UNITED INDIA INSURANCE CO. LTD. vs JOAO N.PIRES

BY judgment and order dated 29.12.1994, the Goa State Consumer Disputes Redressal Commission, Panaji, directed the Insurance Company to pay Rs. 7,25,000/- together with interest @ 18% per year from 8.3.1993 till its payment with compensation of Rs. 10,000/- and also Rs. 5,000/- by way of costs. That judgment and order is challenged by the Insurance Company by filing this appeal.

IT was the case of the respondent (complainant) that he was the owner of a fishing trawler and for the same he has taken insurance policy for a sum of Rs. 7,25,000/- from 8.10.1992 to 7.10.1993. According to the complainant, the said trawler was found missing from the fishing jetty, Panaji alongwith the crew members from 8.12.1992. It is his say that on 8.12.1992 he gave missing report to the police and also informed the Insurance Company with the copies endorsed to the Collector of Customs, Panaji and to Chairman, Mandovi Fishermen''s Marketing Cooperative Society Ltd., Panaji, Goa. Thereafter, the trawler was located in sunken condition at Dona Paula, Goa on 11.12.1992. It is his further say that for this purpose, FIR was registered on 7.1.1993. It was his submission that all the crew members who were on the said trawler were reported missing and for that police submitted final report under Section 173 of Cr.P.C. Thereafter, Insurance Company appointed Surveyors who submitted their report on 6.4.1994. They investigated the contention of the complainant whether the crew member sunk vessel and, therefore, he was entitled to get the insurance money. For this purpose, detailed investigation was carried out with the help of the police. They tried to search out missing crew members but none was found. Surveyors met the wives of some of the crew members. They observed that witnesses were tightlipped and the villagers were casting aspersion on the owner of the vessel stating that none of the crew members were responsible for the loss of the vessel. They arrived at the following conclusion : "DISCREPANCIES : 1. The crew members who had once reportedly committed some offence/ misappropriation, were again employed by the insured immediately. 2. The owner/insured, alongwith Panaji Police Authority had visited the crew members'' native place to recover the money of about Rs. 35,000/- the case of which was registered under FIR No. 286/1992 dated 4th November, 1992 but when a property of about Rs. 7,25,000/- was lost/damaged by the same crew members, the insured and Police Authorities could not locate any of the crew members, even though their family is residing in the

VILLAGE whose address is known to the insured. 3. When the vessel was reportedly lost on 8th December, 1992, the FIR was lodged by the insured only on 7th January, 1993 i.e., after nearly about 1 month, even though he had stated in his letter dated 8th December, 1992, that he had registered complaint regarding the loss of vessel to the Police Department on the same day.

The date of loss was an reported by the insured and indicated in the FIR was 8th November, 1992 and when we brought out the discrepancy after obtaining the insured''s statement, he had applied for amendment to the Police Authorities. The Police Authorities had said in their letter that the insured in his nervous mind had mistakenly given the date of occurrence of offence as 8th November, 1992 instead of 8th December, 1992. 5. There was no final report issued/ produced by the insured for the FIR No. 286/1992 dated 4th November, 1992. 6. The insured in his statement dated 14th January, 1993 had stated that he was searching all along the coast from Ratnagiri to Karwar, but he could not locate. But on 10th December, 1992, some fishing vessel had noticed the vessel lying sunk near Dona Daula, which is close to Panaji. 7. The insured was also operating another vessel MFV. ST. QUITERIA JOAO and the subject vessel should have been berthed/kept alongside or under the care and custody of the crew members of that vessel, when the crew members of MFV. ''MERCES SAIBIN'' were found not reliable or trustworthy.

We made extensive inquiry in Panaji i Fisheries Jetty regarding the missing crew members of MFV. ''MERCES SAIBIN'' and the vessel. But none seems to have heard about the incident. 9. There is discrepancy in the Diesel bills and Fish sales bills as indicated I earlier. 10. Insured had submitted certain bills belonging to MFV ''ST QUITERIA JOAO'' as the bills of MFV ''MERCES SAIBIN'' which is misleading. 11. Even presuming the crew members intentionally wanted to cause/inflict the loss to the insured, they might not have left the vessel in such a way where the cab in/wheel house and the mast flag in which the name of the vessel written, were projecting above the water for the interested person to identify easily. 12. Crew members were not produced as on the date of submission of this report by the insured to enquire and record their statement into the incident. CONCLUSION : Based on the scrutiny of documents and the statement of the insured, in the absence of production of crew members of MFV. ''MERCES SAIBIN'' for our inquiry and recording their statement, we would not be in a position to arrive at the probable Cause of Loss.

