IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 AS.No. 405 of 2002(C) --------------------- OS.110/1999 of SUB COURT,THODUPUZHA .................... APPELLANT: DEFENDANTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF PUBLIC WORKS, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, BUILDING AND ROADS DIVISION, PUBLIC WORKS DEPARTMENT, IDUKKI, PAINAVU. BY GOVERNMENT PLEADER SHRI R. LAKSHMINARAYANAN RESPONDENTS: PLAINTIFFS: ------------------------ 1. P.P.HASSAN RAWTHER, S/O. CHINNATHAMPI, AGED 67 YEARS, PUTHENVEETTIL HOUSE, KARIKODU VILLAGE. 2. THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA. 3. KARIKODU DEVASWOM, REPRESENTED BY ITS MANAGER, KARIKODU TEMPLE, KARIKODU, THODUPUZHA. 4. TRAVANCORE DEVASWOM BOARD, THRIKKARIYOOR GROUP, REPRESENTED BY THE ASSISTANT COMMISSIONER, THRIKKARIYOOR, KOTHAMANGALAM. R1 BY ADV. SHRI K.A. HASSIM & M.I. ISMAIL BY ADV. SRI.V.M.KURIAN & SRI.A.V.THOMAS FOR R2 SRI.U.K.RAMAKRISHNAN (SR.), SRI.P.V.LOHITHAKSHAN & SMT.P.VIJAYAMMA FOR R3.R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30.5./2008, THE COURT ON 9.6.2008 DELIVERED THE FOLLOWING: ORDER ON CMP NO.5057/02 IN AS 405/2002 DISMISSED. 9.6.2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - A.S. No.405 of 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2008. JUDGMENT Ramachandran Nair, J. This appeal is filed by defendants 1 and 2 in O.S. No.110/1999 of the Subordinate Judge's Court, Thodupuzha. The suit was filed by the plaintiff seeking for recovery of damages. The trial court decreed the suit allowing the plaintiff to realise the sum of Rs.2,46,000/- from the first and second defendants together with interest at 6% per annum from the date of the decree till realisation. The suit was dismissed against the other defendants. 2. The main dispute raised by the appellants in the appeal is regarding their liability to satisfy the decree. The short facts necessary for the disposal of the appeal are the following: 3. The plaintiff was residing in his own house situated on the side of Karikode-Anakayam P.W.D. Road. The Karikode Devi Temple is situated near Karikode junction about 30 meters towards east on the southern side of the road. There was a very old banyan tree standing in front of the above mentioned temple on the side of the road. On 18.7.1996 at 11.30 a.m. while the plaintiff was walking through the road in front of the temple, the AS 405/02 -2- above banyan tree fell down, entrapping the plaintiff beneath the foliages of the tree on the road. He sustained very serious injuries including fracture of right clavicle, communited fracture of right femur along with other wounds and injuries over his body. He had to undergo prolonged treatment and according to him, it resulted in permanent disability. 4. Defendant No.3 in the suit is Thodupuzha Municipality. Defendant No.4 is Karikode Devaswom and defendant No.5 is the Travancore Devaswom Board. All these parties were arrayed as defendants, since it was not clear on whose land the tree was standing. The appellants mainly contended that the tree was standing in the property of the Devaswom Board. Since the tree was treated as a holy tree, the authorities of the Devaswom Board and a set of people offered stiff resistance in cutting and removing of the tree, even though it was in a decayed condition. It was also stated in the written statement that the local people had requested for the removal of the tree, but when it was verified through Taluk Surveyor, it was revealed that the tree was standing in the property of the Devaswom. 5. Both parties adduced evidence in the case including oral and documentary evidence. P.Ws.1 to 3 were examined on the side of the plaintiff and Exts.A1 to A11 were marked on his side. Dws.1 and 2 were AS 405/02 -3- examined by the defendants. Apart from the same, Exts.X1 and X1(a) were also marked in evidence. 6. On an analysis of the evidence, the trial court found that the tree was standing in the property of P.W.D. and the Municipality or the Devaswom Board had nothing to do with the tree. Accordingly, it was held that the P.W.D. is liable for the plaint claim. 7. Learned Govt. Pleader contended that the finding rendered by the trial court as far as the liability of the appellants are concerned, is not correct. It is pointed out that as revealed from Ext.X1(a) file, the tree was removed by the Devaswom Board, which fact alone will make them liable to pay the amount. It is also pointed out that even though there were requests from the public to cut and remove the tree, the Devaswom was resisting it all throughout on the plea that the holy tree is being worshipped by the people visiting the temple. It is therefore pointed out that all these conjointly will prove that the tree was in the property owned by the Devaswom and the State and P.W.D. have no liability to satisfy the decree. 8. We heard learned counsel for the plaintiff Shri K. Jayakumar and Shri U.K. Ramakrishnan, learned Senior Standing Counsel appearing for the Devaswom Board. Learned Standing Counsel appearing for the Board pointed out that even though the tree was being worshipped by the people AS 405/02 -4- coming to the temple, it was standing outside the compound wall of the temple, on the side of the drainage constructed by P.W.D. in their land. It is submitted that there is no evidence to show that the tree was standing in the property owned by the Devaswom. It is therefore submitted that merely because the people are worshipping the tree, that cannot be taken as a circumstance to fix the liability to satisfy the decree on defendants 4 and 5. It is further pointed out that the plea taken by the appellants that the property was measured by the Taluk Surveyor and that it was found that the tree was standing in the property of the temple, has not been substantiated by any evidence. It is therefore submitted that no evidence worth is available to show that the tree was owned by the Devaswom. 