IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 AS.No. 518 of 1997(Y) --------------------- OS.175/1992 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S)/1ST DEFENDANT: ---------------------------------------------- SECRETARY, KEERAMPARA GRAMA PANCHAYAT, PANAKKAD, KEERAMPARA P.O. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S)/PLAINTIFF & DEFENDANTS 2 & 3: ------------------------------------------------------------------------ 1. K.A. KURIAKOS, KARIPPAKKADU, KEERAMPARA P.O., KOTHAMANGALAM. 2. MARIAMMA KURIAKOS, W/O. K.A. KURIAKOS, KEERAMPARA P.O. 3. THE DISTRICT COLLECTOR, ERNAKULAM. 4. THE CHIEF SECRETARY, THIRUVANANTHAPURAM. ADV. SRI.V.V.SURENDRAN FOR R1 & R2 SRI.P.A.HARISH FOR R1 & R2 BY GOVT. PLEADER SRI. P.K.RAVIKRISHNAN FOR R3 & R4 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON 02/09/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 518 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of September, 2011. JUDGMENT The first defendant Panchayat in O.S. 175 of 1992 before the Sub Court, Muvattupuzha, who has been mulcted with the liability to pay a sum of Rs.52,160/- with 12% future interest as damages, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Kuriachan, the son of the plaintiff was a martial art instructor and he had other qualifications also. The allegation is that on 26.12.1990 he was bitten by a stray dog and as a result of which Kuriachan died on 18.3.1991 due to Hydrophobia. It is alleged that the Panchayat was duty bound to see that stray dogs are not left wandering around causing nuisance and threat to public. Since the Panchayat had not taken adequate precautionary measures to avert A.S.518/1997. 2 the nuisance caused by stray dogs, the incident had happened. Allegation regarding quantum of compensation were also seen made. The total amount claimed was Rs.1,75,000/- as damages. 3. The first defendant resisted the suit by pointing out that they had no knowledge about the incident nor they were informed about the same. They denied the allegations regarding the earning capacity of Kuriakose. It was contended by the Panchyat that even assuming that Kuriakose was bitten by stray dog affected by rabies on 26.12.1990, Kuriakose was negligent thereafter and did not seek medical assistance immediately, in which case he could have saved his life. That showed the sheer negligence on the part of Kuriakose and members of his family, which had resulted in the unfortunate death of Kuriakose. The Panchayat then detailed in the written statement about the steps taken by them to have the stray dogs taken care of and pointed out that there was no negligence on their part in A.S.518/1997. 3 that regard. They therefore disowned the liability to pay any amount as damages to the plaintiff. 4. Defendants 2 and 3 filed a statement adopting the same contentions of the first defendant. 5. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A9 from the side of the plaintiffs. The defendants had D.W.1 examined and Ext.B1 marked. Exts.X1 and X2 are third party exhibits. The trial court on an evaluation of the evidence came to the conclusion that there were complaints before the Panchayat regarding wandering stray dogs and the Panchayat had failed to take steps to abate the nuisance caused by stray dogs. Therefore, on the ground that Panchayat had failed to carry out its statutory duty and on finding that Kuriakose died due to Hydrophobia, the lower court came to the conclusion that Panchayat is liable to pay damages and awarded the quantum of damages already made mention of. A.S.518/1997. 4 6. The said judgment and decree are assailed in this appeal. 7. The first and foremost question that arises for consideration is whether Kuriakose was bitten by a stray dog affected by rabies. The second question that arises for consideration is whether the Panchayat had taken adequate measures to see that nuisance caused by stray dogs is abated. The third question would be whether Kuriakose had taken necessary precautions, assuming that he had bitten by a stray dog affected by rabies, to see that illness is avoided. 8. Learned counsel appearing for the appellant pointed out that the lower court was not justified in mulcting liability on the Panchayat solely for the reason that the Panchayat had failed in its statutory duty to take adequate steps to abate the nuisance caused by stray dogs. According to learned counsel, the finding of the lower court is on the basis of conjunctures and surmises. There was absolute want of evidence to show that Kuriakose was infact A.S.518/1997. 