THE HON’BLE SRI JUSTICE C.V.RAMULU APPEAL SUIT No.841 OF 1992 DATED: 03-03-2010 Between: State of Andhra Pradesh, Rep.by Commissioner of Fisheries, Hyderabad. .....APPELLANT AND M/s New India Assurance Company Ltd., Rep.by Divisional Manager, New India Assurance Building, Gandhi Raod, Mumbai & others. .....RESPONDENTS ORDER This Appeal Suit is directed against the judgment and decree, dated 22-11-1990 made in O.S.No.14 of 1985 on the file of the learned Principal Subordinate Judge, Kakinada, whereunder the suit filed by the respondents 3 to 5 claiming damages was dismissed. 2. Appellant herein is the plaintiff and the respondents are the defendants. It appears, according to the plaintiff, the Commissioner of Fisheries allotted a mechanized boat Royya 21 KKD 454 to one late Chekka Ramulu-father of the defendants 3 to 6 on 09- 11-1972. The said Ramulu entered into hire purchase agreement, dated 18-10-1972 with the plaintiff with regard to the said boat for which the plaintiff has agreed for hire purchase instalments for a period of six years commencing from 09-11-1972. The hirer has to pay regularly a sum of Rs.1418.93 paise per month by way of hire. The original cost of the boat was Rs.1,19,131.85 paise. However, by virtue of the agreement, if the said Ramulu pays a sum of Rs.80,876.26 paise he shall become the purchaser of the boat and the hire would be terminated. Synthetic fish net twine costing Rs.504.36 paise was also supplied to the plaintiff repayable in 18 instalments under the agreement, dated 19-10-1972. The said Ramulu executed a security bond for Rs.5000/- in favour of the plaintiff on 07-10-1972 giving the plaint schedule property as security for the said amount. The boat was insured with the 1st defendant company through the 2nd defendant for an amount of Rs.1,00,839.98 paise under policy No.8231120198 in the name of the plaintiff and Ramulu. Unfortunately, the said boat was sunk in the sea of Gannavaram, Visakhapatnam District on 11-03- 1976 due to sudden mechanical failure and rough sea. It was a total loss of the vessel. From the enquiries made and statements recorded by the officials of the plaintiff, it came to be known that the said boat sailed out fully equipped with the necessary implements. It was all of a sudden the rudder of the boat failed to function and the steering became loose. Attempts were made by the crew to control the boat and prevent it from hitting the trawler boat in front of it, however their attempts failed due to rough weather in the sea and the boat dashed against the trawler and ultimately it was sunk. Defendants 1 and 2 were informed of the circumstances under which the boat met with the accident. Immediately, the plaintiff made claim for the insured amount against the defendants 1 and 2. The Branch Manager of the 1st defendant in his letter, dated 07-07-1976 informed that the accident occurred due to negligence of the driver as per the surveyor’s report, and that the insurance claim would not be entertained as it was unsubstantiated. Finally, on 04-01-1982 the defendants 1 and 2 repudiated the claim of the plaintiff. Subsequently, the said Ramulu and his wife died leaving the defendants 3 to 6 as their heirs. The amount paid by the said Ramulu was Rs.34,632.82 paise leaving a balance of Rs.46,244.44 paise, while the plaintiff is entitled to the said amount and the balance is to be paid to the defendants 3 to 6. During the pendency of the suit, the 3rd defendant also died and defendants 4 to 6 were impleaded as legal representatives of the 3rd defendant. 3. Defendants 1 and 2 filed a written statement denying the averments made in the plaint. It is their case that when the defendants made enquiries and referred the matter to the surveyors, average adjusters, it was revealed that the boat owner-Chekka Ramulu or the plaintiff has no claim against the insurance company under the policy. The boat was not seaworthy when it was proceeding to sail. On 22-03-1976, they started their journey at 4.00 a.m. and within 15 minutes it was collided with “Ave Maria II” and sunk. The enquiries from the local fishermen and the villagers revealed that there are no reports of any sinking of a boat and in spite of collision, Ave Maria II did not suffer any damage. Chekka Ramulu did not make himself available for interrogation till 5th and 6th May, 1976. The said Ramulu has got a bad record inasmuch as fishing boat named “Pable 24” purchased by him was also sunk near Gollapalem whilst under his command. Since Royya 21 was not seaworthy, the claim cannot be entertained. 4. Defendants 4 to 6 filed a written statement admitting that late Ramulu was allotted the boat Royya- 21 by the plaintiff and the defendants put the plaintiff to strict proof that Ramulu executed hire purchase agreement, security bond etc. However, they admitted that the boat was insured in the name of the plaintiff and late Ramulu. They also admitted that the boat was sunk in the sea of Gannavaram due to mechanical failure and rough sea and that their father Ramulu died due to accident of the boat. Ramulu was regularly paying the monthly instalments. The defendants are alone the legal heirs of late Ramulu and they are entitled for the insurance amount and accordingly they prayed for a decree to be passed in their favour as per the insurance policy. 5. On the above pleadings, the following issues were framed by the Court below for trial: 1. Whether the boat Royya-21 KKD 454 met with the accident as stated in the plaint? 2. Whether the plaintiff and defendants 4 to 6 are entitled to the suit claim? 3. Whether late Chekka Ramulu entered into hire purchase agreement with the plaintiff? 4. To what relief? 6. Plaintiff was examined as P.W.1 and Exs.A1 to 10 were marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to 3 were marked. 7. After a detailed consideration of both the oral and documentary evidence, the trial Court came to the conclusion that the boat was admittedly drown and that the plaintiff could not prove that it is entitled to claim insurance amount attracting the terms of the policy. Therefore, the issue No.1 was held against the plaintiff. In view of the findings recorded against the issue No.1, issue No.2 was also held against the plaintiff. Since the plaintiff is not entitled to any amount from the insurance company, defendants 3 to 6 are equally not entitled to the said amount. Thus, the suit was dismissed. Aggrieved thereby, the present Appeal Suit is filed. 8. There is no necessity of going into all the details. So far as the respondents 1 and 2 are concerned, a finding was recorded that the policy does not cover the said accident and therefore they are not liable and insofar as the respondents 3 to 5 are concerned, the appeal was dismissed for default on 17-12-2007 and no steps were taken for restoration of the said order, dated 17-12-2007. 9. Accordingly, Appeal Suit is dismissed. There shall be no order as to costs. ________________ C.V.RAMULU,J 03rd March, 2010 Tsy