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Hajee Esmail Hajee Sidick and anr. Vs. Shamji Poonjani - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom550
AppellantHajee Esmail Hajee Sidick and anr.
RespondentShamji Poonjani
Excerpt:
marine insurance - policy, construction of. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said..........(exhibit no. i) it was stated that 'this insurance is agreed to be according to the rules of an english policy without damage.' what those rules are in bombay, sufficiently appear in the seventeen policies put in on behalf of the plaintiffs, and the two policies, marked no. 2, put in on behalf of the defendant. all of those policies contain in the body or in the memorandum the usual english clause--'free from particular average, unless stranded, sunk or burnt'; and in the margin the gujarathi clause to the effect that 'this policy is without damage.' the eight policies, marked no. 1, and put in on behalf of defendant, contain neither of these clauses. hence it would seem that, according to the custom of bombay, amongst native merchants and native underwriters, when either of these.....
Judgment:

Michael Westropp, C.J.

1. We are of opinion that no total loss of the plaintiffs' goods has been shown; but that to recover in this action it is sufficient, inasmuch as the ship was lost by being stranded upon a rock, to establish a particular average loss. Whether we look to the oral evidence as to the commercial meaning attached in Bombay to the Gujarathi words importing 'without damage,' or to the true construction of the policy itself without the aid of such evidence, we must hold the defendant (respondent) to be responsible for a particular average loss. Except the testimony of the respondent himself (who was strongly biassed by his interest), and that of his one witness who--Mr. Justice Atkinson, it was admitted, said--was wholly undeserving of credit, the evidence was all in one direction, viz., that the ship having been stranded, the underwriters were, under such a policy as that sued upon here, liable for the damage, i.e., the particular average loss incurred. The plaintiffs' witnesses, of whom four were insurance brokers, two were underwriters, and two were merchants, were unanimous on that point.

2. Independently, however, of their evidence, and looking at the documentary evidence alone in this case, we should have come to the same conclusion. In the Gujarathi preliminary (kachcha) policy (exhibit No. I) it was stated that 'this insurance is agreed to be according to the rules of an English policy without damage.' What those rules are in Bombay, sufficiently appear in the seventeen policies put in on behalf of the plaintiffs, and the two policies, marked No. 2, put in on behalf of the defendant. All of those policies contain in the body or in the memorandum the usual English clause--'free from particular average, unless stranded, sunk or burnt'; and in the margin the Gujarathi clause to the effect that 'this policy is without damage.' The eight policies, marked No. 1, and put in on behalf of defendant, contain neither of these clauses. Hence it would seem that, according to the custom of Bombay, amongst native merchants and native underwriters, when either of these clauses appear in a policy, the other does so also. They are (so far as we can form an opinion from the documentary evidence before us) apparently invariably found together. The English clause occurs first in point of order. It is, however, unnecessary to resort to the rule as to deeds or contracts, that where clauses are inconsistent with each other, the first in order must prevail. There is no such irreconcilability here. Effect will be given to the Gujarathi provision, that the policy sued upon is 'without damage,' by construing it to mean that the underwriters shall not be liable for damage, unless the ship be stranded, sunk or burnt, and this construction gives full effect to the English provision, also contained in the policy, that the underwriters are to be free from liability for particular average, unless the ship be stranded, sunk or burnt. Were we to give unlimited scope to the Gujarathi stipulation, that the policy is to be 'without damage,' we should reject altogether from the English clause the excepting wards 'unless stranded, sunk, or burnt.' These specific words control, but do not nullify, the principal words 'without damage' in the Gujarathi stipulation, and it is our duty so to construe the policy as to give effect, so far as is practicable, to all the provisions in the policy without wholly rejecting any of them. We decline to countenance for a single moment the argument that the underwriters, who have been subscribing such policies for many years, do not understand the meaning of the English clause.


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