The complainant, being a 'consumer' under the Consumer Protection Act, was found to be availing service for consideration and the complaint was deemed maintainable. The court ruled that the breach of warranty condition was not proven, and the complainant was entitled to the insured amount on a total loss basis. The court also rejected the deduction for salvage value and premium, directing the opposite parties to pay Rs. 4,14,560/- with interest at 17.25% from 4/99.

Mr. Justice L. Manoharan, President—Complaint for a direction to pay the insured amount on the loss of the fishing vessel in the accident that took place on 11.9.1998 at about 3.30 a.m.

The case of the complainant in brief is as follows, he availed a loan of Rs. 6,00,000/- from the opposite party for building the body of a motor fishing vessel, ‘Kovila’ bearing registration No. NDK 1669; that was built utilising the said amount, the total expense for engine and the body was Rs. 11,00,000/-. The boat was insured with the opposite parties 1 and 2 for an amount of Rs. 8,00,000/- and remitted the first instalment of the premium through 4th opposite party. The policy was for one year from 24.7.1998; while so the boat left at 3.30 a.m. on 11.9.1998 for fishing from Sakthikulangara when it reached near the brake water (Pulimuttu) suddenly the engine stopped on account of mechanical defect, it moved towards the east and hit on the rocks and sank into the sea. Soon after complainant informed the matter to the police, port authorities, Insurance Company and 4th opposite party/Bank. In the morning itself, at about 11 a.m. first and third opposite parties visited the spot and directed the complainant to start salvage operation. Most of the damaged items could be recovered, statements of the crew were recorded by the 3rd opposite party. As per the direction of the Surveyor records including weather reports from Neendakara and from Meteorological Department, Govt. of India, Chennai were submitted. After prolonged discussion, 3rd respondent persuaded the complainant to agree to accept the value of the salvaged item for Rs. 1,80,000/-. Persuaded by the representation of the 3rd opposite party, that if he agreed for the said value for the salvaged items as suggested by him, he would see the insured sum is disbursed immediately, complainant agreed to accept valuation. But later learnt, the salvaged item would fetch only Rs. 70,000/-. The said agreement is vitiated as the same was not on the free Will and consent of the complainant. Though he was entitled to Rs. 8,00,000/- which is the insured amount on total loss basis he was offered only an amount of Rs. 3,72,000/-; they deducted 40% stating that the vessel went out for fishing when the ‘R’ flag was hoisted and the wind speed was between 45 and 55 kmph. The second opposite party sent a voucher dated 28.4.1999 directing him to sign same and return it after getting it countersigned by the fourth opposite party for effecting payment. He alleged that the said acts of the opposite parties 1 and 2 would constitute deficiency in service inasmuch as the amount is due to him as per the policy on total loss basis inspite of his demand was not offered. It is further maintained that the acceptance of the said amount by the 4th opposite party cannot in any way affect his right for the relief.

2. Opposite parties 1 and 2 filed joint version and 4th opposite party filed a separate version. 3rd opposite party remained ex parte.

3. In the joint version by the opposite parties 1 and 2 they contend, the complaint is not maintainable, that on the date of accident there was weather warning inspite of that the boat was sent for fishing, that as soon as the information regarding the occurrence reached the opposite parties these opposite parties took all necessary steps, the value of the salvaged items is Rs. 2,10,000/- which after being convinced complainant accepted and signed; the charge for the salvage operation was Rs. 30,000/-. The case that the complainant accepted the same on the persuasion by the 3rd opposite party is not correct; the allegation that the salvage value is only 70,000/- is not true or correct; complainant accepted the said valuation in the agreement and signed its, in the letter dated 24.5.1999 did not raise any dispute as regards the amount 24.5.1999. The amount offered is the correct amount due; Rs. 63,500/- (sic.) already been paid to the State Bank of Travancore. Sakthikulangara by the v