Kerala High Court
J.M.F. Sea Foods, Alleppey And Ors. vs National Insurance Co. Ltd., Alleppey on 10 December, 1991
Equivalent citations: AIR1992KER202, AIR 1992 KERALA 202
JUDGMENT Varghese Kalliath, J.
1. Plaintiffs are the appellants. Suit was one for money due under an insurance policy. The brief facts are these:
2. First plaintiff is a partnership. Plaintiffs 2 to 4 are partners of first plaintiff. Plaintiffs are the owners of a fishing vessel named Seagull. Syndicate Bank was the financiers of the vessel and at the instance of the financiers, the vessel was insured with the defendant -- the National Insurance Company -- for Rs. 1,50,000/-. The defendant issued a policy.
3. Plaintiffs' case is that the vessel was anchored near Alleppey Port on 12-2-1980, after the day's fishing operation. On 13-2-1980, the crew of the vessel wanted to take the vessel for fishing. They found the vessel missing and they immediately reported the matter to the plaintiffs. Plaintiffs informed this matter to the defendant, Police and Port Authorities on 13-2-1980. It is alleged that the plaintiffs made extensive enquiries at Quilon, Thottappally, Cochin etc. Plaintiffs came to know late in the evening of 13-2-1980 that some country boats fishermen at Kattoor have seen the sinking of plaintiffs' boat at about 5 kms. away from the sea shore at 8 a.m. The -fishermen also brought some wooden parts, plastic tins etc. which they found floating on the spot, where the boat sank. Plaintiffs were able to identify the said items as that of their missing vessel and information was given to the Insurance Company, Police, Port Authorities and the Bank. Police took custody of the materials brought by the country craft fishermen.
4. On the basis of the information, one Shri T. S. Ramaswamy -- the Insurance Surveyor and Loss Assessor -- wrote a letter to the first plaintiff on 19-2-1980, calling for production of certain documents, viz., the claim bill in triplicate, bills and vouchers to prove the valuation of the vessel, photograph of the vessel and other similar documents, with a copy of the letter to the defendant-Company. Plaintiffs submitted that all the documents were sent on 25-2-1980 to the Surveyor. The Surveyor again called for the production of some more documents and that was also complied with by the plaintiffs on 8-4-1980. Plaintiffs wanted an expeditious settlement of the claim.
5. On 9-10-1980, plaintiffs received a letter from the Security and Detective Bureau Ltd., Madras, to the effect that the said Bureau has been authorised by the Deputy Manager to the Southern Regional Office of the defendant-Company, Madras to enquire into the claim of the first plaintiff, in respect of their mechanised fishing vessel Seagull, and since certain clarifications were required to be sought from the concerned persons. Mr. J. A. Harris, Chief Investigator of the Bureau would be visiting the office of the first plaintiff on 22-10-1980. It is the further case of the plaintiffs that as per the above directions, Shri Harris visited the spot on the said date and made detailed enquiries, and in spite of all these, nothing was heard from the defendant-Company regarding the settlement of the plaintiffs's claim. So, the plaintiffs wrote to the Head Office, Regional Office, Divisional Office and the Branch Office of the defendant-Company for a speedy disposal of their claim. Plaintiffs received no response. So, the plaintiffs caused a notice to be issued through their lawyer, dated 12-12-1980, to the defendant with copies to the Company's Divisional Office, and Regional Office. Plaintiffs claimed an amount of Rs. 1,50,000/-, towards the amount due under the policy, Rs. 1,300/-towards expenses incurred for salvaging the vessel and Rs. 18,666.60 as interest payable to the Bank on account of the non-settlement of the claim in time.
6. Defendant replied on 27-12-1980 that the Company has not received the final investigation report and that they will be able to process the claim only after getting the final investigation report. Plaintiffs reminded the defendant by their letters dated 3-2-1981 and 20-11-1981. On 8-2-1982, defendant-Company wanted the report regarding the weather on 13-2-1980 for transmission to the Regional Office and accordingly on 10-2-1982, the weather report in duplicate was furnished to the defendant-Company. Plaintiffs received a copy of the letter dated 3-4-1982 addressed to the Syndicate Bank, Alleppey, by the defendant-Company, wherein it was stated that "as it has not been substantiated that the loss was caused by an insured peril, there is no liability for the loss in terms of the policy". Plaintiffs did not understand why their claim was rejected. So, they wrote to the Company on 10-5-1982 requesting for a clarification; but the Company did not reply. In these circumstances, plaintiffs filed the suit.
7. The defendant filed a written statement. The Company contended that the suit is frivolous and false. The Company admitted the policy. It is stated in the written statement that the case that the fishing vessel was anchored near Alleppey Port, was with the intention of getting over the inconsistencies of the plaintiffs' own versions elsewhere and also to surmount the Surveyor's report and other documents touching the anchorage spot. Defendant contended that the plaintiffs' own admission would show that Clause 5 of the General Warranties attached to the Policy has been violated. It was contended that the warranty clause provided that the plaintiffs were bound to provide watch and ward to the insured vessel. The facts indicated that the plaintiffs failed in complying with that provision in Clause 5 of General Warranties and on that ground alone, plaintiffs are not entitled to claim the policy amount. Defendant also submitted that no bona fide enquiries to his knowledge, were made by the plaintiffs for their missing vessel. In the written statement, it is also stated that the report of Sri. T. S. Ramaswamy pointed out to the mala fide nature of plaintiffs' claim that Seagull was lost by an insured peril. According to the defendant, there was foul play on the part of the plaintiffs and that the vessel was not lost by an insured peril. In these circumstances, the claim was rejected.
8. According to the defendant, the Vessel has been lost out under mysterious circumstances and that the plaintiffs alone are answerable and responsible for the mystery. It was also pointed out that the first plaintiff was in extreme financial embarrassment at the relevant time. As on 12-2-1980, the firm owned more than Rs. 1,05,807/- to the Syndicate Bank besides Rs.25,000/- to the other creditors. Defendant contended that on 12-2-1980 evening, the boat was anchored about half to one furlong away where many other boats were also anchored. Plaintiffs' intimation letter, wherein it was stated that the boat was anchored 11/2 kms. away from the shore, was denied by the defendant.
8A. According to the plaintiffs, when on the morning of 13-2-1980, the crew of the missing vessel got into a canoe with a view to board the vessel Seagull, the same was found missing from its anchorage. On the basis of the information given by the crew, the owner reported to the police that the boat was stolen. Alleppey Police registered a case as Crime No. 34/ 80, and it was referred after investigation as mistake of fact. It is pointed out that the allegation of theft was however denied by one of the partners, Mr. Mathew, during the S.D.B. enquiry. The circumstance that the boat was anchored with other boats was confirmed by the Surveyor and that it was highly improbable that an unmanned and uncontrolled boat can by itself drift out to sea avoiding any collision or contact whatsoever with other boats anchored in close proximity. Considering the weather report, it was contended that the breaking of the two anchors is not normal. Further, it was pointed out that none of the other boats anchored there was subjected to a similar fate. According to the report of the Surveyor, which itself was based on a communication of the Chief Hydrographer of the Government of Kerala, the Vessel anchored to the shore in the month of February cannot drag or loose anchor and move out to sea. It was explained that considering the sea condition, the boat could not have drifted outward to sea. The Surveyor has also pointed out that in the circumstances alleged, the tendency of the sea is only to wash the boat ashore.
9. Plaintiffs' statements were contradictory and there were several inconsistencies in the statements made by various individuals questioned by the Surveyor Sri Ramaswamy and Sri J. A. Harris of the Security and Detective Bureau Ltd. Madras, who also conducted an enquiry at the instance of the defendant-Company. Defendant pointed out that there are many circumstances pointing out the suspicious and clandestine attempts made by the partners of the firm. Defendant submitted that the loss of the boat is not by any insured peril. The case of the defendant is that the plaintiffs have either clandestinely removed the vessel or sunk the same in deep waters to defraud the insurer. It was contended that a contract of Marine Insurance being one based upon the utmost good faith; such good faith was not observed by the plaintiffs and that the plaintiffs are not entitled to get the reliefs sought for. Defendant also disputed the accounts of the plaintiffs shown in the plaint.
