Dismissing the consumer complaint filed by the appellant herein. (Para 1)
Charter Party Agreement dated 02.10.2006 for a sea vessel (Para 2)
The main contention of the sole respondent is that appellant’s vessel was without Class Certification on the date of the incident, being invalid and the respondent was under no contractual and/or legal obligation to reimburse the appellant. (Para 9a)
Despite knowing the stand taken by the insurance company viz. the damage which took place during the term of the first policy had not been reported to ABS, no effort was made by the complainant to produce any evidence from ABS before this Commission to prove that the aforesaid damage, including the fact that the crankshaft and connecting rods had not been replaced, was duly reported to them by the complainant. In these circumstances, it would be difficult for us to reject the report of the surveyor, who specifically stated that he had met the Principal Surveyor Mr. Ashok and Country Manager, Mr. R.C. Bhavnani of ABS to enquire whether they were informed of the damage to the port main engine of the vessel, which had occurred on 22.02.2006 and the temporary repairs carried out as per their recommendations and they were quite surprised to learn about such serious damage to the port main engine of the vessel. (Para 10)
There is no dispute that the vessel was actually classed with ABS for the period from 30.03.2006 to 03.12.2006; the issue before us is that the aforesaid Classification was obtained by concealing vital information with respect to the damage to the vessel, from the Classification Society. (Para 10)
Whether the consideration made and conclusion reached by the NCDRC as extracted above would admit of any perversity or error in its reasoning. (Para 11)
The respondent insurance company declined to honour the claim under the said policy on the basis that the non-disclosure of the fact that the engine crank shaft and connecting rods had suffered damage requiring the replacement, had not been informed by the appellant to the Classification Society for the issue of the Class Certificate and therefore, the Class Certificate would not remain valid for the reason of non-compliance of the warranty requirement. The appellant would however contend that the insurance company having issued the policy for the earlier period and having made the payment on account for the replacement, being aware of the repairs carried out and having gone on a voyage to deliver the booked cargo cannot now decline and it was for the respondent insurance company to make appropriate inquiries before issuing the policy. It is in that background a consideration was made by the NCDRC. (Para 13)
Since the insurance coverage to be provided by the insurer is based on such Class Certificate which is assumed to have been issued by the Classification Society after keeping in view all aspects including the defects if any brought to their notice. It is in that light the provisions extracted above becomes relevant as to the circumstance under which the Class will be suspended and the Certificate of Classification will become invalid in the circumstances stated therein, which also refers to such suspension and invalidation, if any damage, failure or deterioration repair has not been completed as recommended. (Para 16)
The entire issue in the instant case would hinge on the aspect as to whether the appellant had brought any material on record, either when the claim was lodged or before the NCDRC to indicate that the damage to the engine crank shaft which was required to be replaced and on account of which payment had been obtained, had been factually replaced, or if it had not been replaced, whether it was reported to ABS so that the Classification Society would have thereafter assessed as to whether even in that circumstance where the replacement had not been made, whether the repairs carried out were sufficient to certify the seaworthiness of the vessel. On being aware, an informed decision was to be taken to issue the Class Certificate. In the instant case, no such material was brought on record. (Para 17)
Keeping in view the consideration made by us hereinabove and also taking note of the provisions relating to warranty and the manner in which the Classification Certificate is issued, in the instant facts the appellant had failed to establish that the warranty class had not been breached by them and in that context the seaworthiness or otherwise at the point of accident is not of relevance. In that circumstance, we are of the opinion that the NCDRC having considered the relevant aspects of the matter in its correct perspective has arrived at its conclusion, which would not call for interference. (Para 24)
SUPREME COURT OF INDIA
2023 STPL(Web) 162 SC
[2023 INSC 697]
SUPREME COURT OF INDIA
Hind Offshore Pvt. Ltd. Vs. Iffco – Tokio General Insurance Co. Ltd.
Civil appeal no. 7228 of 2015-Decided on 9-8-2023
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