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Thursday, April 17, 2014

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=Kokkilagadda Subba Rao ….Appellant Versus Divisional Manager, United India Assurance Co. Ltd. & Ors. ..Respondents = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41425

   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                   |
|                                       | |                                      |

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