IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 RFA.No. 177 of 2009() --------------------- OS.585/1998 of PRL.SUB COURT,THRISSUR .................... APPELLANTS/DEFENDATNS(S): -------------------------------------------- 1. JOSE, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 2. VAREED, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 3. JACOB, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 4. FRANCIS, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 5. ANTO ALIAS ANTONY, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. 6. DAVIS, S/O. CHIRAYATH LONAPPAN, THANIKKA MUNAYAM DESOM, KODANNUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S)/PLAINTIFF: ---------------------------------------- SURESH, S/O. MARATH MADHAVAN, VENGINISSERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.K.J.SAJI ISAAC FOR R1 DR.ELIZABETH VARKEY FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON 28/05/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 177 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2009. JUDGMENT Bhavadasan, J, The plaintiff, who was thrashed and left with broken limbs and also other injuries sued his assailants for damages. He succeeded. Defendants appealed. 2. According to the plaintiff, in an incident that took place on 14.3.1996 at 12.15 p.m. he was badly beaten by the defendants in the suit. He had to undergo treatment for a very long time and according to him is now incapacitated. He therefore sought for damages from the defendants. 3. The defendants resisted the claim and pointed out that they have not committed any act, for which they are liable in law. The court below on an evaluation of the evidence before it came to the conclusion that the defendants have committed the act as alleged by the plaintiff and therefore decreed the suit as already mentioned. 4. Learned counsel appearing for the appellants contended that the court below was not justified in decreeing the suit, since all the accused persons, who were tried by the Assistant Sessions Court have R.F.A. 177/2009. 2 not been arrayed as defendants. It is also contended that the act of the court below in placing reliance on the judgment in the criminal case, namely, S.C. 11 of 1996 before the Principal Assistant Sessions Court, Thrissur, confirmed in appeal in Crl.Appeal No.188 of 1997, was without the sanction of the law. 5. Both the above contentions are untenable in law. It is true that as per the records ten persons were tried by the Assistant Sessions Court. Four of them were acquitted and the defendants alone were found guilty. The fact that the plaintiff has proceeded only against six of the defendants is not a ground to non-suit him. It is quite evident that all the ten persons, who were tried by the Assistant Sessions Court were jointly tried. It is for the plaintiff to decide as to whom he should proceed against. The consequence of doing so may not be very relevant in the present case. However, the defendants cannot be heard to say that unless all the ten persons were proceeded against, the suit ought to have been dismissed. The lower court has considered the evidence in detail and came to the conclusion that the act committed by the defendants is the result of pre meditation. The court below is therefore perfectly justified in coming to the conclusion that for the mere fact that four persons have not been arrayed as defendants in the suit is not a ground to non-suit the plaintiff. Since they are all joint tortfeasors and therefore jointly and severally liable. R.F.A. 177/2009. 3 6. Equally untenable is the other contention. There is nothing in the judgment of the court below to indicate that the decision of the court below was based solely on the decision of the Assistant Sessions Court and the appellate court in the criminal proceedings against the defendants. 7. It cannot be said that the judgments in criminal cases are totally irrelevant. Though they cannot form the basis of the finding as such, they can be used atleast to the extent to show that the defendants were proceeded against and the finding was entered into therein. Apart from the above facts, a reading of the judgment of the lower court will clearly indicate that it has considered the evidence adduced before it independently and has come to a conclusion. 8. The court below has chosen to rely on the evidence of P.Ws.1 to 3 and also the documents produced by the plaintiff. It is seen that the plaintiff had produced a wound certificate and other treatment records relating to him. P.W.2 is an independent person, who supports the version given by P.W.1. P.W.3, the Doctor, who had occasion to treat P.W.1, has given evidence regarding the certificates issued from the hospital. It is significant to notice that a perusal of Ext.A4 shows that the plaintiff had suffered six fractures and several other injuries. He has to undergo treatment for a long period. It was considering all the above facts and circumstances that the court below had come to the conclusion that the R.F.A. 177/2009. 4 allegations of the plaintiff have been established. As far as the quantum of damages granted, it appears to be just and reasonable considering the injuries, treatment undergone etc. There is nothing to indicate that the finding of the court below is vitiated or perverse. It is a view that could be taken by the Sub Court on the basis of the evidence before it, and if that be so, no interference is called for with the said finding. The appeal is without merit and it is dismissed in limine. P.R. Raman, Judge P. Bhavadasan, Judge sb.