IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 AS.No. 693 of 1995() -------------------- OS.178/1990 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): ----------- 1. M.P. ALIMAMMU, AGED 59 YEARS, S/O.ISMALUTTY, RESIDING AT NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK 2. M.P. MAMMED KOYA, AGED 36 YEARS, S/O. ALIMAMMU, RESIDING AT NAGARAM AMSOM DESOM, KOZHIKODE TALUK BY ADV. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN RESPONDENT(S): --------------- P.T. SEMAMU, AGED ABOUR 44 YEARS, S/O. KUNHAHAMMED, RESIDING AT HOUSE NO. 4/686, PANDARATHOPPUPARAMBU, NAGARAM AMSOM DESOM, KOZHIKODE TALUK ADV. SRI.P.V.KUNHIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON 22/07/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. No. 693 of 1995 * * * * * * * * * * * * * * * * * * Dated: 22nd July, 2009 JUDGMENT Defendants in O.S. No. 178 of 1990 on the file of the Sub court, Kozhikode are the appellants in this appeal. The said suit instituted by the respondents herein was one for realisation of asum of Rs. 1,11,216/- by way of damages. 2. The case of the plaintiff can be summarised as follows:- Plaintiff aged 40 years is engaged in the work of polishing furnitures. He used to get Rs. 50/- per day by way of wages. He was the sole bread winner of his family consisting of his wife and children and mother. They were residing in house No. 4/686 at Pandarathoppu paramba. Defendants who are father and son are neighbours of the plaintiff on the north. One Aysha and her family are residing on the western side of the plaintiffs house. On 14-11-1986 at about 11.30 a.m. seeing the first defendant and -:2:- Aysha abusing each other, the plaintiff asked the defendants as to why they were quarreling with each other. Then the first defendant rushed to the plaintiff and asked him what business he had to tell the first defendant, he beat the plaintiff on his back with his hand. By that time, the second defendant who is the son of the first defendant reached there and hit the plaintiff on his chest with his head. The plaintiff fell down. Then the first defendant beat him with a reaper on the elbow of his right had. As a result of which the plaintiff sustained fracture on his right elbow. Then their neighbours Aysha and Latheef rushed to the spot. At that time the defendants ran away. The plaintiff was rushed to the Medical College Hospital, Kozhikode, was admitted there and treated for the fracture. On account of the injuries sustained by him the plaintiff had to bear much pain. He was an inpatient in the hospital from 14-1-1986 to 23-11-1986 and from 9-12-1986 to 19-12-1986. He was treated as outpatient from 6-1-1987 to 8-3-1989. During that period the plaintiff had purchased medicines and nutritious foods from outside -:3:- besides the food and medicine supplied from the Medical College Hospital. His hand was put in plaster cast for morethan 10 months. After the plaster was removed, he was not in a position to raise his hand. Hence, as per the advice of the doctor, he used to go to the Medical College Hospital on alternate days for physiotherapy during the period from 8-4-87 to 14-11-1987. He had spent huge amount for the treatment. Even after physiotherapy, he is not in a position to raise his hands as before or do the works as earlier. The doctor has informed him that he will not be able to regain complete normalcy. On the basis of his complaint the Sub Inspector of Police, Chemmangad had conducted investigation and charge-sheeted the defendants. The case was tried as C.C. No. 1/87 before the Chief Judicial Magistrate, Kozhikode. Both the defendants were sentenced to fine on various amounts. As a result of the wrongful act of the defendants the plaintiff had sustained fracture and had to bear pain. Even now he has not fully recovered from the disconforts of the injury. Hence the suit for damages. The suit was resisted -:4:- by the defendants who filed separate written statements contending inter alia as follows:- The plaint allegation that the plaintiff is a daily labourer earning Rs. 50/- per day by polishing furniture is denied. The further allegations in the plaint that these defendants attacked the plaintiff and caused injuries including fracture on the plaintiff is also denied. There was no such incident on 14-11- 1986 as alleged. The injuries, if any, sustained by the plaintiff were not out of any incident involving these defendants. These defendants are not liable to compensate the plaintiff for the injuries sustained by him or for the expenses of treatment incurred by him. The claim made in the suit is without any basis and is denied. Even there was a criminal case against these defendants and the trial court had convicted them , an appeal filed by them is pending before the Sessions Court, Kozhikode. The plaintiff is not entitled to claim the benefit . Hence, the suit may be dismissed. 3. The court below framed six issues for trial. On the -:5:- side of the plaintiff, four witnesses were examined as P.Ws 1 to 4 of whom P.W.1 is the plaintiff and P.w.2 is the eye-witness to the occurrence. P.Ws 3 and 4 are the doctors who treated the plaintiff in the Medical College Hospital, Kozhikode. Exts.A1 to 10 were marked. On the side of the defendants, the first defendant Ali Mohammed was examined as D.W.1 and Ext. B1 judgment of the Sessions Court , Kozhikode in Crl. Appeal No. 7/89 was got marked. The learned subordinate Judge, after trial, as per judgment and decree dated 26-7-1993 found that the occurrence as alaleged and the role of the defendants alleged by the plaintiff are true but as against the claim of Rs. 1,11,260/-, the court granted a decree for Rs. 50,366/-. It is aggrieved by the said decree that the defendants have filed this Appeal. The plaintiff has not preferred any appeal or memorandum of Cross Objection with regard to the disallowed portion of the suit claim. 