IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 RFA.No. 504 of 2004() --------------------- OS.1067/1993 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF --------------------------------------- T.K.LAKSHMIKUTTY, D/O. KRISHNANKUTTY, 'SMRITHI', PANCHIKAVU P.O., PERUNNAI, CHANGANACHERRY. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI RESPONDENT(S): --------------- 1. DIRECTOR OF INSURANCE, STATE INSURANCE DEPT., THIRUVANANTHAPURAM. 2. DISTRICT INSURANCE OFFICER, KOTTAYAM. R1 AND R2 BY SRI.DILIP.S, GOVERNMENT PLEADER THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - R.F.A. 504 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2011 J U D G M E N T Dissatisfied with the quantum of damages awarded by the court below, the plaintiff in O.S.No.1067/1993 before the Sub Court, Kottayam has come up in appeal. 2. The plaintiff insured her house bear no.85/2A with the second defendant for a sum of Rupees Two lakhs. Policy was to be in force from 19.06.1992 to 18.06.1993. The premium was Rs.129/-. Alleging that due to heavy rain and flood building developed cracks. She laid a claim before the defendants. 3. She made a claim for a sum of Rs.97,000/-. Since the defendant denied their liability to honor the claim of the plaintiff, she instituted the suit. 4. The defendants resisted the suit. They pointed out that the contingency put forward by the plaintiff was not covered by the policy and they are not liable. They denied that the cracks had developed due to flood, but according to them it was due to constructional defects for which they : : R.F.A. 504 of 2004 were not liable. On the basis of these contentions they prayed for a dismissal of the suit. 5. On the above pleadings issues were raised. 6. The evidence consists of the testimony of PW1 and 2 and Exhibits marked as Exts.A1 to A7 from the side of the plaintiff. The defendants had DW1 and DW2 examined and exhibits B1 to B6 marked. 7. On an appreciation of the evidences the trial court came to the conclusion that the claim is covered by the terms of the policy and defendants are liable to honor the claim of the plaintiff. However court below found that there were no definite data regarding the damages suffered by the plaintiff and on a rough estimate awarded a sum of Rs,20,000/- as compensation. Dissatisfied with the quantum, the plaintiff preferred this appeal. 8. The only question that arise for consideration is whether the lower court is justified in confining the damages to a sum of Rs.20,000/-. : : R.F.A. 504 of 2004 9. The learned counsel appearing for the appellant very strongly contended that the court below was not justified in confining the quantum of damages as Rs.20,000/- as there was evidence of PW2, the mason who had carried out repairs and reconstruction work to show that nearly 1 lakh was incurred as expenses for repairing the building. There was no reason to discard his evidence. The Learned counsel pointed out that his evidence ought to have been taken into account and the amount claimed ought to have been granted. 10. The learned Government Pleader, on the other hand, pointed out that claim was made without any supporting documents. Court below had very graciously award a sum of Rs.20,000/- on a rough estimate. The evidence of PW2 is not sufficient to show that the claim of Rs.1,00,000/- made by the plaintiff was actually incurred by her for the repair and maintenance of the building. The learned Government Pleader pointed out that there was no : : R.F.A. 504 of 2004 attempt from the side of the plaintiff to establish actual expenses incurred by her for repairs of the building. Moreover no attempt was made to establish what exactly were the damages suffered by the building. No attempt was also made to have a commissioner deputed by court to assess the damages of the building. In the absence of evidence in that regard according to Government Pleader court below was perfectly justified in confining the quantum to Rs.20,000/-. 11. After hearing both sides and on going through the records, it appears that the government pleader is perfectly justified in his submissions. The question as to whether the damages suffered by the plaintiff is covered by the policy need not be considered by this court for the simple reason that court below has found that it is covered by the policy and there is no appeal by the defendant. 12. The lower court found that there were no : : R.F.A. 504 of 2004 materials to assess the quantum of damages due to the plaintiff. But considering the available evidence in a rough estimate awarded a sum of Rs.20,000/- 13. Much reliance is placed on the evidence of PW2 Mohanan. He claims to be a mason by profession. He states that he had occasion to carry out the repairing work of the building of the plaintiff and he stated some of the details. He says that he got a sum of Rs.40,000/-towards wages and he spent a sum of Rs.60,000/- for purchasing various material. No further details are given by him as regards to the materials purchased by him. 14. He simply says the figures without any supporting materials. 15. It is interesting to note that in the chief affidavit filed by the plaintiff also there are no details regarding the expenses incurred by her. All that is stated for the entire repairs she had incurred about a lakh of rupees. It is under these circumstances the courts below was constrained to : : R.F.A. 504 of 2004 confine the quantum to Rs.20000/-. Merely because PW2 says that he has received Rs.40000/- towards wages and Rs.60,000/- spent for the materials , one cannot accept the same and award damages on that basis. One must remember that repairs carried while the claim was pending. One would expect the plaintiff to keep relevant documents. No documents whatsoever produced by the plaintiff in support of the claim. At least some attempts could have been made by the plaintiff to establish the nature of damage caused to the building and the various work carried out by her. She could have taken out a commission from the court for that purpose. No attempt to produce any documents as supporting material was made by the plaintiff. Being a claim for damages, loss will have to be proved. 16. Under these circumstances, no interference with the judgment and decree of the trial court called for. This : : R.F.A. 504 of 2004 appeal is devoid of merits and is accordingly dismissed. No orders as to costs. P.BHAVADASAN JUDGE kkj