10. On the rival contentions, the trial Court framed the necessary issues and considered both oral and documentary evidence in the case; recorded findings on the issues framed and ultimately found that the plaintiffs are not entitled to a decree, and dismissed the suit. Now, the plaintiffs appeal.
11. Counsel for the appellants submitted at the outset that in paragraph 4 of the plaint, plaintiffs have made clear averments to the effect that on 13-2-1980, when the crew went to take the fishing vessel for fishing in the sea, the boat was found missing from the place where it was anchored previous day. The crew immediately informed the plaintiffs about the missing of the boat. Again in paragraph 5 of the plaint, plaintiffs have averred that the defendant was informed about the missing of the boat on the 13th February, 1980 itself. Defendant in the written statement only said that the defendant put the plaintiffs to proof of the averments in paragraphs 4 and 5 of the plaint. Counsel submitted that the averment that the plaintiff is put to proof of an averment will amount to an admission of what has been said positively in the plaint by the plaintiff. But, we have to say at this point itself that the averments in paragraphs 4 and 5 of the plaint do not positively say about the sinking of the vessel, or about the loss of the vessel on account of the peril of the sea. The non-denial of the averments in paragraphs 4 and 5 of the plaint can be attributed to the circumstance that the defendant-Company may not be aware of what has happened on 13-2-1980. We say so, because in paragraph 4 of the plaint, the plaintiffs have stated that when the crew went to take the fishing vessel for fishing in the sea, the boat was found missing. Whether the crew had gone to the place where the boat was anchored is not a matter within the knowledge of the defendant. So, the defendant thought of framing the written statement stating that the plaintiff is put to proof to the facts he has alleged in paragraphs 4 and 5 of the plaint.
12. Same is the position in regard to the averment contained in paragraph 6 of the plaint. In paragraph six of the plaint, plaintiffs have said that they made extensive enquiries and that very late in the evening of 13-2-1980, they came to know from some country boat fishermen at Kattoor that they have seen sinking of plaintiffs boat at a depth of 70 feet south-west of Alleppey Radio Station at about 5 kms. away from seashore, on the same date at about 8 a.m. The said fishermen also brought some wooden parts, plastic tins etc. which were floating on the spot where the boat sank. Further, the plaintiffs said that they identified the articles brought to the shore by the fishermen to be that of the plaintiffs' boat Seagull. These averments were denied by the defendant thus : "The defendant puts the plaintiffs to proof of -the averments in para 6 of the plaint. The so-called enquiries made by palintiffs were make believe and to defendants knowledge there was no bona fide enquiries or search for the missing vessel."
13. The above averment in paragraph 7 of the written statement, according to counsel for the plaintiffs-appellants, is insufficient to deny the fact stated in paragraph six of the plaint. It has to be noted that there is no positive averment in paragraph six of the plaint that the vessel in question sank in deep sea. Paragraph six of the plaint refers to the enquiries and the result of the enquiries. Further, it has to be noted that in paragraph 7 of the written statement, when the defendant wanted to deny the averments in paragraph six of the plaint, the defendant also added that the enquiries made by the plaintiffs were "make believe" and to defendant's knowledge, there was no bona fide enquiries or search for the missing vessel. Further, these averments in paragraph seven of the written statement have to be read along with the other positive averments of the defendant to the effect that Seagull was "lost under mysterious circumstances" and that plaintiffs alone are answerable and responsible for the mystery.
