The main legal point established in the judgment is the requirement for strict compliance with the warranty clause in the insurance policy, particularly regarding the obligation to maintain proper watch and ward when the vessel is not in use, and the consideration of weather conditions in assessing compliance with the warranty clause.

ORDER

1. This appeal raises an interesting question of interpretation of clause 7 of the insurance policy, which is quoted herein:

"Warranted vessel not to be employed during unsafe weather conditions and when not in use, vessel should be safely anchored or moored or secured with proper watch and ward."

2. The appellant instituted a civil suit against New India Assurance Company Ltd., the respondent, for the recovery of insurance money in terms of the policy. The appellant was the owner of the fishing vessel which, while anchored at the coast of Purakkad at Alleppey, drifted from that place, was lost and destroyed. The appellant informed the respondent. As the claim could not be settled on account of denial by the respondent, the aforesaid suit was filed. The trial court decreed the suit holding against the Insurance Company by rejecting its contention that the appellant had violated the aforesaid clause 7.

3. In appeal the question raised was, whether it was the obligation of the appellant under the policy to appoint watch and ward and whether, on the facts and circumstances of this case, it could be said that compliance with the aforesaid clause was not made by the appellant. It is not in dispute that the vessel was anchored. The High Court in appeal set aside the findings recorded by the trial court by holding that the appellant had violated the warranty clause, as, at the relevant time, watch and ward was not present in the vessel in question. Hence the Insurance Company cannot be fastened with a the liability as in view of this violation the respondent is discharged from the liability to pay the compensation.

4. The submission on behalf of the appellant is that watch and ward was there and he only returned from the vessel on account of the bad weather and hence withdrawal from the vessel temporarily to save himself from the onslaught of the bad weather cannot be construed to be a case of violation of the aforesaid clause. On the other hand, learned counsel for the Insurance Company submits with vehemence that in view of sub-section (3) of Section 35 of the Marine Insurance Act, 1963 and in view of the settled law, strict compliance be made with the warranty clause under the Marine Insurance Act, even if substantial compliance is made, it would still amount to violation of the warranty clause. He submits that the warranty clause has to be strictly complied with and, admittedly, as at the relevant time, watch and ward was not in the vessel, it runs contra to the condition stated in clause 7 of the warranty. Hence the submission is that the High Court is right in rejecting the contention of the appellant and upholding that of the Insurance Company.

S. The trial court recorded the following findings:

"In this case, the insured vessel was found missing since the night of 3-4-1977. It is more or less admitted by the defendant that this vessel was lost because of some accident. In order to prove that there was a watch and ward in the vessel in the night of 3-4-1977 the plaintiff examined witnesses ... PW 5. He also deposed that in the night of 3rd April there was heavy rain and wind and some of the boats which were anchored

near Purakkad seashore were lost."

6. This finding of the trial court was set aside by the High Court holding that there is no such deposition by PW 5 that some of the boats which were anchored on that date were lost. To this extent, we find that the High Court was right as we do not find any such statement given by PW 5.

7. One of the questions which is up for consideration is, whether there was any rain with high wind in the early morning of 4-4-1997, when the incident was said to have taken place, which could be the cause of drifting of the vessel and its ultimately being destroyed. It is not the case of the respondent that on that date the vessel had not drifted or sunk and been finally destroyed. The submission is that if there would have been watch and ward at the relevant time, the situation could have