Madras High Court
M.K. Kuttan Pillai(Died) vs National Insurance Company on 6 February, 2002
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 06-02-2002
CORAM:
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
Appeal Suit No.773 of 1987 and Tr. Appeal No.429 of 1989
1. M.K. Kuttan Pillai(died)
2.Smt. J. Chellamma
3.K. Thulasidharan
4.K. Radhakrishnan ... Appellants in
A.S.No.773 of 1987
K. Thulasidharan ... Appellant in
Tr.Appeal No.429 of 1989
-Vs-
National Insurance Company
Limited, incorporated under
the General Insurance Business
Nationalisation Act, represented
by the Regional Manager
Southern Regional Office
having office at No.768, Mount
Road, Madras û 600 002. ... Respondent
Prayer in A.S.No.773 of 1987 :
Appeal against the judgment and decree dated 27-09-1983 in
O.S.No.98 of 1980 on the file of the Subordinate Judge,
Nagapattinam. Prayer in Tr.Appeal No.429 of 1989 :
Appeal against the judgment and decree dated 27-09-1983 in
O.S.No.87 of 1982 on the file of the Subordinate Judge,
Nagapattinam.
! For appellant :: Mr. V. Lakshmi Narayanan
for Mr.A.J.Abdul Razack
^ For respondent:: Mr. Nageswaran
><=><=>< =><
: COMMON JUDGMENT
The appellant claimed that two ships Kalpana I and
Kalpana II were destroyed during the cyclone that hit
Nagapattinam on 11-11-1977. Both the ships were insured with the
respondent herein against all loss and damages and against
adventures under perils of the sea. The policy with regard to
Kalpana I (K1 in short) commenced from 13-04-1977 and ended with
12-04-1978, whereas the policy for Kalpana II(K2 in short)
commenced from 12-08-1977 and 11-11-1977. The respondent settled
the claim of the appellant in respect of K1 but not in respect of
K2 , since the time of the loss was crucial with regard to K2,
the policy expiring with 12 midnight on 11-11-1977. The
respondent directed a second investigation and on that basis came
to the conclusion that there was no satisfactory proof that K1
and K2 were anchored at Nagapattinam at the relevant time and
therefore, the Insurance Company was not liable. The respondent
thereupon filed O.S.No.98 of 1980 for recovery of Rs.82,248/being
the amount settled by the respondent for the claim made on K1
together with interest. The appellant filed O.P. NO. 3 of 1980
before the Subordinate Judge, Quilon for recovery of the amounts
payable in respect of K2. This was transferred to the file of
the Subordinate Judge, Nagapattinam as O.S.No.87 of 1982. Both
the suits were heard and tried together. The Trial Court came to
the conclusion that the claim in respect of K1 was false and that
K2 was not sunk in sea owing to the cyclone. 20 documents were
marked on the side of the plaintiff, who is the respondent herein
and four witnesses were examined. 17 exhibits were marked on the
side of the defendant, who is the appellant herein and four
witnesses were examined. Aggrieved by the judgment and decree,
the present two appeals have been filed. The respondent's suit
was decreed. The appellant's suit was dismissed.
2. Mr. Lakshmi Narayanan, learned counsel appearing for
the appellant briefly stated the facts of the case:
Originally, the owner of K1 was the father of the
appellant herein, one Kuttan Pillai. He died and the appellant
was brought on record as his Legal Representative. The appellant
was the owner of K2 and therefore, now the appellant in Tr.
Appeal No.429 of 1989, alone is interested in both the boats.
These two boats were insured with the respondent herein. Both
the boats are engaged in fishing in eastern and western coasts.
