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FA/2897/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 2897 of 2010
======================================
UNITED
INDIA INSURANCE COMPANY LIMITED, JAMNAGAR - Appellant(s)
Versus
ABDUL
HAJI IBRAHIM BHAGAD - Defendant(s)
======================================
Appearance
:
MR
VIBHUTI NANAVATI for Appellant(s) : 1,
MR SURESH M SHAH for
Defendant(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 14/10/2010
ORAL
ORDER
1. Heard
learned advocates for the parties.
2. The
appellant Insurance Company has filed this appeal challenging the
judgment and order 30.4.2010 passed in Special Civil Suit No.39 of
1994 allowing the decree in the suit and ordering the present
appellant to pay Rs.10,00,000/-with interest at the rate of 6% from
1.2.1992.
3. The
facts leading to filing of this appeal, deserve to be set out as
under:-
3.1 The
respondent(original plaintiff) owned a vessel bearing registration
No.MSV-353 ‘Albuquerque’. The said vessel ( hereinafter referred to
as “the vessel”) was insured with appellant for the
period from 8.1.1992 to 7.2.1992 and the premium thereon was paid.
The appellant was also insurer so far as the personal accident of
crews on the ship were concerned. The said vessel, unfortunately,
sunk in the high sea after 16.1.1992. As there was no other
possibility and nothing was heard of the vessel nor did the crew or
the captain deported to any Port, the plaintiff reported the incident
of loss of the vessel to the concerned under the provisions of the
Merchant Shipping Act,1958 but the report was of no avail as the
machinery provided under the Act did not take any further actions.
The crews and dependants raised claim, which came to be allowed.
Being aggrieved therefrom the Insurance Company preferred First
Appeal being 2845 of 2000 before this Court (Coram: K.M. Mehta, J.,
as he then was), which came to be disposed of vide order dated
11.7.2007. The Court, while disposing of the said appeal, negatived
the contentions of the Insurance Company with regard to the so-called
bogus claim of the vessel owner and the challenge to the authority of
ship being lost on account of it being sunk at the high sea. This
judgment has attained finality as the Insurance Company did not
assail the same in any other forum. The Insurance Company repudiated
the claim of the owner of the ship. Therefore, it was constrained to
file Special Civil Suit No.39 of 1994, wherein also the decision of
this Court rendered in First Appeal No.2845 of 2000 decided on
11.7.2007 was pressed into service at Exh.211. The Court, after,
elaborate discussion, the material on record, the evidence and the
contention of the parties, passed the suit in favour of the plaintiff
as recorded hereinabove vide judgment and order dated 30.4.2010 which
is assailed in the present First Appeal filed under Section 96 of the
Civil Procedure Code, 1908.
4. Learned
advocate for the appellant could not dispute that this Court did
decide the First Appeal No.2845 of 2000 on 11.7.2007 against the
Insurance Company. However, he submitted that the witness, who has
been referred to in the earlier proceedings, namely, proceedings
arising out of the crew’s claim for compensation did not repeat the
version before the Court. Apart therefrom, he submitted that the
provisions of Merchant Shipping Act,1958, makes it clear that the
loss of vessel or causality of this nature is required to be reported
to the concerned authority. Learned advocate drew the attention of
this Court to Sections 358 and 359 of the Act in support of his
submissions and submitted that the lack of evidence in this behalf
would go to support the contention of the Insurance Company with
regard to the veracity of the claim of owner of the ship having been
sunk or lost at high sea. Learned advocate for the original-plaintiff
and respondent hereinabove appearing on caveat places heavy reliance
upon the decision of this Court in First Appeal No.2845 of 2000 and
submitted that in view of the principles of res judicata when the
very Insurance Company in respect of the very same accident has been
held liable to pay the compensation and indemnify the heirs of the
crew, then it can now not be permitted to re-agitate the issue in
this First Appeal as so far the contention with regard to bogus claim
has been, in terms, negatived by the competent Court at the relevant
time and which has been upheld in terms by this Court in the said
First Appeal No.2845 of 2000.
5. This
Court is unable to accept the submission of learned advocate for the
appellant. Learned advocate for the appellant could not controvert
the contentions raised by the respondent’s counsel with regard to the
issue of veracity of the claim being settled between the parties. The
Court need not elaborate upon the other aspect, suffice it to say
that the contentions with regard to no evidence coming forward in the
form of inquiry by the competent Court into the incident of accident
to the vessel as per the provisions of the Merchant Shipping Act, is
also though prima facie, appeared attractive but was of no avail in
view of the fact that the Court has elaborately considered that the
owner did sent intimation/information to all the concerned and those
communications have been forming part of the record as submitted by
learned advocate for the respondent. The admission of the Appeal,
would, therefore, not serve the interest of justice.
6. In
view of this, I am of the view that without further elaboration in
the matter, the appeal deserves to be dismissed only on the ground
that the final verdict given by this Court with regard to the
veracity of the claim has attained finality. Therefore, at this
stage, it would not be permissible to the Insurance Company to argue
for interference as the Insurance Company has not challenged the
verdict and not complied with the order of the competent Court.
Accordingly, the appeal is disposed of. No order as to costs.
(S.R.Brahmbhatt,
J.)
sudhir
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