RFA.No.748 OF 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **RFA.No.748 OF 2016** **AGAINST THE JUDGMENT & DECREE DATED 31-03-2016 IN OS 35/2013 OF SUB COURT, CHERTHALA** ## **APPELLANTS/DEFENDANTS 2 & 3:** - **1 M.R. SASIKUMAR, MULANDANATH VEETTIL, CHANNANIKKAD PO.,PANACHIKKAD VILLAGE, KOTTAYAM** - **2 SREEJESH.K.S, SREEVILASAM VEETTIL, KILIROOR NORTH PO.,KOTTAYAM** **BY ADV. SRI.SURIN GEORGE IPE** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 4:** - **1 GEORGE JOSEPH, S/O. K.V.JOSEPH, FIELD VILLAYIL,KALLARACKAL KADAVIL, CHENNAMPALLIPPURAM MURI, PALLIPPURAM VILLAGE, CHERTHALA-688541.** - **2 M.S.ARUN, MULANDANATH VEETTIL CHANNANIKKAD PO.,PANACHIKKAD VILLAGE,KOTTAYAM-686533.** - **3 NEW INDIA INSURANCE COMPANY, CITY BRANCH, KOTTAYAM-686002, REP. BY ITS BRANCH MANAGER.** - **R1 BY ADV. SRI.DOMSON J.VATTAKUZHY R1, R3 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.MATHEW JOHN K R1 BY ADV. SRI.A.A.ZIYAD RAHMAN R2 BY ADV. SHRI.SREEDEV U** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17-112020, THE COURT ON 19-11-2020 DELIVERED THE FOLLOWING:** ## **RFA.No.748 OF 2016 2** ## **Dated this the 19[th] day of November, 2020** ## **JUDGMENT** Decree for damages granted in O.S.35 of 2013 by Sub Court, Cherthala for mischief caused by elephant Vijayan to plaintiff's property is challenged by defendants 2 and 3 in the suit. 2. The appellants are the keepers of the elephant. First defendant is the owner of the animal insured with the 4[th] defendant, Insurance Company. The court below granted a decree in favour of plaintiff, who is an agriculturist owning 67.18 ares of land for an amount of Rs.3,40,240/- with 6% interest per annum from the date of suit till realisation. Out of the said amount, the liability of Insurance Company was limited to ## **RFA.No.748 OF 2016 3** rupees One lakh in terms of the policy conditions. Neither the Insurance Company nor the first defendant, owner has come up in appeal. The challenge as to the judgment is raised solely at the instance of defendants 2 and 3. 3. Plaintiff's case is that on 31.1.2013 while elephant Vijayan was taken to Vellimuttom Shri Dharma Sastha Temple in connection with festival, he ran into the agricultural land belonging to plaintiff and caused mischief to various cultivations and a few structures in the property. It is stated that the animal was not taken proper care of by defendants 1 to 3 despite it being a dangerous animal and therefore, they are liable for the acts of the animal jointly with the Insurance Company. Though an amount of ## **RFA.No.748 OF 2016 4** Rs.9,30,000/- was claimed in the plaint, it was limited to Rs.8,00,000/-. 4. The first defendant remained ex-parte. Second defendant and 4[th] defendant filed separate written statements of their own. Third defendant adopted the contentions of the second defendant. 5. Both of them denied the animal having caused any mischief or damage to the cultivations or to the structures in the property. The Insurance Company while admitting the insurance policy coverage to the limit of Rs.1,00,000/- contended that the amount claimed towards damages was exorbitant. According to the second defendant also, the claim made for damages was excessive. A specific contention was taken that in as much as plaintiff failed to produce document of **RFA.No.748 OF 2016 5** title to the property which suffered damage, he is not entitled to any amount of compensation. 6. The court below examined on the side of the plaintiff, PWs.1 to 4 and admitted in evidence Exts.A1 to A8. Ext.B1 insurance policy was admitted in evidence on behalf of the 4[th] defendant and the second defendant was examined as DW1. Commissioner report prepared by CW1 after the incident was admitted in evidence as Ext.C1. 7. The court below on consideration of entire evidence came to a definite finding that elephant Vijayan caused mischief to the cultivations, barbed wire fence and poultry farm sheds in the property. The defendants 1 and 2 were also found liable to compensate the plaintiff since they failed to take care of ## **RFA.No.748 OF 2016 6** the elephant in proper and responsible manner as required of a dangerous animal and ultimately the impugned decree for damages was passed. The liability under the terms of Ext.B1 policy was limited up to Rs.1 lakh. Therefore, the court below fastened the personal liability on defendants 1 and 2 for the remaining amount. 8. In appeal, the learned counsel for the appellant raised three points: (1) The plaintiff has not shown himself to be the owner of the property which suffered mischief and therefore, decree for damages granted in his favour is illegal. (2) The method adopted for valuing the damaged trees was not in accordance with law and the amount quantified was excessive and (3) The amount of damages assessed by the **RFA.No.748 OF 2016 7** advocate commissioner in respect of damaged poultry sheds was without any basis. 9. I heard the learned counsel for the appellants and the counsel appearing for the respondents. 10. The question as to whether plaintiff has title to 67.18 ares of land in which the alleged mischief was committed does not have much relevance as in the case of a suit based on title. Plaintiff has proved that he is paying basic tax for the property and is in possession thereof also. Ext.A8 is the tax receipt which the court below relied on to hold that he is the person in possession of the cultivations and structures which sustained damage. The two decisions cited the learned counsel for the appellants relying on ## _**Ramchandra Sakharam Mahajan v.Damodar Trimbak**_ **RFA.No.748 OF 2016 8** _**Tanksale (D) and Others (2007 KHC 3689) and Mathew Varkey v. Abraham (2001 KHC 118)**_ do not apply to the facts of the case since there is none in this suit raising rival claim for damages unlike the facts in the decisions relied on. I am satisfied that the finding of the court below that plaintiff sustained damage and is entitled to decree for compensation is legal and not worth interfering. 