JUDGMENT

B. Sudershan Reddy, J.

1. This appeal under Section 23 of the Consumer Protection Act, 1986 is directed against the final judgment and order of the National Consumer Disputes Redressal Commission. The National Commission by the impugned judgment allowed the complaint preferred by the Respondent complainant and accordingly directed the Appellant Company to pay a sum of Rs. 13.69 crores with interest at 9% per annum from 9th June, 1997 till its realization.

2. In order to consider as to whether the impugned judgment of the National Commission (for short `the Commission') suffers from any infirmity requiring our interference, it may be just and necessary to notice relevant facts.

3. The Respondent-complainant at the relevant time was carrying on ship breaking and scrap dealing business. It had under a Memorandum of Agreement dated 2.6.1997 purchased and imported to Alang, a very large bulk ore and oil carrier by the name of "Vloo Arun" for the purpose of scrapping (ship breaking/demolition) from one M/s. Ruby Enterprises Inc. Belgium. There is no controversy that the Respondent has taken a marine insurance policy for hull and machinery on 4.6.1997 for the said vessel. The policy was obtained after taking possession of the vessel for covering only 9 kms. distance between Alang Anchorage to Alang Ship Breaking yard. Insurance cover was for a sum of Rs. 25.70 crores for which a premium of Rs. 1,14,280/- was paid. As per the special condition it was Institute Voyage Clause (hulls) dated 1.10.1983 as attached with a specific condition, `but to cover and/or Constructive Total Loss only' including salvage and sue and labour and expenses."

4. The case of the complainant is that on 9.6.1997, when vessel started its funeral voyage' on its way it was completely damaged and could not be beached at the specified place because of extremely rough weather resulting in total loss. The insurance Company was accordingly informed, followed by several letters by the complainant requesting it to state as to what action was to be taken with regard to the stranded vessel. The insurance Company did not respond.

5. It is under those circumstances the Respondent complainant has claimed an amount of Rs. 18,30,44,912/- with interest @ 19.5% p.a from 14.6.1997 till its payment and Rs. 2.5 lakhs as costs and expenses of the litigation and further a sum of Rs. 5 lakhs towards harassment meted out by the Appellant insurance Company.

6. In response to the claim, the Appellant insurance Company appointed two Surveyors, and the Respondent complainant with the acceptance and approval of the Appellant insurance Company appointed Tony Fernandez Average Adjusters Pvt. Ltd. as its Surveyor. Each one of the Surveyors appointed by the Appellant insurance Company submitted their respective reports on 24.6.1997 and 14.7.1997.

7. In addition to the aforesaid two reports on record, there is a report on record of Tony Fernandez Average Adjusters Pvt. Ltd. which was appointed by the Respondent complainant. The Appellant insurance Company had accepted and pproved its appointment. In the report submitted by Tony Fernandez Average Adjusters Pvt. Ltd., the cause of loss is as under:

The proximate and dominant cause of the vessel becoming a total loss was the stranding on a rocky shoal prior to arriving at the destination. The stranding itself was due to heavy weather encountered on the "funeral" voyage to the ship-breaking yard. The stranding was accidental and fortuitous in nature.

Both heavy weather and stranding are perils of the sea. The proximate cause of the loss is an insured peril, falling under Clause 4.1.1 of Institute Voyage Clauses Hulls, 1/10/83 wordings (Clause 285), which covers loss of or damage to the subject-matter caused by, `perils of the seas rivers, lakes or other navigable waters.'

We have satisfied ourselves that the loss was neither caused proximately nor concurrently, by any of the excluded perils listed in Section 55 of the Marine Insurance Act, 1963, (MIA