State Consumer Disputes Redressal Commission
Abdulshakur Mamad Ker vs United India Ins Co Ltd on 28 October, 2021
Details DD MM YY
Date of Judgment 28 10 2021
Date of filling 11 01 2011
Duration 27 11 09
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
Complaint NO. 1 of 2011 Dt: 28.10.2021
Abdulsakur Mamad Ker
Near Custom House, Jamsalaya,
Tal: Khambhaliya,
Dist: Jamanagar. ...Complainant
Vs.
1. United India Insurance Co. Ltd.
Pandit Nehru Marg,
Near Ambar Cinema, Jamnagar.
2. United India Insurance Co. Ltd.
United India Insurance Building,
6th Floor, Near Navdip Building,
Ashram Road, Income Tax Circle,
Ahmedabad. ...Opponents
Appearance: Mr. M. I. Mansuri, Ld. Advocate for the Complainant
Mr. V. P. Nanavaty, Ld. Advocate for the Opponent
Coram: (Shri S. N. Vakil, Member)
(Smt. J. Y. Shukla, Member)
Order by Shri S. N. Vakil, Member
1. This is for loss of vessel.
2. The complainant of Abdulsakur Mamad Ker is that he obtained insurance of Hull and Machinery, policy for his vessel MSV Alamdar, Reg. No. BDI/1401, GRT-210-17, from the opponent - United India Insurance Co. Ltd., policy bearing No. 066300/22/08/01/0000140 for Rs. 62 lakhs and accessories for Rs. 3 lakhs in all for the period from 23.01.2009 to 22.01.2010. The vessel started from Porbandar Port with fresh vegetable and onion on 20.04.2009 to go to Maskat Port. It arrived at Maskat Port K.S.P CC-11-1 Page 1 of 9 and therefrom for shipment went to Socotra Island (Yemen) loaded with General Cargo on 25.05.2009. It sunk near Socotra Port in the evening for bad weather on 06.06.2009. It was completely lost. The Crew members were moved to Salaya in other vessel MSV Alhadi. Their statements were recorded under Section 107 and 108 of the Custom Act by the Custom Authority. Claim for Rs. 65 lakhs was lodged with the opponent. It was surveyed by opponent‟s surveyor Shri J. Basir and Associates. It has been repudiated stating "Trading is restricted to Fair Season". The surveyor recorded that the vessel was proceed in between fair season period, as it was departed from the India, as well as Sharjah Port as the said period was within the fair season period. However, still opponent came to know only after receiving the claim form, along with registration certificate. Such close has not been mentioned anywhere in the policy terms and condition. It solely relied on certificate issued by the Government of India and repudiated the claim. Such negative clause has nowhere been mentioned in the policy, neither communicated. The complainant has not violated any such terms and conditions as mentioned in the letter. The survey report itself specifically shows that insured has neither violated in the terms of policy. It is clearly seen from the survey report that the insurance company is liable to pay the insured amount to insurer. The opponent itself called for the survey report and denied to pay the claim and has thereby shown deficiency in service. The repudiation letter dated 21.01.2010 states, "that the vessel sailed out of Sharjah on 25.05.2009 for Socotra (Yemen) that „latitude 12 Degree North with cargo‟. The vessel crossed the latitude of Karwar (15 Degree N) and come to South of Karwar to Socotra Island on 06.06.2009, where it K.S.P CC-11-1 Page 2 of 9 sank. As per trading warranty, sailing is prohibited between 1st June to 31st August (North to Karwar). Therefore, it was known that duration of Voyaga would exceed the trading restriction date of 1st June (North to Karwar) where as far the South of Karwar, these was no question of undertaking the Voyage. This is mentioned on the certificate of inspection of the sailing vessel issued by the authority and that as such there is a breach of trading warranty under the policy. Insurance Company is accordingly not liable. No such terms and conditions ever informed to the complainant nor the complainant has committed any breach of the terms and policy. In column 3 of proposal form, it has specifically been mentioned „any Port‟, period of Voyage which was thereafter accepted and policy was issued. Yemen coasts where the said incident occurred there was fair season then and there was no prohibited clause or exclusion clause in the policy. Yet the opponent has repudiated on these two grounds, also by manipulating them. The opponent has thus shown deficiency in service. Therefore, the complainant claims for Rs. 65 lakhs with 15% interest from the date of loss till realization, Rs. 15 lakhs towards economic loss as a claim was not settled for long time and Rs. 25,000/- towards costs.
3. The defence vide written version is of denial. In the proposal form the complainant had disclosed information as:
Will the vessel be laid up during (A) Any port South or North-east monsoon? If so, (a) Where it will be laid up?
(b) Period to which it will be laid up? (B) 8th June to 15th August The proposal form was for renewal of his earlier Hull and Machinery insurance policy by filing fresh proposal form on 15.1.2009. The policy of K.S.P CC-11-1 Page 3 of 9 insurance was from 23.1.2009 to 22.1.2010. The opponent considered the information provided in the proposal form in utmost good faith and issued fresh Hull and Machinery Policy. The opponent forwarded the certificate of insurance with its terms, conditions, exceptions and exclusions forming part of the policy during the usual course of business to the complainant. The Registrar of Sailing Vessels, Bedi Port, had issued Certificate of Inspection of a sailing vessel under the provisions of the Merchant Shipping Sailing Vessels Rules, 1997 with following condition on 24.10.2008.
Restriction of trading Limit: Trading is restricted to fair season. Note:
Fair Season in Arabian Sea: North of Karwar
1st September to 31 May
South of Karwar
16th September to 15th May
The policy of insurance is always subject to Certificate of Inspection of sailing vessel. The owner of a sailing vessel is mandatorily duty bound to follow the directions issued from time to time by the Registrar of Sailing Vessels under the provisions of Merchant Shipping Sailing Vessels Act read with its Rules, 1997. The complainant informed the opponent by letter dated 16.6.2009 that his vessel MSV ALMDAR had sailed from Sharjah Port to Socotra Island, Yemen on 25.05.2009 loaded with general cargo. From the radio message received from the Tandel Shri Nazir Talab Ker on 6.6.2009 vessel MSV ALM DAR which was about 70 to 90 nautical miles away from Socotra Island, Yemen had sunk on 06.06.2009 vessel which was about 70 to 90 nautical miles away from Socotra Island, K.S.P CC-11-1 Page 4 of 9 Yemen had sunk on 06.06.2009 evening due to bad weather and heavy swell and there is total loss. The crew was rescued by the crew of vessel. Immediately appointed M/s. W.K. Webster & Company Limited as Surveyors and Loss Assessors who in turn appointed M/s. J. Basheer & Associates Surveyors Private Limited for survey and assessment of loss. The surveyor obtained all necessary information and documents from the insured complainant. It was found that latitude of Karwar was 15 Degree north. The Vessel sailed out of Sharjah on 25.5.2009 for Socotra Island, Yemen which is situated at 12 Degree north. Thus, the complainant knew that the duration of voyage would exceed the trade restriction set out by the Registrar of Sailing Vessels, Bedi Port in the Certificate of Inspection of sailing vessels. In spite of such restriction, the complainant allowed the vessel to proceed in an area (south of Karwar) which had even earlier restriction dated i.e. 16th May. The policy has special peril/exclusion/excess as per tariff. The opponent also puts a condition that the vessel should be laid from 1st June to 15th August. Thus, upon minute reading of the policy, it would appear that the policy did not allow the vessel to sail from Persian Gulf to Suez, Thus, the warranty did not allow the vessel to sail from Persian Gulf to Socotra Island, Yemen. The reason for specific voyages mentioned in the policy is due to the direction of winds, current, waves during the monsoon period which affects the vessel's handling capabilities and risk of potential accident if the vessel is not heading towards this specific direction. Thus, the complainant, with knowledge has breached the warranty of Certificate of Inspection of sailing vessel read with special peril and special exclusion as per the tariff between Persian Gulf and Yemen and this voyage is not included in K.S.P CC-11-1 Page 5 of 9 the trade warranty. Upon receipt of the final survey report dated 03.08.2009 the claim was processed in accordance with the terms and conditions read with the survey report. The opponent had no other option as 'no claim' which was intimated to the complainant in writing by letter dated 21.01.2010, there is no deficiency in service. It has processed the claim strictly as per the terms, conditions, exceptions and exclusions attached with it. This Commission has therefore no jurisdiction to try and decide the present complaint. The complainant has with knowledge allowed the vessel to sail from Persian Gulf to Socotra Island, Yemen coast beyond the warranty of trading. The complainant has admitted that in spite of knowledge he has permitted the vessel to trade beyond the warranty. The complaint deserves to be dismissed.
4. Heard Learned Advocate Shri M. T. M Hakim by proxy for Shri M. I. Mansuri, for the complainant and Advocate Shri V. P. Nanavaty, for the United India Insurance Co. Ltd.
5. The letter by the opponent, dated 21.01.2010, is "With reference to your vessel sailed out of sharjah on 25" May 2009 for Socotra (Yemen) latitude 12 Degree North with Cargo. The vessel crossed the latitude of Karwar (15 Degree N) and come to South of Karwar to Sacotra Island on 6.6.2009 where it sank. As per trading warranty sailing and is prohibited between 1st June to 31st August (North of Karwar). And 16th May to 15th Sept ( South of Karwar). Therefore when the voyage started from Sharjah, you knew that duration of Voyage would exceed the trading restriction date of 1st June (North of Karwar) where as for the South of Karwar, these was no question of undertaking the voyage. This is mentioned under the Certificate of Inspection of the sailing vessel issued by the authority and K.S.P CC-11-1 Page 6 of 9 a copy of which you have produced to us and the surveyors. As such there is breach of Trading Warranty under the policy and the Insurance Company is not laible for this loss".
