IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 AS.No. 608 of 1997(C) --------------------- OS.187/1988 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT/PLAINTIFF: -------------- M/S.AJAY AGENCIES, RAMESWARAM LANE CARUVELIPADY, COCHIN-2 REPRESENTED BY ITS PROPRIETOR P.UNNIKRISHNAN BY ADV. SRI.S.SREEKUMAR SRI.J.R.RAJEEV RESPONDENTS/DEFENDANTS: --------------- 1. CANARA BANK, THOPPUMPADY BRANCH REPRESENTED BY ITS MANAGER 2. NATIONAL INSURANCE COMPANY LTD., THOPPUMPADY BRANCH, COCHIN-5 3. CORPORATION BANK, COCHIN-2 REPRESENTED BY ITS MANAGER. 4. UNITED INDIA INSURANCE CO.LTD., COCHIN-2 GOVERNMENT PLEADER SRI.RAVIKRISHNAN P.K. SRI.SIBY MATHEW SRI.K.J.SAJI ISAAC SRI.V.B.HARI NARAYANAN SRI.S.K.BRAHMANANDAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RKC P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - A.S.No. 608 of 1997 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of September, 2011 J U D G M E N T This appeal is directed against the judgment and decree in OS.187/1988 before the Sub Court, Cochin wherein the court below refused to accept the entire claim put forward by the plaintiff in regard to the insured goods which were lost in fire. 2. The plaintiff was running a proprietary concern and doing business in hardwares, paints and stationery articles. He availed of two loans, one from Canara Bank and the other from Corporation Bank for his business purposes. He used to file regular statements before the bank regarding the stock in his shop. These stock statements were periodically verified by the officials of Bank, to permit the withdrawal of amount periodically within the sanctioned limit. Unfortunately on 29.12.1986, a fire occurred due to short circuit and the entire articles in the shop were burned. The Bank as well as the insurance company were :2: A.S.No. 608 of 1997 duly informed about the incident. The surveyor nominated by the insurance company conducted his survey and recommended a report 08.01.1987. Surveyor assessed the loss at Rs.33844/-. The plaintiff would pointed out that, it is not true figure because the articles which were reduced to ashes were not valued by the surveyor. True test would have been to ascertain the value with respect to the last stock statement filed by the plaintiff before the Bank concerned. According to him, as per the statement filed by him on 15.12.1986 before the Canara Bank the value of stock available in the concern was 66,754/-. Inspite of making several attempts to have his claim settled, he was not successful. Ultimately the suit was laid for a sum of Rs.78,799/- with a future interest of 18%. 3. The bank resisted the suit on the ground that they are not concerned with the success of the claim made by the plaintiff but they are liable to recover the amount due to them under the respective loan. 4. The insurance companies who were the second and :3: A.S.No. 608 of 1997 4th defendants respectively in the suit filed a written statement denying the value of the items insured with them as per the claim made by the plaintiff. They also contended that only the stationery items were insured and no other items were covered by the insurance policy. On the basis of these contentions they prayed for the dismissal of the suit. 5. On the basis of the pleadings issues were raised. Before going further, one may notice that in the meanwhile the two Banks namely the Canara Bank and the Corporation Bank from whom the plaintiff had availed of loans for his business purposes had instituted suits for recovery of amount due to them. The two suits were tried along with the suit filed by the plaintiff, and the suit filed by the plaintiff who is the appellant herein is treated as the leading case. 6. Plaintiffs had PWs 1 to 3 examined and Exts. A1 to A20(a) marked. Defendants had Dws.1 to 4 examined and document B1 to B39 marked. X1 and X1 series are third party exhibits. :4: A.S.No. 608 of 1997 7. On a consideration of materials before it, the trial court found the value assessed by the valuer nominated by the Insurance Company to be acceptable and a sum of Rs.33,844/- due to the plaintiff. But surprisingly enough the suit was dismissed. The suit filed by the Banks were decreed and they were given a decree for the amounts with 18.5% future interest. 8. Aggrieved by the that portion of the decree which negatived the claim of the plaintiff Rs.66754/- with interest at 18% and for which only Rs.33,844/- were granted by the lower appellate court and also dismissal of the suit, the plaintiff has come up in appeal. 9. The learned counsel appearing for the appellant pointed out that the lower court was erred in dismissing the claim of the plaintiff as well as in not accepting the statement filed by the plaintiff which shows that the articles available in the shop as on the date of fire which caused the destruction of the articles in the shop. The reasons given by the lower court to decline to accept the figure shown in the :5: A.S.No. 608 of 1997 statement filed by the plaintiff before the bank are not sustainable either on facts or in law. The valuer appointed by the respective Insurance Company could value only the articles which were available at the site and by no stretch of imagination he could value the articles which were reduced to ashes. The learned counsel also pointed out that the lower court has not entered a finding that the plaintiff in OS187/1988 was guilty of withholding the material documents or material evidence so as to stake a false claim. The best evidence available that is the statement filed before bank which shows the