MOHAMMAD ZAHOORUL HAQ, J.-This is a Letters Patent Appeal against the judgment and decree of a Single Judge of this Court passed on 14-6-1968 decreeing the suit of the respondent in the sum of Rs.60,000 against the appellant with running interest at 6 % from the date of suit till realization.
2. Respondent was the owner of a fishing trawler named "Anar" and also known as Nazir, which he had insured with the appellant in the sum of Rs.60,000 against total loss for a period of one year from 1-9-1962, but the premium was made payable in quarterly instalments. There is no dispute that three instalments were duly paid and insurance continued till 31-5-1962. However, 4th premium for the quarter 1-6-1963 to 31-8-1963 was not paid in time and although in the trial, effort was made by plaintiff/respondent to show that he had paid premium for this period, but there is no proof of such payment in time. However, the 4th premium was paid on 2-9-1963 along--with the premium for the next quarter viz. Period from 1-9-1963 to 30-11-1963 and the policy was duly endorsed and extended by the appellant on 2-9-1963.
3. The trawler met with an accident on the 3rd of September, 1963 and it was sunk and filled with sand near Devil Island on the other side of Korangi Creek. The plaintiff/respondent claimed the total loss from the defendant/ appellant Insurance Company on 4-9-1963. The appellant appointed M/s. Isharat & Company as Surveyors, who made enquiries from the spot and gave their report Exh. 23/3 on 26-9-1963. They came to finding that there were two versions of the accident. One version was that the trawler met with an accident and was stuck up on 29-8-1963 after leaving Karachi Fish Harbour on 28-8-1963 and this departure was considered as a breach of the warranty of the insurance policy which had laid down that period from 1-6-1963 would be the laid up period which meant that it could not be used for fishing, but use within Karachi Harbour limits was not prohibited.
Since Korangi is now established to be outside Karachi Harbour limits, therefore, trawler's departure from Karachi to Korangi on 28-8-1963 and it's use for fishing on 29-8-1963 was considered as breach of warranty by the Surveyors. This part of their report has brought about a considerable confusion in the case and real controversy was thrown in the background on account of the effort made by the appellant to prove that this part of the report was correct and counter effort made by the plaintiff/respondent that it was not so and that the actual accident took place between 3rd and 4th September, 1963. However, in the arguments before us Mr. Nasim Faruqi eventually conceded that this part of the version could not be successfully proved by the appellant/respondent.
4. The other version of the accident according to the report of the Surveyors Isharat & Company was that the trawler left Karachi Fish Harbour for Korangi Creek for the purposes of bottom clearing and it left Korangi for fishing on 1-9-1963 and engine failed on the same day and it became on the mercy of the waves and was stranded on the Devils Island on the morning on 2-9-1973.
5. The Surveyors went out of their way by giving a finding that the policy had lapsed on 1-6-1963 due to non-payment of quarterly premium and further that the plaintiff/respondent had been guilty of non-disclosure of the position of the ship having been stranded on 2-9-1963 morning when they obtained the extension of the policy in the afternoon of 2-9-1963.
6. The appellant/defendant repudiated the claim of the respondent/ plaintiff by letter of 12-10-1963.
They did not supply the copy of their Surveyor's report to the respondent who, therefore, got the loss surveyed by his own Surveyor Capt. John Johnston of G. B. Potts & Company on 30-10-1963; who made enquiries and gave his report Exh. 4-A and came to the conclusion that the trawler met with an accident on 4-9-1963 in the morning when it struck the bank. This report will be considered later.
7. The plaintiff/respondent filed their suit on 16-1-1964 and claimed Rs.60,000 on account of total loss. They mentioned in para. 5 of their plaint that the trawler started for fishing on 1-9-1963, but it encountered a mechanical defect resulting in failure of it's battery which made it necessary to anchor the vessel in strong current, but the anchor snapped and spare anchor met the same fate and efforts to hold the vessel by means of iron draw door failed and vessel drifted towards the bank and struck the same on the morning of 4-9-1963 resulting in total loss.
8. The appellant/defendant filed their written statement on 27-1-1965 and took up the position that the policy had lapsed on 1-9-1963 and while getting the same policy revived and extended on 2-9- 1963, the plaintiff/respon--dent failed to disclose every circumstance which would have influenced the defendant to fix the premium or to accept the risk at all. It was contended that non-disclosure of the state of trawler induced the defendant to extend the policy upon the belief that warranties of fitness at the inception of policy were in force. The allegations of the plaint were generally denied. It was also urged that the plaintiff/respondent had committed breach of warranties of policy and finally it was urged that the effective cause of wreckage was not covered by the policy.
8-A. 11 issues were framed on 16-8-1965. But the issues were recast on 11-10-1968 after hearing the parties counsel. Recast issues were :-
(1) Whether the insurance policy stood lapsed on 1-4-1963. If it did, whether it was revived by concealment of material facts ?
(2) Whether the wreckage took place on the night between the 1st and 2nd of September, 1963, or the night between the 3rd and 4th Septem--ber, 1963 ?
(3) Whether warranty as to laying the vessel during the monsoons was violated by the plaintiff?
(4)- Whether the immediate cause of the wreckage was sinking or strand--ing of the vessel? If it was stranding, then is it covered by the terms of the policy?
(5) To what amount, in any, is the plaintiff entitled ?
9. The plaintiff examined in all eleven witnesses in support of his case including himself as P. W. 6, Capt. John Johstone P. W. 1 who surveyed the loss and proved his report Exh. 4-A. P. W. 1 R. M. Shaikh, nephew of plaintiff, P. W. 2 Abdul Rahman, who had acted as agent of the plaintiff in respect of that trawler during the relevant period, P W. 3 Khalid Pervez, Preventive Officer Customs who proved Exh.
7/1 which is entry from record of customs showing that trawler left Karachi Harbour on 28-8-1963 with a crew of 10 persons, P. W. 4 S. M. Kirmani who used to procure insurance work and had delivered three quarterly premiums to appellant on behalf of the respondent. P. W. 5 Muhammad Agha Kazim, Preventive Officer customs at Ibrahim Hydri sub-port, who proved Exh. 9/I which is record of entry from the general register of customs of that sub-port showing departure of the said trawler from Ibrahim Hydri sub-port on 1-9-1963, plaintiff as P. W. 6 proved the policy Exh. 10/2 and loss of trawler on 4-9-1963 and extension of endorsement Exh. 10/3 dated 2-9-1963, his claim for loss Exh. 10/5 dated 4-9-1963, and especially Exh. 1.0/4 dated 1-9-1963 written by plaintiff to commanding officer, Korangi Creek and also legal notice Exh. 10/14 dated 14-10-1963, repudiation of claim by defendant on 12-10-1963 Exh. 10/16 etc. The plaintiff admitted that he had given statement Exh. 10-31 to Surveyor "Isharat". Plaintiff had also examined P. W. 7 Rauful Rehman's, Manager National Bank. P. W. 8 Raisul Afaq, clerk Mercantile Marine Department, who produced the report Exh: 2/6 of Mr. Abdul Ghaffar, Nautical Surveyor of enquiry conducted into the sinking of Trawler "Anar" under section 246(3) of Marchant Shipping Act, 1923 along with three state--ments of Abdul Rehman's Yousuf and Syrung Suleman respectively marked as Exh. 12-2, 12-3 and 12-4. P. W. 9 Khalilur Rehman's proved nothing. P. W. 10 Agha Masood Hasan. Captain in Artillery proved that plaintiff had come to him on 1-9-1963 at 10-00 p. m. And stated that his trawler was stranded and direction of firing should be changed. He had seen the trawler standing on 2nd and 3rd September, 1963 without showing any sign of sinking or being in trouble. Last person examined by plaintiff was P. W 11 Yousuf who was Khalasi on that trawler, who proved that trawler started for fishing from Ibrahim Hyderi Fish Harbour on 1-9-1963 and in the evening the battery cracked and engine stopped and vessel was anchored-. Some military men bad come to enquire about their presence and they informed them that trawler could not move. On 2nd September the anchor snapped and on 3rd September even the spare anchor snapped and vessel struck sand bank between 3rd and 4th September. He stated that they had hoisted a red flag to indicate that they were in trouble.
They had sent information on 2-9-1963 to Abu (meaning P. W. Abdul Rehman's) that they were in trouble and he had himself gone.
10. The appellant defendant examined D. W. Anthory Livingstone proved that when a trawler is stranded it cannot be said that it is sunk. D. W. 2 Muhammad Umer Qureshi, preventive officer customs and D. W. 3 Amir Afzal a peon in Ibrahim Hyderi village tried to prove that the trailer was stuck up on 1-9-1963 in Korangi Creek. D. W. Abdul Salarn who was examined twice as D.W. 4 and 5 proved that Korangi sub-port and Devils Islamd were not within the limits of port of Karachi vide Map Exh.21.D. W. 6 Muhammad Shoib, Marine Superintendent of the appellant proved that plaintiff had contacted them for revival and extension of policy on 2-9-1963 and that on that day the plaintiff did not mention about the condition or wreckage or whereabouts of the trawler. D. W. 7 Mr. Gonsalves is the Manager of defendant-Company. He stated that Kirmani P. W. 4 was not their insurance agent. He stated that policy had lapsed on 31-8-1963. He stated that plaintiff got that policy renewed and extended till 30-11-1963 in the afternoon of 2-9-1963 without making any statement about the condition of the fishing trawler. He stated in cross that claim of plaintiff was rejected on account of breach of warranties of laid up limits and material non-disclosure relating to the vessel. He produced report of the plaintiff's Surveyor MessRs.Isharat as Exh. 23-3. That report was, however, formally proved by D. W. 8 Isharat himself. He produced the statements recorded by him. Statement of Abdul Rahman was Exh. 24-1 and statement of plaintiff Nasiruddin was Exh. 10-31.
He stated that the loss of the trawler was on account of stranding.
11. The arguments were heard on three days by the Single Judge and judgment was delivered on 14-6-1968. The learned Single Judge in the High Court has considered the-evidence in detail. On issue No. 2 he came to the conclusion that the wreckage did not take place on the night between 1st and 2nd September, 1963, but it took place on the night between 3rd and 4th September, 1963.
He arrived at this decision after considering in detail the deposition of plaintiff, the report of Mr. Abdul Ghaffar Nautical Surveyor and the statements made by Agha Masud Hasan, Captain of the artillery who had stated that he had seen the trawler standing on 2nd September, 1:963 as well as on 3rd September, 1963 at about mid day without any sign of sinking. There is no reason to disbelieve the statement of Agha Masud on this account. P. Ws. Abdul Rehman's and Yousuf have also stated the trawler had not met with any accident before 3rd September, 1963 and Mr. Nasim has not been able to show any reliable evidence to the contrary although be tried to rely on the statements of D. Ws. 2 and 3, who had stated in their signed statements that trawlei had struck the bank on the night between 1st and 2nd September, 1963. But their statements are belied by the straight and clear statements made by Agha Masud and duly supported by plaintiff and P. Ws.
Abdul Rehman's and Yousuf who were ultimately connected with the trawler. Report of Isharat was rightly discarded as it was not sub--stantiated, decision on Issue No. 1 could not be assailed. And finally Mr. Nasim Faruqi conceded that he could not seriously challenged the decision on that issue.
12. Issue Nos. 1, 3 and 4 about insurance policy having lapsed and revised by concealment of material facts, warranty about laying down of the vessel during Monsoon period having been breached and the wreckage not being due to sinking but stranding were considered together by the Single Judge and were decided in favour of the plaintiff after considering the entire evidence.
13. Mr. Nasim Faruqi has taken us through almost the entire evidence all over again. His main line of attack was (1) that there was concealment of the position of the trawler when the policy was got revived on 2-9-1963 and such non-disclosure of the relevant facts has vitiated the policy, and (2) that revival of policy for the period of 1-6-1963 to 30-9-1963 and it's extension to the period from 1- 9-1963 to 30-11-1963 brought into its were the warranties attached to the main policy which required the trawler to be laid from 1-6-1963 to 31-8-1963 and to be moved only within the limits of Karachi Harbour and therefore, movement of trawler on 28-8-1963 from Karachi Harbour to Ibrahim Hyderi Sub-Port amounted to breach of warranty and vitiated the Policy, and further (3) that proximate cause of loss was due to stranding and not sinking and the same is not covered by the policy.
14. Mr. Muhammad Ali Sayeed has on the other hand contended that there was no deficiency in the case of the plaintiff-respondent and the case has been fully proved.
