Judgment : F.M. Reis, J. 1. Heard Mr. A. D. Bhobe, learned counsel appearing for the appellant and Mr. E. Afonso, learned counsel appearing for the respondent. 2. The above appeal challenges the judgment dated 31.05.2001 passed by the learned Civil Judge Senior Division, Panaji, in Special Civil Suit No.105/90 whereby the suit filed by the appellant came to be dismissed. 3. In the nutshell, the case of the appellant is that they are one of India's leading salvage companies and had carried out salvage operations on different occasions and that they were sanctioned to purchase a secondhand foreign vessel known as “Sayremar Dos”. Accordingly, the said vessel was purchased for Rs.38,13,842.10/- which was partly financed by Bank of Maharashtra. It is further their case that they had carried out various improvements to the vessel and the insurance policy was renewed in February, 1988. The value of the vessel was increased to Rs.60 lakhs based on the valuation of the vessel. It is further their case that when the vessel was on charter to Indian Navy for use in connection with their project “Sea Bird”. The vessel capsized in Karwar Harbour on 05.06.1988 at about 4.00 a.m. Immediately, thereafter efforts were made by the appellant to salvage the said vessel and they also informed the respondent about the mishap by a letter dated 06.06.1988. On receipt of the said information, according to the appellant, the respondent appointed M/s. Seascan Services as a surveyor who immediately inspected the capsized vessel on 6th and 8th June, 1988. It is further their case that the said surveyor concurred with the appellant that the selvage operations should be commenced immediately and accordingly the salvage operation were commenced at the instance of the said surveyor. It is further their case that the appellant submitted report to the respondent on 15.06.1988 giving the particulars of the vessel, the background of the accident as well as the recommendations and the investigation carried out by them. They also informed about the salvage operation carried out by them. Thereafter, according to the appellant they received a letter from the Port Officer, at Karwar on 07.06.1988 and 14.06.1988 instructing the appellant to salvage the vessel within a shortest time so as to clear the berth. They also informed about the salvage operation carried out by them. Thereafter, according to the appellant they received a letter from the Port Officer, at Karwar on 07.06.1988 and 14.06.1988 instructing the appellant to salvage the vessel within a shortest time so as to clear the berth. It is further their case that thereafter the respondent forwarded the Marine Hull claim form to the appellant to be presented for making the necessary claim. The said form was filled up by the appellant and submitted by their letter dated 29.06.1988. It is further their case that they received a letter dated 29.07.1988 to give the details of the expenses incurred for the salvage operation by a letter dated 1.8.1988. Thereafter, the surveyor informed the appellant to take immediate steps to complete the salvage operation at the earliest. The appellant thereafter informed the difficulties faced by the appellant in carrying out such operation to the surveyor. It is further their case that on 12.09.1988 the surveyor informed the appellant to discontinue with the salvage operation and move the vessel away from the shipping area till the respondent reached their final decision. It is further contended that the surveyor submitted the second report to the respondent by a letter dated 01.10.1988 giving the reasons of failure of the salvage operation and the estimated cost of the repairs after the salvage operation. It is further their case that the surveyor had opined that the cause of the mishap was the ingress of water by grounding of the vessel followed by the negligence of crew. It is further their case that the appellant by their letter dated 21.10.88 submitted the complete statement of the expenses incurred by them in the salvage operation and the items lost by them in the vessel and registered their claim for the settlement of the same under sue and labour clause of the insurance policy. The correspondence was exchanged between the parties with regard to the salvage operation and the appellant informed the respondent that such operation was carried out after due consultations with the Divisional Office of the respondent. The appellant thereafter submitted a claim for total loss along with the notice of abandonment dated 20.12.88. Thereafter, the appellant received a letter dated 30.12.88 from the respondent declining to accept the notice of abandonment given by the appellant. The appellant thereafter submitted a claim for total loss along with the notice of abandonment dated 20.12.88. Thereafter, the appellant received a letter dated 30.12.88 from the respondent declining to accept the notice of abandonment given by the appellant. They were also informed that the ownership of the wreck continues to rest with the appellant and they should take further action in the matter. Thereafter, the appellant learnt that the respondent received an anonymous complaint that the vessel had been sabotaged and they would investigate the matter through one Krishnamurthy. The extract of the investigation was brought to the notice of the appellant by letter dated 16.09.89 and the appellant were asked for their comments which explanation was thereafter sent by the appellant on 02.09.89. As the respondent has not shown any sign of settlement of claim put forward by the appellant, the suit was filed praying for a decree of Rs.1,45,00,000/- being Rs.60 lakhs for the total loss of the vessel and Rs.60 lakhs under sue and labour clause of the insurance policy and Rs.25 lakhs by way of damages. 4. After being served with the summons in the said suit, the respondent filed their written statement denying the claim put forward by the appellant. It was inter-alia contended that as the mishap took place within six months from the renewal of the policy and after increasing the value of the vessel, according to the appellant, the value was inflated by the appellant at the time of renewal of the insurance policy with ulterior motive. It was also denied that the vessel had capsized while on charter to the Indian Navy. The correspondence referred to by the appellant in the plaint was admitted. It is further their case that in the normal course, the surveyor was appointed to assess the loss and they had appointed M/s. Seascan Services to carry out such exercise to report the cause of the mishap. It was also denied that the surveyor concurred with the appellant that the salvage operation should be commenced immediately and that such salvage operation were carried out by the appellant at their own volition and responsibility. They also denied that the surveyor had given report of the cause of the accident and consequent loss. It is also denied that the cause of the accident is clearly established by the appellant. They also denied that the surveyor had given report of the cause of the accident and consequent loss. It is also denied that the cause of the accident is clearly established by the appellant. It is further stated that though the ingress of the water would be the only cause for sinking of the vessel, the question is whether the ingress of water is due to the grounding of the vessel and subsequent negligence of the Master. Accordingly, the claim of the appellant was disputed by the respondent and consequently, prayed that the suit be dismissed. 5. The learned trial Judge framed 10 issues and after recording of evidence of both the parties by the impugned judgment dated 31.05.2001, the suit filed by the appellant came to be dismissed. Being aggrieved by the said judgment, the appellant preferred the present appeal. 6. Mr. Bhobe, learned counsel appearing for the appellant has advanced extensive arguments to contend that the appellant were entitled for the reliefs sought in the suit. It is first contended by Mr. Bhobe, learned counsel that after the vessel had capsized the appellant carried out their own investigation and upon questioning the crew of the vessel, it came to know that during the course of the voyage of the vessel from Panaji port to Karwar to carry out the operation for the Indian Navy the vessel had grounded at Aguada sand bar. It is further their case that they had examined the third engineer who had clearly deposed about the said grounding. The learned counsel further pointed out that on account of such grounding which resulted in a broken sea chest leading to the ingress of water at Karwar port. The learned counsel has thereafter taken us through the evidence of PW-1, PW-2 and PW-3 and submitted that the fact that there was grounding at Aguada sand bar has been duly established. The learned counsel further pointed out that the respondent themselves had appointed a surveyor who had clearly indicated that the capsizing of the vessel was on account of the said grounding. The learned counsel further submitted that the appellant have established that the proximate cause of the accident was on account of ingress of sea water due to the opening which resulted on account of the said grounding. The learned counsel further submitted that the appellant have established that the proximate cause of the accident was on account of ingress of sea water due to the opening which resulted on account of the said grounding. The learned counsel further pointed out that the remaining crew members could not be examined either because they were not available at the relevant time or they had already expired. The learned counsel further pointed out that immediately after the vessel had capsized and upon instructions of the surveyor the appellant had started salvage operation. The learned counsel has taken us through the material on record as well as the correspondence exchanged between the parties to point out that the respondent were duly informed from time to time about the efforts being made by the appellant to salvage the vessel. The learned counsel further pointed out that the ingress of sea water itself is a peril of the sea which was covered by the insurance policy. The learned counsel further pointed out that after the surveyor had directed the appellant not to give up the salvage operation, the appellant issued a notice of abandonment and claimed the amount for the loss of the vessel. The learned counsel further pointed out that the appellant are also entitled for compensation on account of sue and labour expenses incurred by the appellant which was much higher than the sum assured. The learned counsel thereafter pointed out that only on account of an anonymous complaint the respondent sought to recile of their commitment to honour the insurance claim though the investigation was carried out at the instance of Krishnamurthy, such person was not examined by the respondent. The learned counsel further pointed out that non-examination of said Krishnamurthy itself would draw an adverse inference against the respondent as according to him in case such report was produced, it could be assumed to be in favour of the appellant. The learned counsel further pointed out that though the fact that there was grounding which resulted in the opening of the lower bottom of the vessel has not been reported in the log book that by itself does not mean that such grounding did not take place. The learned counsel further pointed out that though the fact that there was grounding which resulted in the opening of the lower bottom of the vessel has not been reported in the log book that by itself does not mean that such grounding did not take place. The learned counsel has taken us through the entries of the log book and pointed out that such entries are totally incomplete which further show that there was negligence on the part of the crew. The learned counsel further submitted that the appellant have thereafter engaged the services of another expert who has clearly opined that the cause of the accident was on account of the ingress of sea water due to the grounding of the vessel. The learned counsel further pointed out that on perusal of the said deposition of the subsequent expert and the cross examination, the conclusion drawn by the said witness has to be accepted. The learned counsel further pointed out that in any event the ingress of water in the vessel itself would be a peril of the sea which was covered by the insurance policy. The learned counsel further pointed out that the accident had resulted in irretrievable situation for the appellant and as such the appellants are entitled for the amount assured in the insurance policy. The learned counsel thereafter has taken us through the relevant clause of the insurance policy and pointed out that as the appellant has established that the proximate cause of the accident was the peril of the sea water, which was covered by the insurance policy, the appellant were entitled for the amount claimed in the suit. The learned counsel thereafter has pointed out that it is not open to the respondent to disown their surveyor’s report. The learned counsel further pointed out that once the surveyor appointed by the respondent had certified that the vessel had capsized on account of the peril of the sea, it was not open to the respondent to disown the said surveyor and refuse the amount assured. The learned counsel further pointed out that the fact that the vessel had capsized on account of ingress of sea water has not been disputed by the respondent and as such considering the facts and circumstances of the case the appellant were entitled for a decree as prayed for. The learned counsel further pointed out that the fact that the vessel had capsized on account of ingress of sea water has not been disputed by the respondent and as such considering the facts and circumstances of the case the appellant were entitled for a decree as prayed for. The learned counsel further pointed out that the respondent has raised untenable contentions that the vessel itself was not sea worthy. The learned counsel thereafter has taken us through the certificate issued by the Mercantile Department and pointed out that as on the date of the accident, the certification in favour of the appellant was very much in place. The learned counsel further pointed out that such certificate by the competent authority itself draws a presumption of sea worthiness. It was the burden on the part of the respondent to establish the unseaworthiness claimed by the respondent. The learned counsel has taken us through the evidence on record as well as the material produced by the respondent and pointed out that there was no evidence adduced by the respondent to show that the vessel was unseaworthy. The learned counsel further pointed out that PW-1 has extensively stated the manner in which the mishap has taken place and considering the cross examination of the respondent is not controverted, there is no reason to refuse to accept the version given by PW-1 and corroborated by the remaining witnesses. The learned counsel further pointed out that the respondent are taking alternate theory to suggest that the vessel could not have capsized in the manner explained by the appellant on the basis of some untenable report of the Naval Architect. The learned counsel has thereafter taken us through the report of such Architect who is DW-2 and pointed out that all the conclusions drawn by him are totally untenable and in any event such exercise has been carried out by the said witness without even visiting the port area. The learned counsel further pointed out that only after the respondent refused to honour the claim put forward by the appellant immediate steps were taken by the respondent to retrieve the said vessel and dispose it of. The learned counsel further pointed out that such delay on the part of the respondent is totally unreasonable which has resulted in substantial loss to the appellant. The learned counsel further pointed out that such delay on the part of the respondent is totally unreasonable which has resulted in substantial loss to the appellant. The learned counsel has thereafter taken us through the first and second report produced by the said surveyor appointed who is DW4 and pointed out that it corroborates the version given by the appellant. The learned counsel thereafter has taken us through the class certificate and pointed out that such certificate was in force as on the date of the accident which establishes the sea worthiness of the vessel. The learned counsel has thereafter taken us through the bills on record and pointed out that all the expenses which have been incurred on account of salvage have been duly proved. The learned counsel has thereafter taken us through the impugned judgment and pointed out that the learned judge has totally misconstrued the terms of the policy and the evidence on record to come to the conclusion that the proximate cause of the accident has not been established. The learned counsel further pointed out that the learned Judge has also erroneously come to the conclusion that the grounding of the vessel has not been established by the appellant. The learned counsel further pointed out that the learned judge was not justified to dismiss the suit and as such the appeal preferred by the appellant deserves to be allowed and the suit filed by the appellant be decreed. 7. On the other hand, Mr. E. Afonso, learned counsel appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that on a bare perusal of the insurance policy what is covered is a total loss. The learned counsel further pointed out that a partial loss is not covered under the insurance policy which was in force at the relevant time. The learned counsel has thereafter taken us through the earlier policy in respect of the same vessel and pointed out that the earlier policy did not cover only a total loss but also the partial loss and other damages which was not the case in the policy which was in force. The learned counsel further pointed out that even assuming the appellant have established the cause of mishap but as it did not result in a total loss, the respondent were not liable to pay any compensation to the appellant. The learned counsel further pointed out that even assuming the appellant have established the cause of mishap but as it did not result in a total loss, the respondent were not liable to pay any compensation to the appellant. The learned counsel thereafter pointed out that the whole story of grounding is misconceived. The learned counsel further pointed out that such grounding in any case cannot lead to the opening of the lower bottom of the vessel considering the depth of the sea at the relevant place. The learned counsel further pointed out that the alleged grounding of vessel has not at all been established by any material on record and as such the question of holding that the accident occurred on account of peril of the sea covered by the policy would not arise at all. The learned counsel further pointed out that after the alleged accident, the appellant did not treat the vessel as a total loss as they proceeded to salvage the vessel. The learned counsel further pointed out that on perusal of the photographs on record clearly suggest that the vessel had tilted on one side which itself suggests that it was not a total loss. The learned counsel further pointed out that as per the terms of the policy a partial loss cannot be considered to be a total loss. The learned counsel further pointed out that the appellant contends that they spent on account of sue and labour a sum of Rs.63 lakhs which has not been established by any evidence on record. The learned counsel has taken us through the evidence on record as well as the correspondence which has been exchanged between the parties which clearly suggest that the appellant claimed the amount which has been spent on account of salvage operation. The learned counsel further pointed out that there is distinct difference between the expenses on account of salvage operation and the expenses on account of sue and labour and considering the said distinction the question of claiming the amount spent on account of salvage operation is totally misplaced. The learned counsel has thereafter shown inconsistency with the evidence of PW-4 though he was stated to be a surveyor of the respondent who has deposed on behalf of the appellant. The learned counsel has thereafter shown inconsistency with the evidence of PW-4 though he was stated to be a surveyor of the respondent who has deposed on behalf of the appellant. The learned counsel further pointed out that being a surveyor the first exercise which had to be done by such surveyor was to issue the tenders or seek offers from different salvage operators to carry out such salvage operation. The learned counsel further pointed out that the salvage operations are normally given on the basis of 'no cure no pay' and considering that no such agreement has been produced by PW4 would itself suggest the suspicion that there was dereliction on the part of the surveyor. The learned counsel further pointed out that in any event, it is well settled that a surveyor's report is not binding on the respondent and it is always open to the respondent to reject such report. The learned counsel further pointed out that even in the report which has been submitted by the said surveyor, the expenses for the repairs are shown to be Rs.37 lakhs which also disclose that it was not a total loss. The learned counsel further pointed out that the expenses allegedly incurred by the appellant on account of salvage have not been established or proved in accordance with law. The learned counsel has thereafter taken us through the bills produced on record and pointed out that they were of the sister concern of the appellant and signed by the same person. The learned counsel further pointed out that the signatory of the bills has not been examined and as such the contents of the document have not been proved which would create a suspicion of the alleged amount referred to therein. The learned counsel thereafter pointed out that the evidence on record further shows that the sonar equipment was installed upon the vessel at the