Madras High Court
P.Lakshmanan vs The Executive Officer on 20 November, 2014
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.11.2014 CORAM THE HONOURABLE MR.JUSTICE P.DEVADASS S.A(MD)No.885 of 2009 P.Lakshmanan : Appellant Vs. 1.The Executive Officer, Arulmigu Ramalinga Sivagami Ambal Thirukoil, Panagudi, Radhapuram Taluk. 2.The Joint Commissioner, HR&CE, Thiruvandrum Road, Palayamkottai. 3.State of Tamil Nadu, Rep by the District Collector, Tirunelveli, Kokkirakulam, Tirunelveli 9. : Respondents PRAYER Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Decree and Judgment, dated 09.03.2006 made in A.S.No.60 of 2005, on the file of the First Additional District Court, Tirunelveli, reversing the Judgment and Decree, dated 07.04.2005, made in O.S.No.224 of 2002, on the file of the Second Additional Sub Court, Tirunelveli. !For Appellant : Mr.T.Selvakumaran ^For Respondent No.1 : Mr.Senthurpandian For Respondent Nos.2&3 : Mr.R.Karthikeyan Additional Government Pleader :JUDGMENT
************ This appeal presents unusual facts.
2. On 06.02.2001, in the Post Office Street, in Panagudi, in Radhapuram Taluk, in Tirunelveli District, while the Car of Arulmigu Ramalinga Sivagami Ambal Thirukoil(Ist defendant) was in procession, an unfortunate event took place. The Kumbum atop the Temple Car suddenly fell down. It fell on the plaintiff. He was seriously injured. He was taken to Thiravium Ortho Hospital. He was treated.
3. The plaintiff pleaded that there is a duty on the part of the defendant/temple authorities to upkeep properly the temple Car ensuring safety and security of others. Since they did not do so, allowed the Car to run in such a bad condition, it has resulted in causing injury to the plaintiff. There is utter failure to take proper precautionary measures by defendants. Plaintiff suffered mentally and physically. Thus, the defendants are liable to pay him damages. Plaintiff issued EX-A1 notice to them demanding damages. It was denied through Ex.A4 reply. In the circumstances, plaintiff laid the suit (O.S.No.224 of 2002) claiming Rs.2 lakhs as damages.
4. It was resisted by the defendants. The first defendant filed written statement. It was adopted by other defendants.
5. Defendants did not deny the occurrence and the injuries sustained by the plaintiff. They plead that the plaintiff himself volunteered. He cannot make a claim. They also pleaded that the defence of Act of God. It is also pleaded that in connection with the very incident, already plaintiff had received Rs.36,075/-.
6. The Trial Court framed the issues and tried the suit. Plaintiff examined himself as PW-1, one Arunachalam as P.W.2 and marked EX-A1 to EX-A6, while Veluchamy, the Temple Executive Officer deposed himself as DW-1 and EX- B1 has been marked.
7. Considering the rival submissions and appreciating the evidence on record, the Trial Court concluded that this incident was due to the carelessness and negligence of the defendants in not properly maintaining the temple Car. The Trial Court refused to believe EX-B1. Ultimately, decreed the suit in part for Rs.1,23,000/- with 6% future interest from the date of filing the suit till realisation.
8. Aggrieved, the defendants directed the Ist appeal in A.S.No.60 of 2005.
9. The Appellate Court/Ist Additional District Court, Tirunelveli viewed the entire matter from different perspective. It was of the view that the plaintiff not satisfactorily explained as to why he had gone there. Possibility of the Kumbum having fallen down on account of certain unexpected events, which is beyond the control of the first defendant cannot be ruled out. It had also differed with the finding of the Trial Court with regard to EX-B1. Ultimately, allowed the appeal and thus, dismissed the suit.
10. Now, the plaintiff is before us.
11. Already, while admitting the Second Appeal, substantial question of law was formulated by this Court. Now, it is re-formulated, as under:-
"Whether the First Appellate Court has rendered a perverse finding by misleading the evidence of PWs-1 and 2 and misconstrued the admission of DW-
1."
