IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 AS.No. 111 of 2001(E) --------------------- OS.295/1991 of SUB COURT, MAVELIKKARA .................... APPELLANT(S): DEFENDANTS: ----------------------------------------------- 1. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 2. EXECUTIVE ENGINEER, P.W.D. (ROADS AND BUILDINGS), ALAPPUZHA. 3. ASST.ENGINEER, P.W.D. KATTANAM. BY GOVERNMENT PLEADER RESPONDENT(S): PLAINTIFF: -------------------------------------------- N.ISMAIL RAWTHER, KARUPARAMPIL VEEDU, ATHIKATTUKULANGARA MURI, PALAMEL VILLAGE. BY ADV. MR.P.B.SAHASRANAMAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.628/2003, 774/2001 & 3508/2001 IN A.S.NO.111/2001 DISMISSED 25/01/2010 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ----------------------------------- A.S.No.111 of 2001 - E --------------------------------- Dated this the 25th day of January, 2010 J U D G M E N T The defendants in O.S.No.295 of 1991 on the file of the Sub Court, Mavelikara, are the appellants. Suit was filed for damages, claiming damages caused on account of the fall of a tree on the plaintiff's residential building. Plaintiff claimed Rs.50,000/-. The court below granted a decree directing the plaintiff to realise a sum of Rs.15,000/- with 6% per annum from the date of suit till realisation and also proportionate costs. Aggrieved by the decree and judgment dated 30.11.1998, the defendants have preferred this appeal. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. Plaintiff is owning 20 cents of property in Palamel Village and he is residing with his family in the residential building situated therein. The adjacent property is a PWD road puramboke. An old mango tree having a height of approximately 40 feet was standing in the PWD road puramboke in front of the residential building of the plaintiff at a distance of approximately A.S.No.111 of 2001 2 five feet. The plaintiff alleged that the trunk of the mango tree was decayed and it was about to fall at any time and it was being dangerously located for many years. Executive Engineer and the Assistant Engineer, who are the defendants 2 & 3 were personally aware of the situation of the tree even from 1985. It is also alleged in the plaint that the plaintiff has been repeatedly requested the defendants to cut the mango tree and to avoid danger to his property and building. Nothing has been done by the department in spite of repeated requests were made. On 19.8.1990 the mango tree fell on the plaintiff's building causing damage to the building, furniture and other materials kept in the building. It is also alleged that two coconut trees situated in the property were also damaged. According to the plaintiff, loss caused to him is due to the negligence, latches and breach of duty of the defendants, and claimed Rs.50,000/- and interest. 3. The defendants admitted the situation of the mango tree. According to them the tree was not located in a dangerous position. They have admitted that the branches of the tree are broken on 19.8.1990 and the broken branches fell on the A.S.No.111 of 2001 3 plaintiff's building. They denied the allegation of the plaintiff and contended that the incident occurred due to natural calamities. 3. Plaintiff examined himself as PW1, examined four witnesses PWs 2 to 5 and produced A1 to A3. DW1 examined on the side of the defendants and C1 and C1(A) were marked. 4. The fact of the incident is admitted. Further fact that the branches of tree fell on the north-eastern portion of the plaintiff's building is also more or less admitted. The plaintiff as PW1 deposed that the tree is aged above 150 years and was in a damaged and dangerous condition posing threat to the adjacent property belonging to him. He also deposed that in 1985 he sent a letter to the PWD engineer mentioning about the dangerous location of the tree, but, there was no follow up action. He also destified that in 1988 also he complained and requested to cut and remove the tree. He deposed that the tree was not uprooted but it was broken from the damaged portion, i.e., about 15 feet above the ground level. PW2 is a social worker on the locality. He stated that mango tree was standing in a dangerous position, with damaged roots, and it was slanting towards the plaintiff's A.S.No.111 of 2001 4 building. He deposed that the plaintiff had represented before the authorities in 1985 and 1988. PW3, another person residing in the locality also supported the evidence of PWs 1 and 2. 5. The court below after considering the oral and documentary evidence adduced by the parties concluded that the mango tree in question was standing in a damaged and dangerous position, the said fact was intimated to the authorities by the plaintiff and they have not taken any steps to cut and remove the tree. The court below also held that the latches and breach of official duty on the part of the defendants are responsible for the incident and therefore the plaintiff is entitled to be compensated for the damages suffered. 6. It has come out in evidence that broken tree fell on the eastern room of the building. Building consists of four room and a varandah. The plaintiff has also taken out a commission to assess the damages. Commissioner reported that he found cracks on the wall of the room. Commissioner was examined as PW5. The court below fixed a reasonable amount as compensation for the damages. The amount fixed is Rs.15,000/- A.S.No.111 of 2001 5 to renovate the eastern room of the building. I find that the decree passed in favour of the plaintiff is justified in all respects. I do not find any reason to interfere with the findings entered by the court below. In the result, appeal fails, the decree and judgment passed by the court below are confirmed. Accordingly, the appeal stands dismissed with costs. HARUN-UL-RASHID, JUDGE. bkn/-