9. Ext.X1 file was marked through P.W.2, the Asst. Engineer of the Office of P.W.D., Thodupuzha. In his deposition, he has stated that they had made an attempt to repair the drainage at the spot for which an estimate had also been prepared. The Banyan tree was standing on the side of the drainage. He was not aware about any action taken to survey the area to find out the title to the property where the tree was standing. In the cross examination, he stated that the drainage therein was owned by P.W.D. It is also admitted that there was no markings there to show the boundary of the P.W.D. road and the drainage was not the boundary. He also admitted that AS 405/02 -5- the surveyor had not furnished any sketch after the measurement. A reading of the evidence therefore makes it clear that the plea taken in the written statement by the appellants that it was found in the survey and measurement by the Taluk Surveyor that the tree was standing outside the property owned by P.W.D., and in the property owned by the Devaswom, is not substantiated. It is evident that it was just on the side of the drainage constructed by the P.W.D. and the road is a P.W.D. Road. Nobody has a case that the tree was standing inside the property owned by the Devaswom or in its compound. Thus, it is clear from the evidence that there is no cogent evidence to show that the tree was standing in the property of the Devaswom. Ext.X1(a) file would show that they had prepared an estimate for repair of the drainage at the spot. 10. D.W.1 is the Devaswom Manager who had given evidence in support of the plea raised by the Devaswom Board. His evidence will also show that the authorities of the P.W.D. had not given any notice for taking measurement of the spot. He denied the suggestion that the banyan tree was standing in the property owned by the Devaswom Board. Of course, he had stated that the people coming to the temple were worshipping the banyan tree. It was also stated that the tree was standing outside the compound wall of the temple. AS 405/02 -6- 11. Then the only question is whether since the tree was being worshipped by the people coming for poojas in the temple, the Devaswom Board can be made liable for the entire amount decreed. The evidence only shows that the tree was standing very near to the temple compound, just on the side of the road. True, that the same was being worshipped by the people. The religious importance as such of the banyan tree and the fact that it was being worshipped by the people coming to the temple alone cannot bind the Devaswom to satisfy the decree, in the absence of any positive evidence to show that the tree was standing in the property owned by the Devaswom. The appellants who had got records including revenue records, have not produced anything to show that the spot wherein the tree was standing, is within the property owned by the temple. Even though a plea was raised that the surveyor had measured the property to find out the actual facts, that plea was not supported by any documentary evidence. Hence, merely because of the fact that the authorities of the temple were resisting the cutting and removal of the tree and after falling down, they had removed the tree from the spot, cannot on its own mulct the liability on the Devaswom to satisfy the decree. The trial court was therefore right in finding that there is no evidence to show that the tree was standing in the property owned by the Devaswom, but actually it was standing in the AS 405/02 -7- property in the possession of P.W.D. Therefore, the contention raised by the appellants that they should be absolved from the liability, cannot be accepted. 12. The other aspect is regarding the quantum. The appellants have also challenged the quantum arrived at by the court below towards damages. The total amount claimed was Rs.3 lakhs. Out of this, Rs.86,000/- was claimed towards medical expenses. A sum of Rs.54,000/- was claimed towards loss of earnings for 18 months. Towards pain and suffering Rs.25,000/-, towards bystander's expenses and remuneration Rs.10,000/-, Rs.1 lakh towards loss of earning capacity and Rs.25,000/- towards loss of amenity were also claimed. The trial court refused to grant any amount towards loss of remuneration for 18 months and decreed all other amounts claimed under different heads. The age of the plaintiff at the time of filing the suit was 69 years. Therefore, the amount awarded towards general damages is on a higher side. The total amount claimed is Rs.1,25,000/- towards loss of earning capacity and loss of amenity. We find that considering his age and the avocations in life, the amount awarded on the above heads is exorbitant. Ext.A1 is the discharge summary issued from City Hospital, Ernakulam. He was admitted there on 5.2.1996 and was discharged on 5.9.1996. He had fracture of the right clavicle and AS 405/02 -8- communited fracture of the right femur. Bone grafting had to be done. It shows that the plaintiff had suffered serious injuries. Considering the sever injuries sustained, the period of treatment as well as the various treatments undergone by him, we find that the amount claimed towards pain and suffering - Rs.25,000/- and the expenses of two bye-standers – Rs.10,000/- is reasonable. The amount awarded towards permanent disability and loss of amenities is excessive. No disability certificate was produced also. Hence, we are of the view that an amount of Rs.50,000/- is reasonable. Adding Rs.66,000/- towards medical expenses, the total amount will be Rs.1,51,000/- which is rounded off to Rs.1,50,000/-. The appeal is allowed to that extent. Hence, the appeal is partly allowed in modification of the judgment and decree. The plaintiff is allowed to realise a sum of Rs.1,50,000/- together with interest at 6% per annum from the date of decree till realisation. The parties are directed to suffer their costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) AS 405/02 -9- kav/ P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - A.S. No.405 of 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th day of June, 2008.