IMPORTANT POINT
Insurable interest – surveyor has given the reason of fatigue failure, which cannot be considered to be sufficient reason in such case and in the circumstances for the damages caused to the vehicle the insurable interest.

ORDER

Subhash Chandra, Presiding Member—This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) challenges the order dated 11.05.2012 of the State Consumer Dispute Redressal Commission, Gujarat, Ahmedabad (in short, the ‘State Commission’) in consumer complaint no. 17 of 2006 allowing the complaint and directing payment of Rs 20,99,261/- with compensation as interest @ 9% p.a. from the date of complaint (12.06.2006) along with Rs 30,000/- towards delay in settlement of claim and mental harassment. This order is impugned before us praying to set aside the impugned order, to direct the State Commission not to take any action till disposal of this Appeal and for other relief as deemed fit and proper in the facts and circumstances of the case.

2. The relevant facts of the case, in brief, are that the Appellant had issued a Marine Hull Insurance Policy ensuring the risk of the Respondent’s dumb barge “DB Amarnath” for the period 22.07.2004 to 21.07.2005 for Rs 30 lakh. On 27.01.2005 the barge sank near Ruchi Jetty, Jamnagar. On intimation, Appellant appointed M/s Transocean Marine & General Survey Agencies to survey and assess the loss which was undertaken by Ashok Manohar Gawarikar, a qualified Category ‘A’ Surveyor under Section 64 UM of the Insurance Act, 1938. Respondent clarified to the Surveyor that the exact cause of ingress of sea water could be determined only after inspection of the dumb barge on hard. Certain documents were sought on 31.01.2005 which was provided on 06.05.2005 after reminder on 20.04.2005. The Surveyor’s report dated 13.06.2005 on the basis of his inspection and the report of M/s Govern Industrial Surveyors relating to measurement of the thickness of the bottom plates by ultrasound machine stated that based on visual and inherent damage on its body, the barge did not sustain any external impact or damage to substantiate the Respondent’s contention that the barge collided with the mother vessel leading to cracking of the transom plate from the welding joint. According to the Surveyor, most of the plates of the barge had corroded due to continuous use and the plates were thinned down considerably to 50% of their original thickness at the damaged area. It was opined that the Respondent’s assessment of the cause of sinking was incorrect since the relative motions of heave, pitch and roll of the barge and the mother vessel during loading operations (“ranging”) was anormal phenomenon and there were adequate rubber fenders to absorb the impacts. The conclusion of the Surveyor was that the cause of ingress of sea water into the barge was due to fatigue failure of the welding joints and therefore the loss was not covered under the Policy. Appellant repudiated the claim vide letter dated 09.08.2005 on the basis of this report. Respondent’s complaint (No. 17/2006) before the State Commission was decided on contest holding the Appellant herein liable for deficiency in service and directed payment of Rs 20,99,261/- with interest @ 9% p.a. from the date of complaint (12.06.2006) with Rs 30,000/- for delay in claim settlement and mental harassment.

3. This order is impugned before us on the grounds that (i) it was contrary to well settled law and material and evidence on record and therefore arbitrary; (ii) the proximate cause of the sinking was not perils of sea but fatigue failure and normal wear and tear and the impugned order had recorded the reason as collision of the barge with the mother vessel resulting in separation of old welding on the transom plate which was contrary to the Surveyor’s report; (iii) the Surveyor had conclusively proved that the thickness of the bottom plates had eroded due to continuous use as established by the ultrasonic machine used to measure the thickness of the plate while the State Commission’s conclusion was based on surmises and conjectures; (iv) the State Commission had exceeded its jurisdiction to make a roving enquiry and had failed to appreciate t