State Consumer Disputes Redressal Commission
Shri. Rupesh S. Shivlingkar, vs The Oriental Insurance Company Ltd., on 31 July, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA CC. No. 08/2007 Shri. Rupesh S. Shivlingkar, Mata Parvati Marine Carrier Rohan Arcade, 1st Floor, Office No. 102, Opposite MPT Hall, Vasco-da-Gama, Goa 403802. ..Complainant V/s. The Oriental Insurance Company Ltd., Pereira Chamber, 1st Floor, Fr. Jose Vaz Road, P.O. Box No. 105, Vasco da Gama , Goa-403802. Opposite Party Complainant is represented by Adv. G. Telles. O.P. is represented by Adv. Shri. E. Afonso. Coram: Shri Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 31/07/2012 ORDER
[Per Justice Shri N.A. Britto, President] By complaint dated 1/8/07, the complainant seeks to recover from the O.P., Rs. 38,55,264.27 with interest at the rate of 12% and compensation of Rs. 2.5 lacs.
2. The facts are hardly in dispute.
3. The complainant is the owner of a Barge known as M.V. Zuari Endurance, having registration No. MRH-486. The complainant got the said Barge valued from N.S. Biswas, surveyor, of Scan Sea Marine vide report dated 26/5/03 for Rs. 45 lacs i.e Rs. 40 lacs for hull and Rs. 5 lacs for machinery and equipment. One does not know with whom the complainant insured the Barge in that year, but it was insured with the O.P. for the period from 16/06/04 to 30/08/04 and again for the period from 16/12/05 to 15/12/06 for a sum of Rs. 45 lacs vide Marine hull policy dated 16/12/05. The complainant paid total premium of Rs. 70,868/- in four installments, the last being on 16/09/06.
4. The policy had a clause known as General Average and Salvage, which reads as follows:
11. GENERAL AVERAGE AND SALVAGE 11.1 This insurance covers the vessels proportion of salvage, salvage charges and/or general average, reduced in respect of any under-insurance, but in case of general average sacrifice of the vessel the assured may recover in respect of the whole loss without first enforcing their right of contribution from other parties.
11.2 Adjustment to be according to the law and practice obtaining at the place where the adventure ends, as if the contract of affreightment so provides the adjustment shall be according to the York-Antwerp Rules.
11.3 No claim under this Clause 11 shall in any case be allowed where the loss was not incurred to avoid or in connection with the avoidance of a peril insured against.
5. The Barge was loaded at Sanvordem with 664 tons of iron ore fines on 28/05/06. The barge reached berth No. 9 at M.P.T. on 29/5/06 at about 22.30 hours. There was cyclonic wind and heavy rain and as a result of which the Barge sank with the cargo. The O.P. and the MPT were informed. Maritime Services Company were appointed as surveyors to survey, investigate an report on the cause, nature and extent, of loss/damage and they in their report dated 24/06/06 estimated the value of the barge, just before the casualty, in the region of Rs. 70 lacs and salvage remuneration was worked out in the region or Rs. 26.5 lacs (45/70x41.30 = Rs. 26.55 lacs) subject to deduction as per clause 12.
6. The complainant after discussions with MPT and O.P. entered into a salvage agreement on 02/06/06 with Kanishka Salvage and Underwater Services Pvt. Ltd., for a sum of Rs. 40 lacs plus service tax at the rate of 12.24%. The barge and cargo were salvaged and the barge was taken for repairs to Vipul Shipping and Engineering Works at Thane, Cortalim. The cargo which was otherwise not insured was entrusted to the consignee, Agencia Commercial Maritima on 28/05/06 at Sanvordem, in sound condition.
Complainant paid Rs. 44,89,600/- to the Salvors.
7. The complainant spent about Rs. 48,43,982.58 (Rs. 48,43,890.58?) for the repairs of the Barge but Maritime Services Company Ltd., surveyors scrutinized the bills and opined that fair and reasonable cost of repairs would be Rs. 20,62,337.67/-.
8. The complainant vide letter dated 7/7/06 written to the O.P. informed the O.P. that in view of the contribution towards salvage charges on behalf of cargo owner, they would like to declare general average and requested them to assist the complainant in appointing an average adjuster and further informed, that if needed they also could appoint an average adjuster directly from their side and as per the complainants request, as contained in the letter dated 7/7/06 Mr. Ashwin Desai was appointed as average adjuster, on completion of salvage operations, who later submitted his report on 6/01/07 but prior to that the O.P. disbursed to the complainant by letter dated 8/9/06 a sum of Rs. 23 lacs calculated by applying the principle of under insurance which was accepted by the complainant. Another sum of Rs. 10 lacs was disbursed on 01/12/06.