12. The learned counsel appearing for the appellant/plaintiff would submit that the unsavory incident has been spoken to by PW-1 and substantiated by PW-2. It is the categorical admission of DW-1, the Temple Executive Officer, that no certificate as to the fitness of the temple Car has been obtained.
13. The learned counsel for the appellant further submitted that at the time of occurrence, DW-1 was fifteen feet away from the scene place, thus he could not speak about the manner of the incident. The evidence on record pinpoints the carelessness and negligence on the part of the defendants, that has contributed to this incident. Even DW-1, in his cross-examination did not deny that the Car was very old.
14. The learned counsel for the appellant would submit that with regard to Ex.B1 not even a suggestion was posed to P.W.1 in his cross examination. Further a well reasoned Judgment of the Trial Court has been simply set at naught by the First Appellate Court disregarding and misreading the evidence adduced and the admissions obtained from DW-1 during his cross-examination.
15. The learned counsel for the Ist respondent would make two defences viz., volunti non fit injuria and vis major.
16. Elaborating the defences, the learned counsel for the first respondent would contend that the plaintiff himself had volunteered and followed the temple Car from on its rear side. He exposed himself voluntarily and unnecessarily and got involved in this incident. Such a volunteer cannot make a claim for damages.
17. Elaborating the defence of "Act of God", the learned counsel for the first respondent would submit that the evidence discloses that when the temple Car was in procession on the road, on the Post Office Road, sticks were placed on the road enabling the Temple Car to move smoothly and at that particular place, the road proceeds downwards. Under such a situation, suddenly, the Kumbum felled down. It was beyond the control of the temple authorities. The first respondent cannot prevent it. It is a clear case of 'Act of God'.
18. I have anxiously considered the rival submissions, perused the record of the case and the impugned Judgments and Decrees of the Courts below.
19. It is a suit for damages for a wrong caused to the plaintiff. It is an action based on the Law of Torts. The basic principle of law of torts is that no one should cause any harm to other. No one should suffer by the act of the other. Thus, a duty to take care towards his neighbour is impliedly imposed on every one by law. It is foundation of tortious liability. It is also a basis of law of negligence.
20. To make an actionable claim, plaintiff has to establish the incident and further it was due to the negligence, callousness of the defendants the injury, mental and physical has been suffered by him.
21. In an action based on a tortious act committed by a person, certain defences are recognized in law.
22. Actually, the whole body of law of torts is built by case-laws. Unless the area is occupied by statue law, such as Motor Vehicles Act, still the law is continued to be occupied by common law.
23. Some of the accepted defences in an action based on enforcing tortious liability are ?volunti non fit injuria,? and "Act of God".
24. There are certain undisputable aspects in this case. On 06.02.2001, the first defendant's Car was on procession on the Streets of Panagudi. The temple Car was decorated. Atop of the Car, there was a Kumbum. The temple Car was pulled by devotees and others. Those who in front of the temple Car placed sticks enabling the Car to have smooth run on the streets. Behind the Car, there was crowd. In the evening, when the temple Car came in the Post Office Street, the Kumbum fell down and rolled on the head of the plaintiff. He was grievously injured. He was treated at the Thiravium Hospital. The defendants admits this occurrence. They admits that the plaintiff had sustained injuries.
25. The defendants have taken two defences, namely, volunti non fit injuria and vis major.
26. As these defences are pleaded by the defendants, they have to be proved by the defendants.
27. Now, we will see the defence of volunti non fit injuria.
28. In an action for compensation, founded on tortious liability, the respondents pleads that the defendants voluntarily got himself jumped in to the fray and got injured.
29. The application of the principle of volunti non fit injuria is based on the facts and circumstances of each case. Here, the temple Car was on procession. The temple authorities would foresee that many people will follow it. They may be devotees. Some of them may be believers and some of them may be non-believers, who may also follow the temple Car under the pretext of devotees. Like a Corporation or a Municipality should maintain the road in good, safe and fit condition shall foresee that any path hole on the road will become a death route for road users, which will include intelligents, idiots, lunatics mischievous children, aged and infirm, the temple authorities should foresee that all kinds of people will follow the temple Car, it should run the temple Car in such good and safe condition without causing damage to the life and property of others.
