COONGHA MARINE PRODUCTS vs Oriental Insurance Company Ltd.

THIS revision is directed against the order dated 23.12.2004 of State Consumer Disputes Redressal Commission, Chennai allowing appeal against the order dated 11.6.2002 of a District Forum and dismissing the complaint. The District Forum had allowed the complaint with direction to the respondent-Insurance Company to settle the claim for Rs. 2,53,829 as per surveyor''s report together with interest @ 10% p.a. from 25.1.1993.

IN short, facts giving rise to this revision are these. Petitioner/complainant got their merchandise fishing vessel- Nisha insured with the respondent/opposite party-INsurance Company for a period of one year on 26.4.1991. The vessel met with an accident at Pamban on 24.1.1992. This fact was immediately brought to the notice of the respondent by the petitioner. M/s. J.B. Boda Surveyors (P) Ltd. appointed by the respondent - INsurance Co. submitted the report recommending payment of Rs. 2,53,829 to the petitioner. However, by the letter dated 13.3.1993, the respondent repudiated the claim. It was alleged that petitioner had incurred expenditure of Rs. 3,77,215 on repairs of the vessel. Petitioner could not operate the vessel for fishing for about 7 months till the repairs was over in August, 1992. For loss of catch during that period, the petitioner claimed loss of Rs. 8.00 lakh. By restricting the claim, petitioner sought direction to the respondent INsurance Company to pay Rs. 5.00 lakh. Respondent- INsurance Company contested the complaint by filing written version on a variety of grounds including that it is not liable to compensate for partial damage caused to the vessel under the terms of policy dated 26.4.1991. By way of preliminary submission, Shri Vishnu Mehra for the respondent - Insurance Company contended that under Clause Nos. 1 and 9 of the policy in question ( copy at pages 19 and 20) claim is admissible only in respect of total loss to the vessel. It was pointed out that claim for partial loss under Clause 10 is payable only when it was on account of stranding, grounding, sinking, fire and own damage arising out of collision with other vessel subject to certain deductible excess. According to Mr. Mehra, loss to the vessel did not arise out of collision with other vessel, the claim is thus not payable under the said clause. On the other hand, it was urged by Dr. A. Francis Julian for petitioner that as the petitioner''s claim through the letter dated 16.3.1993 was not repudiated by the Insurance Company as not being covered under said Clause 10 the claim for partial loss to the vessel is payable. It was pointed out that the finding returned by the State Commission that loss/damage to the vessel was not caused due to the perils of sea is contrary to the survey report dated 9.9.1992 of M/s. J.B. Boda Surveyors (P) Ltd. Our attention was drawn to the discussion made under the sub-heading-''Cause of damage'' of this report which reads thus: "Based on our interrogations of crew members, skipper and inspections of damages sustained to M.F.V. "NISHAA" (F-VS-124) and after perusing the report of Port Officer, Pamban, we are of the opinion that the vessel''s bottom was damaged due to grounding which is peril of the sea."

Aforesaid Clause Nos. 1, 9 and 10 of the policy under the heading ''Warrantis, Terms and Conditions Forming Part of Hull'' which are material, run as under: "Insured against Total or Constructive Total loss subject to Institute Standard TLO Clauses (Hulls) attached. 9. Insured against the risks of Total Loss and Constructive Total loss as per the Institute Standard TLO Clauses (Hull) attached. 10. Including the risks of Partial loss or damage due to Stranding, grounding, sinking, fire and own damage arising out of collision with other vessel subject to the following deductible excess- (i) In case of Sailing Vessels and mechanised fishing vessels 33-1/3% of the assessed loss or Rs. 1,000 whichever is higher each claim. (ii) In case of non-mechanised fishing vessel Rs. 1,000 each claim.

IN para No. 28 of the written version, respondent has taken the plea that it is not bound to compensate the petitioner for the partial loss claimed as per the conditions of Trading Warranty of the Marine Hull Policy in question dated 26.4.1991. Undisputedly, petitioner''s claim was not repudiated by the letter dated 16.3.1993 by the INsurance Company on ground of its not being admissible under said clause No. 10 of the policy. Thus, the question is what will be the consequence in such an eventuality. IN our view, if the claim itself is not payable under the terms of policy, then any omission to refer to Clause 10 would not come in the way of INsurance Company in denying payment of the claim by invoking said Clause 10. It being admittedly a case of partial loss to the vessel and not arising out of collision with other vessel is, therefore, not payable under said Clause 10 of the dolicy as rightly pointed out on behalf of the respondent. Having reached this conclusion, we need not examine the other submission referred to above, advanced on behalf of the petitioner. Accordingly, revision petition is dismissed. No order as to costs. Revision Petition dismissed.