IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 36411 of 2004(I) -------------------------- PETITIONER: ------------ A.ALEXANDER, 339/24-67A, RIVER STREET, COLACHEL, KANYAKUMARI DISTRICT, TAMIL NADU. BY ADV. SRI.V.JAYAKUMAR RESPONDENTS: ------------- 1. THE ORIENTAL INSURANCE COMPANY LTD., METRO PALACE, ERNAKULAM, 682 018, REP. BY THE SENIOR DIVISIONAL MANAGER. 2. THE REGIONAL MANAGER, DEPARTMENT OF GRIEVANCE CELL, THE ORIENTAL INSURANCE COMPANY, METRO PLACE, ERNAKULAM 682 018. 3. THE HONOURABLE INSURANCE OMBUDSMAN (KERALA AND LAKSHADWEEP), ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR 1,2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 36411/2004. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF LETTER DT. 15-7-2003. EXT.P2 PETITION DT. 11-11-2003. EXT.P3 AWARD OF R3 DT. 30-9-2004. EXT.P4 COVERING LETTER DT. 6-10-2004. EXT.P5 CONSENT LETTER. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 36411 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th June, 2008. J U D G M E N T The petitioner was the owner of a fishing vessel by name K.F.V. King Star. It sank in an accident at sea on 20-4-2002. At the time of the accident, there was a valid insurance coverage for the vessel for Rs. 5 lakhs with the 1st respondent-Insurance Company. The vessel sank on account of collision with a bigger vessel. The accident was at night. The crew of the petitioner's vessel were rescued by another fishing boat which came to the scene after some time. Immediately after the accident, the bigger vessel sailed away and the crew of the petitioner's vessel could not identify that vessel. Thereafter, the matter was reported to the Harbour Police, Wellington Island. Even though attempts were made to salvage the sunk vessel, the same were unsuccessful. The petitioner preferred the insurance claim for Rs. 5 lakhs before the 1st respondent. The same was repudiated by Ext. P1, by even denying the accident. Against Ext. P1, the petitioner filed a petition before the 3rd respondent-Insurance Ombudsman. By Ext. P3 order, the Insurance Ombudsman, after finding the fact of collision and sinking of the vessel in favour of the petitioner, went on to hold that the petitioner's vessel was also negligent in the matter and directed payment of an ex gratia amount of Rs. 1 lakh only on certain conditions mentioned therein without awarding the insurance amount. The petitioner is challenging Ext. P3 order to the extent the same denied insurance amount to the petitioner for which the boat was insured. 2. According to the petitioner, after having found the collision and the fact of sinking of the vessel in favour of the petitioner, the W.P.C. No. 36411/2004. -: 2 :- Ombudsman could not have validly denied him benefit of insurance on the ground that there was contributory negligence on the part of the petitioner's vessel. According to him, there is no law which would prevent payment of insurance claim on the ground of contributory negligence in claims under marine insurance policies claims. The petitioner therefore seeks the following reliefs: “i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to pay to the petitioner the entire amount of Rs. 5,00,000/- as claimed by him. ii) Issue a writ of certiorari quashing Ext. P3 to the extent that it restricts the petitioner's claim to Rs. 1,00,000/-.” 2. Counsel appearing for the 1st respondent submits that the accident itself is very much in dispute by the 1st respondent and therefore unless the petitioner proves the accident and damage suffered by him before an authority competent to take evidence, he cannot sustain an insurance claim for alleged loss of his vessel. When it was pointed out to the learned counsel for the 1st respondent that in Ext. P3 award the fact of collision and sinking were found in favour of the petitioner, he would argue that in so far as no evidence was taken by the Ombudsman to decide that issue, which was disputed by the 1st respondent, the same cannot be accepted as final in so far as by Ext. P3, the 1st respondent has not been directed to pay the insurance amount. 3. I have considered the rival contentions in detail. 4. I cannot agree with the argument of the counsel for the 1st respondent that even without challenging the finding regarding collision and sinking of the petitioner's vehicle in favour of the petitioner, the 1st respondent can now validly contest the claim of the petitioner. The Ombudsman is a statutory authority vested with powers of deciding such issues. The jurisdiction of the Ombudsman is W.P.C. No. 36411/2004. -: 3 :- not disputed by the 1st respondent. If the Ombudsman entered a finding without taking evidence, the proper remedy open to the 1st respondent was to challenge that finding. After leaving that finding unchallenged, the 1st respondent cannot now contend that that finding is not binding on the 1st respondent. The 1st respondent could have challenged those findings in Ext. P3 at least when this writ petition was filed, which they have not. Now that finding has become final, I am of opinion that the petitioner should succeed in this writ petition. Counsel for the 1st respondent could not dispute that the question of contributory negligence is not relevant for the purpose of deciding this issue and the finding of the Ombudsman on that point is erroneous in law. Whether there is contributory negligence or not, once the boat is covered by the insurance policy, the Insurance Company cannot repudiate the policy on the ground of negligence in marine insurance policy claims. 5. Still, there is another difficult question as to the amount of insurance amount payable to the petitioner. No doubt, it was insured for Rs. 5 lakhs. The petitioner would be entitled to compensation for the damages suffered by him. That being so, the value of the boat is very much relevant. But, I am not inclined to relegate the petitioner to a fact finding authority for that purpose, since I am of opinion that a rough assessment of the damages suffered by the petitioner can be assessed in these proceedings themselves in the interest of justice. 6. Admittedly, the insurance policy was for an amount of Rs. 5 lakhs. The Insurance Company would not have accepted the insurance for Rs. 5 lakhs without making a valuation of the boat at the time of issuing the policy. Therefore, at the time of issuing the policy, the value of the boat must be taken to be Rs. 5 lakhs. Admittedly, the policy was only for one year. It is during the said one year that the W.P.C. No. 36411/2004. -: 4 :- accident occurred. The period of insurance was from 3-8-2001 to 2-8- 2002. The collision was on 20-4-2002, i.e. about eight months after the date of insurance. Certainly, eight months' depreciation has to be deducted from the value of the vessel. On a rough estimate, I put the depreciation as 20%. Therefore, 20% of Rs. 5 lakhs would be Rs. 1 lakh. The balance would come to Rs. 4 lakhs. I fix Rs. 4 lakhs as the insurance amount payable by the 1st respondent to the petitioner in respect of the policy in question. This amount the 1st respondent shall pay to the petitioner within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/