IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 381 of 1993(D)
1. M/S. UNITED INDIA INS.CO. LTD.
... Petitioner
Vs
1. K.C.AUGUSTINE
... Respondent
For Petitioner :SRI.SIBY MATHEW
For Respondent :SRI.N.D.GANGADHARAN
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :30/05/2008
O R D E R
P.R.RAMAN &
T.R.RAMACHANDRAN NAIR,JJ.
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A.S.NO.381 OF 1993
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Dated this the 30th day of May, 2008
JUDGMENT
Raman, J.
First defendant in O.S.No.313/89 is the appellant herein.
Plaintiff instituted the abovesaid suit for realisation of money. As per
the plaint averment, plaintiff was the owner of a deep see fishing vessel
by name “Simla” registered in the Merchantile Marine Department,
Kochi. Plaintiff availed a loan for the construction of the said vessel
from the 2nd defendant and also by making private borrowings. The
said vessel was subsequently insured with the lst defendant Insurance
Company, which is the appellant herein. The total value of the policy
taken is for a sum of Rs.40,00,000/-. Both the vessel and its accessories
were valued by the Marine Surveyors for the purpose of insuring the
vessel. Valuation therefore includes the value of the net also. It is
stated that on 23/6/1988 the vessel met with an accident while
engaging in fishing and the net attached to the vessel was entangled in
some underwater obstruction. In spite of earnest efforts made, the net
could not be released. So, the net was pulled for saving the entire net.
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As a result, damage was caused to the net. Claim for Rs.3,75,000/- was
lodged to the Insurance Company. M/s. Seascan Services, Kerala assessed
the loss sustained to the plaintiff and filed a survey report. But the lst
defendant did not settle the claim in spite of repeated demands. Plaintiff
understood that the rejection of the claim was based on the technical
ground. Hence the suit. The suit itself was filed as an indigent person for
realisation of an amount of Rs.4,59,375/- and its future interest and costs.
2. The lst defendant in the written statement contended that the
plaintiff had insured the vessel with the 2nd respondent herein covering
total loss and partial loss as per the provisions of Institute Fishing Vessel
Clause. The policy covers the damage sustained to the plaintiff due to
riot, strike, personal accidents to the crews etc. As per the Institute
Fishing Vessel Clause, the plaintiff is not entitled to claim any amount as
damages for the partial loss of the net, since the loss was occurred while
the vessel was engaged in fishing. Hence, the claim is not admissible in
law. The quantum is also disputed. The net which used by the plaintiff
was old. No periodical maintenance was made to the net. The 2nd
defendant-Bank filed a written statement contending that in case the suit is
decreed against the lst defendant, the 2nd defendant may be allowed to
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realise the above amount to settle the loan account of the plaintiff. The
2nd defendant also contended that they are unnecessary parties. In the
replication the plaintiff contended that the 2nd defendant is estopped from
seeking any relief. According to him, acceptance of premium covering
the value of net creates a concluded contract between the plaintiff and the
lst defendant.
3. The court below considered the question as to whether the 2nd
defendant is a necessary party to the suit and found that the 2nd
defendant, from whom the loan was taken by the plaintiff, paid the
premium on behalf of the plaintiff, they are the necessary party.
4. The yet another issue raised in the suit is whether the plaintiff is
entitled to claim compensation for the damages caused to the net. In this
regard the evidence consists of oral testimony of PW-1 on the side of the
plaintiff and DWs.1 to 3 on the side of the defendants besides production
of documents Exts.A1 to A6 and B1 to B10.
5. The court below found after analysing the evidence in this case
that for the purpose of payment of premium, the vessel was valued
including the net and therefore it held that any claim for damages to the
net is sustainable. It also found that the cost of the lost net of 1,597.01
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Kgs. comes to Rs.2,53,356.11 paise. Even though grounds are urged in
the appeal memorandum disputing the correctness of the qualification
made by the court below, no materials are placed or arguments advanced
to convince that the qualification was in any way perverse. At any rate,
after analysing the evidence in this case, we find that the court below has
rightly assessed the cost of the net damaged. The court below while doing
so, has analysed the evidence on record including the oral testimony of
DW-3 and Ext.B10. We do not find any reason to interfere with the
finding.
