IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 AS.No. 403 of 1998(A) --------------------- OS.150/1991 of SUB COURT, KOTTARAKKARA .................... APPELLANT/PLAINTIFF: ----------------------------------- A.S. INDIRA DEVI, W/O.T.K. VIJAYAN, ISWARYA MANZIL, EDAMON CHERRY, EDAMON VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.SIBY MATHEW, SRI.WILSON URMESE. RESPONDENTS/DEFENDANTS: ----------------------------------------------- 1. A. ABDUL RASHEED, PALLIVILA VEEDU, MUNDACKAL MURI, VENJARAMMOODU P.O., NELLANAND VILLAGE, NEDUMANGAD. 2. G. PUSHPANGADHA PANICKER, S/O.GOPALAN, MUKALIL VEEDU, EDAMON CHERRY, EDAMON VILLAGE, PATHANAPURAM TALUK. BY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 403 OF 1998 = = = = = = = = = = = = = = = Dated this the 8th day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kottarakkara in O.S.150/91. The suit is one for realisation of damages and the trial court granted a decree for Rs.27,000/- with 6% interest from 25.10.89 till realisation. It is against that decision the plaintiff has come up in appeal. 2. Notice to R2 had been signed and R1 has returned 'notice unclaimed' and held as sufficient service. 3. Heard the learned counsel for the appellant. It is the case of the plaintiff that the first defendant had approached the plaintiff to sell a car bearing Reg.No.TSH 6001 A.S. 403 OF 1998 -2- (temporary). It was understood that there was an arrangement with a private financing company and the plaintiff wanted that to be substituted with a business assistance of a Bank to which the first defendant promised that he will supply another car and on that basis purchased the car fixing a consideration at Rs.1,62,000/-. Rs.70,000/- was outstanding as the amount due to the financiers. The plaintiff had paid Rs.28,000/- on that date and obtained possession of the car. Later she had paid Rs.7,500/- and had also deposited Rs.15,500/- towards financing charges to the company. The first defendant made the plaintiff believe that he will substitute a car and took the car away on 23.5.89 and thereafter never returned the car and when there was some settlement going on acting on the basis of the settlement a cheque for Rs.10,000/- was issued by the first A.S. 403 OF 1998 -3- defendant which got dishonoured. The first defendant transferred the car to the 2nd defendant hence the suit for damages. 4. The first defendant, on the other hand, would contend that it was the plaintiff who had committed the breach. The plaintiff had agreed to pay the balance consideration within a period of four months and due to the incapacity to pay the amount she had returned back the car and it was decided to pay Rs.35,000/- to the plaintiff towards which Rs.10,000/- was given by way of cheque. Therefore the first defendant would contend that the plaintiff is not entitled to any relief. The 2nd defendant totally denied the transaction with the first defendant and therefore he also prays for dismissal of the suit. 5. The trial court on an analysis of the materials found that the plaintiff has purchased A.S. 403 OF 1998 -4- the car for a consideration of Rs.1,62,000/- and had paid an amount of Rs.28,000/- as advance and Rs.7,500/- subsequently and Rs.15,500/- towards the financiers company thus making a consolidated pay of Rs.51,000/-. The trial court also found that the plaintiff has also committed some mistakes and therefore did not find fully in favour of the plaintiff on the breach of contract. It has come out in evidence that the car has been given back to the first defendant on 23.5.89. Thereafter the plaintiff has not been put into possession of the car again whereas he has parted with an amount of Rs.51,000/-. The trial court found that the plaintiff is entitled to this Rs.51,000/- but went on to hold that during the time of 25.11.88 and 23.5.89 the vehicle should have been used for a distance of Rs.12,000/- km. and at the rate of Rs.2/km, an amount of Rs.24,000/- have A.S. 403 OF 1998 -5- been received by the plaintiff and so deducting that Rs.24,000/- found that the plaintiff is only entitled to Rs.27,000/-. The Court did not entertain any other claim regarding the other amounts claimed. It has to be stated that the plaintiff has parted with a consolidated cash of Rs.51,000/- in the transaction. The rate of Rs.2 per km. should have been the charge per kilo metre claimed during that period. When the vehicle is plied as a taxi it is necessary that one has to fill fuel, incur expenses for the driver and also to maintain the car in a good condition. So the entire amount of Rs.2/ k.m. cannot be appropriated as a profit of the plaintiff for usage of the car. Even if it is given the best allowance in favour of the first defendant, by any stretch of imagination an amount of Re.1/- alone can be treated as a profit per km. and therefore I hold that it can A.S. 403 OF 1998 -6- be only Rs.12,000/- that should have been deducted thus making the entitlement of the plaintiff to get a sum of Rs.39,000/- and not Rs.27,000/- as held by the Court. It has also to be remembered that the first defendant was in the custody of plaintiff's money and he had been utilizing it. Since the amount of Rs.15,500/- had been paid to the financing company, interest due to the company is also saved. So considering the rate of interest prevalent it is at least desirable to give a minimum amount of 9% as interest for the period from 23.5.89 till the date of decree, i.e. 21.11.94 and at the rate of 6% from 22.11.94 till realisation of the amount. So there must be additional rate of interest from from the date of suit till the date of decree. On all other heads the trial court has found that no valid reasons in favour of the plaintiff and it appears that both have A.S. 403 OF 1998 -7- contributed to the mistake and therefore I do not find any ground to interfere with those findings. In the result the appeal is partly allowed and a revised decree is passed as follows. (1) The plaintiff is given a decree for realisation of Rs.39,000/- with 9% interest on the said sum from 23.5.89 till 21.11.94 and at the rate of 6% from 22.11.94 till realisation from the first defendant with proportionate costs. The plaintiff is directed to bear the costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 403 OF 1998 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 403 OF 1998 = = = = = = = = = = = J U D G M E N T 8th December, 2010.