IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 RFA.No. 327 of 2009(C) --------------------- OS.237/2004 of ADDL.SUB COURT,PARAVUR .................... APPELLANT/DEFENDANT --------------------------------------- ALUVA MUNICIPALITY, ALUVA, REP. BY ITS SECRETARY. BY ADV. SRI.V.M.KURIAN RESPONDENT(S): PLAINTIFF ------------------------ SAYED MUHAMMED S/O. IBRAHIM, PERUMATTOM HOUSE, PINARMUNDA KARA, PERINGALA, KUNNATHUNAD VILLAGE, KUNNATHUNAD TALUK. BY ADV. SRI.MATHEWS K.PHILIP SMT.T.MANASY THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON 05/11/2009 DELIVERED THE FOLLOWING: ORDER ON I.A. 1719 OF 2009 ON R.F.A. 327 OF 2009 DISMISSED. SD/- (K.M.JOSEPH) SD/-(M.L.JOSEPH FRANCIS) SD/- SD/- 5.11.2009 K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. NO: 327 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ____ th Day of November, 2009. JUDGMENT Joseph Francis J., This appeal is filed by the defendant Municipality in O.S.No: 237 of 2004 on the file of Additional Sub Court, North Parur. Respondent herein is the plaintiff in that suit which was filed for compensation. 2. The plaint averments in brief are as follows: The plaintiff, a vegetable merchant was running a C class shop in the building owned by his father. The plaintiff used to purchase vegetables from the wholesale shop in the vegetable market. The vegetable marked at Aluva is owned by the Municipality. On 19.12.1998 while the plaintiff was purchasing vegetables from the shop of Sri. T. J. Francis situated in the R.F.A. NO: 327 OF 2009 :2: building owned by the Municipality, a concrete portion of terrace of the building weighing more than 40 kgs. fell on his head and body causing grievous injuries. He was taken to Karothukuzhi hospital and admitted and treated as in patient upto 28.12.1998. Even if he continued with the treatment, his condition worsened and was admitted in Samaritan Hospital, Pazhanganad on 9.3.1999 and treated there upto 13.3.1999. From there, he was referred to Lourdes hospital, Ernakulam for advance investigation and was treated as in patient upto 24.3.1999 in Lourdes Hospital. After discharging from Lourdes hospital, he was admitted in Medical Trust Hospital and treated by Dr. A. N. Subba Rao upto 3.5.1999. He is undergoing treatment, even after discharge from the hospital. Due to the accident, the plaintiff has become totally disabled. He had to spent huge amounts for treatment. The accident occurred due to the negligence on the part of the Municipality in not doing R.F.A. NO: 327 OF 2009 :3: periodical maintenance of the building. As the Municipality is the owner of the building, it is liable to compensate the plaintiff for the loss sustained as a result of the accident. Accordingly claiming a total compensation of Rs.5,61,000/- for treatment expenses, future treatment expenses, pain and sufferings, continuing permanent disability and for loss of amenities in life, the suit was filed as the Municipality failed to grant the compensation suit. In the meanwhile, the Municipality issued a cheque for Rs.8,000/- as compensation and the said amount was accepted by the plaintiff. 3. The defendant entered appearance and contested the case. It was contended that the suit is barred by limitation and that there was no statutory notice and non - joinder of necessary parties. It was also contended that there was no evidence to show that the alleged accident occurred in the premises of the Municipality. The averment regarding disablement of the R.F.A. NO: 327 OF 2009 :4: plaintiff was also denied. It was further stated that the building owned by the Municipality was properly maintained and there was no room for any complaint. It was also contended that the plaintiff did not prove the accident and the damages suffered, if any. 4. In the Sub Court, PW1 to PW4 were examined and exhibits A1 to A14 and X1 and X2 were marked. The learned Sub Judge on considering the evidence found that the accident occurred due to the negligence of the defendant Municipality and the suit was decreed allowing the plaintiff to realise a sum of Rs.3,97,800/- with interest at 6% per annum from the date of suit till date of realisation from the defendant and its assets. The plaintiff is also entitled to get the proportionate cost. Against that judgment and decree the defendant Municipality filed this appeal. 5. Heard the learned counsel for the appellant and the R.F.A. NO: 327 OF 2009 :5: learned counsel for the respondent. 