crew of the insured vessel then boarded M.F.V. Ajimon and this vessel
proceeded to Neendakara and took the crew to the shore. The insured vessel reportedly engaged two Mechanised Canoes St. John and St. Jude
to search and locate her vessel on 22nd and 23rd July and another vessel M.F.V. Sachu on 25.7.1993. However it is alleged they could not find
any trace of the insured vessel. Another vessel M.F.V. JoshyMol also was used for the purpose. Further no receipt was produced by the
complainant in respect of the Mechanised Canoes reportedly hired by the complainant nor the search opera tions on 22nd July, 1993. It was
further averred that the report of the police and the statement by the owner is not sufficient to establish that the vessel is lost in the deep sea. In the
circumstances it was alleged that the claim is not genuine and it is validly repudiated and no deficiency what soever was committed by the Opposite
Party. It is also, contended that the case involves complex question of law and facts and detailed oral and documentary evidence is necessary to
come to a correct conclusion and in a case like this the rigours of rules of evidence cannot be dispensed with as otherwise it will end up in
miscarriage of justice and, therefore, the parties are liable to be relegated to a Civil Court.
3. THE complainant was examined as PW 1 and Exts. P 1 to P 17 were marked .On behalf of the Opposite Party the Divisional Manager of the
Insurance Company filed affidavit and Exts. Rl to R21 were marked.
The following issues were raised for trial:
(1) Whether this Commission is competent to entertain this complaint? (2) Whether there is any deficiency on the part of the Opposite Party and if
so, what is the relief the complainant is entitled to ? (3) What is the order as to costs?
4. POINT No. 1: It is contended by the Opposite Party that the matter involves complex question of law and facts and, therefore, the matter
cannot be determined by this Commission and that in the ends of justice the parties have to be relegated to a Civil Court in the nature of the
pleadings and the questions raised in the case. An application also was filed alongwith the version to decide this preliminary point on first. However
after hearing learned Counsel appearing for the appellant we are not satisfied that the matter involves such complex questions which would warrant
relegation of parties to a Civil Court.
Point No. 2: The most important question to be decided in the instant case is whether the repudiation of the claim is valid and whether the
Opposite party has committed any deficiency in repudiating the claim. It is contended in the version that the vessel was not lost. How ever, a
Surveyor and also one private investigator were deputed by the Insurance Company and the repudiation is stated to be the result of the
consideration of the survey report and the report made by the investigator. It is also con tended that there is violation of the Warranty conditions in
the Policy and the Serang had no requisite qualification and certificate of competency and for these reasons also the repudiation is valid and there is
no deficiency on the part of the Opposite party.
The complainant was examined as PW 1 who deposed in terms of the averments contained in the complaint. She stated that M.F.V. Kuttu 1
fishing boat belongs to her and the vessel sunk on 21.7.1993 while the vessel was fishing in the deep sea. There were four persons employed as
crew in the boat. They were Thankachan, Jus tin Babu, John and Robert. Thankachan was the Serang and Justin Babu was the Driver and all of
them got injuries and they were admitted in the District Hospital, Quilon. The boat started at 1.30 a.m. and sunk at 8.30 a.m. Intimation was also
given to the Ochira Police Station. The Insurance Company was also informed of the accident and also the matter was reported to the Port
Officer. An attempt was made to salvage the boat and one Sachu and Malvin made investigation but nothing could be found out. The Insurance
Com pany did not settle the claim and when ap proached the staff of the Insurance Company told her that she should not go there. The boat was
built and launched for fishing operation on 20.7.92 and the boat was sunk on 21.7.1993 and the cost of the boat would come to Rs. 8 lakhs. She
also stated that Ext. P1 is the report which appeared in the News Papers about the incident and Ext. P2 is the discharge card of the employ ees.
Ext. P3 is the photocopy of the G.D. entry of the Ochira Police Station and Ext. P4 is the surrender certificate issued by the Port Officer, Quilon.
