National Consumer Disputes Redressal
National Insurance Co. Ltd. vs P. Jesusdas on 30 September, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 855 OF 2010 (Against the Order dated 23/10/2009 in Appeal No. 89/2006 of the State Commission Kerala) 1. NATIONAL INSURANCE CO. LTD. Having its Registered Office at 3, Middleton Street Calcuttta - 700071 West Bengal ...........Petitioner(s) Versus 1. P. JESUSDAS R/o. 6/641sr Samugam, Simon Colony COLACHEL Kanyakumari Tamilnadu ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER For the Petitioner : Mr. Yogesh Malhotra , Advocate For the Respondent : Mr. Shyam Padman, Advocate Dated : 30 Sep 2020 ORDER This revision petition has been filed by the petitioner National Insurance Co. Ltd. against the order dated 23.10.2009 of the State Consumer Disputes Redressal Commission, Kerala, (in short 'the State Commission') passed in Appeal No.89/2006.
2. Brief facts of the case are that Respondent obtained Marine Hull policy of insurance insuring vessel 'Holy Mother' with coverage of Rs. 7,00,000/- for the period 29.05.2002 to 28.05.2003. The said vessel allegedly sank on 07.03.2003 while doing fishing operation at Ernakulum. Surveyor was appointed by the Insurance Company who submitted report on 20.01.2004. The claim was finally repudiated by the Insurance Company on 19.07.2004. The respondent filed a complaint before the Consumer Disputes Redressal Forum, Ernakulum, claiming a sum of Rs.7,00,000/- along with 18% interest per annum from the date of accident and Rs.1,00,000/- towards compensation for mental agony. The complaint was dismissed on 07.11.2005. Aggrieved by the order of the District Forum, the respondent filed an appeal being No.89/2006 before the State Commission. State Commission allowed the appeal and the complaint filed by the respondent and directed the opposite party to pay the sum insured of Rs.7,00,000/- alongwith 9% per annum interest from the date of order of the State Commission till realisation as well as Rs.25,000/- as cost of proceedings. Aggrieved by the judgement and order dated 23.10.2009 passed by the State Commission, the petitioner has preferred the present revision petition before this Commission.
3. Learned counsel for the petitioner stated that the State Commission has not considered the main legal requirement which should have been fulfilled by the complainant to get the insurance claim in respect of sank vessel. The main requirement as per the provisions of the Kerala Marine Fishing Regulation Act, 1980 is that the vessel should have been registered in Kerala or should have been registered under the Marine Products Export Development Authority Act, 1972 (Central Act 13 of 1972). The vessel was registered in the State of Tamil Nadu at Chennai and therefore, without any registration in Kerala, the vessel was not authorised for fishing in the Kerala waters. It was further argued that apart from registration of the vessel, licence was also required for fishing in the Kerala water. No licence has been given by the State of Kerala to the vessel in question. Thus, the main warranty of observing the local law has been violated. To support the requirement of registration and licence to be given by the State of Kerala, learned counsel referred to various Sections such as 2(g), which deals with the registration of the vessel and Section 6 which deals with licencing of fishing vessel under the Kerala Marine Fishing Regulation Act, 1980. The learned counsel also referred to Section 7 of this Act, which deals with prohibition of fishing using fishing vessels which are not licensed. Learned counsel further argued that as per Sub Section 6 of Section 9, no vessel, other than a registered fishing vessel, shall be entitled to a licence under Section 6.
4. The learned counsel for the petitioner further stated that there was a pre-inspection of the vessel on 07.03.2003 after the proposal was received. The engine number mentioned in the pre-inspection report is not the actual engine of the vessel because the manufacturing company Ashok Layland vide letter dated 18.8.2003 has clearly informed the Insurance Company that this engine is not a marine engine and cannot be used in the vessel. The learned counsel observed that the engine of the vessel was unauthorisedly changed. It was further argued by the learned counsel that Sections 35 to 43 of the Marine Insurance Act, 1963 deal with various warranties whose compliance is to be seen while deciding the insurance claim. All warranties mentioned in the policy are also required to be observed. As per the trading warranty, all local port regulations are to be observed. Leaned counsel also drew our attention to the following warranty:-
"Warranty Regarding registration and Licensing of Fishing Vessels/Trawlers.
Warranted vessel to comply with local laws and regulations with regard to registration and licensing."
