1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.04.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.108 of 2011 1.N.Selvi 2.Minor N.Meena (Minor second appellant is represented through her mother and natural guardian and next friend viz., the first appellant) .. Appellants/Plaintiffs Vs. 1.The Dean, K.A.P.V. Medical College – Hospital, Puthur, Tiruchirappalli – 620 017. 2.The Secretary for Health, State of Tamil Nadu, Department of Health, Secretariat, Chennai. 3.The State of Tamil Nadu rep. by its District Collector, Collectorate, Tiruchirappalli – 620 001. .. Respondents/Defendants Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.10.2008 passed in Appeal Suit No.171 of 2008 by the Principal District Court, Tiruchirappalli confirming the Judgment and decree dated 05.01.2007 passed in Original Suit No.262 of 2005 by the Sub Court, Tiruchirappalli. For Appellants : Mr.A.Hajamohideen For Respondents : Mr.D.Gandhiraj Government Advocate JUDGMENT Challenge in this second appeal is to the concurrent Judgments and decrees passed in Original Suit No.262 of 2005 by the Sub Court, Tiruchirappalli and in Appeal Suit No.171 of 2008 by the Principal District Court, Tiruchirappalli. 2. The appellants herein as plaintiffs have instituted Original Suit No.262 of 2005 on the file of the trial Court praying to pass a decree of compensation, wherein the present respondents have been shown as defendants. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The nubble of the plaint can be stated like thus: The husband of the first plaintiff and father of the second plaintiff viz., Natarajan has been admitted in K.A.P.V. Medical College Hospital, Tiruchirappalli as an inpatient and he has undergone so many tests and ultimately found that he has been affected by H.I.V. From 06.10.2003 to 20.10.2003, the first defendant has conducted an exhibition, wherein the photographs of the plaintiffs and the said Natarajan are exhibited and the same have been seen by so many relatives and subsequently a notice has been issued to the defendants and even after receipt of notice, the defendants have not paid anything to the plaintiffs by way of compensation. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 4. On the side of the defendants, written statement has not been filed. 5. The trial Court has dismissed the suit simply on the ground that no proof of evidence is available on the side of the plaintiffs. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.171 of 2008 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiffs as appellants. 7. As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/ plaintiffs, the following substantial questions of law have been raised for consideration: a) Whether the Courts below right in holding that without assistance of the respondents how the Court come to the conclusion in this case? b) Whether the dismissal of the plaint without believing the evidence of plaintiff and her averments in the absence of defense by the defendants is correct in law? c) Whether the denial of justice without believing the plaintiffs' averment inspite of the legal notice and oral evidence is correct in law? 9. The contraction of the case of the plaintiffs is that the husband of the first plaintiff as well as father of the second plaintiff viz., Natarajan has been admitted in the hospital of the first defendant and he has undergone various tests and ultimately found that he has been affected by H.I.V. and from 06.10.2003 to https://hcservices.ecourts.gov.in/hcservices/ 3 20.10.2003, the defendants have conducted an exhibition, wherein the family photograph of the plaintiffs including the said Natarajan has been exhibited and the same has been seen by kith and kin of the plaintiffs, which resulted ignominy. Under the said circumstances, the plaintiffs have constrained to issue a legal notice to the defendants and thereby claimed compensation, but inspite of receipt of notice, the defendants have not paid anything and therefore the present suit has been laid for the relief sought for therein. 10. The Courts below have concurrently rejected the case of the plaintiffs simply on the ground that no document has been filed so as to encrust the averments made in the plaint. 11. The learned counsel appearing for the appellants/plaintiffs has contended that the first plaintiff is an illiterate lady and in fact from 06.10.2003 to 20.10.2003 an exhibition has been conducted by the defendants, wherein the family photograph of the plaintiffs has been exhibited, as if the husband of the first plaintiff as well as the father of the second plaintiff viz., Natarajan has been affected by H.I.V. and further on the side of the defendants no written statement has been filed and inspite of the infirmities found on the side of the defendants, the Courts below have refused to consider the demand made on the side of the plaintiffs and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 12. The learned Government Advocate has contended that in the instant case even a scrap of paper is not available as evidence so as to prove the alleged averments made in the plaint and the Courts below have concurrently and also rightly found that the plaintiffs can easily be non-suited on the ground of lack of evidence and under the said circumstances the concurrent Judgments and decrees passed by the Courts below do not warrant interference. 13. The present suit has been instituted mainly on the ground that the husband of the first plaintiff and father of the second plaintiff viz., Natarajan has suffered from H.I.V. positive and family photograph of the plaintiffs has been exhibited in an exhibition conducted from 06.10.2003 to 20.10.2003 by the defendants. As rightly pointed out by the Courts below, for the purpose of proving the main averments made in the plaint, no documentary evidence has been let in on the side of the appellants/plaintiffs. Without seeing any document, the Court cannot automatically come to a conclusion that the family photograph of the plaintiffs has been openly exhibited from 06.10.2003 to 20.10.2003. Of course, it is true that on the side of the defendants no written statement has been filed and that itself would not pave the way for decreeing the suit as prayed for without marking any suitable document and therefore the contention urged on the side of the appellants/plaintiffs cannot be accepted. The Courts below after considering the infirmities found on the side of the appellants/plaintiffs have rightly non-suited them. https://hcservices.ecourts.gov.in/hcservices/ 4 14. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 15. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission and the concurrent Judgments and decrees passed by the Courts below are confirmed. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The Principal District Judge, Tiruchirappalli. 2.The Subordinate Judge, Tiruchirappalli. +1cc to The Special Government Pleader, SR.No.14622 smn akm/01.06.11 /4p-4c/ S.A(MD)No.108 of 2011 20.04.2011 https://hcservices.ecourts.gov.in/hcservices/