KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL.648/2001 JUDGMENT DATED: 31.5.2010 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER The Divisional Manager, : APPELLANT New India Assurance Co.Ltd., Divisional Office, Chinnakada, Kollam Rep. by its Divisional Manager, New India Assurance Co.Ltd., Divisional Office, Kottarathil Buildings, Palayam, Thiruvananthapuram. (By Adv.M.Nizamudeen) Vs. Hycenth Yesudas, : RESPONDENT Kalpana, Altharamoodu, Kavanadu, Kollam. JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellant is the opposite party/New India Assurance Company Ltd. in OP.478/98 in the file of CDRF, Alappuzha. Appellant is under orders to pay a sum of Rs.1,90,000/- towards the insurance claim and compensation of Rs.5000/- with interest at 18% from 2.12.92(the date of payment of compensation to the owner of the sunken vessel). 2. The case of the complainant is that his fishing boat by name Kalpana covered under the policy of the opposite parties collided with another boat by name SNV in the deep sea near Neendakara on 4.9.92 at 6am. The sea was calm at the time. As a result of the hit SNV boat sunk into the sea. The sunken boat was not having any insurance. The police registered the crime. Opposite party repudiated the claim on the ground that the complainant violated the terms of the policy as the boat was taken into the sea when the adverse weather warning was in force and also on the ground that the boat Kalpana was not having the registration certificate. The above contentions are incorrect. The complainant was forced to pay Rs.1,90,000/- as compensation to Mr.M. Terrence, owner of the sunken vessel. 3. The opposite party has filed version rising the same two contentions mentioned in the repudiation letter as well as it was contended that the assured vessel was not having a valid license at the time of the accident and hence the complainant has violated the policy conditions. 4. The complaint was dismissed by the Forum at first and in appeal No.918/97 this Commission set aside the order of the Forum and remitted the matter back for re-consideration. 5. The evidence adduced consisted of the testimony of PWs 1 and 2 and RWs 1to 3; Exts.A1 to A16, R1 to R14 and X1. 6. The Forum after considering the evidence adduced in the matter allowed the complaint as mentioned above. 7. The LCR was found missing. The same could not be traced out. Thereafter the records were reconstructed. The parties have produced the copies of the records which have been admitted without any objection from either side.. 8. The counsel for the appellant has contended that the decision of the Forum is vitiated for three reasons ie, 1) the vessel was taken into the sea when there was adverse weather warning in force; 2) The vessel was not having a valid registration certificate; 3) There was no valid license at the time. The counsel has confined his contentions to the above grounds. 9. Ext.A12/R13 is weather certificate which was proved by RW2 the Port officer. In Ext.A12 it is mentioned that the weather at the time was fine and the sea was calm on the particular day. The counsel for the appellant has stressed the fact that in Ext.A12 it is mentioned that ‘R’ flag hoisted on 31.8.92 continued upto 4.30pm on 4.9.92. He has further stated that from 3.9.92 upto 4.9.92 the weather was fine and calm and it continued like that upto 8AM on 5.9.92. He has further explained that the ‘R’ flag was not lowered as instruction to do so was not communicated. He has also stated that there was no announcement made to intimate the fishermen as to any warning. He has also stated that there was no instruction given that the fishermen are not to venture into the sea. In Ext.R1 policy conditions it is the condition that warranted vessel shall not be employed during adverse weather conditions notified by the concerned Port authorities. It is the above condition that has been allegedly violated. Evidently as per the testimony of RW2 adverse weather conditions was not notified. He has stated that ‘R’ flag was hoisted as a warning signal. We find as per Ext.R1 policy conditions only if the adverse weather conditions are notified. The condition can be said to have violated. RW3 the Meteorologist has also stated accordingly as noted in the order of the Forum. The Forum has noted that RW3 has stated that in case of weather adverse conditions warning would be broadcast through All India Radio and similar Medias. The contention of the counsel for the appellant that ‘R’ flag hoisted is a warning with respect to the adverse weather conditions and taking the boat to the sea at the time amounted to violation of the policy conditions cannot be upheld in view of the evidence adduced in the matter and which has been properly considered by the Forum. 10. The other contention is that the vessel was not having a valid port registration certificate. The complainant has produced Ext.A8 the copy of the certificate of registration dated 29.9.1990. The registration certificate has been issued under the Merchant Shipping Act, 1958. As noted by the Forum registration need not in be renewed from year to year as per Section 9(4) of the Kerala Marine Fishing Regulation Act, 1980. It is pointed out by the counsel for the respondent, that registration once made shall be continued in force until it is cancelled by the authorized officer. RW2 the Port officer has also testified in this regard he has stated that a boat need be registered only once. Hence we find the above contention of the counsel for the appellant has no force in the eye of law. 11. The other contention raised is that vessel was not having a valid license on the date of the accident. Ext.A11 the copy of the license would show that the boat was inspected on 3.10.92 and the license renewed with effect from 31.8.92. It is contended by the counsel for the appellant that as per Section 6 clause 6 and Section 7 of the Kerala Marine Fishing Regulation Act, 1980 the license granted shall be valid for the period specified therein and for such extended period as the authorized officer may think fit to allow in any case and the fishing without license is prohibited. The Forum has relied on the evidence of RW2 the Port Officer that there was no break in the license granted to the assured boat . RW2 has stated that it is the practice that license is renewed after August of every year. The license is renewed after inspection and the license is issued upto 31st August every year. After the above date fee is to be remitted and the Port officer will intimate the date for inspection of the boat. The same used to be a convenient date for the inspecting officer. There was about 2000 boats at Neendakara in 1992 period he has stated. According to him the same is the usual practice and that it is only after 31st August that fee used to be received. It is thereafter the date for inspection will be intimated and after inspection the license will be extended from the date of expiry. It is pointed out by the counsel for the respondent that it can be seen from Ext.A11 that the date of inspection noted in every year is subsequent to 31st August. Evidently the above practice in vogue is the accepted one. As per the evidence of RW2 for none of the boats immediately after 31st August would be having renewed license. RW2 has pointed out at the practical difficulty of inspecting every boat that number about 2000 and issuing license on the date of expiry of the license ie 31st August. The counsel for the respondent has also relied on Section 10(2) of Kerala State Harbour Craft Rules which provides for the annual inspection for the vessels. Therein it is mentioned that in every year in the month of September on a date fixed by the registering officer the vessel shall be brought for inspection and it is thereafter that the license is renewed. In the light of the above evidence we find that the contention of the counsel for the appellant that the vessel was not having a valid license from the date of the accident can not be upheld. 11. Further, as pointed out by the counsel for the respondent the National Commission in M/s Abhilash Jewellary vs New India Assurance Co.Ltd. 2003 I CPR 85 (NC) as specifically held that the ground not taken in the letter of repudiation can not be raised subsequently. The National Commission has held that the above attitude amounted to deficiency in service. In Ext. A1 repudiation letter the only grounds for repudiation taken are the absence of a valid registration and taking the vessel to the sea when adverse weather conditions were notified. Hence we find the above contentions cannot be sustained. 12. Ext.A3 and A4 receipts of payment and Ext.A2 the compromise recorded in the presence mediators between the complainant and the owner of the sunken vessel and the evidence of PW1/complainant and PW2 owner of the sunken vessel do establish the fact that the complainant has paid a sum of Rs.1,90,000/- to the owner of the sunken vessel. The surveyor has also reported that the value of the sunken vessel would be Rs.2,00,000/- after deducting depreciation. Hence the complainant is definitely entitled for the amount of 1,90,000/-. 13. All the same we find that the amount of interest at 18% ordered to be paid appears exorbitant. We scale down the interest to 9%. So also the amount of compensation ordered ie, Rs.5000/- is also not called for as interest has been allowed. Hence the order of the Forum is modified as follows: the appellant would pay a sum of Rs.1,90,000/- to the complainant with interest at 9% from 2.12.92 and cost of Rs.2000/-. 14. The amount will be paid within three months from the date of receipt of this order failing which the complainant would be entitled for interest at 12% from today. The appeal is allowed in part as above. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER ps | 