5. As per Section 35 of the Marine Insurance Act, 1963, the observance and fulfilment of all the warranties is precondition for any insurance claim. Similarly, Section 43 of the Marine Insurance Act, 1963 provides that unlawful activities will not be covered. Clearly, the vessel was unlawfully fishing in the Kerala waters without observing the State laws and therefore, under the provision of Section 43 of the Marine Insurance Act, 1963, the insurance claim is not payable. It was further mentioned by the learned counsel for the petitioner that the State Commission has accepted the version of the complainant that the Government of Kerala had suspended the registration and licensing from 1986 to 2004 and the permission for fishing in Kerala water was given by the competent authority at Kanyakumari port. In this regard, learned counsel for the petitioner stated that Kanyakumari falls in Tamil Nadu and authorities in Kanyakumari cannot give any permission for fishing in Kerala water. Even though the State of Kerala may not be allowing any fresh registration and fresh licences for fishing in the scheduled area along the coast of Kerala, it cannot mean that any outside vessel can start fishing in the scheduled area along the coast of Kerala. There is no order from the Central Government or from the Kerala Government that vessel registered in Tamil Nadu will be authorised to fish in Kerala waters. Thus, clearly the act of the complainant was an illegal act and therefore, as per Section 43 of the Marine Insurance Act, 1963, the claim cannot be supported.
6. On the other hand, learned counsel for the respondent/complainant stated that the insurance of the vessel and incident happening during the currency of the policy are admitted facts. Learned counsel stated that when the vessel was insured, its insurance was for zone 2 which includes Kerala as under:-
"Warranted vessel engaged in fishing and operations connected therewith on the coasts of Karnataka, Kerala and West & South coasts of Tamil Nadu upto and including Gulf of Mannar and not beyond 50 Nautical Miles into the Sea from shore. Warranted vessel laid up from Ist June to 15th August (both days including)."
7. Thus, it was clear to the Insurance Company that the vessel may fish in the Kerala waters as well. It was stated that the Government of Kerala stopped the registration of vessel as well as giving licence for fishing vide their order dated 21.04.1986. This ban continued upto 2004. It was further mentioned by the leaned counsel that the complainant got the permission to fish in the Kerala waters from the authorised officer (West Coast), Assistant Director of Fisheries (FTC) Colachel Kanyakumari District. In fact the issue of registration and licence has been thoroughly examined by the State Commission and the State Commission has observed the following:-
"17. A 1 registration certificate would also make it clear that the said insured fishing vessel was registered by the Assistant Director of Fisheries, Fishing Harbour, Madras with the registration No:MDS-341 and subsequently it was renewed by the Assistant Director of Fisheries, Colachal. The complainant/ insured was also given the permission to anchor the vessel at Colachal and thereby the berth of the vessel was shifted to Colachal. The endorsement in A1 certificate would also show that the insured vessel was permitted to move to Kerala State for seasonal fishing and that permission was given by the authorized officer (west cost), Assistant Director of Fisheries (FTC), Colachal, Kanyakumari District. The purchase of the vessel by the complainant, P.Jesudasan is also endorsed in A1 certificate. The vessel was also permitted to move to Kerala by the authorized officer, Kanyakumari (east) Assistant Director of Fisheries, Fishing Harbour, Management Wing, Chinnamuttom. The aforesaid endorsements in A1 registration certificate would make it abundantly clear that the concerned authority permitted the complainant/assured to take the vessel to Kerala Waters for fishing operation and that the said fishing vessel was having a valid registration up to 31.3.2003. It is to be noted that the registration for the fishing vessel and the permission to conduct fishing operation were given by the authorities under the Tamilnadu Marine Fishing Regulation Act, 1983 and the rules thereunder. Section-7 of the Tamilnadu Marine Fishing Regulation Act, 1983 speaks about licensing of fishing vessels. As per Sec.7 the owner of the fishing vessels may make the application to the authorized officer for the grant of a licence for using such fishing vessel for fishing in any specified area and every such application shall be in such form which contain such particulars accompanied with fees and thereby the authorised officer can very well issue the licence. The endorsement in A1 registration certificate by the authorized officer would make it abundantly clear that the said vessel was permitted to carry on fishing operation in Tamilndau and Kerala Waters. Sec.10 of the Tamilnadu Marine Fishing Regulation Act, 1983 deals with registration of fishing vessels. The endorsement in A1certificate would also make it clear that the said vessel was registered as provided under Sect.10 of the said Act. Thus, the complainant being the owner of the said fishing vessel was having the registration and licence for the said fishing vessel and by virtue of the said registration and licence the said vessel was permitted to move to Kerala Waters and to conduct fishing operation. The contention adopted by the opposite party/insurance company that the said fishing vessel was not having the required registration and licence for conducting fishing operation in Kerala waters cannot be accepted, in the light of the endorsements made by the authorised officer and the concerned authority who issued A1 registration certificate with the permission to conduct fishing operation in the Tamilnadu and Kerala Waters."
