(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal arises out of a judgment and decree dated 31st July, 1999 passed by the learned 4th Jt. Civil Judge, (S.D.), Jamnagar in Special Civil Suit No. 184 of 1989. The present appellants and Gujarat Maritime Board filed above mentioned Special Civil Suit claiming sum of Rs.20,48,000.00 from the respondent No.1 herein – United India Insurance Company Limited. Briefly stated, the facts are as follows:
2. The appellants were engaged in the business of operating merchandised vessels for shipping. They were doing such business in the name and style of “Shri Ibrahim Haji Ahmed & Sons”. The appellants are sons of late Shri Ibrahim Haji Ahmed who expired on 9.1.1982. During his life time, he owned a vessel called “Shakina Al Ibrahim” (Hereinafter to be referred to as “the vessel”). Such vessel was built by the deceased with the financial aid from the Government. Such vessel was hypothecated with the Gujarat Maritime Board . The vessel was insured by the defendant – Insurance Company. After the death of late Ibrahim Haji Ahmed, his sons i.e. the appellants become owners of the vessel and continued to do the business in the same field through such vessel. They also from time to time insured the vessel with the same insurance company. Insurance policy however expired on 9.11.1984. When the question of renewal of the insurance arose, it appears that the insurance company insisted on getting the vessel revalued. It is not in dispute that the valuer's report was available only on 8.1.1985. On 8.1.1985 itself, the plaintiffs paid to the insurance company premium for the insurance as per the valuation suggested by the valuer in his report dated 8.1.1985. Insurance cover thus commenced from 8.1.1985. It was the case of the plaintiffs that the vessel met with an accident on 10.1.1985, it caught fire and was taken in total loss. When the claim was lodged by the plaintiffs with the Insurance Company, the Insurance Company refused to pay the damages on the ground that the accident had actually taken place on 5.1.1985, on which date, there was no insurance cover provided by the company.
3. Under these circumstances, the plaintiffs approached the Civil Court by filing above mentioned special civil suit no. 184 of 1989 and prayed for a decree of Rs.20,48,000.00 against the Insurance Co.
4. Disputes were in narrow compass before the Civil Court. The Civil Court framed following issues at Exh. 40-A:
(1) Whether the plaintiff proves that the suit vessel caught fire and was thereby sunk and lost on 10.1.1985 as alleged?
(2) Whether the defendant No.1 proves that it caught fire and was thereby sunk and lost on 5.1.1985 as alleged?
(3) If yes, whether the defendant No.1 proves that the insurance policy and cover note was obtained by fraud by the plaintiffs no.1 to 3 knowing full well that the vessel is non existent as alleged?
(4) Whether the defendant No.1 proves that plaintiff had no insuranble interest in the suit vessel as alleged?
(5) Whether the defendant no.1 proves that the suit is not maintainable for the reason that the plaintiffs no.1 to 3 should have registered themselves a firm as required under the Indian Partnership Act as alleged?
(6) Whether the defendant no.1 proves that the deceased Ibrahim has other heirs also and the suit is not maintainable for non-joinder of them as alleged?
(7) Whether the suit is time barred?
(8) Whether plaintiffs proves that they are entitled to claim interest at the rate of 12% as alleged?
(9) Whether the plaintiffs are entitled to the relief claimed?
(10) What order and decree?
5. Findings of the trial court on such issues were as follows:
(1) Negative.
(2)Affirmative. (3)Negative. (4)Affirmative.
(5)Affirmative. (6)Undecided. (7)Negative. (8)Negative. (9)Negative.
(10)As per final order.
6. Plaintiffs examined Mamad Ibrahim as witness No.1 at Exh. 61, one D.M. Chandrani as witness No.2 at Exh. 80 and one Jaykar Narpatrai Vyas as plaintiffs' witness No.3 at Exh. 82. The plaintiffs also examined Yakub Ibrahim at Exh. 92 as plaintiffs' witness No.4 and Mamad Adam at Exh. 93 (Plaintiffs' witness No.5).
7. Plaintiffs also produced certain documents and in particular, a report purported tobe under section 358 of the Indian Merchant Shipping Act, 1958 at Exh. 83.
8. On the other hand, the defendant Insurance Co. examined one witness Trilok Hariprasad at Exh. 103 and Mansukhlal Amrutlal Modi at Exh. 114. The defendant also heavily relied on a letter dated 22.1.1985 issued by the Ministry of Shipping which was produced at Exh. 85. Reliance was also placed on telex message produced at Exh. 86 before the Civil Court.
9. On the basis of such evidence, the Civil Court proceeded to consider the rival contentions. Sole significant question that the Civil Court was called upon to decide was whether the accident resulting into extensive damage to the vessel had taken place on 10.1.1985 as suggested by the plaintiffs or on or around 5.1.1985 as suggested by the defendant.
10. The learned trial Judge proceeded to evaluate the evidence on record. He was of the opinion that the plaintiffs' witnesses could not be relied upon. In support of their version that the accident took place on 10.1.1985, they could produce no documentary evidence. Their entire version was thus in the form of oral depositions. Learned Judge also noticed certain inconsistencies in such oral evidence. It was recorded that the plaintiffs' witness Jaykar Narpatrai Vyas had admitted to have received letter Exh. 85 and telex message Exh. 86. The contents of such documents and admission of the witness of having received such documents, according to the learned Judge, clinched the issue against the plaintiffs. The learned Judge was of the opinion that the oral deposition of the witnesses for the plaintiffs could not be believed in view of the contemporaneous documentary evidence suggesting that the accident took place certainly prior to 7.1.1985.
