M/S Chandrika Malayalam Daily & Others v. N.K. Pankajakshan Nair, A.S. No. 365 of 2001

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 AS.No. 365 of 2001() -------------------OS.211/1996 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S)/DEFENDANTS 1 TO 3: --------------------------------------------------- 1. M/S. CHANDRIKA, MALAYALAM DAILY, REPRESENTED BY KUNHUTTY C. PRINTER AND PUBLISHER (MUSLIM PRINTING AND PUBLISHING CO. LIMITED) CALICUT AT S.T. REDDIAR & SONS, ERNAKULAM. 2. PROF. MANKADA T. ABDUL AZEEZ, CHIEF EDITOR, REF. NO.KL/EK-376, P.B. NO. 4201, JUDGES AVENUE, KALOOR, KOCHI. 3. REPORTER, M/S. CHANDRIKA MALAYALAM DAILY, KALAMASSERY. BY ADV. SRI.U.K.RAMAKRISHNAN, SENIOR ADVOCATE SRI.E.K.MADHAVAN - SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA RESPONDENT(S)/ PLAINTIFF: ---------------------------------------- N.K. PANKAJAKSHAN NAIR, S/O. LATE KRISHNAN NAIR, ASSISTANT COMMANDER OF POLICE, A.R. CAMP, KALAMASSERY, RESIDING AT ARRAKKAPADY VILLAGE, KUNNATHUNAD TALUK. ADV. SRI.S.SREEKUMAR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON 05/09/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 365 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of September, 2011. ## **JUDGMENT** Defendants 1 to 3 in O.S. 211 of 1996 of Sub Court, N.Paravur, who found themselves mulcted with liability for a defamatory statement made against the plaintiff are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff was working as Assistant Commandant of Police, A.R. Camp, Kalamassery at the relevant time. He enjoyed a good reputation and status in the society. The daily newspaper Chandrika printed and published from Calicut has a wide circulation. The first defendant is the daily represented by its Printer and Publisher, second defendant is the Chief Editor and third defendant is its Reporter. The complaint is that on 29.12.1995 in the fifth page of the said daily newspaper A.S.365/2001. 2 under the caption “ഗ�യകസ�ഘത�ന� പ��ല�സ� ജ�പ�” an article was published. Though it was intended and directed against the Superintendent of Police, it was false and baseless, there were defamatory statements about the plaintiff also. As far as the plaintiff was concerned, the imputation was that he had made available the departmental vehicle of the Camp for the music team and also that he had transported building materials like marble, tiles for the construction of his house at Choondy in the said vehicle. Further imputation was that he had transported timber logs from Valayanchirangara to Choondi and while doing so, one of the tyres got punctured. According to the plaintiff, the imputations are totally false and baseless and are intended to de fame him. He had never used the departmental vehicle for his personal purposes and that the above imputation made against the plaintiff has caused loss of reputation and respect among the people, who held him in a high esteem which resulted in mental pain and humiliation A.S.365/2001. 3 and agony to him. Subsequently, on 6.1.1996 another news appeared in Chandrika newspaper under the caption “ ” വ�രതയ�ട� പ�ര�ല പ��ല�സ �ക�ര�� ��ഠന � . Again false allegations were made against the plaintiff and he was depicted as a cruel and harsh officer. The news is totally false and baseless. Both the news items, according to the plaintiff, have caused considerable harm to his reputation and he is now looked upon with contempt by those who held him in respect. On 21.1.1996 another news item was published under the caption “ഗ�യക സ�ഘ� വ�രത പ��ല�സ� ന�പ�ധ�ച�.” Even after having found that the earlier news were false and baseless, the newspaper was not willing to withdraw the defamatory statement earlier made. Accusing the defendants of having defamed him, the plaintiff claimed a sum of Rs.40,000/- as damages. 3. The defendants filed a written statement, in which they denied the allegations. They admitted that the publications were made. They denied that it was intended A.S.365/2001. 4 to defame or to lower the reputation of the plaintiff. They asserted that the publication was made after making enquiry and fell within the ambit of responsible journalism. The defendants had no ill-feeling towards the plaintiff and Superintendent of Police and according to the defendants, it is learnt that in pursuance to the above publication, a departmental enquiry was conducted against the plaintiff and he was suspended from service. They also pointed out that reliance said to have been placed on a letter dated 8.1.1996 is a forged one and the defendants had nothing to do with the contents of the same. Pointing out that there was no intention to cause any harm to the plaintiff, that the news item was published after due enquiry, and that the plaintiff is not entitled to damages, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as A.S.365/2001. 5 Exts.A1 to A10 from the side of the plaintiff. The defendants chose to adduce no evidence. 