8. From the above observation of the State Commission, it was argued by the learned counsel for the complainant that there was no irregularity committed by the complainant in fishing in Kerala waters as the same was duly authorised by competent officer.
9. In respect of discrepancy in the engine number, the learned counsel for the complainant stated that the engine was replaced in the year 2000 and proper endorsement was made on the registration certificate. The surveyor who conducted pre-inspection did not properly peruse the details in the registration certificate and therefore, wrongly mentioned old engine number in his pre-inspection report. Due to any error on the part of the surveyor, the complainant cannot be put to a loss. In fact, the State Commission has dealt this issue in great detail and has given the following finding:-
"11. ......................... A1 document would make it abundantly clear that the said engine was replaced as early as in the year 2000and endorsement to that effect was made on 21.2.2000. If that be the position, the failure to mention the number of the replaced engine can only be an inadvertent omission on the part of the approved surveyor Mr. K.A.Harshan. The mere fact that in the said survey report the old engine number was shown cannot be taken as a ground to hold that the complainant/assured suppressed material fact regarding the engine number of the insured fishing vessel. It is pertinent to note at this juncture that the opposite party/National Insurance Company (the insurer) had the opportunity to peruse the original registration certificate of the fishing vessel 'Holy Mother'. It can be presumed that the opposite party/Insurance Company issued the policy only after ascertaining and perusing original of the registration certificate of the fishing vessel. It is further to be noted that no insurance company will issue the Marine Hull Policy without perusing the registration certificate of the fishing vessel. It is too much to believe that the Marine Hull Policy was issued based on the survey report alone. Even if the surveyor who ascertained the condition and valuation of the fishing vessel omitted to note the entry or endorsement regarding replacement of the engine by a new engine with No:ALEH-47138 cannot be taken as a ground to hold that the insured suppressed the material facts. So, the strong circumstances available on record would make it abundantly clear that the opposite party/Insurance Company (insurer) was fully aware of the fact that the old engine with No:AL-22468 was replaced by a new engine bearing No:ALEH-47138 and at the time of issuing of Marine Hull Policy the insured fishing vessel was fitted with engine bearing No:ALEH-47138. So there cannot any suppression of the material facts regarding the identity of the engine as contended by the opposite party/Insurance company."
10. It was argued by the learned counsel for the respondent/complainant that the learned counsel for the Insurance Company has not stated whether any of the facts mentioned in the above observations of the State Commission is wrong. The issues that have already been examined by the State Commission are not to be examined in the revision petition unless any ground is taken to dispute any such finding. The only ground that has been emphasised by the learned counsel for the Insurance Company in the revision petition is in respect of the warranty for observing the local laws. In this connection, the position has already been explained.
11. We have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the material on record. It is true that observance of local laws was a requirement under the Kerala Marine Fishing Regulation Act, 1980 for fishing in Kerala waters. It is not the case of the Insurance Company that the complainant was fishing in Kerala waters illegally or unauthorisedly because no document has been filed by the Insurance Company being either a letter from Government of Kerala explaining the illegality or non-observance of local laws, or any document relating to any action which the complainant might have faced due to this illegal activity. The complainant has explained the circumstances under which the complainant was permitted to fish in Kerala waters by the authorised officer/Assistant Director of Fisheries (FTC) at Colachel Kanyakumari District. The Insurance Company has also not filed any proof that this officer was not authorised to issue such permission. The State Commission has clearly accepted the version of the complainant in this regard and we agree with the same.
12. Similarly, in respect of discrepancy in the engine number, the explanation of the respondent/complainant seems to be genuine as is evidenced from the endorsement on the registration certificate. The State Commission has also examined this issue in detail and has found no misrepresentation or suppression of fact on the part of the respondent/complainant in this regard.
13. No other specific point was raised in the appeal except the violation of warranty in respect of observance of the local laws and the issue of discrepancy in the engine number during argument. We find no infirmity in the order of the State Commission in respect of these two issues or any other issue decided by the State Commission. However, we feel that interest @9% per annum awarded by the State Commission is on a higher side keeping in view the current interest scenario and therefore, we reduce it to 6% per annum. Accordingly, we do not find any illegality, material irregularity or jurisdictional error in the order dated 23.10.2009 of the State Commission which calls for any interference from this Commission except that the interest awarded by the State Commission @9% per annum is reduced to 6% per annum. The revision petition No.855 of 2010 is accordingly disposed of.
...................... PREM NARAIN PRESIDING MEMBER ...................... C. VISWANATH MEMBER