IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 AS.No. 278 of 2000(A) ------------------------------ [AGAINST THE DECREE AND JUDGMENT DTD. 28/05/99 IN OS.NO.212/1994 OF SUBORDINATE JUDGE'S COURT, SULTHAN BATHERY] .................... APPELLANT/1ST DEFENDANT: -------------------------------------------- M/S. HARRISONS MALAYALAM LTD., ARAPATTA ESTATE, MEPPADY, VYTHIRI TALUK, REPRESENTED BY ITS MANAGER. BY SRI.A.M.SHAFIQUE, SENIOR ADVOCATE. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. ABDUL AZEES, AGED 17 YEARS, (MINOR) REPRESENTED BY GUARDIAN AND GRAND MOTHER, SRAMBIKKAL KUNJIPATHU, AGED 60 YEARS, RESIDING AT MOOPYANADU AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. 2. ABDUL NAZAR, AGED ABOUT 13 YEARS (MINOR), REPRESENTED BY GUARDIAN AND GRAND MOTHER, SRAMBIKKAL KUNJIPATHU, AGED 60 YEARS, RESIDING AT MOOPYANADU AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. 3. FATIMA ZUHARA, AGED ABOUT 11 YEARS, (MINOR), REPRESENTED BY GUARDIAN AND GRAND MOTHER, SRAMBIKKAL KUNJIPATHU, AGED 60 YEARS, RESIDING AT MOOPYANADU AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. 4. K. MOHAMMED KUTTY, KUNIMMAL VEEDU, THAZHE ARAPPATTA, VIA. MEPPADY, VYTHIRI TALUK, WAYANAD DISTRICT. A.S. NO.278/2000-A: 5. MOHAMMED, S/O. ITHALU MASTER, AGED 51 YEARS, CHATHAMCHIRA HOUSE, KOTTAPPADY AMSOM AND DESOM, VYTHIRI TALUK, WAYANAD DISTRICT. R1 TO R3 BY ADVS. SRI.K.JAJU BABU, SMT.C.S.SHEEJA, R4 BY ADVS. SRI.A.K.SRINIVASAN, SRI.N.S.MOHAMMED USMAN, SRI.A.S.BENOY. THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 28/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ----------------------------------- A.S.No.278 OF 2000 ------------------------------------ Dated this the 28th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The first defendant in a suit for damages is the appellant. 2. The plaintiffs are the children of Nabeeza, who died on 16.4.1992. They alleged that their mother died as a result of injuries sustained when a log from among the wood stacked in the estate of the first defendant fell on her, while she was walking through a road in the estate, which was being used by the general public for their ingress and egress. The contesting defendants 1 and 2 contended that Nabeeza suffered the injuries since she trespassed into the estate, presumably to take firewood and a log among the stacked wood happened to fell on her. On that premise, they pleaded that they have no tortious liability. AS.278/00 2 3. The court below heard the version of PW1, the mother of the deceased. She said that the deceased, accompanied by PW2, was on her way to a hospital and it was then that the log of wood fell on the deceased. PW2 corroborated the evidence of PW1. The court below believed those witnesses. The testimony to the contrary, on behalf of the defendants, was of DW1, who admittedly was not an eye witness of the incident. The court below, on preponderance of probabilities, held the defendants liable for compensation. We do not find any illegality in the findings of the court below. Therefore, the case of the defendants that the deceased had trespassed into the land belonging to the first defendant does not stand at all. We are, therefore, not proceeding to examine the legal effect of the contesting defendants' version that the incident had occurred when the deceased trespassed into the first defendant's land to collect firewood, and therefore, they are not liable; though that is a debatable issue in law. AS.278/00 3 4.Learned counsel for the appellant further argued that the rate of interest awarded by the court below is excessive. Taking into consideration the age of the deceased and the fact that she left behind three minor children, we are inclined to think that the compensation awarded, that is, Rs.1 lakh, itself is on the lower side, though there is no cross objection by the plaintiffs. Under such circumstances, we are inclined to think that the discussion exercised by the court below in fixing the rate of interest does not warrant interference in appeal under Section 96 CPC. Ends of justice do not advise such modification of the decree. 5.For the aforesaid reasons, the appeal fails. The same is accordingly dismissed with costs. The amounts covered by the decree, at least its major portion, is lying in deposit before the court below. Hence, subject to the decree holders' right to execute the decree for any amount which is yet to be deposited, it is ordered that the amount lying in AS.278/00 4 deposit shall be released to the decree holders in accordance with and subject to the relevant rules, within a period of one month from the date of production of a copy of this judgment. The court below will ensure that appropriate action is taken since the decree holders are shown to be minors at the time of the suit. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.30/6.