IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 AS.No. 736 of 1999() ------------------------------- OS.46/1994 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): IST DEFENDANTS ----------------------- M/S.KERALA SHIPPING AND INLAND NAVIGATION CORPORATION LTD., A COMPANY CONSTITUTED UNDER THE PROVISIONS OF THE COMPANIES ACT, RAMAN CENTRE, VALANJAMBALAM, COCHIN 16, REP.BY ITS COMPANY SECRETARY, V.K.RAJU. BY ADVS. MR.VAKKOM N.VIJAYAN,SC,KS & INC LTD. MR.P.C.IYPE, SC.,KS & INC LTD. MR.V.J.MATHEW,SC,KSINC(KERALA SHIPPING RESPONDENT(S): PLAINTIFFS/ DEFENDANTS 2 & 3 ------------------------ 1. T.R.BROWLIYOOSE, SON OF LATE RAPHEAL, THACHUTHARA, BUSINESS, AGED 57, RESIDING AT THACHUTHARA HOUSE, CHERANELLUR VILLAGE, VADUTHALA, KOCHI 23, KANAYANNUR TALUK. 2. KUNJUMON , S/O. ALEXANDER CHEMMYATH, FACTORY EMPLOYEE, AGED 35, RESIDING AT CHEMMAYATH HOUSE, KOTHAD DESOM, KADAMAKKUDY VILLAGE, KANAYANNUR TALUK. 3. M/S.KERALA STATE INSURANCE DEPARTMENT, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 4. M/S. KERALA STATE INSURANCE DEPARTMENT, DISTRICT OFFICE, GANDHI NAGAR, KOCHI-20. R1 & R2 BY MR .P.F.THOMAS, SENIOR ADVOCATE BY ADV. MR.SUNIL THOMAS, MR.JOJI SUNIL R3 & R4 BY GOVERNMENT PLEADER MR. MATHEW GEORGE VADAKKEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2844/2000 IN AS. NO.736/1999 Dismissed 27.01.20091 SD/- P.N.RAVINDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss P.N.Ravindran, J. =============== A.S.No.736 of 1999 ===================== Dated this the 27th day of January, 2009. JUDGMENT The first defendant in O.S.No.46 of 1994 on the file of the Court of the Subordinate Judge of Ernakulam is the appellant in this appeal. Respondents 1 and 2 are the plaintiffs and respondents 3 and 4 are defendants 2 and 3 respectively therein. 2. The first plaintiff, who is a businessman dealing in coconut fibre had hired for his business purposes a licenced country craft owned by the second plaintiff for a period of one month from 1.6.1993 on a daily rent of Rs.160/-. According to the plaintiffS, at about 2.00 A.M. on 27.6.1993 while the country craft belonging to the second plaintiff, loaded with coconut husks purchased by the first plaintiff was on its way from Eroor to Vaduthala, it was hit by the barge belonging to the first defendant as a result of which, the country craft was damaged and sunk and the goods carried in it were lost. The plaintiff claimed a total sum of Rs.1,00,000/- as damages. 3. The first defendant resisted the suit contending inter alia that the barge belonging to it was not involved in the accident. The country craft belonging to the second plaintiff was insured with defendants 2 and 3. They disputed the plaint claim relating to the loss of goods and the AS 736/99 -: 2 :- extent of damage caused to the country craft. The first plaintiff's brother's son was examined as PW1, one Sri. Kunjumon as PW2 and a worker engaged by the first plaintiff as PW3 and Exts.A1 to A14 were marked on the plaintiffs' side. The driver of the barge belonging to the first defendant was examined as DW1 and another employee of the first defendant was examined as DW2. Exts.B1 to B11 were marked on the side of the defendants. The court below on an analysis of the evidence oral and documentary available in the case held that the collision between the barge and the country craft was as a result of the negligence on the part of the employees of the first defendant. The court below also held that the first plaintiff is entitled to the sum of Rs.6,000/- towards the value of coconut husks, Rs.31,152/- towards expenses incurred for repairing the country craft and Rs.4,800/- towards the rent paid by him to the second plaintiff. The suit was decreed in part, allowing the first plaintiff to realise from the defendants the sum of Rs.41,952/- together with interest thereon at 6% per annum from the date of suit till realisation. The first defendant has filed this appeal assailing the correctness of the findings of the court below. 4. I have heard Sri.V.J.Mathew, the learned counsel for the appellants, Sri.Shiju Varghese, the learned counsel for respondents 1 and 2 and Sri.Mathew George Vadakkel, the learned Government Pleader appearing for respondents 3 and 4. The collision between the country craft owned by the second plaintiff and the barge owned by the first AS 736/99 -: 3 :- defendant took place, according to the plaintiffs, at about 2.00 A.M. on 27.6.1993. In respect of the said accident, a crime was also registered by the Hill Palace Police Station at 5.30 P.M. on the very same day. The alleged collision took place near Kaniyampuzha bridge at about 2.00 A.M. on 27.6.1993. It has come out in evidence that the journey from Willington Island to the Cochin Division of the F.A.C.T. takes 5 ½ to 6 hours. The first defendant has no case that its barge did not ply along the Kaniyampuzha river on 27.6.1993. Ext.B2 trip sheet proves beyond doubt that the first defendant's barge left Willington Island at 10 P.M. on 26.6.1993 and reached Ambalamughal at 3.40 A.M. on 27.6.1993. According to the witnesses examined on the side of the defendants, the distance from Willington Island to Kaniyampuzha bridge can be navigated in 3 ½ to 4 hours and from Kaniyampuzha bridge to Ambalamughal in 2 to 2 ½ hours. Therefore, going by the materials on record, it can be safely assumed that the barge belonging to the first defendant would have reached Kaniyampuzha bridge between 2 A.M. and 2.30 A.M. on 27.6.1993. PW3, a worker of the first plaintiff, who has more than 40 years of experience, had spoken to the fact that no barge other than the barge belonging to the first defendant plies along the Kaniyampuzha river. His version is supported by DW1, an employee of the first defendant. In the light of this finding, the court below came to the conclusion that the country craft belonging to the second plaintiff was involved in the collision with the barge owned by the first defendant. The AS 736/99 -: 4 :- court below also held that there was no negligence on the part of the crew of the country craft. In my opinion, the said findings cannot be said to be perverse or not warranted by evidence on record. I accordingly confirm the said findings. 