Partly allowed

K.Purushothaman v. National Insurance Co. Ltd., Calcutta

Kerala HC16 Jun 2017AS/493/2001

Case brief

AI extract

What is this about?

The High Court allowed an appeal by a fire victim. While the court noted the failure of the appellant to preserve original stock registers and bills in the business premises caused credibility doubt, it increased the stock damage award by adopting the respondents’ independent surveyor report over the appellant's valuation.

What did the court decide?

Appeal allowed in part; decree enhanced to Rs. 1,20,000 for stock loss plus Rs. 35,000 for furniture.

K.Purushothaman Vs National Insurance Co… — Contract and Commercial Disputes | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939

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AS.No. 493 of 2001 (C)

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AGAINST THE JUDGMENT IN OS.NO.604/1992 OF THE COURT OF THE 1^st ADDITIONAL SUBORDINATE JUDGE, KOZHIKODE DATED 19-12-1994.

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APPELLANT: PLAINTIFF:

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K.PURUSHOTHAMAN, S/O.KRISHNAN, AGED 37 YEARS, RESIDING AT THEKKEKANDIYIL HOUSE, KARASSERI DESOM AND KAKKAD AMSOM, KOZHIKODE.

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BY ADV. SRI.K.A.SALIL NARAYANAN

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RESPONDENTS: DEFENDANTS:

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NATIONAL INSURANCE COMPANY LIMITED, REGISTERED OFFICE, 3, MIDDLETON STREET, CALCUTTA.

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NATIONAL INSURANCE COMPANY LIMITED, P.B.NO.529, BRANCH OFFICE, JAIL ROAD, CALICUT.

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R1 BY ADV. SRI.RAJAN P.KALIYATH

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23.5.2017, THE COURT ON 16-06-2017 DELIVERED THE FOLLOWING:

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V. Chitambaresh & P. Somarajan, JJ.

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---------------------------------------------------A.S. No.493 of 2001 (C)

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---------------------------------------------------Dated this the 16^th day of June, 2017

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JUDGMENT

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Somarajan, J.

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Challenging the judgment in O.S.No.604 of 1992 dated 19.12.1994, on the files of the Sub Court, Kozhikode, the plaintiff came up with this appeal. The suit was filed against the insurance company, defendants 1 and 2, claiming damages caused to the plaintiff on account of an unexpected fire in the early hours on 27.12.1990, in the textile shop run by him. The articles kept in the textile shop and the furnitures, stock in trade, fittings, glass sheet, etc. were destroyed completely. It is also alleged that the plaintiff had taken reasonable care and caution to ensure safety and that the incident was happened due to short circuit. He had sustained damages, which was assessed by the Surveyor at ₹3,83,000/- and hence, entitled to the same with interest at 18%. The demand for the said amount was not served the purpose and hence the suit. The defendants admitted the policy but disputed the amount claimed. The Sub Court, Kozhikode decreed the suit in part, allowing recovery of an amount of ₹1,35,000/- with interest at 6% per

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A.S. No.493 of 2001 (C)

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:: 2 ::

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annum, as against the claim of ₹3,83,000/-. Aggrieved by the said judgment and decree, in so far as it is against him, he came up with this first appeal.

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According to the plaintiff/appellant, the entire materials stocked in the textile shop along with furnitures, fittings, glass sheets etc. were completely destroyed by fire. The plaintiff/appellant mainly relied on Ext.A5 stock register and Ext.A6 valuation report. Exts.A7 to A85 are various receipts of purchase of textile items by the plaintiff from different places. Normally, the stock register and the bills relating to purchase of articles, textile goods, etc. would be kept in the business premises itself. There is no occasion for keeping the stock register and the bills of purchase in a different place or in the house of the owner of the shop room. It is not properly explained by the plaintiff why he had kept the stock register and Exts.A7 to A85 purchase receipts in his house instead of keeping the same in the business premises. It is true that if the same were kept in the business premises, it would be destroyed by fire. Exts.A7 to A85 are not duplicate bills, but are the original bills. In the case of absence of original bills or destruction of original bills and stock

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A.S. No.493 of 2001 (C)

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register thereof, it could be possible for the plaintiff/appellant to collect duplicate bills relating to purchase of various textile items to the shop room. No satisfactory evidence, much less any evidence, was adduced by the plaintiff to prove under what circumstance he had kept the stock register and bills of purchase in some other place other than the business premises itself. It would cause considerable doubt as to its genuineness, viz., the stock register and the bills of purchase, Exts.A7 to A85. Further, Ext.A5 stock register is a self-serving document. No reliance can be placed on it as it was prepared by the owner (plaintiff/appellant) himself. The report prepared by the Surveyor, exhibited as A6, based on the above said documents, cannot be accepted.

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5. Considering damage to the items kept in the business

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premises due to fire, some sort of guess work is possible so as to assess the damages, in the absence of satisfactory evidence. The lower court has granted an amount of ₹1,00,000/- as value of stock and ₹35,000/- as loss for the furniture, fittings and fixtures in the shop room. No cross appeal is seen filed as against the computation of the above said amount and the decree passed

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A.S. No.493 of 2001 (C)

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:: 4 ::

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against the defendants. As the loss of stock kept in the shop room, an amount of ₹1,20,000/- was fixed by the Surveyor, who prepared Ext.B4 survey report, which is produced and marked on the side of the defendants as part of their evidence. So, it can be acted upon and, as such, instead of granting ₹1,00,000/- on account of loss of stock, it is fit and proper to grant an amount of ₹1,20,000/- and we do so.

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In the result, the appeal is allowed in part, granting a decree of ₹1,20,000/- + ₹35,000/-, totaling an amount of ₹1,55,000/-, with interest at the rate of 6% per annum from the date of decree till its realization from the defendants/respondents.

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Forward a copy of this decree to the District Collector for realization of the court fee from the plaintiff/appellant.

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V. Chitambaresh

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Judge

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P. Somarajan Judge

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ahz/

K.Purushothaman v. National Insurance Co. Ltd., Calcutta

Case brief

What is this about?

What did the court decide?

K.Purushothaman v. National Insurance Co. Ltd., Calcutta

Case brief

What is this about?

What did the court decide?

What the court decided

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