When they were fishing in seas of Chennai some disturbance arose
between catamaran operators and mechanised fishing boat
operators, and therefore, on 08-11-1977, the boats started from
Kassimode Boat basin. As per schedule, the boats ought to have
reached Nagapattinam on 09-11-1977 to proceed to Mandapam,
thereafter. By the time the boats arrived at Nagapattinam Port,
the driver of K2 informed the appellant that the rudder shaft of
K2 was broken. So the appellant arranged for K1 to tow K2 to
Nagapattinam Port and arranged for the repairs of the rudder
shaft at M/s. Kumaravel Engineering Works. K2 was refitted on
the morning of 10-11-1977. The boats could not start from
Nagapattinam because of rough sea and cyclonic warning was raised
by the Port Authorities. So the boats were anchored to the wharf
at the Nagapattinam Port and were secured with proper watch and
wards. At about 7 p.m when the appellant went to the Port
Office, the entire crew members were on board. The boats started
dashing against each other. The appellant rushed to the Port
Office and met D.W.3, the Meteriological Observer, who was on
duty. He also reported to one Govindarajan, Inspector of
Fisheries, Nagapattinam, who went to the wharf with the
appellant, the boats by then had gone adrift. Because of the
inclement weather, no help could be given. The authorities were
informed on 11-11-1977 immediately after the incident. On the
morning of 12-11-1977, a search was made and some parts of both
the boats were recovered. A telegram was sent to the respondent
on 13-11-197 7. A protest was lodged on 27-12-1977 to the Port
Officer, since he was away. One J.B. Boda, Marine and General
Survey Agencies Private Ltd., Madras conducted a detailed survey
regarding the occurrence, place of occurrence, time of occurrence
etc., and examined the concerned persons. They gave a report
concluding that the loss of two vessels was a total loss. So
according to the learned counsel, when the agency engaged by the
respondents themselves had reported that there was a total loss,
there was no justification for the respondent to engage another
investigating agency on behalf of whom P.W.2 has given evidence.
According to the learned counsel, the report given by the second
detective agency marked as Ex-A13, is nothing but a comment on
Ex-A6, which is the first survey report. A perusal of the report
shows that no independent investigation has been done. The
learned counsel also submitted that while the agency engaged
initially by the respondent is an expert in investigation of
Marine Insurance claims, the agency engaged thereafter had no
such special expertise. He would also submit that the
investigation was held clandestinely and behind the back of the
appellant and therefore, cannot be relied on. He also submitted
that Ex-A6, which is the first survey report had been forwarded
by the Investigating Agency to the respondent alongwith some
enclosures which include the original statements, the true copy
of protests etc., and these are not produced by the respondent
before the Court, but were deliberately burked and therefore,
adverse inference ought to be drawn. He submitted that in any
event the scope of the second report was confined entirely to K2
and therefore, placing reliance on that the suit filed by the
respondent ought not to have been decreed, which related to K1.
The learned counsel submitted that there was no reason for D.W.3
to depose falsely on behalf of the appellant, who is a mechanised
boat operator from Quilon, Kerala. He also submitted that when
the narration of events show the frantic efforts made by the
appellant from about 8.30p.m on 11-11-1977 it was farfetched to
hold that the whole case was stage-managed him. In particular
they would point out to the investigation conducted by the first
agency namely J.B. Boda, where they have examined the officers,
who were contacted by the appellant. J.B. Boda had also
inspected some of the salvaged materials one of which bore the
letters "ANA I", which obviously belong to "KALPANA I". The
learned counsel also submitted that the Court below erred in not
adverting its attention to Ex-P15 to 17, which were all
certificates issued by the Sub-Inspector, Nagapattinam regarding
that the appellant had given a petition on 12-11-1977 regarding
the accident. The learned counsel also pointed out that the
respondent cannot claim that the boats were plying in area where
permission was not granted because Ex-B5 and the annexure to
Ex-A1 would show that specific permission was granted to ply in
the port limits of Tamil Nadu and Pondicherry from 07-11-1977 to
31-01-1978. He would submit that when the report of Boda which
is Ex-A6 stands uncontroverted, it would show that at 8.30p.m.,
the appellant was making desparate attempts to contact the
officers, and so the respondent cannot evade their liability
under the policy which expires only at 12.00p.m. There was a
safe three hour period which gave no room for any doubt or
ambiguity. He also submitted that the Court below erred in
coming to the conclusion that when the cyclone hit only at 12
midnight on 11-11-1977, the boats could not have sunk at 8.00p.m,
because it was clearly the evidence that rough weather started
sometime around 7.00p.m itself and the appellant had taken all
efforts to keep the boats secure and safe. It was also submitted
that merely because the reports of the missing, damaged or
salvaged boats did not bear the names of K1 and K2 it cannot be
said that they were not lost. He would submit that if the
receipt issued by Kumaravel Engineering Works, which was with the
respondent, had been produced, it would have clearly shown that
K2 and K1 were anchored at Nagapattinam. He also submitted that
the Court below erred in giving too much weight to the evidence
of P.W.3, who had stated that a boat must necessaril y enter the
bar channel to get into the Wharf and before entering the bar
channel a fee of one rupee per day must be paid as channel fee.