9. The O.P. found that Mr. Ashwin Desai, Average Adjuster, had committed an error in not making apportionment of general average between the ship and the cargo interest and that the average adjuster had failed to apply under insurance which fact was brought to the notice of the average adjuster who issued a corrigendum dated 4/2/07 which was again found faulty as the value taken to arrive at contributory value of the ship was the insured value of the barge and not the market value in sound condition which fact was again brought to the notice of the average adjuster who issued another corrigendum dated 12/08/07 showing correct apportionment of general average and disbursement statement.
10. The case of the complainant is that as per report dated 06/01/07 of the average adjuster a sum of Rs. 72,40,264.27/- was due to the complainant while a sum of Rs. 33 lacs was paid by the O.P. and therefore the total amount payable would be Rs. 39,40,264.27/-. The complainant contended that he was agreeable to the report dated 6/1/07 except for deduction of Rs. 1,15,442/- shown towards underwriter and Rs. 5.62,884/- shown as fees of average adjuster. According to the complainant the amount paid to the underwriter (surveyor) and average adjuster cannot be deducted as both of them were appointed by the O.P. The complainant conceded that the sum of Rs. 85,000/- could be deducted in terms of the policy and therefore the total sum payable to the complainant was Rs. 38,55,264.27/-. According to the complainant, he was shocked to know that Mr. Ashwin Desai had changed his report dated 4/2/07 showing the claim payable to the O.P. as Rs. 11,34,857.32/- which was changed after O.Ps letter dated 8/1/07. According to the complainant, the said report dated 4/2/07 is absurd, unwarranted and improper as under insurance clause can never be applied as vessel was insured for Rs. 45 lacs based on the valuation done by the surveyor recommended by the O.P. According to the complainant, the O.P. is estopped from applying underinsurance clause towards the claim of the complainant.
11. On the other hand, it is the case of the O.P., that the complaint was frivolous and vexatious and an abuse of the process of this Commission. The O.P. stated that the complainant informed about the grounding of the Barge and the O.P. immediately appointed a surveyor for assessment of loss and survey report. The salvage charges for the removal was around Rs. 44,89,600/- and in addition to that repair charges were assessed around Rs. 20,44,551/-. According to the O.P., this could have been construed as total loss as total outgo of the O.P. exceeded the insured sum of Rs. 45 lacs. In case of constructive loss the liability the O.P. was only to the extent of the insured value of Rs. 45 lacs and in such circumstances, the wreck would have been the property of the O.P. The O.P. stated that at this stage the complainant finding that the vessel was going to be a total loss because the vessel was heavily under insured preferred to accept under insurance of the vessel and declare general average by his letter dated 7/7/06 and at the request of the complainant, Mr. Ashwin Desai was appointed as average adjuster.
12. According to the O.P., in general average and salvage clause 11.1 it is clearly stipulated that the insurance covers the vessel proportion of salvage, salvage charges and/or general average reduced in respect of under insurance. According to O.P., the market value of the barge at the time of loss was Rs. 70 lacs which fact was accepted by the complainant at the time of declaring general average and therefore the assessment of loss payable under the policy was Rs. 22,90,040.96 after applying under insurance.
In addition, the complainant will have to pay repair charges of Rs. 19,79,838.27/- and from the cargo contribution the complainant would get Rs. 9,27,314.04/-. Thus the total amount receivable by the complainant would be Rs. 51,97,192.30/-.
13. According to the O.P., the error in the report of the average adjuster was visible on the face of record and the same was corrected by him and in the statement of adjustment all the expenses incurred in relation to the claim are included, irrespective of the fact who has actually incurred expenditure and thus the owner gets reimbursement to what they have actually paid and is not entitled to receive any amount in respect of expenditure not made by them but made by the insurer. According to them Rs. 1,15,442/- were paid by the O.P. to the attending surveyor and the amount of Rs. 5,62,884/- are yet to be paid to the average adjuster by the O.P. and therefore the complainant is not entitled to both the said sums.
According to the O.P. the under insurance was very much applicable to settlement of the claim of general average and the same is clearly stated in the policy. According to them under insurance has been applied in general average claim as per policy condition. The O.P. has also referred to section 66 of the Marine Insurance Act, 1963 which defines general average loss.