5. In support of his claim for compensation towards the value of the goods lost, no evidence was adduced by the first plaintiff. However, on the short ground that the defendants have not disputed the first plaintiff's claim that the goods belonging to him were lost in the incident, the entire amount of Rs.6,000/- which according to the first plaintiff was the value of the husks carried in the country craft, was awarded to him. Besides the said amount, the sum of Rs.31,152/- stated to be the expenses incurred by the first plaintiff to repair the country craft was also awarded to him. The first plaintiff had also claimed the sum of Rs.4,800/- towards the rent paid by him to the second plaintiff. Relying on Ext.A9 letter sent by the second plaintiff, the court below awarded to him the sum in full. The learned counsel appearing for the appellants and the learned Government Pleader appearing for respondents 3 and 4 canvass the correctness of the said findings. According to them, as the first plaintiff has not proved that the value of the husks carried in the country craft was Rs.6,000/-, he is not entitled to claim the said amount from the defendants. They also contend that the first plaintiff has not proved that he has paid Rs.4,800/- as demanded by the second plaintiff in Ext.A9 letter. The appellant and respondents 2 AS 736/99 -: 5 :- and 4 also seriously dispute the quantification of expenses incurred by the first plaintiff to repair the country craft. 6. The court below has awarded to the first plaintiff the sum of Rs.6,000/- towards the value of the coconut husks though no evidence is available to prove that 26000 coconut husks had been purchased by him and loaded in the country craft. A perusal of the written statement filed by defendants 3 and 4 discloses that they had seriously disputed the said fact. In my opinion, the burden was on the first plaintiff to show that he had purchased 26000 coconut husks and loaded it in the country craft which met with the accident on 27.6.1993. There is no cogent evidence in support of the said plea. Therefore, the court below was not right in holding that the first plaintiff is entitled to get the sum of Rs.6,000/- towards the value of the husks. Likewise, there is also no evidence to show that the first plaintiff had paid to the second plaintiff, the sum of Rs.4,800/- as rent for one month. Even according to the first plaintiff, he had taken the country craft belonging to the second plaintiff for a period of one month from 1.6.1993 on a daily rent of Rs.160/-. The accident in the instant case took place on 27.6.1993. The period of one month would have come to an end on 30.6.1993. As a result of the accident, the first plaintiff was thus disabled from using the country craft only for three days, namely, 28.6.1993, 29.6.1993 and 30.6.1993. Therefore, he can claim only Rs.480/- towards rental charges. The finding of the court below that he is entitled to get the sum of Rs.4800/- from the first AS 736/99 -: 6 :- defendant cannot therefore be sustained. Though the appellant and respondents 3 and 4 seriously dispute the award of the sum of Rs.31,152/- towards expenses incurred for repairing the country craft, on the evidence available, particularly Ext.A11, it cannot be said that the said sum is exorbitant. It is not in dispute that serious damage was caused to the country craft owned by the second plaintiff. The first plaintiff has also proved that he had to meet the expenses to repair the country craft. I Therefore find no ground to interfere with the award of the sum of Rs.31,152/- towards expenses incurred by the first plaintiff for repairing the country craft belonging to the second plaintiff. I accordingly confirm the said finding. It is not in dispute that the barge belonging to the first defendant was insured with defendants 2 and 3. Therefore, they are liable to indemnify the first defendant. The court below has not considered this aspect of the matter. Instead, it has passed a decree allowing the first plaintiff to recover from the defendants the amounts awarded by it. As the barge is admittedly insured with defendants 2 and 3, it is for defendants 2 and 3 to pay the amount that the plaintiffs are entitled to. 7. In the result, the appeal is allowed in part and the decree and the judgment passed by the court below are modified and the first plaintiff is granted a decree allowing him to realise from the defendants jointly and severally the sum of Rs.31,632/- (Rs.31,152/- + Rs.480/-) together with interest thereon at the rate of 6% per annum from the date AS 736/99 -: 7 :- of suit till realisation. The plaintiffs will also be entitled to the costs of the suit. The costs in the appeal shall be borne by the respective parties. P.N.Ravindran, Judge. ess 28/1