14. In the light of the averments in paragraph 11 of the written statement, wherein it is stated that "the plaintiffs have either clandestinely removed the vessel or sunk the same in deep waters to defraud the insurer" and "the alleged loss by an insured peril has not been substantiated", we are of opinion that it is difficult to spin out a case that the defendant has admitted that the Vessel in question sank in deep waters. If the plaintiffs want to establish that the Vessel had sunk in the sea, on the basis of the pleadings, we feel that the plaintiffs have to establish the same by good evidence in the case. Of course, we will be examining the evidence on this aspect.
15. We do not think that in these types of cases, we will not be justified in undulyinsisting for a denial of facts by the defendant-Company, which is not in a position at the time of filing the written statement to know what has happened to the Vessel in question. The dead hand of the pleading should not be allowed to operate from its grave in arriving at the correct conclusions, when all the evidence are before the Court.
16. On facts, there are certain serious disputes. We shall deal with those disputes at the first instance. One of the disputed facts is where exactly the fishing Vessel was anchored at the relevant time. Plaintiffs' case is that it anchored 1 km. away from south of Alleppey Port, whereas the contention of the defendant is that the vessel was anchored in the anchoring place of fishing vessel at Alleppey. The trial Court did not enter a finding on this question, but observed that the learned counsel for the defendant submitted that this aspect may not be of much relevance in view of the other evidence in the case. But, it has got some relevance in view of the fact that it was argued before us that the boat was drifted to the sea when the anchoring of the vessel was cut off. Counsel for defendant submitted before us that the boat in questi9n was anchored along with many other fishing vessels and if the boat was let loose from the anchorage without any extraneous cause, it is unlikely that other vessels escape without any sort of hurt.
17. Regarding the sinking of the Vessel, plaintiffs' case is that they got information about the sinking of the vessel from the fishermen who went to the sea in country crafts. We feel, there is no direct evidence in the case. Plaintiffs examined P.W. 3. He is a fisherman, who, according to the plaintiffs, has given information regarding the sinking of the Vessel. He has deposed before the Court that he saw the boat sinking at a distance of about 12feet. He has also said that he waited in the sea for half an hour. He did so, because he expected that there maybe some persons in the boat. Further, he has deposed that no person came out and that he obtained three pieces of wooden planks and a plastic tin. Only on examining the wooden planks and plastic tins, plaintiffs confirmed the fact that their boat sank in the sea. The case did not register conviction in our mind; first of all, it is not very probable that P.W. 3 would have waited for half an hour in the sea in a country canoe to witness the sinking of a vessel and thereafter to take some wooden planks and plastic tin with him. For what purpose, he has done it and what provoked him to do it at that time, seem to be mysterious and so, unsafe for a Court to give much credence to it. These material objects were identified by P.W. 2, the driver of the ill-fated vessel. P.W. 1 is the second plaintiff. He also identified the articles brought by P.W. 3, as the articles of the boat in question.
18. The trial Court has said that these materials were not placed before the Court for judicial scrutiny. The case is that these materials were taken into custody by the police, when they registered a case for theft on the information given by the plaintiffs. Of course, D.W. 3, an Assistant Sub-Inspector of Police was examined. He produced Ext. XI case diary. Ultimately, the criminal case was referred based on the information given by the plaintiffs that it was not a case of theft. There is evidence to show that the material objects were produced before the Criminal Court. The trial Court has found that non-production of the same is conspicuous and concluded that if the material objects were produced before the Court, it would not have helped the case of the plaintiffs. Further, on this aspect of the matter, the evidence of the witnesses is baffling, inconsistent and irreconcilable.
19. One Mr. P. C. Mathew was the Managing Partner, when the boat was missing. Before the Court, the second plaintiff was examined as P.W. 1. Mr. P. C. Mathew has written a letter to the defendant on 10-10-1980. It is Ext. B1. The subject of the letter is "Fishing Vessel SEAGULL sunk on 13-2-80 at Alleppey". In the body of the letter, it is stated "unfortunately our above vessel sunk in the sea on 13-2-1980. On the same day, we telephoned your Divl. Office at Trivandrum and informed them of the accident." So, the case of Mr. P. C. Mathew, as revealed from Ext. Bl is that a telephone call was made by the plaintiffs to the Divisional Office of the defendant-Company at Trivandrum, and informed them what has happened on 13-2-1980.
