The main legal point established in the judgment is that the mere acceptance of the premium and the proposal for an insurance policy do not automatically create a concluded contract. Additionally, the burden of proof lies with the plaintiff to establish that the loss was caused by a peril insured against, as per the Marine Insurance Act.

Headnote:
Insurance Policy - Marine Insurance Act - Section 23, Section 25, Section 55 - The court held that the mere acceptance of the premium and the proposal for an insurance policy do not automatically create a concluded contract. The court referred to the Marine Insurance Act and established that a contract of marine insurance is deemed to be concluded only when the proposal of the assured is accepted by the insurer. The court also highlighted the legal provisions under the Act and the burden of proof on the plaintiff to establish that the loss was caused by a peril insured against. The court's decision was influenced by the interpretation of the Act, which required the plaintiff to discharge the burden of proving the cause of the accident and the perils insured against.
Fact of the Case:

The appellant's fishing boat was insured with the first respondent for a specific sum. The boat sank, and the appellant claimed the insured sum. The respondents contended that the boat was not insured for the claimed amount and that the appellant had to prove the nature of the accident and that it was due to an insured peril. The court found that the sum insured under the policy was only Rs.1,50,000 and that the burden was on the appellant to prove that the boat was sunk due to one of the perils insured against, which the appellant failed to establish.
Finding of the Court:

The court found that the appellant did not establish that the boat was sunk due to any of the perils insured against and therefore she was not entitled to any amount under the policy. The court dismissed the suit without costs.
Issues: The issues included the determination of the insured sum, the nature of the accident, and whether the appellant had proven that the loss was caused by a peril insured against.
Ratio Decidendi: The court held that the appellant failed to discharge the burden of proving that the accident was caused due to one of the perils insured against. The court also emphasized that the mere acceptance of the premium and the proposal for an insurance policy do not automatically create a concluded contract, as per the Marine Insurance Act.
Final Decision: The court dismissed the appellant's suit, finding that she did not establish that the boat was sunk due to any of the perils insured against and therefore was not entitled to any amount under the policy.

Judgment :-

Sasidharan Nambiar, J.

1. Whether the acceptance of the premium and the proposal for an insurance policy by themselves create a concluded contract? Whether the loss of the insured boat, without proving that the loss was due to one of the perils insured against, will enable the insured to claim the insured sum?. These are the questions to be resolved in the appeal.

2. Plaintiff in O.S.No.63/92 on the file of Principal Sub Court, Kochi is challenging the dismissal of the suit in this appeal. Respondents are the defendants. The fishing boat by name ‘Kadalthuruthu’ was insured with first respondent New India Assurance Company Limited for the period 28.10.88 to 27.4.89 under Ext.A2 policy. The policy was not renewed before the expiry of the period. Appellant submitted Ext.B2 proposal on 11.5.89. Under Ext.A2 policy the boat was insured for Rs.2,00,000/-. Under Ext.B2 proposal, appellant claimed the sum assured at Rs.2,50,000/-. A premium of Rs.4,168/- was paid on 18.5.89 for which Ext.A1 receipt was issued by first respondent. For the purpose of issuing a fresh policy, the value of the boat has to be assessed. DW1 the approved surveyor inspected the boat and prepared Ext.B4 valuation certificate dated 12.5.89, valuing the fishing boat with the machinery and assets at Rs.1,50,000/-. The fishing boat was sunk in the sea on 30.5.89. Appellant intimated first respondent on the very next day that the boat was sunk and all attempts to salvage the boat failed and it was irrecoverably lost. The factum of drowning was also reported to the Sub Inspector of Police, Willingdon Island as well as the Circle Inspector of Police, Mattancherry. According to the appellant, he received Ext.A7 policy for the period from 18.5.89 to 17.8.89 for the sum insured as Rs.1,50,000/-. Immediately appellant protested contending that insured sum is Rs.2,50,000/- and not Rs.1,50,000/-. According to appellant, the surveyor’s report dated 12.5.89 was not filed by the Surveyor till 30.5.89 and was submitted only after the boat was sunk. According to appellant, after completing repairs and maintenance and including the newly purchased fishing net, the value of the boat was Rs.2,50,000/- and having received the premium, first respondent is not entitled to issue a Policy for Rs.1,50,000/- and appellant is entitled to get the entire insured sum of Rs.2,50,000/-. The suit was filed claiming the amount with interest at 18% contending that first respondent is bound to pay the insured sum as the boat was sunk during the period of insurance policy.

3. Respondents resisted the suit contending that the boat was not insured for Rs.2,50,000/- and the payment made under Ext.A1 was received only provisionally and the fishing boat itself was purchased only for Rs.1,25,000/- and it was insured for Rs.2,00,000/- previously and the period under the earlier policy expired only on 27.4.89 and the payment of instalment for the previous policy was paid only on 2.5.89 and that cheque was dishonoured and immediately fresh payment was made and later Ext.B2 proposal was submitted declaring the value of the boat at Rs.2,50,000/- and as value was seen enhanced within a span of nine days, first respondent suspected foul play. Immediately on getting the proposal an independent Surveyor was arranged to value the boat and the Surveyor inspected the boat on 11.5.89 and Ext.B4 Surveyor’s report shows the value of the boat was only Rs.1,50,000/- and Ext.A7 policy was issued for the said sum. It was contended that Sri. V.C. Mathew is the registered owner of the fishing boat and therefore appellant has to prove her ownership over the fishing boat. It was also contended that appellant has to prove the nature of the accident and investigation conducted by the respondents revealed that the incident was not due to any of the insured perils and appellant has to prove that the incident took place due to insured perils. It was contended that the delay in issuing the policy was due to the delay in gett

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2005 Supreme(Ker) 702

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