IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 RFA.No. 433 of 2010 ----------------------------- [OS.NO.359/2002 OF IST ADDITIONAL SUB COURT,ERNAKULAM] .................... APPELLANTS/PLAINTIFFS: --------------------------------------- 1. JOSEPH, AGED 60, S/O.HILLARI, FISHERMAN, RESIDING AT KADAKATHIYYATH HOUSE, ASHTAMUDI P.O., KOLLAM. 2. STELLA, AGED 55, W/O.JOSEPH, RESIDING AT KADAKATHIYYATH HOUSE, ASHTAMUDI P.O., KOLLAM. BY ADV. SRI.K.G.SARATHKUMAR. RESPONDENTS/DEFENDANTS: --------------------------------------------- 1. AJITH KUMAR, S/O.BHASKARAN, PULIKKAL VEEDU, VYPIN. 2. M/S.SOUTH INDIAN CORPORATION, WELLINGTON ISLAND, KOCHI-31. 3. ORIENTAL INSURANCE COMPANY, MATTANCHERRY, KOCHI-2. R2 BY ADV. SRI.S.SREEKUMAR, R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ``````````````````````````````````````````````````````` R.F.A. No. 433 of 2010 ``````````````````````````````````````````````````````` Dated this the 25th day of March, 2011 J U D G M E N T Thottathil B.Radhakrishnan, J. The plaintiffs in a suit for damages are the appellants. They sued the defendants on the allegation that, while their son Jose was fishing in the back waters of Cochin on a canoe, a barge owned by the second defendant, driven by the first defendant, hit against that canoe, resulting in the death of Jose. The incident was essentially admitted by the first defendant in his written statement. He said that it was an accident and it was unavoidable. He wanted to be excused of any liability by pleading that the second defendant employer is liable and the third defendant insurer is bound to pay any amount that may be granted as compensation. 2. The court below had recorded the written statement RFA.433/2010 : 2 : of the second defendant, which contained a plea that the area where the accident occurred is part of a busy channel through which boats and barges move and that is an area which is prohibited to be put to use by using canoes. 3. The incident and death, as held by the court below, were not disputed. The suit was found to be maintainable. However, under issue No.3, the court below held that, the second defendant, the owner of the barge, having specifically set up a defence that the area in which the incident took place is a prohibited area for fishing and it is a Navigation area permitted only for barges and boats and canoe or country boats are not permitted to enter that area and further that the said area is not a fishing area, the burden of proof is on the plaintiffs to establish that there was no prohibition and that the said area was a fishing area where ordinary fishermen like deceased Jose could carry out fishing operations. The learned Judge appeared to take the view that in the line of the RFA.433/2010 : 3 : defence set up by the second defendant, the burden of proof in this regard is on the plaintiffs. In our considered view, it is totally misplaced. The second defendant having set up a plea that there is a specific zone in the back waters of Cochin, where movement of canoes and country boats are prohibited, it is a plea to be substantiated by the second defendant by proving the affirmative. The court below was not justified in calling upon the plaintiffs to prove the negative. With this, we have necessarily to reverse the finding under issue No.3 and look into the evidence on record. 4. There is no material shown by the second defendant to the effect that the area where the incident occurred is one where Jose was prohibited to go. If only the second defendant had shown that it was a prohibited area, would the question arise as to whether any such act saved the defendants from liability to the legal representatives of Jose for any claim for damages or compensation on account RFA.433/2010 : 4 : of his death. Even if it be only incidental, the question of any negligence by deceased Jose would arise for consideration, if at all, only after the second defendant had shown that the area in question was a regulated zone excluding the operation of canoes and country boats. The evidence available on record, by preponderance of probabilities, categorically proved that the plaintiffs have established the incident and the loss suffered by them and they are entitled to damages as sought for. 5. We have also looked into the question of quantum of compensation and the claim made is reasonable. Jose derived `6,000/- per month. The statement of the parents that he would have contributed `4,000/- per month, out of `6,000/-, appears to be reasonable. Being a young man of 22 years at the time of death, we have also to think the chance of his getting married and the support that he would extend to the parents, getting depleted to some extent. RFA.433/2010 : 5 : However, the plaintiffs have limited their claim at `3 lakhs and, therefore, we also find that taking into consideration the age of the parents, ie., 57 and 52 years respectively, at the time of death of Jose, the expectancy and dependency would be at the rate of `2,500/- per month for ten years. The compensation would thus come above `3 lakhs and that can be granted as compensation. 6. Now, on to the question of liability of the 3rd respondent insurer. Ext.B1 is the insurance policy. There is no dispute that clause 9.1 provides that the insurer has to indemnify the assured for any sum or sums paid by the assured to any other person or persons by reason of the assured becoming legally liable, as owner of the vessel, for any claim, demand, damages and/or expenses, where such liability is in consequence of any of the matters or things stated therein and arising from an accident or occurrence during the period of the insurance. With such a provision in RFA.433/2010 : 6 : the insurance policy, the decree has necessarily to be satisfied by the insurer. 7. In the result:- (i) This appeal is allowed in part. (ii) The suit is decreed allowing the plaintiffs to recover an amount of `3 lakhs as compensation with interest at the rate of 6% per annum from the date of suit till date of recovery jointly and severally from defendants with proportionate costs here and in the court below. (iii) The third defendant (third respondent insurer) is directed to satisfy the decree within a period of two months. (iv) The plaintiffs had sued as indigents before the court below and also before this Court. Hence, under Order 33 Rule 10 C.P.C., it is ordered that the court fees which would have been paid by the plaintiffs if they had not been permitted to sue as indigent persons in the court below and in this appeal, shall be recoverable by the State Government RFA.433/2010 : 7 : from the third defendant, if such amount is not paid by the third defendant (third respondent herein). Communicate copy to the appropriate District Collector. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (S.S.SATHEESACHANDRAN, JUDGE) aks // True Copy // P.A. To Judge