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II. Total and/or constructive total loss:

The learned Senior Counsel Mr. Kapadia appearing for the insurance company submitted that the insurance policy was for total and/or constructive total loss only. It is the contention of the insurance company that total loss and constructive loss are defined under Sections 57 and 60 of the Marine Insurance Act, 1963 and in this case it cannot be said that there was a total loss as the insured has recovered more than Rs.13.00 cores by sale of the vessel.

Actual total loss is defined in Section 57 as under:

57.

Actual total loss. (1) 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 irretrievably deprived thereof, there is an actual total loss.

(2) In the case of an actual total loss no notice of abandonment need be given.

Similarly, constructive total loss is defined as under:

60. Constructive total loss defined. Subject to any express provision in the policy, there is a constructive total loss where the subject-matter insured is reasonably abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred.

88. The law relating to constructive total loss, was altered to the disadvantages of the assured by the Act but the law relating to the actual total loss remains the same. An actual total loss is not a pure question of law. The loss must be actual and the actual loss must be a total loss.

An actual total loss does not depend on the treatment, volition or election of the assured whereas the foundation of the constructive total loss is the election of the assured. In actual total loss a total destruction of the insured ship must be proved as a fact. Her conversion into a completely different thing is also a pure question of fact. And every irretrievable deprivation of the ship stands on the same footing. And here there is no scope for applying any subjective test. And all facts, subsequent to an actual total loss are wholly irrelevant for the purpose of determining the rights of the assured and the liabilities of the insurer because once there is an actual total loss it is actual total loss for all time to come under the law of Marine Insurance and it does (not) matter in the least whether the assured or the underwriter have any knowledge of the actual total loss nor their futile attempt to procure her arrival can alter its legal consequence.

Secondly, it is apparent that this defence of non-disclosure is taken for the first time at the time of filing of written version. Written version was filed on 8.01.1999. Prior to that admittedly there was a lot of correspondence between the parties. At no point of time the insurance company stated that there was any suppression on the part of the complainant in not disclosing that one engine of the vessel was not functioning. For this purpose, learned Counsel for the Complainant further submitted that in the meeting of the Board of the insurance Company reliance was placed upon the advice given by their lawyers Mulla & Mulla. In their advice also nowhere it was mentioned that there was non-disclosure of any fact, material or otherwise, by the complainant. In the note prepared for passing the resolution by the Board for repudiating claim, no such allegation was made. The witness of the Opposite Party Mrs. Ruckmani Venkatachari , OPW3 in her cross examination has confirmed that repudiation was only on the ground that the vessel had encountered neither total loss nor a constructive total loss.