20. Ext. B2 is a letter sent by the plaintiffs on 13-2-1980. In Ext. B2, Mr. P. C. Mathew, Managing Partner has written for the plaintiffs that the fishing vessel was anchored on 12-2-1980, 1-l/2 kilometres south of Alleppey Port at about 7 p.m. On the next day (13-2-1980) at about 5 A.M. when the crew approached the site where the boat was anchored, to take the Vessel for fishing, they did not see the Vessel. The statement is "it was found sunk in the sea at a depth of about 65 feet". In the afternoon itself, this calamity was reported to the National Insurance Company. Further, it is stated that the location where the boat is sunk will be south-west of Radio Station, Alleppey, about 4 kms. away from the sea shore.
21. P.W. 1, one of the partners of the Company, says that he came to know about the sinking of the vessel at 8 p.m. on 13-2-1980. At what point of time he got this information is very clearly stated in his deposition. He has said that he got the information only at 8 p.m. on 13-2-1980. P.W. 1 is Mr. James -- the second plaintiff.
22. P. W. 3 is the person who got some remnants of a boat, alleged to be that of the boat in question. He has deposed before the Court that P.W. 1 and Mathew came to his house to see the wooden planks and other material objects only at 9.30 p.m. P.W. 3 also said that P.W. 2 -- the driver who identified the material objects, came to his house at 9-30 p.m. along with the 'srank' (crank) of the boat.
23. In the light of the depositions of these witnesses, it is very curious and mysterious how Mr. P. C. Mathew could telephone to the Divisional Manager on 13-2-1980 itself to the fact that the boat sank on 13-2-1980. Normally, he could have given information during the office hours. Anyhow, Mr. P. C. Mathew has not been examined to ascertain at what point of time, he informed the matter of sinking of the vessel. It has to be remembered that he is the Managing Partner, but he avoided the Court.
24. In Ext. B2 letter to the Manager of the Bank, Mr. P. C. Mathew has said "when the crew approached the site where the boat was anchored so as to take the vessel for fishing, it was found sunk in the sea at a depth of about 65 feet. In the afternoon itself, this calamity was reported to the National Insurance Company, Alleppey". Though the exact time of giving information to the defendant is not expressed with certainty from Ext. B2, it is clear that it was in the afternoon of 13-2-1980, the information was given. Further, in Ext.B2 all the details are given except the details regarding the witnessing of the sinking by the fishermen. From Ext.B2 it is seen that copy of the letter was given to the defendant also.
25. Now, we shall advert to the evidence of P.W. 2. It is very significant to note when P.W. 3 says that P.Ws. 1, 2 and Mathew came to his house and verified the material objects, at about 9 p.m. on 13-2-1980, P.W. 2 says that he has seen the material objects (vernacular omitted) for the first time on 14-2-1980 at 4 p.m. He also said that he was seen them along with the plaintiffs. We may also note the fact that P.W. 2 was asked a definite question whether he has told some officials when he was questioned whether he has informed the plaintiffs at about 11.30 p.m. on 13-2-1980 that some wooden planks of the boat were obtained. He answered that he did not remember. Thereafter, he said that he has seen the wooden planks only at 4 p.m. on 14-2-1980. So, his statement cannot be a mistake. The evidence supplied by Exts. B1 and B 2 and the depositions of P.Ws. I to 3 on the case of the plaintiffs that the boat sank on 13-2-1980 are insufficient for a Court to believe the case of the plaintiffs. So, in effect, the case 'pleaded by the plaintiffs has not been proved properly.
26. Plaintiffs have got a responsibility to satisfy the Court that they are entitled to the policy amount on account of the sinking of the vessel. We are of opinion that the plaintiffs have not discharged this burden properly. This aspect has to be considered in the light of the case of the defendant that the claim is made as a spurious claim by spinning out a case of loss of the Vessel in the sea due to a peril of the sea. The defendant has plainly pleaded that the plaintiffs have connected a case for obtaining the policy amount on the inconsistent facts about the sinking of the vessel.
