PER SUBHASH CHANDRA

1.      This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) challenges the order dated 11.05.2012 of the State Consumer Dispute Redressal Commission, Gujarat, Ahmedabad (in short, the ‘State Commission’) in consumer complaint no. 17 of 2006 allowing the complaint and directing payment of Rs 20,99,261/- with compensation as interest @ 9% p.a. from the date of complaint (12.06.2006) along with Rs 30,000/- towards delay in settlement of claim and mental harassment. This order is impugned before us praying to set aside the impugned order, to direct the State Commission not to take any action till disposal of this Appeal and for other relief as deemed fit and proper in the facts and circumstances of the case.

2.      The relevant facts of the case, in brief, are that the Appellant had issued a Marine Hull Insurance Policy ensuring the risk of the Respondent’s dumb barge “DB Amarnath” for the period 22.07.2004 to 21.07.2005 for Rs 30 lakh. On 27.01.2005 the barge sank near Ruchi Jetty, Jamnagar. On intimation, Appellant appointed M/s Transocean Marine & General Survey Agencies to survey and assess the loss which was undertaken by Ashok Manohar Gawarikar, a qualified Category ‘A’ Surveyor under Section 64 UM of the Insurance Act, 1938. Respondent clarified to the Surveyor that the exact cause of ingress of sea water could be determined only after inspection of the dumb barge on hard. Certain documents were sought on 31.01.2005 which was provided on 06.05.2005 after reminder on 20.04.2005. The Surveyor’s report dated 13.06.2005 on the basis of his inspection and the report of M/s Govern Industrial Surveyors relating to measurement of the thickness of the bottom plates by ultrasound machine stated that based on visual and inherent damage on its body, the barge did not sustain any external impact or damage to substantiate the Respondent’s contention that the barge collided with the mother vessel leading to cracking of the transom plate from the welding joint. According to the Surveyor, most of the plates of the barge had corroded due to continuous use and the plates were thinned down considerably to 50% of their original thickness at the damaged area. It was opined that the Respondent’s assessment of the cause of sinking was incorrect since the relative motions of heave, pitch and roll of the barge and the mother vessel during loading operations (“ranging”) was anormal phenomenon and there were adequate rubber fenders to absorb the impacts. The conclusion of the Surveyor was that the cause of ingress of sea water into the barge was due to fatigue failure of the welding joints and therefore the loss was not covered under the Policy. Appellant repudiated the claim vide letter dated 09.08.2005 on the basis of this report. Respondent’s complaint (No. 17/2006) before the State Commission was decided on contest holding the Appellant herein liable for deficiency in service and directed payment of Rs 20,99,261/- with interest @ 9% p.a. from the date of complaint (12.06.2006) with Rs 30,000/- for delay in claim settlement and mental harassment.

3.      This order is impugned before us on the grounds that (i) it was contrary to well settled law and material and evidence on record and therefore arbitrary; (ii) the proximate cause of the sinking was not perils of sea but fatigue failure and normal wear and tear and the impugned order had recorded the reason as collision of the barge with the mother vessel resulting in separation of old welding on the transom plate which was contrary to the Surveyor’s report; (iii) the Surveyor had conclusively proved that the thickness of the bottom plates had eroded due to continuous use as established by the ultrasonic machine used to measure the thickness of the plate while the State Commission’s conclusion was based on surmises and conjectures; (iv) the State Commission had exceeded its jurisdiction to make a roving enquiry and had failed to appreciate that the covered risk under the Policy was one of ‘Perils of Sea’ and not ‘Perils on Sea’ resulting from any accident which necessitated a separate Exclusion Clause; (v) Clause 4 had been incorrectly construed by the State Commission to conclude that any damage under any circumstances were covered under the Policy since Perils of Sea are required to be strictly interpreted under the Insurance Law as admittedly the sinking of the barge was not a fortuitous event; (vi) the State Commission erred in departing from the settled proposition of law that a Report of a Surveyor under Section 64UM could not be disregarded and relying upon the report of one Anthony Fernandes as Expert Evidence since he was neither a qualified Surveyor, nor visit the site or inspect the barge and was, moreover, a biased witness whose report did not give any opinion as regards the cause of loss but merely critiqued the Surveyor’s report. It is contended that no deficiency in service had been established by the Respondent. Reliance has also been placed on this Commission’s judgment in S.S. Cold Storage India Pvt. Ltd. Vs. National Insurance Co. Ltd., IV (2011) CPJ 45 (NC).