5. The trial court on an evaluation of the evidence came to the conclusion that there was no justification in the publication of the news items made mention of and complained of in the plaint and that the defendants were not able to justify the publications. Accordingly, it was found that the publications amounted to defamation and the court below granted a sum of Rs.40,000/- as compensation to the plaintiff. 6. The said judgment and decree are assailed in this appeal. 7. After hearing counsel on both sides, and perusing the records, it is seen that two questions arise for consideration. They are, (1) Is the finding of the court below that the publications alleged by the plaintiff have caused loss of reputation to him justified? and (2) Whether the quantum of compensation awarded is proper? A.S.365/2001. 6 Issue No.1 8. It is not in dispute that the publication complained of were made by the defendants. They admit the same. They however say that it was made after due enquiry and a result of responsible journalism. In other words, they set up the defence of justification. 9. The plaintiff in his complaint has in detail narrated about the various imputations made by the defendants and its impact on him. He had categorically averred in the plaint that the news items as far as he was concerned were incorrect and false and they were irresponsible publications made by the daily without due verification. It will be useful here to refer to the portions of the publications, of which exception is taken by the plaintiff. “Kalamassery A.R. Camp ടല A.C.��ണ� റ"റല area ടല വ�ഹനങള�ട� ച�മതല. S.P. യ�ട� മഹന�യ മ�ത)ക ��ന��ര+�ടക�ണ�ര���+ ഈ ഉദ)പ0ഗസന ആല�വ���ത� ച"ണ�യ�ല �ണ�ത� ടക�ണ�ര���+2 ണ�മടത വ�ട�പല�� മ�ര6�ള��, ട�ലസ�� മറ�� പ��ല�സ� ജ�പ�ല�ണ� എത�ച� A.S.365/2001. 7 ടക�ണ�ര���+ത�. വളയനച�റങരയ�ള വ�ട�ല ന�+ �� ക�ടറ ത��യ �� കയറ� കഴ�ഞദ�വസ� വണ� ച"ണ�യ�ടലത�യപപ�പഴ��� മ�ന��ടല ഒര� �യര �ഞറ�യ�. ജ�പ�ല�ത ക�ര)� �റഞ� പകസ� അപനB�ണത�ന� പ��ല�� പ��ക�ന മ����+ പ��ല�സ�ടനറ ഈ വ�ഹന� ന�ത�+ പസവന� ന�ട�ക�ര�� കണക�ള�രട� ക�ണ�ന�� കഴ�ഞ�.” (The A.C. of A.R. Camp, Kalamassery is in charge of the vehicles of the Rural area. This officer who follows the commandable steps taken by the S.P. had transported tiles and other articles to the second house being constructed at Choondi in the departmental jeep. On an occasion when he was transporting timber logs from his house at Valayanchirangara to Choondi, one of the tyres of the jeep got punctured. People of the locality could see this misuse at a time when investigations of the cases are being delayed on the basis that there is want of vehicles in the police department.) In the plaint, the plaintiff has specifically denied that he had ever constructed a house at Choondi and that he had 8 misused the vehicle. His further complaint is that due to this false publication people have disrespect for him and he is held in low esteem. He has lost the reputation which he had enjoyed and he does not enjoy the same respect as he did. It is seen that the plaintiff had issued a notice to the defendant. Of course there are three publications, regarding which complaint is made mention of. According to the lower court, the first among which as extracted above alone would actually constitute a defamatory statement. 10. One may now go to the evidence in the case. The plaintiff examined himself as P.W.1. He has in his evidence stated about the publications, which are marked as Exts.A1 and A1(A) respectively. He had stated that he was the A.C. at the A.R.Camp, Kalamassery and the vehicles were under his custody. He has specifically asserted that the imputation relating to the use of the police jeep for transport of building materials to Choondi, where it is alleged that he was putting up a second house is false. He A.S.365/2001. 9 states that he had never used the departmental vehicle for purposes other than for official purpose. His native place is at Valayanchirangara. He also states about the falsity of the publication marked as Ext.A4(a). In his chief examination, he says about the harm and injury caused to him as a result of these publications. He would claim that in the cadre course conducted by him in the A.R.Camp, his efforts were appreciated and he was reward by the I.G. He has given good service entry, which is marked as Ext.A5 in the suit. He then speaks about Ext.A9 letter said to have been obtained by him from the Chief Editor of Chandrika daily. He would point out that in Ext.A10 which is received by him, instead of expressing regret and remorse over the false news item, they tried to justify their act. They claim that the news item was published after due enquiry is incorrect. He has never been punished in his service career till then. On the other hand, his services were quite often appreciated and he has earned several good service entries in his service A.S.365/2001. 