GENERAL ASSURANCE SOCIETY Vs. M S SIVASAMI

JUDGEMENT

(1.) THE General Assurance Society Limited, the first defendant in O. S. No. 6 of 1963 on the file of the Subordinate Judge, Tuticorin, is the appellant. On 20-11962, the first respondent-plaintiff consigned 175 tons of garnet sand in the second respondent-second respondent's boat No. 137 from Kulasekarapatnam to bombay and insured the cargo with the appellant company. The boat left with the cargo on 20-1-1962. Alleging that on the morning of 21-1-1962 the boat encountered high seas and due to that rough water entered into the boat, that 100 tons of garnet had to be jettisoned, that when the boat was turned back to kulasekarapatnam to unload the remaining cargo, there was high sea resulting in water entering into the boat and that therefore the remaining cargo had also to be jettisoned and that a protest was made regarding the same which was recorded by the concerned officer in Kulasekarapatnam port, the plaintiff laid the suit for recovery of Rs. 11,025/ -. Relief was claimed against the first defendant in the first instance. Alternatively relief was claimed against the second defendant in case it should be found that the first defendant is not liable.

(2.) THE appellant-first defendant contended that the policy was materially altered by dishonest and fraudulent means by taking advantage of the ignorance and inexperience of the clerk of the first defendant in its branch office at Tuticorin, that originally the policy contained the words "total loss only", that the said expression was scored out subsequently and the expression "fpa with jettisoning" were added in addition to affixing a rubber stamp containing the words "fpa and jettison due to stress weather only". According to the first defendant, these corrections were made without the knowledge of the first defendant. It was therefore contended the policy was un-enforceable and that the plaintiff was not entitled to claim any remedy against the insurance company. It was also contended that if at all the plaintiff had any claim it should be only against the second defendant.

(3.) THE second defendant filed a separate written statement contending inter alia that she was an unnecessary party to the suit and that she was not in any way liable for the suit claim.