M.THANIKACHALAM, J. - (1.) The opposite party is the appellant.
(2.) Factual matrix for the appreciation of the case as follows:- The complainant, who is carrying on the business of Marine Engineering, had taken a Marine Hull Policy, for the dumb barge on 08.09.95, for the period covering till 7.09.96, for the sum assured Rs.5 lakhs, which includes loss or damage to the barge caused by the perils of the sea, rivers, lakes or other navigable water. The dumb barge called "Bharadwaj" sank along with some piling machinery on 11.05.96 due to rough sea condition, during the above said policy period, which was informed not only to the Tuticorin Port Trust, but also to the opposite party. Based upon the policy, the complainant claimed a sum of Rs.4,40,000/-, answering the queries raised by the opposite party, as well as furnishing the documents as required by them. Though the claim was lodged, immediately after the occurrence on 11.5.96 and despite several reminders, there was no response and after roughly about 4 years, the claim was repudiated, on 18.7.2000, as if, the damage is not covered under the policy, alleging there was no peril, further informing that the barge was not water tight, coupled with poor maintenance, rendering the barge unseaworthy, which are all false. Even after the repudiation, the complainant explained the position, requested to reconsider the claim, which was not considered by the opposite parties, thereby they have committed negligence and deficiency in service, coming within the definition of the Consumer Protection Act. Thus alleging, the case came to be filed, claiming a total sum of Rs.5,40,000/- including a compensation, for mental agony.
(3.) The appellant/opposite party admitting the policy, questioning the claim, as if, the same is not maintainable, since it is a commercial one as well as barred by limitation, further contending that there was no peril on the date of alleged incident and if at all anything had happened to the dumb barge, that may be due to deterioration/weakening of the angles flats welded/bolted to join the section of the pontoons, insufficient strength of the connecting members between pontoon sections, resulting in parting away of the two sections, which are not covered under the policy, that at the time of the alleged incident, the dumb barge was not functioning within the port area, thereby the complainant had violated the conditions of the policy of the insurance and based upon these alone after elaborate discussion, claim was rightly repudiated, which cannot be termed as deficiency in service, praying for disposal of the case, denying further averments in the complaint also.;