IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 AS.No. 252 of 1993(C) --------------------- OS.124/1990 of SUB COURT, OTTAPPALAM .................... APPELLANT(S): (DEFENDANT): ----------------------------------------------- SUMESH (MINOR) AGED 12 YEARS, REPRESENTED BY GUARDIAN FATHER KONGUMARE SUNDARAN, RESIDING AT POTTASSERY AMSOM AND DESOM, MANNARGHAT TALUK, PALAKKAD DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENT(S): (PLAINTIFF): -------------------------------------------- *ALI (MINOR) AGED 11 YEARS, REPRESENTED BY HIS FATHER AND GUARDIAN MADAMPARA MUHAMMED ALIAS BAPPU, POTTASSERI AMSOM AND DESOM, MANNARGHAT TALUK. ( D I E D) - LR'S IMPLEADED: * THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT: **SUPPLEMENTAL RESPONDENT NO.2: D I E D - LR'S RECORDED: R2. MADAMPARA MOHAMMED ALIAS BAPPU, RESIDING AT POTTASSERI AMSOM AND DESOM, MANNARGHAT TALUK. R3. BASHEER, ...DO...DO..... R4. AZEEZ, ...DO...DO..... R5. SIDDIQUE, ...DO...DO.... Kss ..2/- ...2.... AS.NO.252/1993 R6. SHOUKATHALI, RESIDING AT POTTASSERI AMSOM AND DESOM, MANNARGHAT TALUK. R7. LATHEEF, ...DO...DO..... R8. MYMOONA, ....DO...DO..... R9. KHADEEJA UMMA, ...DO...DO..... R10. RASHEED, ....DO.,..DO.... **SUPPLEMENTAL RESPONDENTS 2 TO 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT VIDE ORDER DTD. 8/01/2004 ON CMP.NO.5688/99. IT IS RECORDED THAT ADDL.R3 TO R10 ARE THE LEGAL REPRESENTATIVES OF DECEASED ADDL.R2 VIDE ORDER DTD.11/03/2009 IN MEMO DTD. 18/02/09, C.F.NO.1010/2009. BY ADV. SRI.SIBY MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/06/2010 ALONG WITH AS NO. 367 OF 1993, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S.Nos.252 & 367 OF 1993 = = = = = = = = = = = = = = = Dated this the 8th day of June, 2010. J U D G M E N T These appeals are preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S.124/90. A.S. 367/93 is filed by the plaintiff in the suit with a prayer for enhancement and for making the 2nd defendant also personally liable. A.S.252/93 is filed by the first defendant in the suit for setting aside the judgment and decree. The brief facts necessary for the disposal of the appeal are stated as follows. 2. The plaintiff was an eight year old second standard school student and the first defendant was a third standard school student. It is the case of the plaintiff that on 1.2.90 A.S.Nos.252 & 367 OF 1993 -2- when he was standing outside his class room the first defendant came and asked about the whereabouts of his brother and immediately without any reason or provocation slapped on the face of the plaintiff resulting in grievous injury on his right eye. Immediately the boy was taken to the Mannarkkad hospital first and later before the Little Flower Hospital, Ankamali. The boy unfortunately lost his eye sight. So the boy had moved for damages against his school mate and his father for damages. 3. On the other hand the first defendant would contend that he had not slapped the plaintiff at all and the defendants have no knowledge about the incident. It is submitted that the first defendant was nine years old and he was studying in the third standard and he had no intention of causing any injury or pain to A.S.Nos.252 & 367 OF 1993 -3- the plaintiff. So it will not amount to a battery or assault and it was not at the instance of the father neither and so the plaintiff is not entitled to any damages. 4. On appreciation of the evidence the trial Court granted a decree in favour of the plaintiff to be realised from the first defendant. The 2nd defendant was exonerated from the liability. It is against that decision these appeals had been filed. During the pendency of the appeal plaintiff died and his brothers and sisters have been impleaded as supplemental appellants before this Court. 5. Now the question for consideration first is that since the plaintiff died whether the action can continue. The learned counsel appearing for the defendants would contend that in view of S.306 of Indian Succession Act the A.S.Nos.252 & 367 OF 1993 -4- cause of action will not survive and therefore the plaintiff is not entitled to any relief. If a very liberal interpretation to S.306 is given it is contended that only the question of loss of estate will survive and therefore the relief has to be restricted to that extent. He will also refer to the provisions of the Kerala Torts (Miscellaneous Provisions) Act 1977, Ss.2 and 3. On a combined reading, according to the learned counsel, the cause of action alone would survive only against the loss of estate and therefore the plaintiff's claim has to be restricted to that extent. 