## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID**
**FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932**
**SA.No. 148 of 2001(E)**
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**AS.189/1996 of I ADDL.DISTRICT COURT, THRISSUR OS.894/1990 of II ADDL.SUB COURT,THRISSUR**
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## **APPELLANT(S):APPLICANT/DEFENDANT**
**-----------------------------------------------**
**CORPORATION OF THRISSUR, REPRESENTED BY THE SECRETARY, THRISSUR.**
**BY ADVS. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATIO**
**RESPONDENT(S):RESPONDENT/PLAINTIFF**
**-------------------------------------------------**
**M.R.MOHANDAS, S/O. MUTHUPARAMBIL RAVUNNY, THOTTIPAL DESOM AND VILLAGE, MUKUNDAPURAM TALUK.**
**R1 BY ADVS. SRI.P.VIJAYA BHANU SRI.M.V.HARIDAS MENON**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**svs**
## **ORDER ON C.M.P. NO. 300/2001**
## **IN**
## **S.A. NO.148/2001**
## **DISMISSED**
**07/01/2011**
**SD/- HARUN-UL-RASHID, JUDGE**
**/TRUE COPY/ P.A. TO JUDGE**
**svs**
## **HARUN-UL-RASHID,J.**
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## **S.A.NO.148 OF 2001**
## **-------------------------------**
## **DATED THIS THE 7TH DAY OF JANUARY, 2011**
## **JUDGMENT**
The substantial questions of law formulated in the appeal are as follows:
“1) Whether the principle of res ipsa loquitor can be applied to impose liability on a defendant when the inference of negligence has been sufficiently ;an effectively rebutted by the defendant?
2) When the facts relating to the incident are disputed and when there are more than one version of the incident, can the principle of res ipsa loquitor be applied at once and negligence inferred?
3) If the defendant are able to show that they had taken reasonable care and caution and can show a way in which the accident may have occurred without their negligence, will not the cogency of the fact of the accident itself disappear and does it not become the responsibility of the plaintiff to prove that negligence was not on his part?
4) Whether the courts below are justified in applying the principle of res ipsa loquitor in a case of “inevitable accident” because of the carelessness of the person injured himself?
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S.A.No.148/2001
5) Whether the courts below are justified in applying the principle of res ipsa loquitor in a case where the plaintiff has not sufficiently discharged his duty to prove that the incident occurred prima facie due to the negligent conduct of the defendant?
6) What are the parameters to be applied by the court so as to hold that an awards is excessive? Can the test be subjective?”
2. The Corporation of Thrissur, who is the defendant in O.S.No.894/1990 on the file of the II Additional Sub Court, Thrissur, is the appellant. The appeal is directed against the judgment and decree in A.S.No.189/1996 on the file of the Additional District Court, Thrissur. The respondent herein filed the suit for damages and for realisation of Rs.25,000/-. The trial court partly decreed the suit ordering payment of Rs.10,000/- as damages with interest. In the appeal preferred by the appellant as A.S.No.189/96 the Lower Appellate Court allowed the appeal in part to the extent that the damages payable to the appellant is modified as Rs.9,300/- with interest. The judgment and decree
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passed by the Lower Appellate Court is under challenge. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit.
3. The facts leading to the passing of the decree are as follows: On 17/7/1990 at about 10 a.m. while the plaintiff was walking through the side of the Thrissur Town Hall road, a portion of the aluminium wire broke off from the electric line maintained by the appellant and fell on his head. The plaintiff sustained injuries and had to under go treatment. Alleging that the electric wire happened to fall on his head on account of the negligence of the employees of the defendant-Corporation, a suit was filed for recovery of Rs.25,000/- towards damages. The defendant did not dispute the accident. The defendant inter alia contended that they have taken precautionary steps required to be taken before embarking on repair work. It is alleged that the accident happened only due to the negligence of the plaintiff. It is also contended that the damages claimed is excessive. The trial court as well as the
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Appellate Court examined the issue as to whether the plaintiff sustained injuries on account of the negligence of the employees of the defendant and as to whether the damages claimed is just and proper.
4. The parties adduced oral and documentary evidence. PWs.1 and 2 and DW1 were examined. Plaintiffs produced Exts.A1 to A10. No documents were produced on the side of the defendant. It is not disputed that the plaintiff had sustained bodily injuries on account of the fall of snapped electric wire on him at the town hall road, Thrissur at 10 a.m. on 17/7/1990. The trial court, after appreciating the oral and documentary evidence, after referring to the reported decision in _**Abdul Ahad v. State of J & K (1992 ACJ 28)**_ and after referring to the relevant provisions contained in the Indian Electricity Rules, concluded that the plaintiff had sustained injuries in the accident which had taken place due to the negligence of the defendant.
5. The further issue as to whether the plaintiff had
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sustained injuries as contended by him was also examined in detail. Documents were produced by the plaintiff as Exts.A1 to A10 for the purpose of deciding the actual damages caused to the plaintiff. After considering the materials on record, the trial court held that having regard to the nature of the injuries sustained by the plaintiff and the resultant treatment given to him at the hospitals, it appears that the plaintiff is entitled to get an amount of Rs.10,000/- by way of damages.
7. The Lower Appellate Court also on the basis of the oral and documentary evidence confirmed the findings of the trial court and modified the quantum of damages and re-fixed the damages payable to the plaintiff at Rs.9,300/-.
8. The suit was allowed in part holding that the plaintiff had sustained injuries in the accident which had taken place due to the negligence of the employees of the defendant Corporation. The learned counsel for the appellant submits that the courts below failed to appreciate the fact that the defendant took appropriate
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precautionary measures to avoid the accident, that the defendant had exhibited sign board indicating that repair work was in progress and submits that the accident was caused due to the carelessness of the plaintiff. The counsel also pointed out that apart from the plaintiff, no other individual entered into the area where the work is in progress would prove that the pedestrians seeing the sign board had kept away from the work site and that the plaintiff ignoring the signing board had negligently strayed inside and had got himself involved in the accident. In short, the learned counsel submitted that it was only due to the negligence and carelessness of the plaintiff that the accident occurred and all possible steps had been taken by the appellant to ward off pedestrians from the work site.
9. The counsel for the appellant raised the above contentions before the courts below. The courts below appreciated the oral and documentary evidence adduced by the parties and on facts concluded that the accident occurred due to the negligence on
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the part of the employees of the defendant Corporation. The findings regarding the negligence and the quantum of damages are entered by the facts finding courts on the basis of the relevant materials on record. In the circumstances, this Court is not justified in interfering with the findings entered by the courts below in exercise of the jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial questions of law arise for consideration in this appeal.
The appeal fails and accordingly dismissed. No order as
to costs.
**HARUN-UL-RASHID, Judge.**
**kcv.**
