IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 AS.No. 47 of 1995(D) -------------------- OS.122/1990 of SUB COURT, MANJERI .................... APPELLANT/DEFENDANT: --------------------------- * A.MOIDU HAJI, S/O.KUNHAVARAN, AREAKKATTU HOUSE, ARAVANKARA POOKKOTTOOR AMSOM, ERNAL TALUK, MALAPPURAM DISTRICT. (DIED) ADDL.A2. KUNJACHUMMA, AGED 60 YEARS, W/O.LATE MOIDU HAJI, AREEKKAT HOUSE, ARAVANKARA, POOKKOTTOOR P.O. A3. ABDUL RAHIMAN, AGED 48 YEARS, S/O.LATE MOIDU HAJI, AREEKKAT HOUSE, ARAVANKARA, POOKKOTTOOR P.O. A4. FATHIMATHU SUHARABI, AGED 45 YEARS, D/O.LATE MOIDU HAJI AND W/O.ABDUL RAHIMAN, KACHINIKKADU, MAKKARAPARAMBU P.O. A5. ALAVI, AGED 41 YEARS, S/O.LATE MOIDU HAJI, AREEKKAT HOUSE, ARAVANKARA, POOKKOTTOOR P.O. REP. BY HIS BROTEHR-IN-LAW ABDUL RAHIMAN, AGED 57 YEARS, S/O.ALAVI, RESIDING AT MELEPEEDIKAKKAL HOUSE, VADAKKENGARA AMSOM, MAKKARAPARAMBA P.O. MALAPPURAM. A6. MAJEED, AGED 39 YEARS, S/O.LATE MOIDU HAJI, AREEKKAT HOUSE, ARAVANKARA, POOKKOTTOOR P.O. REP. BY HIS BROTHER-IN-LAW ABDUL RAHIMAN, AGED 57 YEARS, S/O.ALAVI, RESIDING AT MELEPEEDIKAKKAL HOUSE, VADAKKENGARA AMSOM, MAKKARAPARAMBA P.O. MALAPPURAM. A7. RAMLA, D/O.LATE MOIDU HAJI, AREEKKAT HOUSE, ARAVANKARA, POOKKOTTOOR P.O. (LR.S OF DECEASED APPELLANT IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 7 VIDE ORDER DT.25.3.09 IN I.A.741/09.) BY ADV. SRI.T.KRISHNANUNNI (SR) SMT.M.A.VAHEEDA BABU SRI.BABU KARUKAPADATH AS.47/95 2 RESPONDENT(S): --------------- TESSYMOL JOSE, D/O.JOSEPH SCARIA EZHACHERY KARA, VELLILAPPALLY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/06/2010, ALONG WITH AS NO.48 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.404 OF 1995 IN A.S.NO.47 OF 1995 //DISMISSED// 08.06.2010. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- A.S.Nos.47 & 48 OF 1995 ------------------------------------------- Dated this the 8th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.These appeals are by the defendant in two suits which were jointly tried and disposed of by the court below. 2.O.S.121/90 is filed by the son and O.S.122/90 is filed by the daughter of PW1. The allegation was that a portion of a rubber plantation belonging to them was destroyed in a fire that occurred on 23.4.1987 and the defendant was responsible for causing that fire. In O.S.121/90, the plaintiff claims damages of Rs.50,000/- with interest at 12% and in O.S.122/90, the plaintiff claims damages of Rs.1,50,000- with interest at 12%. The defendant contested contending that he was not responsible for the fire. However, the occurrence of a fire in the area on the relevant date was not disputed. AS.47/95 & 48/95 2 Going by Ext.C2 plan prepared by the Commissioner, we find that there is a large strip of land belonging to one Kunhalan Haji, separating the plaintiffs' property and the defendant's property. Such land of Kunhalan Haji also is stated to be damaged. It appears from Ext.C1 report and plan that the land of Kunhalan Haji was not subjected to any particular cultivation barring the availability of 4 coconut trees. The defendant disputed the allegation against him. However, the court below has noted that the defendant having put the plaintiff to proof of the allegations regarding the quantum of compensation, there is no specific denial of the quantum claimed by the plaintiffs. 3.Before the court below, the father of the plaintiffs gave evidence as PW1. During the course of his cross examination, he stated that he was not available in the station on the date of the incident. He further mentioned the names of three persons who visited him on the day succeeding the AS.47/95 & 48/95 3 occurrence and informed him of the incident. PW2 Subramanian is one among them. PW2 speaks of the occurrence by stating that he saw the defendant gathering dry leaves from the defendant's property which lies to the north-east of Kunhalan Haji's property. Reading the evidence of PW2, it may be that there could be some confusion as to whether the defendant set fire by lighting the leaves or whether it was a case of his putting the dry leaves on to the fire that was already burning. Either way, it does not improve the case of the defendant because a contribution to an existing fire is itself sufficient to invite tortious liability and consequential damages, if it is proved that the fire ultimately resulted in loss to the plaintiffs. We may note that Ext.C1 Commissioner's report speaks of the existence of rubber trees which have been re-planted in the area in question. But the Commissioner's report does not, by itself, give any data which could be relied on for the purpose of determining the quantum of damages that could be awarded. AS.47/95 & 48/95 4 We also take note of the fact that PW1 deposed that the cultivation in the land of the plaintiffs were covered by insurance and that the plaintiffs had availed loan for the purpose of the cultivation. No materials relating to those transactions are on