HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.No. 2428 of 2001 Date : 21-06-2010 Between: The Oriental Insurance Co. Ltd. ……… Appellant and Lanke Bhagyalaxmi ………. Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR A.S.No.2428 of 2001 ORDER: This Appeal is directed against the Judgment and Decree, dated 25-06-2001 passed in O.S.No.37 of 1997 on the file of the Senior Civil Judge, Machilipatnam. The parties will be referred to as they are arrayed in the suit for the sake of convenience. 2. The brief facts of the case are as follows: The plaintiff is the owner of vessel NZM 127 as described in ‘A’ schedule annexed to the plaint. The defendant is the Insurance Company carrying on general insurance business. The said vessel was insured with the defendant-Insurance Company under the policy known as Marine Hull Insurance Policy bearing No.43215/30/860/MH/143/87 and it was in force from midnight of 14- 12-1987 to midnight of 13-06-1988. As usual, the vessel of the plaintiff went to the sea for fishing through Gilakaladindi canal in the early hours of 12-06-1988 and went into deep sea and there was a good fishing. While the tindal and the luscars were trying to return back on 13-06-1988 at about 7-00 AM, when the suit vessel NZM 127 reached near sea mouth and crossing the bar, suddenly big waves dashed against the left side of the suit vessel strongly, and as a result of which the suit vessel tilted on its right side and the luscars were thrown into sea. The tindal of the suit vessel in the wheel room was thrown, and they reached shore with the help of empty oil cans of the broken suit vessel and with the help of fishing boat No.M.P.H.384. The suit vessel was totally broken due to heavy waves. The cabin, planks etc., of the suit vessel floated away into the sea within a few minutes. The remaining damaged boat drowned completely at about 8-00 AM on 13-06-1988. The tindal and luscars were reached Gilakaladindi and the incident was informed the plaintiff. On 13-06-1988 itself the plaintiff appointed salvage party, headed by Tirumalasetty Subba Rao, and conducted salvage operations with the help of about 30 skilled labourers, four mechanized fishing boats, two non-mechanised navas along with salvage equipments and their efforts to trace the said vessel became futile. On the next day i.e., 14- 06-1988 the search party with the same equipment conducted salvage operations from morning to evening. Inspite of their strenuous efforts, the broken boat of was not traced. Insurance Surveyor was appointed by the defendant-Insurance Company and he confirmed the loss to the vessel, but the defendant-Insurance Company failed to pay the amount to the plaintiff. 3. Therefore, the plaintiff filed the suit for recovery of a sum of Rs.2,24,000/- from the defendant towards insurance claim i.e., an amount of Rs.1,50,000/- towards the value of vessel, hull and machinery, an amount of Rs.24,000/- towards charges of salvage operations, labour and boats hire and an amount of Rs.50,000/- towards the loss of earnings of suit vessel. 4. The defendant-Insurance Company contested the suit and admitted that the vessel was insured with their Insurance Company covering the risk of hull and machinery etc. The defendant- Insurance Company contended that the claim of the plaintiff is false mainly on the ground that the vessel sunk in the sea was MZM 127, but not NZM 127. 5. The plaintiff, in order to prove her case, examined PWs.1 to 5 and got marked Exs.A-1 to A-3. On behalf of the defendant- Insurance Company, DWs.1 to 3 were examined and Exs.B-1 to B-3 were marked. 6. The lower Court framed the following issues: 1. Whether the plaintiff is entitled to recover suit amount as prayed for? 2. Whether suit is barred by time? 3. To what relief? 7. The lower Court, having examined the oral and documentary evidence adduced by both parties, came to the conclusion that the vessel sunk is NZM 127 and that the plaintiff is entitled for recovery of loss of the vessel. However, the lower Court decreed the suit in part with proportionate costs for a sum of Rs.1,50,000/- together with interest @ 12% per annum from the date of 13-06-1988 till the date of filing of the suit and @ 6% per annum from the date of suit till the date of realization. It was further held that the plaintiff is not entitled for Rs.24,300/- towards the amount spent for salvage operations, labour and hire charges and as well as for Rs.50,000/- towards the loss of earnings of suit vessel due to mishap. Aggrieved by the same, the defendant-Insurance Company preferred the present Appeal. 8. Sri S. Agasthya Sarma, the learned counsel for the Appellant-defendant submits that the lower Court failed to examine the evidence of DW-3 and that since the Insurance Company did not accept the earlier report filed by DW-2, it was compelled to appoint another surveyor, DW-3, and the report filed by him in Ex.B-3 clinchingly establishes that the vessel sunk was MZM 127. It is also his contention that the salvage record also shows that the painter had painted the number of the vessel as MZM 127. 