IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 RSA.No. 1237 of 2008() ---------------------- AS.115/2007 of SUB COURT, PERUMBAVOOR OS.22/2005 of MUNSIFF COURT, KOLENCHERRRY .................... APELLANTS/APPELLANTS/DEFENDANTS 1, 2 AND 4 ----------------------------- 1. THANKACHAN, S/O. KURUVILA, BUSINESS, OPPAMATTATHIL HOUSE, KADAMATTOM KARA, AIKKARANAD NORTH VILLAGE. 2. PAUL, S/O. THANKACHAN, BUSINESS, IN -DO- 3. BABY, S/O. KURIAKOSE, WIRING JOB, MADAMBURATH HOUSE, KADAMATTOM KARA, KADAMATTOM VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SMT.V.DEEPA RESPONDENT(S): RESPONDENTS/PLAINTIFF AND DEFENDANT NO.3 -------------------------- 1. M.N. PRAKASH, SO. NARAYANAN, MANAYABHAVAN, KADAMATTOM KARA, AIKKARANAD NORTH VILLAGE. 2. UNNIKRISHNAN, S/O. THANKAPPAN, WIRING JOB, MATTATHANICKAL HOUSE, KADAMATTOM VILLAGE. ADV. SRI.K.K.CHANDRAN PILLAI FOR R1 SRI.A.S.SAJUSH PAUL FOR R1 SRI.THOMAS JAMES MUNDACKAL FOR R1 SMT.K.U.BINI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1237 of 2008 -------------------------------------- Dated this the 23rd day of September, 2009. JUDGMENT Respondent No.1 appears through counsel. Heard both sides. 2. This Second Appeal arises from judgment and decree of learned Sub Judge, Perumbavoor in A.S.No.115 of 2007 confirming judgment and decree of the learned Munsiff, Kolenchery in O.S.No.22 of 2005 granting decree in favour of respondent No.1/plaintiff for realization of Rs.5,000/- with interest at the rate of 6% per annum from the date of decree till realization from appellants and respondent No.2. According to respondent No.1, on 29.4.2004 at about 11.30 a.m. appellants and respondent No.2 in furtherance of their common intention trespassed into the property of respondent No.1, voluntarily caused hurt to his daughter and mother in law, criminally intimidated them and committed mischief. Respondent No.1 claimed a total sum of Rs.50,000/- by way of damages from the appellants and respondent No.2. Respondent No.1 gave evidence as PW1 and examined PWs 2 to 4 on his side. He also proved Ext.A1 to A9. Respondent No.2/defendant No.3 was examined as DW1. He proved Exts.B1 to B3. Learned Munsiff found that appellants and respondent No.2 trespassed into the property of respondent No.1 as alleged by respondent No.1 but, major portion of the claim for damages was disallowed since learned Munsiff found that the claim of respondent No.,1 that he suffered loss of reputation is not RSA No.1237/2008 2 established and that though according to him, his daughter and mother in law were assaulted they are not parties in the suit. However, considering the mental agony and anguish suffered by respondent No.1 and the infringement of his proprietary right at the hands of appellants and respondent No.2 a sum of Rs.5,000/- was awarded as damages as first above stated. First appellate court has concurred with that. It is contended in this Second Appeal that judgment and decree of the court below are erroneous and that award of damages is without any basis. Further contention is that first appellate court illegally ignored relevant evidence adduced by the appellants. Learned counsel for appellants asserted his contention before me. According to learned counsel for respondent No.1, no substantial question of law is involved. 3. Though, respondent No.1 examined PW3 as an independent witness to prove the alleged incident, learned Munsiff did not accept his evidence. However respondent No.1 as PW1 and his mother in law as PW2 who claimed to have been present in the house at the relevant time gave evidence regarding the alleged incident. Exts.A1 to A3 are related to the criminal case registered against the appellants and respondent No.2 by the police. It is not disputed that police, in connection with the connected criminal case arrested appellants and respondent No.2 and after investigation submitted final report (Ext.A3 is the copy) against the appellants and respondent No.2 for offences punishable under Sections 452, 447, 427 and 324 read with Section 34 of the Indian Penal Code. Ext.A2 is the photocopy of the mahazar for scene of occurrence prepared by the police which supported the case of trespass. RSA No.1237/2008 3 According to respondent No.2, appellants and respondent No.2 damaged his car and it had to be repaired in the workshop of PW4. Ext.A6, bill is produced for that purpose. As against the above evidence, respondent No.2/defendant No.3 gave evidence as DW1 and raised a plea of alibi. However courts below were not inclined to accept that contention. 4. It is contended by learned counsel that in the connected criminal case appellants and respondent No.2 were acquitted. But the standard of proof required in the criminal case and civil case is different. In the civil case what is required is only preponderance of probability. Courts below have considered the evidence of PWs 1 and 2 in the light of Exts.A1 and A9, accepted their version and found against the case set up by the appellants and respondent No.2. That being a finding of fact based on evidence with which the first appellate court also has concurred no interference is required in this Second Appeal as it is not shown that the finding is perverse. 5. So far as the damages awarded to respondent No.1 is concerned, the contention raised is that it is without any basis. Assessment of general damages ofcourse involves some sort of arbitrariness also since there cannot be any straight jacket principle as to assessment of general damages. What this is concerned is only whether the damages awarded alarmingly high or low. In this case what is awarded is only Rs.5,000/-. I stated that evidence revealed that the car belonging to respondent No.1 was damaged and that had to be repaired. Learned Munsiff observed that the trespass amounted to infringement of proprietary right of respondent No.1 and that he has suffered mental agony and RSA No.1237/2008 4 anguish. It is considering these circumstances that the sum of Rs.5,000/- was awarded by way of damages. That has been concurred by the first appellate court. On going through the judgment and decree under challenge and hearing learned counsel on both sides, I do not find any substantial question of law requiring interference in this appeal. Resultantly, this Second Appeal is dismissed. THOMAS P.JOSEPH, Judge. cks