IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 47 of 1995(D)
1. A.MOIDU HAJI
... Petitioner
Vs
1. TESSYMOL JOSE
... Respondent
For Petitioner :SRI.T.KRISHNANUNNI (SR)
For Respondent :SRI.K.RAMAKUMAR (SR.)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/06/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
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A.S.Nos.47 & 48 OF 1995
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Dated this the 8th day of June, 2010
JUDGMENT
Thottathil B.Radhakrishnan, J.
1.These appeals are by the defendant in two suits which were
jointly tried and disposed of by the court below.
2.O.S.121/90 is filed by the son and O.S.122/90 is filed by the
daughter of PW1. The allegation was that a portion of a
rubber plantation belonging to them was destroyed in a fire
that occurred on 23.4.1987 and the defendant was
responsible for causing that fire. In O.S.121/90, the plaintiff
claims damages of Rs.50,000/- with interest at 12% and in
O.S.122/90, the plaintiff claims damages of Rs.1,50,000- with
interest at 12%. The defendant contested contending that he
was not responsible for the fire. However, the occurrence of
a fire in the area on the relevant date was not disputed.
AS.47/95 & 48/95
2
Going by Ext.C2 plan prepared by the Commissioner, we find
that there is a large strip of land belonging to one Kunhalan
Haji, separating the plaintiffs’ property and the defendant’s
property. Such land of Kunhalan Haji also is stated to be
damaged. It appears from Ext.C1 report and plan that the
land of Kunhalan Haji was not subjected to any particular
cultivation barring the availability of 4 coconut trees. The
defendant disputed the allegation against him. However, the
court below has noted that the defendant having put the
plaintiff to proof of the allegations regarding the quantum of
compensation, there is no specific denial of the quantum
claimed by the plaintiffs.
3.Before the court below, the father of the plaintiffs gave
evidence as PW1. During the course of his cross
examination, he stated that he was not available in the station
on the date of the incident. He further mentioned the names
of three persons who visited him on the day succeeding the
AS.47/95 & 48/95
3
occurrence and informed him of the incident. PW2
Subramanian is one among them. PW2 speaks of the
occurrence by stating that he saw the defendant gathering
dry leaves from the defendant’s property which lies to the
north-east of Kunhalan Haji’s property. Reading the evidence
of PW2, it may be that there could be some confusion as to
whether the defendant set fire by lighting the leaves or
whether it was a case of his putting the dry leaves on to the
fire that was already burning. Either way, it does not
improve the case of the defendant because a contribution to
an existing fire is itself sufficient to invite tortious liability
and consequential damages, if it is proved that the fire
ultimately resulted in loss to the plaintiffs. We may note that
Ext.C1 Commissioner’s report speaks of the existence of
rubber trees which have been re-planted in the area in
question. But the Commissioner’s report does not, by itself,
give any data which could be relied on for the purpose of
determining the quantum of damages that could be awarded.
AS.47/95 & 48/95
4
We also take note of the fact that PW1 deposed that the
cultivation in the land of the plaintiffs were covered by
insurance and that the plaintiffs had availed loan for the
purpose of the cultivation. No materials relating to those
transactions are on record. Leaving apart the instance of
insurance, such materials would have thrown light into the
actual situation regarding the trees which are allegedly
destroyed by fire. We may also note that PW1 has deposed
that after the incident, the area was re-planted and the land
with the re-planted rubber was sold for Rs.40,000/-. We
cannot ignore that submission of PW1. We also note that at
one stage of his evidence, PW1 stated that the income
derived from the property is 2 to 2 = lakhs per year. The
plaintiffs have not placed on record any return filed in
relation to agricultural income tax or other material which
could have been credible evidence regarding the quantum of
damages. With this scenario of evidence, we need to examine
whether the finding of the court below that the defendant is
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5
liable, he having generated the fire, stands. We also need to
examine whether the finding of the court below regarding the
quantum of compensation stands. Adverting to the evidence
of PW2, the fact that PW2 had seen the fire is fairly
corroborated by the fact that PW1 in his evidence says that
PW2 was one of the persons who visited him the next day and
informed about the fire. We also do not find even a
suggestion in cross examination that PW2 had any animosity
or ill-will towards the defendant so as to speak against him.
PW2 is a labourer. He and other persons who are working
for one Baby in a rubber plantation were, going by deposition
of PW1, there during the lunch recess. The totality of the
evidence of PW2 does not persuade us to reverse the finding
of the court of first instance rendered by believing the
version of PW2 that the defendant was seen putting dry
leaves on to the property of Kunhalan Haji, wherein, fire was
burning and the defendant was seen running away from his
property, when PW2 and his friends came running, seeing the
AS.47/95 & 48/95
6
fire, in an attempt to put it out. Having thus confirmed the
finding of the court below that DW1, the defendant, was
liable for the incident and the loss caused to the plaintiffs, we
have to examine whether the appreciation of evidence by the
court below fixing the quantum of damages is proper and in
accordance with law.
4.The court below may be justified to some extent in saying
that there is the absence of specific denial of the plea
regarding the quantum of damages since the defendant had
put the plaintiffs to strict proof of the pleadings in that
regard. But then, awarding damages would be only when the
court is satisfied of the fact that the defendant has caused
damage and after ascertaining the quantum of damage
caused. The damages that would be awarded should have a
definite relation to the proved damage. In this view of the
matter, we find that the evidence of PW1 regarding the
different aspects does not inspire confidence to hold that any
AS.47/95 & 48/95
7
specific damage calling for award of damages, as has been
done by the court below, is proved. Therefore, the only
course that is open to the court is to award nominal damages,
it having been proved that the fire resulted in some loss or
damage to the rubber trees, that is, to the property of the
plaintiffs, however, that the materials are insufficient to
quantify the damages. Taking the overall facts and
circumstances into consideration and having regard to the
pleadings and evidence on record, we also take into
consideration the fact that the suit was filed just on the day
on which it would have become time barred even taking the
allowance of the mid summer holidays. Thereby, the best
evidence that could have been brought in was lost. Not even
the mahazar of the connected criminal case is brought to the
civil court and proved as enjoined by law. The application for
issuance of Commission for local inspection was filed and
orders obtained and Commissioner deputed only one year
after the suit. The Commissioner’s report does not throw any
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8
light regarding the state of affairs immediately following the
fire. Obviously therefore, in the absence of materials in that
regard, the court can award only nominal damages
necessarily on the basis of guess work. With the materials on
record, we are of the view that each among the plaintiffs
would not be entitled to more than Rs.10,000/- by way of
nominal damages.
5.In the result,
(i) the appeals are partly allowed.
(ii) the decree passed by the court below in O.S.121/90 is
modified by reducing the damages to Rs.10,000/-, with interest
at the rate of 6% per annum from the date of suit till the date of
realisation.
(iii) the decree passed by the court below in O.S.122/90 is
modified by reducing the damages to Rs.10,000/-, with interest
AS.47/95 & 48/95
9
at the rate of 6% per annum from the date of suit till the date of
realisation.
(iv) Having regard to the facts and circumstances, it is
ordered that the parties will bear their respective costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
Sd/-
S.S.SATHEESACHANDRAN,
Judge.
kkb.11/06.