Kerala High Court
Cherussola Ayissa vs Amina on 4 April, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934
RSA.No. 1480 of 2012 (A)
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AGAINST THE JUDGMENT AND DECREE IN AS.97/2004 OF ADDITIONAL DISTRICT COURT
(ADHOC-III), MANJERI DATED 04-04-2012
AGAINST THE JUDGMENT AND DECREE IN OS.11/2001 OF MUNSIFF MAGISTRATE
COURT, PERINTHALMANNA DATED 31-03-2004
APPELLANT(S)/APPELLANTS & R7 TO 12/DEFENDANTS 1, 2 & 4 TO 9 :
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1. CHERUSSOLA AYISSA, AGED 61 YEARS
W/O.KUNJU MUHAMMAD @ NANI, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
2. ABUBAKKAR, AGED 35 YEARS
S/O.MUHAMMAD @ BAPPU, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
3. ABDUL AZEEZ, AGED 49 YEARS
S/O.MUHAMMAD @ BAPPU, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
4. HYRUNNISA, AGED 50 YEARS
W/O.ABDUL AZEEZ, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
5. SULAIKA, AGED 61 YEARS
W/O.LATE ALAVIKUTTY, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
6. SHAMEER, AGED 41 YEARS
S/O.ALAVIKUTTY, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
7. MUNEER, AGED 38 YEARS
S/O.ALAVIKUTTY, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
8. SUNEER, AGED 36 YEARS
S/O.ALAVIKUTTY, CHERUSSOLA HOUSE, KADUKOORU
MALAPPURAM.
BY ADVS.SRI.V.T.RAGHUNATH
SMT.C.V.RAJALAKSHMI
SRI.P.M.MOHAMMED SHAREEF
RSA.No. 1480 of 2012 (A)
RESPONDENT(S)/RESPONDENTS 1 TO 6/PLAINTIFFS 1 T0 6:
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1. AMINA, AGED 61 YEARS
D/O.ALAVI, KAPRAKADAN HOUSE, KOOTTILANGADI
MALAPPURAM, PIN-676 506.
2. KHADIJA,, AGED 58 YEARS
D/O.ALAVI, KAPRAKADAN HOUSE, KOOTTILANGADI
MALAPPURAM, PIN-676 506.
3. SAMEENA(MINOR), AGED 16 YEARS
D/O.MOIDEENKUTTY, MUNDODAN HOUSE, KOOTTILANGADI
MALAPPURAM-676 506.
4. SAMEERA(MINOR), AGED 14 YEARS
D/O.MOIDEENKUTTY, MUNDODAN HOUSE, KOOTTILANGADI
MALAPPURAM-676 506.
5. MOHAMMED MUHASIN(MINOR), AGED 13 YEARS
S/O MOIDEENKUTTY, MUNDODAN HOUSE, KOOTTILANGADI
MALAPPURAM-676 506.
6. MOIDHEEN KUTTY, AGED 48 YEARS
S/O.KUNJU MUHAMMAD, MUNDODAN HOUSE, KOOTTILANGADI
MALAPPURAM-676 506.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Shg/
THOMAS P. JOSEPH, J.
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R.S.A. No. 1480 of 2012
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Dated this the 14th day of February, 2013
JUDGMENT
This second appeal arises from the judgment and decree of learned Additional District Judge (Adhoc III), Manjeri in A.S. No.97 of 2004 confirming the decree for damages granted by the learned Munsiff-Magistrate, Perinthalmanna in O.S. No.11 of 2001.
2. Respondents 1 to 6/plaintiffs claimed that five coconut trees were standing in the property of appellants and other defendants in a dangerous condition leaning to their property likely to fall down and cause damage to their property. While so, one of those coconut trees fell on the residential building of respondents 1 to 6 on 08.08.1999 causing damage to the building and injury to respondents 3 to 5. Respondents 1 to 6 claimed damages from the appellants and other defendants.