14. According to the O.P., there has been no deficiency in service on their part. According to them, their total liability is Rs. 42,69,879.23/- out of which an amount of Rs. 33 lacs is paid to the complainant on account, in advance. The balance amount of Rs.
9,69,879.23/- will be paid to the complainant upon furnishing the original repair bills which were required to be given to them by the complainant by their letter dated 25/09/07.
15. The complainant in support of his complaint filed his affidavit on or about 6/2/08. The O.P. filed the affidavit of their Sr. Divisional Manager Shri. Olavo DSouza on or about 22/10/08. By application dated 26/10/09, the O.P. sought leave to file another report/affidavit of another average adjuster, namely L.B. Mody of J.B. Boda and Company stating that the affidavit of average adjuster Shri. Ashwin Desai could not be filed by them as he was out of the country for treatment for quiet a long time.
The said application was allowed by order of this Commission dated 25/3/10, inter alia, observing that the said report of J.B. Boda and Company Pvt. Ltd., was merely an opinion on the report of Ashwin Desai and does not comment on the correctness and manner in which important issues such a validity of general average and amount of total general average, scrutiny of accounts arithmetic accuracy of the report/addendum were arrived at. It was further observed that the said report was not of a new surveyor appointed at the discretion of the O.P. It was only an opinion of a report of a earlier average adjuster.
16. We have heard Shri. G. Telles, Lr.
Advocate of the complainant and Shri. E. Afonso, Lr. Advocate of the O.P. We have also perused the written submissions filed by them.
17. The complainant seems to be under an impression that the complainant is entitled to the entire amount of Rs. 44,89,600/- paid by the complainant to the salvors. Did the complainant ever think that the O.P. was to salvage at their cost the uninsured cargo/ore fines when the same was not covered by the insurance policy? Why did the complainant by his letter dated 7/7/06 request the O.P. to appoint an average adjuster, incase the complainant was entitled to receive the entire amount of Rs. 44,89,600/- spent by the complainant for the salvage of the Barge as well as the cargo?
18. At the outset we must observed that Ashwin Desai was appointed at the behest of the complainant and not because the O.P. was unhappy with the survey report of Maritime Services Company, as falsely stated in para 20 of the complaint. Complainants letter dated 07/07/06 reproduced in the written version falsifies the contents of para 20 of the complaint. Likewise, this is not a case where Mr. Ashwin Desai changed the report.
He only corrected certain mistakes made by him. Complainants case is based on the report of Mr. Ashwin Desai, before its correction.
There is no other material to support his case.
19. Admittedly, after the Barge got grounded alongwith the cargo, the O.P. asked Maritime Services Company, surveyors, to survey, investigate and report on the cause, nature an extent of damage suffered to the complainants Barge and after that was done an amount of Rs. 23 lacs was paid to the complainant as on account payment, as per calculations shown in the said letter dated 8/9/06.
The market value or the sound value of the Barge was taken as 70 lacs and not the insured value of Rs. 45 lacs in making the calculations.
Thereafter, Shri. Desai the average adjuster gave his report on or about 6/1/07 and when the mistakes made by him, in not making the apportionment of general interest between the ship and the cargo interest and his failure to apply under insurance were brought to his notice, the same were corrected by him, and if that be so, how can the complainant say that he was agreeable to the amount shown payable to the complainant of Rs. 39,40,264.27 (Rs. 72,40,264.27 33 lacs) when the said report itself was corrected by the said Shri. Ashwin Desai and no longer exists as it was submitted earlier? The complainant has to stand or fall with the said report of the said Shri. Ashwin Desai, as corrected. The complainant cannot take advantage of the mistakes earlier made by the said Shri. Ashwin Desai which have been subsequently corrected by him. What remains at the end of the day is the report dated 6/1/07 as corrected by him.
In our view, such a report can be relied upon in proceedings under the C.P. Act, 1986 without the same being supported by an affidavit as reasons for not filing such an affidavit, have been explained by the O.P. in their application filed for the purpose of filing the report of J.B. Boda and Company Pvt. Ltd.
20. There appears to be some misconception in the mind of the complainant as to what an average adjuster was required to do. According to Shri. Afonso, Lr. Advocate, the function of an average adjuster is like that on an arbitrator. We will revert to this aspect a little later.
21.1 Section 18 of the M.I. Act deals with measure of insurable value and, inter alia, provides that subject to any express provision or valuation of the policy, the insurable value of a ship would be the value at the commencement of the risk, of the ship, including her outfit provisions, stores etc. 21.2. Section 29 deals with valued policy and section 30 deals with unvalued policy.
