Kerala High Court
Principal Sub Court vs Representatives Of Deceased 1St
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939
RSA.No. 1189 of 2017 (G)
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AGAINST THE JUDGMENT & DECREE DATED 31-07-2017 IN AS 20/2013 of
ADDITIONAL DISTRICT COURT, IRINJALAKUDA
AGAINST THE JUDGMENT & DECREE DATED 12-11-2012 IN OS 55/2011 of
PRINCIPAL SUB COURT,IRINJALAKUDA
APPELLANTS/RESPONDENTS 2 AND 3/DEFENDANTS 2 AND 3 AND LEGAL
REPRESENTATIVES OF DECEASED 1ST DEFENDANT:-:
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1. SUDHEER,
S/O SIDHARTHAN,MUKKULAM HOUSE,MADATHIKKARA DESOM,
PULLUR VILLAGE,MUKUNDAPURAM TALUK,IRINJALAKUDA.
2. BAIJU,
S/O.PRAKASAN,MUKKULAM HOUSE,MADATHIKKARA DESOM,
PULLUR VILLAGE,MUKUNDAPURAM TALUK,IRINJALAKUDA.
3. LEELA,
W/O.SIDHARTHAN,MUKKULAM HOUSE,MADATHIKKARA DESOM,
PULLUR VILLAGE,MUKUNDAPURAM TALUK,IRINJALAKUDA.
4. SHEEJA,
W/O.CHANDRAN,KOCHERY HOUSE,KADUPPASSERY.P.O,
MUKUNDAPURAM TALUK,IRINJALAKUDA.
BY ADVS. SRI.K.S.BHARATHAN
SMT.S.ANUSHA
RESPONDENTS/APPELLANTS/PLAINTIFFS AND LEGAL REPRESENTATIVE OF
DECEASED 1ST DEFENDANT:-:
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1. INDIRA SUDEVAN,
AGED 55 YEARS,W/O ELANTHOLY SUDEVAN,
PULLUR VILLAGE AND DESOM,
MUKUNDAPURAM TALUK,IRINJALAKUDA,PIN-680121.
2. SUDEVAN,
AGED 64 YEARS,S/O.ELANTHOLY VELAYUDHAN,
PULLUR VILLAGE AND DESOM,
MUKUNDAPURAM TALUK,IRINJALAKUDA,PIN-680121.
RSA.No. 1189 of 2017 (G) 2
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3. SHAJI,
AGED 40 YEARS,S/O.SIDHARTHAN,MUKKULAM HOUSE,
MADATHIKKARA DESOM,PULLUR VILLAGE,
MUKUNDAPURAM TALUK,IRINJALAKUDA,
PIN-680121.
R1,R2 BY ADV. SRI.P.K.SAJEEV
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A. HARIPRASAD, J.
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R.S.A.No.1189 of 2017
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Dated this the 14th day of December, 2017
JUDGMENT
Heard the learned counsel for the appellants and respondents.
2. Appellants are aggrieved by the judgment and decree passed by the Additional District Judge, Irinjalakkuada in A.S.No.20 of 2013, whereby a suit filed by the respondents for damages was decreed, reversing the judgment and decree passed by the trial court.
3. Case in the plaint shortly stated is as follows:
Plaintiffs are husband and wife. Their property is surrounded by well demarcated boundary walls on all sides. A concrete post on the north-western corner of the said property was uprooted by the defendants and they tried to trespass into the property. Plaintiffs' contention is that they requested the defendants to contribute towards the consideration for the RSA No.1189/2017 2 property purchased for using as a pathway. The defendants declined to accept the offer and tried to trespass upon it. There was a criminal transaction on 26.11.2010 in the morning whereby the plaintiffs sustained injuries at the hands of the defendants. Irinjalakkuda Police registered a crime alleging offences punishable under Sections 447, 341, 294(b), 323, 324 and 326 read with Section 34 IPC against the defendants. On account of the personal injuries, the plaintiffs claimed a compensation of Rs.1,38,870/- with costs.
4. The defendants/appellants contested the suit by contending that not only the plaintiffs and defendants, nearby residents are also using the pathway for ingress and egress. The plaintiffs have no exclusive right over the pathway. According to the defendants, the plaintiffs were the aggressors and they caused injury to the defendants. Their liability to pay damages, is stoutly denied.
5. The trial court examined 6 witnesses on the side of the plaintiffs and 4 on the side of the defendants. Exts.A1 to A17 and B1 to B5 are the documents marked on either side.
6. The trial court dismissed the suit finding that there RSA No.1189/2017 3 was no material produced by the plaintiffs to hold that the defendants were the aggressors. On this reasoning, the claim for damages is disallowed.
7. The lower appellate court, after re-appreciation of evidence, reversed the finding of the trial court and granted a relief in favour of the respondents. In paragraph 14, the lower appellate court made the following observations:
The question whether who is the aggressor and who is the defendor is not germane for consideration in a suit for damages. The only question to be looked into is whether the defendants can show any lawful justification for the attack done on the plaintiffs. As already pointed out, from the evidence on record the only conclusion that is possible is that the defendants had attacked the plaintiffs and caused grievous injuries to them. Infact the defendants do not have a case that they had attacked the plaintiffs in exercise of their private defence. The case of the defendants is that the injury suffered by the plaintiffs were self-inflicted injury. The medical evidence do not prove that the injuries suffered by the plaintiffs are self-inflicted injuries. The defendants have not offered any lawful justification for causing injuries to the plaintiffs. In the absence of such lawful justification relying on the evidence of PW2, PW3 and PW5 it can only be held that RSA No.1189/2017 4 the defendants have intentionally caused injuries to the plaintiffs for which they are liable to pay compensation to them. This issue is found accordingly in favour of the appellants.
8. According to me, the approach made by the lower appellate court is legally correct and I find no reason to interfere with the reasoning that in a tortious liability the question as to who was the aggressor is of no significance. Concededly, this is a case wherein the parties have admitted that there was an incident in which the plaintiffs sustained injuries. It is the case of the appellants/defendants that they also sustained injuries in the incident. It is therefore clear that they cannot dispute their involvement in the incident. Who started the criminal transaction is irrelevant in a claim for compensation/damages in an action based on tort. It is well settled that a finding in this civil action will have no bearing on the criminal case pending between the parties. The evidence adduced by the witnesses and the documents properly proved on the side of the plaintiffs have been correctly relied on by the lower appellate court to find that the appellants are liable to pay compensation to the plaintiffs/respondents.
RSA No.1189/2017 5
I find no reason to interfere with the findings. There is no substantial question of law arising in this appeal and hence, it is dismissed.
Sd/-
A. HARIPRASAD
JV JUDGE