{"id":186198,"date":"2010-08-31T00:00:00","date_gmt":"2010-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-k-abdul-asees-vs-state-of-kerala-on-31-august-2010"},"modified":"2015-04-21T06:05:26","modified_gmt":"2015-04-21T00:35:26","slug":"v-k-abdul-asees-vs-state-of-kerala-on-31-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-k-abdul-asees-vs-state-of-kerala-on-31-august-2010","title":{"rendered":"V.K.Abdul Asees vs State Of Kerala on 31 August, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.K.Abdul Asees vs State Of Kerala on 31 August, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 79 of 1997()\n\n\n\n1. V.K.ABDUL ASEES\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.V.V.SURENDRAN\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :31\/08\/2010\n\n O R D E R\n<\/pre>\n
                                                                         “C.R.”\n<\/p>\n
     THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.\n<\/p>\n
    ————————————————————————\n<\/p>\n
                          AS No.79 of 1997-E\n<\/p>\n
    ————————————————————————\n<\/p>\n
                       Dated 31st August 2010<\/p>\n
                                 Judgment<\/p>\n
Thottathil.B.Radhakrishnan, J.\n<\/p>\n
            The plaintiff in a suit for compensation is the<\/p>\n
appellant. Alleging that he was brutally beaten up by the<\/p>\n
police at about 10 am on 09.01.1985 inside the campus of<\/p>\n
the High School, where the plaintiff was then studying in<\/p>\n
the 10th standard, the suit for compensation was laid on<\/p>\n
the ground that the plaintiff suffered serious injuries and<\/p>\n
was hospitalised for nearly a month and thereafter,<\/p>\n
continued further treatment. He had also undergone a<\/p>\n
surgery for the injury to a portion of his head.<\/p>\n
            2. While the plaintiff alleged that the police had<\/p>\n
entered the campus of the school and lathi charged the<\/p>\n
students, the defence version, as contained in the written<\/p>\n
statement filed by the State of Kerala and the<\/p>\n
AS No.79\/97                      2<\/span><\/p>\n
Commissioner of Police is that the incident did not take<\/p>\n
place as alleged and but that, pursuant to a First<\/p>\n
Information Statement recorded from the plaintiff’s uncle,<\/p>\n
an investigation was held in Crime No.6\/85 of Chevayur<\/p>\n
Police Station, in which it was revealed that at about 11.30<\/p>\n
am on 09.01.1985, about 300 students of the plaintiff’s<\/p>\n
school caused obstruction on the road and deflated the<\/p>\n
tyres of vehicles and the Police tried to scare them away<\/p>\n
and the students dispersed for the time being, though, they<\/p>\n
later stopped a bus KRD 2471 and tried to deflate its tyres,<\/p>\n
which led the Sub Inspector of Police and other Policemen<\/p>\n
to run upto the bus, following which the plaintiff and other<\/p>\n
students ran away from that scene of occurrence and the<\/p>\n
plaintiff fell on the road and rolled down and in that<\/p>\n
process, sustained injuries. The written statement stands to<\/p>\n
refute that the injuries were caused due to any force used<\/p>\n
by the Police.\n<\/p>\n
            3. The plaintiff gave evidence as PW1. PW2 is<\/p>\n
one, who was a student of the said school, at the relevant<\/p>\n
AS No.79\/97                     3<\/span><\/p>\n
point of time. He stated of having seen the plaintiff, being<\/p>\n
assaulted by the police, by poking a lathi into his belly and<\/p>\n
on his back, in the school compound and that the plaintiff<\/p>\n
was hit on his head, when he fell down. The said witness<\/p>\n
said that he and others ran away and the teachers took the<\/p>\n
plaintiff to hospital. He said that there were 8 to 10<\/p>\n
policemen, who were involved in the assault, though he<\/p>\n
would not be able to identify anyone, as he could not see<\/p>\n
their faces properly. He refuted the defence suggestion in<\/p>\n
cross examination that he was tendering evidence<\/p>\n
supporting the plaintiff’s case, owing to personal affinity<\/p>\n
towards him.\n<\/p>\n
            4. PW3, who, at that point of time was a tutor in<\/p>\n
the school and had left that institution about one year<\/p>\n
before he tendered evidence, spoke about the police<\/p>\n
action. The testimony of PW3 corroborates the version of<\/p>\n
PW2 regarding the material particulars including the<\/p>\n
manner in which the plaintiff suffered the assault. Nothing<\/p>\n
is brought out in the cross examination of PW3 to suggest<\/p>\n
AS No.79\/97                      4<\/span><\/p>\n
either that he was not available or that he had any<\/p>\n
animosity towards the Police officials. While he tendered<\/p>\n
evidence, he was a teacher and when he gave evidence,<\/p>\n
he was the Headmaster of another school.\n<\/p>\n
           5. PW4 is the doctor, who treated the plaintiff<\/p>\n
and who recorded Ext.A1 Accident Register-cum Wound<\/p>\n
Certificate.  Ext.A2 is a reference card issued from the<\/p>\n
Medical College Hospital, Kozhikode. Ext.A11 is a<\/p>\n
certificate issued by PW4. The medical records produced<\/p>\n
as Exts.A1 to A11 would show that the plaintiff was an<\/p>\n
inpatient in the Medical College Hospital from 10.01.1985<\/p>\n
to 07.02.1985.     Ext.A1 Accident Register-cum Wound<\/p>\n
Certificate records that the incident had occurred at 11 am.<\/p>\n
and that the plaintiff, who was the injured, attributed the<\/p>\n
incident to police assault. Those statements have been<\/p>\n
recorded and reflected in Ext.A1, prepared by PW4 Doctor.<\/p>\n
Those entries have been made by PW4 in the common<\/p>\n
course of his official conduct as a doctor in the hospital.<\/p>\n
We find no contra-evidence and thus, such materials<\/p>\n
AS No.79\/97                     5<\/span><\/p>\n
corroborate the version that the incident occurred before 11<\/p>\n
a.m. on the crucial day.\n<\/p>\n
           6. As already noticed, the plaintiff was an<\/p>\n
inpatient of the Medical College Hospital, Kozhikode from<\/p>\n
10.01.1985 to 07.02.1985. The documentary and oral<\/p>\n
evidence including that of PW4 Doctor, would show that the<\/p>\n
injury was a grievous one. The injured had a contusion<\/p>\n
over right-temporal region and the patient was unconscious<\/p>\n
and in a serious condition. The second contusion was 3×2<\/p>\n
cm middle of front of upper arm and there was another<\/p>\n
contusion of 3×2 cm over both scapula region. The Doctor<\/p>\n
has categorically stated that the plaintiff had sustained<\/p>\n
intra-dural laemcitoema and emergency temporal burr hole<\/p>\n
right side was done on 10.01.1985 and was then referred<\/p>\n
to Neuro Surgery Department for further treatment. The<\/p>\n
operation was in the skull.\n<\/p>\n
           7. Now, we would refer to Ext.A2 reference card<\/p>\n
of the Medical College Hospital. It evidences the date of<\/p>\n
admission of the patient, date of discharge etc.        The<\/p>\n
AS No.79\/97                          6<\/span><\/p>\n
diagnosis is Extradural Haemorrhage and the operation<\/p>\n
conducted was temporal burr hole right. The said reference<\/p>\n
card records the history of the case as follows :<\/p>\n
                         “Alleged to have been assaulted at 11 am on<\/p>\n
           09.01.1985. He was unconscious and vomitting and was<\/p>\n
           subjected to emergency burr hole and was put on antibiotics<\/p>\n
           and various other medicines and was provided IV fluid<\/p>\n
           support. He had an unevenful post operative period and was<\/p>\n
           referred to the Neurology OP.”<\/p><\/blockquote>\n
           8. We deem it to be appropriate to notice that<\/p>\n
even on 10.04.1985, the doctors had noted on review, that<\/p>\n
vague symptoms still persisted and he continued thereafter<\/p>\n
also to be under treatment.\n<\/p>\n
           9. Exts.A3, A4 and A5 are the subsequent OP<\/p>\n
tickets, which would show that the plaintiff continued to be<\/p>\n
under treatment. Ext.A11 certificate issued by PW4 is to<\/p>\n
the effect that the plaintiff was treated in Ward No.9 of the<\/p>\n
Medical College Hospital, Kozhikode, following the alleged<\/p>\n
assault by the Police by lathi in the compound of<\/p>\n
AS No.79\/97                      7<\/span><\/p>\n