The learned counsel would submit that in the evidence of the same
witness it is also found that sometime they do no collect at the
time of entry but they recover it later. So merely on the basis
of the fact that the entry fee had not been collected the claim
of the appellant cannot be rejected. He would also submit that
it was the case of the appellant that K2 was tied securely with
two ropes to the wharf and K1 was tied to K2. Therefore,
according to the learned counsel when the respondent had accepted
the loss of K1, necessarily they ought to have accepted the loss
of K2 because both were tied together. He would submit that
there was no justification for the respondent to claim return of
the amount that had been settled under the policy with relation
to K1. He would pray that both the appeals should be allowed.
3. Mr. Nageswaran, learned counsel for the respondent
on the other hand would submit that the contract of insurance is
based on warranty of legality and if it is proved that the
insured has committed any illegality, the insurer stands absolved
from any liability. According to him, the Master of the vessel,
which in the case was the Tindal, ought to report the arrival of
the ship to the authorities within 24 hours and in this case,
according to the appellant, they had entered the Nagapattinam
Port on 9th itself an d until the alleged loss they had not
reported their presence. According to the learned counsel '
adventure' would mean and include the movement of the ship from
one port to another. So their presence at Nagapattinam without
reporting the authorities was illegal. This was an act of
illegality during the course of the adventure and hence the
insurer need not indemnify the loss. The learned counsel would
explain that a suit had to be filed because it was found that a
false claim has been made by wilful misrepresentation which led
the surveyor to produce an incorrect report in respect of K1, and
therefore, the respondent was entitled to the amount claimed.
4. As regards K2, he would submit that since the exact
time of accident is not known and since the policy expired at 12
midnight on 11-1 1-1977 and since the first investigating
agency's report was not adequate to clarify these doubts the
second investigating agency was engaged. He would submit that
when the report of the first investigating agency is not
satisfactory and a false claim is made, they are entitled to
engage another detective agency to investigate the same. The
nature of the investigation demanded secrecy, otherwise it would
defeat the purpose because the appellant would fill up the lacuna
in his case if he knew about the second investigation. He also
submitted that the evidence with regard to the presence of the
two boats was very vague, since, none except the appellant
himself as D.W.1 has spoken of the presence of the two boats.
The appellant had not chosen to examine the crew members. He had
examined in addition to himself the photographer, who took
pictures of the wreck, who had nothing really material to say
about the existence of the boat, D.W.3, Meteriological Observer,
who had no personal knowledge of the presence of the boats and
who had also not seen them, would merely say that the appellant
had told him at about 8.00p.m that ships had sunk and finally
D.W.4, who is an Inspector of United India Insurance Company had
spoken to the fact that on 11-11-1977, the storm commenced at
7.00p.m. Apart from this, there is no acceptable evidence
regarding the two boats and therefore, the appellant is not
entitled to any relief.
5. The learned counsel relied on the following
decisions: (a) M/s.Bihar Supply Syndicate Vs. Asiatic
Navigation(AIR 1993 SC 2054)where the Supreme Court held that the
consignor should prove that the cargo was lost due to perils of
sea. (b) Mewa Lal Jha Vs. King Emperor (1925 Patna 535),
wherein it is stated that "unlawful" means contrary to law laid
down by the Act or rules framed thereunder. (c) Emperor Vs.
