IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 177 of 2009()
1. JOSE AND OTHERS
... Petitioner
Vs
1. SURESH
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.K.J.SAJI ISAAC
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :28/05/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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R.F.A. No. 177 of 2009
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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.