JUDGMENT
R. Bhaskaran, J.
1. This appeal is filed by the 2nd defendant in a suit for compensation. The case of the plaintiffs is that on 10-8-1984 an elephant, by name “Baburaj”, owned by defendants 1 to 4 and hired by 6th defendant became unruly and entered into the plaintiffs’ land and committed several mischieves by felling 20 yielding coconut trees, destroying 4 coconut saplings, 3 yielding arecanut trees, 5 plantain and 5 paras of paddy. The plaintiffs therefore claimed compensation for felling trees Rs. 30,000/- and Rs. 250/- towards the value
of paddy.
2. Among the defendants, 2nd defendant alone contested the suit. He claimed that he is the owner of the elephant and defendants 1, 3 and 4 have no right or liability. His case is that on the basis of an agreement between the plaintiffs and the 5th defendant, the mahout of the elephant, certain unyielding coconut trees were arranged to be felled by the elephant and while so, a lady who came there opened her coloured umbrella and the elephant became violent and due to the breakage of must the elephant became uncontrollable. But subsequently, it was controlled. It was stated that the elephant was taken to the plaintiffs’ land for felling unyielding coconut trees at the expense of the Government and to plant new trees there. It was also contended that the amount claimed is exorbitant.
3. The trial Court framed the following issues :
1. Is the suit maintainable?
2. Whether the 2nd defendant is the owner of the elephant by name-Baburaj?
3. Whether 5th defendant was the mahout of the elephant?
4. Whether the elephant has caused damage to the plaintiffs and what is the quantum of damages?
5. Whether there was gross negligence on the part of defendants 1 to 5?
6. Relief and costs?
The trial Court found that it cannot be said that 2nd defendant alone was the absolute owner of the elephant since the 2nd defendant did not produce any document to show that he alone purchased the elephant. It was also found that the 5th defendant was the mahout of the elephant at the time of incident. The trial Court believed the evidence of P.Ws. 2 to 4 and found that breakage of must was due to the beating of the elephant by the 5th defendant. It was further found that the case set up by the 2nd defendant that the elephant was brought to the plaintiffs’ premises for uprooting the unyielding coconut trees as not proved. It was found that the elephant was brought for one Vijayan for removing the timber by the 6th defendant.
4. In the trial Court, a Commission was taken out to assess the damage caused to the plaintiffs. The Commissioner assessed damages at Rs. 49,723/-. Since the plaintiffs have claimed an amount of Rs. 30,225/-the decree was restricted to that amount. An amount of Rs. 1.000/- was also awarded for mental agony.
5. It Is contended in the memorandum of appeal that the amount of damage awarded is highly excessive. It is also contended that the elephant Baburaj exclusively belongs to the appellant and defendants 1, 3 and, 4 have no manner of right. It is also contended that the elephant was engaged by the plaintiffs to uproot the disease affected coconut trees. It is, contended that the capitalisation of income for 25 years is not a safe method.
6. At the time of argument, the learned counsel for the appellant argued only with respect to the quantum of damages awarded by the trial Court and therefore the point for consideration is as to what is the amount of compensation to which the plaintiff is entitled to.
7. The trial Court has based the decision with regard to the quantum of damage exclusively on the basis of the report of the Commissioner. Since the amount claimed was less than what was found by the Commissioner, the decree was restricted to the amount which was claimed in the plaint. It is now agreed on both sides that if the case of the plaintiffs is true they are only entitled for restitution of the loss suffered on account of the activity of the elephant in the plaintiffs’ premises.
8. Exts. C1 and C2 are the mahazar and report submitted by the Commissioner. For most of the coconut trees, the Commissioner has taken multiple of 26 and for some the multiple adopted is 26 and for some it is 23. This is on the basis that the trees should have continued to yield for so much years. It is on this basis that an amount of Rs. 58,600/- is arrived at by the Commissioner as the total Income that is lost to the plaintiffs. The Commissioner has thereafter deducted 1/4 for droppings and further 1/4 for maintenance and arrived at the balance amount of Rs. 43,675.31. According to the learned counsel for the appellant, by restitution, the appellant must be given the amount that he might be losing by the destruction of the trees. He argued that the Commission report showed that the coconut trees aged 5 have started yielding and therefore if the trees are completely destroyed whether it is 5 years old or 10 years, another coconut sapling planted on the day of destruction will start yielding. Therefore there is no justification for having a multiple of 23 to 26 in calculating damages caused to the plaintiffs. The learned counsel also submitted that the Commissioner visited the property without giving notice to the defendants and the case of the defendants that the elephant was engaged for uprooting the unyielding coconut trees belonging to the plaintiffs so as to enable them to get subsidies from the Government could not be established.
9. The plaintiffs had taken out an ex parte Commission. When the Commissioner was examined, he has stated that he did not give notice to the defendants since it was an urgent Commission. In view of the fact that the Commissioner was expected to assess the damage on account of the destruction of the coconut trees, it would have been better if the Commissioner had given notice to the defendants and assessed the damages in their presence. Since it was an ex parte Commission, the Commission report was made admissible by examining the Commissioner in Court. But the details of the loss sustained by the plaintiffs could have been better ascertained in the presence of the defendants. Though there appears to be some merit in the contention of the 2nd defendant that the wholesale destruction of 24 coconut trees by the elephant after the breakage of must is an improbability not without any force, since no sufficient evidence has been adduced with respect to that, it is unnecessary to consider the same aspect especially when the learned counsel for the appellant mainly argued with regard to the quantum of damages only.