6. Learned counsel for the appellant submitted that the suit is barred for non-compliance of Section 544 of the Kerala Municipality Act. Section 544 of the Kerala Municipality Act provides for two months prior notice for the institution of the suit against Municipality and the complaint must contain a statement that such notice has been so delivered. Ext.A6 is the copy of the lawyer notice dated 29.5.1999 sent by the plaintiff under 544 of Kerala Municipality Act to the defendant Municipality demanding Rs.5,61,000/- as compensation for the injuries sustained by the plaintiff in the accident occurred on 19.12.1998 due to falling of a portion of concrete terrace of the building owned by the defendant Municipality on the body of the plaintiff. Ext.A10 is the reply notice dated 11.6.1999 issued by the defendant Municipality in which it is stated that the defendant Municipality received the original of Ext.A6 notice R.F.A. NO: 327 OF 2009 :6: under Section 544 of Kerala Municipality Act. The suit is filed after expiry of two months. The complaint also contains statement that notice had been given to the defendant Municipality. Therefore the plaintiff has complied with the statutory provision contained under Section 544 of the Municipality Act. 7. Learned counsel for the appellant further argued that one Mr.T J Francis was the occupier of the building during the relevant period and as such, he is also a necessary party to the suit. It is an admitted fact that the defendant Municipality is the owner of that building and T.J. Francis is only the occupier in room No: 83 of that building. There is no allegation that the accident occurred due to any negligence on the part of T J Francis and the plaintiff is not seeking any relief against that person. Therefore T J Francis is not a necessary party to the suit. Learned counsel for the appellant argued that the plaintiff R.F.A. NO: 327 OF 2009 :7: did not examine T J Francis and his son to prove the incident and non - examination of eye witness to the incident is fatal to the case of the plaintiff. The plaintiff could not be examined in the court as he has lost his power of speech due to the injuries sustained in the accident. PW1 is the father of the plaintiff. PW1 deposed that on 19.12.1998, while the petitioner was purchasing vegetables from the whole sale vegetable shop run by the tenant in room No: 83 of the Municipality market, Aluva owned by the defendant Municipality, a concrete portion of the terrace of the building weighing about 40 Kgs. fell on the head and the body of the plaintiff, as a result of which the plaintiff sustained serious injuries. PW3 is an eye witness to the accident. PW3 deposed that he is a vegetable merchant and that the plaintiff used to purchase vegetable from the Aluva Market and on the alleged day at 7.00 am, while he was about to return from the market after purchasing vegetables, a portion of the R.F.A. NO: 327 OF 2009 :8: concrete terrace fell on the head and body of the plaintiff and the plaintiff sustained injuries and he was taken to the hospital. Ext.X1 is the file opened by the defendant Municipality in connection with the petition, filed by the plaintiff with regard to the accident. Ext.X1 file contains the report made by the officers of the defendant Municipality on conducting enquiry to the effect that plaintiff sustained injuries due to the accident, as alleged by the plaintiff. That file also shows that the defendant Municipality sanctioned Rs.8,000/- as compensation to the plaintiff for the injuries sustained in the accident. In view of Ext.X1 file, the defendant Municipality cannot contend that the accident did not occur. As the owner of the building, the defendant Municipality is duty bound to conduct the physical verification regarding the fitness of the building and to undertake proper periodical maintenance. Since the concrete portion of the building owned by the defendant Municipality fell R.F.A. NO: 327 OF 2009 :9: on the body of the plaintiff, it can be inferred that the accident occurred due to the failure on the part of the defendant Municipality in properly maintaining of the building. Therefore, the learned Sub Judge is justified in finding that the defendant Municipality is liable to compensate the plaintiff, who sustained serious injuries in the accident. 