6. It is the definite case of the appellant that as per Institute Fishing
Vessel Clause, the plaintiff has no right to claim damages for the loss of
fishing net, when the vessel was actually engaged in fishing. Reference is
made to Clause 12 of the Institute Fishing Vessel Clause, which reads as
follows:
“No claim to attach hereto for loss of or damage to
fishing gear during and as a result of fishing
operations”.
7. As per Clause 2 of the General Warranties Clause, loss or damage
to equipment of accessories payable only if a claim for loss or damage to
hull is admitted under the policy. Therefore, it was contended that
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damages if any, caused to the net is not admissible as per the policy. It
may be true that the entire ship including the net may be valued for the
purpose of premium. In case any damage is caused to the hull, necessarily
the entire damages including the damage caused to the net will then be
payable by the lst defendant. But in the absence of any damages to the hull
they are not liable to pay any damages caused to the net alone. The
Surveyor in Ext.B10 has also opined that the plaintiff is not entitled on
such reasoning for getting any damages. But the plaintiff contended that
General Warranty Clause as well as the Institute Fishing Vessel Clause
are not applicable to the facts of this case, as the lst defendant was
collecting premium separately for the net. It is also contended that the
General Warranty Clause annexed to the policy is not seen signed either
by the plaintiff or by the lst defendant. Accepting the said contention the
court below held that the lst defendant cannot contend that the plaintiff
has accepted the General Warranty Clause and that there is privity of
contract between the plaintiff and the lst defendant. On that view, it held
that the General Warranty Clause is not binding on the plaintiff.
8. The learned counsel appearing on behalf of the appellant, after
referring to the Insurance policy produced in this case, contended that
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even Page No.2 of the policy under the schedule, it is clearly mentioned
that the fishing vessel “Simla” is insured for a sum of Rs.40,00,000/-
against total loss and partial loss as per the Institute Fishing Vessel
Clause and Pollution Hazard Clause Attached. The Institute Fishing
Vessel Clause thus forms part of the contract between the parties. As per
Clause 12, there is no claim to attach hereto for loss of or damage to
fishing gear during and as result of fishing operations. The word “Fishing
Gear” is not defined in Institute Fishing Vessel Clause; but as per the
Webster’s Dictionary 1988 Edition, the term “Fishing Gear” means, the
tools, materials etc. needed and assembled, for a piece of work or
particular activity. As per the Collins English Dictionary 6th Edition, the
term “Fishing Gear” is defined as nautical all equipments or appurtenances
belonging to certain vessel, Sailor.
9. Therefore, there cannot be any doubt that the term “Fishing Gear”
in this context necessarily takes in a net attached to the vessel as it is
essential for fishing operations. Therefore, the exclusion clause contained
in Clause 12 of Institute Fishing Vessel Clause as per which there cannot
be any claim for loss or damages to such apparatus during and as a result
of fishing operations. Admittedly, in this case the damage if any,
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sustained to the net was in the course of the fishing operations. Therefore,
by applying Clause 12 the claim made by the plaintiff for loss sustained to
the net is not admissible.
10. Further, as per the General Warranty Clause, loss or damage to
the equipments or accessories will become payable only if a claim for loss
or damage to hull is admitted under the policy. True that the court below
found that the General Warranty Clause is not assigned other apparatus
and there is no reference to the General Warranty Clause as forming part
of the policy conditions. There is no oral evidence of DW-2 to that effect.
In such circumstances, the lst defendant, who placed reliance on the
clauses contained in the General Warranty Clause, to deny the claim made
by the plaintiff, has necessarily to prove that the General Warranty Clause
is also form part of the terms of the contract between the parties. There is
no acceptable evidence in this regard and as such the finding of the court
below that the plaintiff’s claim cannot be defeated by virtue of the clauses
contained in the General Warranty Clause, is sustained. But in view of
Clause 12 of the Institute Fishing Vessel Clause as referred to above, the
plaintiff is not entitled to claim damages to the net sustained in this case.
In the result, the judgment and decree of the court below is set aside
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and the suit stands dismissed. The parties shall bear their respective costs.
The appellant is permitted to withdraw the amount deposited at the time of
filing the appeal.
Appeal is allowed.
P.R.RAMAN,
Judge.
T.R.RAMACHANDRAN NAIR,
Judge.
kcv.