bottom of the vessel. The learned counsel further pointed out that such sonar equipment is to detect any contact by the bottom part of the vessel with an external object. The learned counsel further pointed out that in case the theory of the appellant that the vessel was grounded near Aguada sand bar is to be accepted, such contact would have been detected on such equipment. The learned counsel further pointed out that in case the theory of the appellant that the vessel was grounded near Aguada sand bar is to be accepted, such contact would have been detected on such equipment. The learned counsel further pointed out that non-production of the said equipment nor disclosing the contents therein itself suggest the falsity of the claim of the appellant. The learned counsel further pointed out that the theory of grounding the vessel during the course of the voyage from Panaji port to Karwar has not been established as the log book on record does not show the entry in that regard and the fact that the vessel had completed the work for Sea Bird would itself suggest that there was no grounding as alleged by the appellant. The learned counsel further pointed out that in the log book as well as in the evidence of PW-2 and PW-3 it is categorically stated that before they went to sleep everything was in normal condition. However, PW-2 has stated in his deposition that normally the water from the bilges is removed after every two hours but however he has stated that after the alleged incident the water was pumped out after every shift hours. As such, the learned counsel submits that this abnormality to the vessel would have naturally found place in the log book or reported to the appropriate authority. The learned counsel further pointed out that even the pilot who was in the vessel has not been examined, nor his statement recorded which would draw an adverse inference against the appellant. The learned counsel further submitted that as the appellant has failed to establish the proximate cause of the capsized vessel, the question of putting the claim on the basis of the total loss does not arise at all. The learned counsel further pointed out that immediately after the respondent refused to honour the claim of the appellant, they took steps and within a short span of time sold the vessel. The learned counsel as such points out that this itself suggest that the contention of the appellant that the vessel could not be salvaged is a wrong statement. The learned counsel further pointed out that the evidence on record further suggests that the class certificate was issued to the appellant much before the alleged modifications were carried out to the said vessel. The learned counsel further pointed out that the evidence on record further suggests that the class certificate was issued to the appellant much before the alleged modifications were carried out to the said vessel. The learned counsel thereafter pointed out that in case the bilges were intact the question of any water entering into the engine room would not arise. The learned counsel further submitted that there were new openings made to the vessel at the time of the modification to the vessel through which the sea water could enter. The learned counsel as such points out that after this modification to the vessel, it was incumbent upon the appellant to obtain a fresh class certificate from the concerned authority of sea worthiness. The learned counsel pointed out that on the failure on the part of the appellant to do so itself suggests that the presumption of sea worthiness to be drawn on the basis of such certificate was not available to the appellant. The learned counsel has taken us through the letters addressed by the appellant to the respondent as well as through the evidence of PW-1 and pointed out that all these extra modifications were carried out only after the certificate was issued to the appellant in respect of the concerned vessel. The learned counsel as such submits that considering that no fresh certificate has been obtained by the appellant, it was not open to the appellant to rely upon the said certificate for the purpose of claiming that the vessel was sea worthy. The learned counsel as such points out that on this ground also the respondent are entitled to repudiate the policy. The learned counsel further pointed out that the learned Judge in the impugned judgment has rightly appreciated the evidence on record and has come to the conclusion that the alleged grounding has not been established by any material on record. The learned counsel has thereafter taken us through the different provisions of the Marine Insurance Act, 1963 and pointed out the meaning of the words sue and labour and salvage expenses and submitted that the alleged expenses claimed by the appellant do not come within the scope of sue and labour. The learned counsel has thereafter taken us through the different provisions of the Marine Insurance Act, 1963 and pointed out the meaning of the words sue and labour and salvage expenses and submitted that the alleged expenses claimed by the appellant do not come within the scope of sue and labour. The learned counsel further pointed out that as the appellant have failed to establish that the accident had occurred on account of peril of the sea, calling upon the respondent to effect the payment of the claim does not arise at all. The learned counsel further pointed out that unprofessional approach of PW6 itself discloses that the alleged survey conducted by him cannot be accepted. 8. In reply to the said submissions of the learned counsel, Mr. Bhobe, learned counsel has pointed out that there was a certificate issued by the Panamanian authorities after the monsoon when the modifications were carried out to the vessel and as such the contention of Mr. Afonso, learned counsel that such certification was not obtained after the modifications cannot be accepted. The learned counsel further pointed out that there is evidence on record that the water had seeped in the vessel on account of breaking of the mud box due to grounding of the vessel. The learned counsel further pointed out that in any event considering that the vessel was sea worthy and had capsized on account of ingress of sea water, it is not open to the respondent to repudiate the policy. The learned counsel further pointed out that considering that the respondent have failed to establish that the appellant are not entitled to the claim, the learned Judge was not justified to pass the impugned judgment. The learned counsel as such submits that the impugned judgment passed by the learned Judge be quashed and set aside and the suit filed by the appellant be decreed. Both the learned counsel have extensively relied upon a number of judgments of the Apex Court and other High Courts including the judgments of the House of Lords and others which would referred to while considering the rival contentions of both the learned counsel. On the basis of the submissions of the learned counsel and upon going through the records, the following points for determination arise in the present appeal. On the basis of the submissions of the learned counsel and upon going through the records, the following points for determination arise in the present appeal. POINTS FOR DETERMINATION (i) Whether the appellant have established that the proximate cause of the accident was on account of the grounding of the vessel which led to ingress of sea water when the vessel was at Karwar port ? (ii) Whether the appellant have established that the vessel had capsized on account of peril of the sea which were covered by the insurance policy ? (iii) Whether the appellant have established that their claim was of a total loss which was covered under the insurance policy ? (iv) Whether irrespective as to whether the grounding is established or not the respondent are liable to pay the compensation as claimed by the appellant ? 9. With regard to the first two points for determination, it is the case of the appellant that on account of ingress of water into the engine room of the vessel at about 2.30 a.m. on 05.06.1988, the vessel titled on the starboard side and finally capsized and went under the water. The learned Judge while considering the said aspect in the impugned judgment has noted that the witnesses who have been examined by the appellant in support of their claim namely PW-2 Raju Madgaonkar and PW3 Alfred Marino Seqia Currahi were the only two witnesses examined who were present on board the vessel at the relevant time. It is not in dispute that besides the said two persons there was a master, Chief Engineer and Chief Officer who were also part of the crew of the said vessel. Though it is contended by the appellant that the said persons were not available to depose before the Court, nevertheless the fact remains that the said persons were not even cited as witnesses by the appellant in the list of witnesses nor any attempt made by the appellant to procure their presence. The inference drawn by the learned Judge for non examination of the said witnesses were as such well founded. The master and the Chief Engineer who were present would be in a position to disclose the cause of the ingress of sea water into the engine room as well as the cause how the vessel has allegedly capsized. The inference drawn by the learned Judge for non examination of the said witnesses were as such well founded. The master and the Chief Engineer who were present would be in a position to disclose the cause of the ingress of sea water into the engine room as well as the cause how the vessel has allegedly capsized. Non-examination of such material witnesses leads to an adverse inference against the appellant which would draw a strong inference that such witnesses would not support the case of the appellant as alleged by them. The terms of the policy at 6.1 clearly provides that the insurance covers a total loss (actual or constructive) of the subject matter insured caused by the perils of the seas, rivers, lakes, other navigable waters. It also covers negligence of Master, Officer, Crew or Pilots. The claim of the appellant is essentially on account of such causes and as such we would have to examine whether the vessel had suffered a total loss in terms of the said policy. It is the contention of the appellant that upon investigation they learnt about the grounding of the vessel near Aguada sand bar. Before we examine whether the ingress of water in the engine room was on account of such grounding we would have to examine whether the appellant have established the grounding of the vessel which led to the opening of the mud box on its journey from Panaji port to Karwar. It is not in dispute that prior to the incident as alleged by the appellant, there was no reporting of such grounding by either the master or even the pilot who was admittedly on the vessel during the relevant time. The log book of the vessel is an important document which makes all the entries in connection with the movement of the vessel. Such log book of the vessel has been produced on record which is at Exhibit P-93 which does not report any such grounding