IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 736 of 1999()
1. M/S.KERALA SHIPPING & INLAND NAVIGATION
... Petitioner
Vs
1. T.R.BROWLIYOOSE
... Respondent
For Petitioner :SRI.VAKKOM N.VIJAYAN,SC,KS & INC LTD.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :27/01/2009
O R D E R
P.N.Ravindran, J.
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A.S.No.736 of 1999
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Dated this the 27th day of January, 2009.
JUDGMENT
The first defendant in O.S.No.46 of 1994 on the file of the Court of
the Subordinate Judge of Ernakulam is the appellant in this appeal.
Respondents 1 and 2 are the plaintiffs and respondents 3 and 4 are
defendants 2 and 3 respectively therein.
2. The first plaintiff, who is a businessman dealing in coconut fibre
had hired for his business purposes a licenced country craft owned by
the second plaintiff for a period of one month from 1.6.1993 on a daily
rent of Rs.160/-. According to the plaintiffS, at about 2.00 A.M. on
27.6.1993 while the country craft belonging to the second plaintiff,
loaded with coconut husks purchased by the first plaintiff was on its way
from Eroor to Vaduthala, it was hit by the barge belonging to the first
defendant as a result of which, the country craft was damaged and sunk
and the goods carried in it were lost. The plaintiff claimed a total sum of
Rs.1,00,000/- as damages.
3. The first defendant resisted the suit contending inter alia that
the barge belonging to it was not involved in the accident. The country
craft belonging to the second plaintiff was insured with defendants 2 and
3. They disputed the plaint claim relating to the loss of goods and the
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extent of damage caused to the country craft. The first plaintiff’s
brother’s son was examined as PW1, one Sri. Kunjumon as PW2 and a
worker engaged by the first plaintiff as PW3 and Exts.A1 to A14 were
marked on the plaintiffs’ side. The driver of the barge belonging to the
first defendant was examined as DW1 and another employee of the first
defendant was examined as DW2. Exts.B1 to B11 were marked on the
side of the defendants. The court below on an analysis of the evidence
oral and documentary available in the case held that the collision
between the barge and the country craft was as a result of the negligence
on the part of the employees of the first defendant. The court below also
held that the first plaintiff is entitled to the sum of Rs.6,000/- towards
the value of coconut husks, Rs.31,152/- towards expenses incurred for
repairing the country craft and Rs.4,800/- towards the rent paid by him
to the second plaintiff. The suit was decreed in part, allowing the first
plaintiff to realise from the defendants the sum of Rs.41,952/- together
with interest thereon at 6% per annum from the date of suit till
realisation. The first defendant has filed this appeal assailing the
correctness of the findings of the court below.
4. I have heard Sri.V.J.Mathew, the learned counsel for the
appellants, Sri.Shiju Varghese, the learned counsel for respondents 1 and
2 and Sri.Mathew George Vadakkel, the learned Government Pleader
appearing for respondents 3 and 4. The collision between the country
craft owned by the second plaintiff and the barge owned by the first
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defendant took place, according to the plaintiffs, at about 2.00 A.M. on
27.6.1993. In respect of the said accident, a crime was also registered by
the Hill Palace Police Station at 5.30 P.M. on the very same day. The
alleged collision took place near Kaniyampuzha bridge at about 2.00
A.M. on 27.6.1993. It has come out in evidence that the journey from
Willington Island to the Cochin Division of the F.A.C.T. takes 5 = to 6
hours. The first defendant has no case that its barge did not ply along
the Kaniyampuzha river on 27.6.1993. Ext.B2 trip sheet proves beyond
doubt that the first defendant’s barge left Willington Island at 10 P.M. on
26.6.1993 and reached Ambalamughal at 3.40 A.M. on 27.6.1993.
According to the witnesses examined on the side of the defendants, the
distance from Willington Island to Kaniyampuzha bridge can be navigated
in 3 = to 4 hours and from Kaniyampuzha bridge to Ambalamughal in 2
to 2 = hours. Therefore, going by the materials on record, it can be
safely assumed that the barge belonging to the first defendant would
have reached Kaniyampuzha bridge between 2 A.M. and 2.30 A.M. on
27.6.1993. PW3, a worker of the first plaintiff, who has more than 40
years of experience, had spoken to the fact that no barge other than the
barge belonging to the first defendant plies along the Kaniyampuzha
river. His version is supported by DW1, an employee of the first
defendant. In the light of this finding, the court below came to the
conclusion that the country craft belonging to the second plaintiff was
involved in the collision with the barge owned by the first defendant. The
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court below also held that there was no negligence on the part of the
crew of the country craft. In my opinion, the said findings cannot be said
to be perverse or not warranted by evidence on record. I accordingly
confirm the said findings.