10. Ratanlal & Dhirajlal on the law of torts, 21st Edition, at page 12 it is stated as follows :
“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by Court to compensate “damage” is called “damages”.
At page 168, in the same book, it is stated as follows :
“In case of injury to property, the measure of damages is the cost of reinstating the property.”
11. If the principle applicable is one of restitution, the plaintiffs are not entitled to get anything more than what they lost by the destruction of coconut trees. In other words, the plaintiffs will be entitled to be reimbursed for the loss of income for the period taken for a new coconut plant to start yielding fully. It has also to be noticed that even if the entire property is acquired, the land owner will not get more than 10 or 12 times the annual income from the property as compensation. Here, there is no acquisition of land and the plaintiffs are entitled to plant new trees and get income. Therefore, the plaintiffs are not entitled td get anything more than the capitalised value adopted in the land acquisition proceedings. At any rate, the multiple adopted by the Commissioner at 23 to 26 of the coconut trees is exorbitant. That is evident from the fact that even the plaintiffs did not claim so much amount in the plaint. The learned counsel for the appellant submits that the plaintiffs have no case that the amount was restricted as they could not pay the sufficient court-fee. The 2nd defendant has also filed objections to the Commissioner’s report. It is, no doubt, true that the objections are very brief, The Commissioner has stated in evidence that he has calculated the yield by looking at the uprooted coconut trees and also the yielding trees in the neighbouring land. Since there are no other materials apart from the data furnished by the Commissioner, this Court has to proceed on the basis that the income assessed by the Commissioner is correct. At the same time, the multiple of 23 to 26 adopted by the Commissioner is incorrect. As reported by the Commissioner, if a coconut tree having 5 years of age has started yielding, there is no reason to allow the plaintiffs compensation by multiplying the yield by 23 to 26 times. Taking a liberal view of the matter, I am of opinion that the multiple to be adopted is 12 and based on that the loss has to be found out on the basis of the income assessed by the Commissioner. In K. Posayya v. Special Tahsildar, AIR 1995 SC 1641, the multiplier of 10 of the yearly income was found to be the correct method to find out the market value of the property as per the settled law. In the plaint itself the plaintiffs had stated that there were 20 yielding coconut trees and 4 coconut saplings. But in the Commissioner’s report the Commissioner has shown 24 yielding coconut trees. It also shows that assessment was in excess of the claim made by the plaintiffs. If a multiple of 12 is adopted for 24 coconut trees at the yield assessed by the Commissioner the total yield will be 26380 coconuts. Deducting 1/4th for dropping, it will be 19785. Though the Commissioner has deducted a further 1/4th of the income for manuring expenses the same is not deducted since it will be required for planting and maintenance till the trees started yielding. But the Commissioner has taken the yield from 24 trees where as the plaintiffs had only stated in the plaint itself that only 20 yielding trees were destroyed by the elephant. Therefore, the value of 4 coconut trees will have to be further deducted from the amount calculated by the Commissioner. The Commissioner has found Rs. 2450.81 for cadjan leaves. That also is on the higher side since Cadjan leaves will be available from unyielding trees also. Therefore, instead of 23 the multiple of 10 will be sufficient and the total loss of the cadjan leaves will be only for 10 years. Therefore, the amount is reduced from 2452 to 600. Similarly, for arecanut trees also reduction is to be made. Instead of Rs. 3,800/-the amount of Rs. 2,500/- is taken. If the entire amounts are calculated it will come to Rs. 24,663.70 including the other loss of plantain and paddy etc. which can be rounded to Rs. 25,000/-.
12. The Court below has granted Rs. 1,000/- for mental agony and I see no reason to disturb the same. The Court below has not accepted the case of the 2nd defendant that he is the owner of the elephant and he alone is liable for compensation for the reason that he has not produced any sale deed with respect to the elephant. In fact, he has produced a sale deed after the closing of the evidence and since he had stated that no document was executed regarding the sale of the elephant, the document was held to be a subsequently created one. There is also no document showing that defendants 1, 3 and 4 were the owners of the elephant. The Court below has held that they are the owners merely for the reason that they were ex parte in the case. When the 2nd defendant is prepared to own the liability there was no reason for the Court to doubt his claim that he was the owner of the elephant. However, since the other de-fendants are ex parte, it is unnecessary to decide this question finally. It is sufficient to note that once the decree is reversed in favour of the 2nd defendant, the benefit of such reversal will be available to those who had not filed the appeal and this Court can pass appropriate orders in exercise of the power under Order 41, Rule 33 of the Code of Civil Procedure.
In the result, the appeal is allowed in part
and the judgment and decree of the; trial
Court are modified by reducing the amount
of compensation awarded to the plaintiffs
from Rs. 31,225/- to Rs. 26,000/- from defendants 2 to 5 and their assets with inter
est at 6% from the date of suit till realisation. In view of the fact that the appeal is
allowed in part, the parties shall bear their
costs in this appeal.
