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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5822 OF 2006

Kokkilagadda Subba Rao                    ….Appellant

Versus

Divisional  Manager, United India Assurance Co. Ltd. & Ors.                          ..Respondents

J U D G M E N T

Madan B. Lokur, J.

1. The appellant (Subba Rao) was the owner of a fishing boat in  

Andhra  Pradesh  registered  with  the  respondent  insurance  

company.  There is no dispute that the fishing boat capsized on  

27th July 1992 while the insurance policy covering the boat was  

still valid.  

2. Upon the boat having capsized,  Subba Rao made a claim  

with the insurance company on 3rd August 1992 for a sum of Rs. 6  

lakhs.  The  insurance  company  appointed  M/s  Reliance  CA No.5822 of 2006                                                                                                   Page 1 of 5

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Surveillance as a surveyor.  Reliance Surveillance submitted its  

report on 3rd May 1993 to the effect that the case may be treated  

as a total loss.  

3. Apparently  dissatisfied  with  the  report,  the  insurance  

company  appointed  another  surveyor  M/s  Coastal  Consultants  

Private Limited.  The second surveyor submitted its report on 15th  

July 1993 but expressed a doubt whether the vessel sank in the  

Andhra  Pradesh  coastal  waters  or  the  Orissa  coastal  waters.  

Subsequently, Coastal Consultants submitted an addendum to its  

report on 14th February 1994 in consultation with M/s Mohanty  

Associates. It was then concluded that the fishing boat sank in the  

Orissa  coastal  waters.   Since  the  vessel  had  transgressed  the  

required  territorial  limits,  there  was  a  violation  of  the  policy  

conditions.   

4. Based on the report submitted by Coastal Consultants and  

the  addendum thereto,  the  insurance company repudiated  the  

claim of Subba Rao on the ground that contrary to the insurance  

policy,  the boat was used for  fishing in  the high seas and the  

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insurance policy did not permit fishing in the high seas from 1st  

November to 31st March and 1st May to 30th September.

5. Feeling  aggrieved,   Subba  Rao  approached  the  Andhra  

Pradesh State Consumer Dispute Redressal Commission seeking  

compensation from the insurance company of  Rs.  6 lakhs with  

24% interest.    By  an  order  dated 28th March  2002  the  State  

Commission rejected Subba Rao’s claim and this led to his filing  

an  appeal  before  the  National  Consumer  Disputes  Redressal  

Commission  being  First  Appeal  No.397  of  2002.   By  an  order  

dated  10th January  2005  (under  challenge)  the  National  

Commission rejected the appeal filed by Subba Rao.  

6. The  State  Commission  noted  that  the  only  point  for  

consideration was whether there was any deficiency on the part  

of insurance company and if so to what extent.  While answering  

this  question on the basis  of  the evidence adduced,  the State  

Commission concluded that the vessel was used for fishing in the  

high seas and eventually sank in the Orissa coastal waters and  

therefore there was no material to hold that the repudiation of the  

claim by  the  insurance company was  illegal.   Accordingly,  the  

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complaint  filed  by  the  appellant  before  the  State  Commission  

being C.D. No.94/1995 was dismissed.

7. Feeling aggrieved, the appellant filed First Appeal No. 397 of  

2002  before  the  National  Consumer  Disputes  Redressal  

Commission.   The  National  Commission  held  that  the  fishing  

vessel was used in the high seas for fishing and that it sank in the  

Orissa sea coast.  Accordingly, the claim made by the appellant  

was not covered by the policy issued by the insurance company.  

The view expressed by the State Commission was upheld.

8. Before us, learned counsel for the appellant argued that in  

view  of  the  Section  64  UM(3)  of  the  Insurance  Act,  1938  the  

insurance company could  not  have called for  a  second survey  

report. We are afraid this contention is not open to the appellant  

at  this  stage.  This  contention  was  not  raised  before  the  State  

Commission or before the National Commission.  Before both the  

fora  the  only  question  raised  was  whether  the  fishing  vessel  

capsized in the Orissa sea coast or in the Andhra sea coast and it  

was found as a matter of fact that the vessel sank in the Orissa  

sea coast and was utilized for fishing in the high seas contrary to  

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the  insurance  policy.   Therefore  the  insurance  company  was  

entitled to repudiate the claim made by Subba Rao.

9. We see no reason to disturb  the finding of fact arrived at by  

the State Commission as well as by the National Commission nor  

do we see any reason to entertain a fresh argument raised in this  

court for the first time without its having been agitated before any  

of  the  earlier  fora.   The  contention  urged  by  learned  counsel  

involves some factual determination and in the absence of any  

evidence having been led by either of the parties on this issue, we  

are not inclined to entertain the submission.

10. Under the circumstances, there is no merit in this appeal and  

it is accordingly dismissed.

     ………………………………J      (Gyan Sudha Misra)

………………………………..J     (Madan B. Lokur)

New Delhi; April 16, 2014

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ITEM NO.1A               COURT NO.14             SECTION XVII

           S U P R E M E   C O U R T   O F   I N D I A

                        RECORD OF PROCEEDINGS

                   CIVIL APPEAL NO(s). 5822 OF 2006

KOKKILAGADDA SUBBA RAO                         Appellant (s)

                VERSUS

DIV.MNG.UNITED INDIA ASSURA.CO.LTD.&ORS.       Respondent(s)

[HEARD  BY  HON'BLE  GYAN  SUDHA  MISRA  AND  HON'BLE  MADAN  B.  

LOKUR, JJ.]

Date:16/04/2014 This Appeal was called on for judgment today.

For Appellant(s) Mr. Mukesh K. Giri,AOR

For Respondent(s) Mr. Rajesh Dwivedi, Adv. Mr. Zahid Ali, Adv.

                   for Mr. Debasis Misra,AOR

Hon'ble Mr. Justice Madan B. Lokur pronounced the  

judgment of the Bench comprising Hon'ble Mrs. Justice  

Gyan Sudha Misra and His Lordship.

For  the  reasons  given  in  the  Non-Reportable  

judgment, which is placed on the file, the appeal is  

dismissed.

(Parveen Kr.Chawla) Court Master

(Phoolan Wati Arora) Assistant Registrar

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