6. On the other hand, the learned counsel for the plaintiff would contend that S.2 and the repeal of S.306 of the Indian Succession Act by virtue of S.9 would enable the legal representatives of the plaintiff to claim A.S.Nos.252 & 367 OF 1993 -5- damages. S.2 of the Act mentioned above states that, “On the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this section shall not apply to cause of action for determination or seduction or for inducing one spouse to leave or remain part from the other or to claims for damages on the ground of adultery.” If the argument of the learned counsel for the defendant is to be accepted then I feel there was no necessary for a legislation like Kerala Torts (Miscellaneous Provisions) Act 1977. All the Courts including the Apex Court while A.S.Nos.252 & 367 OF 1993 -6- incorporating and considering the validity of S.306 of the Indian Succession Act had clearly explained that at least the cause of action relating to loss of estate will survive. It is only a claim relating to the loss of estate which would survive. If it was the intention, there was no necessity for including the exclusion clause under the proviso to S.2. Therefore I feel S.2 of the Kerala Torts (Miscellaneous Provisions) Act 1977, is incorporated by the legislature to undo the restrictions imposed by S.306 of the Indian Succession Act. The statutory intention is manifestly clear for the reason that the Act specifically repeals S.306 of the Indian Succession Act. 7. Now the learned counsel for the defendants had cited a decision of the Full A.S.Nos.252 & 367 OF 1993 -7- Bench reported in Bhagwati Bai v. Bablu (AIR 2007 M.P 38(FB). It was a case where the Court was considering the impact of S.306 of the Indian Succession Act as well as the provisions under the Legal Representatives Suits Act of 1855. The Court also considered the combined effect of S.22 of CPC as well. But for the enactment Act 2/77 the decision rendered would have been applicable to the case in all force. Therefore from these discussions I hold that the brothers and sisters of the plaintiff are entitled to maintain the cause of action which was available to the plaintiff in the suit. 8. Now the next important question is regarding the entitlement of the plaintiff to claim damages. It is very unfortunate that two children of small age got involved in an incident whereby the third standard student A.S.Nos.252 & 367 OF 1993 -8- slapped the second standard student resulting in the loss of right eye sight. Now the learned counsel for the defendant would argue that the children of tender age are incapable of understanding the consequences of their action and therefore the Courts should be very cautious in fixing tortious liability on them. 9. The criminal law confers immunity on minors of tender years; a child below 7 years cannot at all be held liable or any offence, and for a child between the ages of 7 and 12 years even in criminal law the interpretation is that if the child is able to understand the nature and consequences of his action the cause of action will arise. Here the person who had inflicted the injury on the plaintiff was studying in the 3rd standard. In our Indian society even from the house children are taught A.S.Nos.252 & 367 OF 1993 -9- to be tolerant. In the school also the children are taught about the moral values and also the principles of Dharmas and thereby a child in third standard should be conscious of the fact that he is a boy who is not expected to injure others by his action. Now what had happened in this case is that during interval on the relevant date this boy had gone and asked the other boy about the brother or so and without any provocation slapped on his face. Intensity of the slapping was so high it resulted in the loss of eye sight. So actually the life of the plaintiff was put in peril by the act of the first defendant. 10. Now under the law a minor enjoys no special protection in a suit filed against him for a tortious act. But his age has to be taken into account when any mental element such as A.S.Nos.252 & 367 OF 1993 -10- intention, malice or negligence on his part is relevant for deciding his liability. 