Ratnam, J.
1. Appeals Nos. 428 to 431 of 1979 have been preferred by the National Insurance Company Limited, Madras (hereinafter referred to as 'the Insurance Company') against the common judgment and decrees passed by the learned Subordinate Judge, Nagapattinam, in O.S. Nos. 20,21,44 and 51 of 1977. Appeal No. 1026of 1979 has been preferred by UieplaintiffinO.S.No.20of 1977, Sub-Court, Nagapattinam, against the decree therein, in so far as the Court below disallowed a portion of the claim made in that suit
2. All the suits, out of which these appeals have arisen, were instituted for the recovery of different amounts from the different amounts from the Insurance Company representing the value of onion baskets jettisoned from the country boats into which they were loaded for shipment in the vessel M.V. Chidambaram, on the strength of the policies of insurance issued by the Insurance Company in favour of the exporting firms or in favour of M/s. National Agricultural Co-operative. Marketing Federation of India Limited. Nagapattinam, duly endorsed in favour of other exporting firms, who figured as plaintiffs in the suits referred to earlier. As the basis upon which the different exporting firms, namely, the plaintiffs in the suits have made their claim against the Insurance Company is identical, it would suffice to notice in some detail the facts giving rise to the institution of O.S. No. 20 of 1977, Sub-Court, Nagapattinam, for an appreciation of the controversy between the parties to these appeals, though the amounts claimed in the suits are different. According to the case of the respondent in Appeal No. 428 of 1979 (appellant in Appeal No. 1026 of 1979), the Insurance Company issued an open policy for export of onion in bags or baskets. Pursuant to that, the respondent in Appeal No. 428 of 1979 exported 2,000 baskets of onion, in respect of which the Insurance Company issued a certificate of insurance for an amount of Rs. 84,500/- on 9-7-1975. The 2,000 baskets of onion were loaded in two boats C.B. 17 and C.B. 66, each boat taking 1,000 baskets to be put on board the vessel M.V. Chidambaram, which was anchored off the coast of Nagapattinam on 11-7-1975. The boats into which the onion baskets were loaded were seaworthy and fit to take the cargo and the boats left the wharf early in the morning of 11-7-1975, when the weather was good, according to the respondent in Appeal No. 428 of 1979. Its further case is that the boats reached the steamer side and were tied to the steamer by ropes and were awaiting their turn for the lifting of the goods into the steamer. At about 3 p.m., the sea became rough with high waves and currents accompanied by gusty winds, which resulted in the dashing of the boats against the steel sides of the steamer and the other boats stationed by the steamer side. This caused the side planks to give way and sea water got into the boats and attempts to bale out the water were of no avail. Thereupon, the tindals apprehended that if the boats were kept any longer near the steamer side, they would be sunk and decided to return to the shore with the cargo. Meanwhile, the weather became worse and the sea turned rougher with very high waves and more fierce currents resulting in more sea water getting in to the boats. All attempts to bale out the sea water from the boats having failed, it was necessary for the tindals to lighten the boats with a view to save the boats as well as the crew and a substantial part of the onion baskets had to be jettisoned and thereafter the boats returned to the wharf at about 8 p.m. on 11-7-1975. The baskets so jettisoned from C.B. 17 and C.B. 66 were 581 and631 respectively, totalling to l,212baskets. The respondent in Appeal No, 428 of 1979 claimed to have communicated the jettisoning of the goods to the Insurance Company by two telegrams sent on 12-7-1975. The respondent in Appeal No. 428 of 1979 also obtained a relanding certificate. In addition, it was claimed that intimation letters about the jettisoning were also given to the Port Officer, Nagapattinam, by findals and protests were also recorded by the Officer on 25-7-1975. A claim for Rs. 32,724/- representing the value of 1,212 baskets of onion jettisoned was made on the Insurance Company by letter dated 22-8-1975, but the Insurance Company repudiated its liability on the ground that there was no jettisoning at all on that date. The repudiation of the liability of the Insurance Company was characterised to be unjust and improper. Claiming that the loss by jettisoning sustained by the respondent in Appeal No. 428 of 1979 was covered by the terms of the policy issued by the