4.      Per contra, it is the case of the Respondent that the insured vessel, DB Amarnath while being towed after being loaded with coal began to list to aft side due to ingress of sea water and despite efforts to pump out the water and summoning of two more tugs to assist, got grounded opposite Ruchi Jetty and thereafter totally submerged due to high tide on 28.010.2005. The initial survey report concluded that “the vessel got damaged due to colliding/ranging” with the mother vessel and transom plate cracked from welding joint resulting in ingress of water and sinking of the vessel. The claim under the Policy was repudiated on 09.08.2005 on the probable cause that wear and tear or “fatigue failure” of the welding joints and metal might have contributed to the loss and that “fatigue failure” was not covered under the Perils of the Sea Marine Hull Policy. It is contended by the respondent that the vessel’s bottom construction was certified as double, having 6 buoyancy tanks under double water. The barge was certified as seaworthy which included major components like hull, sides, sides shell, bulk heads and structural members. The barge was also certified for sea service and the certificate dated 07.07.2004 stated that “the barge is suitable for sea service and it is staunch and sturdy to withstand usual sea perils associated with inland water and, therefore, the risk is insurable”. It was contended on behalf of the respondent that Clauses 4.1 and 4.1.1 of the Policy covered loss caused by perils of the seas and Clause 4.2.1 provided for coverage in cases of accidents in loading, discharging or shifting cargo or fuel, provided such loss or damage did not result “for want of due diligence by the assured”. It was also argued that Exclusion Clauses 7.4 to 7.4.5 were also applicable. As per the Respondent, the Surveyor’s report dated 31.01.2005 did not explain the cause of ingress of water with certainty and stated that it could be done only on inspection on land. The next inspection was done on 13.06.2005. However, without following the ultrasound gauging procedure, the thickness of the bottom plate was assessed and the opinion in the report stated that there were a number of probable causes and that “fatigue failure” of the welding joints and metals ‘might have contributed to the loss’. It is contended that marine insurance does not recognize “fatigue failure” which has also not been held as a definite cause for the loss. Respondent relies upon the expert opinion of Anthony Fernandes a Marine Engineer who has also confirmed that there was no concept of “fatigue failure” and in whose opinion that the ultrasound gauging/survey could not have been done when the barge was on hard. It was also alleged that the Surveyor of the Appellant, Ashok Gawarikar had not visted Jamnagar on 29.01.2005 though he signed the report and that no ultrasound gauging was done as per affidavit of Dhimant A. Mankad. According to the Respondent, the cause of the sinking of the barge was collision with the mother vessel, D.B. Ambassador while in voyage resulting in sudden damage although it was certified as sea worthy. It was contended that the Appellant had not been able establish want of due diligence on part of the insured, the burden of which was on the Appellant. Only “fatigue failure” as a probable cause had been stated. Hence, deficiency in service due to breach of terms and conditions was alleged and it was urged that the order of the State Commission be upheld.

5.      The State Commission considered, inter alia, the following contentions of the Appellant: (i) territorial jurisdiction to be Maharashtra since the policy was obtained in Mumbai which was rejected since premium stood paid through the Mumbai branch of the Appellant Insurance company in Jamnagar; (ii) Exclusion Clause was held to not apply in view of the Appellant herein not having established that there was negligence on part of the Respondent at the time of loading or shifting of cargo and the Surveyor’s conclusion that loss claimed was not on account of a collision; (iii) the loss was not on account of the barge not being sea worthy since a sea worthiness certification was issued prior to loading; (iv) the claim towards expenses of Rs 3,74,261/-  was accepted since the assessment of repair cost by the Surveyor was for Rs.17,25,000/-. The State Commission also considered the evidence of Anthony Fernandes as an expert opinion with regard to the ground of “fatigue failure” advanced by the Appellant and held that it did not apply.

6.      The Respondent’s claim for loss was repudiated on the basis of the survey report of M/s Transocean Marine and General Survey Agencies vide letter dated 09.08.2005 and stated as follows:

We have studied the survey report and on the basis of the survey report we have to state as under:

1. The Insured has in his letter dated 31^st May 2005 have in the allegation for the cause of loss stated the following:

“The sinking of the barge was due to uncontrolled flooding of sea water. The uncontrolled flooding of the sea water occurred due to the fracture of a weld in the shell plating of the barge the fracture of the weld occurred due to impact of the barge and the mother vessel MV Dubai Ambassador while the barge was alongside during the loading operations. The impact causing the fracture occurred due to the relative motions of heave pitch roll of the barge and the mother vessel during loading operations of the cargo.

