RSA No.1060/2010, The Managing Director Kerala State Film Development Corporation Ltd. v. Kumari Devi

**RSA NO.1060/2010** 1 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947** **RSA NO. 1060 OF 2010** **ARISING OUT OF THE JUDGMENT AND DECREE DATED 15.02.2010 IN AS NO.122 OF 2008 OF I ADDITIONAL DISTRICT JUDGE-I, THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED 26.10.2007 IN OS NO.312 OF 2001 OF II ADDITIONAL SUB COURT,THIRUVANANTHAPURAM** ## **APPELLANT/APPELLANT/DEFENDANT:** **THE MANAGING DIRECTOR KERALA STATE FILM DEVELOPMENT CORPORATION LTD., CHALACHITRA BHAVAN, THIRUVANANTHAPURAM.** **BY ADVS. SRI.A.SUDHI VASUDEVAN SRI.JOSE JONES JOSEPH, SC, KERALA STATE FILM DEVELOPMENT CORPN. LTD.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **KUMARI DEVI D/O.G.SURESH, DEVI PRIYA, T.C.NO.73/905 (OLD T.C.NO.36/403), PALKULANGARA, THIRUVANANTHAPURAM,, PIN-695 002.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO.1060/2010** 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:24766 ## **JUDGMENT** _Dated this the 25[th] day of March, 2025_ This appeal is filed challenging the judgment and decree dated 15.02.2010 in A.S.No.122 of 2008 of the Additional District Judge-I, Thiruvanathapuram and judgment and decree dated 26.10.2007 in O.S.No.312 of 2001 the II Additional Sub Court, Thiruvananthapuram. Appellant was the defendant in the suit and appellant before the First Appellate Court. Respondent was the plaintiff in the suit and respondent before the First Appellate Court. Parties are hereinafter referred to as per their status in the suit 2. On 31.12.1999, at around 2.00 P.M, the plaintiff who was a minor, aged 12 years, went with her mother to watch a movie at the Chalachitra Kalabhavan Theatre, Thiruvananthapuram. While they were standing in the theatre premises, the iron gate of the theatre collapsed and fell on the plaintiff. She sustained a hip bone fracture (trochanteric fracture) and had to undergo inpatient treatment for a period of 28 days. Alleging that the accident happened due to the negligence of the defendant, a suit seeking damages of **RSA NO.1060/2010** 3 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** Rs.1,50,000/- with interest and cost was filed by the plaintiff. The defendant filed a written statement _inter ali_ a contending that the suit is not maintainable and that the claim is barred by limitation. The incident happened due to reasons beyond the control of the defendant and there was no negligence or breach of duty on the part of the defendant or its employees. The trial court framed four issues for consideration and the matter proceeded to trial. Exts.A1 to A7 were marked from the side of the plaintiff and PW1 and PW2 were examined. No evidence, neither documentary nor oral was tendered from the side of the defendant. After the trial and hearing, Sub Court decreed the suit in favour of the plaintiff permitting her to realise from the defendant a sum of Rs.1,50,000/- with interest. The defendant filed A.S.No.122 of 2008 before the Additional District Court-I, Thiruvananthapuram, challenging the judgment and decree of the Sub Court. The First Appellate Court allowed the appeal in part and modified the judgment and decree of the trial court by passing a decree for realisation of Rs.77,800/- with interest at 6% per annum from the date of suit till the date of recovery from the defendant. Challenging the same, the defendant had filed this **RSA NO.1060/2010** 4 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** ## R.S.A. 3. This Court admitted the second appeal on the following substantial questions of law: “1. Have the courts below erred in considering the disputed facts involved in the case ignoring the material evidence tendered and also settled principles of law? 2. Whether Ext.A2 certificate assessing the disability suffered by the plaintiff could have been acted and relied upon by the court without other material pieces of medical evidence showing the injury suffered by the plaintiff ?” 4. Heard Sri.Jose Jones Joseph, Advocate for the appellant/ defendant and Sri.R.T.Pradeep, Advocate for the respondent/plaintiff. ## 5. **Contentions of the appellant/ defendant in brief :** - The plaintiff had not been examined before the trial court. She was aged 18 years at the time of trial and could have been examined. Thus the best possible evidence that could have been tendered had not been tendered. **RSA NO.1060/2010** 5 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** - Examination of the plaintiff's father is improper and insufficient evidence to decree the suit. The father had admittedly not gone to the theatre and was not competent to depose on the incident. He had only hearsay information. - The plaintiff was an engineering student at the time of trial. This fact alone reveals that the accident did not affect her studies or educational faculties. Thus, claims made under the said headings stand refuted. - The doctor, who issued Ext.A2 disability certificate, had not treated the plaintiff. He had only issued the disability certificate which is dated 