Ext. P5 is the Weather Certificate, which showed that the climate was moderate. Ext. P6 is the letter received from the Insurance Company and
Ext. P7 is the licence issued by the Port Officer, Neendakara. Ext. P8 is the licence of the boat. Ext. P10 series are the correspondence received
from the Insurance Company. She further stated that she was not given any compensation. In the cross examination she stated that it was after
Edavappathi the accident occurred and stated that she had paid higher premium to cover the risk of Edavappathy. She had also stated that all the
norms provided by the law have been satisfied in the case of the fishing boat. She also stated that in Ext. P8 registration certificate issued by the
Port Officer it is stated that the Serang and Driver should obtain certificate of competency as per Kerala Harbour Craft Rules and that has been
satisfied and the Serang had an experience certificate for 6 years. To a suggestion that the Serang and Driver had no certificate of competency but
only had experience certificate and a certificate of training to the Serang, she said that all the required certificates were produced. To another
suggestion that according to the survey report if the driver was efficient the accident could have been avoided she replied that the Surveyor had not
seen her. She had received letters from Capt. Krishnan & Co., she was aware of the survey but she did not get any notice. She stated that the
boat has been registered as per Kerala Ports & Harbour Craft Rules and Merchant Shipping Act. Registration has also been made before the
Director, Department of Fisheries and her reference was about Ext. P7 issued by the Port Officer. She further stated that her employees were
called and threatened and without her knowledge some statements were taken from them. She denied the suggestion that St. John and St. Jude
made search on 22nd and 23rd and she also denied the suggestion that the search operation was only a dramma. To a ques tion that the sea was
not rough she replied that it happened all of a sudden and the boat sunk at 8.30 a.m. on 27.1.93. She denied the suggestion that the sinking of the
boat was not due to marine peril. She also stated that Ext. P10 is the original certificate.
5. IN the affidavit filed by the Senior Divisional Manager of the National INsurance Co. Ltd., he stated that the claim was repudiated on the basis
of the survey report and loss assessment in compliance with the legal requirements and Capt. Krishnan & Co., reputed Surveyors and Loss
Assessors were engaged for the purpose. A detailed investigation was also con ducted through a professional insurance claim investigator and the
claim was repudiated after evaluating all the facts and circumstances. There is no deficiency in service on the part of the Opposite Party. It was
further averred therein that the claim was repudiated mainly for breach of express warranties contained in the policy and as per the provisions of
the Marine INsurance Act an express warranty has to be exactly complied with. Since the express warranties are not com plied with by the
complainant the Opposite Party has no liability to settle the claim lodged by the complainant. It was further averred that the licence issued by the
Port Officer, Neendakara contains a stipulation endorsed on the back of the licence that the Serang and Driver should obtain certificate of
competency as per Kerala Harbour Craft Rules, 1970. It was admitted that the fishing boat was registered as NDK, 871 under the Kerala State
Port & Harbour Craft Rules, 1970 by the Port Officer, Neendakara. It was also stated that as per the Survey report furnished by Capt. Krishnan
& Co., dated 22.10.1993, Serang is not in possession of certificate of competency. It was further stated that the Surveyor has remarked that the
Serang did not exercise the competency and apparently does not possess sufficient knowledge to carry out his duties properly, and the
circumstance of the loss is also highly suspicious and the statement made by the crew and other connected persons are inconsistent, self
contradictory and suspicious. There is also an allegation that the search operation alleged to have been conducted by the com plainant is not bona
fide, the receipts produced are undated and the two vessels/Canoes St. John and St. Jude is said to have been sent for search operation on 22nd
and 23rd July and no receipt was produced for hiring of these vessels. It is further stated that there is no mention in the document that any of the
crew members accompanied the vessels deputed for search operation, and the whole thing is only created for record purpose and is lacking in
bona fides. It is further stated that the vessel is not registered for the purpose of fishing operations as required under the Kerala Marine Fishing
Regulation Act though the vessel is registered before the Port Officer as per registration certificate and there is also no registration under the
Merchant Shipping Act. As per the provisions of the Marine Fishing Regulation Act, the vessels are liable to be registered with the Deputy
Director, Department of Fisheries. Another major factor to be reckoned with which constitutes is the breach of this ex press warranty and no
registration to this effect has been produced by the complainant. The Opposite Party has not done anything deliberately or intentionally and all
allegations and aspersions to the contrary do not appear to be bona fide. It was admitted that the complainant''s boat was given insurance
coverage by waiving the monsoon warranty. Though the policy permits fishing operations during monsoon time, it is all the more important that the
crew should take more care while taking out the vessel during this period. IN those circumstances, the complaint has to be dismissed. The
deponent was not made available for cross-examination.
6. EXT. P1 series are the paper reports of the prominent Malayalam Dailies Mathruboomi, Kerala Kaumudi and Malayala Manorama have
reported the incident and those reports have not been disputed. The report in Mathrubhoomi show that alongwith this boat there were 3 other
boats in the sea. The Kerala Kaumudi and Malayala Manorama have also reported the sinking of some other boats alongwith the disputed boat.
The reports indicate that the vessel Sherin was also lost in the sea on similar circumstances on the same day alongwith the vessel Kuttu. It has
come out in evidence that the driver and Serang of Sherin had no qualifications other than their past experience and to the owner of the boat,
Sherin was given a compensation of Rs. 3 lakhs by the Insurance Company and not being satis fied with that the owner of the vessel Sherin filed a
case before the Sub Court, Kollam, as O.S.314/ 95 claiming enhanced compensation. EXT. P2 series are the discharge certificates in respect of
Justin, John, Thankachan and Robert, who were members of the crew of the disputed boat, issued by the District Medical Officer, Kollam and it is
stated therein that they were admitted in the hospital on 21.7.1993 and discharged on 22.7.1993, and they sustained injury on account of the boat
accident. EXT. P3 is the receipt issued by the Sub Inspector of Police, Ochira stating that though they enquired about the fishing boat Kuttu on
21.7.1993 at about 8.30 a.m. and thereafter they could not trace out the fishing boat. EXT. P4 is the surrender certificate issued by the Port
Officer, Kollam stating that the complainant/owner of M.F.V. Kuttu has surrendered the licence of the above boat to his office on 6.9.1993 and
the licence stands cancelled and as per the statement of the crew the boat was lost in the sea on 21.7.1993 due to accident. EXT. P5 is the
weather certificate issued by the Port Officer, Neendakara stating that the weather condition prevailed at Neendakara on 21.7.1993 was
moderate and there was no weather warning. From these documents and from the evidence of PW 1 it has been established beyond doubt that
M.F.V. Kuttu fishing boat belonged to the complainant sunk on 21.7.1993 while engaged in fishing. EXT. P6 is the letter dated 10.10.1994 sent
by the Opposite Party to the complainant in which it is stated that the survey and investigation conducted by them revealed that the loss of the
vessel as stated by the complainant is not genuine, that the crew of the vessel who was on Board on the crucial date was not competent to operate
the vessel and hence they are not liable to compensate the complain ant for the alleged loss and that the circum stances of the alleged loss are
highly suspicious and the statement made by the crew and other connected persons are inconsistent, self contradictory and highly suspicious. Thus
it is stated that the loss of vessel is not genuine and the circumstances are also suspicious: We do not find any ground to accept those contentions.
In the first place paper reports and all other documents produced clearly show that the complainant''s boat was sunk on 21.7.1993 while fishing.
EXT. P7 is the certificate of registry of fishing boat issued by the Port Officer, Neendakara which shows that the complainant is the sole owner of
MFV Kuttu which was built in the year 1992 and it was duly registered at the Port Office, Neendakara under the Merchant Shipping Act. EXT.
P8 is the detailed description of the boat which shows that the disputed boat was built in the year 1992 and was in good condition. Then the
remaining question to be considered is whether driver and Serang had competency qualification as required under the Act. EXT. P9 is the
Certificate issued by the Director of Fisheries, Department of Fisheries, Government of Kerala stating that Sri Justin K.K. has undergone a course
of training in Principles of Navigation, Operation of Fishing, Gears and Motor Boat management for a period of thirty eight weeks from
30.12.1974 to 21.9.1975 at the Fishermen Training Centre, Neendakara, Quilon (sic.) in the year 1975. EXT. P13 is the certificate issued by the
Superintendent, Fishermen Training Centre, Neendakara, Department of Fisheries, where it is stated that Shri Justin, K.K. had completed the
training at that centre for a period of 38 weeks from 30.12.1974 to 21.9.1975. During this course he was given training in theory and practical in
the following subjects:
1. Gear Technology and Fishing Methods. 2. Fishing Biology and Processing Technology. 3. Operation and maintenance of Marine Engines. 4.
Navigation and Seamen ship.
These certificates would clearly indicate that Shri Justice K.K. who was the driver of the disputed boat had undergone the course of training
conducted by the Fishermen Training Centre and passed in the year 1975 and in view of this we are unable to accept the contention that the driver
had no certificate of competency.
Similarly, Ext. P 15 is the certificate issued by one Vincent stating that Mr. Thankachan, S/o Bennan, residing at Thoppil Kochu Veedu, Karithara,
Chavaram was working as Serang in his fishing boat from 1986 on wards and that he is having a very good experience in the field and his conduct
and character are good.
Ext. P12 series receipts issued by Shri N. Vincent, Laurenz Bangalow, Puthenthuruthu, Sakthikulangara stating that the boat belonged to him in the
name of Suchy was engaged for the investigation of the disputed sunk boat Kuttu No. 1 on 25.7.93 and has received a sum of Rs. 6,500/ towards
all expenses and another receipt issued by Lilly Kaithari, owner of fishing boat Joshu Mol, for Rs. 5,000/ for the searching operation of the fishing
boat Kuttu No. 1 which sunk on 21.7.1993.
