IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 SA.No. 750 of 1999(E) --------------------- AS.1/1993 of DISTRICT COURT, KOTTAYAM OS.441/1988 of PRL.SUB COURT, KOTTAYAM .................... APPELLANT(S): ---------------------- K.V.JOSEPH, SON OF VARKEY, RESIDING AT KARMAL BHAVAN, ETTUMANOOR. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): ----------------------- 1. STATE BANK OF INDIA, CENTRAL OFFICE AT BOMBAY, BRANCH AT K.K.ROAD, KOTTAYAM REPRESENTED BY BRANCH MANAGER. 2. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, KOTTAYAM. ADV. SRI.GEORGE THOMAS (MEVADA) FOR R1 SRI.RATHISH VIJAYENDRAN FOR R1 SRI.M.G.K.MENON FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.750 OF 1999 -------------------------------- Dated this the 29th day of September 2010 JUDGMENT Plaintiff in a suit for damages is the appellant. Both the courts below have concurrently held that the plaintiff is not entitled to the claim for damages canvassed, and he was nonsuited. 2. plaintiff is a saw mill owner. He had availed a loan from the first defendant bank on hypothecation of the goods in his mill and also furnishing guarantee as per the terms specified in Ext.B2 agreement. Among other conditions, Ext.B2 agreement envisaged insurance coverage over the goods hypothecated towards security for the loan. When the loan was provided, it is not disputed that the insurance policy taken with the United Insurance Company, over and above the hypothecated goods covered the saw mill also to the extent of indemnifying the damages if any caused to that mill by malicious acts. Policy so taken was renewed from year to year with that insurance company. However, it is the case of the plaintiff that without his knowledge, the first defendant bank changed the insurer. Second defendant was so chosen, and while renewing the policy with that company under a new proposal, the saw mill was left out. Saw mill collapsed down on account of malicious acts by third parties S.A No.750 OF 1999 - 2 - on 13/01/1986 while a policy for the loan as indicated above with the second defendant was in force which did not cover damage to the saw mill. Imputing culpable default and breach of obligation on the bank in leaving out the saw mill from the coverage when a renewal of the policy was made with second defendant company which is stated to have been done without the consent of the plaintiff the claim for damages was made to the tune of Rs.21,000/-, the sum expended by him for reconstruction of the say mill. The bank and also the insurer second defendant filed separate written statements in which both of them challenged the maintainability of the suit. The bank contended that it was the duty of the plaintiff as per the terms of Ext.B2 agreement to effect renewal of the policy from time to time to safeguard the security given to the bank for the amount availed as loan and it was not bound, at any rate, to take any step for having an insurance coverage for the saw mill which admittedly was not offered as security for the loan. It was further contended that change of insurance policy with the second defendant was effected by the plaintiff and the damage claimed, at any rate, is not allowable, according to the bank. Second defendant also refuted its liability contending that since the policy did not cover the saw mill, it cannot be saddled with damages claimed by the plaintiff. S.A No.750 OF 1999 - 3 - 3. After considering the materials tendered with reference to the pleadings of the parties, the trial court, taking note that Ext.B2 agreement mandated the plaintiff who had availed the loan to take appropriate and needful steps for insuring the goods offered as security to the bank for loan, found that in view of such express stipulation under the written agreement between the parties, the claim for damages canvassed by the defendant on the premise that the duty was cast upon the bank for taking insurance for the saw mill, which was originally covered, when a renewal was made cannot at all be accepted. Then also it was found that the basis for the claim for damages, the destruction of the saw mill that too by malicious acts of third parties, remained unsubstantiated by any material whatsoever other than the interested testimony of plaintiff examined as PW1 and his contractor PW2. When such be the case, the trial court concluded that the plaintiff was not entitled to the damages claimed against the bank whatever be its case imputing breach of obligation on the bank in the renewal of the insurance policy with another company. The lower appellate court too after reappreciating the evidence tendered in the case, it is seen, has concurred with the finding arrived by the trial court as indicated above, to confirm the nonsuiting of the plaintiff by dismissing his appeal. Needless S.A No.750 OF 1999 - 4 - to point out that the lower appellate court is the last and final fact finding authority on disputed facts involved in a case. Such findings of fact are not open to interference in second appeal unless the party who prefers such appeal is able to show that there was misconstruing and misappreciation of evidence resulting in forming wrong conclusions. After going through the judgments of both the courts and also the materials tendered in the case, it is seen that the appellant/plaintiff has not even established the basis for claiming damages, ie, the destruction of the saw mill was on account of malicious acts of third parties which alone would have entitled to him to claim compensation from the insurance company. I find there is no merit in the present appeal preferred challenging the dismissal of the claim of the plaintiff. Appeal lacks merit, and it is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv