IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933 SA.No. 322 of 2001() -------------------- AS.222/1997 of DISTRICT COURT,KOZHIKODE OS.376/1995 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. AYALATH UNNI, S/O.AYYAPPAN, PROPRIETOR, USHA FLOUR MILL, THATHAMANGALAM, VELIPRAM AMSOM, VIA FEROKE, KOZHIKODE TALUK. 2. BAIJU, S/O. BALAKRISHNAN, RESIDING IN CHERUVANNUR VILLAGE, KOZHIKODE TALUK. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENT(S): APPELLANT/PLAINTIFF: ---------------------------------------------------------------- V.C.SAJEEV, HINDU, MALE, RESIDING AT AZHINIHILAM PURAYIL HOUSE, P.O. AZHINIHILAM, MALAPPURAM DISTRICT, PIN - 673 654. BY ADVS. SRI.THOMAS ANTONY, SRI.MANJERI SUNDER RAJ. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.747/2001 IN SA NO.322/2001 DISMISSED 6/06/2011 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss HARUN-UL-RASHID,J. ------------------------------- S.A. NO.322 OF 2001 ------------------------------- DATED THIS THE 6TH DAY OF JUNE, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: 1) Whether an appeal is maintainable from the date of attaining of majority by the minor appellant represented by the next friend when the appellant has not elected to continue the appeal as provided in R.12 of O.32 C.P.C? 2) Is not contributory negligence attributable to a boy aged 12 years? 3) When the plaintiff gives in the plaint a vision which is contrary to his deposition in a court of law with regard to the same incident, is the plaint allegation acceptable? 4) Whether the extension of period of limitation available to a minor and his legal representatives, is available in a suit filed by the next friend of the minor before attaining majority? 2. Defendants in O.S.No.376/95 on the file of the Sub Court, Kozhikode are the appellants. The appeal is directed against -2- S.A.No.322/2001 the judgment and decree in A.S.No.222/1997 on the file of the District Court, Kozhikode. The suit was filed for compensation. The trial court held that there is no negligence on the part of the defendants, that therefore they are not liable to pay any compensation and the suit was dismissed. The Lower Appellate Court reversed the findings of the trial court and granted a decree permitting the plaintiff to recover an amount of `25,000/- with interest at the rate of 6% per annum from the date of the plaint till the date of realisation with costs through out. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaintiff is a minor at the time of filing of the suit. The lst defendant is the proprietor of a flour mill at Kottamangalam. The plaintiff claimed compensation for the injury sustained by him in the accident happened on 10/3/1992. On that day the plaintiff gone to the lst defendant's flour mill for powdering chilly and -3- S.A.No.322/2001 coriander. The 2nd defendant is the employee of the lst defendant. He was in direct charge and control of the operation of the mill. It is alleged by the plaintiff that the defendant asked the plaintiff to empty the bag directly to the grinder and while completing the process the bag together with the plaintiff's left thumb got caught in the motor belt. As a result, the plaintiff's left thumb was totally cut off and he was admitted in the Medical College Hospital, Kozhikode. Police registered a crime against the defendants for the offences punishable under Sections 287 and 338 of the Indian Penal Code. As a result of the accident the plaintiff sustained permanent disability of loss of thumb. He was in the hospital as an inpatient from 10/3/1992 to 17/3/1992. Plaintiff alleged that he sustained injury due to rash, reckless and negligent act of the defendants. The suit was filed for recovery of `25,000/- towards damages. 4. The defendants filed a written statement denying the plaint averments and prayed for dismissal of the suit. Defendants -4- S.A.No.322/2001 denied the allegation that the accident was happened due to the rash and negligent act of the defendants. According to them, there is no entry through the machine room without permission. The plaintiff rushed to the machine room by pushing the half door without notice of the 2nd defendant. It is alleged that the plaintiff accidentally touched the belt outside which resulted in accident. The contention is that the accident was happened due to the negligent act of the plaintiff and not that of the defendants and therefore they are not liable to pay compensation. They also contended that the suit is not maintainable and prayed for dismissal of the suit. 5. All the questions raised were considered elaborately by the trial court and the Appellate Court. The suit was filed by the 12 year old boy for compensation for having lost his left thumb due to the accident. The 2nd defendant is the employee of the lst defendant, who was actually operating the flour machine in the mill. The trial court disbelieved the plaintiff's case. The evidence given -5- S.A.No.322/2001 by the plaintiff was different from the evidence given by him before the Magistrate's Court. The trial court compared the deposition made by the plaintiff before the criminal court and the civil court and declined the relief holding that the plaintiff gave an entirely different version against the truth before the trial court to make the defendants liable. The Lower Appellate Court did not agree with the findings entered by the trial court in answering the question as to whether the defendants are liable to pay compensation. 6. The plaintiff adduced oral and documentary evidence. PWs.1 to 3 were examined and Exts.A1 to A10 were marked on the side of the plaintiff. On the side of the defendants DW1 was examined and Exts.B1 to B5 were marked. 7. The Lower Appellate Court appreciated the facts at length. The Court appreciated the evidence of PWs.1 to 3 and DW1 and held that the facts alleged by the plaintiff regarding the occurrence of the accident are proved. The Appellate Court also -6- S.A.No.322/2001 discussed and examined each and every findings of the trial court and rightly held that the findings cannot be supported. The Court also found that it is well settled proposition of law that the children of tender years cannot be imputed with contributory negligence. 8. The Lower Appellate Court noticed that the loss of the left thumb has caused a permanent disability to the plaintiff. Taking into consideration the injury sustained by the plaintiff, his permanent disability and other facts and circumstances of the case, the Appellate Court fixed of `25,000/- as compensation, finding that it is just and reasonable. The Lower Appellate Court after appreciating the evidence on record, took the view that the accident occurred due to rash and negligent act of the defendants. The issue regarding liability was examined and decided solely on the basis of the facts, evidence and circumstances. After hearing both sides, this Court is inclined to agree with the view expressed by the Appellate Court. The findings are based on facts, evidence and circumstances -7- S.A.No.322/2001 of the case. No question of law much less any substantial questions of law arise for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -8- S.A.No.322/2001 HARUN-UL-RASHID, J. ------------------------------------ S.A.NO.322 OF 2001 ------------------------------------ JUDGMENT 6th June, 2011