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Judgment
1.Heard Mr. K. N. Choudhury, learned Senior counsel, appearing for the petitioners. Also heard Mr. Y. Doloi, learned Standing counsel, Transport
Department, appearing for respondent No. 1, 2 and 3 as well as Ms. R. D. Mozumdar, learned counsel, appearing for respondent No. 4/Insurance
Company.
The petitioner No. 1 is a firm of which petitioner No. 2 is the Managing Partner. The petitioners and the respondent No. 2 had entered into an
agreement on 25.09.2007 to use two vessels of the Inland Water Transport Department, namely, S.B. Ranganadi and S.D.B. Manashi, for the
purpose of river cruising over the river Brahmaputra for twelve hours a day, from 9:00 A.M. to 9:00 P.M., twenty-five days in a month. For the
aforesaid purpose, necessary expenditure for modernizing and upliftment of the vessels, including its decoration, furniture and fixtures, sitting
arrangement, suitable arrangement for restaurant, entertainment programme, ticket counter, construction of Ramp, approach, Jetty, publicity and
advertisement, etc., were to be incurred by the hirer, i.e., the petitioners, under the supervision of an Officer of the Inland Water Transport
Department, Government of Assam, and such cost was not to be reimbursed.
The instant writ petition revolves around the vessel, namely, S.D.B. Manashi. In the year 2011, while the said cruise vessel was in operation under
the petitioners, some leakages at the bottom of the vessel were detected and the petitioner No. 2, by his communication dated 15.02.2011 informed the
respondent No. 2 to repair the vessel for smooth and safe running of the vessel. On 10.04.2012, the vessel sank in the river Brahmaputra and
although, later on, the vessel was recovered, the same could not be repaired as the cost of retrieval/rectification would have been more than the value
at which the vessel had been insured.
It is pleaded that the petitioner No. 2 had paid the premium of Rs. 25,801.00 and the Insurance Policy in respect of the vessel was valid for the
period from 05.01.2012 to 03.01.2013. The Insurance Policy, being Policy No. 321200/22/2012/130, was issued in the names of (i) Inland Water
Transport Department, Government of Assam, and (ii) the petitioner No. 2. On 26.04.2012, the petitioner requested the respondent No. 2 to lodge a
claim before the respondent No. 4/Insurance Company for realization of insured sum against the policy. However, the Deputy Director (D), Inland
Water Transport Department, wrote a letter dated 05.11.2012 asking the petitioners to take up the matter with the Insurance Company as the Director
of Inland Water Transport Department had not made any kind of insurance of the hired out vessel. The petitioners took up the matter with the
Insurance Company and a Marine Hull Surveyor from the Kolkata Office of the respondent No. 4 attended the site of accident on 10.11.2012 in order
to inspect/survey and assess the loss of S.D.B. Manashi. After such inspection and survey, a Preliminary Survey Report was submitted on
29.11.2012. The Director of Inland Water Transport Department issued a No Objection Certificate (NOC) dated 04.04.2015 for issuance of Demand
Draft/Pay Order in the name of petitioner No. 1 in connection with the settled amount against the insurance claim of S.D.B. Manashi and the said
NOC was forwarded by the petitioner to the respondent No. 4 vide letter dated 22.03.2016. On 11.05.2016, the Divisional Manager of respondent No.
4/Insurance Company addressed a letter to the Director of Inland Water Transport Department, Assam, informing that the claim lodged in connection
with Policy No. 321200/22/2012/130 had been settled at Rs. 18,44,279.00. By the said letter, certain documents were requested to be submitted for
payment of the claim amount. Amongst others, against the said letter dated 11.05.2016, the petitioners approached this court by filing a writ petition,
being WP(C) 3284/2016, contending that the said amount is required to be disbursed by the Insurance Company to the petitioners.
At this juncture, it will be appropriate to note that WP(C) 3284/2016 was also listed today along with this writ petition and the same was dismissed
as infructuous on the statement of Mr. K.N. Choudhury, learned Senior counsel, appearing for the petitioners in the said writ petition, because of
subsequent development, which had become the subject-matter of the instant writ petition.