4. I heard the learned counsel appearing on either side. 5. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- -:6:- Both the plaintiff examined as P.W.1 and the eye-witness examined as P.W2 were stating untrue facts before the Court. They were indulging in exaggerations and embellishments and have not only contradicted themselves but have also contradicted their previous testimony given before the criminal court. If P.W.1 was beaten only on the middle of his right arm with the reaper he would depose that there was no possibility of sustaining fracture to his right elbow. The chances are that he might have sustained the fracture consequent on the fall. The Court below has not appreciated the evidence in its proper perspective. Even assuming that the cause of action alleged has been proved the quantum of damages awarded by the court below is excessive. The Court below was wrong in assuming that the plaintiff who was polishing furniture would have earned Rs. 1,000/- per month on the assumption that he would get work on 25 days in a month and would get wages at the rate of Rs. 40/- per day. The judgment and decree passed by the court below is, therefore, unsustainable. -:7:- 6. I am afraid that I cannot agree with the above submissions. The plaintiff examined as P.W.1 has given a graphic account of the occurrence that took place on 14-11-1986. Being neighbours residing close to P.W.1 only asked the first defendant as to why he was quarreling with Aysha who is another neighbour. Of that the reaction of the first defendant was not friendly he set up on the plaintiff who beat him with his bare hand. His son the 2 nd defendant also soon joined the company of his father and dealt a blow on the plaintiff with his head. Thereupon, the plaintiff fell down on the ground. The first defendant beat the recumbent plaintiff with a reaper resulting P.W.1 sustaining injuries including fracture on his right elbow. This part of the occurrence has deposed to by P.W.1 has been corroborated by P.W.2 the eye-witness. The testimony of P.Ws 3 and 4 the doctors who treated the plaintiff would also gave support of the plaintiff's case. As against this, there was only the interested testimony of the first defendant examined as D.W.1. The trial Judge who had the unique advantage of seeing the -:8:- witnesses and assessing their credibility has chosen to believe P.Ws 1 and 2 in preference to D.W.1. This Court sitting in appeal will be loathe to interfere with the conclusion reached by the trial judge in a case largely based on an appreciation of the oral evidence. The oral evidence of P.W.s 1 and 2 was also corroborated by the documentary evidence including the wound certificate, disability certificate, O.P. cards, medical bills and X- ray etc. Merely because the Sessions Court in the appeal from the criminal case had altered the offence punishable under Section 325 I.P.C. to one under Sections 11 and Sec. 223 besides confirming the sentence under Sec. 447 I.P.C. and the further fact that the defendants were let of with a fine does not in any manner improbabilise the occurrence as deposed by P.Ws 1 and 2. Even if the criminal court were to acquit the defendants of the offences alleged that has little impact on the civil court which decides the matter on independent evidence. (See Premsankar v. State of Kerala ....................). The Court below was thus fully justified in holding that the -:9:- defendants were responsible for the injuries sustained by the plaintiff in the occurrence as alleged. The quantum of compensation awarded by the court below also cannot be held to be excessive or disproportionate having regard to the nature of injuries including fracture and the duration of treatment undergone by the plaintiff. Principles of compensation as discernible from the decision reported in 1990 (2) KLT SN 29 have been carefully borne in mind by the court below while fixing the compensation. Eventhough the case of the plaintiff was that he was getting Rs. 50/-per day, the court below was prepared to take only Rs. 40/- as the daily wages which when multiplied by 25 would give the monthly average. 33 years was allowed to as the period of productive life for P.W.1. Thus, a sum of Rs. 33,000/- was fixed as loss of earning. The court below awarded a sum of Rs. 366/- towards expenses for food, X-ray and medicines. A sum of Rs. 5,000/- awarded towards pain and suffering is also reasonable. Taking into account 10% disability, the future loss of earning was fixed at Rs. -:10:- 12,000/-.. All these figures derived at by the court below are within reasonable. A sum of Rs. 50,336/- awarded is fully justified. The court below was , however, not fully justified in awarding interest at the rate of 12% per annum from the date of suit till realisation. The plaintiff would be entitled only to interest at the rate of 6% per annum till the date of realisation. Subject to the above modification, the judgment and decree passed by the trial court is confirmed. This appeal is accordingly dismissed. V. RAMKUMAR, (JUDGE) Madhusudan Das v. Smt. Narayani Bai and others – AIR 1983 SC 114. ani. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * A.S. No. 693 of 1995 * * * * * * * * * * * * * * * * * * Dated: 22nd July, 2009 JUDGMENT