IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 AS.No. 726 of 1999(B) --------------------- OS.381/1994 of PRINCIPAL SUB COURT,ALAPPUZHA .................... APPELLANT(S): DEFENDANT ------------------------------- M.A.LATHEEF, CHERUKARA VEEDU KARUMADI, AMBALAPUZHA BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.VISWAMBARAN SRI.R.O.MUHAMED SHEMEEM SRI.T.H.ABDUL AZEEZ RESPONDENT(S): PLAINTIFF -------------------------------- S.ABDUL LATHIFF MUSALIAR KATTOOR HOUSE, KOMANA AMBALAPUZHA. ADV. SRI.JAIJI ITTEN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== A.S.No. 726 OF 1999 =========================== Dated this the 1st day of February,2010 JUDGMENT Defendant in O.S.No.381/1994 on the file of Principal Sub Court, Alappuzha is the appellant. Plaintiff therein is the respondent. Respondent instituted the suit claiming Rs.1,00,000/- namely Rs.75,000/- which was paid to the appellant and Rs.25,000/- as damages including medical expenses. Case of the respondent in the plaint was that he was a religious teacher attached to Madressah attached to I.C.S, Yethimkhana in Sasthamkotta during 1993. Appellant promised the father of the respondent that he could arrange a job of Madressah teacher in Soudhi Arabia if Rs.75,000/- is paid. Respondent along with the father contacted the appellant. The appellant promised that he could arrange the job getting A.S.726/1999 2 a monthly salary of Rs.20,000/- in addition to free food and accommodation at Curfiji in Saudi Arabia. On enquiry it was found that appellant was working as a recruting agent for several years and had sent several persons to gulf countries. Respondent raised Rs.75,000/- and paid the same to the appellant and also entrusted his passport. Thereafter appellant contacted the respondent and as directed respondent went to Saudi Arabia from Bombay on 8.9.1993. When he arrived at Riyad Airport, some Arabi Nationals took him against his wishes to a place called Khurayath, and he was confined in a room and directed to do the work of unloading goods from trucks. It is contended that though respondent resisted stating that the offer was to work as a teacher, he was compelled to do the job of unloading and while so in October 1993 he fell down from a truck and sustained serious injuries and was hospitalised and even after discharge from the hospital he had to spent several A.S.726/1999 3 months in bed and during that time Malayalees of that place helped him. Respondent was sent back and he returned to India on 10.7.1994. Even after reaching Bombay only with the help of Malayalees therein he could reach back to the native place. Through the father respondent filed a complaint before District Superintendent of Police, Alappuzha and a case was registered. Though appellant promised to repay the amount, it was not repaid though in respect of some others part of the amount were returned. Respondent therefore sought a decree for a realisation of the amount paid as well as the damages, including the medical expenses for the treatment consequent to the fall while being employed in Saudi Arabia. 2. Appellant resisted the suit denying the entire transactions. It is contended that appellant had no contact with the respondent or his father. He did not promise to arrange any job. He did not receive any money. He did not receive the A.S.726/1999 4 passport. He did not arrange any job. Therefore he is not liable to pay any amount. It is also contended that though respondent filed a complaint before Judicial First Class Magistrate Court, Alappuzha after police submitted a refer report, that case is pending. Respondent is not entitled to get any amount from the appellant. 3. Learned Sub Judge after framing necessary issues recorded the evidence of respondent as PW1, his father as PW4 and that of two other similarly placed persons who were allegedly offered jobs and had to undergo the same fate of suffering at Saudi Arabia, as Pws. 2 and 3. On the side of the appellant, he was examined as DW1. Exts.A1 to A21 were marked on the side of the respondent and Exts.B1 to B5(a) were marked on the side of the appellant. In addition Exts.X1 and X1(a) were also marked when PW3 was examined. Learned Sub Judge on the evidence found that though Ext.A1 receipt was produced by the respondent to prove that he had A.S.726/1999 5 received Rs.52,000/- out of Rs.75,000/- paid, by selling the gold ornaments of his wife, disbelieved the receipt. Similarly Exts.A2 and A5 certificates produced by the respondent were disbelieved. But relying on the evidence of Pws. 1 and 4 corroborated by the evidence of Pws. 2 and 3 learned Sub Judge found that Pws 2 and 3 were also offered jobs by the appellant and their evidence show that Rs.65,000/- to Rs.75,000/- were paid to the appellant and in the nature and circumstances of the case at least Rs.50,000/- would have been paid to get the job and therefore held that respondent is entitled to realise that amount. Though the medical certificate produced by the respondent to prove that he was treated on his return for the injuries sustained, while he was working at Saudi Arabia, were disbelieved learned Sub Judge finding that respondent had a very bad time in Saudi Arabia which occurred only due to the fault of the appellant found that respondent is A.S.726/1999 6 entitled to get Rs.10,000/- as damages. Therefore a decree was passed directing the appellant to pay Rs.60,000/- as damages with 12% interest from the date of the suit till the date of the decree and thereafter at 6% till realisation. Appeal is filed challenging the decree and judgment passed by the learned Sub Judge. 4. Appellant contended that learned Sub Judge did not properly appreciate the evidence and should have found that respondent could not have offered a job of a teacher with his limited knowledge and the evidence of Pws.1 and 4 should not have been believed to hold that Rs.50,000/- was paid for securing the job especially when the case of payment of Rs.75,000/- was disbelieved by the learned Sub Judge. Appellant also contended that when it is found that Ext.A1, based on which respondent claimed he received Rs.52,000/- is unreliable should have found that respondent did not pay any amount as alleged. It is also A.S.726/1999 7 contended that when the medical certificate to prove the illness was rightly disbelieved,learned Sub Judge should not have granted any damages. It is also contended that visa enquiry form establishes that the entire case of the respondent is false and even if respondent was offered any job and was given, he is not entitled to claim any amount from the appellant and the learned Sub Judge granted the decree only on sympathy and therefore the decree and judgment are to be set aside. 5. Learned counsel appearing for the appellant vehemently argued that on the evidence learned Sub Judge should not have granted the decree. It was pointed out that though it is the case of the respondent that out of Rs.75,000/- allegedly paid to the appellant, Rs.52,000/- was the money obtained by selling gold ornaments evidenced by Annexure A1 and when the intrinsic evidence in Ext.A1 proves that it was a concocted document created later in support of the claim and was A.S.726/1999 8 disbelieved, learned Sub Judge should not have believed that any payment was made as alleged in the plaint. Learned counsel also argued that there is no acceptable evidence to show that appellant promised the job or received any amount from the respondent and in the absence of legal evidence, a decree should not have been granted. Learned counsel further argued that even according to the respondent, he was working in Saudi Arabia and his evidence establishes that the job he was given, is the one which is shown in the visa as well as the passport and therefore the case of the respondent that he was offered the job of a teacher can never be true and on that ground also the suit should have been dismissed. Learned counsel also argued that no evidence to prove Ext.A2 was adduced and in the absence of evidence, it cannot be believed that respondent was having experience as a teacher for eight years in Madressah as canvassed and in any event, as he was working in A.S.726/1999 9 Saudi Arabia, no decree should have been granted. 6. Learned counsel appearing for the respondent argued that learned Sub Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the appreciation of evidence, especially when the trial Judge having opportunity of appreciating the demeanour of the witnesses accepted the evidence of Pws.1 to 4. Learned counsel also pointed out that appellant has no case that the offer was to give the job of a labourer and it was given and therefore respondent is entitled to return of the amount already paid, and when the case is that he has no contact with the respondent and not that he was given the job offered and hence appellant is entitled to the decree and in such circumstances, appeal is only to be dismissed. 7. The following points arise for consideration. 1. Whether appellant made any A.S.726/1999 10 promise to give the job of Madressah teacher in Saudi Arabia and whether appellant received any amount from the respondent and if so, whether respondent is entitled to claim it back. 2) Whether appellant is liable to pay any damages and if so, whether the damages awarded by the learned Sub Judge is legal and sustainable. The specific case of the respondent was that while working as a teacher in a Madressah, Madressah getting information that appellant is taking people to gulf countries for employment, PW4, the father approached the appellant and appellant then offered to take the respondent and give him the job of a teacher in a Madressah attached to the Customs House at Saudi Arabia, on payment of Rs.75,000/- A.S.726/1999 11 and handed over the passport believing the inducement made by the appellant and respondent paid Rs.75,000/- for arranging the visa. It is the case that thereafter appellant contacted the respondent over phone and as instructed respondent went to Bombay and from there he was sent to Riyad. It is the case that from Riyad respondent was made to go in a truck to Khurayath and informed that he has to work as labourer and when respondent refused, he was beaten and was made to work as a labourer by force and later he had a fall from the truck and was hospitalised and thereafter he was sent back from Saudi to Bombay. It is the case that, though the offer was to give employment as a teacher, what was given was the work of an unloading labourer. The respondent sought to establish his case by examining himself as PW1 and the father as PW4 and Pws. 2 and 3 two persons who suffered the similar unfortunate fate of the respondent after being taken to Saudi Arabia. A.S.726/1999 12 Respondent has a case that out of Rs.75,000/- paid he received Rs.52,000/- by selling the ornaments of his wife and Rs.13,000/- was advanced by his father and Rs.10,000/- was given by the father-in- law and thus he paid Rs.75,000/-. Ext.A1 was produced to prove the sale of gold ornaments for realisation of Rs.52,000/-. Learned counsel vehemently argued that Ext.A1 cannot be relied on as it contains a six digit telephone number which would not have been there if it was issued in 1993. Reliance was placed on the relevant entry in Ext.B1 Telephone Directory to show that during the relevant period there was no six digit telephone number and therefore Ext.A1 was manipulated later. Learned Sub Judge on appreciating Exts.B1, B4 and B5, with Ext.A1 found that Ext.A1 was obtained for the purpose of suit later and therefore it cannot be relied on. On the evidence, I find no reason to interfere with that finding as on the date when it was purportedly issued, there cannot be a A.S.726/1999 13 telephone with six digit number. 8. But the question is whether there is evidence to prove that there was a promise to give a job to the respondent in Saudi Arabia by the appellant. It is to be born in mind that it is not the case of the appellant that he offered the job of a labourer to the respondent and it was accepted and that job was given and he lost the job subsequently out of his own fault and therefore appellant is not liable. Instead it is the case that he has nothing to do with the appellant. He denied the promise made to the appellant or giving any job to him or taking him back from Saudi Arabia. There is no case that any agreement evidencing the transaction or showing the terms and conditions of the agreement was entered into. Therefore the question can be settled only on the available evidence. 9. To prove the existence of the transaction, the standard of proof as required in a criminal A.S.726/1999 14 case cannot be insisted. The question whether the case of the respondent is to be believed or that of the appellant is to be accepted is a matter for consideration and it can be decided only on the broad preponderance of probabilities of the case. 10. Exts.A6 and A7 are the two letters written by the respondent to his father PW4, from Saudi Arabia during the relevant period. PW1 deposed that Exts.A6 and A7 are the two letters sent by him to the father from Saudi Arabia. PW4 also given evidence that those letters were received from his son, the respondent. Exts.A6 and A7 contain the postal envelopes containing the seal showing the place from where they were sent and received. It shows that the envelops contained the dated seal, which establishes that those letters were sent during 1993 and 1994. Though learned counsel appearing for the appellant vehemently argued that the letters produced along with the envelop need not be the letters written during 1993 and 1994 A.S.726/1999 15 and could have been subsequently created and produced by the respondent to establish his case at a later stage, I find that even when Pws.1 and 4 were examined, such case was not projected. There was not even a suggestion that the letters sent along with the envelops, were created later after he returned back to India or were written from Saudi Arabia for the purpose of instituting a suit or lodging a police complaint. Therefore I have no hesitation to accept Exts.A6 and A7, as the letters written by the respondent while he was in Saudi Arabia. The inherent evidence available in the letters speaks volume. If that be so, Ext.A7 letter written on 17.8.1993 from Khurayath to PW4 the father establishes that respondent was living there under pitiable circumstances. It also corroborates the version of Pws.1 and 4 that appellant had promised him to provide a job of a Madressah teacher to the respondent. The letter written by the respondent to the father establishes A.S.726/1999 16 that father was requested by the respondent to contact the appellant and inform him that as promised the job of a Madressah teacher was not given to the respondent and instead respondent was made to work as a labourer. Ext.A7 written by the respondent to the father subsequently on 8.2.1994, establishes that in reply to Ext.A7 letter the father informed the respondent that appellant had agreed to look into the matter and do the needful and appellant had been at Khurayath and respondent had disclosed the entire facts to the appellant and in turn he was promised that the needfulwould be done and later before 8.2.1994 appellant had been at Khurayath and he promised the respondent that he will get the promised job after some time and requested to be patient. Therefore if Exts.A6 and A7 are genuine, they corroborate the version of the respondent that there was a promise by the appellant to give the respondent a job of a Madressah teacher and later he was made to work as A.S.726/1999 17 a labourer. 