3. Appellants 1 & 2 and the 3rd defendant contended R.S.A. No. 1480 of 2012 -2- that there was no negligence on their part. They denied that the tree in question was leaning towards property of respondents 1 to 6 and that there was any sort of negligence on their part. They also denied the alleged incident on 08.08.1999. A further contention raised is that falling of coconut tree, if any is due to act of God. They denied that any of respondents 3 to 5 suffered injury. Liability to pay compensation was disputed. A further contention was that the suit is barred by limitation.
4. Trial court found that Article 72 of the Limitation Act (for short "the Act") relied on by the appellants and other defendants has no application since compensation was claimed not for doing or omitting to do any act in pursuance of any enactment in force and hence Article 113 of the Act providing three year period for filing of the suit from the date of the incident should apply. Relying on the evidence of PW1 and other attending circumstances trial court found that the coconut tree in question was standing in a dangerous condition, it fell on the residential building R.S.A. No. 1480 of 2012 -3- of respondents 1 to 6, caused damage to the building and injury to the respondents 3 to 5. Compensation payable to the respondents 1 to 6 was assessed at Rs.17,660/-. That judgment and decree were confirmed by the first appellate court. Hence this second appeal raising certain substantial questions of law.
5. Learned counsel for the appellants has contended that there was absolutely no material before court to hold either that the tree in question was standing in a dangerous position leaning towards property of respondents 1 to 6 or that the said tree had fallen on the building of respondents 1 to 6. It is contented that evidence of PW1 alone in that regard ought not have been accepted since the incident could and ought to have been proved either by documentary or by circumstantial evidence. Learned counsel contends that since the complaint preferred by respondents 1 to 6 to the police (and forwarded to the Sub Divisional Magistrate (for short, "the SDM") based on which police conducted an enquiry and forwarded a report were all much after the R.S.A. No. 1480 of 2012 -4- alleged incident on 08.08.1999 are of no relevance so far as the alleged incident on 8.8.1999 is concerned. It is contended that finding of the courts below is simply based on an assumption that as reported by the police to the SDM four coconut trees in the property of petitioners were leaning towards property of respondents 1 to 6. That alone is not sufficient to draw any inference that the disputed coconut tree was either standing in a dangerous condition or on account of that, had fallen into the property of respondents 1 to 6. It is also contended that since the incident occurred during monsoon, possibility of the tree falling on account of unfavourable climate thereby attracting the rule of act of God cannot be ruled out.
6. Yet another argument learned counsel advanced is that though a plea of vis major was raised, no issue was framed on that, not to say that the question was discussed by the courts below. It is also contended that though it has come in evidence that the District Collector had awarded some amount as compensation to the respondents 1 to 6, R.S.A. No. 1480 of 2012 -5- they did not produce relevant documents showing the amount of compensation they received. Thus, material documents are suppressed by respondents 1 to 6 and hence compensation could not have been ordered to respondents 1 to 6. According to the learned counsel, production of those documents was necessary to decide at least sufficiency of compensation awarded to the respondents 1 to 6.
7. So far as the incident and evidence regarding that are concerned, I must notice that this court while sitting in second appeal could entertain that challenge only if the finding is perverse or it is without any evidence, as there is a concurrent finding on the factual issue. It is the case of respondents 1 to 6 that five coconut trees in the property of petitioners and others were leaning towards property of respondents 1 to 6, standing in a dangerous condition likely to fall down and endanger human life and that on 08.08.1999 one of those coconut trees did actually fall down. PW1 who is one of the plaintiffs in the case has given R.S.A. No. 1480 of 2012 -6- evidence regarding the incident. The question is whether that evidence of PW1 could have been accepted by the courts below?
8. In considering that question, the attending circumstances also should be looked into. Though subsequent to the alleged incident on 08.08.1999, respondents 1 to 6 preferred a complaint to the local police (forwarded to the SDM) about four coconut trees in the property of appellants and others leaning to their property and standing in a dangerous condition. Ext.B1 is the copy of that complaint. Pursuant to the direction given by the SDM, the Sub Inspector gave Ext.A3, report. In Ext.A3 there is reference to four coconut trees in the property of appellants and others standing in a dangerous condition and leaning towards the property of respondents 1 to 6.