of the vessel. The statement of protest reported before the notary immediately after the accident, the crew of the vessel did not disclose that any such grounding had occurred on its journey from Panaji port to Karwar. The surprising aspect is that only in the subsequent statement which was recorded at the behest of the appellant, the fact about such grounding had surfaced. The statement of protest reported before the notary immediately after the accident, the crew of the vessel did not disclose that any such grounding had occurred on its journey from Panaji port to Karwar. The surprising aspect is that only in the subsequent statement which was recorded at the behest of the appellant, the fact about such grounding had surfaced. It is also to be noted that it is the case of the appellant that despite of the said grounding and damage to the mud box of the vessel the work of the Indian Navy was successfully completed before the vessel was anchored at Karwar port on 06.06.1988 at around 7.30 p.m. The inconsistent version by the said Raju Madgaonkar PW-2 who stated that because of the damage to the mud box they had to pump out the water after every six hours and despite of that they had successfully completed the assignment with the Indian Navy appears to be very remote and improbable. At one stage, the case of the appellant has been that the vessel had grounded at Aguada sand bar. Even assuming this aspect is to be accepted by no stretch of imagination can this lead to the damage to the mud box. 10. Mr. Afonso, learned counsel appearing for the respondent has brought to our notice that it is not in dispute that the assured vessel was fitted with a sonar equipment. Such equipment detects any such grounding or contact with such wreck. There is nothing to suggest that such equipment had in fact detected any such grounding nor the appellant have produced any such record from the equipment. Another aspect to be noted is that it is the case of the appellant that the pilot was on board the vessel to guide the master to leave from Panaji port to the high sea. The said pilot has not been examined nor any material produced by the appellant to suggest that such pilot had informed any of the authorities about the said aspect. Non-examination of the said pilot draws a serious adverse inference against the appellant. Though it is sought to be contended that the said pilot had expired during the trial of the suit, nevertheless the fact remains that such pilot also was not cited as a witness by the appellant nor any statement of such pilot was recorded disclosing such grounding. 11. Though it is sought to be contended that the said pilot had expired during the trial of the suit, nevertheless the fact remains that such pilot also was not cited as a witness by the appellant nor any statement of such pilot was recorded disclosing such grounding. 11. To ascertain the proximate cause, one has to consider what is the direct cause which resulted in the loss of the vessel. As such the dominant cause which resulted in the ingress of water into the vessel at the relevant time is what, has to be examined by the Court. No doubt, the issue as to whether the accident occurred on account of the peril of sea is to be assessed on the basis of balance of probabilities but however, the burden to establish such probabilities always remain on the ship owner. Though the insurance company can show alternative causes but however there is no such burden cast on the insurance company. On the background of such well established principle of assessing the material on record the probabilities alleged by the appellant to be the proximate cause of such loss has not been established. As pointed out herein above, the allegation of the appellant that there was damage to the mud box of the vessel on account of the grounding has not been established. There is no material on record to even suggest that the mud box was damaged during the voyage to Karwar where the vessel had an assignment with the Indian Navy. The fact that the vessel had grounded on the relevant date cannot be borne out from the material on record. The contention of the appellant that it collided with a submerged vessel Nitya Kamal is also not borne out from the records produced by the appellant. The material witnesses, as pointed out herein above, examined by the appellant are PW-2 and PW-3 and on appreciating the evidence on record the learned Trial Judge has rightly considered the evidence of PW-2 with suspicion as he was a relative of the appellant. No doubt, merely because he was a relative by itself would not justify the rejection of his evidence. PW-2 has stated in his deposition that at 1.30 a.m. on 05.06.1988 Mr. Alfred came to the cabin and informed that the engine room was flooded and immediately he went to verify the said aspect. No doubt, merely because he was a relative by itself would not justify the rejection of his evidence. PW-2 has stated in his deposition that at 1.30 a.m. on 05.06.1988 Mr. Alfred came to the cabin and informed that the engine room was flooded and immediately he went to verify the said aspect. He has further stated that the bilge pump was used to pump out the water from the vessel and he had discovered that the water level was not diminishing. He has further stated that the vessel was abandoned on 05.06.1988 and every body left the vessel on instructions of the Master and the Chief engineer. In the cross examination the said witness has clearly stated that he was in the engine room up to 8 p.m. on the previous day of 04.06.1988. He has further stated that he was on duty on 04.06.1988 till 8.00 p.m. and thereafter he was in his cabin which was on the deck of the vessel. He has further stated that until he left the engine room at 8 p.m. on the previous day, he did not notice anything untoward. It is pertinent to note that this aspect would be very much relevant for considering the contention of the appellant that the mud box was damaged on the previous day on account of the grounding of the vessel at Aguada sand bar. In case such grounding had in fact occurred, nothing would have been normal as deposed by PW-2 at that point of time. He has further admitted that his statement was recorded at Karwar on the following day. He has admitted his signature on the statement at Exhibit P-87 which was in his hand writing. On perusal of the said statement, we find that there is no reference of any such grounding at Aguada sand bar or of the said grounded vessel as alleged by the appellant. The next witness is Alfred Marian Seria Currabi. He has stated that at around 00.30 hours he went for a cup of tea to the mess room and at that stage nobody was in the engine room. He has further stated that he has discovered that the level of the water had reached at 4 plates level and that he had started the bilge pump. He has stated that at around 00.30 hours he went for a cup of tea to the mess room and at that stage nobody was in the engine room. He has further stated that he has discovered that the level of the water had reached at 4 plates level and that he had started the bilge pump. He has also stated that the sea was rough when he came up on the deck from the engine room. He has further stated that the fact that the vessel had grounded at Aguada sand bar was not found in the statement which is marked Exhibit P-90. He has further stated that in the normal course the water from the bilge is pumped out once in two days. He has further stated that after the grounding the water was pumped out at every shift and each shift is of six hours duration. He has also stated that every time the water was pumped out when it had reached above the mark. In further cross examination the said witness was unable to recollect what happened in June, 1988 or recollect any of the statements made in the examination in chief. On going through the evidence of the said two witnesses, we find that the appellant have failed to establish the allegation about the grounding of the vessel at Aguada sand bar. Hence, the claim of the appellant that the proximate cause of the mishap was on account of the grounding of the vessel at Aguada which resulted in damage to the mud box which facilitated the ingress of sea water cannot be accepted. The said notice of protest before the notary by the Master was in fact at the instance of PW-6 and as pointed out herein above the fact of grounding has not been disclosed therein. What is left to be considered is the second statement which is recorded of the said witness. The said statement was recorded in the office of PW-1. Apart from that there is no explanation as to why the alleged additional facts disclosed were not found in the earlier statement which was recorded before the notary public at Karwar. What is left to be considered is the second statement which is recorded of the said witness. The said statement was recorded in the office of PW-1. Apart from that there is no explanation as to why the alleged additional facts disclosed were not found in the earlier statement which was recorded before the notary public at Karwar. Though it is sought to be contended that they were advised not to disclose the said aspect by the Master, nevertheless it is very difficult to accept such justification that this material aspect would not be found in the earlier statement. Hence, a strong suspicion is to be drawn of the second statements which are at Exhibit P-88 and P-90. On perusal of the said statements, we find that they are not notarized nor signed before any witnesses. The said statements were also not listed in the list of documents and relied upon by the appellant. All these facts draw a suspicion about the genuineness of the said document. It is also pertinent to note that the surveyor had submitted two reports one dated 07.06.88 which is at Exhibit P-28. On perusal thereof, the existence of the said second statements is not at all found, though it is alleged that the said statements were in existence much prior to the said date. In such circumstances, the findings of the learned Trial Judge that such statements appear to be fabricated cannot be faulted. Though PW-1 had mentioned in his deposition that upon his inquiries he came to know from the crew members about the grounding of the vessel at Aguada sand bar nevertheless, the Master, the Chief Engineer and other responsible crew members who were on board the vessel at the relevant time including PW2 and PW3 have not disclosed the said aspect when they made their respective statements. Though it is sought to be contended by the appellant that the Master and the Chief Engineer were at fault and as such, it would not be possible to record the evidence, nevertheless upon investigation the appellant have not taken any action against them which clearly raises a doubt about the allegation that there was any negligence on the part of the crew members as alleged by the appellant. As pointed out herein above, though it is contended by the appellant that they had a private pilot who had guided the vessel from Panaji port his name on identification has not been disclosed. In fact, PW-1 had no explanation as to how his name does not figure in the list of the crew members produced at Exhibit P-86 who were present on board the vessel when it left Panaji port. Hence, we find that the conclusion drawn by the learned Judge that the grounding of the vessel at Aguada sand bar has not been established by the appellant does not call for any interference. Mr. Bhobe, learned counsel appearing for the appellant was unable to point out any specific material which has not been considered by the learned Judge while drawing such conclusion. 