10 book. 11. In cross examination, it was not denied by him that his name is not directly referred to any of the publications. However, he pointed out that reference to the Assistant Commandant in A.R.Camp at Kalamassery relates to him because he was the then the only Assistant Commandant in the A.R.Camp. He denied the suggestion to him that on the basis of the publication, an enquiry was conducted, in which he was suspended. He also denied the suggestion made to him in cross examination that neither his reputation nor his standing in the society has been affected by the publications. 12. P.W.2 was examined to show that after having read the publications made mention of in the plaint as well as spoken to by P.W.1 he formed a low opinion about the plaintiff. He claimed that he happened to read Ext.A1(a). He too asserts that the plaintiff had no house at Choondy. He came to know about the matter, according to him, when A.S.365/2001. 11 he made enquiries with another police officer. In cross examination, he admitted that Ext.A1(a) does not make mention of the name of the plaintiff. 13. This is the evidence adduced by the plaintiff. No evidence has been adduced by the defendants. 14. Learned counsel appearing for the appellant pointed out that the defendants had filed an I.A. seeking for production of the document from the office of the D.I.G. to show that an enquiry was conducted in pursuance to the publication made and the plaintiff was suspended from service. The entries in those records would clearly reveal that the publications were true and the claim of the plaintiff is false. According to learned counsel, the lower court failed to take adequate steps to have those documents produced and that has resulted in miscarriage of justice. 15. The arguments though may look attractive, on a close scrutiny they can be found to be baseless. It is true that there was a petition filed by the defendants calling for A.S.365/2001. 12 production of the documents relating to the enquiry against the plaintiff by the D.I.G. But it does not appear to have been pursued seriously. Even assuming that the file as such were not produced, nothing prevented the defendants from summoning the officer concerned and seeking production of those documents through him. No steps were taken in that regard at all. One must remember that the defence to the action is justification by truth. None of the defendants went into the box and spoke their case. The shyness on the part of the defendants to mount the box speaks volumes about their conduct. One must notice here that the reluctance on the part of the defendants to mount the box has to be viewed in the light of the allegations in the plaint and the evidence furnished by the plaintiff and in the light of Ext.A9, the letter alleged to have been written by the second defendant to the plaintiff. The plaintiff in his evidence has stated that it was infact written by the Chief Editor and he has received the same through post. Though there is a A.S.365/2001. 13 suggestion in cross examination that it was a concocted one, he had denied the same. The definite stand of P.W.1 was that Ext.A9 contained the signature of Assistant News Editor. In the light of those assertions made by P.W.1, one would have expected the second defendant to mount the box and deny the issuance of Ext.A9. But the defendants thought it unnecessary to do anything of that sort. They remained satisfied by filing an application for production of documents and even there they did not seriously pursue the matter. The result is that the evidence adduced by the plaintiff stands uncontroverted. In the decision reported in **Man Kaurv. Hartar Singh Sangha** ((2010) 10 SCC 512) the Apex Court has observed that adverse inference needs to be drawn against a party who is unwilling to mount the box. 16. The next question that arises for consideration is whether the publications amount to defamation. It is by now well recognized that a man's reputation is his property 14 A.S.365/2001. and he is entitled to have his reputation preserved. It is a _jest in rem_ and the personal right of every person. Defamation is defined as a publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him. The classic definition of defamation is given by Lord Wensleydale in **Parmiter v. Coupland** ((1840) 6 M & W 105). He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being: _“A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule...”_ The wrong of defamation may be committed by making defamatory statements which are calculated to expose a person to hatred, contempt or ridicule, or to injure him in his trade, business, profession, calling or office, or to cause him A.S.365/2001. 15 to be shunned or avoided in society. The three essential ingredients necessary to constitute tort are as follows: i) The imputation is defamatory. ii) It refers to the plaintiff i.e., identifies him. iii) It has been published i.e. communicated to at least one person other than the claimant. 