IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 AS.No. 79 of 1997() ------------------- OS.332/1988 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF: ------------------------------------------ V.K.ABDUL ASEES, S/O.MOIDEEN KOYA, VALARATTA KUNNUMMAL, KURUVATTOOR AMSOM, PARAMBIL DESOM, KOZHIKODE. BY ADVS. SRI.V.V.SURENDRAN, SRI.P.M.PADMANABHAN. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE. 2. INSPECTOR GENERAL OF POLICE, KERALA, THIRUVANANTHAPURAM. 3. THE CITY POLICE COMMISSIONER, KOZHIKODE. R1 TO R3 BY GOVERNMENT PLEADER SRI. K.B. RAMANAND THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss “C.R.” THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.79 of 1997-E ------------------------------------------------------------------------ Dated 31st August 2010 Judgment Thottathil.B.Radhakrishnan, J. The plaintiff in a suit for compensation is the appellant. Alleging that he was brutally beaten up by the police at about 10 am on 09.01.1985 inside the campus of the High School, where the plaintiff was then studying in the 10th standard, the suit for compensation was laid on the ground that the plaintiff suffered serious injuries and was hospitalised for nearly a month and thereafter, continued further treatment. He had also undergone a surgery for the injury to a portion of his head. 2. While the plaintiff alleged that the police had entered the campus of the school and lathi charged the students, the defence version, as contained in the written statement filed by the State of Kerala and the AS No.79/97 2 Commissioner of Police is that the incident did not take place as alleged and but that, pursuant to a First Information Statement recorded from the plaintiff's uncle, an investigation was held in Crime No.6/85 of Chevayur Police Station, in which it was revealed that at about 11.30 am on 09.01.1985, about 300 students of the plaintiff's school caused obstruction on the road and deflated the tyres of vehicles and the Police tried to scare them away and the students dispersed for the time being, though, they later stopped a bus KRD 2471 and tried to deflate its tyres, which led the Sub Inspector of Police and other Policemen to run upto the bus, following which the plaintiff and other students ran away from that scene of occurrence and the plaintiff fell on the road and rolled down and in that process, sustained injuries. The written statement stands to refute that the injuries were caused due to any force used by the Police. 3. The plaintiff gave evidence as PW1. PW2 is one, who was a student of the said school, at the relevant AS No.79/97 3 point of time. He stated of having seen the plaintiff, being assaulted by the police, by poking a lathi into his belly and on his back, in the school compound and that the plaintiff was hit on his head, when he fell down. The said witness said that he and others ran away and the teachers took the plaintiff to hospital. He said that there were 8 to 10 policemen, who were involved in the assault, though he would not be able to identify anyone, as he could not see their faces properly. He refuted the defence suggestion in cross examination that he was tendering evidence supporting the plaintiff's case, owing to personal affinity towards him. 4. PW3, who, at that point of time was a tutor in the school and had left that institution about one year before he tendered evidence, spoke about the police action. The testimony of PW3 corroborates the version of PW2 regarding the material particulars including the manner in which the plaintiff suffered the assault. Nothing is brought out in the cross examination of PW3 to suggest AS No.79/97 4 either that he was not available or that he had any animosity towards the Police officials. While he tendered evidence, he was a teacher and when he gave evidence, he was the Headmaster of another school. 5. PW4 is the doctor, who treated the plaintiff and who recorded Ext.A1 Accident Register-cum Wound Certificate. Ext.A2 is a reference card issued from the Medical College Hospital, Kozhikode. Ext.A11 is a certificate issued by PW4. The medical records produced as Exts.A1 to A11 would show that the plaintiff was an inpatient in the Medical College Hospital from 10.01.1985 to 07.02.1985. Ext.A1 Accident Register-cum Wound Certificate records that the incident had occurred at 11 am. and that the plaintiff, who was the injured, attributed the incident to police assault. Those statements have been recorded and reflected in Ext.A1, prepared by PW4 Doctor. Those entries have been made by PW4 in the common course of his official conduct as a doctor in the hospital. We find no contra-evidence and thus, such materials AS No.79/97 5 corroborate the version that the incident occurred before 11 a.m. on the crucial day. 6. As already noticed, the plaintiff was an inpatient of the Medical College Hospital, Kozhikode from 10.01.1985 to 07.02.1985. The documentary and oral evidence including that of PW4 Doctor, would show that the injury was a grievous one. The injured had a contusion over right-temporal region and the patient was unconscious and in a serious condition. The second contusion was 3x2 cm middle of front of upper arm and there was another contusion of 3x2 cm over both scapula region. The Doctor has categorically stated that the plaintiff had sustained intra-dural laemcitoema and emergency temporal burr hole right side was done on 10.01.1985 and was then referred to Neuro Surgery Department for further treatment. The operation was in the skull. 