9. That, respondents 3 to 5 sustained injuries on the relevant day is proved by the evidence of PW3 and Exts.A8 & A9. Thus, circumstances proved in the case corroborated version of PW1 regarding the incident. That evidence was R.S.A. No. 1480 of 2012 -7- found acceptable by the trial court and that was confirmed by the first appellate court. In that view of the matter, I am inclined to think that no substantial question of law is involved regarding acceptance of evidence of PW1 as to the incident on 08.08.1999.
10. So far as the plea of act of God non-framing of issue and non-consideration of that question are concerned, it is seen from paragraph 8 of judgment of the trial court that (even if no separate issue was framed) trial court has considered the plea of act of God and found that since negligence on the part of appellants and other defendants is proved, plea of act of God cannot be sustained.
11. When can a plea of act of God can be raised was considered by the Full Bench of this court in General Traders Ltd. v. Pierce Leslie (India) Ltd [1986 KLT 1192 (F.B.)]. If the incident was within reasonable foresight of the party concerned, it cannot be said that the incident is due to act of God. Here, evidence on record revealed that coconut tree in question was leaning towards R.S.A. No. 1480 of 2012 -8- property of respondents 1 to 6, standing in a dangerous condition. Being the owner of property and the coconut tree concerned, appellants and others should have been aware of that and reasonably anticipated possibility of the tree falling down even in unfavourable climatic conditions. If petitioners did not foresee that possibility, it is negligence and lack of care on their part. It is not the result of act of God. Therefore, on that question also no substantial question of law is involved.
12. The next contention is that certain amount was paid by the District Collector and documents regarding that were suppressed by the respondents. It is not clear in what way the amount was disbursed by the District Collector, whether it was by compensation or it was ex-gratia payment. If it is ex gratia payment, appellants have no reason to complain. If a plea is raised by the appellants based on payment allegedly made by the District Collector, I am inclined to think that burden of proving that plea was on the appellants and other defendants. I am not inclined to R.S.A. No. 1480 of 2012 -9- think that respondents 1 to 6 were obliged to disprove the contention if raised by the appellants. At no point of time appellants or other defendants wanted the relevant documents to be summoned to substantiate their contention. Therefore the contention that respondents 1 to 6 have suppressed material facts in that regard also cannot be sustained.
13. A contention appellants and other defendants raised in the trial court was that the suit is barred by limitation. Trial court, in my view rightly held that Article 72 of the Act relied on by the appellants and other defendants has no application since claim for compensation is not on account of any act or omission which appellants and other defendants were required to do pursuant to any enactment in force. On the other hand, claim is based on negligence of appellants and other defendants, i.e. tortious liability for which Article 72 of the Act has no application.
14. So far as compensation awarded by the trial court is concerned, it is based on the materials on record. It is R.S.A. No. 1480 of 2012 -10- seen from the evidence of PW2 and Exts.A4 to A7 that respondents 1 to 6 had to incur expenses for repair of the damaged building. I referred to Exts.A8 and A9 showing injuries suffered by respondents 3 to 5 and treatment given to them. Considering these aspects, trial court has fixed compensation payable at Rs.17,660/- and that was confirmed by the first appellate court. Even the first appellate court need interfere with the quantum of compensation/damages only when it is either meagre or is exorbitant. I must bear in mind that assessment of general damages involves some arbitrariness as general damages cannot always be fixed with arithematical precision. Having regard to the facts and circumstances of the case, I am not inclined to think that compensation/damages awarded by the trial court and confirmed by the first appellate court is exorbitant so that it involves any substantial question of law requiring this court to interfere in the matter.
15. On hearing the learned counsel and going through the judgments under challenge, I am satisfied that there is R.S.A. No. 1480 of 2012 -11- no question of law is involved in this second appeal.
Second appeal is dismissed in limine.
Sd/-
THOMAS P. JOSEPH JUDGE //True copy// P.A. TO JUDGE shg/