Vellimadukunnu JDC Islam School. The date of admission<\/p>\n
to the hospital was 10.01.1985 and the date of discharge<\/p>\n
was 07.02.1985. It was also stated therein that he had<\/p>\n
sustained extradural haemorrhage       and emergency burr<\/p>\n
hole right was done on 10.01.1985 with IP No.1189 and<\/p>\n
that he was then referred to the Neurology Department for<\/p>\n
further treatment and was still continuing treatment from<\/p>\n
Neurology Department. That certificate was issued on<\/p>\n
16.10.1987.\n<\/p>\n
            10. The cash bills produced as Exts.A12 to A55<\/p>\n
would show that during 1985-86, 1988 upto August 1991,<\/p>\n
the plaintiff continued to be under treatment though he was<\/p>\n
not an inpatient.\n<\/p>\n
11. With the aforesaid materials on record, the court below<\/p>\n
held that the incident as pleaded by the plaintiff has not<\/p>\n
been proved and that the suit is barred in having been filed<\/p>\n
beyond the period of limitation prescribed under S.64(3) of<\/p>\n
the Kerala Police Act, 1960.\n<\/p>\n
AS No.79\/97                        8<\/span><\/p>\n
            12. The learned counsel for the appellant argued<\/p>\n
that the materials on record categorically showed that the<\/p>\n
plaintiff suffered injuries as a result of the assault by the<\/p>\n
police and no justification, whatsoever, is shown by the<\/p>\n
police for such an action. He, therefore, argued that the<\/p>\n
incident itself showed the negligent and deliberate<\/p>\n
contradiction of the statutory duties. He accordingly says<\/p>\n
that the finding that no negligence is proved is<\/p>\n
unsustainable. It is further argued that since it is not, and it<\/p>\n
cannot be shown that the action of the police as alleged is<\/p>\n
part of the official duties, the period of limitation under S.64<\/p>\n
(3) of the Police Act, would not apply. In support of this<\/p>\n
contention, the learned counsel cited the Bench decision of<\/p>\n
this Court in Pathumma v. State of Kerala<\/a> (2000(2) KLT<\/p>\n
827).\n<\/p>\n
            13. Per contra, the learned Government Pleader<\/p>\n
appearing for the State, argued that as against the denial<\/p>\n
of the defendants in the written statement in that regard,<\/p>\n
there is no legal evidence of any incident having occurred<\/p>\n
AS No.79\/97                      9<\/span><\/p>\n
inside the school and that no Police Officer has been<\/p>\n
impleaded in his personal capacity. He also specifically<\/p>\n
pointed out that the investigation conducted in the crime<\/p>\n
registered by the police led to a refer report and that has<\/p>\n
not been impeached. The learned Government Pleader<\/p>\n
further argued that the legal evidence on record does not<\/p>\n
prove any damage having been caused, calling for award<\/p>\n
of compensation. He also argued that there is material<\/p>\n
contradiction between the oral evidence of PWs 1 to 3 and<\/p>\n
therefore, the incident as alleged, has not been proved.<\/p>\n
           14. The fact that an incident occurred on<\/p>\n
09.01.1985 and that the plaintiff was injured, is not in<\/p>\n
dispute. The plaintiff’s version is that he was assaulted<\/p>\n
inside the school compound and the police had<\/p>\n
unauthorisedly got into the school compound and<\/p>\n
assaulted him. The defence version is that the students<\/p>\n
had gathered in a group and were involved in unlawful<\/p>\n
activities of deflating the tyres of vehicles and the police<\/p>\n
had dispersed them, following which the plaintiff and some<\/p>\n
AS No.79\/97                       10<\/span><\/p>\n
others again crowded near a bus and attempted to deflate<\/p>\n
its tyres. It is the specific case of the defence that the Sub<\/p>\n
Inspector of Police and two Police Constables ran towards<\/p>\n
the bus and seeing them, the plaintiff and other students<\/p>\n
ran away and in that process, the plaintiff fell, rolled down<\/p>\n
and thereby sustained injuries. On this specific version<\/p>\n
being placed by the defendants, it was essentially the<\/p>\n
burden of the defendants to show that a transaction as<\/p>\n
