IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 AS.No. 250 of 2001() ----------------------------- OS.98/1996 of SUB COURT, NEDUMANGAD .................... APPELLANT(S): DEFENDANTS -------------------------------------------- 1. SUKUMARAN NAIR, SUB INSPECTOR OF POLICE, VILAPPILSAL POLICE STATION, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY THE CHIEF SECRETARY, KERALA SECRETARIAT, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE (RURAL), THIRUVANANTHAPURAM. 4. THE DIRECTOR GENERAL OF POLICE, KERALA STATE, THIRUVANANTHAPURAM. 5. THE CIRCLE INSPECTOR OF POLICE, KATTAKADA CIRCLE, KATTAKADA. BY SR. GOVERNMENT PLEADER SRI.P.K.BABU RESPONDENT(S): PLAINTIFF ------------------------------------------ S.SATHYASEELAN, S/O. SIVARAMAN NADAR, PROPRIETOR, S.S.N.OIL MILL, KATTAKADA, RESIDING AT SHAJI NIVAS, MUZHAVANCODU, KATTAKKODU P.O., KATTAKADA, KOLUTHUMMAL VILLAGE, NEYYATTINKARA TALUK. ADV. SRI.BABU JOSEPH KURUVATHAZHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... A.S.NO.250 OF 2001 ............................................. Dated this the 21st day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Nedumangad in O.S.No.98/1996. This is a peculiar case of one for damages. 2. It is the case of the plaintiff that he is the registered owner of a mini lorry bearing Reg.No.KL-01D/7430. According to him, while the mini lorry was proceeding from Kattakkada, the Sub Inspector of Police namely the first defendant stopped the vehicle, abused the driver and cleaner and took away the registration book and other particulars and when demanded back, directed the owner to come to the police station on the next day and in spite of repeated approaches it was not returned and ultimately the plaintiff has to apply for a duplicate and therefore, he had filed the suit for damages. 3. On the other hand the defendants would contend that the first defendant had not checked any vehicle and collected any records from the plaintiff's driver and so the : 2 : A.S.NO.250 OF 2001 question of any loss sustained does not arise and therefore prays for dismissal of the suit. It is also contended that the Sub Inspector has proceeded altogether from a different point and it was not possible for him to reach the alleged place of accident and it also strengthens the case of the defendants. 4. In the trial court PWs 1 to 5 and DWs1 and 2 were examined. Exts.A1 to A6, C1 and X1 were marked. On an analysis of the materials, the trial court granted a decree for realisation of an amount of Rs.8,000/= with 6% interest from defendants 1 and 2. It is against that decision, the defendants have come up in appeal. 5. Heard. The crux of the issue depends upon the fact whether the registration book and other particulars of the lorry belonging to the plaintiff had been taken into custody by the first defendant and whether it had been returned or not. The defence is that of total denial. 6. There cannot be any positive evidence regarding handing over of the registration book when the police demands for that. So it is the preponderance of probability that may have to be looked into in order to arrive who is : 3 : A.S.NO.250 OF 2001 speaking the truth. Under ordinary circumstance no person would file a case against Government department for a cause which was not all in existence. 7. The evidence in this matter to start with consists the evidence of PW1. He is a Joint Regional Transport Officer. He had deposed before the court that a duplicate has been issued in favour of the plaintiff. It is true that it was on the strength of a publication that the RC book is lost. It is also true that it had not been published in paper that it had been taken by the police. Whatever it may be, the evidence of PW1 would indicate that it became necessary for the issuance of duplicate of the registration certificate in favour of the plaintiff. 8. PW2 is the Commissioner and his evidence is with respect to the distance between the places and it may not be of much relevance to decide the case because travelling depends on the speed in which it is done and it varies from person to person and driver to driver. Unless there is such a vast difference the evidence of such witness cannot be of much help to decide the case. 9. PW5 is the cleaner of the lorry. The driver was one : 4 : A.S.NO.250 OF 2001 Austine Varghese. He had deposed before the court that at 11.45 p.m in the night, the first defendant stopped the jeep, threatened him and the driver and had taken the records namely the RC Book, permit, insurance etc. It is submitted by him that though they requested for the receipt, it was not given and a direction was given to come to the police station on the next day. On four consecutive days they visited the police station and it was not handed over. He had been cross examined. It is stated by him that the Sub Inspector had abused them and had even attempted to assault them. It is also his version that PW4 was there and he had heard about the whole conversation and seen the incident. 10. PW4 is the person who had seen the incident. He would depose before the court that the first defendant stopped the vehicle and demanded the registration book and it was handed over. According to him, he happened to see the incident while he was coming back after seeing the cinema “കളന കപലല തന . ” It is true that this witness was not able to name the hero and heroine of that cinema. Just because he is unable to say so, one need not have to : 5 : A.S.NO.250 OF 2001 disbelieve him. 11. PW3 is the plaintiff. He had also spoken in line with the averments in the plaint. He had deposed before the court that when he did not get the documents within four days, he had submitted a complaint before the superior authorities of the first defendant and he had also moved a writ petition before the High Court of Kerala and the High Court had disposed of the writ petition on the basis of the undertaking given that enquiry is being conducted by the department. It is thereafter the paper publication is made regarding the loss of registration book. 12. Therefore the cumulative effect of the evidence available before this Court and the attending circumstances point out the following viz., the plaintiff had been knocking the doors of the first defendant, his superior officers and even the High Court in order to get back his registration certificate and other documents. Thereafter since he did not get it, he had applied for duplicate. If really the department had conducted a proper enquiry into the matter, they could have produced those documents before the court so as to make the court appreciate the result of the enquiry conducted : 6 : A.S.NO.250 OF 2001 by the department. It has not been done. It shows that all is not well with the conduct of the defence in the case. There cannot be an attempt to be compensated by filing a case of this nature at all. Therefore the preponderance of probability as rightly held by the trial court only shows that the first defendant had taken the registration book and other particulars and for reasons known to him alone had not returned it and therefore he is liable. 13. It is argued that Section 64 of the Police Act contemplates proceeding within 6 months against a police official for the acts done in good faith. At the outset the defence set up in this case is not taking into custody of the documents at all. So there was nothing done in good faith so as to attract protection under the statute. Further it is a personal action done by the first defendant. Therefore umbrella of Section 64 also cannot be extended to the defendants in this case. 14. Therefore I find that the defendants are liable. The second defendant - the State is vicariously liable for the act of his servant. But the conduct of the first defendant, I would say so, tends me to make an improvement in the judgment of : 7 : A.S.NO.250 OF 2001 the trial court. 15. The learned Government Pleader would submit that a direction may be given to realise the amount from the first defendant and only on failure, realise it from the second defendant. But such a direction will be against law on facts for the reason that the second defendant is vicariously liable for the act of the first defendant. This was not a conduct which was expected from a police official. Therefore, if the Government satisfies the decree, they will be at liberty to proceed against the first defendant for realisation of the amount Therefore, the appeal fails and the same is dismissed with the direction mentioned in paragraph-15. Parties to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.250 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.250 OF 2001 ............................................. 21st day of October, 2010. J U D G M E N T