They read as follows:
29. Valued policy-(1) A policy may be either valued or unvalued (2) A valued policy is a policy which specifies the agreed value of the subject matter insured. (3) Subject to the provisions of this Act, and in the absence of fraud, the value fixed by the policy is, as between the insurer and assured, conclusive of the insurable value of the subject intended to be insured, whether the loss be total or partial. (4) Unless the policy otherwise provides, the value fixed by the policy is not conclusive for the purpose of determining whether there has been a constructive total loss.
30. Unvalued policy.-
An unvalued policy is a policy which does not specify the value of the subject-matter insured, but subject to the limit of the sum insured, leaves the insurable value to be subsequently ascertained, in the manner hereinbefore explained.
21.3. Section 60 defines constructive total loss.
21.4. Section 66 of Marine Insurance Act, 1963 defines general average loss. Sub-section (1) thereof states that a general average loss is a loss caused by or directly consequential on a general average act. It includes a general average expenditure as well as general average sacrifice. Sub-section 2 states that there is a general average act where any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of peril for the purpose of preserving the property imperiled in the common adventure. Sub-section 3 states that where there is a general average loss, the party on whom it falls is entitled, subject to the conditions imposed by maritime law, to a rateable contribution from the other parties interested, and such contribution is called a general average contribution. Sub-section 4 states that subject to any express provision in the policy, where the assured has incurred a general average of expenditure, he may recover from the insurer in respect of the proportion of the loss which falls upon him; and in the case of a general average sacrifice, he may recover from the insurer in respect of the whole loss without having enforced his right of contribution from the other parties liable to contribute. Sub-section 5 states that subject to any express provision in the policy, where the assured has paid, or is liable to pay, a general average contribution in respect of the interest insured, he may recover therefore from the insurer. Sub-section 6 states that in the absence of express stipulation, the insurer is not liable for any general average loss or contribution where the loss was not incurred for the purpose of avoiding, or in connection with the avoidance of a peril insured against. Sub-section 7 states that where ship, freight, and cargo, or any two of those interests, are owned by the same assured, the liability of the insurer in respect of general average losses or contributions is to be determined as if those interests were owned by different persons.
21.5 Section 73 of the Marine Insurance Act, 1963 deals with general average contributions and salvage charges. Sub-section (1) thereof states that subject to any express provision in the policy, where the assured has paid, or is liable for, any general average contribution, the measure of indemnity is the full amount of such contribution if the subject-matter liable to contribution is insured for its full contributory value; but, if such subject-matter be not insured for its full contributory value, or if only part of it be insured, the indemnity payable by the insurer must be reduced in proportion to the under-insurance, and where there has been a particular average loss which constitutes a deduction from the contributory value, and for which the insurer is liable, that amount must be deducted from the insured value in order to ascertain what the insurer is liable to contribute. Sub-section 2 states that where the insurer is liable for salvage charges the extent of his liabilities must be determined on the like principle.
22. On behalf of the complainant, reliance is placed on the decision of the National Commission dated 24/03/05 in O.P. No. 21/01 in the case of Diwaliben V. Sikotaria vs. New India Insurance Company Ltd. This was a case of a wooden Barge, market value of which was assessed at Rs. 95 lacs in the year 1995. The Barge was insured.
The Barge sank on or about 21/01/1998 near the coast of Irac with 9 crew members, who all died. The Divisional Manager of the O.P. had written a letter to the complainant on 5/2/1998 reiterating that the value of vessel was Rs. 95 lacs but subsequently by another letter had made a proposal to settle the claim at Rs. 70 lacs and ultimately the O.P. was directed by the N.C. to pay Rs. 95 lacs in addition to 4.5 lacs for the death of crew members. This was a case of total loss and no general average was declared and therefore the complainant can take no assistance from the case of D.V. Sikotaria.
23. The complainant also placed reliance on the case of New India Assurance Company Ltd., vs. Protection Manufacturers Pvt. Ltd., (2010) 7 SCC 386 ) wherein it was held with reference to section 64 UM (3) of Insurance Act, 1938 that the Insurance Company should have applied to the Regulatory Authority under the Act for a second opinion instead of appointing M/s. J. Basheer and Associates for the said purpose, unilaterally. This was a case where after the fire broke out in the factory premises, covered by the fire insurance policy, Insurance Company had appointed Shri. A.S. Asthana, Surveyor. Then Mr. Bhaskar Joshi was appointed as joint surveyor to conduct a final survey along with Mr. Asthana and Mr. Bhaskar Joshi submitted a report estimating loss at Rs. 2,37,09,372.12 and thereafter the said M/s. J. Basheer and Associates were appointed again to conduct an investigation into the cause of fire and to assess the loss.
It is in these set of facts that the said observation came to be made by the Apex Court.
23.1 The complainant has not made clear whether this decision is relied upon in relation to the first report dated 24/06/06 of Maritime Services Company or the report of Leena B. Mody of J.B. Boda and Company. Either way, the said decision would not be applicable to the facts of this case as Maritime Services Company, surveyors, were not appointed as average adjusters and were only appointed as surveyors, to survey, investigate and report on extent of damage, and the report of J.B. Boda and Company was submitted only because affidavit could not be filed of Mr. Ashwin Desai, Average Adjuster, who being sick was out of the country for treatment. The function of an average adjuster is quite different form the function of a surveyor or loss assessor appointed u/s. 64 UM of I. Act, 1968.
J. Kenneth Goodacre, himself an average adjuster of marine claims, in his commentary Marine Insurance Claims (Witherby & Co. Ltd., London) says at page 3: The position of the Average Adjuster is rather different from that of a loss assessor in non-marine insurance, as he is obliged to exercise impartiality, although appointed by one of the parties to the contract.
24. A legal definition of general average is stated to have been first given in Birkley vs. Presgrave by Justice Lawrence. So says J. Kenneth Goodacre at page 521 (supra).
All loss which arises in consequence of extraordinary sacrifice made, or expenses incurred, for the preservation of the ship and cargo comes within General Average and must be borne proportionately by all who are interested.
25. The job of average adjuster was done, at one time, by the shipmaster himself (see pg. 520, supra). He would gather the travellers around him, with a view for collecting his freight . He would also collect from each a rateable proportion of the value of any property sacrificed for the common benefit in order to compensate the owner. It can be well imagined that with the increase in the capacity of ships and the consequent growth and varieties of cargoes carried this task would become too onerous for the master, and the need for average adjusters arose. The first average adjuster has been described as a person who, when the vessel approached the end of her voyage, would be ready with tablets and stilus or scroll and inkhorn to adjust the averageperhaps himself an old seaman or traveler, he would explain the ancient sea law to the in-experienced, persuade, cajole and threaten till all had paid up, and the unfortunate loser had been satisfiedthen he would glow with satisfaction as he made up his account, balancing the matter up neatly, collecting contributions from all, including the unfortunate man who had been despoiled in order that he should be no better off than his neighbours in the long run, and finally retiring, after satisfying all, hoarse and weary but retaining in coins, a goodly recompense for his trouble and skill, and well earned it usually was!
26. Today, an average adjuster happens to be a member a highly skilled profession. He prepares an average statement, as it is called in the United Kingdom, or a report, on the basis of his specialized knowledge according to the relative law and practice. It is prudent, says J.
Kenneth Goodacre (at pg. 3, supra) that every complicated claim should be referred to an average adjuster for computation, as he is a member of highly skilled profession. The average adjusters adhere to a code of rules, known as the Rules of Practice with the object of securing uniformity, and it is interesting to note that the first rule concerns doubtful claims. Instances do arise where the assured requires an adjustment to be drawn up so that the question of liability can be discussed further with the insurers (see pg. 4, supra) . As a average adjuster is employed in a skilled capacity, it is obvious that an extensive knowledge of legal principles is required, as well as the ability to put into effect the customs and practices built up over the years. In this way he is able to produce an impartial statement, which should bear some measure of uniformity with a similar case issued by a different adjuster (see pg. 340, supra). He has a responsibility to justify certain decisions to the satisfaction of these parties, and it is truly said that in the course of his duties he will be required to gather evidence from the four corners of the earth (see pg. 340, supra)
27. Shri. Telles would submit that the policy in question is a valued policy and therefore in terms of sub-section (3) of Section 29 of the M.I. Act the insured value had to be taken as Rs. 45 lacs and not Rs.
70 lacs. On the other hand, Shri. Afonso would submit that the policy is an unvalued policy as defined u/s 30 of the M.I. Act. According to the O.P., the increase in the market value i.e sound value is due to the increase of cost of steel as well as the addition of steel by way of repairs done every year in order to meet the requirements of the Captain of Ports.