The subsequent development is the withdrawal of the NOC dated 04.04.2015 by the Director i/c, Inland Water Transport Department, vide his
letter dated 18.08.2016, which was issued in pursuance of a government letter dated 16.08.2016.
By the instant writ petition, the petitioners pray for quashing of the order dated 18.08.2016 by which the earlier NOC dated 04.04.2015 had been
withdrawn, and for a writ of mandamus directing the respondent No. 4 to pay the petitioners’ claim of Rs. 18,44,279.00. The respondent Nos. 2
and 3 had filed one affidavit dated 07.03.2017 and the respondent No. 3 had individually filed an affidavit dated 04.04.2017, as well as one additional
affidavit dated 31.01.2018. The respondent No. 4 had also filed an affidavit. The petitioners had filed an additional affidavit on 17.03.2017.
In the additional affidavit filed by the petitioners, the petitioners have brought on record a Certificate dated 26.12.2009 of the Surveyor and
Assessor in respect of the Condition and Valuation of S.D.B. Manashi.
In the affidavit filed by respondent Nos. 2 and 3 on 07.03.2017, it is stated that there was no note-sheet, endorsement, etc. in the concerned file at
the time of issuance of NOC dated 04.04.2015. It is pleaded that the property of the petitioner No. 2, meaning thereby the cruise vessel in question,
was insured by the petitioner No. 2 and the insurance should cover loss of property only. It is also stated that the petitioners had invested some amount
for their business and most of the valuable items had been removed and taken away by the petitioners from the sunken vessel. 9. In the affidavit-in-
opposition filed on 04.04.2017 by the respondent No. 3, there was reiteration of the stand taken in the earlier affidavit filed by the respondent Nos. 2
and 3 on 07.03.2017. In addition, respondent No. 3 had brought on record some documents demonstrating that some items had been taken possession
of by the petitioners. In the additional affidavit filed by respondent No. 3, it is stated that by a letter dated 29.02.2012, respondent No. 2 had, in
pursuance of a Government letter dated 22.02.2012, requested the petitioners to hand over S.D.B. Manashi immediately and, accordingly, the vessel
was handed over to the Inland Water Transport Department on 01.03.2012.
In the affidavit filed by the respondent No. 4, it is stated that premium of the insurance policy in question was paid by the Inland Water Transport
Department and that the petitioners not being the owners of the vessel, are not entitled to the amount insured.
Mr. Choudhury has submitted that contrary to the stand taken in the affidavit of respondent No. 4, it was the petitioners who had paid the premium
for the insurance and this fact is also not disputed by the Inland Water Transport Department. He has submitted that in the insurance policy in
question, the petitioner No. 2 was shown as one of the parties covered by the policy. As regards withdrawal of the NOC dated 04.04.2015 by the
Director of Inland Water Transport Department by his letter dated 18.08.2016, Mr. Choudhury submits that the NOC had been withdrawn without
affording any opportunity of hearing to the petitioners and such action was taken only after the Insurance Company had written the letter dated
11.05.2016. It is submitted by him that the sum insured under the insurance policy was Rs. 18,66,779.00 and the value of the hull and machineries was
Rs. 8,00,000.00. He submits that the Valuation Report dated 26.12.2009 of the Surveyor and Assessor also demonstrates that the composite value of
the hull and machineries is Rs. 8,00,000.00 and the same was included in the sum insured in the insurance policy. It is contended by him that though in
the writ petition a claim was made for the entire amount of Rs. 18,44,279.00, which was the amount settled by the Insurance Company, the petitioners
will not be entitled to the amount of Rs. 8,00,000.00 on account of hull and machineries. However, he has submitted that the petitioners would be
entitled to the balance amount of Rs. 10,44,279.00 claimed in respect of superstructure, fixtures and furniture, etc. He submits that the department
was not even aware of the insurance made by the petitioners in respect of vessel as would be demonstrated by the letter dated 05.11.2012
(Annexure-10). Drawing attention of the court to Annexure-11, i.e., the Preliminary Survey Report dated 29.11.2012, Mr. Choudhury has submitted
that when the vessel was under water, it was completely filled up with mud and the top of the deck also had been filled up with mud and water and,
thus, all the materials of the petitioners had been damaged. He further submits that after the vessel had been recovered, some items, as reflected in
Annexure-4 series of the additional affidavit of respondent No. 3, were taken back by the petitioners, but the same having been under water for a
considerable period of time, were practically of no value. He submits that the petitioners would not object to any amount that the court may consider
necessary to be deducted from the settled amount in question although, according to him, the petitioners would be entitled to the entire balance amount
of Rs. 10,44,279.00.
