Insurance claim – Boat capsized – insurance is inforce – first surveyor reported total loss – not satisfied appointed second surveyor – who doubt that the boat was capsized in orissa coastal waters – which was confirmed by addendum obtained from coastal consultants – Insurance company reputed the claim of Rs.6 lakhs as the vessel had transgressed the required territorial limits – violation of the policy conditions – all forums dismissed the case – Apex court too dismissed the appeal=
second surveyor submitted its report on 15th July 1993 but expressed a
doubt whether the vessel sank in the Andhra Pradesh coastal waters or the
Orissa coastal waters. Subsequently, Coastal Consultants submitted an
addendum to its report on 14th February 1994 in consultation with M/s
Mohanty Associates. It was then concluded that the fishing boat sank in the
Orissa coastal waters. Since the vessel had transgressed the required
territorial limits, there was a violation of the policy conditions.
4. Based on the report submitted by Coastal Consultants and the addendum
thereto, the insurance company repudiated the claim of Subba Rao on the
ground that contrary to the insurance policy, the boat was used for fishing
in the high seas and the insurance policy did not permit fishing in the
high seas from 1st November to 31st March and 1st May to 30th September.
District forum, State forum dismissed the complaint –
The State Commission noted that the only point for consideration was
whether there was any deficiency on the part of insurance company and if so
to what extent. While answering this question on the basis of the evidence
adduced, the State Commission concluded that the vessel was used for
fishing in the high seas and eventually sank in the Orissa coastal waters
and therefore there was no material to hold that the repudiation of the
claim by the insurance company was illegal. Accordingly, the complaint
filed by the appellant before the State Commission being C.D. No.94/1995
was dismissed.=
Before us, learned counsel for the appellant argued that in view of
the Section 64 UM(3) of the Insurance Act, 1938 the insurance company could
not have called for a second survey report. We are afraid this contention
is not open to the appellant at this stage. This contention was not raised
before the State Commission or before the National Commission. Before both
the fora the only question raised was whether the fishing vessel capsized
in the Orissa sea coast or in the Andhra sea coast and it was found as a
matter of fact that the vessel sank in the Orissa sea coast and was
utilized for fishing in the high seas contrary to the insurance policy.
Therefore the insurance company was entitled to repudiate the claim made by
Subba Rao.
9. We see no reason to disturb the finding of fact arrived at by the
State Commission as well as by the National Commission nor do we see any
reason to entertain a fresh argument raised in this court for the first
time without its having been agitated before any of the earlier fora.
2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41425
GYAN SUDHA MISRA, MADAN B. LOKUR
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5822 OF 2006
Kokkilagadda Subba Rao ….Appellant
Versus
Divisional Manager, United India Assurance
Co. Ltd. & Ors. ..Respondents
J U D G M E N T
Madan B. Lokur, J.
1. The appellant (Subba Rao) was the owner of a fishing boat in Andhra
Pradesh registered with the respondent insurance company. There is no
dispute that the fishing boat capsized on 27th July 1992 while the
insurance policy covering the boat was still valid.
2. Upon the boat having capsized, Subba Rao made a claim with the
insurance company on 3rd August 1992 for a sum of Rs. 6 lakhs. The
insurance company appointed M/s Reliance Surveillance as a surveyor.
Reliance Surveillance submitted its report on 3rd May 1993 to the effect
that the case may be treated as a total loss.
3. Apparently dissatisfied with the report, the insurance company
appointed another surveyor M/s Coastal Consultants Private Limited. The
second surveyor submitted its report on 15th July 1993 but expressed a
doubt whether the vessel sank in the Andhra Pradesh coastal waters or the
Orissa coastal waters. Subsequently, Coastal Consultants submitted an
addendum to its report on 14th February 1994 in consultation with M/s
Mohanty Associates. It was then concluded that the fishing boat sank in the
Orissa coastal waters. Since the vessel had transgressed the required
territorial limits, there was a violation of the policy conditions.
