IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 AS.No. 802 of 1998(A) --------------------- ( OS.1/1995 of SUB COURT, KASARAGOD) .................... APPELLANTSIN AS/DEFENDANTS IN SUIT: ------------------------------------------------------------ * 1. GOPALDAS CHOWTA, S/O.NARAYANA CHOWTA, RESIDING AT DARBE HOUSE IN MEENJA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, P.O MEEYAP;ADAVU, VIA. MANJESHWAR. (DIED) 2. NONAYYA GOWDA, S/O.LINGAPPA GOWDA, C/O.GOPALDAS CHOWTA, IN DO. DO. ADDL. APPELLANTS 3 TO 5 IMPLEADED -------------------------------------------------- * ADDL. A3. BHARATHI CHOWTA, W/O.LATE GOPALADAS CHOWTA, KODI HOUSE, PALLANTHADKA, MEENJA VILLAGE, KASARAGOD. ADDL.A4. NAVYA CHOWTA, D/O.LATE GOPALADAS CHOWTA, KODI HOUSE, PALLATHADKA, MEENJA VILLAGE, KASARAGOD. ADDL.A5. NARESH CHOWTA, S/O.LATE GOPALADAS CHOWTA, KODI HOUSE, PALLATHADKA, MEENJA VILLAGE, KASARAGOD; ADDL.APPELLANTS 3 TO 5 ARE IMPLEADED AS LR'S OF DECEASED 1ST APPELLANT AS PER ORDER DT.23.7.02 ON CMP.1140/02. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT: ------------------- SUBRAHMANYA BHAT, SON OF B. GOVINDA BHAT, RESIDING AT DAMBETHODI, MEENJA VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT P.O.MEEYAPADAVU, VIA, MANJESHWAR . BY ADVS. SRI.P.SHRIHARI SMT.P.VANI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/11/2010, ALONG WITH AS NO. 168 OF 2000 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK M.N. KRISHNAN, J. ........................................... A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 ............................................. Dated this the 12th day of November, 2010. J U D G M E N T A.S.No.168/2000 is preferred against the judgment and decree passed by the Subordinate Judge's Court, Kasaragod in O.S.No.240/1994 and A.S.No.802/1998 is preferred against the judgment and decree of the same Court in O.S.No.1/1995. Both the suits are for damages for the injury sustained and the trial court had granted a decree for Rs.2,000/= in O.S.No.240/1994 and Rs.35,000/= in O.S.No.1/1995. It is against those decisions, these appeals are preferred. The brief facts necessary for the disposal of these appeals are stated as follows: 2. It is the case of the plaintiffs that they are the owners in possession of the properties comprised in R.S.No64/1 and 65/2 of Meenja village in Kasaragod taluk. Both the plaintiffs on 12.1.1994 had gone to their garden to pluck arecanuts. While so the first defendant in the suit assaulted the plaintiff in O.S.No.1/1995 and as a result of : 2 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 which he fell down. When the plaintiff in OS.No.240/1994 went there to stop it, he was also waylaid by the second defendant and he was pushed as a result of which he fell down and thereafter he was kicked which affected his private parts and thereby both sustained injuries and therefore they claimed damages. 3. On the contra, the defendants would contend that the property belonged to the first defendant and he along with the second defendant was watering in the arecanut garden by sprinkling water and at that time the plaintiffs in the suit with another person came with an iron rod etc attacked the first defendant and he ran away from the place and he was beaten and that resulted in injuries to him. According to him, it was the plaintiffs who were the aggressors and therefore, defendants are not liable to pay any damages. 4. In the trial court, PWs 1 to 3 and DW1 were examined, Exts.A1 to A41 and B1 and B1(a) were marked. On an analysis of the materials, the court granted a decree for : 3 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 Rs.2,000/= in O.S.No.240/94 and a decree for Rs.35,000/= in the other case. It is against that decisions, these appeals are preferred and during the pendency of these appeals, the first defendant in the suit died and his legal representatives are impleaded as the supplemental appellants before this Court. The crux of the matter is regarding entitlement of the damages to the respective plaintiffs in these cases. It has to be stated that the contention of the plaintiffs is that they are the owners in possession of the property comprised in Sy.Nos.64/1 and 65/2. According to them, they went to the areca garden for plucking the arecanuts. It was at that time, the defendants had attacked them resulting in injuries to them. 5. The defendants, on the other hand, would contend that it is the property of the first defendant and it was the plaintiffs who had trespassed into their property, attacked them and caused them injuries. A perusal of the judgment would reveal that two criminal cases were registered and they are C.C.No.201/1994 against the plaintiffs and : 4 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 C.C.No.160/1994 against the defendants. The case registered against the plaintiffs had ended in acquittal and in the other case the trial court convicted the accused under different sections and ultimately in appeal, the Sessions Judge had acquitted them and a copy of the said judgment is made available before this Court as I.A.No.1090/2003. So there has been a reversal of the order of conviction. 