5. In support of his claim for compensation towards the value of
the goods lost, no evidence was adduced by the first plaintiff. However,
on the short ground that the defendants have not disputed the first
plaintiff’s claim that the goods belonging to him were lost in the
incident, the entire amount of Rs.6,000/- which according to the first
plaintiff was the value of the husks carried in the country craft, was
awarded to him. Besides the said amount, the sum of Rs.31,152/- stated
to be the expenses incurred by the first plaintiff to repair the country
craft was also awarded to him. The first plaintiff had also claimed the
sum of Rs.4,800/- towards the rent paid by him to the second plaintiff.
Relying on Ext.A9 letter sent by the second plaintiff, the court below
awarded to him the sum in full. The learned counsel appearing for the
appellants and the learned Government Pleader appearing for
respondents 3 and 4 canvass the correctness of the said findings.
According to them, as the first plaintiff has not proved that the value of
the husks carried in the country craft was Rs.6,000/-, he is not entitled to
claim the said amount from the defendants. They also contend that the
first plaintiff has not proved that he has paid Rs.4,800/- as demanded by
the second plaintiff in Ext.A9 letter. The appellant and respondents 2
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and 4 also seriously dispute the quantification of expenses incurred by
the first plaintiff to repair the country craft.
6. The court below has awarded to the first plaintiff the sum of
Rs.6,000/- towards the value of the coconut husks though no evidence is
available to prove that 26000 coconut husks had been purchased by him
and loaded in the country craft. A perusal of the written statement filed
by defendants 3 and 4 discloses that they had seriously disputed the said
fact. In my opinion, the burden was on the first plaintiff to show that he
had purchased 26000 coconut husks and loaded it in the country craft
which met with the accident on 27.6.1993. There is no cogent evidence
in support of the said plea. Therefore, the court below was not right in
holding that the first plaintiff is entitled to get the sum of Rs.6,000/-
towards the value of the husks. Likewise, there is also no evidence to
show that the first plaintiff had paid to the second plaintiff, the sum of
Rs.4,800/- as rent for one month. Even according to the first plaintiff, he
had taken the country craft belonging to the second plaintiff for a period
of one month from 1.6.1993 on a daily rent of Rs.160/-. The accident in
the instant case took place on 27.6.1993. The period of one month
would have come to an end on 30.6.1993. As a result of the accident,
the first plaintiff was thus disabled from using the country craft only for
three days, namely, 28.6.1993, 29.6.1993 and 30.6.1993. Therefore, he
can claim only Rs.480/- towards rental charges. The finding of the court
below that he is entitled to get the sum of Rs.4800/- from the first
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defendant cannot therefore be sustained. Though the appellant and
respondents 3 and 4 seriously dispute the award of the sum of
Rs.31,152/- towards expenses incurred for repairing the country craft,
on the evidence available, particularly Ext.A11, it cannot be said that the
said sum is exorbitant. It is not in dispute that serious damage was
caused to the country craft owned by the second plaintiff. The first
plaintiff has also proved that he had to meet the expenses to repair the
country craft. I Therefore find no ground to interfere with the award of
the sum of Rs.31,152/- towards expenses incurred by the first plaintiff
for repairing the country craft belonging to the second plaintiff. I
accordingly confirm the said finding. It is not in dispute that the barge
belonging to the first defendant was insured with defendants 2 and 3.
Therefore, they are liable to indemnify the first defendant. The court
below has not considered this aspect of the matter. Instead, it has
passed a decree allowing the first plaintiff to recover from the
defendants the amounts awarded by it. As the barge is admittedly
insured with defendants 2 and 3, it is for defendants 2 and 3 to pay the
amount that the plaintiffs are entitled to.
7. In the result, the appeal is allowed in part and the decree and
the judgment passed by the court below are modified and the first
plaintiff is granted a decree allowing him to realise from the defendants
jointly and severally the sum of Rs.31,632/- (Rs.31,152/- + Rs.480/-)
together with interest thereon at the rate of 6% per annum from the date
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of suit till realisation. The plaintiffs will also be entitled to the costs of
the suit. The costs in the appeal shall be borne by the respective parties.
P.N.Ravindran,
Judge.
ess 28/1