11. In the decision reported in Tillander v. Gosselin (1967) ACJ 306) before the High Court of Ontario, Canada the facts of the case revealed that the child aged three years dragged another child of the same age for several feet and caused extensive injuries. The Court held that intention or negligence could not be imputed to him because of his tender age. 12. In Me Hale v. Watson 1968 ACJ 273 before the High Court of Australia, it was a case where a minor aged 12 threw a metallic dart towards a post made of hard wood hoping that its sharp end would stick; but instead of sticking, the dart bounced and hit a girl standing closeby. The High Court of Australia absolved the minor of liability for negligence as a boy A.S.Nos.252 & 367 OF 1993 -11- of his age could not be expected to foresee the risk involved. But it has been stated the result of the case would have been different if the dart had been thrown direct towards the girl. Moreover it has been stated that, for example, in case of a violent assault and battery on a harmless man, the act in itself is sufficient to support the cause of action and the wrongdoer, even if a minor, is liable. 13. In fairness the learned counsel for the defendant had given the extractions of the various commentaries right from Winfield, Clerk and Lindsell and P.S.Achuthan Pillai on Torts and in all these commentaries what is laid down is minor has no protection but where the minor is very young and the act complained of requires malice etc. the age has to be taken into consideration for the same. Therefore what is A.S.Nos.252 & 367 OF 1993 -12- to be found out is whether the boy was in a position to understand the consequences of his action. As stated by me earlier the incident had taken place within the premises of the school and the boy was a student of third standard and there was no provocation from the plaintiff inviting him to slap. The boy of third standard should have behaved in a better manner and his irresponsible act has resulted in the loss of eye sight of the plaintiff. So I am of the opinion that the action is wrong and the first defendant is liable. 14. The learned trial judge had relied upon the decision of the Madhya Pradesh High Court in the decision reported in Swaroop Kishore v. Gordhan Das (1955 ILR 355). Here the facts of the case would reveal that the person went to supply some sweets and came back and later when A.S.Nos.252 & 367 OF 1993 -13- there was altercation, ultimately the young boy slapped the other in the face and the boy was aged 16 years. It was held that he is liable for the tortious act. Learned counsel for the first defendant would contend before me that in that case the boy was 16 years old and so facts of the case is different from here. It is only as a guideline used by the Court below that a minor is liable for the tortious act. From the discussions it is very clear that the first defendant should have been more careful and the first defendant was able to understand that slapping a boy from the premises of a school is an act which he was not expected to do and therefore he cannot be exonerated from the liability under the guise of his young age. Therefore I confirm the finding with respect to the liability of the first defendant. A.S.Nos.252 & 367 OF 1993 -14- 15. Now it is contended that the 2nd defendant's father should have been made liable. It is true that there cannot be a master and servant relationship between the father and the son. Therefore that theory cannot be extended to this case. The theory according to various cases is that if the father had not taken proper care which he was expected to take then he may be held responsible for an irresponsible act of his children. For example, suppose a father permits a child to take a gun to the school and the child causes injury then certainly the father could be made liable for the reason that he was negligent in permitting the child to take the gun. But so far as this case is concerned the boy had been sent to attend the school everyday and sending the child to the school is for education and it cannot be said to be an act A.S.Nos.252 & 367 OF 1993 -15- of negligence on the part of the father if the child commits any wrong from the school and therefore I agree with the finding of the learned trial judge that the father is not liable for the son's activity. 16. Lastly regarding the compensation. A reasonable amount has been fixed to be paid to the minor child by the Court. Therefore from the materials I do not find any interference is called for in this case. Therefore from these discussions I hold that the judgment and decree of the Court below do not call for any interference and hence both the appeals are dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S.Nos.252 & 367 OF 1993 -16- M.N. KRISHNAN, J. = = = = = = = = = A.S.Nos.252 & 367 OF 1993 = = = = = = = = = = = J U D G M E N T 4th June, 2010.