Insurance Company, the respondent in Appeal No. 428 of 1979 made a demand on the Insurance Company by letters and telegrams to pay the .amount, but as that was not acceded to, the respondent in Appeal No. 428 of 1979 institutedO.S.No.20of 1977. Sub-Court, Nagapattinam, against the Insurance Company for the recovery of a sum of Rs. 38,123-46, comprised of Rs. 32.724A, being the value of 1,212 baskets of onion jettisoned and Rs. 5,399-46, being the interest at 12% per annum on the amount from 22-8-1975 till the date of the filing of the suit 3. In the written statement filed by the Insurance Company, it disputed the deterioration of the weather on 11 -7-1975 as alleged by the respondent in Appeal No. 428 of 1979. It also pleaded that there was a scramble among the several boats to load their cargo and this led to the hitting of boat No. 32 by other boats, which led to the development of leaks in that boat and the final sinking of that boat with the remaining cargo. The other boats, according to the Insurance Company, became panicky and returned to the wharf with the cargo. The jettisoning of the cargo in the manner alleged by the respondent in Appeal No. 428 of 1979 was also disputed by the Insurance Company. The non-loading of the cargo into M.V. Chidambaram was attributed to a wanton and deliberate act on the part of the boatmen. The protest notes were characterised as having been made by the tindals at the instance of the respondent in Appeal No. 428 of 1979 to lend support to a false claim. Referring to the loading of goods into a Russian steamer anchored near M.V. Chidambaram, the Insurance Company pleaded that the country vessels or boats into which the onion cargo was loaded were noting volved in any accident and that they had not returned without unloading the cargo. The Insurance Company also repudiated its liability under the terms of the policy on the ground that the return journey from the steamer to the shore was not covered thereunder and that the risk terminated when there was a change of voyage and, therefore, it was not liable for the goods stated to have been jettisoned. Excess loading of cargo into boats beyond the permitted limit was also put forth as a reason by the Insurance Company for denying its liability. An objection regarding the suit being bad for non-joinder of National Agricultural Co-operative Marketing Federation of India Limited was also raised by the Insurance Company. Finallly, the claim of the respondent in Appeal No. 428 of 1979 was labelled as frivolous and unsustainable and the Insurance Company prayed for the dismissal of the suit.
3.In the written statement filed by the Company, it disputed the deterioration of the weather on 11-7-1975 as alleged by the respodent in Appeal No. 428 of 1979. It also pleaded that there was scramble among the several boats to load their cargo and this led to the hitting of boat No. 32 by other boats, which led to the development of leaks in that boat and the final sinking of that boat with the remaining cargo. The other boats, according to the Insurance Company, became paincy and returned to the wharf with cargo. The jettisoing of the cargo in the manner alleged by the respondent in Appeal No. 428 of 1979 was also disputed by the Insurance Company. The non-loading of the cargo in to M.V.Chidambaram was attributed to a wanton and deliberate act on the part of the boatmen. The protest notes were characterised as having been made by the tindals at the instance of the repondent in the Appeal No. 428 of 1979 to lend support to a false claim, Referring to the loading of goods in to a Russian steamer anchored near M.V. Chidambaram, the Insurance Company pleaded that the country vessels or boats in to which the onion cargo was loaded were not involved in any accident and that they had not returned without unloading the cargo. The Insurance Company also repudiated its liabitlity under the terms of the policy on the ground that the return jouney from the steamer to the shore was not covered thereunder and that the risk terminated when there was a change of voyage and, therefore, it was not liable for the gods stated to have been jettisoned. Excess loading of cargo into boats beyond the permitted limit was also put foth as a reason by the Insurance Company for denying its liabilty. An objection regarding the suit being bad for non-joinder of National Agricultural Co-opreative Marketing Federation of Inida Limited was also raised by the Insureance Company. Finally, the claim of the respondent in Appeal No. 428 of 1979 was labelled as frivolus and unsustainable and the Insurance Company prayed for the dismisssal of the suit.