pleaded by the police authorities and the State, had<\/p>\n
actually occurred. The police power of the State, which<\/p>\n
includes power to prevent the occurrence of unlawful<\/p>\n
incidents, bestow on the State officials, a duty to explain an<\/p>\n
incident, which admittedly, had happened. In the case in<\/p>\n
hand, there is no shred of evidence in this regard. No<\/p>\n
witness has been examined by the defendants. No<\/p>\n
documentary evidence was placed by the defendants. The<\/p>\n
so-called refer report was not placed before the Court by<\/p>\n
the defendants. The argument on behalf of the defendants<\/p>\n
that there is nothing on record to show that the police<\/p>\n
AS No.79\/97                       11<\/span><\/p>\n
entered the campus without the permission of the<\/p>\n
Headmaster or without being called by the Headmaster,<\/p>\n
does not stand, for the simple reason that any movement<\/p>\n
of the police in that regard and any request of the school<\/p>\n
authorities were matters that would be reflected in the<\/p>\n
General Diary prepared in the Police Station. No material<\/p>\n
has been placed on record to prove that their version is<\/p>\n
true. Equally, there is no reason, why this Court should<\/p>\n
eschew the first among the statements, in the official<\/p>\n
documents of the Government Hospital, in which the<\/p>\n
reason for the injuries is attributed to assault by the police.<\/p>\n
            15. The version of PW2, who is a student of the<\/p>\n
school, cannot be brushed aside. It may be true that upon<\/p>\n
seeing the incident alleged, he ran away. This only reflects<\/p>\n
the common course of human conduct. No student will<\/p>\n
remain in a scene of police action which may cause injuries<\/p>\n
to persons. Under such circumstances, the testimony of<\/p>\n
PW2 student and PW3 teacher, give credence to the<\/p>\n
plaintiff’s version that the teachers of the school had<\/p>\n
AS No.79\/97                      12<\/span><\/p>\n
removed the plaintiff to the hospital. We, on the totality of<\/p>\n
the materials on record, hold that on a preponderance of<\/p>\n
probability, the plaintiff has established that the injuries<\/p>\n
sustained by him were attributable to the actions of police<\/p>\n
Officials.\n<\/p>\n
           16. The court below took the view that the<\/p>\n
plaintiff had not been able to establish negligence on the<\/p>\n
part of the defendants. With the materials on record, we<\/p>\n
are satisfied that the plaintiff has proved that the incident<\/p>\n
occurred and that he was injured in the assault by police.<\/p>\n
As already noticed, the police had a definite version<\/p>\n
regarding the incident. When police action happens in a<\/p>\n
place, it cannot, but, be assumed that the police was in<\/p>\n
control and the police would be the best authority, to give a<\/p>\n
reasonably dependable version, unless of course, such a<\/p>\n
version turns to be unbelievable. Here, there was no<\/p>\n
evidence tendered by the police as none was examined.<\/p>\n
The situation would be similar to one, where the principle of<\/p>\n
res ipsa loquitur could be applied to cases of accidents<\/p>\n
AS No.79\/97                        13<\/span><\/p>\n
where the incident itself bespeaks negligence in the<\/p>\n
common course of police action as permissible in law. We<\/p>\n
do not expect any boy in the 10th standard, being hit on his<\/p>\n
head by a lathi. The contra-version of the police that the<\/p>\n
plaintiff ran on seeing the Sub Inspector of Police and the<\/p>\n
police constables and fell on the road and rolled down, is<\/p>\n
not proved even by a preponderance of probability. There<\/p>\n
is no shred of evidence in support of that plea of the<\/p>\n
defendants. Therefore, we disagree with the findings of the<\/p>\n
court below on the ground of negligence.\n<\/p>\n
            17. Insofar as the plea of limitation is concerned,<\/p>\n
we are in complete agreement with the law laid down in<\/p>\n
Pathumma (supra). The actions which have been proved<\/p>\n
on a preponderance of probability to the satisfaction of this<\/p>\n
Court, are not those which could be treated as part of the<\/p>\n
