IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 AS.No. 563 of 1997 & Cross Appeal -------------------- OS.111/1990 of SUB COURT, MAVELIKKARA .................... APPELLANT/ DEFENDANTS 1 TO 3 AND ADDITIONAL DEFENDANTS 5 TO 11 -------------------------------------------------------------------------------------------------- 1. VANDIMALA DEVASTHANAM, THITTAMEL, CHENGANNUR, REPRESENTED BY ITS PRESIDENT. 2. P.S.RAJAPPAN ACHARY, VALLIATHU VEEDU, KEEZHCHERIMEL MURI, CHENGANNUR (DIED) REPRESENTED BY ADDITIONAL DEFENDANTS 6 TO 11 3. K.S.ARAVINDAN, SECRETARY, VANDIMALA DEVASTHANAM RESIDING AT KIZHAKKEATTATHU, KEEZHCHERIMEL MURI CHENGANNUR . 4. RAJU RATINAM, THATTAVILA, CHENGANNUR 5. RATNAMMAL DEVIKRIYA (KOLLAVANA), FROM VELLIYATHU VEEDU, KEEZHCHERIMEL MURI CHENGANNUR. 6. BEENA OF -DO- -DO- 7. GEETHA OF -DO- -DO- 8. SELVI OF -DO- -DO- 9. MANJU OF -DO- -DO- 10. JAYA OF -DO- -DO- BY ADV. SRI.A.N.KUTTAN RESPONDENT/ PALINTIFFS 1 AND 2 AND DEFENDANT NO.4 ---------------------------------------------------------------------------------- 1. ABRAHAM GEORGE, CHITTOOR VEEDU, THITTAMEL MURI CHENGANNUR. 2. ALEYAMMA GEORGE OF -DO- -DO- 3. YOHANNAN ALIAS KUNJUMON, VADAKKE ATTATHU MUNDANKAVU MURI, CHENGANNUR ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 4275 OF 1997 IN A.S. NO. 563 OF 1997 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 10.12.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.563 of 1997 & Cross Appeal ---------------------------------------- Dated this the 10th day of December, 2009 JUDGMENT Defendants 1 to 3 and 5 to 11 in O.S. No.111/1990 on the file of the Sub court, Mavelikara are the appellants. The first and second respondents in the appeal are the plaintiffs in the suit. They are the cross- appellants. The suit was filed claiming damages caused in a fire- works accident. The plaint claim was Rs. 32,000/- with interest. The trial court partly decreed the suit by allowing the plaintiffs to recover from the defendants a sum of Rs.12,000/- with 12% interest per annum from the date of decree till realisation along with the cost of the suit. Aggrieved by the rejection of the part of the claim by the trial court, the plaintiffs filed the cross appeal. The parties hereinafter are referred to as plaintiffs and defendants as arrayed in the suit. 2. The plaintiffs are the title holders of the plaint schedule property. They are residing in the building situated therein. The property on the north of the plaint schedule property belongs to Vandimala Devasthanam managed by a Committee headed by its president and Secretary. There is a Kalyanamandapam in the property of the Devasthanam. Defendants 2 and 3 are the president and Secretary of the Devasthanam. The 1st defendant is the Devastanam. It is the case of the A.S.No.563 of 1997 & Cross Appeal -2- plaintiffs that the Managing Committee of the 1st defendant engaged the 4th defendant-contractor to conduct fireworks in connection with the festival. The festival was conducted during the last week of March 1990. The fire works stocked in the auditorium, exploded in between 1 to 1.30 a.m (night) on 30.3.1990, causing injury to many and killed 5 people. The explosion caused damages to the compound wall and the residential house of the plaintiffs. It is averred in the plaint that though the plaintiffs suffered damage of Rs.1.5 lakhs, the claim is limited to 32,000/- only. 3. Defendants 1 to 3, defendants 6 to 11 and defendants 5 to8 filed separate written statements. 4. It is admitted by defendants 1 to 3 that in connection with the festival of the temple, fireworks was conducted in every year and every year a contractor will be deputed to conduct the fireworks. The defendants also contended that during the mid night of 29.3.1990, the fire works stocked in the auditorium belonged to the 1st defendant, exploded causing injury to many, killed 5 people and caused extensive damages to the auditorium and to the residential building and compound wall of the plaintiffs. These defendants contended that there was no negligence on the part of defendants 2 and 3 in the explosion. 5. The 4th defendant- contractor in his written statement contended that defendants 2 and 3 did not entrust the contract of the fireworks to him and there was no agreement between him and defendants A.S.No.563 of 1997 & Cross Appeal -3- 2 and 3. 6. The evidence in this case consists of oral testimonies of PWs 1 to 3, DWs 1 and 2, and documentary evidence viz. Exts. A1 to A5 and C1 and C1(a). 