IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 AS.No. 1001 of 1998(A) ---------------------- OS.305/1987 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): -------------- M/S.ABDULLA IBRAHIM, CLOTH MERCHANT, CHALAI BAZAAR, TRIVANDRUM, REP. BY ITS PARTNERS MOHAMMED SIDDIQUE, S/O.AHMED SAIT, RESIDING AT T.C.39/1016, KARUPPATTIKADA, CHALAI, TRIVANDRUM, AND ABDUL LATHIF UMMER SAIT, KHATIJA BUILDINGS, T.C.39/5, CHALAI, TRIVANDRUM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT(S): --------------- 1.THE UNITED INDIA INSURANCE COMPANY LIMITED, REP. BY ITS MANAGING DIRECTOR, 25, WHITES ROAD, MADRAS - 14. 2.THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., MARAKKAR BUILDINGS, M.G.ROAD, TRIVANDRUM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.1625/95 & I.A.4536/08 IN A.S.NO.1001/98 DISMISSED 08.04.2009. SD/- KURIAN JOSEPH, JUDGE. SD/- K.T.SANKARAN, JUDGE. KURIAN JOSEPH & K.T.SANKARAN, JJ. ----------------------------------------- A.S.No.1001 of 1998 ----------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT Kurian Joseph,J. Appellant is the plaintiff. The suit is for money. The plaintiff firm was engaged in the business of textile goods, both wholesale and retail, at Chalai Bazaar, Trivandrum. According to Ext.A2 (B3) insurance policy, the stock-in-trade was insured with the first respondent Insurance Company for an amount of Rs.9 lakhs at the relevant time. The policy is admitted. That there was a valid policy at the time of the fire accident which took place on 30-12-1982 is also admitted. On 30-12-1982, a Bandh day, the anti-social elements had set fire to the buildings in Chalai Bazaar. Ext.A1 is the FIR and Ext.A6 is the report on the fire. Though the plaintiff claimed loss to the tune of Rs.12,05,250/-, the trial court found on evidence that the actual loss was only to the tune of Rs.2,82,982/-. That loss was assessed on the basis of Ext.B2 report of the Insurance Surveyor. The suit was, however, dismissed on the ground that the plaintiff had shifted A.S.No.1001 of 1998 -:2:- the stock-in-trade to building No.TC 39/4 from TC 39/5 and 39/6. The place where the stock-in-trade is to be kept as per the policy, is in building No.39/5 and 39/6. 2. It is the contention of the learned counsel appearing for the appellant that admittedly the plaintiff had raised a loan to the tune of Rs.5 lakhs from State Bank of Travancore and only because the stock-in-trade was duly insured, the Bank granted the loan. It is further contended that it is the stock-in-trade that was insured with the defendant and not the building and hence the change in premises of the stock-in-trade is irrelevant and immaterial. It is also contended that, at any rate, since all the buildings in the Chalai Bazaar were set to fire, it was immaterial whether the stock-in-trade was in building No.TC-39/4 or 39/5 and 39/6. Learned Senior Counsel appearing for the Insurance Company, however, submits that the property insured as per the policy is the textile goods stored or kept in building No.TC-39/5 and 39/6 situated at Chalai Bazaar and occupied as textile shop room. In view of the evidence to the effect that the loss is in respect of the textile goods kept in building No.TC-39/4, and thus A.S.No.1001 of 1998 -:3:- there being a violation of the policy in having shifted the stock- in-trade to a premises not referred to in the policy without intimation and permission of the insurer, the plaintiff is not entitled to any relief. 3. Though learned counsel appearing for the appellant contended that the business loss is to the tune of Rs.12 lakhs as claimed in the plaint, we do not find any supporting material to establish the claim. On the contrary, based on the evidence of the Surveyor as per Ext.B2 report it has come out that the loss suffered by the plaintiff on account of the fire is only Rs.2,82,982/-. It is seen from the report itself that the same was prepared after verification of the entire records including the records pertaining to the sales-tax. Though the plaintiff has a case that there were stock-in-trade to the extent claimed in the plaint and only since the entire records were gutted by fire the plaintiff is unable to lead evidence regarding the actual value of the stock-in-trade lost in fire, we find that the evidence available as per the report of the Surveyor is only for the loss to the tune of Rs.2,82,982/-. We further find that the said report is prepared A.S.No.1001 of 1998 -:4:- based on verification of the entire available and connected records kept in the Bank, in the Sales-tax Department and other available records. Therefore, we fully agree with the reasoning and finding of the trial court that the loss sustained by the plaintiff on account of the fire on 30-12-1982 is only to the tune of Rs.2,82,982/-, in the absence of any contra evidence. We do not also find any justification in the submission made by the learned counsel for the appellant for a further opportunity to adduce evidence with regard to the actual loss, particularly in view of the fact that the incident itself is of the year 1982. 4. There cannot be any dispute to the fact that the loss of the textile goods on account of the fire, as far as the plaintiff is concerned, is in respect of the goods kept in building No.TC 39/4 of Chalai Bazaar. Room Nos.TC 39/5 and 39/6 were occupied by another textile business, namely, Gulshan Fabrics. True, at the time of the incident, it is in evidence that the stock-in-trade of the plaintiff was in building No.TC 39/4. But if the evidence of PW1, DW1, Exts.A1 and A6 is analysed deeply, it can be seen that on account of the unfortunate events which took place on A.S.No.1001 of 1998 -:5:- 30-12-1982, whereby the entire buildings in Chalai Bazaar were set to fire by anti-social elements, goods in all the buildings in Chalai Bazaar had been gutted by fire. It is also seen from Ext.A1 mahazar that the building having Nos.TC39/4, 39/5, 39/6 and upto 39/10 were different rooms in the very same building. The entire shop rooms in the row building were gutted by fire. It is not as if the goods had been unauthorisedly and clandestinely removed to a totally distant and different premises so as to cook up a story of fire in order to claim insurance. It has also come out in evidence that others, who had been conducting business in Chalai Bazaar and who were the unfortunate victims of the fire, had in fact claimed compensation from their respective insurance companies or other agencies. Thus, on an over all appreciation of the evidence available in the case, it is clear that the plaintiff had suffered loss on account of the fire incident along with all other businessmen in Chalai Bazaar. The evidence available on the loss is to the tune of Rs.2,82,982/-, that the goods were kept in the adjacent room is of no consequence since even the premises covered by Ext.A2(B3) insurance policy were also A.S.No.1001 of 1998 -:6:- gutted by fire, that there is no case of any duplication of claims for the defendant insurance company and thus, according to us, the plaintiff is entitled to succeed to the extent of the loss as assessed by the Surveyor deputed by the defendant insurance company. In the result, the appeal is partly allowed. The suit is decreed to the extent of allowing the claim to the tune of Rs.2,82,982/-. The said amount shall carry interest from the date of the suit at 6%. The parties will suffer their respective costs. A copy of the decree will be forwarded to the District Collector, Trivandrum to realise the court fee. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg. KURIAN JOSEPH & K.T.SANKARAN, JJ. --------------------------- A.S.No.1001 of 1998 ---------------------------- JUDGMENT 8th April, 2009