4. In the reply statement filed by the respondent in Appeal No. 428 of 1979, it reiterated the bad weather and the rough sea and the jettisoning of goods as a consequence thereof in the manner set out in the plaint and stated that the terms of die policy would cover the loss that had occurred. Further, it was pleaded that there was no change of voyage at all and there was no over or excessive loading of the cargo into the boats beyond the permitted limit. Regarding the objection on the ground of non-joinder of the National Agricultural Co-operative Marketing Federation of India Limited, the respondent in Appeal No. 428 of 1979 pointed out that the Federation had endorsed and transferred the rights under the policy in its favour to the respondent in Appeal No. 428 of 1979, which was recognised under Section 52 of the Marine Insurance Act, and therefore, the objection regarding the non-joinder was of no avail.
5. In the other three suits, namely, O.S. Nos. 21,44 and 51 of 1977, Sub-Court, Nagapattinam, the respondents in Appeals Nos. 429,430 and 431 of 1979 made similar claims for the recovery of Rs.58,102/-,Rs. 19,800/-and Rs. 15,601-75 respectively representing the value of 1,212,500 and 400 baskets of onion jettisoned from C.B. 56 and C.B. 58, Boat No. ACC 7 and C.B. 54. as well as interest at 12% per annum on the amounts so claimed from 22-8-1975,8-8,1975 and 7-8-1975 respectively, till the date of filing of those suits.
6. In those suits also, the Insurance Company raised defences similar, to those already raised in O.S. No. 20 of 1977 Sub-Court, Nagappattinam. The respondent in Appeal No. 429 of 1979 alone filed a reply statement disputing the stand taken by the Insurance Company for avoiding its liability under the terms of the policy and raising contentions similar to those already set out by the respondent in Appeal No. 428 of 1979 in its reply statement.
7. On the basis of the aforesaid pleadings, the Court below proceeded to frame the necessary issues and since common questions of fact and law arose for decision in all the suits, on a memo filed by the parties concerned in the suits, they were tried jointly and the evidence recorded in O.S. No. 20 of 1977 was treated as the evidence in the other suits as well. On a consideration of the oral as well as the documentary evidence, the Court below found that the respondents in Appeals Nos. 428 to 431 of 1979 had clearly established that the sea was very rough on 11-7-1975 as a result of which damage to the boats was caused, that jettisoning of the cargo from boats Nos. 17,58,56,7 and 54 was done for justifiable reasons, that actual jettisoning of the cargo with reference to boat No. 66 was not made out, that there was a change of voyage which was covered by the policies of insurance but that such change was for excusable reasons under Section 51 of the Marine Insurance Act, that the National Agricultural Co-operative Marketing Federation of India Limited had transferred its rights under the policies in favour of the exporting firms and, therefore, the suits cannot be thrown out on the ground of nonjoinder of the said Federation and that the respondents in Appeals Nos. 428 to 431 of 1979 are entitled to recover from the Insurance Company a sum of Rs. 19,014/- with subsequent interest on Rs. 15,687/- at 12% per annum from 17-1-1977 till the date of realisation, a sum of Rs. 58,102/- with subsequent interest on Rs. 49,873/-at 12% per annum from 17-1 -1977 till the date of realisation, a sum of Rs. 16,469-60 at 12% per annum from 15-4-1977 till the date of realisation and a sum of Rs. 15,601-75 with subsequent interest on Rs. 12,926-08 at 12% per annum from 28-4-1977 till the date of realisation respectively. While in Appeals Nos. 428 to 431 of 1979 the Insurance Company has questioned the correctness of the decrees passed by the Court below in the manner aforesaid, the respondent in Appeal No. 428 of 1979 (the plaintiff in O.S. 20 of 1977) has, in Appeal No. 1026 of 1979. challenged the conclusion of the Court below regarding boat No. 66 and the consequential disallowance of a portion of the claim made in the suit.
8. Relying upon the conclusion of the Court below that there has been a change of voyage, the learned Counsel for the Insurance Company first contended that as the exporting firms had not arranged for the payment of extra premium for the coverage of risk in case of change of voyage under Clause A.4 of the Institute Cargo Clauses, no liability could be fastened upon the Insurance Company for the loss stated to have taken place in the course of such change of voyage. Reference in this connection was also made to Greenock Steamship Co. v. Maritime Insurance Co., (1903)1 KB 367 and Mentz, Decker and Co., v. Maritime Insurance Company, (1910)1 KB 132. Our attention was also drawn to paragraph 89 at page 59 of Volume 25 of Halsbury's Laws of England, Fourth Edition and Section 33(2) of the Marine Insurance Act, 1963. On the other hand, the learned Counsel for the exporting firms submitted that on the facts and circumstances of this case, there was no question of any change of voyage at all and that the Court below was in error in concluding that there was a change of voyage at all and that the Court below was in error in concluding that there was a change of voyage. Besides, the learned Counsel submitted that even assuming that there was a deviation, that stood excused under Section 51(1)(d) and (e) of the Marinel Insurance Act, 1963 rendering the Insurance Company liable for the loss of the cargo. The learned Counsel invited attention to the terms of the contract of insurance and contended that the loss occurring during transit of cargo to and from the ship was also covered by the terms of the policies without the payment of any extra premium.
9. We first proceed to consider whether there was a change of voyage at all as found by the Court below. Even according to the case of the exporting firms the Insurance Company had issued policies covering the risk from the warehouse at Nagapathanam, Madras to the warehouse in Singapore/Malaysia. A change of voyage occurs when after the commencement of the risk there is a voluntary change in the destination contemplated by the policy. When there is a change of voyage, ordinarily, the insurer may be discharged from liability from the time of change or from the time when the determination to change is made clear or manifested. On the other hand, there is a deviation from the voyage where the course of a voyage clearly designated in the policy is departed from or where there is no clear specification of the course of voyage in the policy, the usual and customary course is not adhered to. If there is factual deviation from the voyage, then, the insurer is discharged from liability under the contract. In other words a change of voyage takes place when some other place of discharge is definitely thought of abandoning the original place of destination, while, in the case of deviation, without any design or abandonment of the original destination, there is a departure from the course of the insured voyage. It would, therefore, be a question of fact whether a departure from the course of voyage insured would amount to a change of voyage or only a deviation. The facts in this case are clear and simple. The vessel M.V. Chidambaram was due to sail from Nagapattinam to Penang and other destinations on 11-7-1975 and it was this voyage which was insured in so far as the cargo of the exporting firms were concerned. There was no change contemplated at any point of time in the destination. Nor was there any departure from the accustomed course of voyage in the voyage covered under the policies issued by the Insurance Company. Under those circumstances, there was no question of either change of voyage or deviation. We are therefore, unable to agree with the Court below that as the boats carrying the cargo returned from the steamer M.V. Chidambaram back to the shore without loading the cargo into the steamer, there has been a change of voyage. We find that on the facts of this case there was no Change in the voyage at all. It follows that Clause A.4 of the Institute Cargo Clauses could not be taken advantage of by the Insurance Company to deny its liability on the ground that an extra premium had not been arranged for a change of voyage. Likewise, Section 33(2) of the Marine Insurance Act, 1963, also cannot be relied upon by the Insurance Company to deny its liability. Nor would this case be governed by Section 51(1)(d) and (e) of the Marine Insurance Act, 1963, as contended by the learned Counsel for the exporting firms. The two decisions as well as the passage in Halsbury's Laws of England, Fourth Edition. Volume 25, relied on by the learned Counsellor the Insurance Company are of no assistance, for, it has earlier been found that there was no question of any change of voyage at all. We have, therefore, no hesitation in rejecting the first contention of the learned Counsel for the Insurance Company.
10. Even so, the question still remains whether the Insurance Company would be liable under the policies when the cargo is lost, while in transit from shore to the ship. This in turn would depend upon the terms of the policies. The policies with the relevant endorsements have been marked as Exhibits A-78, A-80, A-84, A-86/B-18, B-19 and B-20. In so far as Exhibit A-78 relevant to Appeal No. 428 of 1979 is concerned, it is seen that originally the tenns of the cover excluded jettisoning from shore to the steamer. This would mean that Clause A.3 of the Institute Cargo Clauses in so far as it related to the liability for loss of cargo during transit by craft or lighter to the vessel was excluded. However, by Exhibit A-80, it was agreed that the cover under Exhibit A-78 would include jettisoning while the interest is in transit from shore to the steamer. Similarly, in Exhibit A-84 relevant to Appeal No. 429 of 1979, there was an original exclusion for loss arising from jettisoning whilst the cargo was in transit from shore to the steamer. But under Exhibit A-86 the cover was extended to include jettisoning while the cargo was in transit from shore to the steamer. In Exhibits B-18, B-19 and B-20, which are the relevant policies in so far as Appeals Nos. 430 and431 of 1979 are concerned, there was no such original exclusion and subsequent inclusion regarding the coverage of loss while the cargo was in transit from shore to the steamer. But those policies contain a regular Institute Cargo Clause under A.3 to the effect that the transit by craft, raft or lighter to or from the vessel was also included. We may also notice in this connection Clause A.1 of the Institute Cargo Clauses, subject to which all the policies referred to above have been issued. That clause states that the insurance attaches from the time the goods leave the warehouse or place of storage at the place named in the policy for the commencement of the transit, continues during the ordinary course of transit and terminates either on delivery (a) to the consignees' or other final warehouse or place of storage at the destination named in the policy, (b) to any other warehouse or place of storage whether prior to or at the destination named in the policy, which the assured elect to use either (i) for storage other than in the ordinary course of transit, or (ii) for allocation or distribution, or (c) on the expiry of 60 days after completion of discharge over side of the goods hereby insured from the oversea vessel in the final port of discharge, whichever shall first occur. Institute Cargo Clause A.3 expands the scope of the transit occurring in Clause A. 1 as to include transit by craft, raft or lighter to or from the vessel. Even according to the case of the Insurance Company, the cargo left the warehouse and this marked the commencement of the transit, though it disputed the subsequent jettisoning of the cargo. Thus, according to Institute Cargo Clause A. 1, the cover under the insurance policies attached to the cargo from the time the cargo left the warehouse, which is not disputed by the Insurance Company. The commencement of the transit in these cases is from the warehouse to the boats and it thereafter continued till the cargo was loaded into the ship anchored of f the coast. If under clause A. 1 referred to earlier, the cover under the insurance attaches from the time the cargo left the warehouse though for onward carriage to the boats for further carriage to the ship, that would suffice to cover the loss, as the cover is from warehouse to warehouse and the cargo had been moved from the warehouse at Nagapattinam. In order to set at rest any doubt whether during the transit of the cargo from the boat to the ship, the policy would cover the risk to the cargo, Institute Cargo Clause A.3 has been incorporated to the effect that the transit contemplated by Institute Cargo Clause A.1 would include transit by craft, raft or lighter to or from the vessel. The risk that may take place during the transit by boat to the ship and from the ship, that is loss at the time of loading or even unloading would also be covered by the policies. Under those circumstances, if the exporting firms establish that the loss had occurred after the commencement of the transit, that would suffice to fasten liability upon the Insurance Company. It is also significant that it is not the case of the Insurance Company that an interruption in transit would absolve them of liability under the terms of the policies. On the facts of this case, even according to the Insurance Company, the cargo had left the warehouse and was loaded into the boats but that there was no jettisoning owing to the bad or rough weather as claimed by the exporting firms. That would suffice to establish that transit had commenced, though it was interrupted later owing to rough seas and storm but that would not assist the Insurance Company to disown its liability under the terms of the policies, especially when there is not clause to the effect that an interruption in transit would put an end to the liability of the Insurance Company under the policies of the insurance. It is also significant that D.W. 1 has admitted that the policies come into force the moment the articles leave the warehouse and extend up to Penang. D.W. 2 candidly admitted that there is no specific exclusion regarding the jettisoning and that Clause A.3 of the Institute Cargo Clauses included transit from and to the vessel and that was a general clause applicable to export and import and to the present policies as well. Thus, on the terms of the policies issued to the exporting firms by the Insurance Company as well as the evidence of D.Ws. 1 and 2 referred to above, the Insurance Company cannot be heard to contend that no liability can be fastened on it for the loss of the cargo during transit from shore to the ship.
