IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 467 of 2007()
1. SHOUKATHALI, S/O.HAMSA
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.DEVIDAS.U.K
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/01/2007
O R D E R
V. RAMKUMAR, J.
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Bail Application No. 467 of 2007
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DATED: 22nd January, 2007
O R D E
R
Petitioner who is the accused in Crime No.441/2005 of
Perinthalmanna Police Station for offences punishable under Secs. 353,
323 and 506(1) I.P.C., seeks anticipatory bail.
2. Consequent on the non-appearance of the petitioner before
the J.F.C.M.- II, Perinthalmanna in C.C. 473/05 on 19-09-2006 and the
rejection of the application filed on his behalf to excuse his absence,
the learned magistrate issued non-bailable warrants of arrest against the
the accused and the same is pending. Anticipatory bail cannot be
issued to nullify the process issued by a court of competent jurisdiction.
There is no reason why the petitioner should not surrender before the
Magistrate concerned and seek regular bail. Accordingly, if the petitioner
surrenders before the Magistrate concerned and files an application for
regular bail on 25-01-2007 the Magistrate shall enlarge the petitioner on
fresh bail on appropriate conditions.
With the above observation this application is disposed of.
V.RAMKUMAR, JUDGE.
ani
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+AS No. 427 of 1994(B)
#1. K.J.JOSEPH
... Petitioner
Vs
$1. NEW INDIA ASSURANCE CO.LTD.
... Respondent
! For Petitioner :SRI.K.AGADEESACHANDRAN NAIR
^ For Respondent :SRI.K.P.SREEKUMAR,S.GOPINATH,MANU JOSEPH
*Coram
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
% Dated :02/01/2007
: O R D E R
THOTTATHIL B. RADHAKRISHNAN, J
————————————————
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
————————————————-
Dated this the 2nd day of January, 2007.
J U D G M E N T
This appeal is by the plaintiff in a suit for money.
2. The plaintiff, the proprietor of the Small Scale Industrial Unit
having a quick lime project, allegedly lost raw materials, finished
products and the entire industry, attributed to be the result of heavy
rain and storm and resulted collapsing of the factory. He had
availed a loan from the 2nd defendant bank for the purpose of that
industry. The banker had, on his behalf, obtained an insurance
coverage from the 1st defendant- insurer. But when the plaintiff
suffered the loss and looked up to the insurer, it turned out that the
policy availed by the bank, Fire ‘C’ policy, covers only the fire, but
not flood. However, if it were Fire ‘A’ policy it would have covered
fire and flood. The insurer refuted the claim, leading to the suit
from which the appeal arises.
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
2
3. Having regard to the nature of the contentions of the 1st
defendant insurer, the banker was impleaded as additional
defendant, at the instance of the plaintiff, as per order dated
29.05.92 in I.A.No.865/92. However, in its wisdom, the banker
chose to remain ex-parte in the proceedings before the court below.
The suit was ultimately dismissed holding that a Fire ‘C’ policy does
not cover flood and the plaintiff is not entitled to that relief as
against the insurer. However, the judgment appears to be eloquent
regarding negligence of the banker in the matter of availing the
appropriate policy. It was also noticed that if it had been a Fire ‘A’
policy, the plaintiff’s claim would have sustained, as stated in
paragraph 23 of the judgment which reads as follows:
“Of course, it cannot be disputed that in
case 2nd defendant insured the unit under A policy
by applying for issuance of the same to first
defendant, the plaintiff’s claim would have
sustained. Plaintiff who is also the co-insurer was
bound to enquire about the nature of the policy
taken by the mortgagee, the 2nd defendant, and to
enquire about the quantum of insurance and
scope of Insurance. At any rate the negligence of
additional 2nd defendant bank looms large in
having not applied for insuring the plaintiff’s SSI
unit under A policy. But this cannot fasten liability
on additional 2nd defendant especially when
plaintiff does not claim any relief against it.”
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
3
4. The learned counsel for the appellant urges that in terms of
the All India Fire Tariff, the insurer is obliged in law to issue a Fire ‘A’
policy when it insurers a small scale industry and that the said All
India Fire Tariff has been held to be a piece of subordinate
legislation by at least three different High Courts viz.Allahabad,
Jammu & Kashmir and Karnataka. However, the learned counsel for
the insurer urges that even going by the said All India Fire Tariff,
any obligation of the insurer to issue a Fire ‘A’policy would be only
in a case where a Fire ‘A’ policy and Fire ‘B’ policy is applied for and
such an instance would not emerge out of All India Fire Tariff in
cases where the application is only for Fire ‘C’ policy. However, the
impugned judgment does not reflect any consideration of the All
India Fire Tariff. This is in spite of the fact that the plaintiff had
applied before the court below to direct the insurer to produce the
All India Fire Tariff, which application was dismissed as belated. But
if that is a piece of subordinate legislation, it is not required to be
produced as an item of evidence. It needs to be referred only as a
part of the law of the land.
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
4
5. Along with the appeal, on appropriate legal advice, the
plaintiff filed C.M.P.No.2609 of 1994 seeking leave to amend the
plaint, thereby claiming relief against the banker-2nd defendant.
That application for amendment is pending for consideration along
with this appeal. However, I do not find any objections having been
filed to that petition. Having regard to the facts and circumstances
of the case, it is appropriate to give the plaintiff an opportunity to
amend the plaint to seek relief against the 2nd defendant also. This
is because if the 2nd defendant-banker had insisted on a policy being
taken, it needs to be decided as to whether the bank was obliged to
ensure that the appropriate policy was taken and if so whether it is
liable for any inaction or negligence on its part.
6. Though the court below has stated its views regarding the
negligence of additional 2nd defendant, I do not deem it appropriate
to sustain those findings, particularly when the 2nd defendant
remained ex-parte, may be due to the fact that no relief was
claimed against the 2nd defendant as such. Such findings are
vacated.
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
5
In the result:
(1) The impugned decree is set aside and the case remitted
for reconsideration to the trial court. L.C.Rs shall be
transmitted forthwith.
(2) C.M.P.No.2609 of 1994 is allowed.
(3) The parties will appear before the court below on the 6th
day of February,2007.
(4) The plaintiff will carry out the amendments as per C.M.P
No.2609 of 1994 on such day as may be permitted by the
trial court after receipt of the L.C.Rs.
(5) After the amendment of plaint is carried out, the
defendants will be granted opportunity to file further
pleadings.
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
6
(6) All parties will be entitled to place further pleadings and
adduce further evidence.
(7) The order of the stay of O.S.No.271/94 granted on
20.06.05 in that suit under Section 10 of the Code of Civil
Procedure will continue until final disposal of the suit,
following this remand order.
(8) Having regard to the peculiar circumstances of the case, it
is directed that the full amount of court fee paid on the
memorandum of appeal will be refunded to the appellant .
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
sj
A.S. No.427 Of 1994 &
C.M.P.No.2609 of 1994
7