Mr. Doloi has submitted that as the State was the owner of the vessel and as the vessel was under the possession of the department when it sank,
the entire settled amount is required to be paid to the Inland Water Transport Department and the petitioners cannot claim any amount out of the
same. He has further submitted that it is not known under what circumstance the original NOC dated 04.04.2015 was issued as the procedure for
grant of NOC had not been followed and, therefore, subsequently, the NOC was withdrawn by the letter dated 18.08.2016. It is submitted by him that
Annexure-4 series of the additional affidavit filed by respondent No. 3 would demonstrate that most of the valuable items had been taken back by the
petitioners. Accordingly, he submits that the writ petition is liable to be dismissed.
Ms. Mozumdar has submitted that though the claim amount was settled at Rs. 18,44,279.00, having regard to the Annexure-4 series of the
additional affidavit, it appears that some amount would have to be deducted as the petitioners had taken back some items from the retrieved vessel.
I have considered the submissions of the learned counsel for the parties and have perused the materials on record.
Mr. Choudhury is right in submitting that the department was not taking interest in pursuing the claim and, rather, the petitioners were directed to
follow up the matter with the Insurance Company as would be demonstrated by the letter dated 05.11.2012 (Annexure-10) issued by the Deputy
Director, Inland Water Transport Department. The petitioners had, accordingly, pursued the matter and it is evident from the policy in question that,
apart from the Inland Water Transport Department, the petitioners are also one of the insured parties. Though, on the basis of a receipt which only
demonstrates the name of the first insured, i.e., Inland Water Transport Department, it is averred by the Insurance Company that the Inland Water
Transport Department had paid the premium of insurance, the State respondents have accepted that it was the petitioners who had paid the premium
amount of Rs. 25,801.00.
In the additional affidavit filed by the petitioners, a Condition and Valuation Survey Report dated 26.12.2009 is brought on record. The relevant
portion of the said Report reads as under:
“5. Valuation Having regard the general condition of the hull, machineries and other fittings and the prevailing market rates for such crafts at the
time, date & place indicated above, I am o f the opinion that the valuation of S.D.B. Manashi may be considered around Rs. 18,66,779.00 Hull - Rs.
6,50,000.00
Machineries - Rs. 1,50,000.00
Superstructure, New Fittings - Rs. 10,66,779.00
& Furniture (details as above). _______________
Total - Rs. 18,66,779.00â€
This amount of Rs. 18,66,779.00 is the amount reflected in the policy of insurance, when the amount of Rs. 10,66,779.00 and Rs. 8,00,000.00 are taken
together.
The Preliminary Survey Report dated 29.11.2012 demonstrates that the sum insured is Rs. 18,66,779.00. The figure of Rs. 10,66,779.00, as
reflected in the insurance policy, must be taken to be the value of superstructure, new fittings and furniture, which is indicated in the Condition and
Valuation Survey Report dated 26.12.2009. Evidently, this amount of Rs. 10,66,779.00 was not spent by the department as, in terms of Clause (1) of
the agreement dated 25.09.2007, it was the responsibility and obligation of the petitioners to have made such modernization and upliftment of the
vessel. Therefore, the submission of Mr. Doloi that the State respondents would be entitled to receive the entire amount settled under the policy in
question does not merit acceptance. Mr. Choudhury has already conceded, as noted earlier, that the petitioners would not be entitled to the amount of
Rs. 8,00,000.00 for the hull and machineries of the vessel in question. It appears that the policy was made both in the name of the Inland Water
Transport Department as well as the petitioner No. 2 to cater to the individual interest of both the parties.
In the Preliminary Survey Report dated 29.11.2012, it was observed as follows:
Ø “SDB MANASHI, the Cruise vessel found 75% depth of the vessel is in submerged condition and superstructure with bow and stern area
found partially above the river bank of Brahmaputra near at Fancy Bazar area in Guwahati and about 15 mtrs. off the shore water lines.