11. Learned counsel appearing for the appellant argued that Ext.A6 and A7 do not show that any amount was paid by the respondent to the appellant much less Rs.75,000/-as canvassed and if the amount was paid, it would have been reflected in the letter and absence of any mention of payment can only be for the reason that appellant did not receive any amount from the respondent or made any offer or undertaking to the respondent and therefore the case is to be disbelieved. It is to be born in mind that there was no occasion or necessity for the respondent to project the case of payment of money in Exts.A6 and A7 letters written from Saudi Arabia. The grievance at that time was with regard to the failure of the appellant to provide the promised job. Exts.A6 and A7 support the case of the respondent that there was an offer to furnish the job and it was not given. If that be so, respondent is entitled to the amount if any, A.S.726/1999 18 paid earlier to secure the employment. 12. True, when the case of the respondent was that he had paid Rs.75,000/- learned Sub Judge found that appellant is liable to pay only Rs.50,000/- and therefore it is argued that the case is to be disbelieved. Learned Sub Judge though disbelieved Ext.A1 and the evidence of Pws.1 and 4 with regard to the payment of Rs.75,000/-, relying on the evidence of Pws.2 and 3 who were also paid amount for procuring visa to get employment in Saudi Arabia, establishes that respondent would have definitely paid the amount to the appellant. Learned Sub Judge fixed Rs.50,000/-, based on the broad probabilities of the case. On the evidence I find no reason to interfere with that finding. 13. But the question is whether respondent is entitled to get the entire Rs.50,000/- refunded. Learned counsel appearing for the appellant pointed out that there is no case for the respondent that A.S.726/1999 19 he had met the expenses for his travel from India to Saudi Arabia or that in addition to the amount paid to the appellant and claimed in the suit, he had spent any further amount for his transport. If the transport expenses were not met by the respondent, as he had already travelled to Saudi Arabia and though he did not get the promised employment, he cannot ask for refund of transportation expenses. Unfortunately no evidence was adduced either by the respondent or the plaintiff on this aspect. Considering the fact that a suit was instituted in 1994 and has been pending all these years, I do not find that a remand for that purpose is warranted, especially when neither the respondent nor the appellant pleaded this fact. But as it is not the case of the respondent that he met the travelling expenses and it is admitted that he had gone to Saudi Arabia by air, a reasonable sum of Rs.10,000/- is to be taken as the transportation expenses. That A.S.726/1999 20 amount has to be deducted from Rs.50,000/- which was found to be payable by the appellant to the respondent. 14. Learned Sub Judge in addition granted Rs.10,000/- as damages. The argument of the learned counsel is that though it is alleged that respondent sustained an accident by falling from a truck and consequent to the injuries he was under the treatment and is continuing the treatment and therefore he is entitled to the damages. The learned Sub Judge on the evidence found that the medical certificates produced is not be genuine. That finding is absolutely correct. It was argued that hence respondent is not entitled to get any damages. Though Exts.A4 and A5 were not relied on, compensation for damages was not granted for the injuries sustained. The evidence establish that there was a promise to give employment as a teacher and respondent was forced to work as a labourer. It also establishes that as labourer, A.S.726/1999 21 respondent had to undergo many hurdles, physical and mental. In such circumstances learned Sub Judge was justified in granting a damages of Rs.10,000/-. In such circumstances, appeal is allowed in part. The decree and judgment passed by the Sub Judge, Alappuzha is modified as follows:- Respondent plaintiff is allowed to realise from the appellant defendant a sum of Rs.50,000/-(Rupees fifty thousand only) with interest at 12% per annum from the date of the suit till this day and thereafter at 6% per annum and proportionate cost throughout. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006