Partly allowed

Trans Asia Services Pte Ltd. v. the Oriental Insurance Co.Ltd.

Kerala HC17 Feb 2022WP(C)/8567/2012

Case brief

AI extract

What is this about?

The Court set aside the rejection order (Ext.P6) and directed the respondents to reconsider the insurance claim within three months after giving the petitioner an opportunity of hearing based on the survey report (Ext.R1(a)).

What did the court decide?

Ext.P6 set aside; direction to respondents to reconsider matter within three months after giving petitioner hearing.

Trans Asia Services Pte Ltd. Vs the Oriental Insurance… — Consumer Protection | Kerala HC (2022)

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WP(C) NO. 8567 OF 2012

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943
WP(C) NO. 8567 OF 2012

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PETITIONER/S:

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TRANS ASIAN SHIPPING SERVICES PTE LTD.
60 ALBERT STREET,NO.13-09,OG ALBERT
COMPLEX,SINGAPORE 189969 THROUGH ITS HOLDING
COMPANY,TRANS ASIAN SHIPPING SERVICES (P) LTD, TRAN
ASIA CORPORATE PARK,SEA PORT AIRPORT
ROAD,CHITTETHUKARA,KAKKANAD-682037,ERNAKULAM
DISTRICT,KERALA,REP:BY ITS MANAGING
DIRECTOR,SHRI.JOHNSON MATHEW,M.D.,AGED 56 YEARS,
S/O.LATE MATHEW KODINJOOR HOUSE,PADAMUGAL,KAKKANAD.
BY ADV SRI.P.CHANDRASEKHAR

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RESPONDENT/S:

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1 THE ORIENTAL INSURANCE CO.LTD. REGISTERED AND HEAD OFFICE,A-25/27,ASAF ALI ROAD,NEW DELHI-110 002.

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2 THE REGIONAL MANAGER M/S.ORIENTAL INSURANCE CO.LTD,REGIONAL OFFICE,METROPLAZA,NORTH RAILWAY STATION ROAD,ERNAKULAM,COCHIN,PIN-682018.

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3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO.LTD,DIVISIONAL OFFICE,NO.II,RUKIYABAGH,RAVIPURAM,M.G.ROAD,COCHIN68206.

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4 BRANCH MANAGER ORIENTAL INSURANCE COMPANY LTD,BRANCH OFFICE NO.I,DEEPTHI BUILDING,M.G.ROAD,COCHIN-682016. BY ADVS.

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WP(C) NO. 8567 OF 2012

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SRI.GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C) NO. 8567 OF 2012

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P.V.KUNHIKRISHNAN, J.

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W.P.(C)No.8567 of 20 12

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Dated this the 17 th day of February, 2022

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JUDGMENT

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This writ petition is filed with the following prayers:

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“i) Call for the records leading to Exhibits P3, P4, P7 and P10 and quash the same by issuing a writ of certiorari;

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ii) Issue a writ of mandamus or any other writ order or direction directing the respondents to consider the claim of the petitioner afresh and release and pay to them the insurance claim amount of Rs.67,22,883.25 as assessed by the Surveyor as per Exhibit P2 Survey Report, without delay, forthwith, along with interest @ 12% per annum thereon;

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iii) pass such further orders as this Honorable Court may be pleased to pass on the facts and circumstances of the case.”

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WP(C) NO. 8567 OF 2012

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Petitioner was the owner of a Motor Vessel “M V Karuthal”, a vessel manufactured in 2009. The said vessel was insured by the petitioner with the 1^st respondent Insurance Company, covering loss of or damage in respect of the said vehicle for the period from 11.12.2009 to 10.12.2010 under Marine Hull Insurance Policy No.440202/22/2010/2011. Vessel “M.V.Karuthal” after it was built, made her maiden sailing on 15^th December 2009. While so, on 12^th January 2010 at about 6.30 a.m., when vessel was sailing from Bhander Abbhas (Port of Shaid Rajai) and was at sea position 24 deg 59 N 058 deg 19E, a banging sound from Starboard main engine side was heard. Starboard Engine was thereafter stopped. Starboard propeller/Shaft Damage was suspected and the vessel sailed to Nhava Seva with Port Engine only at low speed the Port control at Njava Seva felt that reduced speed of the vessel may not be suitable for berthing immediately in view of the fact that at the time low tide was setting in and adverse current would not be suitable for berthing the vessel. On arrival at Nhava Seva on 20^th January, 2010, under water inspection of the vessel was conducted on 21^st January 2010 at Jawaharlal Nehru Port Trust (JNPT)

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WP(C) NO. 8567 OF 2012

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inner anchorage. During under water inspection it was found that 2 numbers of blades of Starboard Propeller had been broken at distance 2” from BOSS and missing. It is the case of the petitioner that they sustained damage and loss to the tune of Rs.1,14,50,356.50/-. According to the petitioner, the Insurance Policy also covers risk in respect of latent defect in the machinery or hull. Petitioner raised a claim. A Surveyor was appointed by the Insurer to conduct a survey and submitted a report assessing the loss due to latent manufacturing defect in the propeller. It is the case of the petitioner that the Insurance Company has no case that there was misrepresentation or suppression of material fact by the petitioner. However, according to the petitioner, the Insurance Company repudiated the claim of the petitioner stating that the loss is not due to any sea peril but due to defective material/manufacturing process. According to the petitioner, the Insurance Company, even on the face of it shows that risk in respect of ‘latent defect in the machinery’ covered under the policy. Therefore, the petitioner challenge the repudiation of the claim. Even though the petitioner approached the Insurance Ombudsman, the Insurance Ombudsman refused to consider

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WP(C) NO. 8567 OF 2012

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the same because of the lack of jurisdiction. Hence this writ petition is filed.