stock in trade based on which amounts are released by the Banks would show the actual price of the articles available as on the date. The learned counsel was fair to concede that there could have been some minor variations, but at any rate, the trial court was not justified in declining to accept Exts.B19, 20 and 21 which were statements submitted before Banks. This is reflected in Ext.X1 file also. The learned counsel went on to point out that while the suits by the banks have been :6: A.S.No. 608 of 1997 decreed by the future interest at 18.5%, the interest granted to the plaintiff for the amounts due to him at 6% is far too low. 10. The learned counsel then went on to point out that the trial court was not justified in accepting the the valuer's report as a basis for quantifying the amount due to the plaintiff. Thus the judgment and decree so far as the OS.187/1988 is clearly unsustainable both on facts and in law. 11. The learned counsel appearing for the respondent Insurance Company pointed out that all that the trial court has done was to accept the valuer's report in full and there is nothing wrong with the method adopted by the lower court in arriving the amount due to the plaintiff. The plaintiff had not produced materials to show that there were more articles in the shop. 12. After hearing both sides and having gone through the available records it is felt that the findings of the lower court to the extent that the plaintiff in OS.187/1988 is only :7: A.S.No. 608 of 1997 entitled to the value assessed by the valuer cannot be sustained. As rightly pointed out by the learned counsel for the appellant there is no case for either the Bank or the Insurance Companies that the plaintiff in OS.187/1988 is guilty of withholding material documents or material evidence was so as to make a false claim. The only available evidence which he could have been produced was the statement he had filed before the Bank to which no objection had been taken by the Bank till date. The Bank has no case that it was false. The lower court refused to accept the statement on the ground that the official examined on behalf of the Bank had stated that the statement had not been verified. But that is not a ground to reject, Ext.X1(a) on the ground that it does not reflect the true state of affairs. The best evidence available to the plaintiff was only the statement before the Bank that he had produced it before the trial court. Unless it was shown that there was some error in the statement, the trial court was not justified in not accepting that statement. :8: A.S.No. 608 of 1997 13. It is significant to notice that DW2 examined by the bank has stated that if there is any error in the stock statement that would reflect in the disbursement of the loan amount and there has been no reduction in the loam amount disbursed to the plaintiff on the basis of the statements filed by him. It is sufficient to show that Bank had accepted the last statement filed by him what framed the basis of the claim in OS. 187/1988. 14. The valuer who has examined as PW2 has stated that he has valued the articles found at site and he had no idea about the articles reduced to ashes. It is significant to remember that the initial claim of the Insurance Company was that only the stationary articles were insured and there was no insurance coverage for other items kept in the concern of the plaintiff. This was found against the trial court. It was found that insurance policies covered the entire articles kept in the shop. That being the position, it would not be proper to accept valuers evidence and report for the simple reason that relates to the articles found at :9: A.S.No. 608 of 1997 site. There is no case for either the Insurance Company or the valuer that other articles which were shown in the statement were not available or statement were false in any manner. There was no justification for the trial court to ignore the stock statement filed by the plaintiff before the Bank based on which the disbursement of the loan amount were made. It is not possible to accept the findings of the court below in this regard. 15. This Court is also unable to understand, after having found that the plaintiff is entitled to the sum which the lower court quantified as Rs.33,844/- how the suit could have been dismissed. The suit had to be decreed in favour of the plaintiff to that extent at least and direct that the amounts should be appropriated by the Banks for the amounts due to them from the plaintiff. 16. As regards the future interest we seen on the plaint that for the period from 23.12.1986 to 02.12.1987 the plaintiff has claimed 18% interest. That seems to be highly excessive. :10: A.S.No. 608 of 1997 17. This Court is constrained to accept statement of stock in trade filed by the plaintiff before the Bank which shows that on 19.12.1986 the value of the stock in trade was Rs. 66,754/-. The plaintiff is entitled to that amount. In the result the judgment and decree in OS.187/1988 are set aside and a decree is passed in the following terms:- (1). The plaintiff is entitled to get a sum of Rs.66754/- with 12% interest from 29.12.1986 to 02.12.1987 and 9% interest from the date of suit till realisation from defendants 2 and 4. (2). The defendants 2 and 4 to proportionately bear the court fee payable by the plaintiff in both the courts ie. the trial court as well as in this Court under Order 33 Rule 10. (3). If there is any balance amounts after the appropriation of the amounts due, the same shall be paid to the plaintiff. P.BHAVADASAN JUDGE kkj