IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 A S.No. 174 of 1998(C) & CROSS OBJECTION -------------------- O.S. NO: 213/ 1991 OF the Sub Court, Pathanamthitta. APPELLANT(S): -------------- 1. AYROOR GRAMA PANCHAYAT, REPRESENTED BY ITS' SECRETARY AROOR, PATHANAMTHITTA. BY ADV. SRI.BABU CHERUKARA RESPONDENT(S): --------------- 1. JOSEPH KUTTY V.S., S/O. XAVIER VATHELLOOR HOUSE, KOTTATHOOR MURI, AYROOR VILLAGE. 2. SARAMMA JOSEPH, W/O. JOSEPH KUTTY, -DO - 3. K.A.GEORGE, S/O. ABRAHAM, KUZHIMANNIL HOUSE, KATTOOR MURI, CHERUKOLE VILLAGE. 4. SHAJI MATHEW, KARIKUDIYIL HOUSE THEKKUMKAL, KOTTATHOOR MURI, AYROOR VILLAGE. BY ADV. SRI.K.K.VIJAYARAGHAVAN ADV. SMT. S.K.DEVI, SANTHOSH P ABRAHAM - R4 THIS APPEAL SUIT ALONGWIH CROSS OBJECTION HAVING BEEN FINALLY HEARDON 10/06/2009, THE COURT ON 17/06/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO:1258 OF 1998 IN A.S. NO:174 OF 1998 ---------------------------- DIMISSED. SD/- (M.L.JOSEPH FRANCIS) JUDGE. //TRUE COPY/ / M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - A.S. NO: 174 OF 1998 & CROSS OBJECTION - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th Day of June, 2009. JUDGMENT This appeal is filed by the second defendant in O.S. No:213/91 on the file of Sub Court, Pathanamthitta. Respondents 1 to 3 are the plaintiffs 1 to 3 and 4th respondent is the first defendant in the suit. That is a suit for damages. The case for the plaintiffs is briefly as follows: 2. Anakallipadi - Kuzhikalapadi road passes through the middle of the rubber estate of plaintiffs 1 and 2. The second defendant, Panchayath entrusted the first defendant who is a contractor to do the maintenance work of that road. On 24.1.1991 , the first defendant and his workers collected dry leaves on the side of this road, adjacent to the rubber estate and set fire to the dry leaves and suddenly, the fire broke out causing damage to 110 rubber trees aged 5 years belonging to plaintiffs 1 and 2. The third plaintiff is the power of attorney holder plaintiffs 1 and 2. A.S. NO: 174 OF 1998 : 2 : The plaintiff claimed Rs.30,000/- as damages for the destruction of rubber trees. The defendants 1 and 2 filed separate written statements denying the accident and their liability to pay compensation. 3. In the Sub Court, PW1, PW2, DW1 and DW2 were examined and Ext. A1 to A9 and B1 to B3 were marked. The learned Sub Judge on considering the evidence decreed the suit in part allowing the plaintiffs to realize a sum of Rs.12,650/- as damages with interest at the rate of 6% per annum from the date of suit till the date of realization and proportionate cost from the defendants and their assets. Against this judgment and decree, the second defendant filed this appeal. The first defendant filed a cross objection challenging the judgment and decree against him. 4. Heard the learned counsel for the appellant and learned counsel for the 4th respondent. 5. The case of the plaintiffs is that the first defendant is a contractor and second defendant, Gramma Panchayath entrusted A.S. NO: 174 OF 1998 : 3 : the first defendant to do the maintenance work of Anakallipadi - Kuzhikalapadi road as its nominee. That road passes through the rubber estate belonging to plaintiff 1 and 2. The allegation is that on 24.1.1991, the first defendant and his workers collected dry leaves on the side of the road adjacent to this rubber estate and set fire to the dry leaves and suddenly the fire broke out damaging 110 rubber trees which were standing in the rubber estate of plaintiff 1 and 2. The third plaintiff is the father of the second plaintiff and power of attorney holder of plaintiffs 1 and 2. The third plaintiff was examined as PW1. He deposed that he has not seen the incident and that he came to know about the incident from PW2 who was the care taker of that estate. PW2 deposes that on 24.1.1991, the first defendant and the workers of the first defendant did the maintenance work of that road and as a part of that work they wiped dry rubber leaves accumulated in that road and set fire to the dry leaves and he objected to it, and anticipating further mischief he waited in the estate and in the noon when A.S. NO: 174 OF 1998 : 4 : the first defendant went for taking lunch he kept himself hidden in the estate, and immediately the fire broke out in the second terrace in the northern bit of that rubber estate and he saw 2 or 3 workers running away from the estate, and when he cried out the neighbouring people came there. But they were unable to extinguish the fire and knowing about this incident, first defendant came there and watered the rubber trees by bringing water from distant places in a jeep. From this version of PW2, it is evident that the first defendant was not there at the time of the incident. 6. The plaintiffs have no case that the 2nd defendant, Panchayath and its employees are involved in the incident. It has come out in evidence that the road passes through the middle of the estate of the plaintiffs in east - west direction dividing the estate into two bits. One is in the north and the other on south. The northern bit is elevated and lying in different terraces. If the version of PW2 that fire was first found in the 2nd terrace on the northern bit is true, the fire mishap could not be a consequence A.S. NO: 174 OF 1998 : 5 : of a fire set up in the road in the morning by the workers of first defendant. According to the case of the plaintiffs, the fire mishap occurred when the workers of first defendant collected dry leaves on the side of the road adjacent to the estate and they set fire to the dry leaves. When the first defendant was examined as DW1, he denied the role of his workers in the fire mishap. It is true that a mere preponderance of probability may be sufficient for a decision in a civil case. But in this case since a criminal act is alleged against the workers of first defendant, it requires strict proof than in a civil proceeding. The plaintiff have not examined any independent witness in order to prove the involvement of workers of first defendant in the fire mishap. In the absence of any independent evidence I am of the view that the Learned Sub Judge is not justified in arriving at a conclusion that fire mishap occurred due to the negligent act of the first defendant and his workers. Since the involvement of the first defendant and his workers is not proved, the plaintiffs are not entitled to get any compensation A.S. NO: 174 OF 1998 : 6 : from the defendants for the damage caused to rubber trees. 7. In the result, this appeal and cross objections are allowed. The judgment and decree in OS.No;213/91 of Sub Court, Pathanamthitta is set aside and the suit is dismissed without cost. Parties are directed to suffer their costs in this appeal. (M.L. JOSEPH FRANCIS) Judge dl/