Case: M/s  THE NEW INDIA ASSURANCE CO. LTD.  &amp; ANR Vs. SHASHIKALA J. AYACHI

has been completely overlooked by the National Consumer Disputes Redressal Commission. 17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details. The relevant portion of the Final Survey Report reads as follows:- We contacted Meteorological Dept of Oman who confirmed no adverse weather report all along the coast of Oman or in the vicinity – Normal weather reported for the alleged incident date and also a day before and after. We Contacted Meteorological Dept of India and enquired for weather report for Persian Gulf on May 29th and 30th , 2011 for the specific area co-ordinates Latitude 23.40 North and Longitude 61.43 East and requested them for details on wind speed, wave height, current and swell, We were provided weather report from India which says good weather prevailed in the Persian Gulf in and around the location where the vessel was reportedly sunk as under: 29.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight 30.05.2011 Synoptic situation – Weather seasonal over Persian Gulf Weather – Fair Wind – Mainly southwesterly 10 to 15 knots gusting 230 knots Visibility – Good Sea – Smooth to Slight. 18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank. 19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission. 20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions. 21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day. The reply mail reads as follows:- Respected sir In reference to telephonic discussion with you, I most humbly say that my sailing vessel MSV sea queen is safe and there is no piracy attack on my vessel. I have already inform the coast guard (indsan@vsnl.net) and D.G.Shipping (dgcommcentre@satyammail.net) via email that my vessel sea queen is safe, on dated 24-10-10. That other information regarding vessels registration, ownership, address, mmsi no etc are true and correct. There are fourteen Indian crew on sea queen and she is on the way to Yemen loaded with general cargo. Last year my vessel sea queen was under repair at Mandvi for 9 month and then for rest of the 4 month she was plying between gulf and Somalia. I again confirm that my vessel sea queen is safe and there is no piracy attack on her. 22. Again on 27.10.2010 a query was made through e-mail at about 4:57 p.m, about (i) the position of the vessel on 23.10.2010; (ii) the current position of the Dhow; and (iii) crew list. A reply was sent on behalf of the respondent at about 5:51p.m. on the same day stating that the vessel was near Madarka Yemen on 25.10.2010 and that the exact position as on 23.10.2010 was not known. 23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location. 24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. But what the National Consumer Commission failed to see was that there were more questions that remained unanswered in the version of the respondent-complainant and that there were more missing links. First of all the respondent-complainant did not state anywhere in the complaint as to where exactly the mishap had happened. In paragraph 9 of the complaint, the respondent stated only broadly that the vessel encountered bad weather and rough tides, when it was between Oman and Pakistan. As per the statement of Shri Osman Suleman Sumbhania who claimed to be the Tandel (Head of the ship or boat) of the subject vessel MSV Sea Queen, the vessel started its voyage from Djibouti on 21.05.2011 towards India, but it encountered bad weather on N 23=40 and E 61 =43°, between Oman and Pakistan. In the statement Shri Harun Abdreman Ruknani, the Tandel of the rescuing vessel MSV Chetak, he claimed that on 30.05.2011 at about 10 o clock in the morning, they were at N 23=40 and E 61 =43° and that they received a call for help on their Wireless Radio.10. Interestingly, the exact place of the occurrence of the incident was mentioned by both the above named persons, only in the statements given to the Superintendent of Customs on 3.06.2011. In the statements made by both the aforesaid persons on 4.06.2011 to the Immigration Officer Mandvi Sea Check Post, the exact place with Longitude and Latitude were not mentioned.11. The Marine Casualty Report dated 16.07.2012, issued by the Marine Mercantile Department, Kandla, of the Government of India, contains a column in Column No.47 relating to weather conditions. The respondent places reliance upon the said report to show that the vessel sank due to bad weather. But interestingly, column 47 of the report does not contain any detail except stating broadly that there was rough weather.12. It may be seen from