Ø Vessel fully settled at the bank of Brahmaputra River around Fancy Bazar, opposite of I.T.A. Centre, Guwahati.
Ø Port side passenger cabin fully filled with river mud and all the side glass screen of the window cracked/broken variously.
Ø Forward bow section fully under the bank/shore mud area.
Ø Superstructure broken/indented variously.
Ø Guardrail all around bow and superstructure, main deck and after end/bent/indented at places.
Ø Stbd. Side complete glass screens broken.
Ø Internal spaces found filled with mud.
Ø Air conditioners found partly under mud.
Ø Engine-room, Accommodation, Kitchen, forward stores etc. fully filled with mud.
Ø Wheel House fully filled with mud.
Ø Front glass Screen broken.
Ø After section with shaft & propeller under the mud.
Ø Presently, insured deployed local labour for cleaning/removing the mud from all around the vessel approx. 400 mm depth on both sides at after
section and about 150 mm forward side mud cleared/removed. Bow portion is yet to be cleared.
Ø On completion of removal of mud all around the vessel and internal mud, the vessel could be inspected the shell plating internal/external damaged
and the Engine, with other machinery as fitted will be able to ascertain the quantum of repair works involved.07. REMARKS All per the condition
sighted, it is apparent that the hull might have been cracked/holed at some areas and the engine with other machinery fully sustained excessive
damage due to filled with sand mud will not be feasible to provide good service even after cleaning and overhauling. Considering the extent of
damages, the cost of retrieval/rectification/complete renewal of Electrical items would be much more than the value insured. Complete salvage and
subsequent rectification and replacement of machinery, electrical items would take considerable period and cost which will be much more
excessive.â€
A perusal of the above would go to show that even the port side passenger cabin, forward bow section, internal spaces, air conditioners, engine
room, accommodation, kitchen, forward stores were fully filled with mud.
Even though an inspection was carried out about six months after the vessel had capsized in the river, the insured had to deploy labourers for
clearing and removing mud from all around the vessel. This report goes to show that the superstructure, glass screens, etc. had also been damaged. It
was indicated in the said report that complete salvage and subsequent rectification and replacement of machineries and electrical items would take
considerable period and cost which will not be cost effective. The picture that has emerged is that after the vessel had sunk, river water with mud
covered the entire vessel and the fixtures and furniture. First document of Annexure-4 series of the additional affidavit indicates that 12 Nos. of
chairs, 3 Nos. of Centre table, 1 Generator, 1 Refrigerator, 1 Music system, some utensils of the kitchen and 10 Nos. of Sofas were taken back by the
petitioners. Though there is acknowledgement of receipt of 12 Nos. of chairs and 3 Centre tables as well as 10 Nos. of Sofas, with regard to the
Generator, Refrigerator, Music system and kitchen items there is no document acknowledging receipt of the same. However, there is a letter by
which the petitioners had requested the delivery of the said items.
After more than four years of the date of incident the Insurance Company had settled the claim at Rs. 18,44,779.00. It is not known whether the
articles, which the petitioners had taken back, were considered to be useless and thus of no value while arriving at the figure of Rs. 18,44,279.00.
Even otherwise, going by the Preliminary Survey Report dated 29.11.2012, it will not be difficult to visualize the condition of such articles which were
filled up/covered with mud and water for months together. Therefore, the value of the materials, which the petitioners had taken from the sunken
vessel, in my rough and ready estimation, would not have been more than Rs. 70,000.00.
In view of the above discussion, the Insurance Company is directed to make payment of the amount of Rs. 8,00,000.00 towards settlement of the
claim in favour of the Director of Inland Water Department, on account of hull and machineries. Though the claim was originally settled at Rs.
18,44,279.00, having regard to the fact that the petitioners had taken some materials, value of which is taken to be Rs. 70,000.00, the Insurance
Company is now directed to pay a sum of Rs. 9,74,279.00 in favour of petitioner No. 2. As the claim is long-pending, such amounts shall be disbursed
by the Insurance Company within a period forty-five days from the date of receipt of a certified copy of this order.
Writ petition stands disposed of in terms of the above observations and directions. No cost.