IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR.JUSTICE HARUN-UL-RASHID, TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA AS.No. 834 of 1998 & CROSS APPEAL ------------------------------ OS.456/1994 of SUB COURT, PALA .................... APPELLANTS/DEFENDANTS 1 TO 3 ------------------ 1. MANI, AGED 46 YEARS, S/O.MATHAI, MUPRAPALLIL, KODANADU KARA, VELLILAPPALLY VILLAGE. 2. SHINE, AGD 32 YEARS, S/O.MANI, OF -DO- -DO- 3. JOSE, AGED 52 YEARS, S/O.MATHAI, MUPRAPALLIL, RAMAPURAM KARA, RAMAPURAM VILLAGE. BY ADV. SRI.JOY GEORGE SMT.PRAICY JOSEPH RESPONDENTS/PLAINTIFF/DEFENDANTS 4 AND 5: -------------------- 1. JOSE, ALIAS KUNJU KUNJU, S/O. JOSEPH, AGED 46 YEARS, PALACKAL HOUSE, KONDADU KARA, VELLLILAPPALLY VILLAGE. 2 .ESTHAPPAN, AGED 44 YEARS, S/O.MATHAI, MUPRAPPALLIL, RAMAPURAM KARA, RAMAPURAM VILLAGE. 3. MATHAI, AGED 74 YEARS, S./O. CHUMMAR, MUPRAPPALLIL, -DO- -DO- R1 BY ADV. SRI JOHN VARGHESE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 19/01/2010 ALONG WITH CROSS APPEAL, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.834 OF 1998 & CROSS APPEAL -------------------------- DATED THIS THE 19TH DAY OF JANUARY, 2010 JUDGMENT A.S.No.834/98 When the appeal was called, neither the appellants nor their counsel are present. Name of the appellants called. Absent. Hence, the appeal stands dismissed for default. Cross Appeal. 2. This cross appeal was filed by the lst respondent/plaintiff challenging the quantum of compensation granted by the court below. The short facts of the case are as follows: The defendants at about 4 p.m. on 25/12/1990 attacked the plaintiff, his younger brother Joshi and their employee by name Baby with iron rods and wooden planks. Joshi succumbed to injuries on the way to the hospital. Plaintiff sustained serious -2- A.S.No.834/98 & Cross Appeal injuries leading to physical disability. Police registered a case against the defendants. Plaintiff was taken to Medical College Hospital, Kottayam on the very same day. He was admitted there and discharged on 21/1/91 after 26 days' treatment as an in- patient. According to the plaintiff, he continued treatment after discharging from the hospital. As a result of the injury the plaintiff lost his left eye. He is using artificial eye at present. According to him, there was four fractures on his body and he sustained nine serious injuries as a result of the incident. It is also averred that he is disabled from doing any work as a result of the criminal acts of the defendants. It is the plaintiff's case that the defendants are jointly and severally liable for the damages caused to the him. Plaintiff claimed damages under different heads. 3. The defendants in their written statement denied the averments in the plaint. It is averred that they have not assaulted the plaintiff and that the plaintiff is not entitled to realise any amount towards damages from them. On the side of the plaintiff -3- A.S.No.834/98 & Cross Appeal PWs. 1 to 3 were examined and Exts.A1 to A5 were marked. The defendants examined DW1. No documentary evidence was adduced. The trial court framed issues and examined the contentions of the respective parties. The trial court, after appreciating the oral and documentary evidence including Ext.A1 accident-cum-wound certificate, Ext.A2 copy of the patient ticket from the Medical College Hospital, Kottayam, Ext.A3 case sheet and Exts.A4 and A5 documents, concluded that the plaintiff has sustained serious injuries at about 4 p.m. on 25/12/1990. The trial court also considered the question as to whether the plaintiff has sustained injuries on the basis of the incident as alleged in the plaint. The trial court held that the evidence adduced brings to light that the defendant 1 to 3 have caused injuries on the body of the plaintiff. The court below also concluded that the evidence adduced by the plaintiff is not sufficient to prove the involvement of defendants 4 and 5. The trial court on evidence held that grevious injury -4- A.S.No.834/98 & Cross Appeal was inflicted by the lst defendant with wooden plank and as a result of this the plaintiff lost his left eye. 4. The further question considered by the court below is the quantum of damages. The cross appeal is filed challenging the quantum of damages awarded by the court below. According to the cross appellant, the compensation awarded by the court below under various heads is little, too inadequate and unfair. It is also argued that considering the gravity of pain and suffering for which the plaintiff had undergone treatment as an in-patient and the nature of injuries sustained by the plaintiff and for many other reasons alleged and proved, the plaintiff is entitled to realise the amount as claimed in the plaint. According to the learned counsel for the cross appellant, the plaint claim is very reasonable and not excessive and therefore, on the amount claimed in the plaint and interest should have been decreed by the court below. I have examined the heads under which the damage was assessed. This is a case where on the date of incident -5- A.S.No.834/98 & Cross Appeal plaintiff has sustained grevious injuries and as a result of the injuries inflicted he was hospitalised as in-patient for 26 days. It has also come out in evidence that plaintiff's brother succumbed to injuries on the way to hospital. Plaintiff was admitted in the Medical College Hospital on the date of incident and undergone a major surgery. He had suffered four fractures and other major injuries. As a result of the injuries inflicted on the plaintiff he became a disabled man. It is also submitted that the plaintiff is deprived of amenities of life being a permanently disabled man, that he was looking after the affairs of the family and due to his present physical condition, he is not in a position to look after the family affairs or to take care of his family. In this context, this Court is called upon to examine the quantum of damages awarded by the court below. 