IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 RSA.No. 430 of 2010() ------------------------------ AS.113/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.30/2002 of SUB COURT, NEYYATTINKARA (OS 31/2002) .................... APPELLANT/APPELLANT/PLAINTIFF -------------------- FRANCIS, S/O. PAKKINATHAN, AMBALATHU VILAKOM, ROADARIKATHU VEEDU, CHERIYAKOLLA DESOM, KUNNATHUKAL VILLAGE, NEYYATINKARA TALUK, FROM KANATHUKONAM, ROADARIKATHU VEEDU, DEVICODE, CHERUVALLOOR. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S): RESPONDENTS/DEFENDANTS -------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY (HOME), GOVT. OF KERALA, THIRUVANANTHAPURAM. 3. DIRECTOR GENERAL OF POLICE -DO- 4. R. PRATHAPAN NAIR, SUB INSPECTOR OF POLICE, VELLARADA POLICE STATION. 5. RAHJMOHAN, S/O. MADHAVAN, HEAD CONSTABLE, VELLARADA POLICE STATION. 6. VIJAYAN, POLICE CONSTABLE, -DO- 7. GOPALAKRISHNAN, S/O. GANGADHARAPANIKER, DRIVER, -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, ALONG WITH RSA NO. 449 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- R.S.A Nos. 430 & 449 of 2010 -------------------------- Dated this the 2nd June, 2010 J U D G M E N T Two suits namely O.S No.30/2002 and O.S 31/02 were instituted before the Sub Court, Neyyattinkara claiming damages. One was in respect of a lorry bearing Reg. No. KL- 7E/6876 and the other was relating to a car bearing Reg. No. KL-B/4165. The allegation was that defendants 4 to 7 had taken into illegal custody the eldest son of the plaintiff from the house of the plaintiff and had illegally. seized and taken away the above said vehicles. It is alleged that even though vehicles were seized no crime was registered and vehicles were not produced before the Magistrate Court. The allegation was that custody of the vehicles by defendants 4 to 7 was therefore illegal and contrary to law. 2. It is pointed out that when plaintiff approached this Court initially it was represented before this Court that vehicles had not been seized. Accordingly, the writ petition was disposed of. 3. Thereafter, plaintiffs approached the Judicial First Class Magistrate's Court, Neyyattinkara with a private R.S.A Nos. 430 & 449 of 2010 2 complaint and search warrant was issued. The vehicles were seized and kept in the police station. Though plaintiffs moved for release of the vehicles, the Magistrate's Court refused to grant release of the vehicles. Then as per the order of this Court, the vehicles were released. Plaintiff complains that due to the illegal seizure and detention there was considerable damages to him and vehicles also suffered damages. On the basis of these allegations, the suit was laid. 4. Defendants resisted the suit. According to the defendants, the antecedents of the plaintiff were not good and he is habitual recipient of stolen vehicles. It is contended that vehicles in these cases were detained as they were found to have not paid the tax. The seizure was under Section 11 of the Kerala Motor Vehicles Taxation Act. Nobody was taken into police custody along with the vehicles. They also denied that seizure was on 10.8.2001. According to them the seizure was made on 14.8.2001. It is pointed out that going by the provisions of the Kerala Motor Vehicles Taxation Act, they were entitled to detain the R.S.A Nos. 430 & 449 of 2010 3 vehicles till it was shown that tax has been paid. Since no offence was registered vehicles were not produced before the Magistrate Court concerned. 5. It is contended that Section 11 of the Kerala Motor Vehicles Taxation Act enables them to detain the vehicle. 6. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs1 to PW16 and Exts. A1 to A28 (c) were marked from the side of the plaintiff. DW1 was examined and Exts. B1 and B2 were marked from the side of the defendants. X1 is the third party exhibit. 7. On an appreciation of evidence the trial court came to the conclusion that plaintiff had miserably failed to establish that the seizure was on 10.8.2001. The trial court was of the view that going by the evidence available on record seizure appears to have under Section 11 of the Kerala Motor Vehicles Taxation Act. Therefore, seizure could not said to be illegal. The trial court also noticed that it was the case of the plaintiff that he had lodged a complaint before the Tamil Nadu Police alleging that the defendants 4 R.S.A Nos. 430 & 449 of 2010 4 to 7 had trespassed into the house of the plaintiff and illegally arrested PW3 and the witness also deposed that Tamil Nadu Police visited the scene of incident. Plaintiff contended that vehicles were detained by the defendants illegally. The trial court stated that as the evidence adduced by the plaintiff is insufficient to prove or render probable their version that the vehicles were seized and detained illegally by the 4th respondent, the oral and documentary evidence as regards the damage caused