11. The learned Counsel for the Insurance Company next disputed the conclusion of the Court below that the cargo carried in the boats was jettisoned owing to bad weather and rough sea and contended that there were no materials to establish that the weather was bad or the sea was rough on 11-7-1975 necessitating the jettisoning of the cargo for the purpose of either saving the boats or the crew. Referring to the protest notes, the learned Counsel submitted that they should all be discredited, for, there were corrections therein and that the evidence of the tindals was also unacceptable as regards the circumstances leading to the jettisoning of the cargo. On the other hand, the learned Counsel for the exporting firms pointed out that rough sea and bad weather on 11 -7-1975 was established by the reports of the tindals as well as the protest notes and by the evidence of P.W. 6 who recorded the protest notes pointing that the evidence of P.W. 6 has not been discredited, the learned Counsel submitted that the protest notes and the evidence of the tindals clearly made out that the weather conditions which obliged the crew to jettison the cargo. It was also further pointed out that the independent evidence of P.Ws. 7 and 9 also clearly made out the bad weather conditions justifying the jettisoning of the cargo in the manner spoken to by the tindals supported by the protest notes.
12. Before the exporting firms can succeed in making the Insurance Company liable for the cargo stated to be jettisoned, it has to be affirmatively established that the weather was bad and the sea was very rough on 11-7-1975 which prevented the boats from loading the cargo into the steamer M. V. Chidambaram and further necessitated the jettisoning of the cargo with a view to save the boats and the crew. Though the exporting firms rely upon the report of the Marin Surveyor marked as Exhibit A-4 and his oral testimony as P.W. 2 to show that the weather conditions were bad on 11 -7-1975 at Nagapattinam, the Court below was disinclined to accept the report as well as his oral evidence. Similarly, the evidence of P.W. 3 as well as the entries in the Log Book were not accepted by the Court below, for, the entries relating to 11-7-1975 were not made by P.W. 3. But the tindals who were in the boats which carried the cargo to M. V. Chidambaram have been examined. P.W. 15 was in charge of boat C.B. 17. P.Ws. 10 and 13 were in charge of boats C.B. 56 and C.B. 58. P.Ws. 12 and 11 were likewise in charge of boats A.C.C. 7 and C.B. 54. The report of the tindals have been marked as Exhibits A-22, A-26, A-28, A-36 and A-38 respectively. The relevant protest notes are ExhibitsA-23, A-27, A-29, A-37and A-39.P.WS.15,10,13,12,11 who admittedly were the tindals of the boats referred to earlier, have all stated that on 11-7-1975 they left the wharf with the cargo in their boats intended to be loaded into the steamer M.V. Chidambaram and that after reaching the ship while they were waiting to land the cargo, there was heavy windy and the sea became rough, with the result that the boats hit the hull of the ships as well as the adjoining boats leading to the giving way of the planks and the package fibers of the boats and the entering of sea water into the boats. Their further evidence is that the sea got so rough that they were not able to load the cargo into the ship and decided to return to the shore with the cargo and that the sea became rougher with fierce currents and high tides and attempts to bale out the water which got into the boats did not bear fruit and that they had to jettison the cargo in order to save the lives of the crew as well as the boats. We have carefully considered the evidence of the witnesses referred to above and we do not find any reason whatever for not accepting their testimony. It may be that there are some inaccuracies in their evidence. But broadly their evidence clearly establishes that the weather was bad and the sea was rough and they were unable to load the cargo into the ship and as water got into the boats they decided to return to the shore and while so returning, the cargo had to be jettisoned to prevent the boats from sinking and causing loss of life. The reports submitted by the tindals under Exhibits A-22, A-26, A-28, A-36 and A-38 clearly establish the rough sea and the rolling of the boats resulting in the giving away of the planks of the boats and water entering into them. All these reports which are dated 12-7-1975 have been submitted by the tindals to the Port Officer, Nagapattinam, on 14-7-1975. A careful consideration