IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 RSA.No.656 of 2008 (C) ---------------------------- AS.73/2005 of ADL.SUB COURT, THALASSERY OS.309/2003 of PRL.M.C.,KANNUR .................... APPELLANT/APPELLANT/IST DEFENDANT ------------------------------------------------ R.T.GOVINDAN NAMBIAR, S/O.KANNAN NAMBIAR 55 YEARS, OLAKKAD, NEAR KANDAKKAL ROAD, P.O.MAYYIL, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL RESPONDENTS/RESPONDENTS/PLAINTIFF -------------------------------------------------- 1. K.P.LAKSHMANAN, S/O.KUNHAPPU, AGED 48 YEARS, KANDAKKAL, P.O.MAYYIL, KAYARALAM AMSOM, KANNUR DISTRICT. 2. K.K.BALAKRISHNAN, 45 YEARS, DRIVER S/O.KORAN NAMBIAR, KAVUMBAI, PAZHASSI, P.O.MAYYIL, KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.656 of 2008 ------------------------------------------------ Dated this the 28th day of August, 2008 JUDGMENT The appellant is the first defendant in O.S.309/03 on the file of the Munsiff's Court, Kannur. The first respondent filed the said suit against the appellant and the second respondent for a decree for recovery of an amount of Rs.69,035/- with interest at 12% per annum from the date of suit till realisation inter alia on the allegation that he (the plaintiff) is the owner of lorry bearing registration No.KL-11A-4329; that the appellant/first defendant is a contractor who had entered into an agreement with Mayyil Grama Panchayath to provide drinking water to the people residing in the Panchayath during the summer season of the year 2000; that on 23/04/2000, the appellant/first defendant requested him to provide his lorry for R. S. A. No.656 of 2008 -2- supplying drinking water agreeing to pay an amount of Rs.1,300/- towards daily hiring charges and promising to pay the amount on receipt of amount from Mayyil Grama Panchayath; that the first defendant was known to the plaintiff and believing his words the lorry was hired to the first defendant under an oral agreement between the parties witnessed by one Damodaran; that the first defendant took on hire the lorry from 29/04/2000 to 06/06/2000, but he never paid a single pie towards rent to the plaintiff and as he did not make payment of any amount despite repeated request, he sent a notice through lawyer to the first defendant on 18/12/01 demanding payment of the entire amount and to the said notice the first defendant has issued a reply setting up false contention; that his contention that he had engaged lorry for 36 days as per an agreement R. S. A. No.656 of 2008 -3- between himself and the lorry driver for an amount of Rs.700/- only is false and the driver also is impleaded as the second defendant in view of the contention raised by the first defendant in his reply notice that he has paid certain amounts to the second defendant; that if at all any amount is paid to the second defendant by the first defendant that does not absolve him of any liability under the agreement with the plaintiff and that the first defendant has set up false contentions so as to get himself exonerated from his liability to pay the hire charges and hence, the suit. 2. Both defendants entered appearance and filed written statement. The contentions of the first defendant are that there was no agreement between himself and the plaintiff as alleged. Though he had taken contract for supply of drinking water as alleged, he was R. S. A. No.656 of 2008 -4- supplying drinking water for 56 days engaging his own lorry and the lorry bearing registration No.KL-11A-4329 for which the agreement was between himself and the lorry driver who is the second defendant and the agreed rent was only Rs.700/- per day and the amount at that rent has been paid in full to the second defendant/lorry driver; that the first defendant has no contractual obligation to pay any amount to the plaintiff and that he has already sent reply stating true facts on receipt of lawyer's notice. 3. The contentions of the second defendant are that he was driver of the lorry owned by the plaintiff that the vehicle was hired by the first defendant for the period from 29/04/2000 to 03/06/2000; that the hiring charges of the vehicle was Rs.700/- per day; that he had received hire charges at that rate for the entire period and that was paid to the R. S. A. No.656 of 2008 -5- owner of the lorry namely the plaintiff; that the agreement between the second defendant and the first defendant was with the knowledge of the owner and that was the usual practice followed by lorry drivers; that there is no practice of obtaining receipt for payment of such charges to the employers; that during the period of employment the plaintiff has made several purchases through him for the repair of the vehicle and due to persistent demand from the dealers all such dues were discharged by the second defendant; that apart from that huge amounts by way of salary is due to him from the plaintiff; that the plaintiff was not in the habit of making payments to welfare fund schemes and the suit is filed by the plaintiff in collusion with the first defendant to harass the second defendant and that the suit has to be dismissed. R. S. A. No.656 of 2008 -6- 4. The trial court considering the pleadings in the case in the light of the evidence adduced at trial which consisted of oral evidence of PWs.1 and 2 and DWs.1 to 3 and documentary evidence Exts.A1, A2, B1 and X1 to X1(d) decreed the suit for recovery of an amount of Rs.46,800/- with interest thereon at 6% per annum from the date of suit till realisation jointly from defendants 1 and 2. On perusal of the judgment passed by the trial court it is seen that it is on a proper evaluation of the entire evidence adduced in the case that the trial court has come to the conclusion that plaintiff and the first defendant had entered into an oral agreement for hire of lorry belonging to the plaintiff to the first defendant for 36 days on a daily rent of Rs.1,300/- and that the first defendant has not made payment of any amount towards hire charges to the plaintiff through R. S. A. No.656 of 2008 -7- the second defendant as contended. The evidence also showed that the second defendant who was driver of the plaintiff was not at all on happy terms with the plaintiff who was his employer and that he is not at all under his employment at the time of institution of the suit. 5. A.S.73/05 was filed by the first defendant against the decree of the trial court and A.S.107/05 was filed by the second defendant against the said decree. The decree passed by the trial court was confirmed by the first appellate court inasfar as it is against the appellant/first defendant dismissing A.S.73/05 but it set aside the decree insofar as it is against the second defendant allowing A.S.107/05 filed by the second defendant. This R.S.A is filed by the first defendant assailing the decree concurrently passed against him by the courts below. However, he R. S. A. No.656 of 2008 -8- has not filed any appeal against the judgment and decree in A.S.107/05 whereunder the second defendant was exonerated from liability. 6. It is worthy to note that if at all the contentions set up by the first defendant is true his remedy lies as against the second defendant, but he does not want to have any liability being cast on second defendant and does not assail the decree in A.S.107/05. The concurrent findings of the courts below that the contract was between the plaintiff and the first defendant for the first defendant hiring lorry belonging to the plaintiff for transporting drinking water and that was for hire charges at the rate of Rs.1,300/- per day is a finding of fact entered into concurrently by the courts below. The said finding cannot be interfered with in a R.S.A by this Court being a finding of fact. The appellant also does not want him to be indemnified by the R. S. A. No.656 of 2008 -9- second defendant even assuming that his contention that he has paid some amounts to the second defendant is true which however, has been found against concurrently by the courts below. There is hence, absolutely no merit in this R.S.A and this R.S.A deserves only to be dismissed in limine refusing admission. 7. In the result, concurring with the findings of the courts below as regards the liability of the appellant/first defendant towards the first respondent/plaintiff and allowing the first respondent/plaintiff to have recovery of the amounts claimed from the appellant, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-