12. Another aspect to be noted is that it is the duty of the Master to make an entry precisely and carefully of any kind of happening to the vessel or connected therewith in the log book. On perusal of the entry therein, we find the fact that the water was being pumped out on account of grounding of the vessel at Aguada sand bar or the fact that any such grounding had occurred does not find any place. The said log book is at Exhibit P-93. As pointed out herein above, nothing adverse with regard to the functioning of the vessel is disclosed in the said document. Mr. Bhobe, learned counsel appearing for the appellant has heavily relied upon the evidence of PW-6 N. S. Biswas who was appointed as a surveyor. It is the contention of Mr. Bhobe, learned counsel that upon his instructions the salvage operations were started by the appellant. This aspect about carrying out of such salvage operation is a matter which will be discussed while examining the remaining points for determination. 13. As pointed out herein above, the proximate cause as alleged by the Appellants was that on account of the grounding of the vessel at Aguada Sand Bar, which resulted in the damage of the lower part of the vessel, forced the sea water to enter the vessel which resulted in it capsizing. There is no other proximate cause as alleged by the Appellants nor any foundation laid with that regard by the Appellants in the pleadings. There is no other proximate cause as alleged by the Appellants nor any foundation laid with that regard by the Appellants in the pleadings. We have already examined whilst considering the point for determination no.1 that the contention of the Appellants that there was grounding at the Aguada Sand Bar has not been established by the Appellants. In such circumstances, we find that the question of examining any other proximate cause as alleged by the learned Counsel appearing for the Appellant, would not be justified. 14. The learned Trial Judge has rightly relied upon the Judgment reported in 1994 Vol.1 LLR 624 in the case of Lamb-Head Shipping Co. Ltd. & Ors. vs. Jennings by observing at paras 32 and 33 thus : “32. In the case of Lamb: Head Shipping Co. Ltd. & Ors. vs. Jennings reported in 1994 Vol.1 LLR 624, referred to as “The Marel” case, the Trial Court held that the insured had to prove on the balance of probabilities that the vessel was lost by the peril of the sea and it was not sufficient for the owners in order to discharge the burden, merely to prove the incursion of sea water into the insured vessel. They held that an entry of sea water into the insured vessel was not in itself a peril of the sea and the incursion has to be shown to be accidental or fortuitous. The Trial Court also came to the conclusion that on the balance of probabilities, the owners have failed to satisfy the Court that the vessel Marel was lost due to some unascertained peril of the sea. 33. On the Appeal by the owners, the Court of Appeal held that on the evidence, the Trial Judge was entitled to find out whether it was improbable that the entry of sea water into the Engine room was due to a collusion with a container that was floating. In that case, the Court held that the owners of loss by a fortuitous accident. It was also held that the Court was not bound to accept as a truth, or to accept on the balance of probabilities a case of loss by the perils of the sea which was shown after thorough examination at the trial to have been wholly improbable and very nearly impossible.” 15. The learned Trial Judge has also relied upon a Judgment in RhesaShipping Co. The learned Trial Judge has also relied upon a Judgment in RhesaShipping Co. Ltd. vs. Fantan Insurance Co. Ltd., 1985 Vol. 2 LLR I, by observing at para 35, 36, 37 and 38, thus : “35. In the case of Rhesa Shipping Co. Ltd., vs. Fantan Insurance Co. Ltd., 1985 Vol. 2 LLR I, known as (“The Popi 'M') case, the matter came to be decided by the house of Lords in the Appeal filed by the underwriters. That was a case where the owners of the vessel Popi M had claimed under the Insurance Policies on the ground that the vessel was lost and the proximate cause was a peril of the sea, or alternatively the negligence of the crew. When the vessel was sailing in the high seas, there was a large and sudden entry of water into the engine room through a shell plating on the port side at around 11 a.m. The engine room quickly filled with water and by mid day the crew abandoned the vessel. The vessel sank at about 6.15 p.m. The Defendants had denied that the loss was caused by the peril of the sea and they attributed the loss to the defective condition of the vessel, and alternatively they stated that the loss was caused by the negligence of the crew. The Plaintiffs failed to show that they had exercised due diligence. 36. The Queen's Bench rejected the defence that the loss was caused by the wear and tear and though it was held that the Plaintiffs case that water entered the vessel, as it came in contact with the moving submarine was inherently improbable on the balance of probabilities, the Court held that this explanation could be accepted as a collusion with a submarine fell within the policy covered against the perils of the sea and the Plaintiffs succeeded. 37. The defendants appealed, and the Court of appeal, the Appellate Court also concluded that the loss of the vessel is due to the perils of the sea. Which is a fortuitous entry of sea water and the appeal was dismissed. 38. 37. The defendants appealed, and the Court of appeal, the Appellate Court also concluded that the loss of the vessel is due to the perils of the sea. Which is a fortuitous entry of sea water and the appeal was dismissed. 38. On an Appeal there-from, the matter came up before the house of Lords, which held that : *A Judge was not bound always to make a finding one way or the other with regard to the facts averred by the parties, here the learned Judge adopted an erroneous approach regarding himself as compelled to choose between two theories, both of which are regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible, he should have borne in mind and considered carefully in his judgment the third alternative namely that the evidence left him in doubt as to the cause of the aperture in the ship's hull and that in those circumstances, the plaintiffs had failed to discharge the burden of proof which was on them. *It was also held that the only inference which could justifiably be drawn from the primary facts found by the learned Judge was that the true reason for the loss of the vessel was in doubt; and neither the learned Judge nor the Court of Appeal were justified in drawing the inference that there had been loss by perils of the sea whether in the form of collision with the submerged submarine, or any other form, and the Appeal was allowed.” 16. Considering the above observations, we find that as the Appellants have failed to establish the proximate cause which resulted in the mishap, the Appellants have failed to establish the insured perils as provided in the policy to claim the amounts from the Respondents on the premise that the vessel had capsized due to the perils of the sea. 17. The term perils by the sea does not cover any accident or cause or casualty which may happen on the sea. It must be peril of the sea. It is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. 17. The term perils by the sea does not cover any accident or cause or casualty which may happen on the sea. It must be peril of the sea. It is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. They do not protect for e.g. against the natural and inevitable action of the wind and wave which results in what may be described as wear and tear. There has to be a casualty, something which could not be foreseen, as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against events which have occurred by extraordinary violence of the wind or waves. 18. In the Law Lexicon while dealing with the perils of the sea, it was inter-alia stated thus : “PERILS OF THE SEA”. Arnold defines the phrase as meaning, in policies, all kinds of marine casualties, such as shipwreck, foundering, stranding, and every species of damage to the ship or goods at sea by the violent and immediate action of the winds and waves, not comprehended in the ordinary wear and tear of the voyage or directly referable to the acts and negligence of the assures as its proximate cause. In contracts of sea carriage, the words “perils of the sea” have been defined as “sea damage occurring at sea and nobody is at fault”. (Lopes L.J. quoted in Hamilton v. Pandorf (1887), 12 App. Cas. 518,526, but this definition is not exhaustive, for damage colliding with the carrying ship is a peril of the sea and in a marine policy it has been defined as “all perils losses, and misfortunes of a marine character or of a character incident to a ship as such”.(Lord Bramwell in Thames and Mersey M.I.C. v. Hamilton, (1887) 122 App. Cas. 492) The expression has the same meaning in a contract of sea carriage as it has in a marine policy; but in the case of a contract of carriage the Court looks to what has been termed the remote as distinguished from the proximate cause of damage, whereas in the case of a policy the proximate cause can alone be regarded. (Lord Watson, Hamilton v. Pandorf, 12App. Cas. 518). The following statement indicates the limitations of the phrase. (Lord Watson, Hamilton v. Pandorf, 12App. Cas. 518). The following statement indicates the limitations of the phrase. “The term does not cover every accident or casualty which may happen... on the sea. It must be a peril of the sea. Again, it is well settled that it is not every loss or damage of which the sea is the immediate cause that is covered by these words. They do not protect, for example against that natural and inevitable action of the winds and waves which results in what may be described as wear and tear. There must be some casualty, something which could not be foreseen, as one of the necessary incidents of the adventure. The purpose of the policy (or contract) is to secure an indemnity against accidents which may happen, not against events which must happen. Not only losses which are occasioned by extraordinary violence of the winds or waves are losses by perils of the sea....... If a vessel strikes upon a sunken rock in the fine weather and sinks, this is a loss by perils of the seas. And a loss by foundering owing to a vessel coming into collision with another vessel, even when the collision results from the negligence of that other vessel, falls within the same category. The Nantho, (1887), 12 