7. It is not disputed that the fire works stocked in the auditorium exploded causing injury to many, killing five people and caused damages to the compound wall and residential building of the plaintiffs. It is also not disputed that the accident occurred on 29.3.1990 at mid night. and that on the following day the police registered crime and prepared a Mahazar in connection with the fireworks accident. Ext.A5 is the copy of the Mahazar. In Ext.A5 the damages caused to the plaintiffs' compound wall and building is reported. It is reported that the explosion caused damage to a portion of the compound wall at a length of 3.5 metres and partial damage to the rest of the compound wall to a length of 2 metres. Ext.A5 Mahazar also shows that the damages are caused to the Kitchen and work area portions of the residential building including damages to the doors and windows. Along with the plaint the plaintiffs filed application for the appointment of a Commissioner and a Commissioner was deputed by the trial court. The Commissioner with the help of an engineer prepared Ext.C1 report and later Ext.C1(a) report. The Engineer was examined as PW3. PW3 in his estimate which is appended to Ext.C1, assessed the damage at Rs. 35,000/-. The trial court rejected Ext.C1 report stating that A.S.No.563 of 1997 & Cross Appeal -4- the report and estimate are not prepared impartially and the procedure followed by the Commissioner is not satisfactory. The trial court also stated that the Engineer who prepared the estimate is a regular visitor of the plaintiffs' house and an intimate friend of the plaintiffs and therefore Ext.C1 report and estimate cannot be fully believable which was prepared without giving notice to the opposite parties. The trial court also did not advert to Ext.C1 (a) report and mahazar dated 1.2.1991, which is prepared by the same Commissioner after issuing notice to both sides. The Commissioner also noted the length of the portions of compound wall damaged and the damages caused to the portions of kitchen and work area and the doors and windows of the residential building belonged to the plaintiffs It is important to note that the Commissioner who visited and inspected the site for the second time is the very same Commissioner who visited the site firstly. In the second report which is marked as Ext.C1(a), more or less, the same damages were reported which were noted in Ext.A5 and Ext.C1. 8. In the light of the oral evidence tendered by PW1, PW2 (Commissioner) and PW3 (Engineer) Ext.C1 and C1(a) reports and Ext.A5 Mahazar prepared by the police on the second day of the accident, I am of the view that the finding of the trial court that there is no sufficient evidence adduced by the plaintiffs to prove the plea for damages in the explosion is not sustainable. The defendants were bound to take sufficient A.S.No.563 of 1997 & Cross Appeal -5- precautions and were negligent. The finding of the trial court that there is no reliable evidence to come to the conclusion as to what are the injuries suffered by the plaintiff and details of damages caused to the building is not justifiable. The trial court has not applied its mind in deciding the question of damages caused to the plaintiffs' building and compound wall by relying on the documentary evidence viz. Ext. A5, C1 and C1(a) reports . Therefore the finding of trial court that there is no evidence with regard to the damages suffered by the plaintiff is liable to be interfered with. As I have already observed, the estimate prepared by the Engineer appended to Ext.C1 report shows that the plaintiffs suffered damages to the tune of Rs. 35,000/- The trial court awarded Rs.10,000/- as compensation. I am of the view that the compensation amount awarded by the trial court for the damages caused to the plaintiffs is neither satisfactory nor adequate. Though Ext.C1 report and the estimate are prepared exparte and without giving notice to the defendants, the reasons stated by the trial court for not placing reliance on the documentary evidence are faulty. Taking into account the proof of damages caused to the plaintiffs by the production of Ext.A5, C1 and C1 (a) reports and estimates and the oral evidence of PWs 1 to 3 , this Court is of the view that on a modest estimate, damages at the rate of Rs. 20,000/- ought have been awarded by the trial court. 9. The learned counsel for the plaintiffs/appellants submitted that A.S.No.563 of 1997 & Cross Appeal -6- the grant of interest at the rate of 12% per annum is not reasonable and therefore this Court may be pleased to fix a reasonable rate of interest. The request of the counsel is partly accepted. Hence the rate of interest is modified and re-fixed at the rate of 9% . In the decreetal portion the interest was awarded only from the date of decree till realisation. it requires modification, hence modified the interest shall be payable from the date of suit till realisation. In the result, the appeal and cross appeal are disposed of. The judgment and decree of the trial court stands modified. The plaintiffs are also entitled to Rs. 10,000/- as additional compensation. The rate of interest for the entire compensation is 9% per annum from the date of suit till realisation. No order as to costs in appeal. The cross-appellants are also entitled to proportionate costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No.563 of 1997 & Cross Appeal ---------------------------- JUDGMENT 10th December, 2009