duly authorised official acts of police. Hence the ratio of<\/p>\n
Pathumma (supra) applies to the case in hand and hence<\/p>\n
it has to be held that the suit is not barred by limitation.<\/p>\n
AS No.79\/97                      14<\/span><\/p>\n
           18. With that, we reverse the findings of the<\/p>\n
court below to the contrary and hold that the defendants<\/p>\n
are liable to compensate, if any damage is shown to have<\/p>\n
been caused.\n<\/p>\n
           19. The plaintiff was a student of the 10th<\/p>\n
standard. The medical evidence on record shows that he<\/p>\n
suffered grievous injuries. He was hospitalised for nearly a<\/p>\n
month. On the date of incident, he had to undergo an<\/p>\n
emergency surgery. The surgery was to rectify the<\/p>\n
extradural heamorrhage suffered by him. He had to<\/p>\n
undergo emergency temporal burr hole on the right side of<\/p>\n
the skull. The continued treatment in the Neurology<\/p>\n
Department and other attendant continued medication as<\/p>\n
evidenced by the cash bills show that the plaintiff had<\/p>\n
suffered financial loss, physical pain and mental agony and<\/p>\n
to some extent, loss of continued potentialities. It is his<\/p>\n
version as PW1 that his mother had to borrow funds from<\/p>\n
different persons and provide for his treatment. The cash<\/p>\n
bills produced would reflect only a sum of below Rs.1,000\/-.<\/p>\n
AS No.79\/97                     15<\/span><\/p>\n
That was in 1985. The case sheet and other documents on<\/p>\n
record show that the plaintiff underwent surgery and was<\/p>\n
on heavy medication. Fortunately, he got the facilities of a<\/p>\n
Medical College Hospital, where the charges and cost of<\/p>\n
medicines may be minimal.\n<\/p>\n
           20. Having regard to the totality of the facts and<\/p>\n
circumstances of the case and taking into consideration the<\/p>\n
different heads of counts under which the plaintiff would be<\/p>\n
eligible for compensation,    we are of the view that the<\/p>\n
plaintiff will be entitled to a total sum of Rs.80,000\/-<\/p>\n
(Rupees Eighty Thousand only) towards damages as<\/p>\n
compensation on all counts, after setting off an amount of<\/p>\n
Rs.3,500\/- which is stated to have been paid by the State<\/p>\n
Government through the District Collector, immediately<\/p>\n
following the incident.\n<\/p>\n
           In the result, we set aside the impugned decree<\/p>\n
and judgment and pass a decree, allowing the plaintiff to<\/p>\n
recover an amount of Rs.80,000\/- with interest @ 6% per<\/p>\n
annum from the date of the suit i.e., from 07.01.1988 till the<\/p>\n
AS No.79\/97                      16<\/span><\/p>\n
date of realisation with proportionate costs before the court<\/p>\n
below and in this appeal. As regards the court fee, having<\/p>\n
given our anxious consideration, we direct under Order<\/p>\n
XXXIII Rule 10 CPC that no amount shall be recoverable<\/p>\n
by the State Government from the plaintiff as court fee<\/p>\n
either in relation to this appeal or in relation to the suit and<\/p>\n
such court fee shall be suffered by the State Government.<\/p>\n
                             THOTTATHIL.B.RADHAKRISHNAN,
\n                             JUDGE<\/p>\n
                             P.BHAVADASAN, JUDGE<\/p>\n
sta<\/p>\n
AS No.79\/97    17<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.K.Abdul Asees vs State Of Kerala on 31 August, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 79 of 1997() 1. V.K.ABDUL ASEES … Petitioner Vs 1. STATE OF KERALA … Respondent For Petitioner :SRI.V.V.SURENDRAN For Respondent :GOVERNMENT PLEADER The Hon’ble MR. Justice THOTTATHIL B.RADHAKRISHNAN The Hon’ble MR. Justice P.BHAVADASAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-186198","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.K.Abdul Asees vs State Of Kerala on 31 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-k-abdul-asees-vs-state-of-kerala-on-31-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.K.Abdul Asees vs State Of Kerala on 31 August, 2010 - 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