The proximate cost of loss of our barge DB Amarnath was sinking, a peril of the sea which is an insured peril clause under clause 4.1 .1 of the Institute Port Risk Clause 20.07.87.

2. The surveyors in their reports have given the following opinion on the allegation of cause of loss-

A fracture or a crack in metal surface or metal plates joints in this case welded joints occur due to variable probable causes. These causes can be attributed to either to external impact or to the wear and tear or fatigue failure. In our opinion to develop a crack or fracture in metal surface or weld joints require a direct heavy impact in perpendicular direction. Similar damages can take place if higher impact force is applied in shear. To develop crack by impact to the vessel following could be the probable causes:

1.Collision with any moving or stationary object

4.Fall of any heavy object on the vessel

Based on the tandel’s statement neither of the above-mentioned causes was given in the allegation of cause of loss. The allegation of cause of loss has mentioned about ranging of insured vessel with fastened mother vessel. The inspection and investigation of vessel has revealed that the sea water has entered in the vessel from bottom side.

In our opinion the vessel will not sustain damages due to ranging. The Insured vessel was having fenders and was fastened to the mother vessel. The impact due swell gets muffled and can cause maximum dents or bents in the upper part of hull shells/plates.

In the circumstances the Surveyors have opined based on the balance of probabilities that cracks/fractures developed in vessel due to impact by the above 7 causes is ruled out and fatigue failure of the welding joints and metal might have contributed to the loss.

Based on the above survey report where it is clearly mentioned that the most probable cause of loss is Fatigue Failure and as Fatigue Failure is not covered under Perils of the Marine Hull policy.

Hence, we are declining our liability for this claim under this policy.

(Emphasis supplied)

7.      It is the case of the Respondent that the cause of the ingress of sea water is due to the fracture in the welding of the plates at the time of loading due to collision with the mother ship which was a covered peril. The contention of the Surveyor that ‘fatigue failure’ was the cause is disputed since it is not mentioned in the policy and the barge had been certified as seaworthy for insurance coverage which would have considered this issue, if at all. It is also contended that the Surveyor had not established that the cause of the ingress of sea water was fracture of welding joints definitively but as a ”probable” cause. No documentary evidence for “fatigue failure” was brought on record. Hence, the repudiation was based on the Surveyor’s report which was speculative and therefore not admissible.

8.      In this case the issue which falls for consideration is whether the repudiation of the claim based on the Surveyor’s report was valid.

9.    Appellant has repudiated the claim on the basis of the Surveyor’s report. The report of M/s Transocean Marine and General Survey Agencies (Surveyor) states as under:

7. Based on the independent inspector’s report and thickness testing which was carried out in the presence of insured’s representative, it is observed that most of the plates of the barge/ vessel were thinned down. At damaged area they were thinned down to considerable level of up to 50% of original thickness.

8. The insured have alleged that the cause of loss is attributed to ‘uncontrolled flooding of the barge occurred due to fracture of a weld in the shell plating of barge’. The fracture of the weld occurred due to impact of the barge and the mother vessel MV Dubai Ambassador whilst the barge was alongside during the loading operations. (The impact causing the fracture occurred due to relative motion of heave pitch roll of the barge and the mother vessel during the loading operations of the cargo). In our opinion, this is a normal phenomena and is known as ranging. To absorb impacts due to ranging, enough rubber fenders were provided to the barge. On the date of incident the sea condition was reported to be normal. Insured had concluded that the sinking of the barge was fortuitous and accidental in nature and was proximately caused by an insured peril under the policy of insurance. In our opinion, ranging damages cannot be considered a fortuitous in nature.

9. The insured had alleged that ‘proximate cause of loss of our barge D B “Amarnath” was sinking, a peril of the sea which is an insured peril clause under 4.1.1 of Institute Port Risk Clause 20.07.87. In our opinion, the word peril denotes that something fortuitous and accidental is envisaged; incursion of seawater into the vessel does not necessarily amount to a loss by perils of the seas. So that when due to old and leaking condition of a tank, sea water gained entry. This cannot be classed as loss by perils of the seas. The policy only covers against accidents which may happen, not against events which must happen. The terms does not cover every accident or casualty which may happen to the subject matter insured on the sea, It must be a peril of the sea.