27. We may now advert to the fact regarding the anchorage of the boat. In the evidence of P.W. 2, the driver, he says that at the time when the Vessel was anchored, there were about 100 vessels, but he said that the vessel in question was anchored at the western end of the place of anchorage of boats. He did not know how many more boats were anchored after the anchoring of the boat in question. He has also said that the vessel was anchored at the same place where the other boats were anchored, and usually at the place of anchorage, there may be about 150 boats. So, it is difficult for us to believe that plaintiffs' boat was anchored separately and by some unforeseen events, it escaped from the anchorage and drifted to the sea without causing any damages to the other boats.
27A. Ext. B5 a file regarding Marine Hull Insurance Policy. Clause 5 of the General Warranty, which is part of the Hull Policy says thus :--
"Warranted Vessel shall not be employed during adverse weather conditions notified by the concerned State Fisheries Department, Meteorological Department or by the Port Authorities and shall be safely enchored or moored or secured with proper watch and ward."
Defendant-Company has got a case that since the plaintiffs cannot say now exactly the boat happened to be drifted out of the sea and got itself sunk in the sea, it has to be inferred that there was no proper watch and ward. There is no acceptable evidence regarding the arrangement made by the plaintiffs for complying with the undertaking in the warranty clause. The two segments of the warranty clause can be examined. In the first segment, it completely interdicts and forbids the employment of the Vessel during adverse weather conditions. It would mean that the Vessel should not be employed if the authorities notify that the weather condition is adverse even during the permitted period. Advance in meteorological technology has made it in some measure possible to predict, once unpredictable sudden change of weather. The fury of Wind God Aeotus (Classical myth) turns the waves hysterical and makes the sea monstrous. Stormy rain and gale, which Alexander Smith described as "wind that old harper" Shakespeare as "scolding wind", Milton "the felon winds" contort the bright facile face of a calm sea abruptly into a "gloomy grim and wry face". The first phase of the warranty provides against the unfair weather condition expected and the unexpected. We are more concerned about the second limb of the clause, it warrants for the safety to be taken for the Vessel even when it is on rest. On rest, the Vessel should be safely anchored or moored. Not only anchored or moored, but also should be under proper watch and ward. The proper watch and ward requires a constant vigil on the moored or anchored Vessel. It was contended that a proper anchorage of the Vessel will absolve the responsibility for arranging a proper watch and ward. We cannot agree, The evidence regarding watch and ward is scandy and unacceptable. The plaintiffs have failed to adduce required evidence and its deleterious consequence should befall on the plaintiffs who seek the aid of the Court for a decrec for them. House of Lords in the Popi (1985) 2 Lloyds Rep 1 said "The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. It is open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden."
27B. Counsel for appellants referred us to certain provisions of the Marine Insurance Act, 1963 (Act No. II of 1963), for short, the Act. S. 2(a) of the Act defines "contract of marine insurance" as a contract of marine, insurance as defined by Section 3. Section 3 defines marine insurance thus : "A contract of marine insurance is an agreement whereby the insurer undertakes to idemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say, the losses incidental to marine adventure". So, the indemnity covered by the marine insurance is losses incidental to marine adventure. Marine adventure includes any adventure where any insurable property is exposed to maritime perils and Section 2(e) of the Act defines 'maritime perils' as the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the sea, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, barratry and any other perils which are either of the like kind or may be designated by the policy.
28. Counsel for appellants relied on Section 55 of the Act, which deals with loss and abandonment. It reads thus:--
"55. Included and excluded losses.-- (1) Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any toss proximately caused by a peril insured against, but, subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against.--
(2) In particular--(a) the insurer is not liable for any loss attributable to the wilful misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew :
(b) and (c)................................"