4. Based on the report submitted by Coastal Consultants and the addendum
thereto, the insurance company repudiated the claim of Subba Rao on the
ground that contrary to the insurance policy, the boat was used for fishing
in the high seas and the insurance policy did not permit fishing in the
high seas from 1st November to 31st March and 1st May to 30th September.
5. Feeling aggrieved, Subba Rao approached the Andhra Pradesh State
Consumer Dispute Redressal Commission seeking compensation from the
insurance company of Rs. 6 lakhs with 24% interest. By an order dated
28th March 2002 the State Commission rejected Subba Rao’s claim and this
led to his filing an appeal before the National Consumer Disputes Redressal
Commission being First Appeal No.397 of 2002. By an order dated 10th
January 2005 (under challenge) the National Commission rejected the appeal
filed by Subba Rao.
6. The State Commission noted that the only point for consideration was
whether there was any deficiency on the part of insurance company and if so
to what extent. While answering this question on the basis of the evidence
adduced, the State Commission concluded that the vessel was used for
fishing in the high seas and eventually sank in the Orissa coastal waters
and therefore there was no material to hold that the repudiation of the
claim by the insurance company was illegal. Accordingly, the complaint
filed by the appellant before the State Commission being C.D. No.94/1995
was dismissed.
7. Feeling aggrieved, the appellant filed First Appeal No. 397 of 2002
before the National Consumer Disputes Redressal Commission. The National
Commission held that the fishing vessel was used in the high seas for
fishing and that it sank in the Orissa sea coast. Accordingly, the claim
made by the appellant was not covered by the policy issued by the insurance
company. The view expressed by the State Commission was upheld.
8. Before us, learned counsel for the appellant argued that in view of
the Section 64 UM(3) of the Insurance Act, 1938 the insurance company could
not have called for a second survey report. We are afraid this contention
is not open to the appellant at this stage. This contention was not raised
before the State Commission or before the National Commission. Before both
the fora the only question raised was whether the fishing vessel capsized
in the Orissa sea coast or in the Andhra sea coast and it was found as a
matter of fact that the vessel sank in the Orissa sea coast and was
utilized for fishing in the high seas contrary to the insurance policy.
Therefore the insurance company was entitled to repudiate the claim made by
Subba Rao.
9. We see no reason to disturb the finding of fact arrived at by the
State Commission as well as by the National Commission nor do we see any
reason to entertain a fresh argument raised in this court for the first
time without its having been agitated before any of the earlier fora. The
contention urged by learned counsel involves some factual determination and
in the absence of any evidence having been led by either of the parties on
this issue, we are not inclined to entertain the submission.
10. Under the circumstances, there is no merit in this appeal and it is
accordingly dismissed.
………………………………J
(Gyan Sudha Misra)
………………………………..J
(Madan B. Lokur)
New Delhi;
April 16, 2014
ITEM NO.1A COURT NO.14 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 5822 OF 2006
KOKKILAGADDA SUBBA RAO Appellant (s)
VERSUS
DIV.MNG.UNITED INDIA ASSURA.CO.LTD.&ORS. Respondent(s)
[HEARD BY HON’BLE GYAN SUDHA MISRA AND HON’BLE MADAN B. LOKUR, JJ.]
Date:16/04/2014 This Appeal was called on for judgment today.
For Appellant(s) Mr. Mukesh K. Giri,AOR
For Respondent(s) Mr. Rajesh Dwivedi, Adv.
Mr. Zahid Ali, Adv.
for Mr. Debasis Misra,AOR
Hon’ble Mr. Justice Madan B. Lokur pronounced the judgment of
the Bench comprising Hon’ble Mrs. Justice Gyan Sudha Misra and His
Lordship.
For the reasons given in the Non-Reportable judgment, which is
placed on the file, the appeal is dismissed.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Assistant Registrar |
| | | |
advocatemmmohan 
Discussion
Comments are closed.