IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 AS.No. 593 of 1998() -------------------- OS.220/1991 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S)DEFENDANT: -------------- SIVAN PILLAI, KIZHAVANA HOUSE, (SREENI NIVAS) NJETTOOR MURI, KULANADA VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.MUHAMMED HANEEFA RESPONDENT(S)/PLAINTIFF: --------------- 1. JANAKI AMMA SANTHAMMA, KIZHAVANA HOUSE, NJETTOOR MURI, KULANADA VILLAGE, PATHANAMTHITTA DISTRICT. 2.LEKSHMI, AGED 4 YEARS, REPRESENTED BY THE GUARDIAN 1ST RESPONDENT KISHAVANA HOUSE, NJETTOOR MURI, KULANADA VILLAGE, PATHANAMTHITTA DISTRICT. ADV. SRI.P.GOPALAKRISHNAN NAIR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE J. ------------------------ A.S.No.593 of 1998 ------------------------ Dated this the 1st day of December, 2008 JUDGMENT The defendant in a suit for damages, which was decreed by the court below, is the appellant and the plaintiffs ; a mother and her minor child are the respondents. The parties are referred to as they were before the trial court. The case of the plaintiffs was that the second plaintiff is the minor daughter of the first plaintiff and the defendant is the brother of the first plaintiff's husband; that the husband of the first plaintiff is working in Gulf Country for the last so many years and in his absence the defendant attempted to have sexual intercourse with her but without success; that the first plaintiff informed her relatives of the misconduct of the defendant. The defendant was awaiting an opportunity to damage her; on 27/6/1991 at about 7 p.m. while the plaintiffs were praying, the defendant trespassed into her house and poured acid both the plaintiffs and as a result of this the vision of the left eye of the 2nd plaintiff is completely lost and acid burn were caused on her face, scalp, A.S..No.593/1998 2 left, shoulder etc. the first plaintiff was also sustained acid burns on her face, neck etc . After the incident they were taken to the Medical College Hospital for treatment . In relation to the incident, Pandalam Police has registered Crime 143/96 under section 326 I.P.C against the defendant. The case was that the loss sustained by the plaintiffs due to the act of the defendant is inestimable but the claim is limited to Rs.30,000/- by way of damages to the first plaintiff and Rs.45,000/- by way of damages to the 2nd plaintiff. 2. The defendant resisted the suit contending that the suit is false and not maintainable in law; that he never attempted to have sexual intercourse with the first plaintiff and he is living with his wife and children. It was contended that the first plaintiff's husband is employed abroad and therefore several strangers used to visit her residence and it was questioned by the defendant and his relatives and they restrained the entry of strangers into the house. The first plaintiff is on enimical terms with the defendant because of this. On 27/6/1991 somebody sprinkled acid on the face of the 2nd plaintiff and it happened with the knowledge of the first plaintiff. The defendant and his A.S..No.593/1998 3 relatives questioned about this incident and the first plaintiff refused to disclose the name of the assailant. Thereafter, with the help of some political parties, the first plaintiff foisted a false case against the defendant solely because of the enmity towards him. The defendant has nothing to do with the incident and he is not liable to pay any compensation to any of he plaintiffs. 3. the learned Subordinate Judge would raise the following issues for trial; 1. Whether the suit is maintainable? 2. Have the plaintiffs sustained injuries as alleged in the plaint. 3. What is the damages recoverable from the defendant? 4. Relief and cost? Subsequently the suit was amended incorporating the different heads under which the plaintiffs claim damages. Thereafter, the following additional issue No.5 was raised. Addl.Issue.No.5.Whether the plaintiffs are entitled for the amounts shown in para 14 (a) of the plaint? 5. The evidence in the case consisted of oral testimony of PW1 as the first plaintiff and the testimony of DWs 1 to 3. The A.S..No.593/1998 4 documentary evidence consisted of Exts.A1 to A10. DW2, the defendant's mother was examined only in chief. The defendant failed to produce her for cross examination by the plaintiffs and hence the learned Subordinate Judge rightly eschewed the evidence of PW2. Ext.A1 was the reference card issued by the Institute of Child Health, Gandhi Nagar, Kottayam in the name of Lekshmi. the second plaintiff. Ext.A2 is the discharge card in the name of Santhamma the first plaintiff issued by the Medical College Hospital. Ext.A3 is the certificate dated 18/11/1991 issued by the Medical College Hospital, Kottayam. Ext.A4 is certificate dated 19/11/1991 issued from the Kottayam Medical College Hospital, Kottayam. Ext.A5 was the out patient reference card of Little