JOSITA ANTONY Vs. NEW INDIA ASSURANCE COMPANY LTD.

JUDGEMENT

(1.) WHETHER the acceptance of the premium and the proposal for an insurance policy by themselves create a concluded contract? Whether the loss of the insured boat, without proving that the loss was due to one of the perils insured against, will enable the insured to claim the insured sum? These are the questions to be resolved in the appeal.

(2.) PLAINTIFF in O.S .No. 63/92 on the file of Principal Sub Court, Kochi is challenging the dismissal of the suit in this appeal. Respondents are the defendants. The fishing boat by name 'Kadalthuruthu' was insured with first respondent New India Assurance Company Limited for the period 28 -10 -1988 to 27 -4 -1989 under Ext A -2 policy. The policy was not renewed before the expiry of the period. Appellant submitted Ext.B -2 proposal on 11 -5 -1989. Under Ext.A -2 policy the boat was insured for Rs. 2,00,000. Under Ext.B -2 proposal, appellant claimed the sum assured at Rs. 2,50,000. A premium of Rs. 4,168 was paid on 18 -5 -1989 for which Ext. A -l receipt was issued by first respondent. For the purpose of issuing a fresh policy, the value of the boat has to be assessed. D.W. 1 the approved Surveyor inspected the boat and prepared Ext.B -4 valuation certificate dated 12 -5 -1989, valuing the fishing boat with the machinery and assets at Rs. 1,50,000. The fishing boat was sunk in the sea on 30 -5 -1989. Appellant intimated first respondent on the very next day that the boat was sunk and all attempts to salvage the boat failed and it was irrecoverably lost. The factum of drowning was also reported to the Sub Inspector of Police, Willingdon Island as well as the Circle Inspector of Police, Mattancherry. According to the appellant, he received Ext. A -7 policy for the period from 18 -5 -1989 to 17 -8 -1989 for the sum insured as Rs. 1,50,000. Immediately appellant protested contending that insured sum is Rs. 2,50,000 and not 1,50,000. According to appellant, the Surveyor's report dated 12 -5 -1989 was not filed by the Surveyor till 30 -5 -1989 and was submitted only after the boat was sunk. According to appellant, after completing repairs and maintenance and including the newly purchased fishing net, the value of the boat was Rs. 2,50,000 and having received the premium, first respondent is not entitled to issue a policy for Rs. 1,50,000 and appellant is entitled to get the entire insured sum of Rs. 2,50,000. The suit was filed claiming the amount with interest at 18% contending that first respondent is bound to pay the insured sum as the boat was sunk during the period of insurance policy.

(3.) THE court below framed the necessary issues. The husband of the appellant was examined as P.W. 1 and the Surveyor who prepared Ext.A -18 report was examined as P.W. 2. On the side of respondents the Surveyor who submitted Ext.B -4 Survey report was examined as D.W. 1. and the Officers of the first respondent were examined as D.Ws. 2 and 3. On the evidence court below found that the sum insured under Ext.A -7 insurance policy is only Rs. 1,50,000 and not for Rs. 2.50,000 as claimed by the appellant. Finding that the burden is on the appellant to prove that the boat was sunk due to one of the perils insured against under Ext. A -7 policy and appellant did not establish that fact and therefore she is not entitled to any amount under Ext. A -7 policy and dismissed the suit but without costs. Appellant is challenging the decree and judgment contending that the court below did not properly appreciate the evidence or facts. It was contended that having accepted the premium for Rs. 2,50,000, court below should have found that there was concluded contract between the parties and court below ought to have found that there is an insurance coverage for Rs. 2 1/2 lakhs. It was also contended that appellant need not prove admitted facts and as the respondents did not deny the factum of the accident, it should have been found that the boat had sunk due to the insured peril and court below should have granted the decree as prayed for. It was contended that in any event court below should have granted the decree for the sum insured under Ext. A -7 and the dismissal of the suit is unsustainable.