9. The learned counsel for the respondent-plaintiff Sri K.V. Bhanu Prasad, submits that it is the defendant-Insurance Company, which has appointed DW-2, Surveyor, immediately after the intimation with regard to the loss of the vessel, and DW-2 visited the spot and enquired with several persons and had taken photographs and gave a report, which clinchingly establishes that the plaintiff’s vessel was lost. It is also his submission that there is no reason for the defendant- Insurance Company to differ with the report filed by DW-2. It is also his submission that DW-3 was appointed after a considerable lapse of time and by the time DW-3 started enquiries, there was nothing to investigate into the matter. He further submitted that the evidence of DW-3 need not be given much importance because he himself admitted that no photos were filed by him to prove the case of the defendant-Insurance Company. It is also his submission that there are only two ports in that area i.e., Machilipatnam port and Nizampatnam port and that the vessels registered at Nizampatnam will be numbered with ‘NZM’ and the vessels registered at Machilipatnam will be numbered with ‘MTM’ and there was no port which was giving registered number with MZM. It is also his submission that the defendant-Insurance Company has failed to prove that there was any occasion whether any vessel was given registered number with the letters ‘MZM’ and therefore, the lower Court rightly decreed the suit and there is no need to interfere with the same. 10. The only point that arises for consideration is whether the findings of the lower Court that the vessel sunk is NZM is correct? 11. It is not in dispute that the plaintiff is the owner of the vessel NZM 127 and the said vessel was insured with the defendant- Insurance Company and that the policy was in force on the date of accident i.e., 13-06-1988. It is also not in dispute that the defendant- Insurance Company had appointed DW-2 and his report is in favour of the plaintiff. The entire case depends on the question whether the evidence of DW-3, who was appointed by the Insurance Company, can be accepted or not, because the earlier Surveyor (DW-2) gave a report in favour of the plaintiff. 12. According to DW-3, he worked as Superintendent of Police, CBI at Madras. He was appointed by the defendant-Insurance Company to investigate with regard to the claim of the plaintiff. He has submitted a report in Ex.B-3. According to him, the defendant- Insurance Company felt that since the report of DW-2 in Ex.D-2 is not accurate, it appointed him to reinvestigate into the matter. He has also admitted that the vessel insured with the defendant-Insurance Company is NZM 127. He has also admitted that the photograph also shows the number of the vessel taken on the ground as NZM 127. According to him, as per the version of the plaintiff, oil was drawn from the sunken boat for the last time on 11-06-1988 evening. But the documents produced by the insured show that the oil was taken at the shore on 12-06-1988. It is also his case that as per the version of the plaintiff, catch was sold on 11-06-1988, but the material produced by the insured shows that the catch was sold on 12-06-1988. 13. Admittedly, the plaintiff reported that the boat was sunk by 13-06-1988. DW-3 was appointed on 17-02-1990 i.e., after about one year eight months after the boat was sunk. A reading of the evidence of DW-3 shows that he has not given any notice either to DW-2 or captain B.L. Talwar, Marine and General Surveyors, informing that he was duly appointed to investigate into the case or that he has not issued any letters requesting them to appear before him. He says that he himself went to the place and examined the witnesses present there. He says that he cannot furnish the names of the persons whom he had examined. According to him, it is not possible to secure the photo of the sunken vessel. He further admitted that no salvage was shown to him pertaining to the vessel showing the number as MZM 127. He has also admitted that there is no possibility of the existing MZM 127 to his knowledge. Admittedly, photos returned by DW-3 to the defendant-Insurance Company had not been marked. DW-3 finally admitted that he cannot say the date of his examination of the witnesses. He further admitted that he has not reduced the statement of the witnesses into writing. Admittedly there is no record to show that DW-3 had recorded any statements of the witnesses. 14. As seen from the evidence of DW-3, he did not issue any summons to the witnesses and no statements were recorded by him. Admittedly, there is no possibility of existing registered number with letters MZM. When the learned counsel for the respondent- plaintiff has categorically mentioned that there are only two ports i.e., Machilipatnam port and Nizampatnam port and the vessels registered at Machilipatnam port will be given number with ‘MTM’ and the vessels registered at Nizampatnam port will be given number with ‘NZM’, in all probabilities, it appears that there is no possibility of registering any vehicle with the letters ‘MZM’ as contended by the defendant-Insurance Company. 15. In the above circumstances, the lower Court rightly appreciated the evidence and decreed the suit in part in favour of the respondent-plaintiff and there are no grounds to interfere with the same and there are no merits in the Appeal. 16. The Appeal Suit is, accordingly, dismissed. No costs. ___________________ B. CHANDRA KUMAR, J Date: 21-06-2010 YCR