Flower Hospital, Angamali in the name of Lekshmi. Ext.A6 was the Out patient Ticket No.451 dated 4/1/1996 in the name of Lekshmi of Medical College Hospital, Kottayam. Ext.A7 was letter dated 21/2/1992 from Little Flower Hospital, Angamaly to Plastic Surgery. Exts.A8 and A9 are photographs showing the pictures of Lekshmi, the second plaintiff. Ext.A10 is a copy of the charge sheet in Crime No. 143/91 of Pandalam Police Station. A.S..No.593/1998 5 5. The learned Subordinate Judge evaluated the evidence and answered the issue Nos. 1 and 2 in favour of the plaintiffs. Under Issue No. 3 and additional issue NO. 5, the learned Subordinate Judge would award sum of Rs.30,000/- to the first plaintiff and Rs.44,000/- to the second plaintiff as damages. 6. I have heard the submissions of Sri.S.Muhammed Haneef, learned counsel for the appellant and those of Sri. P.Gopalakrishnan Nair, learned counsel for the respondents. Sri.Haneef would argue that the findings of the learned Subordinate Judge are contrary to the evidence which has come on record. According to him, the court below should have permitted the appellants to mark the statement given by the first plaintiff before the Police(F.I.statement). In that statement, the plaintiff deposed before the police that she cannot identify the person who sprinkled acide on the body of the plaintiffs. It is two months after the incident that the appellant was implicated. Refusal to mark the statement's has caused prejudice to the appellant and the entire trial has become vitiated because of the same. 7. The learned counsel submitted that quantification of the A.S..No.593/1998 6 damages is without any materials to support the same. The doctors who treated the plaintiffs were not examined. The investigating officers were not examined. The learned Subordinate Jude relied on the charge sheet which was not of any consequence. The learned counsel submitted that the probabilities of the matter has not been explored by the learned Subordinate Judge. The appellants' case was that strangers used to visit the first plaintiff's house as her husband was away abroad. The appellant and his mother and brother used to restrain the strangers from entering into the house of the first plaintiff warning her against the visit of strangers. Hence the first plaintiff has in enimical terms with the appellant and his relatives. This crucial aspect of the matter was ignored by the learned Subordinate Judge. As a result of this, the appreciation of the entire evidence by the trial court has become ignored. The learned counsel submitted that the inability of the appellant to offer his mother for cross examination was due to the reason that the mother had fallen sick. The court below did not grant the request for adjournment and closed the evidence. 8. The submissions of Sri.Haneef were resisted by A.S..No.593/1998 7 Sri.Gopalakrishnan Nair, who supported the judgment on the various reasons stated in the judgment itself. In reply, Sri.Haneef would fairly concede that there was some documentary evidence to support award of damages granted in favour of the second plaintiff. But, according to him, as regards the award of damages in favour of the first plaintiff, there was absolutely no evidence. 9. I have considered the rival submissions and I have made through reappraisal of the entire evidence which was available before the court below. The learned counsel for the appellants is right in his submission that most of the documentary evidence in the case pertain to the injuries sustained by the second plaintiff- the minor daughter of the first plaintiff. But, I cannot agree that there is no documentary evidence at all regarding the injury sustained by the first plaintiff. I find that Ext.A2 is an item of evidence regarding the injuries sustained by the first plaintiff and the treatment which was undergone by her. Ext.A2 will show that the first plaintiff was treated as in patient in the Medical College Hospital for seven days. The oral evidence adduced by PW1, the first plaintiff, in my opinion, is quite convincing. Even A.S..No.593/1998 8 by way of general damages, PW1, the first plaintiff, could have been awarded the amount of Rs.30,000/- under the impugned judgment to her. All the findings of the learned Subordinate Judge are well founded in evidence, which came on record in the case. There is no warrant for interfering with the findings of the learned Subordinate Judge. The appeal fails and the same will stand dismissed. However, in deference to the ability and learning with which Sri.Haneef addressed to me, the parties are directed to suffer their cost in this appeal, the extremely heinous nature of the defendant's deed leading to the institution of the suit, not withstanding. PIUS.C.KURIAKOSE,JUDGE dpk A.S..No.593/1998 9 PIUS.C.KURIAKOSE J. ------------------------ A.S.No.593 of 1998 ------------------------ JUDGMENT 1ST DECEMBER 2008