10. Based on the available thickness readings of the hull plates subsequent to loss, balance of probabilities, we are of the considered opinion that out of number of probable cause, fatigue failure of the welding joints and metal might have contributed to the loss.

…… metal components and structures subjected to variable or repeated loads may fail in service, even though they were capable of withstanding higher loads if the loading were of a ‘static’ nature. Such a failure which consists of formation of a crack or cracks due to varying load is known as “fatigue”. The “fatigue failure” of metals is therefore defined as formation of crack or cracks as a result of the repeated application of loads, each of which is insufficient by itself, to cause normal static failure. The load responsible for “fatigue” are generally not large enough to cause material yielding. Instead, failure occurs after certain number of load or stress fluctuations.

18. All the vessels normally experience various stressors during voyage due to rolling, pitching, surging, swaying and yaw motion in sea. She experiences pressures, jolt, vibration during berthing, voyage and unberthing. Stresses are experienced during loading in barge and unloading due to internal shifting, dropping, pushing, dragging of cargo by use of improper handling aids, equipment and cargo handling method.

19. Fatigue failure or fracture do not occur due to single act, it occurs due to number of acts over a long period having repetition cycle.

[Emphasis supplied]

10.  In the instant case, the Surveyor’s report has ascribed the loss to “fatigue failure” of the plates on the basis of an ultrasonic assessment of the thickness of the bottom plates of the barge. While this finding has been contested by the Respondent, it is also relevant that the barge had been certified as seaworthy at the time of insurance. It is the contention of the Appellant that the barge was certified for ‘Perils of the Sea’ and not ‘Perils on Sea’. It is contended by the appellant that the two perils are different since the insurance taken by the respondent was for the loss incurred due to ‘perils of the sea’ and in the present case the loss was due to normal wear and tear and fatigue failure, which does not come under the perils of the sea. The claim of the Respondent that the barge sank due to ingress of water due to collision of the barge with the mother ship is not supported by any report to this effect by the mother ship as mandated by the Rules. It is not in dispute that the barge sank due to the ingress of water from the bottom where a hole opened up due to fracture in the welded plates. The cause of the sinking of the boat has, however, not been categorically ascribed to any one cause by the surveyor who has only projected a probable cause.

11.      According to the Policy in force, the risk covered was:

4.1     This insurance covers loss of or damage to the subject matter insured caused by:

4.1.1  perils of the seas, rivers, lakes or other navigable waters;

4.1.2 fire, lightening, explosion;

4.1.3 violent theft by persons from outside the vessel

4.1.3 violent theft by persons from outside the vessel

4.1.4 jettison

4.1.5 piracy

4.1.6  breakdown of or accident to nuclear installations or reactors

4.1.7  contact with aircraft or similar objects, or object falling therefrom, land conveyance, dock or harbour equipment or installation.

4.2     This insurance covers loss of or damage to the subject matter insured caused by

4.2.1  accidents in loading discharging or shifting cargo or fuel

4.2.2  bursting of boilers, breakage of shafts or any latent defect in the machinery or hull

4.2.3 negligence of Master, Officers Crew of Pilots

4.2.4  negligence of repairers or charterers provided such repairers or charterers are not an assured hereunder

4.2.5  barratry of Master, Officers or Crew provided such loss or damage has not resulted from want of due diligence by the assured, owners or managers.

[Emphasis supplied]

It also provided for Exclusions in clause 9.3.

12.    It was pointed out by the Surveyor that the stevedores, M/s United Shippers Ltd., Jamnagar, had held M/s Shakti Clearing Agency Pvt. Ltd., responsible for damage and loss of coal which was washed away from the sunk vessel since the latter had provided the barge for transportation of cargo from ship to shore and vice versa. The Surveyor also held that “the barge was landed with 300 MT (net) coal for transit from anchorage to jetty. The GRT of the barge is 259.09 tons. Considering the stowage factor of coal, the barge was not considered overloaded at the time of incident.”