17. Imputation which exposes one to disgrace and humiliation, ridicule or contempt is defamatory. Defamation as such is not defined anywhere. Therefore it is incapable of precision. It is difficult to say what would constitute defamation. As already noticed, the statement published must be defamatory and it must also refer to the plaintiff. Unless the three ingredients co-exist, there cannot be a complaint of defamation. Infact the liability of the defendants rests on their failure to make independent enquiry and satisfying themselves about the truth of the publication they have made. By now, it is settled that it is not necessary to establish an intention to defame and if the A.S.365/2001. 16 words are considered defamatory by the persons to whom publication is made, that is defamation. 18. In the decision reported in **Berkoff v. Burchill** ((1996) 4 All.E.R. 1008) it was held as follows: _“While insults which did not diminish a person's standing among other people did not found an action for libel or slander, words were capable of being defamatory of a plaintiff if they held him up to contempt, scorn or ridicule or tended to exclude him from society, notwithstanding that they neither imputed disgraceful conduct to him nor any lack of skill or efficiency in the conduct of his trade or business or professional activity. Whether they were so capable in a particular case had to be answered in relation to the plaintiff's claim, taking into account the context in which they were published. In the instant case, the words might have been understood to mean that the plaintiff was not merely physically unattractive in appearance, but actually repulsive. to say that of someone in the public eye who made his living, in part at least, as an actor could be defamatory, since it was capable_ A.S.365/2001. 17 _of lowering his standing in the estimation of the public and of making him an object of ridicule. It followed that it would be inappropriate to withdraw the matter from the consideration of a jury and the appeal would accordingly be dismissed._ ” 19. Any words will be deemed defamatory which; - (a) expose the plaintiff to hatred, contempt, ridicule or obloquy, - (b) tend to injure him in his profession or trade, - (c) cause him to be shunned or avoided by his neighbours. 20. The meaning of a word in a libel action is a matter of impression as an ordinary man gets on the first reading,not on a later analysis of the material published. Normally, the falsity of the charge is presumed in the plaintiff's favour. The burden of proof that the words are false does not lie upon the plaintiff. Defamation of a person is taken to be false until it is proved to be true. The law has 18 A.S.365/2001. gone further and held that if a man has stated that the statement is false and defamatory, malice is also assumed. 21. It may be that a particular publication is _per se_ defamatory when in their natural, obvious and primary sense is defamatory. Words _per se_ not defamatory are not actionable unless their secondary and latent meaning is proved. Where the words complained of do not appear to be defamatory on its very face, the plaintiff must make out the circumstances which made them actionable and he must set forth in his pleading the defamatory sense he attributes to them. Such explanatory statement is called an _innuendo_ . 22. In the case on hand, it is true that the name of the plaintiff as such is not mentioned in any of the publications. But the plaintiff in his plaint has clearly averred that at the relevant time he was the only A.C. of the A.R.Camp, who was in charge of the vehicles and it is clear that the publication regarding the transport of building materials for constructing a house at Choondi related to A.S.365/2001. 19 him. He has pleaded in the plaint and given evidence to the effect that the imputation made against him are false and incorrect and he had never committed any of the acts made mention of in the publication. Even though the defendants tried to justify the publications by contending that it was made after due enquiry and if it was found to be true, there is no evidence in this regard adduced by the defendant. They seek to rely on a disciplinary proceedings. It is for the defendants to establish the same. Merely by saying that they had filed a petition calling for certain records from the D.I.G. will not be sufficient to prove that the burden of proof has been discharged by them. One fails to understand as to what prevented one of the defendants from mounting the box and establish that the publications were made in good faith and after due enquiry. 23. It is clear that Ext.A9 assumes considerable importance. It is alleged to have been sent by the second defendant to the plaintiff. It almost blackmails the plaintiff. A.S.365/2001. 