ORIENTAL INSURANCE CO LTD vs Divakar

THERE is a delay of 81 days in filing the present Revision Petition by the Oriental Insurance Company Limited the OP. Application for condonation of delay has been moved. Counsel for the petitioner admitted that there was procedural and departmental delay in filing the present Revision Petition. He prayed that his case on merits is very good and insurance company should be given an opportunity of being heard.

KEEPING in view, all the facts and circumstances and there is a delay of 81 days only, I hereby condone the delay subject to payment of Rs.25,000/ - as costs, which will be paid to the complainant Sh. Divakar through demand draft, within a period of 90 days from the date of receipt of copy of this order otherwise, it will carry interest @9% till its realization.

NOW , I turn to the merits of this case. It must be borne in mind that this is a case of Total loss. The policy clearly, specifically and unequivocally mentions: - Rate : @ 1.60% TOTAL LOSS ONLY

PREMIUM:

I have also perused the report of the surveyor. The surveyor gave the following conclusion: -

"CONCLUSION:

In view of all the above facts, it may be said with a sense of finality that the insured boat hasn''t really met with any accident and as such, the claim preferred by the insured doesn''t fall within the purview of the policy condition.

The alleged damage (i.e., partial damage) suffered by the insured boat is less than the sum insured and as this boat enjoys only Total loss coverage, the present alleged loss naturally doesn''t become your liability as per the policy conditions.

Therefore, the above claim may be repudiated from you end".

Accordingly, the Insurance Company repudiated the claim on 31.10.2008 by writing the following letter: -

"Please refer to your claim in respect of Accidental Damage to MFB "Durga Ganesh" covered under the abovementioned Policy.

Your Vessel has sustained losses due to Partial Loss, which is not covered under the Policy as the Insurance Policy taken by you is for Total Risks only. Hence, we regret to inform you that the claim is not payable as per the terms and conditions of the Policy.

Kindly acknowledge receipt".

ON the other hand, counsel for the complainant vehemently argued that the Surveyor intentionally delayed the filing of the report on the one pretext or the other. His main ground for delaying the report was that the complainant had failed to produce the Weather Report. If the surveyor cannot procure the weather report, on his own accord, in that event, what is the use of a surveyor? He will be considered as a useless surveyor. The report should have been filed within a period of three months but he took 11 months. This is a deficiency on the part of the Insurance Company. The Insurance Company should not appoint such like surveyors, who cannot accomplish the work within the framework provided by the Law.

THIS is an admitted fact that there was no total damage of the mechanized fishing boat. It must be borne in mind that the boat was built in the year 1981. The Insurance was obtained in the year 2007. The Insurance Company in such like cases does not give the Insurance in such like cases for partial loss.

COUNSEL for the Complainant/respondent argued that this question of total loss was raised for the first time. There is no such finding by the Fora below. She made a request that the case be remanded back for the decision on that very purpose.

THIS argument is devoid of force. The policy was available since the year 2007. The repudiation letter mentions this fact in so many words. Each and every fact was in the knowledge of the complainant. In case, the Advocate of the Insurance Company before the Fora below failed to raise this point, there lies no rub for the Advocate of the Insurance Company, before the National Commission, to raise this point. The case cannot be remanded.

CONSEQUENTLY , I hereby set aside the order passed by the Fora below and further award a sum of Rs.25,000/ - in favour of the complainant, for the delay caused by the Surveyor. It is well known that the Surveyor always acts in cahoots with the directions given by the Insurance Company. Consequently, the Insurance Company is also liable for this delay. The said amount be paid to the complainant, within a period of 90 days, from the date of receipt of this order otherwise, it will carry interest @9% till its realization. The above said total amount to be paid by the Insurance Company within 90 days, is Rs.50,000/ -, else the interest will accrue as pointed out above. The Revision Petition stands disposed of.