Fazlur Rahman (AIR 1930 Patna 593)wherein it was held that, "The
learned Judge appears to have been under the impression that in
order to constitute an offence under S 385 the threat must be of
some conduct which might either constitute an offence in criminal
law or which might be made the basis of a civil action for
damages; but he has failed to observe that this does not exhaust
the definition of the word "illegal" contained in S.43 and has
omitted to read the words therein "or which is prohibited by
law". The word "illegal" has been given by the section a very
wide meaning and it has the same meaning as "unlawful". (d)
Kesava Rao Vs. Subbaraju (AIR 1957 AP 55), wherein it was stated
thus: "Legality and regularity" are well understood terms and
well recognised grounds of judicial interference on an appeal or
revision. An order is illegal if it is opposed to any enactment
or any rule having the force of law. It is irregular if the
procedure followed is in violation of the principles of natural
justice and fair play."
(e) James Yachts Ltd., Vs. Thames & Mersey Marine
Insurance Co. Ltd., and others (1977 I Lloyd's Law Reports). In
this decision the Insurance was with regard to the boat builders'
risk. The Insured did not inform the Insurer that the legal
authority had not given the builder the permission to carry on
business at that premises. It was held by the Supreme Court of
British Columbia and Canada that the Insurer could avoid the
liability on the policy.
6. Mr. Lakshmi Narayanan, learned counsel for the
appellant, in reply would submit that this question of illegality
was not raised in pleadings. In any event, the Act itself
permits the payment of penalty by the owner of the boat, if there
is a default in reporting promptly. Therefore, he would submit
when the lapse can be rectified it cannot be an illegality,
because it would lead to the curious position of the Insurance
Policy lapsing because of non-compliance within the time
stipulated and reviving on its own when the lapse is rectified.
According to the learned counsel this ground of illegality raised
by the respondent must be rejected.
7. The question for consideration is whether the
respondent is entitled to get back the money paid in full and
final satisfaction of the claim in respect of K1 and whether the
appellant had proved that he is entitled to be indemnified by the
Insurer for the loss of K2.
8. The claim in respect of K1 can be taken up first
since the claim in respect of each of the boat stand on a
different footing. Ex-A1 is the policy and the boat has been
insured from 13-04-1977 to 12-04-1978. Though originally it was
stipulated that the vessels should not be employed from 1st
January to 31st January, subsequently, on payment of additional
premium, permission was granted. In Ex-A2, dated 17-11-1977, the
letter written by the father of the appellant, who was the then
owner it is stated that K1 was anchored inside the Nagapattinam
Port with a long rope and that it sank into the sea. Ex-A3 would
prove that the respondents themselves were aware of the dispute
between the catamaran operators and the fishing boat operators,
which was the reason for the appellant removing his boats from
Madras to Mandapam. Ex-A5 is the protest which is dated
27-12-1977. The counsel for the respondent would submit that the
protest could have been lodged immediately, since even notary
public are authorised to do it. The fact remains that the
protest was not lodged with the said Port officer immediately,
but only on 23-12-1977, since he was not available in the
relevant date. In this it is stated that,
"we securely tied the said launch Kalpana No.1 at the
wharf and were keeping watch."
9. Ex-A6 is the report conducted by the Boda Agency in
respect of the alleged sinking of K1 and K2. Their opinion is
that the incident may have taken place as reported. Ex-A7 is the
note to the Deputy Manager wherein the officer had recommended
that since the loss of K1 had been established, the claim may be
settled and that as far as K2 is concerned it is better to
determine the exact time and therefore, special investigation
must be initiated. Ex-A8 also confirms that the claim in respect
of Ex-A1 should be settled. Ex-A9 is the acknowledgment of the
cheque in full and final settlement of the claim. It is clear
that as regards K1, the policy was in force and the respondent
was also satisfied that it was lost in the manner claimed by the
appellant. The Marine Insurance Act defines "Marine Adventure"
thus: 1.any insurable property is exposed to maritime perils; 2.
the earnings or acquisition of any freight, passage money,
commission, profit or other pecuniary benefit, or the security
for any advances, loans, or disbursements is endangered by the
exposure of insurable property to maritime perils; 3. any
liability to a third party may be incurred by the owner of or
other person interested in or responsible for, insurable property
by reason of maritime perils;
The nature of warranty is referred to in Section 35(1),
(2) and (3).