the above that none of the sub-columns relating to weather direction, force, swell direction, precipitation etc. in Column No.47 has been filled up in the Marine Casualty Report.15. It is common knowledge that the time of receipt of the SOS message by the rescuing vessel and the actual time of rescue of the crew of the sinking vessel cannot be the same. Even according to the respondent, the subject vessel MSV Sea Queen could travel only at a speed of 6-7 knots. Unless the rescuing vessel is in close proximity, the time of the SOS call and the time of rescue cannot be the same. Keeping this in mind if we have a look at the statement made by Shri Harun Abdreman Ruknani, Tandel of the rescuing vessel it makes interesting reading.16. According to the above statement, the Tandel of the rescuing vessel heard the call for help on his wireless radio at 10 o clock in the morning. But according to the statement of the Tandel of the subject vessel, they were rescued at 10 o clock in the morning. However, the Marine Casualty Report indicates the time to be 4:00 a.m. on 30.05.2011. This crucial contradiction has been completely overlooked by the National Consumer Disputes Redressal Commission.17. The enquiry by the Surveyors with Muscat Radio revealed that no SOS calls were made from the Nakhuda of MSV Sea Queen nor was any response from the rescuing vessel reported. The Meteorological Departments of both countries namely Oman and India confirmed that the weather for the specific area coordinates, Latitude 23=40° N and Longitude 61 =43° E, was fair. In contrast to the absence of details in the sub-columns of Column No.47 of the Marine Casualty Report, the Final Survey Report gives minute details.18. Another important feature noted by the Surveyor is that the normal practice for the Indian Dhows trading from Indian West Coast to the Arabian Gulf Ports and Yemen/Africa, in the month of May is to sail along the coast of Southern Oman and after crossing Kuria Muria Islands and Ras Madraka and set course North easterly to Gujarat. The skipper of Sea Queen confirmed to the Surveyors that they also followed the same route. But the coordinates provided by the rescuing vessel showed that the rescuing vessel was positioned at 200 miles North. Therefore, the Surveyor was compelled to draw the inference that MSV Sea Queen could not have been in the area where she reportedly sank.19. All the above aspects were not taken note of by the National Consumer Disputes Redressal Commission.20. Admittedly the Directorate General of Shipping had issued a Circular dated 31.03.2010 prohibiting the operations/trading in waters South or West of the line joining Salalah and Male. The Certificate of Inspection of the vessel dated 26.08.2010 reiterates that sailing vessels are prohibited to ply South or West of the line joining Salalah and Male as per the Circular dated 31.03.2010 issued by the DG Shipping. The Circulars issued by the DG Shipping, especially with regard to the safety and security of the vessels and the crew are to be read as part and parcel of the policy conditions.21. The reason why the aforesaid condition assumes significance in the case on hand is that there was a query on 25.10.2010 both from the coast guard and DG Shipping about a piracy attack on the subject vessel MSV Sea Queen. The query was made at about 16:50 hrs. on 25.10.2010 and a reply was sent by the respondent through her representative at about 18:12 p.m. on the same day.23. To show that the suspected piracy attack on the vessel on 25.10.2010 could not have been true, the respondent relied upon a Ship Security Certificate purportedly issued by the Mediterranean Naval Security Bureau. Though it was contended by the learned counsel for the appellant that it was a forged and fabricated document, we do not think that we need to go so far as to discredit the said certificate. The exchange of e-mail about the suspected piracy attack demonstrated at least that the vessel was plying in the prohibited location.24. Therefore, we are of the view that the Consumer Forum which has a limited jurisdiction to find out if there was any deficiency in service, could not have allowed the complaint on the basis of sketchy pleadings supported by doubtful evidence. The delay on the part of the Insurance Company in securing the Final Survey Report and the further delay in issuing the letter of repudiation, cannot per se lead to the complaint being allowed. The delay in processing the claim and delay in repudiation could be one of the several factors for holding an insurer guilty of deficiency in service. But it cannot be the only factor.