Counsel for appellants also referred us to Section 57 of the Act which defines actual total loss. Actual total loss happens where the subject-matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrivably deprived thereof, Section 58 of the Act also has been referred to and counsel for appellants submitted that the case will, at any rate, come under Section 58 of the Act, where it is provided that "where the ship concerned in the adventure is missing, and after the lapse of a reasonable time no news of her has been received, an actual total loss may be presumed.
29. Counsel for appellants submitted that the Act under Section 68 provides how the insurer has to indemnify the insured in the case of total loss. Section 68 of the Act reads thus:--
"Subject to the provisions of this Act, and to any express provision in the policy, where there is a total loss of the subject-matter insured--
(1) if the policy be a valued policy, the measure of indemnity is the sum fixed by the policy;
(2) if the policy be an unvalued policy, the measure of indemnity is the insurable value of the subject-matter insured."
30. Counsel for respondent submitted that there is no proof of loss of the Vessel by a peril of the sea or the Vessel "in the adventure is missing". The insurer is liable under the policy only if the loss is occasioned by the peril of the sea or the Vessel "in the adventure is missing". The schedule attached to the Act gives the form of policy. The policy is issued under Section 24 of the Act, since it is provided that a contract of marine insurance shall not be admitted in evidence unless it is embodied in a marine policy in accordance with the Act. So, the policy in this case also has to be construed as per the rules of construction of the policy given in the Act itself. R. 7 of the Rules for construction of policy, deals with perils of the same. The term "perils of the seas" refers only to fortuitous accidents or casualties of the seas. It does not include the ordinary action of the winds and waves. Further, Rule 12 deals with all other perils thus : "The term "all other perils" includes only perils similar in kind to the perils specifically mentioned in the policy.
31. Counsel submitted that in this case, there is no evidence that the loss of the Vessel, which is said to be mysterious, cannot be considered as a real loss of the Vessel, because if it is engineered by the insured itself, there cannot be any real loss which has to be indemnified by the insurer. It was emphatically contended before us that the evidence in the case probabilises an inference that what is pleaded and attempted to be proved, that by the drifting of the Vessel from the place of anchorage, which got sunk by itself, is not a case, which can be safely relied on from the circumstances unfolded in the case. Counsel also relied on Ext. A12, which has been proved by the plaintiffs, which gives the general weather condition of Alleppey Port. Ext. A12 shows on 12-2-1980, the sea condition was moderate; general weather cloudy; and on 13-2-1980, the sea condition was calm and general weather partially cloudy. It is also stated that "no adverse weather warnings during the days".
32. The policy is to cover the perils of the sea and going through the rules for construction of policy, perils of the sea do not include the ordinary action of the winds and waves. True, the definition of 'maritime perils' means the perils consequent on, or incidental to, the navigation of the sea; but it is made clear, that is, perils of the sea, fire, war perils etc. and any other perils which are either of the like kind. So, perils of the like kind also have to be construed as perils, which take their colour from the perils mentioned in Section 2(e) of the Act.
33. In The Law of Insurance by Mr. Raoul Colinvaux, the learned author deals with burden of proof. The burden of proof is upon the assured to show that the loss was proximately caused by a peril insured against. See (1921) 2 AC 41 at 58 (British Marine v. Gaunt). "To prove a prima facie case the assured need not prove how the casualty occurred, or what particular peril caused it: he need merely prove that the cause fell within the perils insured against. Thus where the assured under a marine policy covering the usual perils of the sea but warranted "free of capture" proves that the Vessel is at the bottom of the sea, he discharges his burden of proof." Certainly when once the assured has produced a prima facie case the burden shifts to the insurers to controvert the case of the insured. It was pointed out that unless the policy otherwise provides the fact that the loss, though proximately caused by some insured peril, has been brought about by negligent acts or omissions of the assured himself, or his employees or agents, does not constitute any bar to recovery by the assured,
34. The circumstances proved in this case may not justify to apply the above principle. The loss must occasion on account of an insured peril or at least proximately caused by an insured peril. It has to be remembered that the Act defines the term perils of the seas to refer only to fortuitous accidents or casualities of the seas and that the term does not include the ordinary action of the winds and waves.