11. The learned Judge was also not prepared to accept the contents of the report Exh.83 on the ground that such report was prepared only on the version of the deponents and the contents thereof were contrary to the other evidence on record.
12. In short, the learned Judge believed that the accident took place prior to 8.1.1985 when the insurance cover was not provided. The learned Judge therefore dismissed the suit.
13. This was the only question on which the entire suit hinged. This is the only question, therefore, we are called upon to consider in this appeal. If the accident had taken place before 8.1.1985, undisputedly, the plaintiffs would be entitled to no relief. If on the other hand, after the insurance was issued in favour of the plaintiffs on 8.1.1985, accident had taken place on 10.1.1985, the plaintiffs would be entitled to recover the damages from the insurance company as per the terms of the policy. The actual date of accident, thus, assumes considerable significance.
14. With the assistance of the learned counsel for the parties, we have perused the oral as well as documentary evidence on record. It is true that the plaintiffs' witnesses did depose before the trial court that the accident took place on 10.1.1985. However, the trial court noticed certain discrepancies in such depositions. It appears that the witness Mamad Ibrahim who himself was the plaintiff No.1 and brother of other two plaintiffs, who had claimed to be the witness of accident, never informed the brothers at Jamnagar regarding incident in question. Additionally, it has come on record that the witness for the plaintiffs Jaykar N.Vyas (Exh. 82) admitted in his cross examination that he had received letter from the Ministry of Shipping as well as telex message Exh. 85 and 86 respectively. Exh. 85 is a covering letter dated 22nd January, 1985 from the Nautical Adviser to the Government of India in which it is stated that “I am to forward herewith a copy of our telex No. NT/SV/GEN dated 7.1.1985 for your information.” Exh. 86 is telex message dated 7.1.1985. The contents thereof are as under:
“REFERENCE YOUR TELEX NO.17 DATED 7.1.85 (.) THANK YOU FOR YOUR MESSAGERESPECT INDIAN DHOW SAFINA AL IBRAHIM BDI 728 (.) KINDLY ARRANGE REPATRIATION TO INDIA AND REQUEST CREW PARTICULARLY THE TANDEL TO REPORT TO PRINCIPAL OFFICER MERCANTILE MARINE DEPTT.. BOMDAY OR SURVEYOR-IN-CHARGE MERCANTILE MARINE DEPT. , JAMNAGAR(.)”
15. This witness was examined apparently to produce on record so called report under section 358 of the Indian Merchant Shipping Act, 1958 which was exhibited at Exh. 83. In the cross examination, he also admitted that he issued the certificate (Exh. 83) on the basis of the statements made by the deponents and that he had no personal knowledge about the contents thereof. The defendant's witness Mansukhlal Amrutlal Modi at Exh. 114 produced before the court a report dated 17th March, 1987 at Exh.
116. In the said report, he made detailed reference to the nature of shipping insurance cover as also the material to suggest that the accident took place on 5.1.1985. He referred to the telex messages dated 6.1.85, 7.1.85, 8.1.85 and 9.1.85 issued by United Arab Shipping Company and other documents to suggest that long before 8.1.1985 when the insurance policy was issued, the accident had already taken place. We may record that the crew members were rescued by another ship which also provided sufficient material to pinpoint the date of accident.
16. From such evidence on record, it clearly emerges that the witnesses of the plaintiff were not reliable. Except the oral evidence that the accident took place on 10.1.1985, they produced no further material. When the accident of such a nature took place and when large number of crew members were rescued by another ship, surely, there would be plenty of evidence with respect to what actually transpired during the accident and shortly thereafter. The plaintiffs completely failed to produce any evidence that the accident took place on 10.1.85.
17. On the other hand, there was substantial material on record to suggest that the accident took place well before 8.1.85, on 5.1.85 itself. So called report on which the plaintiffs placed heavy reliance is nothing but recording of intimation of accident having taken place in terms of section 358 of the Indian Merchant Shipping Act, 1958 which itself records the statements made by the deponents. There is nothing to suggest that Shri Vyas verified such details through any mode of inquiry or investigation. In his deposition, he admitted that he had issued it only on the basis of the disclosures made by the deponents and he had no personal knowledge about the same. The trial court, therefore, in our opinion, correctly discarded such document from the consideration.
18. Additionally, the witness Shri Vyas admitted to have received covering letter Exh. 85 and telex message Exh. 86. These documents were issued by the Ministry of Shipping and the telex message dated 7.1.85 recorded the accident having taken place and crew members having been rescued. Telex message pertains to the arrangement to be made with respect to crew members which unequivocally established that the accident had taken place on or before 7.8.1985. The trial court, in our opinion, therefore, correctly based its conclusions and held that the plaintiffs have made out no case for grant of decree.
19. In his report Exh. 116, the defendant's witness Shri Mansukhlal Amrutlal Modi had relied on several factors, documents and other material to come to the conclusion that the accident had taken place on 5.1.1985.
20. The plaintiffs thus miserably failed to establish that the accident took place after the insurance policy was issued. In fact, there was sufficient evidence to suggest that well before the issuance of insurance policy, incident had already taken place.
21. In the result, we find no merits in the appeal. Same is, therefore, dismissed. No order as to costs. R&P to be transmitted to the trial Court.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas