IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 AS.No. 465 of 1996() ---------------------------- OS.693/1993 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF -------------------------------------- M.K.UMMER, PROPRIETOR OF FIVE STAR TIMBERS, EAST KALLAI CROSS ROAD, CALICUT. (DIED) *ADDL. A2 TO A7 IMPLEADED. 2. KADEEJA, M.K.W/O.LATE UMMER, RUKSANA'S P.O., MANKAVE, CALICUT 7. 3. RASEENA, D/O. LATE UMMER, RUKSANA'S P.O. MANKAVE CALICUT 7. 4. VAHEEDA .M., D/O. LATE UIMMER, THAMMANNA'S, CALICUT. 5. SHAMSIYA M., D/O. LATE UMMER, SALAM MANSIL P.O., CHALAPPURAM, CALICUT. 6. ZABREENA M., D/O. LATE UMMER, RUKSANA'S P.O.,MANKAVE, CALICUT-7. 7. RUKSANA.M., D/O. LATE UMMER, RUKSANA'S P.O., MANAKAVE CALICUT 7. *LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS A2 TO A7 ORDER DTD. 3.9.2010 ON IA. 3158/2010. BY ADVS. SRI.A.P.CHANDRASEKHARAN, SMT.PRABHA R.MENON A.S. NO.465/1996 RESPONDENT(S): DEFENDANT --------------------------------------------- 1. NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, JIFIRI BUILDING, POST BOAX NO.529, JAIL ROAD, CALICUT. 2. CANARA BANK, CHALAPPURAM BRANCH, REP.BY ITS BRANCH MANAGER, CALICUT. R1 BY ADVS. SRI.JACOB MURIKAN R2 BY SRI.V.M.KURIAN SRI.A.V.THOMAS SRI.E.K.DILRAJ SRI.MATHEW B.KURIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 465 OF 1996 = = = = = = = = = = = = = = = Dated this the 12th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kozhikode in O.S.693/93. The suit is one for realisation of the amount. It is the case of the plaintiff that he is a merchant doing timber business and on 23.2.92 at 6.30 a.m. there was a fire in the building occupied by him which resulted in the entire stock kept and retained by the plaintiff completely burned. According to the plaintiff 200 Cubic feet at the rate of Rs.135/- Cubic feet and timber logs of 180 Cubic feet at the rate of Rs.110/- per Cubic feet were destroyed by fire and therefore the total A.S. 465 OF 1996 -2- loss of stock comes to Rs.46,800/-. The other accessories were also burned and therefore the plaintiff has claimed for realisation of Rs.53,820/- with interest at 18% from the insurance company. It is contended that the goods were hypothecated to the Bank and a fire insurance had been taken and so for the loss sustained the plaintiff is to be compensated. 2. The insurance company on the other hand would contend that the plaintiff is not entitled to any relief, the plaintiff is not conducting any business in the premises, the averment that the timber and other wood kept by him had been destroyed in fire is not correct and really he had not sustained any damages. Therefore the suit is liable to be A.S. 465 OF 1996 -3- dismissed. 3. In the trial court PWs.1 to 3 and DWs.1 to 3 were examined. Exts.A1 to A13, B1 to B2(a) and X1 and X2 were marked. After analysing the entire materials the trial court found that the plaintiff has not succeeded in proving the damages sustained and therefore dismissed the case. It is against that decision the plaintiff has come up in appeal. During the pendency of the appeal the appellant died and his legal representatives have been impleaded as supplemental A2 to A7. 4. Heard the learned counsel for both the sides. The crux of the matter depends upon the evidence adduced in this case to substantiate the loss of wood by fire. It is A.S. 465 OF 1996 -4- the case of the plaintiff that 200 Cubic feet of timber at the rate of Rs.135/- and 180 Cubic feet of timber logs at the rate of Rs.110/- per Cubic feet which were stocked in the premises was burned by fire. Therefore it is contended that since there is a valid fire insurance policy the plaintiff is to be reimbursed by the insurance company. The insurance company had denied the same. Now the plaintiff in his evidence had stated before Court that he used to stock wood (1) in the river (2) in the mill and (3) in the godown. He had also admitted before Court that there are no documents which would show that how much of wood is preserved in the river or in the mill or in the godown. He would submit that there is only consolidated A.S. 465 OF 1996 -5- document regarding the stock in trade. I had perused Ext.A6 which is stated to be the stock book of the year 1991-1992. It appears to have been written at a stroke and what is seen there is how much of 'ayini' wood has been purchased, how many Cubic feet of 'Vanthekku' has been purchased or in other words had only specified the separate quantity of wood purchased. It does not indicate where it is stored. Exts.A4 and A5 are the books relating to the business which deals with purchase and other expenses incurred in connection with the timber business. There is nothing to show in this document that what was the stock available in the alleged premises when it was afflicted by fire. When the plaintiff was confronted with A.S. 465 OF 1996 -6- such a situation the learned young counsel for the appellant would contend before me that the stock in trade was hypothecated to the Bank and the Bank authorities had inspected and found out the materials and therefore it can be used as evidence. It has to be remembered that even according to the plaintiff the document revealed is the entire stock in trade as on 31.1.92. The inspection is conducted on 6.2.92. The accidental fire takes place on 23.2.92. Unless and until one is able to establish the quantity of wood kept in the premises which was burned the Court cannot arrive at a figure regarding the loss sustained by the plaintiff. Further the Manager of the Bank was examined as PW3. He had clearly admitted that he cannot state A.S. 465 OF 1996 -7- about the stock on the date of fire. He had also stated “the stock on that particular date is not shown to me.” So it has to be held that in the absence of evidence to point out the stock in trade separately in the three premises which according to the plaintiff are used to preserve, it may not be possible to find out from the document regarding the stock in trade kept in the place of fire incident. Therefore one cannot find fault with the lower Court when it arrived at a finding that materials are lacking to find out the actual quantity of wood that has been destroyed by fire. Since it is a matter which has to be positively proved by the plaintiff, in the absence of the same the Court was constrained to dismiss A.S. 465 OF 1996 -8- the suit. It does not call for any interference. Therefore the appeal fails and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 465 OF 1996 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.465 OF 1996 = = = = = = = = = = = J U D G M E N T 12th October, 2010.