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High Court of Kerala
THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN
C. Sivadasan
Versus
The New India Assurance Company Ltd & Others
AS.No. 647 of 1994 & 331 of 1996
Decided on : 25-03-2011
Marine Insurance Act, 1963 - Sections 2(c) & 55(2)(a) - Whether the suit is bad for mis-joinder of causes of action or mis-joinder of parties? - Whether the court fee paid is proper? - Whether the finding of the trial court that the Insurance Company is not liable since the accident had not occurred in the manner as alleged by the plaintiff sustainable? - What, if any, are the reliefs to be granted to the parties? - Held, Merely pointing out certain circumstances by itself does not lead to the conclusion that the sinking of the vessel was a stage managed one - It remains as a suspicion. Suspicion cannot take the place of proof - court cannot be called upon to presume and assume facts so as to reach a conclusion that there may have been a conspiracy to sink the vessel by the plaintiff and members of his crew - Court is are unable to accept the finding of the court below that the plaintiff is not entitled to any relief - Court feel that going by the provisions of the Marine Insurance Act and on the basis of policy issued to the plaintiff, the act that caused the vessel to sink qualifies as perils of the sea - Impugned judgment and decree are set aside and a decree is passed - Appeal Dismissed
Key Points: - The court set aside the trial court's finding that the plaintiff is not entitled to any relief and held that the incident qualifies as perils of the sea under the Marine Insurance Act, granting relief to the plaintiff (A.S. 647 of 1994) (!) (!) (!) (!) . - The issue of mis-joinder of causes of action and mis-joinder of parties was discussed, with the court noting the procedural nature of such objections and referencing Order I and II provisions and S.99 CPC; ultimately the appellate court addressed these issues in context of the case (!) (!) (!) (!) (!) . - The judgment analyzes whether the insurer’s liability extends to losses proximate to perils of the sea, including consideration of negligence of crew and barratry, under Sections 2, 55, and related definitions in the Marine Insurance Act, including supporting citations from various authorities (!) (!) (!) (!) (!) (!) - (!) . - The policy Ext.A1 is construed under the Marine Insurance Act, and the court concludes the act that caused the vessel to sink qualifies as perils of the sea, warranting liability of the insurer (!) (!) (!) (!) - (!) . - The Supreme Court of India/ Kerala High Court references and conclusions emphasize that suspicion or misrepresented facts cannot substitute for proof in determining perils of the sea, and that the court cannot presume conspiracy without evidence (!) (!) . - The final decree in A.S. 647 of 1994 awards Rs. 1,10,000 with 9% interest from the date of suit against the New India Assurance Company Ltd. and directs costs in both courts; A.S. 331 of 1996 is dismissed (!) (!) .
P. Bhavadasan,J.
1. Two suits, namely, O.S. 23 of 1984, which was a suit for recovery of money and O.S.134 of 1984, which too was a suit for recovery of a debt due to the Bank were jointly tried and disposed of by a common judgment. O.S. 23 of 1984 was dismissed and O.S. 134 of 1984 was decreed. O.S. 134 of 1984 was by the fourth defendant in O.S. 23 of 1984 was directed against the plaintiff and three others including the Insurance Company, who is the third defendant in O.S.23 of 1984. O.S.23 of 1984 was to recover money on the basis of an insurance policy issued by the third defendant in the suit. A.S. 647 of 1994 arises out of the judgment and decree in O.S.23 of 1984 and A.S.331 of 1996 arises from O.S.134 of 1984. Since O.S.23 of 1984 was treated as the leading case, parties and facts are referred to as they are available in the said suit.
2. "Santhoshkumar", a fishing vessel owned by the plaintiff in O.S.23 of 1984, hypothecated to the fourth defendant Bank, and insured with the third defendant, hit the bottom of the sea on 21.4.1981. The plaintiff, on the terms of the insurance policy, laid a claim for money due on the policy. The Insurance Company repudiated the claim. That necessitated the suit by the owner of the vessel.
3. The defence of the Insurance Company was that the accident had not occurred as alleged by the plaintiff and he has concealed the true version of the incident. According to them, as per the investigations conducted by them through various agencies, have yielded convincing reports that the story put forward by the plaintiff is untrue. Since the version of the plaintiff is not as it had occurred, they had denied their liability to pay any amount to the plaintiff. The fourth defendant Bank in the meanwhile instituted a suit for recovery of money due on the loan advanced by them for the fishing vessel, which was also hypothecated to them.
4. As already stated, the suits were tried jointly. The evidence consists of the testimony of P.Ws.1 to 10 and documents marked as Exts.A1 to A24 series from the side of the plaintiff. The contesting defendants examined D.Ws.1 to 4 and had Exts. B1 to B31 marked. Exts. X1 to X3 were marked as third party exhibits. The trial court on a consideration of the materials before it came to the following conclusions:
i) The true version of the incident in which the vessel had capsized has not been put forward by the plaintiff.
ii) There was serious doubt regarding the manner in which the accident had occurred.
iii) Versions given by the witnesses examined on behalf of the plaintiff were contradictory and inconsistent.
iv) It was found that it was due to negligent acts of the crew that the incident might have occurred.
On the basis of these findings, the claim of the plaintiff as against the Insurance Company was rejected. As far as the other suit was concerned, the trial court came to the conclusion that the Bank is entitled to realize the amount claimed by them in O.S. 134 of 1984.
5. As regards A.S. 331 of 1996, which arises from O.S. 134 of 1984 is concerned, there is not much to be said in favour of defendants 1 to 3 in that suit. It is the fact that the vessel was hypothecated to the Bank and the Bank had advanced money on that basis. It is also not in dispute that the first defendant and guarantors had defaulted payment due from them.
6. The main dispute is regarding the issues involved in A.S.647 of 1994. There, the appellant, who is the plaintiff in O.S. 23 of 1984, claims that the findings of the trial court regarding the accident is baseless and contrary to the evidence on record.
7. After hearing both sides, it is felt that the following issues arise for consideration:
i) Whether the suit is bad for mis-joinder of causes of action or mis-joinder of parties?
ii) Whether the court fee paid is proper?
iii) Whether the finding of the trial court that the Insurance Company is not liable since the accident had not occurred in the manner as alleged b
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