6. In a case of civil nature where damages are claimed it is the materials that are suppled before the court have to be looked into and the matter to be decided in accordance with the preponderance of probabilities available. Being a civil case, it is desirable to look into the possessory aspect which may throw some light on these cases. The plaintiffs' father and the defendants' predecessor were engaged on consecutive and continuous litigations. When the father of the plaintiffs' obtained a decree against the predecessor of the first defendant, there was transfer of a portion of the property by the said person in favour of the first defendant. There was a suit O.S.No.50/1968 and : 5 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 ultimately an injunction order has been passed in that case in favour of the plaintiffs therein i.e., the predecessor in interest of the present plaintiffs. The predecessor in interest of the defendants namely Krishna Moolya was a party and the present first defendant also got himself impleaded in that case and had suffered the decree of injunction or order of injunction. So prima facie materials are sufficient to establish that there is an order of injunction passed against the first defendant and other. When examined as DW1 also, the first defendant had admitted that the property purchased by him takes in a portion of R.S.No.65/2. It is with respect to this R.S.No.65/2, there is an order of injunction. So preponderance of probabilities would reveal that the plaintiffs were in possession of the property. I am referring to this for the reason that here is a case where one has to find out who is the aggressor. Admittedly the incident had taken place on 12.1.1994. It is also revealed from the records that the plaintiffs had sustained injuries. The plaintiff in O.S.No.1/1995 had sustained serious head injury and had : 6 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 undergone a surgery and a prolonged treatment. On the contra the first defendant would contend that he was attacked by the plaintiffs which resulted in injuries to him. Not even a scrap of paper is produced before the civil court to establish that he had sustained such an injury and that he had undergone treatment. From the points which I have discussed earlier, it appears that the plaintiffs were in possession of the property. Naturally when an incident takes place in the property, necessarily the aggressors should be the persons who have come into that property. There was no necessity for them to come to that property unless they had the intention to attack. Therefore the fact that the plaintiffs were in possession of the property and the fact that they had gone to the plaint schedule property to pluck arecanuts and that presence of the defendants at that place strongly probablise the case of the plaintiffs. Unfortunately before us the principal aggressor namely the first defendant is no more. Both PW1 and PW2 before the civil court had stated and narrated how the incident took : 7 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 place. According to the plaintiff in O.S.No.1/1995, he was hit by a stick on his head by the first defendant as a result of which he had fallen down. According to the plaintiff in the other case, when he attempted to interfere he was wrongly restrained by the second defendant and thereafter he was pushed as a result of which he fell down and thereafter the defendants kicked on his body which resulted in injuries to his private parts. So far as the injuries with reference to the plaintiff in O.S.No.1/1995 is concerned, it is absolutely corroborated by the medical evidence tendered in the case as well by the evidence of the doctor- PW3. The doctor had negatived the suggestion that such an injury can be by a mere fall. His evidence would reveal that the injury sustained by the plaintiff in O.S.No.1/195 is on account of a direct hit by the first defendant who is no more now. So far as the injury sustained by the other plaintiff is concerned, the trial court has also discussed about the inconsistencies and the variations but granted a nominal compensation for the reason that he was also a victim of the aggression made : 8 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 by the defendants in these cases. 7. On the other hand, the evidence of the defendants namely the first defendant alone which was available does not throw any light on his innocence or the aggression by the plaintiffs on him. Therefore I find that the trial court was justified in holding that the plaintiffs are entitled to the relief. 8. Now regarding the quantum. So far as the plaintiff in O.S.No.240/1994 is concerned, the trial court has only granted a nominal a compensation of Rs.2,000/= and therefore it does not call for any interference. So far as the other case is concerned, the injuries sustained are also very severe in nature but there must be material to prove the medical expenses really incurred or to be incurred. I had added up the medical expenses and I find that about Rs,10,860/= have been spent towards medical expenses. The doctor has deposed that a further amount of Rs.22,000- 25,000 is necessary for the purpose of undergoing another treatment. The incident had taken place in the year 1994 and : 9 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 we are in the year of 2010 and certainly if the plaintiff in O.S.No.1/1995 had undergone treatment and had incurred that much of expenditure, he should have produced some tangible evidence to support that contention. But, unfortunately, it is absent. But whatever it may be, the evidence of the doctor is to the effect that the person requires another surgery and grafting and therefore approximately some expenses has to be given. The learned counsel for the respondents would submit before me that some amount had been spent. But in the absence of concrete evidence, I cannot accept it in toto and therefore I am inclined to grant a slight deduction of damages in O.S.No.1/1995 by reducing Rs.5,000/= from Rs.35,000/=. 9. In the result, A.S.No.168/2000 is dismissed and A.S.No.802/1998 is partly allowed by decreasing the amount of Rs.5,000/= i.e., from Rs.35,000/= to Rs.30,000/= with 6% interest per annum from the date of suit till realisation. Considering the facts and circumstances of the case, I direct the parties to bear their respective costs in these appeals. : 10 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 Since the first defendant is dead, the amount can be realised from the assets of first defendant in the hands of the legal representatives. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 11 : A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.802 OF 1998 & A.S.NO.168 OF 2000 ............................................. 12th day of November, 2010. J U D G M E N T