15. Mr. Nasim Faruqi contended that the vessel had to be laid up during Mansoons and it could not move beyond Karachi Harbour. This submission is correct but it has no effect upon the endorsement of extension of policy made on 2-9-1963 Exh. 10-3 for the period from 1-9-1963 to 30- I1-1963. This policy was for an initial period of one year from 1-9-1962 to 31-8-1963. But the premium had been payable quarterly and it is obvious that the police could remain effective for the quarter for which the premium was paid. In fact quarterly payments meant revival of the policy for each quarter and therefore every quarter has to be treated separately and therefore the happenings of one quarter could not affect the policy for the other quarter, Therefore, the alleged breach of laid up period warranty made in the quarter ending on 31-8-1963 would not affect the rights and liabilities of the parties in respect of the extension made on 2-9-1963 which has to be treated a almost a fresh policy on the terms of the original policy. Moreover, the alleged breach of warranty had not resulted in any loss or accident and it was therefore, of no consequence as the vessel had departed from Karachi on 28-8-1963 and had safely reached Ibrahim Hyderi on the same day and did not depart from there for fishing before 1-9-1963. Therefore, this alleged breach of warranty on 28-8-I963 was merely of academic interest.
16. In respect of last contention that cause of accident was due to stranding and the same was not covered by the policy Mr. Nasim referred to the proposal for insurance and the special term of policy Exh. 10-2 which had subjected total loss only due to sinking, fire collision. However, we find that the first term of the policy insures against total loss without making any exception in respect of stranding. Moreover, para. 6 of the same policy which makes certain exceptions from policy makes it further clear that stranding is not to be counted as one of those exceptions. Therefore, we do not agree with Mr. Nasim Faroqi that liability out of stranding was exempted under the policy. In any case there is hardly any evidence to justify the assertion that the accident was due to stranding and not sinking and therefore in that matter we do not find any flaw in the finding of the learned Single Judge.
17. Let us now examine the most important submission of Mr. Nasim Faruqi in respect of the non- disclosure of the position of the ship as it was on the morning of 2nd September, 1963. The admitted position in this respect is that the policy was extended on 2-9-1963. Plaintiff had tried to prove that he had given the cheque to Mr. Kirmani on 31-8-1963 and therefore the policy should be deemed to have been extended on 31-8-1963. But there is no justification for that. Mr. Kirmani has clearly stated that he was not the insurance agent of appellant/Company and Mr. Gonsalves has also clear stated that Mr. Kirmani was not the agent of appellant, therefore, any cheque given to Mr. Kirmani cannot amount to extension of policy by appellant. However, mere issue of cheque or even receipt of cheque is of no significant unless the slip is issued by the insurance company or endorsement about extension is made. Since in this case extension Exh. 10-3 was only made on 2- 9-1963 by the defendant)appellant, therefore, we have to take into consideration the position of the ship on the morning on 2-9-196:1. But before considering the same we would like to refer to the admitted position of law in this regard.
13. Mr. Nasim Faruqi had submitted that leading case on the point was the famous case of Carter v.
Boehm (97 E R 1162) where Lord Mansfield made the following observations :.- "Insurance is a contract upon speculation. The special facts upon which the contingent chance is to be computed, lie most commonly in the knowledge of the assured only ; the under writer trusts to his represen--tation, and proceeds upon confidence that he does not keep back any circumstance. In his knowledge, to mislead the underwriter ..................The keeping back such circumstance is a fraud---------------.Although the suppression should happen through a mistake, without any fraudulent intention, yet still the underwriter is deceived and the policy is void".
14. Similar observations are found in (1927) 1 K B 65,1 L R 41 Cal. 581. In AIR 1936 Sind 22 in a case of suit upon policy of life insurance the policy was held to have been vitiated on the ground that disease from which the plaintiff was suffering at the time of policy was not disclosed. Similarly in 1979 SCMR 229 life policy was held to have been vitiated on the ground of concealment of the fact that the policy holder was suffering from cancer when the policy was taken. In PLD 1970 Kar. 462 on a claim upon policy of insurance against storm risks in respect of goods stored in a godown, after considering that godowns were not built in a manner to prevent rain water and the ventilators and windows of the building were not fitted with glass panes, but such defects were not disclosed by the plaintiff to the insurers it was held that plaintiff's failure to inform the defendant of the said defects amounted to concealment of material facts.
15. In (1976) 1 Q B 507 in a case of claim of insurance upon loss of ship where the policy was issued after the ship had lost it's anchor due to bad weather and yet the decree had been granted, the appeal Court set aside the decree and remanded the case back on the ground that loss of anchor had to be put to jury. It is correct that no final decision is available in respect of that case, but it was clear that non-consideration of loss of anchor was regarded by the appeal Court as ,omission to state a material fact.
16. It is, therefore, clear that the insured is bound to disclose every circumstance which could influence the decision of every insurer as a prudent C businessman in either insuring the risk or fixing the rate of premium. However, what circumstances would be regarded as relevant is a question of fact to be decided in the circumstances of every case.