App. Cas. 503; Abbott, Shipping, Carvger, Sea Carriage, Scrutton, Charter-Parties) “The phrase 'Perils of the Sea', whether understood in its most limited sense as importing a loss by natural accidents peculiar to that element, or whether understood in its more extended sense as including inevitable accidents occurring upon that element, must still in either case be understood to include such losses only to the goods on board as are of an extraordinary nature or arise from some irresistible force, or from inevitable accident or some overwhelming power which cannot be guarded against by the ordinary exertions of human skill and prudence. Hence it is that if the loss occurs by a Peril of the Sea which might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not deemed to be, in the sense of the phrase, such a loss by the Perils of the Sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party”. (story on Bailments, Section 512 a.). (story on Bailments, Section 512 a.). Section 2(e) of the Marine Insurance Act, 1963 reads as follows : “maritime perils” means the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the sea, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, barratry and any other perils which are either of the like kind or may be designated by the policy”. Section 55 of the said Act deals with included and excluded losses and the provision reads as follows : Included and excluded losses : *Subject to the provisions of this Act, and unless the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but, subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against. *In particular-(a) the insurer is not liable for any loss attributable to the wilful misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence of the master of crew; (b) unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay, although the delay be caused by a peril insured against; (c) unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils”. 19. Thus, in the present case, what will have to be examined is to ascertain the proximate cause of the damage which resulted in the capsizing of the vessel, as proximate cause of the damage can alone be regarded in the cases of a Marine Policy. 20. The burden of proving various probabilities that a vessel was lost by the perils of the sea remains throughout on the owner. It is not sufficient for the owner in order to discharge the burden merely to prove the incursion of sea water into the sea vessel that sank. 20. The burden of proving various probabilities that a vessel was lost by the perils of the sea remains throughout on the owner. It is not sufficient for the owner in order to discharge the burden merely to prove the incursion of sea water into the sea vessel that sank. The entry of sea water is not in itself a peril of the sea and the incursion had to be shown to be accidental or fortuitous. 21. We have also examined the evidence of Dw.2, P. Sampandan, who is the Director of National Ship Design and Research Centre, Vishakhapatnam. He has stated that the difference between sinking and capsizing is radically understood by the fact that sinking takes days depending on the ingress of water whereas capsizing can take place within few minutes. He has further stated that the owners initially informed him that the vessel had sunk due to ingress of water in the engine room but by very preliminary calculations he could point out that this could never have happened which was accepted by the owner. He has further stated that he was thereafter informed that they had an opening in the engine room. He has further stated that the main question is what is the quantity of water to come into the ship to sink the vessel. He has further stated that minimum 400 tons are required for such purpose. However, it is estimated that the water at the relevant time was not more than 50 tons. He has further stated that such a big quantity of water would have entered only by an opening of 9 inches which could happen only by loud noise, which is not the contention of the owners and, as such, this fact was excluded by Dw.2. He has also stated that in case the contention of the grounding at the Aguada Bar is to be accepted, it was surprising that the vessel could travel to complete the work for the Navy to do the mooring job. He has further produced the report at exhibit 25, which, according to him, is based on the reports and the other information supplied to him by the Respondents, the Appellants and their surveyors. The said witness has been duly cross examined and the findings given by him have not in any way been shaken by the Appellant. He has further produced the report at exhibit 25, which, according to him, is based on the reports and the other information supplied to him by the Respondents, the Appellants and their surveyors. The said witness has been duly cross examined and the findings given by him have not in any way been shaken by the Appellant. The said witness has given a report clearly excluding the theories put forward by the Appellant to show the proximate cause of the sinking of the vessel. In such circumstances, we find that the Appellants have failed to discharge the burden to show the proximate cause of the mishap which led to the vessel being capsized and, as such the first and second point for determination are answered accordingly. 22. The third point for determination is whether the Appellants have established that their claim was of a total loss. It is material to note that the appellant did not treat the abandonment of the vessel on 05.06.1988 as a total loss by which they were covered by the respondent. The appellant accepted it as a partial loss and as such proceeded to make attempt to salvage the vessel. No doubt, the policy covered a total loss as well as a constructive loss. In the present case, Mr. Bhobe, learned counsel appearing for the appellant, has elaborately taken us through the evidence on record to contend that the policy also covered the expenses on account of sue and labour. Clause 11.2 of the policy provides thus : Duty of the Assured (Sue and Labour) “11.2. Subject to the provisions below the Underwriters will contribute to charges properly and reasonably incurred by the Assured their servants or agents for such measures. General average, salvage charges and collision defence or attack costs are not recoverable under this Clause 11.” 23. The said Clause clearly provides that the expenses on account of salvage are not recoverable under the said Clause 11.2. Clause 11.6 reads thus : “11.6. The sum recoverable under this Clause 11 shall be in addition to the loss otherwise recoverable under this insurance but shall in no circumstances exceed the amount insured under this insurance in respect of the vessel.” 24. Hence, the question of claiming the salvage expenses on the basis that they are expenses on account of sue and labour cannot be accepted. 25. Hence, the question of claiming the salvage expenses on the basis that they are expenses on account of sue and labour cannot be accepted. 25. Sections 56, 57 and 60 of the said Act, reads thus : "56. Partial and total loss.—(1) A loss may be either total or partial. Any loss other than a total loss, as hereinafter defined, is a partial loss. (2) A total loss may be either an actual total loss, or a constructive total loss. (3) Unless a different intention appears from the terms of the policy, an insurance against total loss includes a constructive, as well as an actual, total loss. (4) Where the assured brings a suit for a total loss and the evidence proves only a partial loss, he may, unless the policy otherwise provides, recover a partial loss. (5) Where goods reach their destination in specie, but by reason of obliteration of marks, or otherwise, they are incapable of identification, the loss, if any, is partial and not total. 57. Actual total loss.—(1) Where the subject-matter insured is destroyed, or so damaged as to cease to be a thing of the kind insured, or where the assured is irretrievably deprived thereof, there is an actual total loss. (2) In the case of an actual total loss no notice of abandonment need be given. 58.... 59 ... 60. Constructive total loss defined.—(1) Subject to any express provision in the policy, there is a constructive total loss where the subject-matter insured is reasonably abandoned on account of its actual total loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred. (2) In particular, there is a constructive total loss— (i) where the assured is deprived of the possession of his ship or goods by a peril insured against, and (a) it is unlikely that he can recover the ship or goods, as the case may be, or (b) the cost of recovering the ship or goods, as the case may be, would exceed their value when recovered; or (ii) in the case of damage to a ship, where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired. In estimating the cost of repairs, no deduction is to be made in respect of general average contributions to those repairs payable by other interests, but account is to be taken of the expense of future salvage operations and of any future general average contributions to which the ship would be liable if repaired; or (iii) in the case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed their value on arrival. 26. Section 65 of the said Act further provides that when there is a constructive total loss, the assured may either treat the loss as a partial loss or abandon the subject matter insured to the insurer and he must give a notice of abandonment and if he fails to do so, the loss can only be treated as a partial loss. Section 62 provides of giving a notice of abandonment and effects therefrom are contemplated under Section 63 of the said Act. 27. On perusal of the records as well as the evidence of Mr. Biswas PW6, the expenses which allegedly have been incurred by the appellant are on account of salvaging of the vessel. As rightly pointed out by Mr. Afonso, learned counsel appearing for the respondent all the agreements produced by the appellant suggest that for carrying out salvage operation for other clients of the appellant, such agreement provides that such operations are carried out on the basis of "no cure, no pay basis". Mr. Biswas, PW6 on being questioned on that aspect has not disputed that salvage operations are carried out on such basis but however, he has stated that he had advised the appellant to incur reasonable expenses on that count. Mr. Afonso, learned counsel appearing for the respondent has also pointed out that even to carry out such salvage operation, it was incumbent upon the said surveyor to enter into an agreement in that regard. Not executing any such understanding on that aspect as well as the fact that such operations are carried out on “no cure, no pay basis” would itself suggest that the respondent are not liable to pay to the appellant any such expenses incurred on account of salvage operation as such expenses cannot come within the scope of Clause-11 of the insurance policy for the reasons stated herein above. Hence, the claim of the appellant for salvage expenses is not at all well founded. The only aspect to be considered is whether the appellant is entitled to claim the expenses on the basis of a constructive total loss. Clause-12 of the said agreement states thus : “12. Constructive Total Loss. 12.1 In ascertaining whether the vessel is a constructive total loss, the insured value shall be taken as the repaired value and nothing in respect of the damage or breakup value of the vessel or wreck shall be taken into account. 