27.10.2000. - The examination for the issuance of a disability certificate was done after the plaintiff had attained 18 years, not earlier. - The doctor had not even seen the medical records before issuing the disability certificate. - The permanent disability certificate does not disclose the occupational disability of any. No data was available before the doctor to satisfy himself regarding the plaintiff's disability. The certificate produced is unreliable and issued without any **RSA NO.1060/2010** 6 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** basis. No details regarding the X-ray are forthcoming, though a fracture is stated to have occurred on the left side of the pelvis. The testimony of PW2 thus cannot be relied upon. - _Res ipsa loqitur_ principle, which had been relied upon by the defendant, ought to be specifically pleaded and proved. As long as the same had not been undertaken by the plaintiff, reliance on the said legal principle is misplaced and not acceptable in law. - The court did not have sufficient evidence to find that the relevant gate was precariously positioned to cause danger or injury. The plaintiff did not put forth any plea or evidence in this respect. Reliance is placed on the dictum laid down in **H.M.T. Ltd. v. T.K.Simon** [2009 (2) KHC 982] to contend that unless there were specific allegations in this respect substantiated with legally reliable evidence, no finding could have been arrived at by the courts decreeing the suit. - Reliance is placed on the dictum laid down in **Hero Vinoth (Minor) v. Sheshammal** [2006 KHC 831] to support the substantial question of law raised in this appeal and to **RSA NO.1060/2010** 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:24766 buttress its maintainability and relevance. - No reason had been stated for not examining the plaintiff. ## 6. **Contentions of the respondent/plaintiff** : - The findings of the trial court and the District Court are valid and proper. They do not call for any interference. No substantial question of law arises for consideration in the matter. - The defendant had a duty of care to ensure that the premises, including the gate, did not injure or damage the public who visited the theatre. - The incident that occurred as well as what followed including injury, its nature and hospitalisation are admitted by the defendant. - The trite principle of _res ipsa loquitur_ squarely applies to the case at hand and the incident and its very nature supports and substantiates the claim put forth by the plaintiff. - Reliance is placed on the dictum laid down by the Hon’ble Supreme Court in **Kajal v. Jagdish Chand and others** [(2020) 4 SCC 413] **RSA NO.1060/2010** 8 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** - Reliance is also placed on the dictum laid down by this Court in **National Insurance Co. Ltd. and others v. K.K.Assainar and others** [2019 KHC 685]. - What essentially matters is the functional disability that had been caused to the plaintiff. Ext.A2 is in effect the assessment of disability as per the McBride scale. It had been validly assessed at 8%. The same has not been contested. ## **Discussion and Analysis** : 7. The principal contention put forth by the defendant is that the courts below erred in considering the disputed facts involved in the matter and in properly appreciating the material evidence tendered. It would hence be pertinent to begin by examining the sustainability of the said contention put forth by the appellant. The derailing of the iron gate within the premises of the defendant on 31.12.1999 and the consequent injuries sustained by the plaintiff have been unequivocally admitted by the defendant. Ext.A7 reply notice issued at the instance of the defendant reads as follows: “ _It is admitted there occurred an accident in the Kalabhavan theatre premises on 31.12.1999 by the_ **RSA NO.1060/2010** 9 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:24766 _derailment of the gate and that the daughter of your client sustained injury.”_ It is in light of the above admission, that the defendant's contention that there is absolutely nothing on record to show that the gate fell on the respondent due to any defect in the gate or poor maintenance of the gate has to be examined. The trial court had specifically framed an issue on the said aspect and had elaborately considered the evidence available on the point. It had been concluded by the trial court, based on materials on record, that there is an element of negligence or breach of duty on the part of the defendant which led to the accident in which the plaintiff suffered fracture injuries. The said finding has been affirmed by the First Appellate Court, _inter alia_ holding that once the defendants admitted that the iron gate derailed, it will _ipso facto_ reveal the negligence on the part of the person who was bound to keep the gate in good condition. It had also been validly concluded by the First Appellate Court that if it was an act of god, for instance, due to any natural calamity, the matter would have stood on a different footing. However, derailing an iron gate within the premises maintained as the entrance to the theatre would definitely reveal negligence on the **RSA NO.1060/2010** 10 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** part of the authority or person who was bound to maintain the gate and keep the theatre and its premises danger-free and in a safe condition. The First Appellate Court had correctly concluded that the very admission of the incident and the manner in which it occurred, leading to the injuries to the plaintiff, effectively substantiated the case put forth by the plaintiff for damages. The finding in this respect arrived in the judgments under challenge, requiring no interference. 