1.      Heard Mr. Shridhar Y. Chitale, Advocate, for the complainant and Mr. Vishnu Mehra, Advocate, for the opposite parties. 

2.      Shri Gurukrupa Expo Trade (the Insured) has filed above complaint for setting aside the letter dated 27.03.2014, repudiating its insurance claim and for directing New India Assurance Company Limited (the Insurer) to pay (i) Rs.32500000/-, with interest @18% per annum from 21.08.2012 till the date of payment, as the insurance claim; (ii) Rs.1000000/-, as compensation for mental agony and harassment; (iii) Rs.500000/-, as actual loss; and (iii) any other relief which is deemed fit and proper, in the facts of the case.

3.      The facts as stated in the complaint and emerged from the documents attached with it, are as follows:- 

(a)     Shri Gurukrupa Expo Trade (the Insured) was a registered partnership firm and engaged in the business of sailing mechanized vessel named as “M.S.V. Nar Narayan” Registration No. M.N.V. 2163 for commercial purpose. The Insured obtained a Certificate of Inspection dated 05.10.2011 of the vessel from Mercantile Marine Department, Government of India, Kandla, which was valid up to 31.05.2012. New India Assurance Company Limited (the insurer) was a public insurance company and engaged in the business of providing insurance services to the general public. The Insured obtained “Hull Machinery Insurance Policy-Sailing Vessel” No.2116022210100000005, for the period of 25.02.2012 to 24.02.2013, for coverage of Rs.325/- lacs, of the said vessel, which was a renewal policy as initial policy was obtained on 20.02.2009. At that time, the Insurer obtained a report of fitness from J.B. Boda Surveyors Pvt. Ltd., a licenced insurance surveyor, dated 20.02.2009. 

(b)     The Insured entered into a Launch Hiring Agreement dated 02.08.2012 with M/s. Nour Mowafaq General Trading, L.L.C. for carrying out the full capacity of general cargo from Sharjah (U.A.E.) to Bosaso (Somalia). For voyage of the aforesaid deal, the vessel of the Insured reached Sharjah (U.A.E.) on 28.07.2012. Loading of the cargo in the vessel was started on 01.08.2012 and completed on 14.08.2012. The vessel departed for its onward journey to the port of Bosaso (Somalia) on 16.08.2012 at 10:00 hours of Sharjah time. At about 13:00 hours of Sharjah time, when the vessel was about 10 Nautical miles North of Sharjah Creek, the crew members of the vessel sensed smoke in the cargo compartment of the vessel and they immediately alerted the Captain, who switched off the engines of the vessel. The crew members also informed the Captain that an explosion had occurred in the cargo stowage area and the wooden boundary structure. Noticing the gravity of the situation, the Captain instructed all the crew members of the vessel to wear their life jackets, launch the life raft and abandon the vessel, which they did. On 16.08.2012 at about 18:00 hours of Sharjah time, the vessel sank in deep sea water, causing inter alia total loss of the cargo boarded in the vessel. The Captain and the crew members saved their life.

(c)     The Insured informed the Insurer about the incident of submergence of the vessel and loss caused due to it, on 17.08.2012, requesting to register the insurance claim. Simultaneously the Insured forwarded photographs and video clip relating to the incident and other relevant documents to the Insurer. The Insured also informed State Bank of India, Bhuj Branch (the financer) on 19.08.2012 and Superintendent of Customs, Old Port Authority, Kutch, Port Officer, Bandar Road, Kutch, Custom Officer, Mandvi, Kutch, Immigration Officer and Police Sub-Inspector, Mundra Wing, Kutch, Mercantile Marine Department, Gandhidham, Kutch, about the incident, vide letter dated 21.08.2012. The Insured submitted Insurance Claim of Rs.325/- lacs before opposite party-3 on 23.08.2012.  

(d) The Insurer appointed Uday Murty, Dubai, as the surveyor for survey and assessment of loss. The Insured, through emails dated 25.08.2012 and 27.08.2012, requested the Insurer to instruct the surveyor to sell the wreck and settle its claim as the Insured was not in financial position to shift the wreckage of the vessel. The Insurer, vide email dated 28.08.2012, informed that Mr. Rajkumar Hargunani would be in touch with M/s. W.K. Webster, Surveyor for deciding the disposal of the wreckage of the vessel. Thereafter, there were exchange of several emails between the Insured and the Insurer. However, settlement of the claim was delayed. The Insured therefore engaged M/s. Globe Apex Management Consultants as its shipping consultant to oversee and assist in pursuing its insurance claim, who also pursued the claim. However, there was no satisfactory response from the side of the Insurer for about six months.