5 bitten by a stray dog affected by rabies and that stray dog was a dog roaming about in the Panchayat itself. It was also contended that, had Kuriakose taken medical aid immediately after the incident, his life could have been easily saved and the negligence on the part of Kuriakose and the members of his family was the sole reason for the unfortunate death of Kuriakose and the Panchayat cannot be made liable for the same. It was contended on behalf of the appellant that the plaintiff cannot take the aid of negligence of Kuriakose which resulted in his unfortunate death and makes the Panchayat liable for damages. 9. Learned counsel appearing for the appellant also relied on various provisions under the Kerala Panchayats Act and Licensing of dogs and pigs and disposal of stray dogs and pigs Rules, 1963 and relying on Ext.B1 file it was pointed out that Panchayat had been taking adequate steps to abate the nuisance caused by stray dogs. 10. The court below was not justified, according to learned counsel, in coming to the conclusion that the A.S.518/1997. 6 Panchayat was totally negligent in this regard and had not taken steps to abate the nuisance caused by stray dogs. Referring to Section 57 of the Panchayats Act, 1960, learned counsel pointed out that the duties and functions cast under Section 57(1) of the Act are mandatory in nature, whereas the duties and functions under Sub Section (2) of Section 57 are directory in nature. The disposal of stray and ownerless dogs falls within Section 57(2)(v)(j) of the Act and therefore it is clear that the duty of the Panchayat was only directory. Learned counsel also referred to the various documents contained in Ext.B1 file and pointed out that the Panchayat had taken steps to abate the nuisance caused by stray dogs. Learned counsel went on to point out that merely because the Panchayat had not shown that licenses had been issued to owners of the dogs, was by itself a ground to come to the conclusion that the Panchayat has been negligent in this regard. The issue was not whether, according to learned counsel, license has been issued to owners of dogs, but whether the Panchayat had taken steps to abate the A.S.518/1997. 7 nuisance caused by stray dogs. Learned counsel pointed out that the lower court has misdirected itself both on facts and in law and failed to take relevant facts and has taken into consideration irrelevant facts. 11. Per contra, learned counsel appearing for the respondents pointed out that as long as the Panchayat is not able to establish that it had taken adequate steps to abate the nuisance caused by stray dogs, the liability of the Panchayat was absolute. Learned counsel for the respondents pointed out that going by the records, it is quite clear that Kuriakose died on 18.3.1991 as a result of Hydrophobia resulting from the bite of a stray dog. The lower court has considered the statutory duty that is cast on the Panchayat and has found that they had failed in discharging the statutory duty. According to learned counsel, the lower court has considered the relevant aspects and had come to the right conclusion. In support of his contention that the local authority is bound to do its duty and failure to do so will result in claim for damages, learned A.S.518/1997. 8 counsel relied on the decision reported in Municipal Commissioner v. David J. Bhanu (1988(1) K.L.T. 675). 12. That Kuriakose died on 18.3.1991 at the Government Hospital, Ernakulam is a fact not in dispute. So also that he died of Hydrophobia. The case of the plaintiff is that on 26.12.1990 his son Kuriakose was bitten by a stray dog in their compound and that ultimately resulted in the death of Kuriakose. 13. There is considerable controversy between the parties regarding the question as to whether Kuriakose was infact bitten by a stray dog as alleged in the plaint. Going by the averments in the plaint, in the night of 26.12.1990 a stray dog had wandered into the compound of the plaintiffs and when Kuriakose tried to drive away the dog, it bit him. In order to prove the incident, the plaintiff relies on the evidence of himself examined as P.W.3 and P.W.4, an independent witness. The lower court accepted the evidence of P.Ws.3 and 4 and came to the conclusion A.S.518/1997. 9 that Kuriakose was infact bitten by a stray dog in the night of 26.12.1990. 14. Learned counsel appearing for the appellant very vehemently assailed the finding of the court below in this regard. Learned counsel went on to contend that the versions given in the plaint and spoken to by P.Ws.3 and 4 are entirely different and that cast serious doubt regarding the incident. Learned counsel also referred to the medical records and contended that on perusing the records we get yet another version in those records. 15. As far as the evidence of P.W.3 is concerned, it is an interested testimony. The deceased was his second son. He would depose that his son Kuriakose was bitten by a rabied dog on on 26.12.1990. The dog ran into the house and Kuriakose tried to chase it away. In that process he suffered a bite. The injury suffered was a very minor one. He then speaks about the treatment undergone by Kuriakose and the ultimate death of Kuriakose. In cross examination, he deposed that since the injury was a very A.S.518/1997. 