IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 SA.No. 987 of 1996() -------------------- AS.13/1994 of DISTRICT COURT, KASARAGOD OS.71/1992 of SUB COURT, HOSDRUG .................... APPELLANT(S): APPELLANT/2ND DEFENDANT ------------------------------------------------- M.M. THOMAS, S/O.MATHEW EDITOR, PRINTER AND PUBLISHER OF JENMADESAM DAILY, KANHANGAD OF HOSDRUG TALUK, P.O. KANHANGAD. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S):RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT ------------------------------------------------------------------------ 1. SMT. K.ALEY, W/O.E.M.MATHEW STAFF NURSE, PRIMARY HEALTH CENTRE, VELLERIKUNDU PARAPPA VILLAGE OF HOSDRUG TALUL P.O. VELLERIKUNDU. 2. C.C.VARKEY, S/O.CHACKO CHURATHIL HOUSE, RESIDING AT MANKAYAM IN PAPRAPPA VILLAGE, HOSDRUG TALUK P.O. VELLARIKUNDU ADV. SRI.KODOTH SREEDHARAN FOR R1 AD.V. SRI.THANKACHAN K.PAUL FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 987 OF 1996 =========================== Dated this the 1st day of February,2010 JUDGMENT The second respondent in O.S.71/1992 on the file of Sub Court, Hosdrug is the appellant. First respondent is the plaintiff in the suit. Appellant is the editor, printer and publisher of Jenmadesom Daily. In the Jenmadesom Daily dated 10.3.1992 a news item was published under the caption 'theft of bed sheet by staff nurse'. That report is based on Ext.B1 complaint filed by the second respondent/first defendant to administrative superior. First respondent filed the suit claiming damages alleging that the said report is a result of collusion between the appellant and the second respondent and it is per se defamatory and that it caused mental agony and loss of reputation and she claimed a damages of Rs.25,000/-, S.A.987/1996 2 though she assessed the damages at Rs.50,000/-. Appellant resisted the suit contending that he has only published the report based on Ext.B1 complaint filed by the second respondent and it was not reported with any malice or intention to cause damage to the reputation of the first respondent but in good faith in the interest of public and therefore he is not liable to the damages sought for. It was also contended that in any case the report being made in the public good, appellant cannot be saddled with any damages. 2. Learned Sub Judge on the evidence of Pws.1 to 4 on the side of the first respondent and Dws.1 to 4 and Exts.A1 to A4 and B1 and Exts.X1 to X4, found that Ext.B1 complaint filed by the first defendant does not contain any defamatory statement and therefore second respondent is not liable for damages. It was found that the report published by the appellant is per se defamatory and it has affected the reputation of the first S.A.987/1996 3 respondent and also caused mental agony and therefore granted a decree directing the appellant to pay a damages of Rs.16,000/- with interest at 6% from the date of institution of the suit and proportionate costs. 3. Appellant challenged the decree and judgment before District Court, Kasaragod in A.S.13/1994. Learned District Judge on reappreciation of the evidence found that though appellant justified Ext.A1 publication on the ground that it is a truthful report of Ext.B1 complaint, Ext.B1 complaint only disclose that the bed sheet were missing and proper action is to be taken and Ext.A1 report to the contrary which alleges that first respondent committed theft of the bed sheets and that report is per se defamatory and appellant is therefore liable to pay the damages. Learned District Judge reduced the damages to Rs.12,500/- with interest at 6% and proportionate cost. Second Appeal is filed challenging the said judgment. S.A.987/1996 4 4. The appeal was admitted on 11.12.1996. But no substantial questions of law was formulated at that time. In such circumstances, it is to be considered whether any substantial question of law arises for consideration and if so, whether the judgment of the first appellate court is to be interfered. 5. Ext.A1 is the publication. Appellant being the editor, printer and publisher is responsible for the publication. Though appellant justified the publication as made in good faith and for the public good and based on Ext.B1 complaint, learned District Judge appreciated Ext.B1 complaint and Ext.A1 publication in the proper perspective. As rightly found by the learned District Judge the allegation in Ext.B1 complaint is not that first respondent committed theft. On the other hand, the only allegation is that some bed sheets were missing from the hospital and first respondent is responsible for the missing. Eventhough there is no S.A.987/1996 5 allegation that first respondent committed any theft, in Ext.A1 report published by the appellant it is alleged that first respondent committed theft of the bed sheets. The very caption in bold letters is that first respondent committed theft of bed sheets. A reading of the publication would undoubtedly establish that it is per se defamatory. That finding cannot be interfered. 6. Then the only question is whether appellant being the editor, printer and publisher is responsible for the publication or is saved by any exemption. What is contended by the appellant was that the publication was made in public interest and was only a truthful reporting. As rightly found by the learned District Judge when Ext.B1 complaint does not disclose an allegation that first respondent committed theft, it cannot be contended that the publication was a truthful report of the complaint made by the second respondent. S.A.987/1996 6 7. Then the question is whether it is for public interest. There is no case in the complaint that first respondent committed theft. There is no material before the appellant to raise an allegation that first respondent committed theft. Hence it cannot be said that the report is for public good. 8. The Honourable Supreme Court in R.Rajagopal v. State of T.N and others (1994) 6 SCC 632) had settled the guidelines and the broad principles to be considered while deciding the claim for damages on account of publication. It is held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens by Article 21 of the Constitution and it is a right to be let alone and a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and none can publish anything concerning the above matters without his S.A.987/1996 7 consent. It is held that the said rule is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable, if such publication is based upon public records including court records and there is yet another exception to the rule. It was held:- “In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the S.A.987/1996 8 publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media)to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public S.A.987/1996 9 official enjoys the same protection as any other citizen.” Being the editor and publisher of the Daily appellant is entitled to the protection provided thereunder. But to claim the protection, appellant should not have acted in reckless disregard for truth or shall not be actuated by malice or personal animosity. The publication was made based on Ext.B1 complaint. When Ext.B1 complaint does not contain an allegation of theft by first respondent, the report making the allegation that first respondent committed theft is definitely the result of reckless disregard for truth. Therefore eventhough appellant is the editor, printer or publisher of a Daily, he is liable for damages, as rightly found by the learned District Judge. 9. Then the only question is with regard to the quantum of damages. Learned District Judge reduced the quantum from Rs.16,000/- to S.A.987/1996 10 Rs.12,500/-. Though learned counsel appearing for the appellant sought further deduction, I find no reason to interfere with the quantum of damages. No substantial question of law arises for consideration. Second Appeal is dismissed with costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.607 /1995 --------------------- JUDGMENT 29TH JANUARY,2010