20 Even in spite of the fact that the document was produced by the plaintiff and he asserted that it was issued by the second defendant, there was no attempt from the defendant's side to show otherwise or in other words there is nothing to show that the claim of the plaintiff with reference to Ext.A9 is false and it was concocted or fabricated by him as alleged by the defendants. 24. Therefore, the stand of the learned counsel for the appellant that since the documents called for had not been got produced, the claim of the plaintiff should fail is without any basis whatsoever. Learned counsel appearing for the appellant was unable to answer the Court's question as to what prevented the defendants from deposing to their case and show that the publications were made after due enquiry and were made in good faith. One must also recollect that the case of the defendants that in pursuance to the publications made by them evidenced by Exts.A1 and A4(a), enquiry was conducted against the plaintiff and the 21 plaintiff was suspended. The plaintiff while examined as P.W.1 denied any such suspension though he admitted that there was an enquiry. Inspite of this specific denial by the plaintiff, still there was no attempt from the side of the defendants to summon the officer concerned and to have the documents produced through him. The approach of the defendants seem to be very casual probably because they had no justification for the publication. 25. Since it has been approved beyond doubt that at the relevant time the plaintiff was the only A.C, of the A.R. Camp, Kalamassery and since even going by the trend of cross examination of P.W.1 by the defendants indicate that it was the plaintiff who was referred to in the publications regarding the construction of house at Choondy, which statements were found to be false on evidence, it has to be said that the publications are defamatory in nature especially Ext.A1(a). A.S.365/2001. 22 Issue No.2 26. That leads as to the question whether what is the compensation that could be awarded in such cases. 27. Learned counsel for the appellant took strong objection to the grant of Rs.40,000/- as compensation. According to the learned counsel, the lower court has not mention any criteria for arriving at the quantum. 28. It cannot be disputed that the award of damages in such case must involve certain amount of speculation. Of late, the law has been very zealous in protecting the law regarding reputation. 29. In the decision reported in **John v. MGN Ltd.** ((1996) 2 All.E.R. 35) it was held as follows: _“The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damages to his reputation; vindicate his good name; and_ A.S.365/2001. 23 _take account of the distress, hurt and humiliation which the defamatory publication has caused_ .” 30. While considering the quantum of damages to be awarded, the court below will consider the fact that the attack was entirely unprovoked, and that the defendant was culpably reckless or grossly negligent in the matter. The subsequent conducts of the defendant are also relevant. If a plea of justification is set up and it fails, it aggravates the damages. Some of the mitigating circumstances are; i) Evidence falling short of justification, ii) Absence of malice, iii) Apology at the earliest opportunity, etc. 31. Some of the factors which are relevant for arriving at the quantum and the nature and character of the libel, the extent of circulation, the position in life of the parties and the surrounding circumstances of the case. 32. Coming back to the case on hand, the plaintiff has spoken to the fact that he had not committed the acts A.S.365/2001. 24 made mention of in the publication and in fact he had received good entries from the superior officers. He has given evidence to show that he was held in high esteem and was respected by people. He has also stated that subsequent to the publication people have contempt for him and they ridicule him and his status in life has suffered to a considerable extent. The evidence of P.W.1 in this regard is corroborated by the evidence of P.W.2. Moreover, persons who read Ext.A1(a) will usually have a poor opinion about the plaintiff examined as P.W.1. 33. It is also difficult to quantify the extent of defamation suffered by a person. But it has considerable value. As already noticed, reputation is considered as the property of a person and when that is affected, he should be adequately compensated. He no longer enjoys the same esteem he had in the society and to certain extent he looked down upon by his colleagues, neighbours and the persons who knew him. The lower appellate court had not given any 25 reasons for the quantification of Rs.40,000/-, which does not appear to be excessive at all when viewed in the light of the above facts and circumstances and in the light of the principles laid down in the decision referred to above. The result is that this appeal is without merits and it has to be dismissed. I do so with costs throughout to the respondent. **P. BHAVADASAN, JUDGE** sb.