10 minor one, neither he nor Kuriakose thought it necessary to take any medical assistance or aid at that point of time. He infact admits that on the very next day itself they had gone to a hospital run by one Dr.George complaining of pain in the hand. However, he says that they did not disclose to the doctor that Kuriakose was bitten by a dog. He also says in his cross examination about the incident. He deposed that Kuriakose was talking with his friends in the compound of his house. He would say that he never bothered to find out the details of the dog nor did he enquire about what had happened to the dog thereafter. He would also accept that he and Kuriakose were aware that there was proper medical treatment for rabies. What is significant is that this witness does not speak about the presence of P.W.4 at all. 16. The version of P.W.4 is that he was accompanying Kuriakose home on the ill-fated day. He simply says that Kuriakose was bitten by a dog in the compound belonging to the plaintiff. A.S.518/1997. 11 17. As rightly pointed out by the learned counsel for the appellant, the version regarding the incident given by P.Ws. 3 and 4 are inconsistent. As already noticed, P.W.3 has no case that P.W.4 was present at the relevant time. In fact the version of P.W.3 is that it was while Kuriakose was talking with his friends that the incident had occurred. The version of P.W.4 on the other hand is that it was he who accompanied Kuriakose home and as soon as Kuriakose reached home the dog bit him. 18. Now one may refer to the medical evidence in this case. Ext.X1 is the medical records relating to Kuriakose maintained in the Government Hospital, Ernakulam. Before going into the entries in Ext.X1, one may refer to Ext.X2. Ext.X2 is the medical records maintained in St.Joseph's Hospital, Kothamangalam, where on 16.3.1991 Kuriakose had gone for medical treatment. The relevant entry reads as follows: “H/o injury: Left middle finger while killing a dog two months' back” A.S.518/1997. 12 The version in Ext.X1 is as follows: “Patient has no definite H/o. dog bite. He has hit a dog with a rod three months' ago. But no W/D, scratch or bite.” Going by the pleadings in the plaint, the evidence of P.Ws.3 and 4, and the entry in Ext.X2, we get different versions regarding the incident. The evidence in this regard is totally inconsistent and contradictory. It is therefore clear that the incident has not occurred as alleged in the plaint. 19. Going by the evidence of P.W.3, it is very clear that both Kuriakose and his father were aware of the fact that Kuriakose had to take medical assistance or aid immediately. What P.W.3 would say is that since the injury was a very minor one, they did not bother about the same. But in the same breath, he would say that on the very next day Kuriakose felt pain in his arm and they had gone and met a doctor in the hospital run by Dr.George. Strangely enough, P.W.3 says that they did not disclose to the doctor that Kuriakose had been bitten by a dog. P.W.3 has also A.S.518/1997. 13 stated that his son Kuriakose knew that if bitten by a dog, he had to take immediate medical assistance or aid. He is also aware of the fact that if medical aid is sought for immediately, there is effective cure for the illness. 20. P.W.1 is the doctor attached to the Government Hospital, Ernakulam. He proves Ext.X1 file. He also deposed that Ext.A1 certificate was issued from the Hospital. In cross examination he would say that once the symptoms of rabies surfaces, then any treatment may not be effective. P.W.2 is the doctor attached to Dharmagiri Hospital and he had produced Ext.X2 file. He would say that on 16.3.1991 Kuriakose was brought to the hospital with complaint of pain on the left side of his body. He would depose that what the patient told him is that while attempting to kill a dog two months' ago, he was bitten by a dog. In cross examination he would assert that if immediate medical aid is sought for, there is effective treatment for rabies. A.S.518/1997. 14 21. Going by the medical records, one is not certain whether the cause of death, namely, Hydrophobia was as a result of the bite by the stray dog affected by rabies. It is not necessary that the person should be affected by rabies only due to the bite of a dog. Even regarding the very incident, there are inconsistent versions. At any rate, there is evidence to show that had Kuriakose taken immediate medical aid, the disaster could have been easily averted or avoided. No reason whatsoever is given for not seeking immediate medical assistance which could have saved the life of Kuriakose. 