7. Now, we would refer to Ext.A2 reference card of the Medical College Hospital. It evidences the date of admission of the patient, date of discharge etc. The AS No.79/97 6 diagnosis is Extradural Haemorrhage and the operation conducted was temporal burr hole right. The said reference card records the history of the case as follows : “Alleged to have been assaulted at 11 am on 09.01.1985. He was unconscious and vomitting and was subjected to emergency burr hole and was put on antibiotics and various other medicines and was provided IV fluid support. He had an unevenful post operative period and was referred to the Neurology OP.” 8. We deem it to be appropriate to notice that even on 10.04.1985, the doctors had noted on review, that vague symptoms still persisted and he continued thereafter also to be under treatment. 9. Exts.A3, A4 and A5 are the subsequent OP tickets, which would show that the plaintiff continued to be under treatment. Ext.A11 certificate issued by PW4 is to the effect that the plaintiff was treated in Ward No.9 of the Medical College Hospital, Kozhikode, following the alleged assault by the Police by lathi in the compound of AS No.79/97 7 Vellimadukunnu JDC Islam School. The date of admission to the hospital was 10.01.1985 and the date of discharge was 07.02.1985. It was also stated therein that he had sustained extradural haemorrhage and emergency burr hole right was done on 10.01.1985 with IP No.1189 and that he was then referred to the Neurology Department for further treatment and was still continuing treatment from Neurology Department. That certificate was issued on 16.10.1987. 10. The cash bills produced as Exts.A12 to A55 would show that during 1985-86, 1988 upto August 1991, the plaintiff continued to be under treatment though he was not an inpatient. 11. With the aforesaid materials on record, the court below held that the incident as pleaded by the plaintiff has not been proved and that the suit is barred in having been filed beyond the period of limitation prescribed under S.64(3) of the Kerala Police Act, 1960. AS No.79/97 8 12. The learned counsel for the appellant argued that the materials on record categorically showed that the plaintiff suffered injuries as a result of the assault by the police and no justification, whatsoever, is shown by the police for such an action. He, therefore, argued that the incident itself showed the negligent and deliberate contradiction of the statutory duties. He accordingly says that the finding that no negligence is proved is unsustainable. It is further argued that since it is not, and it cannot be shown that the action of the police as alleged is part of the official duties, the period of limitation under S.64 (3) of the Police Act, would not apply. In support of this contention, the learned counsel cited the Bench decision of this Court in Pathumma v. State of Kerala (2000(2) KLT 827). 13. Per contra, the learned Government Pleader appearing for the State, argued that as against the denial of the defendants in the written statement in that regard, there is no legal evidence of any incident having occurred AS No.79/97 9 inside the school and that no Police Officer has been impleaded in his personal capacity. He also specifically pointed out that the investigation conducted in the crime registered by the police led to a refer report and that has not been impeached. The learned Government Pleader further argued that the legal evidence on record does not prove any damage having been caused, calling for award of compensation. He also argued that there is material contradiction between the oral evidence of PWs 1 to 3 and therefore, the incident as alleged, has not been proved. 14. The fact that an incident occurred on 09.01.1985 and that the plaintiff was injured, is not in dispute. The plaintiff's version is that he was assaulted inside the school compound and the police had unauthorisedly got into the school compound and assaulted him. The defence version is that the students had gathered in a group and were involved in unlawful activities of deflating the tyres of vehicles and the police had dispersed them, following which the plaintiff and some AS No.79/97 10 others again crowded near a bus and attempted to deflate its tyres. It is the specific case of the defence that the Sub Inspector of Police and two Police Constables ran towards the bus and seeing them, the plaintiff and other students ran away and in that process, the plaintiff fell, rolled down and thereby sustained injuries. On this specific version being placed by the defendants, it was essentially the burden of the defendants to show that a transaction as pleaded by the police authorities and the State, had actually occurred. The police power of the State, which includes power to prevent the occurrence of unlawful incidents, bestow on the State officials, a duty to explain an incident, which admittedly, had happened. In the case in hand, there is no shred of evidence in this regard. No witness has been examined by the defendants. No documentary evidence was placed by the defendants. The so-called refer report was not placed before the Court by the defendants. The argument on behalf of the defendants that there is nothing on record to show that the police AS No.79/97 11 entered the campus without the permission of the Headmaster or without being called by the Headmaster, does not stand, for the simple reason that any movement of the police in that regard and any request of the school authorities were matters that would be reflected in the General Diary prepared in the Police Station. No material has been placed on record to prove that their version is true. Equally, there is no reason, why this Court should eschew the first among the statements, in the official documents of the Government Hospital, in which the reason for the injuries is attributed to assault by the police. 15. The version of PW2, who is a student of the school, cannot be brushed aside. It may be true that upon seeing the incident alleged, he ran away. This only reflects the common course of human conduct. No student will remain in a scene of police action which may cause injuries to persons. Under such circumstances, the testimony of PW2 student and PW3 teacher, give credence to the plaintiff's version that the teachers of the school had AS No.79/97 12 removed the plaintiff to the hospital. We, on the totality of the materials on record, hold that on a preponderance of probability, the plaintiff has established that the injuries sustained by him were attributable to the actions of police Officials. 16. The court below took the view that the plaintiff had not been able to establish negligence on the part of the defendants. With the materials on record, we are satisfied that the plaintiff has proved that the incident occurred and that he was injured in the assault by police. As already noticed, the police had a definite version regarding the incident. When police action happens in a place, it cannot, but, be assumed that the police was in control and the police would be the best authority, to give a reasonably dependable version, unless of course, such a version turns to be unbelievable. Here, there was no evidence tendered by the police as none was examined. The situation would be similar to one, where the principle of res ipsa loquitur could be applied to cases of accidents AS No.79/97 13 where the incident itself bespeaks negligence in the common course of police action as permissible in law. We do not expect any boy in the 10th standard, being hit on his head by a lathi. The contra-version of the police that the plaintiff ran on seeing the Sub Inspector of Police and the police constables and fell on the road and rolled down, is not proved even by a preponderance of probability. There is no shred of evidence in support of that plea of the defendants. Therefore, we disagree with the findings of the court below on the ground of negligence. 17. Insofar as the plea of limitation is concerned, we are in complete agreement with the law laid down in Pathumma (supra). The actions which have been proved on a preponderance of probability to the satisfaction of this Court, are not those which could be treated as part of the duly authorised official acts of police. Hence the ratio of Pathumma (supra) applies to the case in hand and hence it has to be held that the suit is not barred by limitation. AS No.79/97 14 18. With that, we reverse the findings of the court below to the contrary and hold that the defendants are liable to compensate, if any damage is shown to have been caused. 19. The plaintiff was a student of the 10th standard. The medical evidence on record shows that he suffered grievous injuries. He was hospitalised for nearly a month. On the date of incident, he had to undergo an emergency surgery. The surgery was to rectify the extradural heamorrhage suffered by him. He had to undergo emergency temporal burr hole on the right side of the skull. The continued treatment in the Neurology Department and other attendant continued medication as evidenced by the cash bills show that the plaintiff had suffered financial loss, physical pain and mental agony and to some extent, loss of continued potentialities. It is his version as PW1 that his mother had to borrow funds from different persons and provide for his treatment. The cash bills produced would reflect only a sum of below Rs.1,000/-. AS No.79/97 15 That was in 1985. The case sheet and other documents on record show that the plaintiff underwent surgery and was on heavy medication. Fortunately, he got the facilities of a Medical College Hospital, where the charges and cost of medicines may be minimal. 20. Having regard to the totality of the facts and circumstances of the case and taking into consideration the different heads of counts under which the plaintiff would be eligible for compensation, we are of the view that the plaintiff will be entitled to a total sum of Rs.80,000/- (Rupees Eighty Thousand only) towards damages as compensation on all counts, after setting off an amount of Rs.3,500/- which is stated to have been paid by the State Government through the District Collector, immediately following the incident. In the result, we set aside the impugned decree and judgment and pass a decree, allowing the plaintiff to recover an amount of Rs.80,000/- with interest @ 6% per annum from the date of the suit i.e., from 07.01.1988 till the AS No.79/97 16 date of realisation with proportionate costs before the court below and in this appeal. As regards the court fee, having given our anxious consideration, we direct under Order XXXIII Rule 10 CPC that no amount shall be recoverable by the State Government from the plaintiff as court fee either in relation to this appeal or in relation to the suit and such court fee shall be suffered by the State Government. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS No.79/97 17