8. The next question to be considered is, as to whether the compensation awarded by the learned Sub Judge is reasonable. The accident occurred on 19.12.1998 at about 7.00 am. Immediately after the accident, the plaintiff was taken to Karothukuzhy Hospital and he was admitted and treated there upto 28.12.1998. Ext.A1 is the C.T. imaging of the brain of the plaintiff showing that linear undisplaced fracture involving greater wing of sphenoid on left side and mild sutural diastasis at right occipito parietal suture. Ext.A2 is the copy of the discharge card issued from Karothukuzhy Hospital Aluva stating R.F.A. NO: 327 OF 2009 :10: that the plaintiff was admitted in the hospital on 19.12.1998 and was discharged on 28.12.1998 and at the time of admission the plaintiff had sustained head injuries. Ext.A3 is the copy of the reference letter issued from Samaritan Hospital dated 13.3.1999 referring the plaintiff for expert treatment. Ext.A4 is the case summary issued from the Department of Neurology, Lourdes Hospital, Ernakulam showing that the plaintiff was admitted in that hospital on 13.3.1999 and was discharged on 24.3.1999. In that case summary, it is stated that the plaintiff was admitted in that hospital with features of meningities. Ext.A5 is the medical certificate dated 11.5.1999 isued by Dr. A N Subba Rao of Medical Trust Hospital Ernakulam stating that the plaintiff was admitted in that hospital at 24.3.1999 and was discharged on 3.5.1999 and at the time of admission the plaintiff has head injury. PW4 is the Chief Neurologist of Medical Trust Hospital, Ernakulam who produced Ext.X2 treatment records relating to R.F.A. NO: 327 OF 2009 :11: the treatment given to the plaintiff. PW4 deposed that the plaintiff is even under his treatment. PW4 deposed that the plaintiff was treated for rheumatic piogenic meningities and its after effects can cause fits. PW4 deposed that there is no chance for the plaintiff to recover completely and that the plaintiff requires treatment for the rest of his life. PW2 is the wife of the plaintiff. PW1 and PW2 deposed that due to the accident the plaintiff has become totally disabled and the plaintiff lost his ability to speak. The testimony of PW1 and PW2 regarding the total disablement of the plaintiff was not shaken even though they were subjected severe cross examinations. PW1 admits that even before the accident the plaintiff had 40% disability. PW2 deposed that due to the accident, the plaintiff has lost all his human abilities including the power of speech. PW1 to PW3 deposed that plaintiff was earning his livelihood by selling vegetables and the accident occurred while the plaintiff was R.F.A. NO: 327 OF 2009 :12: purchasing vegetables from the whole sale market at Aluva. PW1 and PW2 swears that the plaintiff was getting Rs.100/- per day from his vegetable business and that due to the accident, the plaintiff is incapable of doing any job. 9. Learned Sub Judge has assessed the monthly income of the plaintiff before the accident, as Rs.1000/-. The plaintiff was aged 33 years, at the time of the accident. Since the plaintiff was disabled by 40% before the accident, the learned Sub Judge after deducting 40%, assessed the disability as 60% and applying the multiplier of 14, assessed the permanent disability compensation as Rs.1,00,800/-, which is only just and reasonable. The plaintiff had undergone prolonged treatment and he sustained head injuries due to the accident. Rs.50,000/- awarded towards compensation for pain and suffering is reasonable. Rs.10,000/- awarded towards compensation of loss of amenities in life is also reasonable. The learned counsel for R.F.A. NO: 327 OF 2009 :13: the appellant submits that medical bills produced by the plaintiff towards medical expenses are not properly proved by the persons who issued those bills. But those arguments cannot be accepted, as it is practically impossible to prove each bill by examining the concerned persons who issued it. The medical bills are supported by Ext.X2, treatment file and medical certificates produced by the appellant. Therefore the genuineness of medical bills cannot be doubted. The plaintiff has produced bills for medical treatment for Rs.2,01,805/- inclusive of that amount, the learned Sub Judge has awarded Rs.2,45,000/- including further medical expenses. From the total compensation assessed, the learned Sub Judge has deducted Rs.8,000/- paid by the defendant Municipality as compensation. Deducting that amount, the balance amount of compensation assessed by the learned Sub Judge is Rs.3,97,800/-. (Rupees three lakh ninety seven thousand and eight hundred only). Since R.F.A. NO: 327 OF 2009 :14: the learned Sub Judge has awarded a reasonable amount as compensation, we find no reason to reduce that amount. Accordingly, this appeal is dismissed. The judgment and decree in O.S. No: 237 of 2004 on the file of Additional Sub Court, North Parur is confirmed. Parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/