IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 AS.No. 939 of 1998(D) ------------------------------ [OS.NO.278/1992 OF SUB COURT, OTTAPPALAM] .................... APPELLANTS/DEFENDANTS: ------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE ASSISTANT ENGINEER, P.W.D. BY GOVERNMENT PLEADER SRI. P.K. BABU. RESPONDENT/PLAINTIFF: -------------------------------------- * SHANTI, AGED 9, MINOR, D/O. PALLIKUNNEL JOSE BY NEXT FRIEND AND GUARDIAN FATHER JOSE, AGED 38 YEARS, S/O. PALLIKUNNEL THOMAS, RESIDING AT CHEMMANNUR, KALLAMALA VILLAGE, MANNARKKAD TALUK. *IT IS RECORDED THAT THE RESPONDENT IN A.S. 939/98, SHANTI, D/O. PALLIKKUNNEL JOSE, CHEMMANNUR, KALLAMALA VILLAGE, MANNARKKAD TALUK, ATTAINED MAJORITY AND DISCHARGED PALLIKUNNEL JOSE (FATHER), FROM THE CAPACITY OF GUARDIAN AS PER ORDER DTD. 29/09/04 N I.A. NOS.3154/04 & 3155/04. BY ADV. SRI.G.PRABHAKARAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J. ------------------------- A.S. No. 939 of 1998 ------------------------------------- Dated this the 28th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Ottappalam in O.S.No. 278/1992. The suit is one for damages. It is the case of the plaintiff, who is a minor aged 9 years that on account of the negligence of the defendants, a branch of a decayed silk cotton tree fell on her head resulting in injuries to her. It is submitted that she had sustained head injury as well as other injuries and therefore, claimed compensation of Rs.50,000/-. 2. Defendants, on the other hand would contend that there was no negligence on the part of the government and therefore, it is not liable to pay any damages and further that the injury sustained are not so serious in nature, which warrants a high amount as damages. 3. The trial court on appreciation of the materials found that the incident took place on account of the negligence of the defendants and granted damages of Rs.30,356/-. It is against that decision the government has come up in appeal. A.S. No. 939 of 1998 2 4. Heard the counsel for both sides. It is argued by the learned Government Pleader that there is no evidence to show that the government was negligent and that had resulted in the incident. Admittedly, a silk cotton tree was standing on the puramboke land which belonged to the government. It's branches were projecting towards the compound of the plaintiff. It is submitted on 02.1.1992, the grandfather of the child had informed the authorities regarding the decayed condition of the tree, but the authorities did not take any proper steps, which ultimately resulted in the fall of the branch over the head of the child. The department would contend that it was an act of god and therefore, it cannot be made liable. A falling of a tree by an act of god may arise when there is a storm or other serious problems created by the nature. It will not extend to one tree standing in a property and therefore, the fall of a branch of one tree cannot be attributed to the anger of the nature, so as to create the situation. When branches of the trees are overhanging in a dangerous condition and the stump of the tree is also in a bad shape and there is responsibility on the authorities who are in charge of the situation to properly take care of, it is their duty A.S. No. 939 of 1998 3 avoid the danger. Now the silk cotton tree is projecting towards the plaintiff's compound. The branch had fallen and there is no case that there was the hand of any external agency to intentionally create such a situation. So the materials available would reveal that the tree was not a healthy tree and it has not been properly taken care and that has created the situation. Negligence is one when one does not carry out a legal duty, which he is bound to do and so far as this case is concerned there was a legal duty the government to have looked after it properly or had removed the tree so as to avoid danger. Further it has to be stated that the branch had fallen on a minor, who is aged 9 years. The child of the age will be thinking and proceeding and she may not be even aware of the sourroundings and that is why the law prescribes strict care on others towards young children. Therefore, from these materials, I concur with the finding of the court below that the incident had taken place only on account of the negligence on the part of the defendants. 5. Now turning to the damages. Fortunately, the child did not have any serious problems and she had been admitted in the Medical College Hospital, Kozhikode with cerebral concussion with A.S. No. 939 of 1998 4 abrasion on other parts of the body. She was treated as an inpatient in the hospital on 21.01.1992 for a period of 5 days and thereafter, she had attended the out patient wing on two other occasions. The doctor, who had treated her was examined and he had stated that the child did vomit at the time of admission and there was some difficulty in walking for sometime and that he attributed it to the cerebral concussion suffered by the child. A cerebral concussion is not a serious brain injury. Even doctor had stated that as there was no intra-crenial haemorrhage or injury sustained, scan was not even recommended. The child was absolutely conscious and therefore, the seriousness attempted to be projected was not available for the plaintiff in the suit. The incident is of the year 1992, but I find that the compensation granted for non pecuniary loss, that is in the form of pain and suffering, is slightly on the higher side. Considering the period of incident, I reduce it by Rs.8000/- in this case. So far as the other compensation awarded only under other heads are concerned only a reasonable amount for transport expenses, medical expenses, temporary disablement and loss of amenities had been granted. All these amounts are reasonable which does A.S. No. 939 of 1998 5 not require any interference. Therefore, the only modification, that is required is to reduce the compensation by 8,000/-. In the result, the appeal is partly allowed and the judgment and decree of the trial court are modified and a revised decree is passed as follows: Plaintiff is given a realisation of 22,656/- with 12% interest from the date of suit till the date of decree ie, 29.10.1997 and at the rate of 6% interest from the date of decree till realisation from the defendants with proportionate costs. I think by this time the child would have attained majority and amount can be disbursed to her after deduction of the court fees due to the government. The parties are directed to bear their respective costs in the appeal. M.N.KRISHNAN, JUDGE ln.