13.    The Appellant relied upon the following judgments during oral submissions:

(i)     Bajaj Allianz General Insurance Co. Ltd., and Ors., vs The State of Madhya Pradesh – Civil Appeal nos. 2366 of 2020 (Arising out of SLP (C) nos. 5422 of 2019 (Supreme Court of India);

(ii)     W.Stewart vs The New Zealand Insurance Co. Ltd., Suit no.357 of 1919 (Calcutta High Court);

(iii)    J.M.F. Sea Foods, Alleppey and Ors., vs National Insurance Co. Ltd., Alleppey – A S No.162 of 1987 (Kerala High Court); and

(iv)    The New India Assurance Co. Ltd., vs Sesa Goa Ltd., (First Appeal no.123 of 2013 and Cross objection no. 20 of 2013 in First Appeal no.123 of 2013 (High Court of Bombay at Goa)

14.    It was contended by the appellant that the respondent did not challenge the Surveyor’s report and that while construing a contract of insurance, it was not permissible for a Court to substitute the terms of contract and the contract should be interpreted in a manner that would best express the intention of parties. It was also argued that the insurance covered the risk of “perils of the seas” which refers to fortuitous accidents or casualties of the sea but does not include the ordinary action of the wind and waves. It was argued that it was well settled that it is not every loss or damage of which the sea is the immediate cause which is covered by these words and it does not protect against natural and inevitable action of winds and waves which result may be described as ‘wear and tear’. It was argued, on the basis of W. Stewart (supra) and J.M.F. Sea Foods (supra), that there must be some ‘casualty’, something which could not be foreseen, as one of the necessary accidents of adventure.  It was further argued that ‘maritime perils’ means the perils consequent on, or incidental to, the navigation of the sea. Perils of the sea, it was argued, did not indicate the ordinary winds and waves.

15.    The Respondent has relied upon the ‘Condition and Valuation Survey Report’ dated 07.07.2004 undertaken by H G Joshi and Associates, Marine and Mechanical Consultant, a Valuer authorized by the Ministry of Shipping, to ascertain the conditions of the barge for valuation purpose for insurance. The Valuation Survey Report had noted that:

The structural condition of the barge was good. The barge has been fabricated from steel plates and angles. The wing and double bottom plates were inspected and found strong to withstand sea peril. The name of the barge and registered numbers were painted/ welded at the transom. There was one anchor with adequate steel rope provided, one portable bilge pump was provided with suction line. There are ring buoys, life jackets provided.

According to our inspection, the major components like hull, shell, bulk heads, and structural members, were found in good condition without rust. All compartments were found dry and clean. In our opinion, the barge is suitable for sea services and it is staunch and sturdy to withstand usual sea perils associated with inlands water and therefore RISK IS INSURABLE.

[ emphasis added ]

16.   It was argued that it was on this basis that Marine Hull Proposal Form was submitted by the Respondent to the Appellant for insurance for a sum of Rs.30 lakh for the purpose of transportation of general cargo from shore to ship and vice versa at Bedi Group of Ports. Accordingly, the policy in question was issued.

17.    The respondent contended that as per “The Lectric Law Library’s Lexicon” on Perils of Sea, the peril was described as ‘Fortuitous accident or casualties, peculiar to transportation on a navigable water, such as stranding, sinking, collision of the vessel, striking a submerged object or encountering heavy weather or other unusual forces of nature’. It was also argued that the term ‘Collision’ has also been defined to be a Peril of the Sea. However, as per this definition, collision is a ‘peril of the sea’ only when there was negligence on the part of the other vessel.

18.   Hon’ble Supreme Court in the case of Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & Anr. in CA No. 4487 of 2004 dated 24.08.2009 (2009) 8 SCC 507, has laid down that under section 64 UM of the Insurance Act, 1938, the appointment of a surveyor is a mandatory requirement and his report has to be the basis on which the insurance company has to proceed in cases where the claim exceeds Rs.20,000/-. In New India Assurance Co. Ltd. Vs. Pradeep Kumar (2009) 7 SCC 787, the Hon’ble Apex Court has further laid down that the report of the surveyor is not so sacrosanct and that it cannot be departed from, provided there are cogent reasons to establish perversity in the report of the surveyor.  The surveyor’s report states that:

7.       Based on the Independent Inspector's report and thickness testing, which was carried out in the presence of insured's representative, it is observed that most of the plates of the barge/vessel were thinned down. At damaged area they were thinned down to considerable level of up to 50% of original thickness.

8.       The Insured have alleged that the cause of loss is attributed to Uncontrolled flooding of the barge occurred due to fracture of a weld In the shell plating of barge'. The fracture of the weld occurred dust to impact of the barge and the mother vessel M V DIBAIAMBESSADOR whilst the barge was alongside during the loading operations. (The Impact causing the fracture occurred due to relative motions of heave pitch roll of the barge and the mother vessel during the loading operations of the cargo) In our opinion, this is a normal phenomenon and is known as ranging. To absorb impacts due to ranging, enough rubber fenders were provided to the barge. On the date of incident the sea condition was reported to be normal, insured had concluded that the sinking of the barge was fortuitous and accidental in nature and was proximately caused by an insured peril under the policy of Insurance. In our opinion, ranging damages cannot be considered a fortuitous in nature.

