SYNDICATE SHIPWRIGHT Vs. NEW INDIA ASSURANCE CO. LTD

JUDGEMENT

(1.) This complaint under Sec. 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 23/5/2008 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 24/5/2008 resulting in damage to the bottom. The opposite party was intimated on 26/5/2008 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 27/5/2008 the iron ore was trans-shipped to the cargo owner. On 28/5/2008, M/s Kanishka Salvage and 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 7/6/2008 as per agreement dtd. 29/5/2008. The opposite party appointed Mohan Naik as Principal Surveyor on 7/6/2008. 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 24/6/2008. Bills for Rs.18,93,266.00 and Rs.5,05,620.00 were raised by M/s Kanishka Salvage and M/s Western Dredgers respectively which were submitted to opposite party. On 3/7/2008 the Surveyor, Mohan Naik admitted claim of Rs.26,63,401.00 against the expenditure of Rs.28,29,257.00 incurred. The opposite party, however, did not settle this amount till 17/7/2008. The complainant applied for a loan to Bank of Baroda to settle the bills. An estimate of Rs.80.00 lakhs to repair the vessel was conveyed to the opposite party by the complainant on 19/7/2008. 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 4/8/2008 certifying the bill of Rs.26,63,401.00 as reasonable, recommending repair of 8 meters of midship Sec. 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 dtd. 16/8/2008 to the Goa Barge Owners Association for intervention. Complainant sent letter dtd. 18/8/2008 to the opposite party proposing dry docking in M/s Waterways Shipyard Pvt. Ltd., for which he received consent on 27/8/2008. 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.30,00,000.00 to commence works on 11/9/2008. On 25/9/2008 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 term loan of Rs.30,00,000.00 from Bank of Baroda of which Rs.24,00,000.00 was released to Waterways Shipyard as per a tripartite agreement between complainant, M/s Waterways Shipyard Pvt. Ltd., and the Bank dtd. 16/10/2008.