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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and
Subhash Chandra, Member
M/s. Syndicate Shipwright – Complainant
versus
New India Assurance Co. Ltd. – Opp. Party
Consumer Case No.231 of 2011
Decided on 27.3.2023
Consumer Protection Act, 1986 – S.21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Insurance – Disallowance of Claim – On items – not logical and justified – Disallowance granted - the surveyor had noted the constraints in procuring the steel during off season when dry dock facilities were undertaken. It is also evident that the complainant was acting in his best interest by seeking expeditious repairs of the barge while it was in dry dock for which also there was great demand during the off season. Any delay in procurement of steel would have entailed higher costs in dry dock and consequently, the delay in repair of the barge and its subsequent utilization. It is therefore, logical to consider the procurement of steel in September to have been in the best interest of the complainant under the circumstances - The action of the complainant in identifying M/s Waterways Shipyard for the purpose of dry dock has not been denied. It is also apparent from the record that the complainant had sought on account of transfer of funds for the procurement of steel items for undertaking the repairs of the barge which was not done. Under such circumstances, disallowance of the steel price paid by M/s Waterways Shipyard in September 2008 on the ground that the steel items should have been procured in December 2008 when prices were lower cannot be justified - While a surveyor’s report under section 64 UM of the Insurance Act, 1938 is an essential requirement in finalizing insurance claims – Therefore, the opposite party has acted arbitrarily in disallowing the claim on account of steel prices and fabrication charges for Rs.43,26,768.63 and allowing only Rs.31,43,642.34/-. For this reason, the complainant is entitled to the difference of Rs.11,83,126.29 in addition to Rs.44,35,445/- already paid – Complaint partly allowed. [Paras 20 to 24].
Result: Complaint disposed off.
ORDER
Subhash Chandra, Member—This complaint under section 21(a)(i) of the Consumer Protection Act, 1986 (in short, the ‘Act’) seeks settlement of a claim of insurance with compensation and interest pertaining to complainant’s barge insured with the opposite party alleging deficiency in service in the settlement.
2. The complainant states that he is the owner of MV Jay Gomenteshwar, a barge insured under Hull and Machinery policy no.141500/22/07/01/00000140 with the opposite party from 12.12.2007 to 11.12.2008. On 23.05.2008 the vessel was loaded with iron ore for Capxem and anchored in Zuari River, Goa due to low tide. However, due to tidal conditions in high tide subsequently, it drifted and turned on 24.05.2008 resulting in damage to the bottom. The opposite party was intimated on 26.05.2008 and an inspection was conducted by M J Alvares, a Surveyor appointed by the opposite party. The complainant was advised to take steps to remove the iron ore to prevent further damage. The complainant engaged M/s Western Dredgers to remove the cargo, keeping opposite party informed. On 27.05.2008 the iron ore was trans-shipped to the cargo owner. On 28.05.2008, M/s Kanishka Salvage & Underwaters Services Pvt. Ltd. was engaged to salvage the vessel after tender by publication in the local newspaper with consent of the Surveyor and the opposite party. The vessel was approved to be towed to Timblo Shipyard for bottom inspection which was done on 07.06.2008 as per agreement dated 29.05.2008. The opposite party appointed Mohan Naik as Principal Surveyor on 07.06.2008. As the vessel could not be dry docked at Timblo Shipyard due to technical problems, it was delivered to M/s Marine Tech Services at Chicalim on 24.06.2008. Bills for Rs.18,93,266/- and Rs.5,05,620/- were raised by M/s Kanishka Salvage and M/s Western Dredgers respectively which were submitted to opposite party. On 03.07.2008 the Surveyor, Mohan Naik admitted claim of Rs.26,63,401/- against the expenditure of Rs 28,29,257/- incurred. The opposite party, however, did not settle this amount till 17.07.2008. The complainant applied for a loan to Bank of Baroda to settle the bills. An estimate of Rs 80 lakhs to repair the vessel was conveyed to the opposite party by the complainant on 19.07.2008. Some correspondence seeking clarifications transpired between the parties, including the complainant providing to the opposite party cargo details from the cargo company and a certificate from M/s Agencia Commercial Maritime.
3. The Surveyor, Mohan Naik, submitted his report on 04.08.2008 certifying the bill of Rs 26,63,401/- as reasonable, recommending repair of 8 meters of midship section of the vessel and mentioning that steel and labour costs were rising while noting that dry dock facilities in Goa during the ensuing off season ending September were difficult to be secured. Complainant states that the opposite party failed to respond to this report resulting in it addressing a letter dated 16.08.2008 to the Goa Barge Owners Association for intervention. Complainant sent letter dated 18.08.2008 to the opposite party proposing dry docking in M/s Waterways Shipyard Pvt. Ltd., for which he received consent on 27.08.2008. Complainant requested the shipyard to purchase steel in advance since it lacked funds. Opposite party was informed that the salvagers had a Maritime Lien on the vessel and were pressing for their bills. M/s Waterways Shipyard sought an advance of Rs 30,00,000/- to commence works on 11.09.2008. On 25.09.2008 the Surveyor sent another report certifying that the vessel was manned by competent and certified crew and while General Average was not allowed, loss to vessel and cargo was caused by an insured peril under the policy. As per Marine Law, the complainant kept the Captain of the Port and the Indian Register of Shipping informed. The complainant avers that he availed a ter
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