Case: New India Assurance Co.Ltd Vs. Priya Blue Industries Pvt. Ltd

of attempting to beach the vessel at the designated plot. It is under those circumstances the complainant contended that there was no justifiable reason or ground for repudiating the claim. 11. On behalf of the appellant insurance Company, it was merely contended that there was no deficiency of service on the part of the appellant insurance Company which was repelled by the National Commission. It was also contended on behalf of the appellant Insurance Company that there was no `total and/or constructive loss as defined under Sections 57 and 60 of the Marine Insurance Act, 1963 inasmuch as the insured has recovered more than Rs. 13.00 crores by sale of the vessel. The Commission having meticulously examined the rival contentions with regard to this particular point, found that there was actual total loss of the vessel to the complaint because the complainant could not bring the vessel to the destined point for its breaking. The Commission found that the vessel was brought for the sole purpose of `breaking and the complainant has lost its purpose as it could not bring it to the destined point because of the sea peril. It was impossible for the complainant to refloat the vessel for bringing it to the destined point for the purpose for which it was purchased. The National Commission also rejected the contention of the appellant insurance Company that the respondent complainant has committed utmost breach of the principles of good faith. It was the contention of the appellant insurance Company that the respondent complainant did not disclose at or before taking the insurance policy that:(a) one engine of the vessel (viz. starboard engine) was not working.(b) the Addendum no. 2 dated 3.6.97, which records that the starboard engine of the vessel was not working. This plea of the appellant insurance Company was resisted by the respondent mainly contending that the issue has been raised for the first time at the time of filing the written statement alleging non-disclosure of material facts. The National Commission, after a critical analysis of the material available on record, found that the contract is liable to be repudiated for non-observance of good faith or non-disclosure of the material facts. At all points of time, the contract was sought to be repudiated on the one and only ground that there was no total loss. In this connection, the National Commission examined the complete correspondence that has taken place between the parties prior to filing of the complaint and written statement before the National Commission and found that at no point of time the insurance company took any plea or stand that there was any suppression on the part of the complainant in not disclosing that one engine of the vessel was not functioning. The Commission referred to the evidence led by the appellant insurance Company in which it was specifically admitted that repudiation was only on the ground that the vessel had encountered neither total loss nor a constructive total loss. It is under those circumstances the Commission found that the issue has been raised by the insurance Company for the first time in the proceedings before it only as an afterthought. 12. The Commission also found that at the time of making insurance proposals, the respondent had given Memorandum of Agreement (MOA) along with two addendums and one addendum clearly stated that the vessel was with one engine, and it has come from Singapore to Alang Anchorage for its funeral voyage. The Commission found that there is no reason to disbelieve this version of the respondent. Neither the agent of the insurance Company nor the Development Officer stated that addendum No. 2 was not given to the insurance Company at the time of issuing the policy. The Commission also noticed that the vessel sailed from Singapore with one engine without any difficulty and in such view of the matter, the Commission found that it would be of no significance in the present case even if there is non-disclosure of fact that only one engine was working. 13. We do not wish to refer to other issues raised by the insurance Company before the Commission which were dealt with since the only question that was argued before us in this appeal relates to non-disclosure of the material facts. The learned counsel for the appellant submitted that the respondent complainant suppressed the material fact that one engine of the vessel was not working and therefore, not entitled to any relief. We do not find any merit whatsoever in the submission made by the learned counsel for the appellant. The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought. 14. The learned counsel for the appellant did not show any material available on record in support of her submission. Nor the counsel could point out any material or evidence which has a bearing on the issue that had escaped the attention of the Commission. Thus it is not a case of non-consideration of any evidence available on record by the Commission. The findings and conclusions drawn by the National Commission are based on proper appreciation and elaborate consideration of the entire material available on record. The Commission did not commit any error in appreciating the evidence available on record. The contention urged before us in this appeal is accordingly rejected. No other contention was raised. 15. For the same reasons,

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

Explanation:
0[ds]The material available on record which has been taken into consideration by the National Commission clearly demonstrates that the respondent complainant never made any representation that the vessel had two functional engines. On the other hand, addendum No. 2 to MOA expressly speaks about the fact that starboard engine was not working. The MOA that was forwarded included both the addendums and in fact it was one of the reasons for demolishing the vessel. At any rate, as observed by the National Commission, at no point of time the insurance Company took this plea to repudiate the contract. This plea was raised for the first time in the written statement filed in the National Commission as an afterthought.