5. Plaintiff claimed a sum of Rs.10,000/- towards the expenses incurred by him for treatment. The court below only awarded a sum of Rs.3,000/-. It is a fact that he was under -6- A.S.No.834/98 & Cross Appeal treatment as an in-patient for 26 days and that he continued treatment after he was discharged from the hospital. He was treated in the Medical College Hospital, Kottayam. It has come out in evidence that the plaintiff has to conduct a scanning before surgery and that he had undergone a major surgery. The plaintiff also gave evidence stating that he had to purchase medicines from outside. During the pendency of the suit also for permanent disablement, the plaintiff was undergoing treatment spending money. As a result of the grevious injuries sustained by the plaintiff he lost his left eye and he has fitted with an artificial eye. Considering all these facts, I do not think that the claim of Rs.10,000/- is in any way unreasonable. So, the plaintiff is entitled to Rs.7,000/- towards additional compensation under this head. Towards transportation charges his claim of Rs.1,000/- was not accepted and only Rs.500/- was awarded by the court below. It is an undisputed fact that he was taken to the Medical College Hospital in a car. I think that Rs.1,000/- claimed is -7- A.S.No.834/98 & Cross Appeal reasonable and therefore, the claim of Rs.1,000/- should have been awarded. I hold that the plaintiff is entitled to Rs.500/- towards additional compensation for transportation charges. 6. The next head under which the plaintiff claimed compensation is by-stander expenses. The court below declined to grant any amount towards by-stander expenses stating that his wife and near relatives were the by-standers in the hospital. I do not think that simply because his wife and near relatives attended the patient in the hospital, the plaintiff is not entitled to any amount towards compensation under this head. Even if wife and near relatives attended the plaintiff in the hospital, the claim under the head 'by-standard expenses' cannot be said to be unreasonable. The plaintiff spent nearly a month in the hospital. Therefore, the plaintiff is entitled to Rs.1,500/- towards by standar expenses. 7. The next claim of the plaintiff is compensation for pain and suffering. The plaintiff was admitted in the hospital on -8- A.S.No.834/98 & Cross Appeal 25/12/1990 and was discharged on 21/1/91. He had undergone serious surgery. His left eye ball was removed. He is at present using an artificial eye ball. The inference to be taken in the circumstance is that the plaintiff suffered severe pain for the period of injury and during the period of treatment. The claim under this head was Rs.25,000/- and the court below awarded only Rs.5,000/- as compensation for pain and sufferings. Considering the serious injuries sustained by the plaintiff, the surgery he had undergone, removal of his left eye ball and other sufferings caused due to the infliction of other injuries, this Court is of the view that the plaintiff is entitled to Rs.15,000/- towards additional compensation under this head. 8. Under the disability head the claim was Rs.30,000/-. The plaintiff was aged 42 years at the time of incident. I have already stated about the injuries sustained by the plaintiff and the permanent disability caused to him as result of the incident. The court below awarded Rs.28,800/- towards compensation for -9- A.S.No.834/98 & Cross Appeal permanent disability. The amount was worked out taking the monthly income at Rs.600/-. Compensation was assessed applying capitalised method adopting the multiplier of 10. I think the amount claimed by the plaintiff under this head is too inadequate, considering his permanent disability. Though the plaintiff claimed Rs.30,000/- the court below awarded Rs.28,800/- as compensation under this head. In the circumstances, Rs.1,200/- more is granted to the plaintiff and the total compensation awarded under this head is Rs.30,000/-. 9. For loss of amenities of life and shortened expectation of life, the court below awarded Rs.4,000/-. I am of the view that the award of Rs.4,000/- under the head is inadequate. Considering the facts and circumstances discussed above, Rs.15,000/- should have been granted as against the claim of Rs.25,000/-. So, I fix a total sum of Rs.15,000/- towards loss of amenities of life and shortened expectation of life. Plaintiff is therefore entitled to Rs.11,000/- as additional amount. -10- A.S.No.834/98 & Cross Appeal In the result, the decree and judgment passed by the court below is modified. The plaintiff is allowed to realise a sum of Rs.36,200/- as additional compensation with interest at the same rate granted by the court below. The cross appeal is allowed in part with proportionate costs. HARUN-UL-RASHID, JUDGE. kcv. -11- A.S.No.834/98 & Cross Appeal HARUN-UL-RASHID,J. -------------------------- A.S.NO.834 OF 1998 & CROSS APPEAL. -------------------------- JUDGMENT 19TH JANUARY, 2010