17. Mr. Muhammad Ali Sayeed counsel for the respondent had fairly stated that he did not dispute the principle of law that the insured was bound to show utmost good faith and to disclose every relevant circumstance but his contention was that in this case there was no concealment of any relevant and material fact by the respondent plaintiff as he had merely failed to disclose the failure of battery on 2-9-1963
18. Mr. Nasim on the other hand contended that it was not mere failure of battery which had been concealed but it was that the vessel had gone out of order and was stranded in Korangi Creek and that efforts at taking it out had failed on 1-9-1963, and that the anchor rope had snapped due to strong currents.
19. While examining this question there is hardly any evidence from the side of the appellant defendant and therefore the evidence of the plaintiff or the admitted statements of plaintiff and his agent or employees are being considered by us.
20. The first document is Exh. 10-4 signed by plaintiff on 1-9-1963 at 10-00 p. m. Addressed to P. A. F.
Korangi for stopping firing practice. The relevant fact disclosed is as follows :- "My trawler Nasir has gone out of order and is stranded in Korangi Creek. We tried to take it but failed so far."
This is the first version by the plaintiff himself. Plaintiff has not' . Explained in deposition as to what he meant by "we tried to make it out but failed so far". Mr. Nasim wants to interpret it as suggesting a stranding or stuck up, Mr. Saeed wants us to interpret it only as a failure of effort in moving the vessel out of the firing range. In whatever manner one may interpret it but the statement of the plaintiff in writing is that his trawler has gone out of order and effort at taking out failed. The plaintiff in his statement in Court interpreted the expression of '.`going out of order" to mere failure of battery and nothing else and he stated that- failure of battery was a routine occurrence and therefore he did not consider it necessary to disclose the same to the appellant. But it appears from the circumstances that there was more than mere failure of battery.
21. In para. 5 of the plaint the plaintiff has himself stated that trailer was taken out for fishing on 1-9- 1963 and during it's operation it however encountered a mechanical defect resulting in a failure of it's bettery. It is,[ therefore, clear from this statement in the plaint that there was first al p machanical defect which had caused the failure of the battery. Therefore, it was not mere failure of battery but a mechanical defect coupled with and resulting in failure of battery. In the same para. 5 of the plaint i-- is stated that mechanical defect and failure of battery made it necessary to anchor the vessel in strong currents". Therefore, strong currents are also admitted as on 1-9-1963.
Further in the same para. 5 it is mentioned that "the sea currents were however too strong and the anchor snapped." The date of snapping the anchor is not mentioned in this para. And the same has to be ancertained from other evidence.
22. The plaintiff has produced his own surveyor Captain John Johnstone P. W. .1, who had made inquiries in respect. Of the loss and in his report Exh. 4-A the following passages are important.
23. The cleaning having been completed the vessel was granted Port Clearance on 1-9-1963 and proceeded towards the sea to commence fishing but owing to a default in the electrical apparatus the engine stopped and master dropped anchor and had the battery and control sent ashore.
24. During the night of 1-9-1963, the anchor cable (rope) broke and the master dropped his spare anchor and the vessel was brought up.
25. This report clearly shows the anchor rope having been snapped on the night of 1-9-1963 before the insurance extension was secured on 2-9-1963. The para. 5 of the plaint had stated that anchor had snapped due to strong currents, therefore, the clear position that emerges from this report and para. 5 of the plaint is that on the night of 1-9-1963 the anchor rope had snapped due to strong currents. This report has also clearly stated that there was a default in electrical apparatus and therefore, engine stopped. The electrical apparatus is not mentioned clearly but mention of battery and control being sent ashore shows that the control and battery had both gone out of order.
Therefore, even this report shows that it was not mere failure of battery, but failure or defect in the control as well and all this had taken place on 1-9-1963.
26. We are conscious of the fact that this report Exh. 4-A is merely the result of inquiries made after event. But this report having been procured by the plaintiff and having been produced through his own surveyor th F plaintiff is at least bound by the same and the same can be treated at par with admissions made by the plaintiff and can be considered against him, It is true that P. Ws. Abdul Rehman's, Yousuf and plaintiff himself have not admitted this position in their depositions but the plaintiff cannot get out of his own application, plaint and report of his own surveyor.