Section35.Nature of Warranty-- (1) A warranty, in the
following sections relating to warranties, means a promissory
warranty, that is to say a warranty by which the assured
undertakes that some particular thing shall or shall not be done,
or that some condition shall be fulfilled, or whereby he affirms
or negatives the existence of a particular state of facts. (2)A
warranty may be express or implied. (3)A warranty, as above
defined, is a condition which must be exactly complied with,
whether it be material to the risk or not. If it be not so
complied with, then subject to any express provision in the
policy the insurer is discharged from liability as from the date
of the breach of warranty but without prejudice to any liability
incurred by him before that date.
Under Section 36 of the Indian Ports Act it is possible
to waive the breach of warranty. Warranty of legality which was
referred to by the learned counsel for the respondent would mean
that the adventure insured is a lawful one and that so far as the
assured can control the matter the adventure can be carried out
in a lawful manner. Under Section 39 of the Indian Ports Act,
the Master has to report his arrival within 24 hours after the
arrival and shall also be liable to pay the Port dues. Under
Section 39(2), a Master failing without wilful excuse to make
such report within the time of the said vessel shall be punished
with fine. Section 43 provides that no Port-clearance shall be
given until Port charges are paid. Under Section 44,Port charges
payable in one port shall be recovered in other Port. Section 45
deals with penalty for evading payment of port charges. The very
fact that under Section 39(2) of the Indian Ports Act, the
possibility of a lawful execution being available for not
reporting the arrival within 24 hours would show that the failure
to do so is not a illegality which will avoid the contract of
insurance.
10. If one were to accept the submissions made on behalf
of the respondent then 24 hours from the time when K1 entered
Nagapattinam that is on 10-11-1977 the policy would lapse,
because the entry of K1 and K2 was not reported. But the
evidence of P.W.3, which is also in consonance with the
provisions of the Act runs thus:
"If the boat has to enter it can do so only through the
entrance point."
and thus:
"We can collect the boat channel fee even later."
(the English version of the evidence)
Therefore, the fact that the wharf fee was not paid
cannot by itself prove that K1 was not at the Port nor is it an
act of illegality which would result in the policy lapsing. The
Act provides for imposition of penalty if the charges are paid
after the stipulated time and the Act also provides for
indulgence being shown to the Master if lawful excuse is given.
The very fact that even in the evidence the witness submits that
very often they would collect the fee later would show that it is
not an illegality.
11. The cases relied on by the learned counsel for the
respondent do not come to his aid. In AIR 1925 Patna, what is
unlawful is defined but as we have seen even the Act provides for
subsequent payment and condonation of the lapse. Therefore, the
non-payment within 24 hours is not an illegality. AIR 1930 Patna
593 and AIR 1957 AP 55 also will not come to his aid. As regards
the decision in 1997 Lloyd's law Report, there the learned Judges
held that the insurer is entitled to avoid policy because the
local Authority refused permission on the ground that the using
of the premises was a high hazard risk. It transpired thereafter
that a fire broke out resulting in loss to the insured. In these
circumstances, it was held that there was a breach of warranty
for the insurer ought to have been put on notice that the boat
building activity is a highly hazardous one, which is definitely
one of the basic factors that would weigh that the insurer before
entering into the contract of insurance. In this case, there is
no pleading to the effect that the boats were tied, where they
ought not to have been tied. In fact, the policy itself provides
the boats shall not be employed during unsafe weather conditions
and they should be anchored or moored and they should be secured
with proper watch and ward. In this case, the weather
conditions were unsafe, the evidence and pleadings that K1 was
secured and provided with watch and ward had not been denied.
The boat was also tied to the wharf, where it should be tied.
12. It is also relevant to note that apart from the
evidence of P. W.3 and the provision regarding warranty of
legality there is no basis for the appellant recalling the claim
made by the claimant in respect of K1. We have seen that both
these factors do not help the respondent in any way. The SDB's
report which is Ex-A14 was only with reference to K2 and not K1.