record. Leaving apart the instance of insurance, such materials would have thrown light into the actual situation regarding the trees which are allegedly destroyed by fire. We may also note that PW1 has deposed that after the incident, the area was re-planted and the land with the re-planted rubber was sold for Rs.40,000/-. We cannot ignore that submission of PW1. We also note that at one stage of his evidence, PW1 stated that the income derived from the property is 2 to 2 ½ lakhs per year. The plaintiffs have not placed on record any return filed in relation to agricultural income tax or other material which could have been credible evidence regarding the quantum of damages. With this scenario of evidence, we need to examine whether the finding of the court below that the defendant is AS.47/95 & 48/95 5 liable, he having generated the fire, stands. We also need to examine whether the finding of the court below regarding the quantum of compensation stands. Adverting to the evidence of PW2, the fact that PW2 had seen the fire is fairly corroborated by the fact that PW1 in his evidence says that PW2 was one of the persons who visited him the next day and informed about the fire. We also do not find even a suggestion in cross examination that PW2 had any animosity or ill-will towards the defendant so as to speak against him. PW2 is a labourer. He and other persons who are working for one Baby in a rubber plantation were, going by deposition of PW1, there during the lunch recess. The totality of the evidence of PW2 does not persuade us to reverse the finding of the court of first instance rendered by believing the version of PW2 that the defendant was seen putting dry leaves on to the property of Kunhalan Haji, wherein, fire was burning and the defendant was seen running away from his property, when PW2 and his friends came running, seeing the AS.47/95 & 48/95 6 fire, in an attempt to put it out. Having thus confirmed the finding of the court below that DW1, the defendant, was liable for the incident and the loss caused to the plaintiffs, we have to examine whether the appreciation of evidence by the court below fixing the quantum of damages is proper and in accordance with law. 4.The court below may be justified to some extent in saying that there is the absence of specific denial of the plea regarding the quantum of damages since the defendant had put the plaintiffs to strict proof of the pleadings in that regard. But then, awarding damages would be only when the court is satisfied of the fact that the defendant has caused damage and after ascertaining the quantum of damage caused. The damages that would be awarded should have a definite relation to the proved damage. In this view of the matter, we find that the evidence of PW1 regarding the different aspects does not inspire confidence to hold that any AS.47/95 & 48/95 7 specific damage calling for award of damages, as has been done by the court below, is proved. Therefore, the only course that is open to the court is to award nominal damages, it having been proved that the fire resulted in some loss or damage to the rubber trees, that is, to the property of the plaintiffs, however, that the materials are insufficient to quantify the damages. Taking the overall facts and circumstances into consideration and having regard to the pleadings and evidence on record, we also take into consideration the fact that the suit was filed just on the day on which it would have become time barred even taking the allowance of the mid summer holidays. Thereby, the best evidence that could have been brought in was lost. Not even the mahazar of the connected criminal case is brought to the civil court and proved as enjoined by law. The application for issuance of Commission for local inspection was filed and orders obtained and Commissioner deputed only one year after the suit. The Commissioner's report does not throw any AS.47/95 & 48/95 8 light regarding the state of affairs immediately following the fire. Obviously therefore, in the absence of materials in that regard, the court can award only nominal damages necessarily on the basis of guess work. With the materials on record, we are of the view that each among the plaintiffs would not be entitled to more than Rs.10,000/- by way of nominal damages. 5.In the result, (i) the appeals are partly allowed. (ii) the decree passed by the court below in O.S.121/90 is modified by reducing the damages to Rs.10,000/-, with interest at the rate of 6% per annum from the date of suit till the date of realisation. (iii) the decree passed by the court below in O.S.122/90 is modified by reducing the damages to Rs.10,000/-, with interest AS.47/95 & 48/95 9 at the rate of 6% per annum from the date of suit till the date of realisation. (iv) Having regard to the facts and circumstances, it is ordered that the parties will bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.11/06.