6. The Hull and Policy Machinery Schedule against „location‟ states, "Vessel Ply between Saurashtra Kutch, West Coast of India, Iran, Iraq, Pakistan, Gulf Of Oman, Yemen, Soudi Arabia, South African Ports Up To 15 Latitude". So also is in the Proposal Form.
7. The vessel MSV ALM DAR had sail from Sarjah Port towards Socotra Island (Yemen) on 25.05.2009 loaded with General Cargo, consisting inter alia 18 numbers of Trucks/Jeep weight 17.45 MT, weight 75 MT of assorted items and 45 MT to Assorted and Food stuff, totaling into 137.45 MT. From the radio massage received from the Nazir Ker on 06.06.2009 their vessel which was about 70 to 90 Nautical Miles away from Socotra has sunk on 06.06.2009 evening due to bad weather and heavy swell and had thus become a total loss, when they were at that time in the position latitude 130 58‟ North and long. 540 00‟ East and the vessel MSV. ALM DAR‟s position was Lat. 130 53.65‟ North and Long. 530 58.58‟ East.
8. The maps produced by both the parties show that Socotra Island is 12.46340 N 53.82370 E, Karwar is 15N0.00. The vessel has thus been beyond 15N0.00 having sunk at latitude 130 58‟ North and long. 540 00‟ East, the vessel MSV. ALM DAR‟s position was Lat. 130 65‟ North and Long. 530 58‟ East, and thus while going towards Socotra at 15‟, there would be a clear breach of the policy. It cannot be argued that the policy having not been supplied the breach is not proved, it is for the reason that the policy schedule itself has mentioned location as aforesaid. K.S.P CC-11-1 Page 7 of 9
9. The proposal form also has stated that vessel ply between Saurashtra Kutch, West Cost of India, Iran, Iraq, Pakistan, Gulf Of Oman, Yemen, Soudi Arabia, South African Ports Up To -150 Letitude. Equally the argument that all ports of Yemen including Socotra are covered and hence there was no breach, cannot be accepted, it is for the reason that Socotra falls beyond 15" latitude. All ports of Yemen up to this limit of latitude 150 are included and not Socotra falling beyond 150 N, at 120 46‟.
10. Survey report of J. Basheer and Associates Surveyor Pvt. Ltd. under „Tarriff Wording of Trading Warranty‟ states that the vessels sum insured above Rs. 20,00,000/-, the Trading Warranty as per Section 2A, B and C of the Tariff Stipulates as: (A) Warranted vessel employed for carriage of cargo and operations connected therewith between Suez, Persian Gulf, Pakistan, West Coast India, Maldives, Lakshadweep and West Coast Sri Lanka, but not to proceed south of 15° South latitude on the East African Coast, with liberty to proceed to South Coast of Tamil Nadu upto and including Gulf of Mannar. (B) Warranted Vessel laid up from 1st June to 15th August (b.d.i.) with leave to employ the vessel from 1st June to 7th June (b.d.i) a) Between ports of Saurashtra / Kutch and Bombay Port. b) Between Ports in Saurashtra/ Kutch and ports in Suez, Persian Gulf and Pakistan. c) Between Bombay Port and Ports in Suez, Persian Gulf and Pakistan. (C) Employment during the prohibited period is permitted as under: a) On the Coasts of Saurashtra /Kutch. b) Between Tuticorin and Sri Lanka. c) Vessel may be permitted to ply in Persian Gulf Area from 1"
June to 15th August by charging additional premium @ 25% of the appropriate rate as stipulated in II & IV. Thereform it was argued that it was permissible to ply from 1st June to 15th August. The argument is not K.S.P CC-11-1 Page 8 of 9 acceptable as from the aforesaid wordings itself it could be seen that none covers Socotra fully South to Karwar 15N0.00.
11. Accordingly, the repudiation is found and held to be justified.
12. Merchant Shipping (Sailing Vessels) Rules 1997, is brought to our notice. It provides: "fair season and foul season" - means respectively the season as specified in Scheduler-IV; "Trading limits"-The trading limits if any, and the conditions for such trading, shall be specified in the certificate of inspection depending upon the size, type, construction and general suitability of the vessel for which the surveyor considers the vessel to be fit; Schedule IV (entry No.2) for Western India (South of Karwar) and west as the line joining Aden and Berbera, 16th May to 15th Sept. Foul and 16th Sept. to 15th May Fair. By these also period up to 16th May to 15th Sept. was Foul season for South of Karwar which accordingly to Map is 15N0.00.
13. For the reason stated the complaint deserves to be dismissed, for which following order is passed.
FINAL ORDER
i) Complaint No. 1 of 2011 is dismissed.
ii) No order as to mental pain and costs.
iii) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 28th day of October, 2021.
(J.Y.Shukla) (S.N.Vakil)
Member Judicial Member
K.S.P CC-11-1 Page 9 of 9