IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRP.No. 19 of 2008() -------------------- O.S.NO.297 OF 2002 OF MUNSIFF COURT, ALUVA & A.S.NO.80 OF 2005 OF SUB COURT, NORTH PARAVUR. REVN. PETITIONER: RESPONDENT/PLAINTIFF ---------------------- B.A.UMMUL HAKKEEM, PROPRIETOR, SHINE DETARGENTS, NOCHIMA, N.A.D., P.O, ALUVA. BY ADV. SRI.S.SUDHISH KUMAR RESPONDENTS: APPELLANT/DEFENDANT ------------------- 1. NATIONAL INSURANCE CO. LTD., ALUVA BRANCH, PUMP JUNCTION, URUMBATH BUILDING, ALUVA P.O., REPRESENTED BY ITS BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., ALUVA BRANCH. 2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, P.B.NO.89, R.S.ROAD, ALUVA-683101. BY ADV. SRI.RAJAN P.KALIYATH FOR R1 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.19 of 2008 ------------------------------- Dated this the 27th August, 2008. O R D E R Revision petitioner is the plaintiff and respondents the defendants in O.S.No.297 of 2002, on the file of Munsiff Court, Aluva. The suit was filed for realisation of damages caused to Maruti 800 Model car, KL-7/P 7700, which was insured with the respondent National Insurance Company, contending that the vehicle met with an accident on 26.2.2001 at 3 p.m., and damage was caused to the vehicle and Rs.21,272/= has to be spent for repair and petitioner is entitled to realise the same from the respondent. As the respondent failed to pay the amount on demand, the suit has been instituted. Respondents resisted the suit admitting that the insurance policy was issued to the petitioner in respect of the vehicle which was in force from 24.2.2001 to 23.2.2002. But it was contended that there was no accident as alleged on 26.2.2001, and petitioner is not entitled to claim any damages. Learned Munsiff, on the evidence of four CRP.No.19/2008 2 witnesses on the side of the petitioner and two witness on the side of the respondents, Exts.A1 to A4 and Exts.B1 to B4, granted a decree for realisation of Rs.23,505/= with interest at the rate of 6% per annum. 2. Respondents challenged that judgment before Sub Court, North Paravur, in A.S.No.80 of 2005. Learned Sub Judge on re-appreciation of the evidence set aside the finding of learned Munsiff and dismissed the suit. This petition is filed under Section 115 of Code of Civil Procedure, as no appeal will lie as the amount claimed is less than Rs.25,000/=. 3. Learned counsel appearing for the petitioner was heard. 4. The argument of the learned counsel is that prior to the institution of the suit, petitioner had sent Ext.A4 notice where it was specifically contended that the accident occurred on 25.2.2001 and in the plaint also that notice was referred to, but by a typographical error, the date of accident CRP.No.19/2008 3 was wrongly shown as 26.2.2001 at 3 p.m. When petitioner was examined as PW.1, the said mistake was explained by him, and in such circumstances, learned Sub Judge was not justified in relying on the mistake in the plaint to set aside the judgment of the trial court. Learned counsel also argued that whether the accident had occurred on 25.2.2001 or 26.2.2001 will not make any difference, as the policy was in force from 24.2.2001, and in such circumstances, learned Sub Judge was not justified in re- appreciating the evidence and disbelieving the case of the petitioner. Learned counsel also argued that when examined, DW.1 admitted that policy was issued only after inspection of the vehicle, and at the time of inspection, no damage was found, and, therefore, accident could have been occurred only subsequent to the issuance of the policy, and, trial court rightly granted the decree and finding of the First appellate court is illegal and unsustainable. 5. On hearing the learned counsel and on going through the judgment of the trial court and the First appellate CRP.No.19/2008 4 court, I do not find any illegality or irregularity warranting interference in exercise of the revisional jurisdiction of this Court. The specific case in the plaint was that the accident was on 26.2.2001. In the written statement, it was specifically contended that there was no such accident much less on 26.2.2001. The parties proceeded with the trial on the basis that accident was on 26.2.2001. There was no case of an accident on 25.2.2001, as stated in the claim petition or deposed by PW.1 in the pleadings. Even if it is taken that what is stated in the plaint is a mistake committed by the typographical error, petitioner should have amended the plaint stating that the date stated in the plaint is not correct but accident was on 25.2.2006. Atleast when petitioner was aware of the mistake in the plaint, petitioner should have amended the plaint by correcting the date of the alleged accident. But it was not done. When the parties proceeded with the trial on the basis that the accident was on a particular date, it is not possible to turn round thereafter and set up a case that the accident on a different date. In any case, the appreciation of the evidence on that aspect by the learned Sub CRP.No.19/2008 5 Judge cannot be said to be perverse warranting reappreciation. The learned Sub Judge also found that the name of PW.3, who was an eye witness, was not disclosed earlier at the time of his examination and there was no police case in respect of the accident. Learned counsel argued that being a case of ones own damage, there is no necessity for a police case. The question is not, whether for claiming own damage, police case is necessary, but whether the evidence of the accident is believable. Absence of a police case supports the case of the respondent that there was no such accident on that date. It was more so, when even according to the petitioner, there was no accident on 26.2.2001, but on 25.2.2001. In such circumstances, I do not find any reason to interfere with the judgment passed by the First Appellate Court. Revision is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.