The court emphasized the insurer's potential liability due to timely policy renewal before damage, allowing amendment for claims against the insurer.

JUDGMENT

Dated : 23^rd July, 2025 The 1^st defendant in O.S.349/2008 on the file of the 1^st Additional Sub Court, Kozhikode, is the appellant. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)

2. The plaintiff filed this suit for damages. The plaintiff is the proprietor of M/s.C.V. Flour and Oil Mills. He had availed an open cash credit facility from the 1^st defendant/bank against hypothecation of stock of copra, coconut oil and coconuts stored at his business premises. Originally the cash credit facility was for Rs.7,75,000/- and later on it was enhanced to Rs.15,00,000/-. The hypothecated goods were insured with the 2^nd defendant, the New India Assurance Co.Ltd. According to the plaintiff, on behalf of the plaintiff, it was the 1^st defendant/bank who had taken insurance policy from the 2^nd defendant and they continued to renew the same after deducting the premium from his account. As per the plaint averments, on 19.7.2007 flood water entered his premises and caused mischief to the hypothecated goods. However, his claim petition was rejected by the 2^nd defendant on the ground that at the time of the flood, there was no valid insurance policy. Therefore, he filed the suit for damages from the 1^st defendant. In the above circumstances, the trial court found that the 1^st defendant was negligent in renewing the policy in time and hence, passed the impugned judgment and decree permitting the plaintiff to realise a sum of Rs.9,72,198/- with future interest at the rate of 12% per annum from the 1^st defendant.

Being aggrieved by the above judgment and decree of the trial court, the 1^st defendant preferred this appeal.

3. Now the point that arise for consideration is the following :-

Whether the impugned judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal ?

4. Heard Sri.George Cherian, the learned Senior counsel for the appellant/bank and Sri.K.V.Sohan, the learned counsel for the 1^st respondent/plaintiff and Sri.Lal K.Joseph, the learned Standing counsel for the 2^nd respondent/insurer.

5. From the evidence it is revealed that, after a gap, the 1^st defendant renewed the insurance for the hypothecated goods on 18.7.2007. As per the plaint averments, the flood entered the premises of the plaintiff and caused damage to the hypothecated goods on 19.7.2007. Therefore, prima facie there was valid insurance policy as on the date of the mischief on 19.7.2007. However, in the plaint, no relief was sought against the 2^nd defendant. At the time of argument, when it is revealed that on the date of damage to the hypothecated goods there was valid policy, while there was no prayer against the 2^nd defendant/insurer, the plaintiff filed I.A.2/2025 to amend the plaint seeking relief either from the 1^st defendant or from the 2^nd defendant. The application was strongly opposed by the learned counsel for the 2^nd respondent/insurer on the ground that the claim against the insurer is barred by limitation, as damage to the hypothecated goods occurred on 19.7.2007 while the amendment application was filed only on 22.6.2025.

6. The learned counsel on both sides relied upon the decisionsCanara Bank v. Leatherrold Plastics Pvt.Ltd , MANU/SC/0446/2020, Sarasamma v. Valli Amma Rudrayani Amma (Died), 2024 KLT OnLine 3004 andMallavva v. Kalsammanavara Kalamma , 2024 KLT OnLine 3051 (SC) regarding limitation of the claim against the 2^nd defendant. The decision of this Court inPuthenkulangara Devaswom v. C.P.Raghava Pisharadi , 2025 KHC OnLine 624 can also be considered in this conte