UNITED INDIA INSURANCE CO. LTD. vs KUSUMBEN J.BADIANI

THIS is an appeal against the Order dated 27th November, 1992 passed by the State Commission, Gujarat at Ahmedabad in Complaint No. 269/91 by which the present Respondent Kusumben J.Badiani-Complainant before the State Commission was allowed damages amounting to Rs. 2,31,958.44 with interest at the rate of 18% per annum against the present Appellant United India Insurance Co. Ltd.

FEELING aggrieved of that Order the Opposite Party i.e. Insurance Co. has come before this Commission by way of this appeal. The facts as gathered from the record are that the Complainant had insured her goods which consisted of 8495 bags Insurance Policy in respect of the goods. The said goods were loaded in the vessel namely MSV SAFINA UL AKBAR BDI 550 and were to be carried from Dubai to jamnagar. The Insurance Company had accepted the premium of Rs. 12,078/- on 15th January, 1989. The insured amount was Rs. 7,29,000 CIF plus 10%. The vessel was loaded with other cargo also and it left Dubai on January. 20, 1989. On 24th January, 1989 at about 9.00 a.m. the sea became very rough. On account of sea storm it was difficult for the vessel to go ahead. Unfortunately the shaft of the vessel broke down and the vessel was not in a position to move further due to heavy wind and rough sea. The lives of the Tandal as well as the crew members were in danger. The only option with the Tandal was to unload some weight from the cargo. Hence with the help of crew members the Tandal unloaded some of the cargo i.e. wet dates bags from the cargo said and those were thrown in the sea. It may be mentioned here that those bags belonging to the Complainant were at the top of the cargo in the hold. The Tandal had thus thrown 2703 bags belonging to the Complainant in the sea to bring the vessel under control. Thereafter the Tandal with the help of another fishing boat tried to go ahead and after three days i.e. on 28th January, 1989 the vessels reached near Karachi Port. There one Indian vessel named Khatija Bibi was found going towards Jamnagar. So the Tandal of the vessel in question requested the Tandal of the vessel Khatija Bibi to toe his vessel. The vessel in question thus reached Rozy Port on 5th February, 1989 at 1900 hours.

THE complainant filed a claim before the Opposite Party on 21st August, 1989 with all documents but the Opposite Party rejected the claim on 7.6.1991 i.e. after about 20 months of the filing the claim. Being aggrieved by the repudiation the Complainant filed the complaint before the State Commission.

IT was further the case of the Complainant that the Opposite Party did not send a Surveyor. On the other hand the Complainant called a Surveyor and got his report dated 12th March, 1990. The claim of the Complainant was that due to the jettisoning of 2703 bags belonging to her she has suffered damages to the tune of Rs. 2,31,958.44. The inaction of the Opposite Party in not paying the damages i.e. not indemnifying the loss and taking such a long time in repudiating the claim is clearly deficiency in service. In addition to the loss she has also claimed interest on the said amount. In support of her claim the Complainant filed her affidavit and other relevant documents and also produced the statement of Sattar Adam, the Nakuda of the Vessel recorded by the Inspector of Custom, Jamnagar on 8th February, 1989. She also filed Panchnama made by Shri H.H. Badiyani, V.V. Bojani and the survey report. Mr. Sattar Adam who was the Tandal of the vessel was also examined before the State Commission and the Opposite Party cross-examined him.

THE Opposite Party filed its written statement on affidavit which was sworn by Shri D.H. Chary, Dy. Manager of the Opposite Party. The Opposite Party also produced letter dated 3rd January, 1990 of the Meteorological Department, Government of India and the report dated 17th April, 1990 of Geo-Chem Laboratory. After going through the evidence and the record the State Commission passed the impugned Order.

THE defence of the Opposite Party i.e. Appellant herein is that the damage was caused due to the unlawful conduct or negligence or misbehaviour on the part of the Tandal and of the crew of the vessel, therefore, the claim was rightly repudiated. It will be better to state here that the risk covered under the policy as reproduced in the order of the State Commission. "The risk covered is: Loss or damage to the subject matter insured reasonably attributed to, 1.1. Vessel being burnt 1.2. Vessel being sunk Loss of the subject matter insured caused by jettison if necessitated by stress of weather only Or Loss of or damage to the subject matter insured reasonably attributable to 1. x xx 1.2. Vessel being stranded or sunk 2. Loss of the subject matter insured caused by jettison due to stress of weather, stranding, sinking or burning or collisions at sea.

Before the State Commission the Opposite Party placed reliance upon the report of Geo Chem Laboratory but the State Commission did not place any reliance upon it as neither any affidavit from the person who had signed the report had been filed nor was he examined before the State Commission. It may be mentioned here that even the report of the Geo-Chem Laboratory produced by the Opposite Party broadly supported the Complainant''s case that the shaft of the vessel in question had broken. In the circumstances it was absolutely necessary to jettison the goods in order to safeguard the lives of the Tandal and the crew. As noticed earlier the Tandal of the vessel was examined and offered himself for cross-examination. As noted by the State Commission he answered each and every question which did not show that there was any negligence on the part of the Tandal. The State Commission has rightly remarked that when the Complainant booked goods the control of the vessel was of the Tandal and he could not be deemed to be an agent of the Complainant. The Complainant has to accept whatever was reported to her unless the Insurance Company prove it otherwise. If the Insurance Company was to take the advantage of the exclusion clause the burden to prove that the said clause was applicable in the present case, was upon the Insurance Company. Shri D.H. Chary who has filed an affidavit on behalf of the Insurance Company has no personal knowledge of the incident. In such circumstances we do not find any ground to disbelieve the facts stated by the Tandal of the vessel in question. As noticed earlier even the Insurance Co. does not dispute the fact that the engine shaft of the vessel had broken. The vessel-had been towed by another vessel to reach Jamnagar and this fact was also not disputed by the Insurance Co. Thus the Insurance Company was not justified in repudiating the claim of the Complainant.

THE Insurance Company is clearly guilty of deficiency in service. The Insurance Company took about two years to decide the claim of the Complainant though all the documents were in its possession since 1990. Therefore, the State Commission was justified in awarding interest to the Complainant on the amount awarded in relation to the loss suffered by the Complainant. In view of the above discussions we do not find any infirmity in the Order of the State Commission. Accordingly we dismiss the present appeal with costs which we assess at Rs. 2,000/-.