12.2 No claim for constructive total loss based upon the cost of recovery and/or repair of the vessel shall be recoverable hereunder unless such cost would exceed the insured value. In making this determination, only the cost relating to a single accident or sequence of damages arising from the same accident shall be taken into account.” 28. On the basis of what has been provided herein above, we would have to consider whether the appellant have established that the capsizing of the vessel has resulted in a constructive total loss. On perusal of the report submitted by Mr. Biswas at Exhibit PW-6/A we find that the cost, if any, for the repairs of the vessel was stated to be Rs.37 lakhs. As such, on the basis of the said statement the question of treating the disputed vessel as a constructive total loss would not arise. Mr. Bhobe, learned counsel appearing for the appellant has thereafter pointed out that the appellant have incurred substantive expenditure on account of salvage expenses and sue and labour and if such expenses are included the cost of repairs would exceed Rs.63 lakhs at the time when PW6 advised them to stop such salvage operation. In such circumstances, we would have to examine whether the appellant have established such expenditure. In support of their such claim, admittedly the appellant have not produced the account book nor any material to establish that in fact such amount were spent by the appellant. As pointed out by Mr. Afonso, learned counsel appearing for the respondent, that the appellant have produced some vouchers showing some transaction with the sister concern of the appellant in connection with the salvage operation. The fact that such expenses have in fact been incurred cannot be established by producing only such vouchers. The author of the vouchers has not proved the contents thereof. Afonso, learned counsel appearing for the respondent, that the appellant have produced some vouchers showing some transaction with the sister concern of the appellant in connection with the salvage operation. The fact that such expenses have in fact been incurred cannot be established by producing only such vouchers. The author of the vouchers has not proved the contents thereof. Merely exhibiting the document without proving its contents would be of no assistance to the appellant to establish that such expenses had in-fact been incurred. At this stage, we would take note that the sister concern of the appellant have themselves been involved in the salvage operation and they themselves carried out such operation for the subject vessel. No agreement to carry out any salvage operation has been produced or entered by the parties. It is very curious to note that though the vessel had capsized at the port, the appellant who were stated to be reputed salvage operators were unable to succeed in such salvage operation. No doubt, the appellant should have been aware that such salvage operations are carried out on 'no cure no pay basis' and as such the appellant apparently proceeded to carry out such exercise to hold out that they had incurred substantive expenditure for such purpose. The expenses have not been established, nor the documents duly proved and as such, we find it very difficult to accept that the appellant have established that the capsized vessel had resulted in a constructive total loss. It is also to be noted that immediately after the respondent had repudiated the policy and rejected the claim put forward by the appellant they were in a position to restart the salvage operation and in fact succeeded in such endeavour. All this draws a strong suspicion about the extent and the claim of the actual expenses incurred towards the salvage operation carried out by the appellant. It is contended by Mr. Bhobe, learned counsel appearing for the appellant, that the authenticity of the said document has not been disputed by the respondent. All this draws a strong suspicion about the extent and the claim of the actual expenses incurred towards the salvage operation carried out by the appellant. It is contended by Mr. Bhobe, learned counsel appearing for the appellant, that the authenticity of the said document has not been disputed by the respondent. We are afraid that when the appellant are seeking to put up a claim on the basis of a constructive total loss, it was incumbent upon them to establish by cogent evidence and duly proved document about the actual expenditure incurred and the expenses which would have to be incurred for the repair and other expenses on the vessel to ascertain whether such expenses would be more than the amount insured. Having failed to establish the said aspect and considering that even PW6 has not given any report about any total loss, we find it difficult to accept that the appellant have established that as the vessel capsized they are entitled to put up a claim for total loss. 29. As already pointed out herein above, on 05.06.1988 the mishap occurred. The appellant did not treat it as a total loss. In fact, in case the appellant had treated the capsizing of the vessel as a total loss there was no need to indulge in any additional expenditure for salvage operation. The expenditure for sue and labour are to avoid the expenses or take measures to prevent the capsizing of the vessel. That is not the type of expenditure incurred by the appellant that can be claimed by the appellant as sought. 30. Another aspect also to be noted is that after the mishap the vessel had not reached the ground level. The evidence on record discloses that in fact the vessel was tilting on account of weather condition. Apart from that, the photographs on record also do not disclose that the vessel had grounded and was beyond repair. In such circumstances and considering the conduct of the appellant in not treating the vessel as a total loss on the date of the mishap and treating it as a partial loss would itself suggest that the claim of the appellant did not cover the disputed insurance policy. 31. Conceptually, salvage, sue and labour and constructive total losses are quite distinct from each other. 31. Conceptually, salvage, sue and labour and constructive total losses are quite distinct from each other. In practice however, the distinctions can blur in the context of a marine insurance claim following an insured loss. It is necessary to characterize and adjust various expenses incurred in the loss adjustment. Salvage and “sue and labour” are two types of expenses or charges that can be incurred. Their application may have an effect in the determination of whether a loss is a Constructive Total Loss. 32. A total loss is in turn either an actual total loss or a constructive total loss unless a different intention appears from the terms of the policy. An actual total loss is conceptually clear. It would have to be seen whether the subject matter insured is destroyed or so damaged as to cease to be the thing of the kind insured or where the assured is irretrievably deprived of the insured item. The salvage charges, if incurred, will be payable by the insurer as a loss caused by the insured peril. These charges are adjusted as being a part of the insurance overage limits over the insured property. In contrast, sue and labour expenses are considered as a supplementary coverage and are, therefore, recoverable in addition to the sum insured under the policy. Where there is a Constructive total loss, the loss is to be treated as a partial loss or abandon the insured item to the insurer and treat the loss as if it was an actual total loss. If the assured elects to treat a loss as a constructive total loss, it is required to provide the insurer with a notice of abandonment. If the assured fails to do this the loss can only be treated as a partial loss. Where there is a valid abandonment, the insurer may take over the interest of the assured in whatever remains of the insured item and the insurer then has all proprietary rights in that item. The insurer will not be liable for what amounts to a constructive total loss where no notice of abandonment has been given unless such requirement is waived. The insurer will not be liable for what amounts to a constructive total loss where no notice of abandonment has been given unless such requirement is waived. Where the insurer refuses to accept an abandonment and repairs a vessel at the cost less than the value of the item when repaired, there is no constructive total loss and where the insurer refuses to accept an abandonment and repairs the vessel and the cost of repairs are more than the value of the vessel, there would be a constructive total loss. Salvage expenses are recovered under the policy and not under the 'sue and labour' and, as such, they cannot be recovered in addition to the sum assured. 33. Another contention of Mr. Afonso, learned counsel appearing for the respondent is that the appellant did not have a certificate of classification for the disputed vessel. The appellant have produced a certificate at P-3. It has been issued by the Bureau Veritas and is valid up to August, 89. The certificate discloses the date of the last dry docking which was August, 1985. 34. The letter addressed by the appellant to the respondent before the disputed policy was issued clearly states that extensive changes have been carried out to the said vessel. This apparently was done in the monsoon of the year 1987. On perusal of the said certificate, one cannot find any endorsement that after such repairs and additions were carried out to the vessel by the appellant there was any fresh survey conduced by the said authority. The term therein clearly provides that the rules stipulate that when the survey is to be conducted any breach thereof would result in the withdrawal of the certificate. Apart from that, Clause 4 of the policy provides thus : “4. TERMINATION This Clause 4 shall prevail notwithstanding any provision whether written typed or printed in this insurance inconsistent therewith. Unless the Underwriters agree to the contrary in writing, this insurance shall terminate automatically at the time of - 4.1 change of the Classification Society of the Vessel, or change, suspension, discontinuance, withdrawal or expiry of her Class therein, provided that if the Vessel is at sea such automatic termination shall be deferred until arrival at her next port. Unless the Underwriters agree to the contrary in writing, this insurance shall terminate automatically at the time of - 4.1 change of the Classification Society of the Vessel, or change, suspension, discontinuance, withdrawal or expiry of her Class therein, provided that if the Vessel is at sea such automatic termination shall be deferred until arrival at her next port. However where such change, suspension, discontinuance or withdrawal of her Class has resulted from loss or damage which would be covered by an insurance of the Vessel subject to current Institute Time Clause Hulls or Institute Warand Strikes Clauses Hulls-Time such automatic termination shall only operate should the Vessel sail from her next port without the prior approval of the Classification Society.” 