IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 AS.No. 513 of 1996() & CROSS OBJECTION -------------------- OS.68/1992 of SUB COURT, HOSDRUG .................... APPELLANT(S): DEFENDANTS: ---------------------------------------------- 1. JOSE ALIAS JOSEPH VAZHAMPLAKKAL, SON OF JOSEPH, RESIDING AT KOORAMKUND OF WEST ELERI VILLAGE, HOSDRUG TALUK, P.O. PLACHIKARA (VIA) PARAPPA. 2. KOCHURANI MATHEW, WIFE OF MATHEW, VAZHAMPLAKKAL VEEDU, MANGOT, WEST ELERI VILLAGE, HOSDRUG TALUK, P.O. BEEMANADI, (VIA) NILESHWAR. BY ADVS. SRI.T.B.THANKAPPAN, SRI.VARGHESE POTHAN. RESPONDENT(S): PLAINTIFFS: ----------------------------------------------- 1. A.P. CHACKO, SON OF A.P.PAILO, RESIDING AT ALAYIL VEEDU, KOORAMKUNDU, WEST ELERI VILLAGE, HOSDRUG TALUK, P.O. PLACHIKARA (VIA) PARAPPA. 2. A.P. MATHEW, SON OF A.P.PAILO, RESIDING AT ALAYIL VEEDU, KOORAMKUNDU, WEST ELERI VILLAGE, HOSDRUG TALUK, P.O. PLACHIKARA (VIA) PARAPPA. BY SRI.S.V.BALAKRISHNA IYER,SENIOR ADVOCATE, BY ADV. SRI. P.B.KRISHNAN. THIS APPEAL SUITS AND CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.3174/1996 IN AS NO.513/1996 DISMISSED 7/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NO.513 OF 1996 & CROSS OBJECTION ............................................. Dated this the 7th day of July, 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, Hosdurg in O.S.No.68/992. The suit is one for compensation sustained on account of the damage caused to the rubber plants belonging to the plaintiffs. It is the case of the plaintiff that 450 rubber trees belonging to the plaintiffs were destroyed by fire on account of the negligent act of the defendants and therefore plaintiffs had claimed compensation. The defendants on the other hand would contend that they are not responsible for the act and therefore the plaintiffs are not entitled to any compensation. The trial court on an appreciation of the materials granted a decree in favour of the plaintiffs for a sum of Rs.18,900/=. Aggrieved by the same, the defendants have come up in appeal and dissatisfied with the quantum, the plaintiffs have filed a cross objection. 2. Heard the learned counsel for the appellants as well : 2 : A.S.NO.513 OF 1996 & CROSS OBJECTION as the respondents. The short point that deserves consideration is whether the rubber plants belonging to the plaintiffs had been destroyed in fire and who had caused it and whether it is on account of the negligence of the defendants. So far as the first aspect is concerned, there is no dispute that there had been fire in the rubber plantation and the Commissioner had reported that 450 plants aged about 3 years had been destroyed in fire. Now the next question is who had caused it and whether there had been negligence. Negligence is a thing which arises out of non performance of an act which one is expected to do or by performing an act carelessly when one performs an act. The plaintiffs and the defendants are having properties adjacently. It is the case of the plaintiffs that without clearing the fire belt, the defendants had set fire in their property which had spread and resulted in loss of large number of rubber plants planted by the plaintiffs. The defendants denied their involvement. It is true that the evidence available in the case would not pin point that who : 3 : A.S.NO.513 OF 1996 & CROSS OBJECTION had set the fire. But evidence is adduced to show from where the fire has spread. 3. PW3 is one Padmanabhan, who is having possession of some land near these properties. It is deposed by him that he had seen the fire and it has come out in evidence that the fire has spread from the property which belonged to the second defendant. Similarly when the Commissioner inspected the property, the Commissioner also found from the materials when he questioned that the fire has spread out from the property of the defendants. At that time the first defendant who was in the property, admits the same but later he denies the same and has filed objection to the Commissioner's report. The first plaintiff was admittedly in the State of Kashmir at the relevant point of time. It is true that preponderance of probability that alone can be considered in this case to arrive at a decision. The evidence of PW3 in the chief examination that fire has spread from the property of the defendants is not at all challenged in the cross examination. The said witness had deposed : 4 : A.S.NO.513 OF 1996 & CROSS OBJECTION that he had not seen who had set fire and by the time he reached, the fire was spread to half the area involved. So, it is clear that he has something to do with the incident. 4. PW4 is a master who is characterised as a Marxit member by the defendants and their contention is that the first defendant belong to the congress party and therefore on account of the rivalry on this base as well as some loan transaction, he is giving false evidence. His version is that immediately after the fire, he was also informed about the same and the first defendant has confessed that it is his negligence that resulted in fire and therefore he would adequately compensate the plaintiffs. According to PW4, since the first plaintiff was not in the locality, it was deferred but later it did not materialise. So the report of the Commissioner, the evidence of PW3 and PW4 gives the strongest indication that the fire has started from the property of the defendants and it has spread into plaintiffs' property resulting in the damage of 450 rubber plants. Had there be adequate precaution to clear the fire belt, : 5 : A.S.NO.513 OF 1996 & CROSS OBJECTION spread of the fire could have been averted. 5. It is the well settled principle that one has to enjoy or use the property without causing or disturbing convenience and enjoyment of the neighbours. When in a season where the fire is likely to occur, it is incumbent upon the owner of the property whether he is present there or not to take adequate precaution to see that safeguards are taken before setting fire to the waste or the leaves accumulated in the property. Since it has not been done the fire has occurred and caused damage to the rubber plants of the plaintiffs. Therefore it has to be stated that the evidence available points out to the negligence of the defendants and therefore the plaintiffs are entitled to claim compensation for the same. 6. Now regarding the quantum. The commissioner had visited the property and prepared a report wherein he had shown the price of the plant at Rs.5/=, charge for digging pits at Rs.6/= and Rs.4/= for making platforms and for the manure and labour cost at Rs.27/= for three years for each tree and thereafter had multiplied with 450 and arrived at : 6 : A.S.NO.513 OF 1996 & CROSS OBJECTION a figure of Rs.18,900/=. The plaintiffs though have challenged the same did not adduce any satisfactory evidence to undo the report. Mere filing of an objection is not sufficient to hold that the Commissioner's report is wrong. With the best available materials the Commissioner had assessed and therefore I hold that the amount of compensation calculated by the Commissioner appears to be just and reasonable. It does not require any enhancement or any reduction. So, I accept the Commissioner's report and fix the compensation at Rs.18,900/= as done by the court. Therefore from these discussions I find that the court below has arrived only at a proper decision which does not call for interference and therefore the judgment and decree of the trial court are affirmed and the the appeal as well as cross objection are dismissed but in the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.513 OF 1996 & CROSS OBJECTION M.N. KRISHNAN, J. ........................................... A.S.NO.513 OF 1996 & CROSS OBJECTION ............................................. 7th day of July, 2010. J U D G M E N T : 8 : A.S.NO.513 OF 1996 & CROSS OBJECTION