National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs M/S. Aqua World on 10 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 32 OF 2014 (Against the Order dated 13/11/2013 in Complaint No. 15/2013 of the State Commission Goa) 1. NEW INDIA ASSURANCE CO. LTD. VELHO BUILDING, 3RD FLOOR, RUA CONDE DE TORRES, PANAJI GOA-403001 ...........Appellant(s) Versus 1. M/S. AQUA WORLD A REGSITERED PARTNERSHIP FIRM, HAVING ITS OFFICE AT, JOFFRE RESIDENCY, 2ND FLOOR, PANAJI-GOA-403001 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Ms. Sakshi Gupta, Advocate For the Respondent : : Ms. Triveni Poteker, advocate
Dated : 10 Mar 2016 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 13.11.2013 passed by the State Consumer Disputes Redressal Commission, Panaji-Goa (in short, 'the State Commission') in CC No. 15/2013 - M/s. Aqua World Vs. New India Assurance Co. Ltd. by which, complaint was partly allowed.
2. Brief facts of the case are that complainant/respondent is a firm of two partners. The complainant owns a cruise passenger launch known as M.L. Carnaval having registration No. PNJ 342. The complainant insured the said launch for Rs. 30 lacs under a marine hull policy effective from 00.00 hrs of 28/09/09 to midnight of 27/09/10 by paying a premium of Rs.26,772/-. In terms of this policy, the OP/appellant was to indemnify the complainant only in case there was total loss, actual or constructive. The relevant clause of the said policy read as follows:
6.1. This insurance covers total loss (actual or constructive) of the subject matter insured caused by 6.1.1. Perils of the seas, rivers lakes or other navigable waters.
The complainant desired to take the said launch from Panaji to Mumbai for repairs and therefore obtained a separate insurance policy for a single voyage from Panaji to Mumbai by paying a premium of Rs.3,640/- effective 16.30 hrs. of 13/04/10. On 17/04/10 on the way to Mumbai the launch encountered bad weather and cyclonic winds and sustained damage. Complete upper deck collapsed on the port side by breaking of starboard sanctions, etc. The launch dropped anchor at Colaba Light House and thereafter was towed to Elephanta jetty by a tug name Vijay. This policy did not specify that the duty to indemnify was only in case of total loss. On the contrary, condition 4.1 reads as follows:-
4.1 This insurance covers loss of or damage to the subject matter insured caused by 4.1.1. Perils of the seas rivers lakes or other navigable waters.
The complainant reported casualty to the OP by their letter dated 17/04/10. The surveyors conducted a survey on 21/04/10 and submitted a preliminary report on 26/04/10 and asked certain documents which were provided to him, the surveyor submitted an intermediate report dated 12/06/10. The complainant by letter dated 26.04/12 submitted to the OP repair bills amounting to Rs.28,81,909/- but by letter dated 4/7/12 the OP repudiated the claim since the damages sustained by the complainant's vessel were partial in nature and the same were outside the purview of the first policy. Alleging deficiency on the part of OP, complainant filed complaint before learned State Commission. OP resisted complaint and submitted that as loss sustained by complainant was only partial loss which was not covered under the policy, claim was rightly repudiated. It was further submitted that bills submitted by complainant included bills of wages paid to the crew members which were not payable under the policy and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint and directed OP to pay Rs.23,49,909/- with 11% p.a. interest as expenses incurred in repair along with Rs.25,000/- as compensation and Rs.10,000/- additional against which, this appeal has been filed along with application for condonation of delay.
3. Delay of 28 days in filing appeal has already been condoned by the order dated 11.11.2014.
4. Heard learned Counsel for the parties and perused record.
5. Learned Counsel for the appellant submitted that on account of partial loss to the vessel, claim was not payable; even then, learned State Commission committed error in allowing complaint; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.
6. It is not disputed that OP issued policy in favour of complainant for a period of one year from 28.9.2009 to 27.9.2010 for launches/passenger vessels employed in Inland waters upto radius of one NM into the sea which carries condition of reimbursement only on total loss. It is also not disputed that in the same policy by another endorsement effective from 13.4.2010 to 27.9.2010 after charging extra of Rs.3300/-. Insurance cover was given for single voyage from Panaji to Mumbai for repairs/renovations and terms & conditions of policy did not restrict insurance cover only on total loss which was in the original policy. Thus, it becomes clear that while making endorsement and charging premium for single voyage from Panaji to Mumbai, OP covered loss to the vessel whether it is partial or total and learned State Commission rightly rejected contention of learned Counsel for appellant and rightly observed as under:
"7. We are unable to accept the first defense taken by the Op. We are inclined to accept the submission made on behalf of the complainant that the complainant had obtained two policies with their own terms and conditions, which have to be read independently. The second policy by virtue of Clause 4.1 did not restrict unlike the first policy that the complainant would be indemnified only in case of total loss (actual or constructive). On the other hand, the second policy by virtue of Clause 4.1 stipulated that loss or damage to the subject matter would be indemnified. It does not say that total loss or damage would be indemnified. Therefore, Clause 4.1 admits payment of partial loss or damage.
7.1 The OP was not entitled to read Clause 4.1of the second policy into the first policy. Any attempt in that direction would make the policy ambiguous. Assuming the second policy was issued as an endorsement to the first policy as contented then we will be left in one policy, with two sets of conditions, one which favours the OP and the other which favours the insured. A contract of insurance is like any other contract except that it is uberrimae fidei. It is well settled position in law that if a term or a clause is capable of two possible interpretations, one which is beneficial to the insured should be accepted consistent with the purpose for which the policy is taken namely to cover the risk on the happening of certain event (see United India Insurance Company Ltd. Vs. M/s. Pushpalaya Printers - 2004 (2) CPR 62). If both the clauses are read as part of one policy one which favours the insurer and the other to the insured that would make the policy ambiguous. In case of ambiguity or doubt the policy needs to be construed contra proferentem i.e. against the insurer. This is on the assumption that Clauses 6.1. and 4.1 form part of the same policy. However, we have concluded that both the policies were issued independently on their own terms and conditions and in view of Clause 4.1 of the second policy, the complainant was entitled to be indemnified for partial loss".
Learned Counsel for the respondent also placed reliance on judgment of Hon'ble Apex Court in (2007) 7 SCC 101 - United India Insurance Co. Ltd. Vs. Great Eastern Shipping Co. Ltd. in which it was held as under:
"11. In support of his contention, learned counsel relied on a decision of this Court in Shashi Gupta (Smt.) vs. Life Insurance Corporation of India & Anr. [ 1995 Supp.(1) SCC 754] in which it has been held as follows :
"As both the aforesaid interpretations are reasonably possible, we would accept the one which favours the policy-holder, as the same advances the purpose for which a policy is taken and would be in consonance with the object to be achieved for getting lives assured."
22. After considering the ratio with regard to the construction of the terms of the policy it transpires that while interpreting the policy the courts should keep in view the intention of the parties as well as the words used in the policy. If the intention of the parties subserves the expression used therein then the expression used in that context should be given its full and extended meaning".
In the light of aforesaid principle of law laid down by Hon'ble Apex Court, I do not find any illegality in the impugned order and appeal is liable to be dismissed. Learned State Commission has already disallowed claim pertaining to expenditure incurred towards wages paid to the crew.
6. Consequently, appeal filed by the appellant is dismissed. Parties to bear their costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER