IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 AS.No. 381 of 1993(D) --------------------- OS.313/1990 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT: --------- M/S.UNITED INDIA INSURANCE CO.LTD., DIVISION NO.2, JAYA BUILDINGS, M.G.ROAD, ERNAKULAM, COCHIN-1, REPRESENTED BY ITS DIVISIONAL MANAGER. BY ADV. SRI.SIBY MATHEW SRI.WILSON URMESE RESPONDENTS: ----------- 1. K.C.AUGUSTINE, S/O.CHORI, AGED 62 YEARS, EX-SERVICEMAN, KOCHUVEETTIL HOUSE, MUNDAMUCHI, RAMESWARAM VILLAGE, COCHIN TALUK. 2. THE SYNDICATE BANK, KOOTTUKULAM ROAD, COCHIN-2 REPRESENTED BY ITS BRANCH MANAGER. 3. DAVID, S/O.XAVIER, ILLIPPARAMBIL, EDAMAKKARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.N.D.GANGADHARAN FOR R1 AND R3 SRI.M.P.ASHOK KUMAR FOR R2 SMT.MAYA K.KRISHNAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 30/5/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.NO.381/1993 ORDER ON CMP.NO.1971 & 2991/94 IN A.S.NO.381/1993 ---------- DISMISSED Sd/- P.R.RAMAN,JUDGE.30/5/2008 30/5/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- A.S.NO.381 OF 1993 -------------------------------- 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. -2- A.S.No.381/1993 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 -3- A.S.No.381/1993 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 -4- A.S.No.381/1993 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 -5- A.S.No.381/1993 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 -6- A.S.No.381/1993 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, -7- A.S.No.381/1993 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 -8- A.S.No.381/1993 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.