27. This report Exh. 4-A had also shown that spare anchor parted on the night of 2-9-1963, but the same is of no consequence as we are considering only the position that prevailed upto the morning of 2-9-1963.
28. In this respect another important piece is the statement of the plaintiff himself which he had given to Isharat Surveyor on 30-9-1963 and the plaintiff bad admitted in his deposition in Court that he had signed that statement and the plaintiff was confronted with the same as Exh. 10-31.
Following is the relevant extract from that statement: "On 4-9-1963 evening Abu Bhai met me and gave out details of the trouble about the sudden failure of the battery and the self starter and the snapping of his anchors one after another in strong under currents on 1-9-1963 and 2-9-1963, and the final tragedy on the night of 3-4 September, 1963".
29. This statement of plaintiff again shows failure of self starter apart from battery and snapping of anchors on 1-9-1963 and 2-9-1963. Therefore, the first anchor obviously snapped on 1-9-1963.
30. When the plaintiff was confronted with this statement Exh. 10-31 he could not explain it in any manner and merely stated that Isharat was scribbling something with his ball pen and in his view that did not amount to recording of statement. But we find from the original Exh. 10-31 that it is a typed statement in two pages which is signed by the plaintiff and the plaintiff, an ex-officer, would not have signed it if he had not understood the contents. In fact Isharat D. W. 8 had stated that plaintiff had filed his statement in writing before him. Therefore, this statement of plaintiff Exh. 10-31 is his own admission about the defects in the vessel and it's position on 1-9-1963 and 2-9-1963 and the same has to be considered.
31. In this respect another report Exh. 12-6 is important which was prepared after enquiry by M. A.
Gbaffar, Nautical Surveyor of Mercantile Marine Department Karachi at the . Instance of the plaintiff and the plaintiff has got the said report produced and proved through his own witness Raisul Afaq P. W.
8. This report was approved by Chief Nautical Surveyor Government of Pakistan vide Exh. 12-5 on 20-1-1964. This report has been based on the statements of Abdul Rehman's, Yousuf and Suleman and was prepared under section 246(3) of the Merchants' Shipping Act, 1923. Following extract from the same is relevant for our purposes : "On 1-9-1963, she was put to sea and proceeded to Korangi for fishing at 10-00 hours. On that day the engines failed and the sarang of the fishing trawler, Suleman son of Yousuf had to use the anchor to avoid drifting. At about midnight on that day the rope attached to the anchor parted and another anchor was used in its place. This happened due to heavy sea and swell and strong wind."
32. Even the above extract shows failure of engines on 1-9-1963 and snapping of anchor on the same night due to heavy sea. The plaintiff cannot avoid the effect of this report as it had been produced by his own witness and is based upon the statements of the witnesses produced by him.
33. The result of the above quotations and discussions is that there was a mechanical defect in the engine which had resulted in the failure of the battery of the trawler on 1-9-1963 and the same had incapacitated the trawler to move and due to heavy sea the vessel bad to be anchored but the under current was so strong that the rope of the anchor snapped in the night of 1-9-1963. More-- over the control or the starter had been taken out of the vessel on 1-9-1963 and sent out for repairs.
Efforts at taking out the vessel, whatever those efforts were, had failed by 10 p. m. On 1-9-1963 and the vessel was lying at anchor with the spare anchor under strong currents on the morning of 2-9- 1963 with its battery and control out of order and it was at the mercy of strong currents.. These facts appear to be relevant and material for the purposes of insurance of a vessel and failure to bring the same to the notice of the insurer could, not be regarded as an act of good faith. It was not a mere failure of batter which was regarded as routine occurrence by the plaintiff. It is correct that the defendant/appellant has not specifically pleaded as to what. Particular facts were concealed from them and they had taken a general plea of non--disclosure of position and condition of ship.
But since act of good faith has to be shown by the insured by disclosing all relevant facts we find that full facts about the failure of the engine of the vessel and it's battery and snapping of one of its anchor under strong winds and heavy sea and its being stranded in the sea with a spare anchor were not disclosed to the defendant appellant and all these circumstances cannot be regarded as of routine occurrence and they were relevant and material circumstances to be disclosed to the insurer in order to assess the risk which was being run by them and to decided whether to cover the risk or refuse it or to cover the risk at what premium and thus the insurance policy was vitiated by this failure of the plaintiff even though it may have been only on account of an innocent mistake on their part.
34. Consequently this appeal is allowed with costs and the judgment and decree of the learned Single Judge is hereby set aside.