22. Coming to the statutory duty of Panchayat, as rightly pointed out by the learned counsel for the appellants, killing stray dogs etc falls within Section 57(2)(v)(j) of the Kerala Panchayats Act. Section 57(2) directs that the Panchayat may, within the limit of its funds and wherever possible with Government aid, make reasonable provision under that provision. Licensing of dogs and pigs and disposal of stray dogs and pigs Rules, 1963 provides the A.S.518/1997. 15 procedure to the followed by the Panchayat in issuing license for keeping dogs and also in taking steps to have the nuisance caused by stray dogs abated. Ext.B1 file shows that Panchayat had issued necessary notifications. Of course, the plaintiffs have produced Ext.A3 serious of newspaper publications, which highlighted the menace caused by stray dogs in the Panchayat in question. But it is significant to notice that except Ext.A3, the other paper publications are subsequent to the incident. However, there is no reference to the death of Kuriakose in any of the subsequent publications. 23. Learned counsel also placed reliance on the decision reported in Municipal Commissioner's case (supra). That related to a tree that was dangerously positioned and information about which was given to the Municipality. Inspite of repeated demands to have the tree cut and removed, the Municipality did nothing in the matter. Ultimately, the tree fell on the building of the plaintiff and caused damages to the building. It was held that the A.S.518/1997. 16 Municipality concerned had failed to discharge its statutory duty and hence was liable. In the said case, it was held that negligence in performance of statutory duty was clearly established in the said case. 24. There can be no doubt regarding the proposition that if the statutory authority concerned fails to perform its statutory duty, as a consequence of which loss is caused to a person, the later is entitled to compensation from the authorities concerned. This aspect was considered in the decision reported in Marakkar v. State of Kerala (ILR 2009(4) Kerala 681) wherein it was held that public authorities are liable to pay damages for failure to discharge their public obligation and statutory duties. 25. In the case on hand, Ext.B1 file shows that Panchayat had issued the necessary notifications and publications to take necessary steps to see that nuisance caused by the stray dogs is abated. It could not be said that the Panchayat was totally unconcerned about the menace caused by stray dogs. A.S.518/1997. 17 26. Whatever that be, there is absolute want of medical evidence to show that the cause of death of Kuriakose was due to rabies caused as a result of the bite by a stray dog infected with rabies. The entires in the medical records, as already referred to, do not throw much light in this regard. The doctors who were examined were not questioned in this regard at all The plaintiffs remained satisfied with having the documents produced by the doctor and marked but did not further seek medical evidence regarding the cause of death of Kuriakose even inspite of the entries shown in Exts.X1 and X2. 27. At any rate, the evidence is clear to the effect that had Kuriakose taken immediate medical aid or assistance, the disaster could have been avoided. Even assuming that a stray dog affected by rabies had bitten Kuriakose, the negligence on his part in not taking medical aid in time, as a consequence of which he developed the illness, which ultimately caused his death, will prevent the plaintiffs from recovering damages from the Panchayat. The A.S.518/1997. 18 lower court has come to the conclusion that Kuriakose is guilty of contributory negligence. The lower court seems to have omitted to notice that had medical aid been taken in time, Kuriakose could have been completely cured of the illness. It is also significant to notice that there is absolutely no evidence to show that the first defendant Panchayat was ever informed about the incident at all before the death of Kuriakose. Added to this, the lack of information regarding the dog which bit Kuriakose. 28. In the above circumstances, it is difficult to accept the finding of the court below that the Panchayat has been negligent in the matter and is liable. One fails to understand as to why, when on the next day of the incident Kuriakose had gone to a hospital and met a doctor, he did not disclose about the bite by the dog. He waited till 16.3.1991 when the symptoms have surfaced to seek medical aid. Under such circumstances, it will not be proper to mulct the liability on the Panchayat. A.S.518/1997. 19 In the result, this appeal is allowed, the judgment and decree of the lower court are set aside and the suit stands dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.