RECOMMENDATION : The insured is advised to prevail upon the Coa Police Authorities, to apprehend/ produce the crew members of MFV. ''MERCES SAIBIN'' for obtaining their written statement/''

THE State Commission after considering the aforesaid report and the contention of the appellant arrived at the conclusion that it was not mandatory on the part of the complainant to produce crew members for investigation and when it was reported that they were missing and that Section 64um of the Insurance Act, 1938 does not give a blanket right to Insurance Company to keep the claim in abeyance without being settled only because there was no repof t of a licensed Surveyor. The Commission also considered the report quoted above and observed that "Surveyors have shown their inability to arrive at a probable cause of loss". Thereafter, directed the Insurance Company to pay amount as stated above. Admittedly, the police gave final report under Section 173(2) of Cr.P.C. on 14th June, 1993 informing the complainant that the investigation into the case led them to the view that the complaint was true; investigation was shelved for the time being as there were no immediate chances of detection of the case.

IN our view, contention of the learned Counsel for the Insurance Company with regard to non-lodging of the FIR on 8.12.1992 is well explained by the certificate issued by the Police Inspector, Panaji Police Station, wherein it has been specifically stated that petitioner has reported on 8.12.1992 that his trawler alongwith 7 workers was found missing and that missing report number 598/1992 dated 8.12.1992 was filed in the Police Station. The certificate also mentions that after due inquiry, an offence was registered on 7.1.1993. From this, it is apparent that there was no delay on the part of the complainant to lodge his complaint of missing trawler.

NOT only this, undisputedly, complainant has informed about the same to the Insurance Company, to the Customs Authority and the Chairman, Mandovi Fishermen''s Marketing Co-operative Society Ltd., Panaji. The learned Counsel for the Insurance Company submitted that as per the survey report, complainant had re-employed crew members who has once reportedly committed some offence and, therefore, also he is not entitled to the benefit of the insurance policy. This submission is without any substance because it is not and could not be the terms of the insurance policy that insured should remove crew members if they have committed some mischief at an early date. Employment or reinstatement of the crew members depends upon number of factors including mischief committed by the crew members, availability of the crew members, the relevant law including the Industrial Disputes Act and such other.

FURTHER , the non-production of the crew members before the Surveyor would hardly be a ground for rejection of claim made by the insured for the loss of vessel. On the contrary, the PSI in his report to the JMFC, Panaji, has specifically stated that on the receipt of the complaint investigation was carried out. It was suspected by the complainant that crew members intended to run away with the trawler and then it dashed against dock. Sunked trawler was found in the high sea and necessary Panchnama was prepared. Necessary actions were taken for arresting the accused but it was not possible to trace them. It is specifically mentioned that no witness was found in the case and that offence was true but suspected accused are not traceable and, therefore, ''A'' summary was requested. In this view of the matter, there is no reason to disbelieve the statement of the complainant.

ADMITTEDLY , insurance policy (subject to exceptions) covers : (a) loss of or damage to the property hereby insured caused by strikes, lockedout warden, or persons taking part in labour disturbances, riots or civil commotions. (b) destruction of or damage to the property hereby insured manned by persons acting maliciously.

It is true that there is no evidence how the trawler sunk in the sea, but admittedly it was found sunk at Dona Paula, Panaji. Missing report was sent to the police, customs authorities and to the Insurance Company as stated by the complainant. Surveyors appointed by the Insurance Company failed to find out the reason for sinking of the trawler as the crew members were missing.

THE insured had suspected foulplay by the crew members as the vessel was missing. He has also informed the underwriter, the Chairman of Mandovi Fishermen Marketing Co-operative Society, the Collector of Customs and Central Excise, Panaji, the Captain of Ports, Panaji and the Director of Fisheries, Panaji, Goa about the missing of the vessel and crew members on 8th December, 1992.

FROM the aforesaid facts, the question would be whether the Insurance Company is liable to compensate for the loss suffered by the insured. It is true that there is no evidence brought on record how the trawler sunk, but from this, it would be difficult to draw an inference that trawler was sunk, occasioned by any mischief on the part of the insured. In the result appeal is dismissed with costs quantified as Rs. 5,000/-. Interim stay granted by this Commission is vacated. Insurance Company to pay the balance of the amount with 10% interest to the respondent.