IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 AS.No. 85 of 2002(E) -------------------- (AGAINST THE JUDGMENT AND DECREE IN O.S.NO328/1996 DATED 31.3.2001 ON THE FILE OF THE PRINCIPAL SUB COURT, THRISSUR.) APPELLANTS/DEFENDANTS 1 & 2: ------------------------------------ 1. MANAGER, PATEL ROADWAYS LTD., REGISTERED OFFICE, PATEL HOUSE, 100 SHERIFF DEOYI STREET, BOMBAY-400 003. 2. MANAGER, PATEL ROADWAYS LTD., ERINJERI, ANGADI, TRICHUR. (BOTH APPELLANTS REPRESENTED BY ITS REGIONAL MANAGER, V.B.BALAGOPAL). BY ADV. MR.P.V.BABY RESPONDENTS/PLAINTIFF AND 3RD DEFENDANT: ----------------------------------------------------- 1. NATIONAL INSURANCE COMPANY, DIVISIONAL OFFICE IS LOCATED AT KOLLANORE DEVASSY SMARAK, ROUND WEST, THRISSUR, REPRESENTED BY ITS AUTHORISED AGENT, MR.C.UNNIKRISHNAN,S/O. K.C.NAIR, PRESENT DIVISIONAL MANAGER, THRISSUR. 2. MANAGER, KUTTUKARAN MACHINE TOOLS LTD., THRISSUR WORKS, OLLUKKARA P.O., THRISSUR. ADV. MR.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ A.S.No.85 Of 2002 ---------------------- Dated this the 9th day of June, 2010. J U D G M E N T Defendants 1 & 2 in O.S.No.328 of 1996 on the file of the Principal Sub Court, Thrissur are the appellants. The National Insurance Company filed the suit for realisation of damages. The court below decreed the suit allowing the plaintiff to realise a sum of Rs.21,501/- together with interest at 12% per annum from 21.12.1995 till realisation from defendants 1 & 2 or from their assets with costs. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The suit was filed by the Insurance Company for realisation of Rs.22,466/- with interest being the loss sustained by them. The plaintiff has paid an amount of Rs.21,501/- to the third defendant. The goods were transited in the vehicle bearing Reg.No.KEH 7700 belonging to the defendants 1 & 2. While in transit the vehicle met with an accident on 20.8.1994. As a result of the accident, the complete packing case of one box was twisted and torn to pieces. A survey was conducted and the A.S.No.85 Of 2002 ::2:: damages were noted by the surveyor. Since the defendants did not settle the matter, the plaintiff settled the claim of the third defendant on 10.1.1995 for a sum of Rs.21,501/- under the terms and conditions of the policy. Thereafter the Insurance Company got a letter of subrogation and power of attorney from the third defendant to recover the said amount from defendants 1 and 2. 3. The suit was resisted by the defendants 1 and 2 and prayed for dismissal of the suit. Trial court examined the questions as to whether the plaintiff is entitled to claim damages from defendants 1 and 2 and if so what is the quantum and other relevant issues. Both sides did not adduce any oral evidence. Plaintiff produced Exts.A1 to A16. Defendants did not adduce any oral or documentary evidence. The trial court on an appreciation of evidence held that the plaintiff is entitled to claim damage from defendants 1 & 2 to the tune of Rs.21,501/-. 4. Learned counsel for the appellants submitted that the fixation of damages at Rs.21,501/- is not sustainable since the first respondent failed to adduce sufficient evidence in support of A.S.No.85 Of 2002 ::3:: the claim. According to the appellants, the evidence on records is not sufficient to hold that the plaintiff is entitled to a sum of Rs.21,501/- plus interest. Learned counsel for the appellants submitted that though the first respondent had produced the survey report it was not properly proved by examining the surveyor. Learned counsel also brought to the notice of this Court the decision reported in Associated Transport Corporation (P) Ltd. v. National Insurance Company (1989 (1) KLT 386). In the said case, this Court held that mere production of a survey report prepared without notice to the carrier is not sufficient evidence and that the survey report can be proved only by examining the surveyor. In the light of the aforesaid decision, this Court is of the view that the matter has to be remanded for the purpose of affording opportunity to the first respondent to prove the quantum of damages by examining the surveyor, who prepared Ext.A7 report. In the result, the appeal is partly allowed. The case is remanded to the court below for fresh disposal in accordance with law. Since the suit is of the year 1996, the court below shall A.S.No.85 Of 2002 ::4:: dispose of the case expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 1.7.2010. The appellants are entitled to refund of one half of the court fee paid. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-