(e)     The Insured gave a legal notice dated 19.03.2014, for settlement of its claim at the earliest. When the notice was received by the Insurer, they repudiated the claim through letter dated 27.03.2014, on the grounds that the Insured had violated (i) Circular of Mercantile Marine Department dated 31.03.2010, (ii) The condition of Certificate of Inspection of the vessel; and thereby breached the warrantee. (iii) In the proposal form dated 24.02.2009, had stated that the vessel would be laid during mansoon season i.e. from July to September but violated it. (iv) Certificate of Inspection was valid up to May, 2012 and on the date of incident, it had expired. (v) The Insured concealed the fact that its vessel was hijacked by Somali pirates in the 2010.  

(f)      The Insured filed above complaint on 02.01.2017, alleging deficiency in service. The Insured stated that Mercantile Marine Department vide Circular dated 31.03.2010 prohibited sailing of the vessel to south or west of line joining Salalah and Male. While vessel of the Insured was sailed from Sharjah (U.A.E.) to Bosaso (Somalia), which is not in the south or west of line joining Salalah and Male. The incident took place at 10 Nautical miles north of Sharjah Creek and even it has not touched the boundary of Somalia. The Insured neither violated the Circular dated 31.03.2010 nor condition of Certificate of Inspection. Trading Warrantee in the policy was that vessel not to be employed (a) On the west coast of India, the south coast of Tamil Nadu from Kanyakumari up to and including gulf of Mannar, Pakistan, Maldives, Lakshadweep and west coast of Sri Lanka from 1^st June to 7^th June. While in present case, loading was started from 01.08.2012. Fact of hijacking of the vessel on 25.03.2010 was not a material fact as by Circular dated 31.03.2010, ban for sailing of vessel to south or west of line joining Salalah and Male has been imposed. In Sharjah (U.A.E.), the mansoon season is from December to March. The vessel of the Insured left India shores on 21.12.2011 and was on voyage outside of India in May, 2012, when Certificate of Inspection expired, as such, under Section 421(3) of Merchant Shipping Act, 1958, certificate is deemed to be extended till its arrival in India. The claim has been repudiated on irrelevant considerations.  

4.      The Insurer filed its written reply on 27.03.2017, in which, issue of policy in question for the period of 25.02.2012 to 24.02.2013 and sinking of the vessel of the Insured on 16.08.2012, have not been disputed. The Insurer stated that as soon as the Insurer got information of the incident on 17.08.2012, Quest Marine L.L.C. was appointed as the local surveyor on 22.02.2016. The surveyor inspected the said vessel on 24.08.2012 and 25.08.2012 and recorded statements of the skipper and the crew persons. The skipper of the vessel informed that the vessel had made two voyages from U.A.E. to Somalia before the incident. On the date of incident, the vessel caught fire before sinking near Sharjah port. The surveyor submitted his Final Survey Report dated 06.12.2012. The Insurance Policy contains Trading Warrantee 1B providing that warranted vessel not to be employed on the west coast of India, on the south coast of Tamil Nadu from Kanyakumari up to and including gulf of Mannar, Pakistan, Maldives, Lakshadweep and west coast of Sri Lanka from 1^st June to 15^th August (both dates are inclusive). Director General of Shipping, Government of India issued Circular No.35-NT(02)/2010 dated 30.03.2010, prohibited sailing of vessel “south or west of line joining Salalah and Male”. Violation of prohibitory order of statutory authority was illegal. In the proposal form dated 24.02.2009, the Insured had acknowledged for the warrantee that the vessel would be laid during 1^st, July to 30^th, September (both dates are inclusive) but voyage was continued during this period by the Insured. The vessel of the Insured was hijacked by the pirates in the year, 2010. The Insured has concealed this material fact at the time of obtaining renewal policy. Certificate of Inspection was valid up to May, 2012 and had expired on the date of incident. As per Certificate of Inspection “dry docking inspection” and complete “inspection of engine” were due on 26.01.2012. Terms and Conditions of the Institute Time Clauses Hull and Institute Voyage Clauses Hulls are applicable to “Hull Machinery Insurance Policy”. Violation of express and implied warrantee discharges the Insurer from liability under Section 35(3) of Marine Insurance Act, 1963. The surveyor found that the cargo was fully loaded i.e. all vacant spaces within the four holds were completely packed (bulkhead to bulkhead/floor to roof). Even the bulbs were removed from its light fittings, in order to utilize that space for loading. There was no space left for man entry, since all the holds were fully packed. After packing all the holds, the hatch cover wooden boards were placed in position and cargo loaded on the main deck as well. The cargo contains 16800 packets of sugar. These packets were highly inflammable. Engine room temperature used to be very high. Bulkhead to bulkhead loading made temperature more high, which was proximate cause of fire. The Insured has committed un-seaworthiness malpractice and was guilty for committing negligence under Section 41 of the Marine Insurance Act, 1963, although under clause-13 of the policy, it was its duty to take all steps to minimise any loss or misfortune. The Insured has violated above expressed warrantees, as such, insurance claim has been repudiated. Prior to the letter dated 30.08.2016, the Insured did not raise issue that policy documents was not received. There was no deficiency in service on the part of the Insurer. The complaint is liable to be dismissed.