So investigation could also have been made only with regard to
K2. Any observation or finding rendered by this Detective Bureau
will have no bearing in respect of K1. Ofcourse, in a further
report which is subsequent to 18-09-1979 long after Ex-A14, was
filed the Chief Investigator, who is P.W.2 would know that the
fact that the owner of K1 and K2 had not been prosecuted by Port
Authorities would afford positive proof that K1 and K2 were not
in the wharf. This additional report has been obtained only to
form the basis of the second suit. The following paragraph and
findings in Ex-A6 is as follows: "We also inspected the
materials recovered from the sea shore of Nagapattinam, which
were lyilng near an Ice Plant and part of a wooden hull was found
with the marking of "ANA I" on it. We are of the opinion, that
this marking on the hull may belong to KALPANA I. The diesel
tank, exhaust pipe, cabin door and wooden planks from the engine
room were identified by Mr. Thulasidharan as belonging to
Kalpana I."
13. K1 had come to Nagapattinam. The document Ex-A6
shows that K1 had indeed entered the Port and had subsequently
been lost. The policy provides for that the vessel shall not be
employed through unsafe weather conditions and when not in use
the vessel should be safely anchored or moored with proper watch
or wharf. The pleadings are to the effect that K1 was safe with
proper watch and ward. The Court below had placed its decision
only on the investigation of P.W.2, which was only with regard to
K2. The part of the wooden hull bearing "ANA I" must belong to
K1(KALPANA I), unless the respondent shows there was another boat
bearing a name ending with these letters.
14. In these circumstances, the suit filed by the
respondent must necessarily be dismissed and the judgment and
decree in O.S.No.98 of 1 980 is setaside.
15. As regards K2, the matter stands on a different
footing altogether. The policy expires with the midnight of
11-11-1977. The appellant will have to establish beyond doubt
that the vessel was lost due to perils at sea before midnight.
The appellant will also have to prove beyond doubt that the
vessel was anchored at the wharf. In this regard, if one sees
the earliest document dated 17-11-1977 it states that,
"I anchored the boat inside Nagapattinam Port, tied the
boat with strong rope and chain. Ofcourse this is with reference
to K1."
16. In Ex-A5 which is the protest note again it is
stated that,
"we securely tied the said launch K1 at the said wharf
and were keeping watch."
It must be remembered that the protest note was lodged
only on 27-12-1977. There is no reference to K2 in the protest
note. The counsel for the appellant would submit that the
presence of K2 is proved by the fact that the vessel was repaired
by Kumaravel Engineering Works and the bill paid to Kumaravel
Engineering Works had been given to the First Investigator or
namely J.B. Boda and that Ex-A6 also referred to it. But if one
looks at Ex-A14, the second report, it is stated therein that the
enquiries made at Kumaravel Engineering Works did not furnish any
information regarding the identity of Gurumurthy whose signature
is found in the bill. In the report is is also stated that,
"the shaft itself was said to have been welded by Mr.
Annamalai, the brother of Mr.K. Shanmugham who is the Proprietor
of the aforesaid Firm. Mr. Annamalai stated that the shaft was
in their Firm for 3 days. This is in direct contradiction with
the version of both Mr Gowdaman and Mr Thulasidharan who affirmed
that the shaft was given for welding on the evening of 9th
November 1977 and refitted to the boat ( Kalpana II) on the
morning of 10th November 1977."
17. The witness P.W.2, J.A. Harees, who is the chief
Investigator of the Agency which issued Ex-A14 had also stated
that from his enquiries he came to the conclusion that the
vouchers produced for K2 was procured. The appellant has not
chosen either to call upon the respondent to produce the original
bill or to examine someone from Kumaravel Engineering Works to
testify to the fact that K2 boat was repaired there. In the
absence of any satisfactory evidence to show that K2 was repaired
by Kumaravel Engineering Works this Court cannot accept the same.
It is also the case of the appellant that the fuel for both the
boats were obtained from one Joseph, who is a prawn merchant.
This Joseph is not examined. And, even if Joseph had supplied
fuel it will not prove the presence of K2 at the wharf.