11. The court below appreciated the evidence on record and came to the right conclusion that the damage sustained by the plaintiff was on account of mischief committed by the elephant Vijayan owned by the first defendant. Even though PW1, plaintiff was not an eye witness to the mischief, his labourer, PW4 proved that he witnessed the animal ## **RFA.No.748 OF 2016 9** committing mischief to the standing trees and also structures in the property. This is corroborated by Exts.A1 and A2 reports prepared by the agricultural officer and local Tahsildar immediately after the incident. In their reports, they noted that the damages were fresh and committed by the elephant. Therefore, the finding of the court below that the damage was on account of mischief committed by the animal is legal. 12. I went through the amount of damages assessed for the loss caused to agricultural cultivations in the property which consisted of coconut trees, coconut saplings and teak wood etc. The loss to 26 fruit bearing coconut trees was fixed by the court on the basis of annual income calculated adopting capitalization method. The agricultural ## **RFA.No.748 OF 2016 10** officer PW2, who is an expert assessed the annual income using her experience and knowledge. The court below assessed an aggregate amount of loss caused to the cultivation as Rs.1,35,240/-. The learned counsel for the appellants submitted that the amount is exorbitant and the quantification was made without any basis. There is some substance in the argument of the learned counsel. Considering dearth of requisite data for assessing damages, I am of opinion that the loss incurred by plaintiff towards agricultural cultivation should be reasonably re-fixed as Rs.1,25,000/- instead of Rs.1,35,240/-. An amount of Rs.5,000/- awarded towards the damage caused to the barbed wire fencing however is not worth interfering. 13. Much argument was addressed by learned **RFA.No.748 OF 2016 11** counsel on either side on the amount of damages fixed by the court below accepting Ext.C1 report with respect to mischief caused to two poultry farming sheds in the property. CW1, commissioner reported that extensive damage was committed to the two sheds and expenditure to the tune of Rs.2.5 lakhs was necessary to restore the building to its original condition. The court below was not prepared to accept the report fully because the supporting data for fixing the amount were not provided in the report. In paragraph 17 of the judgment, the court below held that an amount of Rs.20,000/-was necessary to restore the shed to its original position. The learned counsel for the respondents submitted that this figure was a mistaken one and when the basis for mathematical calculation of **RFA.No.748 OF 2016 12** total amount of Rs.3,40,240/- arrived at by the court below is explored, the amount found necessary towards the restoration of the sheds could not have fallen below Rs.2 lakhs. In short, his argument is that by a clerical mistake, an amount of Rs.20,000/- was written in lieu of Rs.2 lakhs. The argument appears to be sound. 14. The learned counsel for the appellants submitted that in any view of the matter, there was no material on record which justified the court below in fixing of Rs.2 lakhs as being required for repairing the damaged poultry farming sheds to bring them back to the original condition. Ext.C1 report discloses that the sheds were made of coconut wood rafters and roof was constructed with tin sheets. The wooden reapers and iron mesh **RFA.No.748 OF 2016 13** were used for covering the sheds around and further, pillars used were made of concrete. I am also of the opinion agreeing with the learned counsel for the appellants that data as to the value of the materials necessary for building the structures and also as to the labour charges liable to be incurred were not furnished by the commissioner. The rough assessment made by the commissioner cannot be accepted as fool proof. The court below has however indicated that a valuer had submitted a report assessing damages to the tune of Rs.4,10,000/- which was not proved by legal means. For the sole reason that the commissioner has not given necessary data for assessing damages in clear terms, reasonable claim of plaintiff for damages for loss sustained by him cannot be rejected. In my |**RFA.No.748 OF 2016 14**| |---| |view, it would be fair and reasonable if the| |amount of compensation in this respect is re-| |fixed as Rs.1,75,000/- in lieu of Rs.2 lakhs| |as assessed by the court below. Thus the| |plaintiff would be entitled to recover an| |aggregate<br>amount<br>of<br>compensation<br>of| |Rs.3,05,000/-. To put it in precise terms,| |this figure takes in the components of| |Rs.1,25,000/- being amount of loss of| |agricultural<br>cultivation<br>(formerly| |Rs.1,35,240/-) Plus Rs.5,000/- being damages| |to barbed wire fencing plus Rs.1,75,000/-| |being loss caused to poultry farm sheds| |(formerly Rs. 2 lakhs).| |15. In view of forgoing discussion, I am| |of opinion that decree has to be modified re-| |fixing the damages awardable to the plaintiff| |as Rs.3,05,000/-.| ## **RFA.No.748 OF 2016 15** In the result, appeal is partly allowed modifying the decree and limiting the liability of defendants 1 and 2 to a sum of Rs.3,05,000/- (Rupees three lakh five thousand only) with 6% interest per annum from the date of suit till realization. The liability of the 4[th] defendant Insurance Company is limited to Rs.1,00,000/-. In all other respects, the decree will stand confirmed. Sd/- **T.V.ANILKUMAR, JUDGE** pm