to the vehicles by the illegal detention and the expenses incurred to repair the same does not require any consideration at all. Under those circumstances, the trial court was not persuaded to accept the averments raised by the plaintiff and dismissed the suit. 8. The matter was carried in appeal before the Addl. District Court, Trivandrum. The appellate court independently evaluated the evidence and came to the same conclusion as that of the trial court and dismissed the appeal. Hence the Second Appeal. R.S.A Nos. 430 & 449 of 2010 5 9. Learned counsel appearing for the appellant pointed out that the courts below were not justified in dismissing the suit. There is sufficient evidence to show that there was an illegal detention of the vehicles by the Police Officer. The stand taken by the defendants was that they have not seized the vehicles. When they approached the Magistrate's court concerned, search warrant was obtained. The vehicles were found to have been seized. When they could not get the vehicles released they approached this Court again. This Court directed release of the vehicles and directed the learned Magistrate to note the damages caused to the vehicles, if any. 10. Learned counsel appearing for the plaintiff contended that provisions of law has not been complied with regard to seizure by the defendants and that is sufficient to justify the claim of plaintiff. It is pointed out that vehicles could not be used due to the heavy damage caused to the vehicles. Learned counsel submitted that plaintiffs are entitled to get damages. According to the learned counsel, there is evidence to show that the stand taken by the R.S.A Nos. 430 & 449 of 2010 6 defendants is untrue and contrary to facts. 11. Under such circumstances, the courts below were not justified in coming to the conclusion that there was no independent evidence to show to establish the claim forwarded by the plaintiff. 12. The case of the plaintiff was that on 10.8.2001 the defendants had trespassed into the house of the plaintiff and seized the vehicles and arrested PW3. That was found to be false by the courts below in the light of X1 produced by the defendant. The lower court has noticed that when DW1 proved Ext.X1 document no questions were put to him to show that the entries in X1 do not reflect the true state of affairs. Under those circumstances, the courts below were inclined to accept X1 and came to the conclusion that seizure was on 14.8.2001 as claimed by the defendants. 13. It is to be noticed that the Judicial First Class Magistrate III Neyyattinkara had declined to release the vehicles initially finding that the seizure was under Sec.11 of the Kerala Motor Vehicles Taxation Act. The plaintiff approached this Court to have the vehicles released. It was R.S.A Nos. 430 & 449 of 2010 7 also found by the courts below that plaintiff had never made any effort to adduce evidence before the Police Officer that they had paid the tax and vehicles could not be detained further. 14. The contention put forward by the defendants was that the vehicle was seized under Section 11 of the Kerala Motor Vehicles Taxation Act and the plaintiffs had failed to produce necessary documents to show that tax has been paid. They left the place after abandoning the vehicles on the road. After waiting for some time, the vehicles were taken to the police station. 15. The courts below also noticed that at the relevant time plaintiff was a resident of Tamil Nadu. They claim that they had filed a complaint before the Tamil Nadu Police alleging atrocities counted by the defendants. However, no document, whatsoever were produced to substantiate these allegations. The courts below formed the opinion that plaintiff has failed to prove that the seizure of the vehicles was illegally made. R.S.A Nos. 430 & 449 of 2010 8 16. True. They examined number of witnesses. They are all relatives or employees of the plaintiff. One may recall that according to plaintiff seizure was on 10.8.2001 after trespassing into the house of the plaintiff. The fact that no crime has been registered does not advance the case of the plaintiffs. The seizure was under Section 11 of the Kerala Motor Vehicles Taxation Act. The Kerala Motor Vehicles Taxation Act enables a Police Officer to detain the vehicle till the proof of payment of tax is shown. Under that provision that the defendants claim to have acted in the instant case. Therefore, Section 102 of Cr.P.C may not have any application to the case on hand. The said findings are neither perverse nor unwarranted in law. On an appreciation of evidence, both the courts come to the conclusion that plaintiff had miserably failed to establish his claims. No substantial question of law has been raised in this appeal. Therefore, Appeals are dismissed in limine. P.BHAVADASAN, JUDGE ma R.S.A Nos. 430 & 449 of 2010 9 R.S.A Nos. 430 & 449 of 2010 10