Ingeniously the appellant had tried to fill up the gap with
regard to presence of K2 by stating for the first time in his
pleadings as follows:
"Kalpana No.2 was secured with 2 ropes (one manila and
one terylene) to the concrete piles on the wharf and Kalpana No.1
was secured with 2 similar ropes to Kalpana NO.2."
18. Presumably, this was done, because there was proof
for K1 being there and if the Court accepted that K1 was secured
to K2 he would obtain compensation for the claims in respect of
both the boats. According to the appellant he had asked one Mr.
Govindarajan to come and see that his boats which were going
adrift. Ex-A6 also refers to this. But Ex-A6, also shows that
Govindarajan could not ascertain the identity of the boats, which
were going adrift. The appellant has not chosen to examine the
said Govindarajan. D.W.3, the Meteriological Observer, about
whom it was told that he is an officer, who has no axe to grind
has not stated anything about K2. The nonpayment of the fee at
the barchannel is not relevant for deciding the claim of K2, for
the reasons given supra. As stated earlier the rules provide for
condonation of delay in reporting the entry of the vessel and the
evidence of P.W.3 is also to the effect that they would collect
the fee when the boat left sometimes and if they did not collect
it then they would recover it later. The relevant sections which
have already been extracted also show that Port charges in
respect of one Port can be collected from the other Port. But
this apart, the evidence with regard to K2 is far from
satisfactory. There is absolutely no material to show that K2
entered the Nagapattinam Port or that it was lost due to perils
at sea or more importantly assuming that K2 entered the
Nagapattinam Port it was lost before midnight of 11-11-1977. The
investigation done by the second investigating agency is
relevant:
"Evidence, oral, documentary and circumstantial that had
emerged during enquiries shows that 'Kalpana II' has not been
lost from the wharf at Nagapattinam on the night of 11/12th
November 1977 as claimed by the Insured. Records maintained at
the Police station, Nagapattinam Town and the office of the
Deputy Director of Fisheries, Nagapattinam belies the claim of
the Insured that 'Kalpana II' was lost on the night of 11th
November 1977 when Nagapattinam was struck by the cyclone. There
is not a shred of evidence to show that 'Kalpana II' was lost at
Nagapattinam on the night of 11th November 1977 as claimed by the
Insured and that too before 12 midnight that date. Note: No
mention is made about 'Kalpana I' as this has not been referred
to S.D.B for enquiry"
19. To this the appellant has no answer except to say
that if the case regarding K1 has to be accepted then the case
regarding K2 also has to be accepted. This argument is
fallacious. At the earliest juncture the case of the appellant
is that K1 was tied at the wharf. Any improvement made to this
case not supported by evidence cannot be taken note of. Further,
when the policy regarding K2 expires at the stroke of 12 midnight
of 11-11-1977, the appellant ought to have demonstrated beyond
doubt that K2 was lost due to perils at sea during the currency
of the policy. This has not been done. Ex-B15 to B17 which are
alleged to be certificates of Inspectors certifying that the loss
of the boats were reported are of no avail to prove the presence
of the boats. The person issuing the certificate has not been
examined. The Trial Court rightly rejected the evidentiary value
of these three certificates. There is no proof that the salvaged
materials alleged to belong to K2, are in fact parts of K2.
While with regard to K1 atleast a broken bit of the name board is
available which helps the Court to come to the conclusion that K1
must have been lost as pleaded by he appellant. Apart from the
interested testimony of P.W.1, there is nothing to show that the
salvaged materials belong to K2. The evidence with regard to
loss of K2 is extremely scrappy and unsatisfactory. In these
circumstances, it is not possible to accept any of the grounds
raised by the appellant.
20. A.S.No.773 of 1987 is allowed with costs and
Tr.A.S.No.429 of 1 989 is dismissed. No costs.
06-02-2002
Index:
Yes/No
glp
To
The Subordinate Judge,
Nagapattinam.
PRABHA SRIDEVAN,J.
Pre-delivery Judgment in Appeal Suit No.773 of 1987 and Tr. Appeal No.429 of 1989 06-02-2002