5.      The Insured filed Rejoinder Reply on 04.07.2018, in which, the facts stated in the complaint were reiterated. The Insured filed Affidavit of Evidence, Affidavit of Admission/Denial of document of Dhirajlal Valji Thakkar and documentary evidence. The Insurer filed Affidavit of Evidence of Pankaj Agrawal, Administrative Officer, Affidavit of Admission/Denial of document of Suman Gupta, Deputy Manager and documentary evidence. Both the parties have filed written synopsis.

6.      I have considered the arguments of the counsel for the parties and examined the record. The Insurer repudiated the claim for violation of warrantees. Section 35(3) of Marine Insurance Act, 1963 discharges the Insurer from liability under policy for violation of express and implied warrantees. The opposite parties also relied upon the judgment of Supreme Court in Rajkumar and Brothers (Impex) Vs.Oriental Insurance Company Limited, (2020) 4 SCC 364.

7.      One of the ground is violation of Trading Warrantee-1(B) of the policy, which provides that vessel not to be employed (a) On the west coast of India, the south coast of Tamil Nadu from Kanyakumari up to and including gulf of Mannar, Pakistan, Maldives, Lakshadweep and west coast of Sri Lanka from 1^st June to 15^th August (both dates are inclusive). In proposal form dated 24.02.2009, the Insured agreed for laying down the vessel during 1^st, July to 30^th, September (both dates are inclusive). Such condition has been provided under Clause-22 of “Institute Time Clauses Hulls”. Circular No.35-NT(02)/2010 dated 30.03.2010, issued by Director General of Shipping, Government of India, prohibited sailing of vessel “south or west of line joining Salalah and Male”.

8.      In paragraph-46 of the complaint, the complainant has stated that the vessel left the Indian shores on 21.12.2011 and reached Salalah Port on 4.1.2012.  Thereafter, the vessel, after loading cargo at Salalah, proceeded to Quwait on 17.03.2012 and then left for Dubai port on 20.4.2012 and reached Dubai port on 25.4.2012.  The vessel remained in Dubai till 20.5.2012 after which it proceeded to Mogadishu Port and returned to Dubai Port on 23.7.2012.  On 28.7.2012 the vessel left Dubai Port for Sharjah and remained in Sharjah till 16.8.2012 after which it left Sharjah Port on 16.8.2012 on which date the vessel sank as aforestated.

9.      The Insured has stated that although the vessel of the Insured was started voyage from Sharjah (U.A.E.) for Bosaso (Somalia), but the incident took place at 10 Nautical miles north of Sharjah Creek. At the time of incident, there was no violation of the Circular dated 30.03.2010. A perusal of the map shows that Salalah is the port in Oman. Somalia is in south of Salalah, Oman. The surveyor recorded statements of the skipper and the crew persons, who informed that the vessel had made two voyages from U.A.E. to Somalia before the incident. The complainant admitted that his vessel remained in Arabian countries from 04.01.2012 till the date of incident. As such violation of warrantee is admitted and proved. Repudiation letter does not suffer from any illegality.      

O R D E R

In view of aforementioned discussion, the complaint is dismissed.