28. Lr. Advocate submits that the O.P. could have paid Rs. 45 lacs to the complainant and got off and earned more, as the wreck of the vessel would have been the property of O.P. He submits by assessing general average, the Complainant gets Rs. 51 lacs and also the vessel.
29. The insured value, is no doubt conclusive of the insurable value of the subject, in terms of sub-section (3) of Section 29 of the M.I. Act but this is subject to two exceptions. One, fraud. Two, subject to other provisions of the M.I. Act. At the same time sub-section (4) of Section 29 of M.I. Act states that unless the policy otherwise provides, the value fixed by the policy is not conclusive for the purpose of determining whether there has been constructive total loss. This latter expression is defined by Section 60 of the M.I. Act. The case at hand is a case of constructive total loss.
30. Admittedly, for the purpose of assessing the damage caused, M.S.C in their report dated 24/06/06 took the market value of the Barge in the region of 70 lacs and not 45 lacs. The complainant did not react. The O.P. in their letter dated 8/9/06 while making on account payment also took the market value in sound condition as 70 lacs and not 45 lacs. The O.P. again did not react and accepted the payment. Only in 2nd notice dated 11/04/07 that the complainant took the stand that under-insurance clause could not be applied because the Barge was insured for 45 lacs. It is Mr. Mohan Naik of MSC who referred to the market value of the Barge - not insured value - in the region of Rs. 70 lacs. The complainant has nothing to rebut his opinion and therefore we have no hesitation to accept that the market value of the Barge in sound condition at the time of or just before the casualty was Rs. 70 lacs, in the absence of any other opinion to rebut the same. Says J.K. Goodacre, at page 296, supra: Today, the wording stipulates that if sound value of the vessel at the time of the occurrence giving rise to the claim exceeds the insured value, liability that the expenditure will be reduced proportionately. Leena B. Mody says: as per Y.A.R. and established practice the contributory value should be based on the vessels sound value either on completion of the GA act, or upon termination/completion of voyage as the case may be. From this sound value all damages subsequent to the incident are deducted and amount made good towards GA sacrifice, if any is added to arrive at the contributory value She further opines: It is a practice for adjusters to approach renowned valuers to obtain value of vessel in sound condition as on the date of completion of voyage/or completion of GA act as the case may and a copy of the valuation certificate is required to be printed in the adjustment report as a document evidencing vessels such value. This is set forth in Rule B-24 of Rules of Practice of Association of Average Adjusters, U.K.
31. What follows from the above is that neither the loss assessor Mr. Mohan Naik of MSC nor the average adjuster Mr. Ashwin Desai could be faulted in taking the market value of the Barge in sound condition at 70 lacs, and ignoring the insured value, in calculating the general average. This is in conformity with clause 11.1 of the policy as well as Rule B-33 of Rules of Practice of the Association of Average Adjusters and Section 73 of the M.I. Act, 1963.
32. In view of the above discussion, we find there is no merit in the case of the complainant which appears to have been based on certain misconceptions. The O.P. have paid a sum of Rs. 1,15,442/- to the attending surveyor and are required to pay Rs. 5,62,884/- as a fee of Shri. Ashwin Desai, Average Adjuster. True, the Average adjuster was appointed at the instance of the complainant but his appointment was for the benefit of both the parties and therefore it is fair, just, and reasonable that the fees payable to him are shared by both the parties.
33. The O.P. was required, as per their own computation of general average, to pay a sum of Rs. 9,69,879.23 which according to O.P., was not paid because the complainant did not produce the bills in original. The O.P. was required to pay, as per report of Mr. Ashwin Desai, Rs. 11,34,857.32 minus Rs. 5,62,884/- of fees of Average adjuster. By taking the same parameters, as taken by Ashwin Desai, the amount has now been recalculated by Leena B. Mody at Rs. 10,43,832.94 as payable to the complainant. There is no mention of the fees in her report. Since there are now two reports, one more favourable to the complainant a consumer, we are inclined to accept the report of Ashwin Desai which is more favourable to the complainant. Once the bills were scrutinized by the Average Adjuster and decision was arrived at, payment could always have been made as per the decision without waiting for the bills in original. On filing the complaint, the O.P. could have deposited the sum payable the admitted sum atleast - before the Commission. The O.P. has made use of that sum and deprived the complainant from using the same. While we dismiss the complaint with no order as to costs, we direct that the sum of Rs. 8,53,416.00 (rounded off from 8,53,415.32) (Rs.11,34,857.32-2,81,442) be paid to the complainant, with pending and future interest at the rate of 9% from the date of complaint untill payment.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President