30. The evidence of PW-2 is that he had seen PW-1, pulling the chain of the temple Car from its rear side. In such circumstances, the plaintiff cannot be construed as a busy body or a meddler or a poacher. He claimed that he was a devotee. Whether he is a believer or non-believer, it is clear that at that time he was behind the temple Car. He cannot be stated to be one who has volunteered. So, in the circumstances, the defence of volunti non fit injuria will not be available to the defendants.
31. Now, we will pass on to the defence of "Act of God", (vis major). It stands for the meaning that some happening which is beyond the control of the human beings. First defendants says that it is an 'Act' of God. It is mainly natural calamities such as earthquakes, torrential rains etc.
32. The temple says that when its Car was moving on the road, sticks were placed to enable the car to have smooth run and at the Post Office street, the road proceeds downwards and the temple Car was on the run fastly, that is how, suddenly, the Kumbum fell down and rolled on the head of the plaintiff.
33. Top of it all, DW-1 admitted that the temple Car was old. The oldness of the temple Car was a source for such incident. It is whose fault to run such an old temple Car. Naturally, it fell on the defendants. There is a duty cast on the defendants that the temple Car should be taken out from the temple in a fit condition. A temple Car, like such a big heavy weight should not be taken on the roads, in such a condition. Thus, on the part of the temple authorities, there is breach of duty to take care when the temple Car was moving on the road. It is pertinent to note that no natural calamities had taken place at that time. So, in the circumstances, the defendants cannot plead Act of God.
34. So ends the defences of the temple.
35. Now, it is established that there is breach of duty to take care on the part of the defendants. It may also be termed as negligence on their part. They are liable in law to the plaintiff.
36. Now, the question is quantification of damages. It should be commensurate with the actual and real sufferings of the injured. It is almost a restitution for his sufferings.
37. Rs.1,23,000/- has been awarded by the Trial Court under various heads. On perusing the oral and documentary evidence, we are of the view that the said quantum of compensation is reasonable. It is neither less nor more.
38. Under EX-B1, Rs.36,075/- is stated to have been paid to the plaintiff. He disputes the genuineness of Ex.B1, since there is no seal of the temple in EX-B1.
39. EX-B1 shows that immediately after the occurrence, on humanitarian grounds, the temple trustees and the general public collected Rs.8,000/- and it was paid to the plaintiff. It is also stated that subsequently, on the request of the plaintiff some more money was collected and he was paid Rs.27,475/-.
40. Now, in the trial Court, PW-1 disowned his signature in Ex.B1. But, he could not able to deny the signature of his father in Ex.B1. On the whole, with regard to Ex.B1, plaintiff is not telling the truth. It is clear that under EX-B1 Rs.36,075/- has been paid to the plaintiff in connection with his sufferings in the incident. Admittedly, the said amount is paid not out of the temple funds. It is purely out of donations. At the same time, plaintiff cannot be allowed to have double payments. Therefore, the said Rs.36,075/- necessarily have to be taken into account. In this regard, both the Trial Court as well as the First Appellate Court have fell into error. Thus, this Rs.36,075/- should be deducted from the quantum arrived at. Thus, it is Rs.1,23,000/- - Rs.36,075/- = Rs.86,925/-.
41. In view of the detailed deliberations, we answer the substantial question of law as against the defendants.
42. In the result, this Second Appeal succeeds. The decree and judgment of the First Appellate Court are set aside. The decree and judgment of the trial Court are restored and modified to the effect that the suit is decreed in part for Rs.86,925/- with 6% interest on judgment, viz., from the date of the Judgment of the Trial Court i.e., 07.04.2005 till realization with pro costs. The rest of the suit is dismissed, without costs. The Second Appeal is allowed on the above terms.
20.11.2014 Index :Yes/No Internet :Yes/No NB/RRG To
1.The Principal District Judge, Tirunelveli.
2.The First Additional District Court, Tirunelveli,
2.The Second Additional Sub Court, Tirunelveli.
P.DEVADASS, J.
NB/RRG JUDGMENT MADE IN S.A(MD)No.885 of 2009 DATED ? 20.11.2014