Madras High Court

C.Gilbert vs The Oriental Insurance Company ... on 24 August, 2021

                                                                            A.S.(MD)No.115 of 2015

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 24.08.2021

                                                       CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             A.S.(MD)No.115 of 2015

                   C.Gilbert                                       ... Appellant / Plaintiff

                                                       -Vs-




                   The Oriental Insurance Company Limited,
                   Rep., by its Divisional Manager,
                   6-A, North Cotton Road,
                   Tuticorin, Tuticorin District.                 ... Respondent / Defendant


                   PRAYER: Appeal filed under Order 41 Rule 1 & 2 of the Civil Procedure
                   Code, against the judgment and decree dated 16.04.2010 made in O.S.No.
                   84 of 2004 on the file of the District Court, Kanyakumari at Nagercoil.


                                       For Appellant          : Mr.V.Nagarajan
                                       For Respondent         : Mr.E.Chandrasekaran


                                                    JUDGMENT

This appeal is directed against the judgment and decree dated

16.04.2010 passed in O.S.No.84 of 2004 on the file of the District Judge,

Kanyakumari at Nagercoil. The plaintiff is the appellant herein. The suit https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

was for recovery of Rs.5,67,600/- with 12 % interest per annum from the

defendant insurer from the date of suit till the date of realization.

2. The case of the plaintiff is that he had insured his mechanized

fishing vessel “St. Antony” with the defendant Insurance Company for a

sum of Rs.5,00,000/-. The vessel capsized mid-sea on 03.09.1997 at about

5.30 a.m., at Chinnamuttom near Kanyakumari. The plaintiff is not an

educated person. He was advised by one Maria John to inform the insurer

that the accident had taken place near Kollam. This was because the said

Maria John had frightened the appellant that since his vessel did not have

license to conduct fishing operations near Kanyakumari, he may be

penalized by the fisheries department. Therefore, the plaintiff erroneously

informed the insurer that the mishap took place at Kollam. After receipt of

the intimation, the insurer had deputed one T.S.Ramaswamy to conduct

survey and assess the loss. The vessel was retrieved by spending about

Rs.15,000/-. With the permission of the surveyor, the engine fitted in the

vessel was sold for a sum of Rs.75,000/-. Even though the insurer was

aware of all the facts, they repudiated the claim and issued Ex.A8- letter

dated 08.11.1999 to that effect. The plaintiff thereupon issued Ex.A7 -suit

notice dated 11.12.1999 calling upon the insurer to honor the claim. Since

there was no response, he presented the plaint on 02.02.2000 as an indigent https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

person. Later, it was numbered as O.S.No.84 of 2004. The defendant filed

written statement controverting the plaint averments.

3. The defendant pointed out that the plaintiff had suppressed the

material facts and also furnished false information. Since in view of his

conduct, the defendant rightly repudiated the claim, the defendant pressed

for dismissal of the suit. Based on the divergent pleadings, the trial Court

framed the necessary issues. The plaintiff examined himself as P.W.1 and

three other witnesses on his side. Ex.A1 to Ex.A8 were marked.

The defendant examined an official by name Sivakumar as D.W.1. The

insurance policy was marked as Ex.B1. After a consideration of the

evidence on record, the trial Court by the impugned judgment and decree

dismissed the suit and questioning the same, this appeal has been filed.

4. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds. The learned counsel

pointed out that the insured vessel capsized in the mid-sea due to turbulent

weather. The plaintiff of-course had given erroneous information as regards

the site of accident. The plaintiff ought not to be penalised for the same.

When the undisputed facts are that the vessel was insured by the defendant

and when an accident had taken place, the defendant is obliged to honor the https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

claim as per the terms of the insurance policy. He also would point out that

based on the intimation given by the appellant, the defendant had deputed

the surveyor who also surveyed the wreckage and assessed the loss. The

said surveyor's report was deliberately suppressed by the defendant. The

surveyor was also not examined. In fact, the plaintiff had filed I.A for

production of the surveyor's report. Therefore, the trial Court ought to have

drawn adverse inference against the defendant. The learned counsel

submitted that on a overall consideration, the plaintiff ought not to be non-

suited.

5. Per contra, the learned counsel appearing for the respondent

submitted that the impugned judgment and decree do not call for any

interference.

6. I carefully considered the rival contentions and went through the

evidence on record. The point for determination is whether the plaintiff had

suppressed any material fact and if so, whether the trial Court was justified

in non-suiting the plaintiff on that ground. There is no dispute that the

plaintiff is the owner of the vessel by name “St. Antony” bearing

Registration No.K.K.W.M.B.8-92. There is also no doubt that the vessel

was insured by the appellant with the respondent insurance company as https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

evidenced by Ex.B1. The only question is whether the insurer was justified

in repudiating any claim vide Ex.A8, dated 08.11.1999.

7. As rightly pointed out by the learned counsel for the respondent,

the contract of insurance requires “uberrimae fidei”. In other words, the

party to the contract must act with utmost bonafide. In the case on hand,

I have no doubt whatsoever that accident had taken place and the boat had

capsized. But then, the appellant ought to have fairly and frankly made a

complete disclosure of all the relevant facts while making his claim.

The appellant had taken inconsistent stand. The appellant had come out

with two dates. At one place, he would state that the accident occurred on

03.09.1997. At another place, he would state that the accident occurred on

07.10.1997. Both the dates cannot go together. The site of accident is also

different. Originally, he claimed that the accident took place in Kollam;

later he stated that the accident had taken place at Chinnamuttom near

Kanyakumari. When the appellant had come out with such contradictory

versions, it is obvious that he had attempted to misrepresent the factual

happenings.

8. A police complaint would be given whenever the accident takes

place. Though the appellant would claim that he gave a police complaint, https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

no such complaint was produced before the Court below. It is true that the

insurer had not examined the surveyor nor produced the surveyor's report.

There is some substance in the appellant's counsel's contention that an

adverse inference has to be drawn against the defendant. But the appellant

cannot hope to succeed on the strength of such drawal of adverse inference

alone. The appellant had to basically establish his case. The defendant has

also proved that after the vessel was retrieved, the vessel engine had been

disposed of without the knowledge of the insurance company. The claim

was repudiated for the following reasons:-

(1) That the suppression of the material fact about the retrieval and then selling of the engine of the vessel MFV St.Antony, without bring it to the knowledge/notice of the Insurance Company.

(2) That misrepresentation of the factual happenings of the events by stating that the event first took place at Quilon, but later on stating that the loss took place at Kanyakumari.

9. It has been convincingly established before the Court below that

both the reasons are well founded. That is why, the trial Court dismissed the

suit. No case has been made out for interfering with the well considered

decision of the trial Court. I find no merit in the appeal. The appeal stands

dismissed. No costs.

24.08.2021

Internet : Yes/No Index : Yes/No rmi https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015

1.The District Court, Kanyakumari, Nagercoil.

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

A.S.(MD)No.115 of 2015