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Heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondents.

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The learned counsel for the petitioner reiterated his contentions in the writ petition. The learned counsel also takes me through Ext.P1 Policy especially Clause 6.2.2 in Ext.P1, which reads like this: “bursting of boilers, breakage of shafts or any latent defect in the machinery or hull”. The learned counsel for the petitioner also takes me through Ext.P2 Survey Report, which according to the petitioner, served to them. The learned counsel then takes me through Ext.P6 order, by which the claims is rejected. According to the learned counsel, there is no consideration of the contention of the petitioner and it is not a speaking order. Therefore, the learned counsel submitted that it is a matter to be reconsidered by the respondents.

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On the other hand, learned Standing Counsel for the respondents submitted that it is a clear case in which the respondents

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WP(C) NO. 8567 OF 2012

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considered all the contentions of the petitioner and rejected the claim. Learned Senior Counsel who appeared for the respondents submitted that, as per Section 64(UM) of the Insurance Act, appointment of a Surveyor is mandatory. Learned Senior Counsel submitted that there is a Survey Report. According to the learned Senior Counsel, Ext.P2 is not the Survey Report, and it is Ext.R1(a). According to the learned Senior Counsel, the Surveyor considered all the aspects and submitted the report and based on the same, the respondents rejected the claim. Learned Senior Counsel submitted that there is nothing to interfere with the repudiation of the claim by the Insurance Company.

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I have considered the contentions of the petitioner and the respondents. The definite case of the petitioner is that, they received only Ext.P2 Survey Report and on the other hand, it is conceded by the Senior Counsel who appears for the respondents that Ext.P2 is not the Survey Report, but it is Ext.R1(a). It is also submitted by the learned Senior Counsel that usually the Survey Report would be furnished to the petitioner and in this case also, it is furnished to the petitioner. It is

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WP(C) NO. 8567 OF 2012

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produced before this Court also as evident from Ext.R1(a).

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Learned counsel for the petitioner submitted that even if Ext.R1(a) is considered while rejecting the claim, it is not a speaking order as evident by Ext.P6. According to the petitioner, they have got several contentions to raise before the Insurance Company to establish that they are entitled to benefit of the Insurance Policy. In such circumstances, according to me, Ext.P6 can be set aside and there can be a direction to the respondents to reconsider the matter in the light of Ext.R1(a) Survey Report, after giving an opportunity of hearing to the petitioner.

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Therefore, this writ petition is disposed of in the following manner.

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(i) Ext.P6 is set aside.

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(ii) The competent officer among the respondents will reconsider

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the matter after giving an opportunity of hearing to the petitioner as expeditiously as possible, and at any rate, within three months from the date of receipt of a copy of this judgment.

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WP(C) NO. 8567 OF 2012

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(iii) All the contentions raised by the petitioner in this writ petition,

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are left open.

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The writ petition is disposed of accordingly.

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 Sd/-

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P.V.KUNHIKRISHNAN
JUDGE

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uu 17.02.2022

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WP(C) NO. 8567 OF 2012

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1TRUE COPY OF MARINE HULL INSURANCE
POLICY NO.440202/22/2010/2011 ISSUED
BY 1ST RESPONDENT TO THE PETITIONER
EXHIBIT P2TRUE COPY OF SURVEY REPORT OF M/S. J
BASHEER & ASSOCIATES PVT. LTD, MUMBAI
EXHIBIT P3TRUE COPY OF LETTER DATED 7.10.2010
OF THE 4TH RESPONDENT
EXHIBIT P4TRUE COPY OF LETTER DATED 1.10.2010
OF THE PETITIONER TO DEPUTY GENERAL
MANAGER REGIONAL OFFICE, ORIENTAL
INSURANCE CO. LTD, COCHIN
EXHIBIT P5TRUE COPY OF LETTER DATED 18.11.2010
OF THE 3RD RESPONDENT
EXHIBIT P6TRUE COPY OF COMPLAINT DATED
23.10.2010 OF THE PETITIONER TO THE
INSURANCE REGULATORY AND DEVELOPMENT
AUTHORITY, HYDERABAD
EXHIBIT P7TRUE COPY OF LETTER DATED 8.11.2010
OF THE INSURANCE REGULATORY &
DEVELOPMENT AUTHORITY, HYDERABAD, TO
THE CHAIRMAN CUM MANAGING DIRECTOR OF
THE 1ST RESPONDENT

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EXHIBIT P8TRUE COPY OF LETTER DATED 20.4.2011
OF THE PETITIONER TO THE GRIEVANCES
REDRESSAL OFFICER, INSURANCE
REGULATORY & DEVELOPMENT AUTHORITY,
HYDERABAD

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WP(C) NO. 8567 OF 2012

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EXHIBIT P9TRUE COPY OF THE LETTER DATED
99.4.2011 OF THE 2ND RESPONDENT TO
THE PETITIONER
EXHIBIT P10
TRUE COPY OF THE LETTER DATED
19.8.2011 OF THE 2ND RESPONDENT TO
EXHIBIT P11THE PETITIONER

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TRUE COPY OF THE COMPLAINT OF THE
PETITIONER TO THE INSURANCE
EXHIBIT P12OMBUDSMAN, ERNAKULAM

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TRUE COPY OF LETTER DATED 19.3.2012
OF TEH INSURANCE OMBUDSMAN TO THE
PETITIONER

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RESPONDENT’S EXHIBITS:

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EXHIBIT R1(a)A TRUE COPY OF THE SURVEY REPORT OF
M/S J.BASHEER AND ASSOCIATES
SURVEYORS (P) LTD, MUMBAI DATED
16.2.10.

Trans Asia Services Pte Ltd. v. the Oriental Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Trans Asia Services Pte Ltd. v. the Oriental Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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