7. THE learned Counsel for the Opposite Party vehemently contended that the certificates produced are not sufficient to establish that the Driver
and Serang had competency. We are unable to accept the contention in the light of the above documents. In the matter of the Serang only
experience certificate is produced, but the Opposite Party has not that certificate is insufficient and that under the law some other qualification is
required for a Serang.
As a matter of fact that the evidence of PW 1 shows that the qualifications of the Driver and Serang of fishing boat shown are also similar and still
the Insurance Company settled the claim. No doubt, it is seen from the Ext. P16 produced by the complainant in relation to the vessel, Sherin it
was United India Insurance Company which insured the vessel and that they offered Rs. 3 lakhs towards full and final settlement of the claim in
respect of the vessel.
8. EXT. P 17 is the certificate issued by Sri M.K. Raju, B.Sc. (Engg.) approved Loss Assessor and valuer which showed the present value of the
boat is Rs. 5 lakhs. EXT. P 2 is the survey report prepared by Capt. Krishnan & Company at the instance of the Opposite Party. It is stated
therein that the Serang is not in possession of certificate of competency but it is admitted therein that the Driver K.K. Justin is in possession of
certificate issued by the Fishermen Training Centre, Neendakara. Though some reasons are attempted to show that the claim is not genuine, we do
not find any justification to disbelieve the case of the complainant in view of the paper reports and other records available, which clearly indicate
that the boat was sunk. The evidence relating to the search operations is also acceptable. It was admitted in EXT. R2 report that the insured has
complied with the terms and conditions as well as the Warranties of the policy except that the Serang is not in possession of any certificate of
competency. But what certificate is required for Serang has not been mentioned. In the absence of any material we feel that the only requirement
so far as the Serang is concerned is the certificate of experience and that the certificate produced would indicate that the Serang had sufficient
experience and we do not find any justification in the criticism levelled by the Surveyor that the Serang did not exercise reasonable competence
expected of a Serang and that apparently he does not possess sufficient knowledge to carry out his duties. It has been highlighted in the report that
there are discrepancies in the statements of members of crew as regards the occurrence alleged discrepancies are very minor and do not materially
affect the case. It is also clear that sea became rough unexpectedly leading to the sinking of vessel and one cannot expect the members of the crew
to describe the occurrence in the same way in regard to all its details. The conclusion arrived at in EXT. R2 is based on such variations and
nobody has got a case the vessel did not sink. The Surveyor only recommended that the claim may be processed based on the final report of the
police after completing their investigations and that a thorough investigation may be made by professional investigator, if necessary. Perhaps on the
basis of this, an investigation was made by ''Scouts'', insurance claims investigation/ consultancy. We have also gone through the report and it is
pertinent to note there following statements as made therein: ""The news that M.F.V. Kuttu had sunk in the seas had gained wide currency and
many men whom I had enquired about the vessel had informed that the vessel had sunk sometime during the recent season. The collectors of toll at
Neendakara and Sakthikulangara have also let it known that the vessel was lost in the seas and no salvage could be recovered. Some of the boat
owners at Sakthikulangara had also admitted that ''Kuttu'' owned by the Kins men of ''Bakery Sunno'' had sunk some time during the last rainy
season. One of them have revealed that some owners had drowned their vessels after removing the engine, in the back waters and have at tempted
to claim compensation. One such attempt was detected by the authorities and he had been brought to book. He then added that the case of
''Kuttu'' was different and it had really sunk in the seas"". Finally they have stated that there were conspicuous inconsistencies in the timing of the sail
ing and the number of members who had sailed in the fishing operation on the material day and concluded that under the circumstances there is
something more than what meets one''s eyes, in the whole episode which the insured had at tempted to conceal. If the mishap was true and genuine
the persons involved in the mishap should have recalled the event without any sort of inconsistency and the statements should have been alike and
identical. But the apparent inconsistency in the statements given by the persons involved in the event leadone to conclude that there was something
more than what has been made out by the insured.
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 alongwith this fishing boat 3 or 4 other fishing boats had also sunk and it has come out in the case of one boat Sherin, the claim was settled by
the Opposite Party at Rs. 3 lakhs 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.
Coming to the amount of compensation we find that the boat is insured for an amount of Rs. 5 lakhs. Ext. P17 is the report made by the approved
Surveyor and according to him the market value of the fishing boat is Rs. 7.5 lakhs. In the circumstances we find that the complain ant is entitled to
get a compensation of Rs. 5 lakhs together with interest @ 15% from 21.7.1993, the date of accident. The complainant is also entitled to get her
cost which we fix at Rs. 1,000/ . Complaint allowed with costs. _______________