of the contents of there ports referred to above makes it clear that the sea was exceedingly rough after about 2 p.m. on 11 -7-1975, which made it impossible for the boats which were already near the ship to unload the cargo on to the ship and that the weather conditions further deteriorated resulting in a total inability to load the cargo and obliging the crew of the boats to decide to return to the shore with the cargo, when jettisoning had to be resorted to in order to save the crew and the boats in view of the further deteriorating weather on account of which large quantities of water had also got into the boats owing to the planks having been broken. This is also further supported by the protest notes submitted by the tindals under Exhibits A-23, A-27, A-29, A-37 and*A-39. A criticism was made that the protest notes contain some corrections and, therefore, they should be discarded. P.W. 6 was the Port Officer at Nagapattinam at the relevant time, as there was no independent Port Officer. He had taken down all the protest notes. The protest notes were taken down on 25-7-1975 when the Port Officer came to Nagapattinam. From this, it was sought to be contended that the protest notes were make-believes. We are unable to agree that the protest notes were got up to support the claim of the exporting firms. It is seen from the protest notes Exhibits A-23, A-27, A-29, A-37 and A-39 that they have all been recorded on 25-7-1975. Merely by reason of the passage of a few days before the protests were recorded, they cannot be discredited. It is further seen from the reports , submitted by the tindals referred to earlier that they paid fee for recording their protests only sometime about 12-7-1975 as soon as thereafter the protests have been recorded. The person who recorded the protests has been examined as P.W. 6. Nothing has been suggested as to why his evidence regarding the recording of the protest notes should not be accepted. Thus, on the evidence of the tindals, their reports submitted immediately after the event and the protest notes, it is clearly made out that owing to adverse weather conditions on 11-7-1975, with a view to save the boats as well as the lives of the crew a part of the cargo had to be jettisoned. Apart from this, the testimony of P.Ws. 7 and 9 would also clearly indicate that the weather was bad on 11 -7-1975 and the sea was very rough. P.W. 7 was supervising the loading operations in a Russian ship on 11-7-1975 and according to him, on 11 -7-1975 and there was loading operation between 7.30 and 11 a.m. and not thereafter between 11 a.m. and 9 p.m. as no boat came to the ship. P.W. 9 was working at the relevant time as a Supervisor in Import and Export Corporation at Nagapattinam and according to him, there was no discharge of cargo from the ship M.V. Mariva between 10th and 11th of July, 1975. There were no unloading operations on 10-7-1975 and 11-7-1975, according to P.W. 9. The testimony of P.Ws. 7 and 9 with reference to the total absence of unloading operations between the hours mentioned by them on 11-7-1975 and other days strongly supports the case of the exporting firms that the weather was bad and the sea was rough and, therefore, the loading and unloading operations came to a standstill. There is also one other circumstance which would probabilise the bad weather and rough sea with high tides. Exhibit B-16 is the protest note issued by the State Port Officer, Nagapattinam, regarding another boat ACC 32. According to that, on 11-7-1975, after 12 noon, the wind was very strong and the sea became rough and the boat started rolling and pitching and owing to that the boat dashed against the side of the steamer resulting in water entering into the boat and the crew jumped into another launch to save their lives. The protest note also added that the boat was a total loss. A similar tindal report and protest note with reference to boat C.U. 429 had been marked as Exhibits A-30 and A-31. With reference to that, it is seen from Exhibit B-13 that the Insurance Company had settled the claim made with reference to the cargo jettisoned from the boat C.U. 429 on 11-7-1975. D.W. 1 admitted having received the protest note regarding boat No. 32 and the settlement of claims thereunder. It is thus seen from the evidence, referred to above that on the very same day, namely, 11-7-1975 other boats which had similarly suffered damage or resorted to jettisoning of the cargo put in their claims which have been settled by the Insurance Company. This could only be on the footing that on 11-7-1975, the sea