35. In the present case, as such the appellant did not have a valid certificate as on the date of the mishap and it was not surveyed after the extensive repairs. Mr. Bhobe, learned counsel appearing for the appellant has pointed out that the lack of sea worthiness is a matter which has to be established by the respondent. No doubt, the policy is also being repudiated on the ground that the vessel is not sea worthy. But however, the presumption of sea worthiness can be drawn in favour of the owner of the vessel only in case he has a valid class certificate. In the present case, such presumption cannot be drawn as there is no material on record to establish that any survey of the vessel was carried out after such addition and/or extensive repairs of the vessel. As such, though this aspect was not considered by the respondent at the time of refusing to honour the claim put forward by the appellant nevertheless, as pointed out by Mr. Afonso, learned counsel appearing for the respondent, this aspect can be examined from the documents produced by the appellant themselves. Mr. Bhobe, learned counsel however points out that the vessel was inspected somewhere in February-March, 1988 but however, such certificate referred to by Mr. Bhobe, is a cargo ship safety certificate and not a hull classification certificate. 36. We shall now deal with the judgments relied upon by Mr. Bhobe, learned counsel appearing for the appellant. First judgment is of the Apex Court passed in Civil Appeal No.6289 of 2001 in the case of Oriental Insurance Company Ltd., V/s M/s Ozma Shipping Company and another. 36. We shall now deal with the judgments relied upon by Mr. Bhobe, learned counsel appearing for the appellant. First judgment is of the Apex Court passed in Civil Appeal No.6289 of 2001 in the case of Oriental Insurance Company Ltd., V/s M/s Ozma Shipping Company and another. The said judgment is with regard to a claim of total loss in connection with the cargo. The said judgment was essentially dealing with the value to be given to the claim of total loss which is not the situation in the present case as the appellant have failed to establish that they had suffered a total loss as the vessel capsized. The next judgment relied upon is of the National Consumer Disputes Redressal Commission, New Delhi, in Original Petition No. 129 of 1998 in the case of PriyaBlue Industries Ltd., V/s New India Assurance Co. Ltd., wherein the insurer had established the rough weather as well as the collision and the proximate and dominant cause of the vessel becoming a total loss. It was also noted that the conduct of the insured was not of such a nature as to attract any adverse reaction from the insurance company. It is also established therein that the insured has established that they had taken all steps reasonably required to minimize the loss by disposing off the wreck on “as is where is” basis to the highest bidder. This aspect is lacking in the present case and as such the said judgment would not be applicable to the facts of the present case. 37. In the present case, the appellant themselves have disclosed that the ingress of water was on account of the grounding of the vessel which they have failed to establish. This is also not a case wherein the mishap has itself resulted in a total loss and as such the judgment of the Andhra Pradesh High Court in case AS No. 2454 of 1989 dated 24.10.2002 in the case of New India Assurance Company Limited Vs. Andhra Fishermen Central Co-op. Society Ltd., is not applicable to the facts of the present case. The judgment of the Queen's Bench relied upon by Mr. Andhra Fishermen Central Co-op. Society Ltd., is not applicable to the facts of the present case. The judgment of the Queen's Bench relied upon by Mr. Bhobe would not be applicable to the facts of the present case as in the present case, the appellant have not established that the vessel itself was seaworthy and the proximate cause alleged by the appellant has not been established. 38. It is also to be noted that the evidence of the witness examined by the appellant, PW-6 Biswas clearly shows that he has not at all considered whether the capsizing of the vessel has resulted in a total loss. In fact, he has gone into the aspect of salvaging the vessel which was otherwise not required in case he had accepted that the capsizing of the vessel has resulted in total loss of the vessel covered by the policy. As already pointed out herein above, the appellant have failed to establish the grounding of the vessel and that the salvage expenses and the cost of the repairs thereof as a constructive total loss. The respondent have examined DW-2 who is a Navy Architect who has been appointed by the respondent. In fact when the claim was being disputed by the respondent, the appellant themselves suggested that the matter may be referred to a Navy Architect and as such DW-2 was appointed. DW-2 has made a meticulous exercise of examining different concepts and opined that the case advanced by the appellant that the ingress of sea water was on account of damage to the mud box does not appear to be reasonable for specific reasons. The said witness has also taken note of the weight and the position of the vessel to draw a conclusion that the water which was stated to be in the vessel could not result in capsizing of the vessel considering the relevant weight. Expert opinion of DW-2 appears to be reasonable and convincing which has demolished the theory advanced by the appellant as being the proximate cause of the mishap which resulted in a total loss. Thus, considering the well reasoned report of DW-2, we find that the learned Trial Judge was justified to come to the conclusion that the appellant have failed to establish their claim that they are entitled for the amounts claimed in the suit. Thus, considering the well reasoned report of DW-2, we find that the learned Trial Judge was justified to come to the conclusion that the appellant have failed to establish their claim that they are entitled for the amounts claimed in the suit. The learned Trial Judge has rightly appreciated the material on record and has drawn conclusion in accordance with law and no interference is called for in the impugned judgment. The third point for determination is answered accordingly. 39. With regard to the fourth point for determination, it is the contention of Shri Bhobe, learned Counsel appearing for the appellant, that irrespective as to whether the grounding of the vessel at Aguada Bar has been established, the Respondents are liable to pay the amount as claimed in the suit. The learned Counsel further pointed out that once it is established that the vessel had capsized at the port at Karwar, the only inference which can be drawn is that such mishap has occurred on account of the perils of the sea and/or the negligence of the master, or the crew members which was also an insured peril as per the terms of the policy. We are afraid that the said contention of Shri Bhobe cannot be accepted. There is no foundation laid in the pleadings of the Appellant on that count nor, as pointed out above, the alleged negligence of the crew has not been established. It is not the case of the appellant that there were any natural causes which could be inferred to be the perils of the sea on account of which the mishap had occurred to the vessel of the Appellant. As such, as the said contention has no foundation in the pleadings of the Appellants, we find that the said contention of Shri Bhobe does not deserve any consideration. As pointed out hereinabove, it was the case of the Appellant that the vessel had capsized on account of the ingress of water due to the grounding of the vessel and consequent damage to the mud box which has not been established by the Appellant. We have also examined the fact that the certificate in terms of the policy was not available in respect of the insured vessel-to assure that the vessel was sea worthy. We have also examined the fact that the certificate in terms of the policy was not available in respect of the insured vessel-to assure that the vessel was sea worthy. In view of the above, we find that there is no foundation laid by the Appellants in the pleadings to ascertain whether there was any other defect on account of wear and tear, etc., which could be considered to be an insured peril in terms of the policy. The fourth point for determination is answered accordingly. 40. The Judgment relied by Mr. Bhobe, in the case of Rajunder Kumar Khanna vs. The Oriental Insurance Co. & anr., 1990 is not applicable to the facts of the present case. For the reasons as specified herein above, the report of the surveyor is not acceptable considering also the report of Dw.2. The Judgment in the case of Federal Insurance Co., vs. PGG Realty LLC 2008 is also not applicable to the facts of the present case as it is not the case in the present case that the vessel was sea worthy. The Judgment relied upon by Shri Bhobe, learned Counsel appearing for the appellant, in the case of Liberty Mature Insurance, is also not applicable to the facts of the present case as it was not the contention of the Appellant that there was any due diligence on the part of the Master and/or crew members. The judgment in the case of Brophyvs. Lavigne, 1986, is also not applicable to the case as the vessel therein was lost on account of the storm which is not the situation in the present case. The Judgment in the case of Rhesa Shipping Co. Ltd., vs. Fantan Insurance Co. Ltd., is also not applicable to the case as it is not the case of the appellants that the mudguard had corroded which resulted in the ingress of water nor any evidence on record suggests that there was any such corrosion. The Judgment in the case of Lloyds & Ors. Ltd., vs. Fantan Insurance Co. Ltd., is also not applicable to the case as it is not the case of the appellants that the mudguard had corroded which resulted in the ingress of water nor any evidence on record suggests that there was any such corrosion. The Judgment in the case of Lloyds & Ors. vs. Classic Sailing, 2010, is also not applicable as it is not the case of the Appellants that the vessel had sunk as a result of any latent defect of such vessel as was the case in the said Judgment nor any of the witnesses examined by the Appellants have pointed out that there was any such defect to the vessel which resulted in the ingress of sea water erein. The Judgment in the case of Global Process Systems Inc & anr. vs. Syarikat Takaful Malaysia Berhad , is also not applicable as it is not the case of the Appellant in the present case that there was any lake breaking wave at the relevant time which caused the mishap. 41. In view of the above, the appeal stands dismissed with no order as to costs.