35. In Macbeth & Co. v. King, (1916) 86 LJKB 1004, a case was considered by Bailhache, J. on the question of prima facie case under the policy. In that case, the insured proved the loss of the ship, but it was only a proof of a prima facie case. The Court considered the other possibilities on the assumption of the loss of the ship. "For some days previous to February, 15 it had been blowing hard from the north-east, and it is possible that some mines from the English minefield which had been laid off Flam-borough Head might have been into the track of Vessels going from the Spurn Light to Flamborugh Head. Also it is well known that there were in this part of the sea stray floating German mines, and constant visits from enemy submarines." On these facts, the Court concluded thus:--
"Forming the best judgment that I can, I am satisfied that the Membland was not lost by the ordinary perils of the sea. I cannot imagine any such peril which would have resulted in the Vessel completely disappearing in so short a time. The fact that no wreckage reached the shore is not in any way conclusive of the loss being due to "perils of the sea" in view of the evidence which I have had before me. Once that is out of the way, I can see nothing to suggest that the loss was due to perils of the sea. On the other hand, there are many possibilities of danger from mines and submarines, and I have come to the conclusion that the toss of Membland was due to the latter. The defendant is therefore protected from liability by the exceptions clause in the policy."
36. Section 55 of the Marine Insurance Act is a replica of the English Marine Insurance Act, 1906. Section 55 reads thus :--
"55. Included and excluded losses.--
(1) Subject to the provisions of this Act and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but, subject as aforesaid he is not liable for any loss which is no proximately caused by a peril insured against.
(2) In particular--
(a) the insurer is not liable for any loss attributable to the wilful misconduct of the assured, but, unless; the policy otherwise provides, he is liable for any loss proximately caused by a perial insured against, even though the loss would not have happened but for the misconduct or negligence of the master or crew;
(b) unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay be caused by a peril insured against;
(c) unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or for any loss proximately caused by rate or vermin, or for any injury to machinery not proximately caused by maritime perils."
Commenting on the above provision of the English Act, Arnould in his Law of Marine Insurance and Average (Sixteenth Edition, Vol. II), has said that the liability of the underwriter is made a limited liability to indemnify the assured only against a loss caused by the direct operation of the perils insured against, the onus being on the assured to prove that the loss was so caused. The learned author says that it must be noted that the limitations in Section 55(2) are not exceptions, in the proper sense of that word, but are really specific instances of the limits of the cover described generally in Section 55(1). Again it is said in paragraph 780 that under the Marine Insurance Act, 1906 (English Act), the term "perils of the seas" refers only to fortuitous accidents or casualties of the seas. It does not include the ordinary action of the winds and waves. 37, In this case, even according to the plaintiffs, what has happened is that the Vessel was drifted out to the sea, perhaps, because of the break of the cable of the anchor or some defect in the anchor. Assuming it is so, though the evidence adduced in the case, according to us, are all giving contra-indications, we do not think that the plaintiffs can sustain an action. Almost a similar instance has been stated by Arnould in the Law of Marine Insurance and Average-- Sixteenth Edn. Vol. 2. We feel that is quite appropriate quote the same.
"Thus, if a cable be chafed by the rocks, or the fluke of an anchor broken off, in a place of usual anchorge and under no extraordinary circumstances of wind and weather, this is ordinary wear and tear the voyage which falls on the owner alone, and for which the underwriter is not liable; if, on the other hand, the same thing were to occur in a place of unusual anchorage, or even in the usual anchorage ground in a gale of extraordinary violence, the underwriter would be liable for the loss as caused by the perils of the sea."
38. Considering all the aspects of the case, which, we have already discussed, we do not see any entitlement for the plaintiffs to recover the amount under the policy. The Court below has found so. Appeal is only to be dismissed. We do so. In the circumstances of the case, we do not order costs.