VANI MARINE PRIVATE LTD. vs NEW INDIA ASSURANCE CO. LTD.

THE petitioner company imported a trawler ''SUDHIR'' which sailed from Vizag fishing harbour on 25-1-1990 at 15.10 hours. At 15.30 hours, the channel was cleared and the trawler started steaming towards North at 18.45 hours. On 26-1-1990 the trawler sank at about 18.20 hours. The cause of the sinking of the ship was stated by the petitioner as entering of extensive water in the ship. The Chief Engineer and the other men tried to pump out the water with the help of bilge pumps, emergency portable hand pump and fire buckets. The battery had also got submerged into the water. The radio telephone did not work. Therefore, no distress signal could be sent out. Fortunately one mechanised boat MFV LEELA VPT 785, happened to be in the vicinity. It noticed that the trawler was in trouble and rescued the crew.

THE trawler was insured with the New India Insurance Company which was notified about he mishap. Information was lodged about the sinking of the trawler with the Sub-Inspector of Police, Naupada. According to the petitioner, the Cyclone Warning Center by letter dated 6-3-1990 confirmed that no weather warning for fishermen for Andhra Coast was issued on 25th and 26th January, 1990. The Insurance Company, however, repudiated the claim lodged by the Petitioner Company. The case of the Insurance Company is that the policy was covered for "perils of the Sea" which has a definite legal connotation. The insurance company has questioned correctness of the allegation of sinking of the trawler. Secondly, it has raised a question that in any event, the trawler did not sink as a result of "Perils of the Sea". It has further been asserted by the Insurance Company that under Condition 10 of the Insurance policy, the claimant was duty bound to take reasonable measures to avert or minimise any loss which was not done in this case.

VIGOROUS efforts have been made to find out the trawler or any articles or part of the trawler at the spot pointed out by the complainant by various authorities but not a trace could be found out of the sunken ship. Search operation was carried out from 29-1-1990 to 4-2-1990 without any result.

IT has further been pointed out that the crew members did not throw any marker at the spot of sinking though they had sufficient time to do so. Had this been done it would have lead to the location of the sunken trawler. The sea was calm and the weather was very fair on the date of the sinking. There was no reason for the trawler to sink. There was no rock or a hard substance against which the ship could have colluded on the spot where it sank.

THE cause of entry of water into the ship remained unexplained. It was stated the water had reached knee deep level when the ship was abandoned.

EVEN if the ingress of water into the engine room is believed, the ship could not have sunk even after the engine room was fully flooded with water as per the stability booklet. The crew made no effort to bring the vessel to the shore which was only 8 miles from the coast. It could have been taken towards the shore in 30 minutes when the weather was very fair and normal. Even if the skipper had applied the gear and steer towards the shore, the vessel would have reached the shore.

THE navigation chart and log book were not taken out from the insured vessel though the crew retrieved the registration paper and the competency certificate.

NO distress signal was given which was very unusual from a sinking ship. The rescue trawler was at a clapping distance from the insured trawler at the time of the alleged sinking which is consistent with a pre-meditated design rather than an accident. The rescue vessel originally belonged to the complainant and its present owner was on board at the time of the alleged sinking though he rarely sailed on his boat.

THE life crafts of the sunken vessel were not used. All the crew members except the Chief Engineer were appointed only a month before the alleged accident. The classification of the ship had been discontinued for no valid reasons. The complainant was in great financial distress and was going through resource crunch due to which the vessel was neither properly maintained nor properly classified.

IT was heavily over-insured. It had been purchased at a cost of Rs. 30 Lakhs in 1978. Its market value on the date of the accident could be about Rs. 5 to 6 lakhs at the of alleged sinking due to its deteriorating condition. It was insured for Rs. 78 lakhs. The statement made by the crew members of the sunk trawler as well as the rescue trawler and that of the owners of the rescue trawler suffered from serious contradictions and grave suspicions.

THE Surveyors. M/s. Metcalfe and Hodgkinso (P) Ltd. opined that there was no evidence to show that the vessel had sunk. The investigators M/s. Basheer and Associates expressed that the insured vessel could not have sunk due to any reason as narrated by the crew members.

THE Ministry of Surface Transport in its report concluded that there were sufficient reasons to suspect that the vessel was deliberately sunk to claim huge insurance claim. Lastly, it has been contended that under the circumstances, the Insurance Company was quite justified to repudiate the claim. There is no deficiency of service in the facts of the case. In the affidavit filed on behalf of the Insurance Company, it has been pointed out that the nets were dragged in the area of the sunk spot pointed out by the complainant. Divers of the search operators searched for the fishing trawler upto the depth of 46 Fathoms. Despite the prolonged period of search operations, neither the sunken fishing trawler nor any article of the sunken trawler were traced.

THE State Bank of India, Vishakhapatnam, which had financed the fishing trawler alongwith SDFC, filed a suit for recovery of Rs. 51.08 lakhs which has been decreed with interest.

LETTERS were also received by the Insurance Company from Merchantile Marine Department, Ministry of Shipping and Transport, Government of India, stating that they are conducting the investigation. The Insurance Company was advised not to settle the insurance claim till the investigations were completed. The letter was also received on 13-2-1990 from CBI stating that the alleged claim in respect of the sinking of the trawler was suspicious. The surveyors pointed out that the rescue trawler was earlier owned by the complainant himself. It was sold to Mr. G. Shankar Reddy who was present on board the rescue trawler at the time of rescue. That fact alongwith the fact that no distress signal was at all issued by the sinking trawler was highly suspicious. Having regard to these facts and allegations, we are of the view that this Original Petition cannot be allowed. Sufficient facts have been brought on record by the Insurance Company to show that there has not been any deficiency of service in this case. Whether the complainant''s case is trite or false can only be established on elaborate evidence. We therefore, dismiss the complaint. No order as to costs. This order will not prevent the complainant to seek remedy in some other forums. Complaint dismissed with liberty to seek remedy in some other Forums.