near Nagapattinam coast was very rough and the weather was bad and the boats could not approach the ship anchored off the coast for the purpose of loading the cargo and owing to the adverse weather conditions, the boats had to disgorge the cargo with a view to save the boats as well as the crew therein. Thus, it is clear that Insurance Company is merely attempting to avoid its liability on the ground that the exporting firms have not established that the weather was bad or that the cargo was jettisoned. We are of the view that having regard to the evidence referred to earlier, the exporting firms have clearly established that after the boats left the wharf with the cargo to unload them into the ship and were waiting to do so, the weather conditions worsened resulting in the boats being tossed about and rendered leaky and that with a view to save the boats as well as the crew, jettisoning of the cargo had to be done in the manner spoken to by the tindals supported by their reports as well as protest notes. We may add that before this Court there was no controversy between the parties regarding the number of baskets of onion forming part of the cargo so jettisoned or the value thereof as claimed by the exporting firms. As the only two contentions urged by the learned Counsel for the Insurance Company are unacceptable, it follows that the Court below was quite right in decreeing the suits in O.S. Nos. 21,44 and 51 of 1977. No case for interference with the judgment and decree passed by the Court below in those suits is made out.
13. In sofarasO.S.No.20of 1977, Sub-Court, Nagapattinam, against which Appeal No. 428 of 1979 and Appeal No. 1026 of 1979 have been preferred by the Insurance Company as well as the exporting firm respectively is concerned, the Court below had disallowed a part of the claim made with reference to the cargo jettisoned from the boat C.B. 66. This was on the footing that there was no evidence as to the actual jettisoning of cargoand the cause which led to the jettisoning from the boat C.B. 66. The report of the tindal with reference to the boat C.B. 66 as well as the protest note were marked as Exhibits A-24 and A-25. Under Exhibit A-24, tindal of the boat C.B. 66, K. Panneerselvam, had referred to the jettisoning of 631 baskets of onion. Under Exhibit A-25 protest note, he has reiterated it. P.W. 6 has categorically admitted that Exhibit A-24 report was sent by the tindal in charge of the boat C.B. 66 and that he wrote the protest note under Exhibit A-25. A.W. 6 has also written the other protest notes, according to his evidence. When the contents of the reports and the protest notes already referred to have been accepted by the Court below, we do not see how it could be different with reference to the boat C.B. 66 only. The tindal who made the initial report Ex. A-24 and also gave the protest note Ex. A-25, no doubt, could have been examined. But it is seen from the record of the proceedings that the tindal of the boat C .B. 66, one Panneerselvam could not be made available for examination in Court despite being summoned, as he was plying some other vessel on the Malabar Coast at the time of trial. However, the evidence of P.W. 6 who has recorded Exhibit A-25 protest note would, in our view, be sufficient to establish not only the jettisoning of the cargo as well as the quantity so jettisoned. The Court below has not chosen to reject the testimony of P.W. 6 on any aspect. The learned Counsel for the Insurance Company did not make any attempt to persuade us to hold that the testimony of P.W. 6 is unacceptable. We find that testimony of P.W. 6 which has been accepted even by the Court below with reference to the other protest notes should have been accepted with reference to Exhibit A-25 protest note also relating to the boat C.B. 66. On the basis, therefore, of the testimony of P.W. 6 read with Exhibits A-24 and A-25, we hold that on 11-7-1975, owing to adverse weather conditions, a portion of the cargo of onion baskets had to be jettisoned from the boat C.B. 66 and the quantity so jettisoned was 631 baskets. We have earlier noticed that there was no dispute before this Court regarding the value claimed. We accordingly hold that the plaintiff in O.S. No. 20 of 1977, Sub-Court, Nagapattinam, is entitled to recover the value of the cargo jettisoned as prayed for in the plaint with costs.
14. Consequently, Appeals Nos. 429 to 431 of 1979 are dismissed with costs of the respective respondents. Appeal No. 428 of 1979 is dismissed with costs and Appeal No. 1026 of 1979 is allowed, but without costs.