9.       The insured had alleged that ‘the proximate cause of loss our barge D B "AMERNATH" was sinking a peril of the sea which is an insured peril clause under 4.1.1 of Institute Port Risk Clause 20.07.87". In our opinion, the word peril denotes that something fortuitous and accidental is envisaged: Incursion of seawater into the vessel does not necessarily amount to a loss by perils of the seas. So that when due to old and leaky condition of a tank, sea water gained entry. This cannot be classed as loss by perils of the seas. The policy only covers against accidents which may happen, not against events which must happen. "The term does not cover every accident or casualty which may happen to the subject matter Insured on the sea. It must be a peril "of the sea.

10.     Based on the available thickness readings of the hull plates subsequent to loss, balance of probabilities, we are of the considered opinion that out of number of probable causes, fatigue failure of the welding joints and metal might have contributed to the loss.

19.  The Surveyor’s report under Section 64 UM of the Insurance Act, 1938 though essential as laid down in Sri Venkateswara Syndicate (supra) must necessarily be categorical in its findings. In view of the Supreme Court holding in Pradeep Kumar (supra) that a report of a Surveyor cannot be so sacrosanct that it cannot be departed from, the Appellant’s conclusion based on its Surveyor’s report needs reconsideration. The State Commission has held that:

The surveyor has given the reason of fatigue failure, which cannot be considered to be sufficient reason in such case and in the circumstances for the damages caused to the vehicle the insurable interest of the applicant continues and thus the applicant is entitled to recover the expenses incurred. Contrary to the opinion by the said expert there is no rebuttable evidence by any other expert brought on the records, and in such circumstances the opponent insurance company has intentionally caused delay in settling the claim of the applicant for one or the other reasons, apparently. Thus, such arguments by the opponent cannot be accepted that the claim of the applicant falls within the clause of the insurance policy and the crew members of D B Amarnath have not taken due care therefore that is due to lack of diligence the application by the applicant and the claim deserves to be dismissed. Therefore in reference to the issue No. 2 the applicant is entitled to the amount of Rs.20,99,261/- as claimed in their application as per the opinion of expert, and in the circumstances taking into consideration the documentary evidences, affidavit it and interrogatory and the cross examination all facts are taken into consideration and it is not proved that the case of the appellant falls in the exemption clause of the policy, therefore the reply to the issue no.2 is given in the affirmative and the issue no.3 in the negative, and the following final orders are passed.

20.   On the basis of this finding, the State Commission has ordered as under:

The Consumer Complaint No. 17/2006 is allowed and the opponent insurance company is ordered that, in exercise of the Marine Al Policy No. 2004/0000399/00 of the applicant-complainant on the issue of defect in services by the opponent the demand of the applicant for 12.06.2006 to be paid by the opponent as insurance cover compensation amount. The applicant complainant will be entitled to recover Rs.30,000/- towards the delay in claim settlement and mental harassment, other than these the additional demands by the applicant are hereby dismissed.

21.    The State Commission has also relied upon the report of Anthony Fernandes who is admittedly not an IRDA registered surveyor. It is, however, evident from the report that the cause of the sinking of the barge is not based on a categorical finding for the ingress of the sea water. Repudiation of the insured’s claim on such a ground therefore, cannot be sustained.

22.   The Policy’s Exclusion Clauses do not mention “fatigue failure” as one of the exclusions. From the record and the submissions made it is evident that the welding of the plates fractured resulting in ingress of sea water. Even if the plates were “fatigued” due to corrosion as concluded by the Appellant relying on the report of the Surveyor, the cause of sinking of the barge is not categorically established. It is not in dispute that the barge was loaded and thereafter tugged when the accident occurred. Therefore, the sinking cannot also be considered to have happened while being loaded as claimed by the Respondent although it occurred thereafter. In the absence of the Surveyor not having made out a categorical case for the sinking of the barge, the reliance of the Appellant on this report to repudiate the claim cannot be sustained.

23.  In view of the foregoing discussion, we do not find reasons to interfere with the impugned order of the State Commission. The appeal is dismissed. Pending IAs are also disposed of with this order.