8. Further, the law regarding _res ipsa loquitur_ which is a rule of evidence that essentially belongs to the law of torts is trite. Inference as to negligence may be drawn from proved circumstances by applying the said rule if no reasonable explanation as to the cause is coming forth from the defendant. It is indeed for the plaintiff to prove that the injury occurred due to the negligence of the defendant and the mere fact that an accident has occurred the cause of which is unknown, is not, evidence of negligence. But, the peculiar circumstances, constituting the event or accident in a particular case may themselves proclaim negligence of somebody as the cause of the accident. Satisfaction of this condition alone is **RSA NO.1060/2010** 11 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** not sufficient for _res ipsa_ to come into play, and it has to be further satisfied that the event which caused the accident was within the defendant's control. Thus, the two-fold requirement for the application of the maxim is that the res must not only speak of negligence, but pin it on the defendant. [see **Syad Akbar** _**v.**_ **State of Karnataka** [(1980) 1 SCC 30] **]** . I note that these essential requirements have been met by the plaintiff in the case at hand. The defendant, on the other hand, had not produced any evidence whatsoever to substantiate their contentions. The conclusions thus arrived at by the trial court and the District Court on the said count do not merit any interference. 9. Now I proceed to examine the next contention put forth by the defendant that Ext.A2 certificate assessing the disability suffered by the plaintiff ought not to have been acted upon or relied on by the courts since the same was not substantiated by any other medical evidence regarding the injury suffered by the plaintiff. The reliability of Ext. A2 disability certificate had been considered by the trial court elaborately. The deposition of the doctor (PW2) who served in the Medical College Hospital, Thiruvananthapuram, who had issued the **RSA NO.1060/2010** 12 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** certificate is also seen to have been scrutinised by the court thoroughly. The principal objection put forth against Ext.A2 and the deposition of PW2 is that nothing had been produced to show that the plaintiff had been an inpatient at the Medical College Hospital and that a doctor attached to the Medical College has no authority to issue a certificate to a patient who is a stranger and not treated in the said hospital. These objections had been rightly found by the trial court to be of technical in nature and had been turned down by the First Appellate Court too. Nothing to controvert the findings arrived at by the said courts has been brought to my notice. 10. Contentions have been put forth regarding the correctness of the amounts awarded by the court as damages to the plaintiff. The different heads under which various amounts have been awarded and their quantification have been challenged and termed to be devoid of evidence. Mindful of the jurisdiction exercised by this Court in a second appeal wherein the substantial questions of law alone arise for consideration, the said contention does not merit consideration and is declined. 11. Owners or operators/ managers of public places like **RSA NO.1060/2010** 13 2025:KER:24766 **==> picture [58 x 57] intentionally omitted <==** theatres and malls have an obligation/duty/responsibility to maintain such premises safe and danger-free. They should be made safe for anyone who may enter the said premises whether or not they are customers or viewers who pay to avail the facilities provided therein. Anyone who runs such a place of open public access, must keep entrances and exits clear from any unreasonable dangers and must repair any dangers that exist or may potentially arise. If such persons are negligent in their duty to maintain the premises and in keeping visitors safe, they shall be liable for any injuries caused by the danger that lurks therein. ## **Conclusion** 12. The above discussion answers the substantial questions of law in favour of the plaintiff and against the defendant. Accordingly, I find no reason to interfere with the judgment and decree of the District Court and the Sub Court. R.S.A. is dismissed with costs. Sd/- **SYAM KUMAR V.M. JUDGE** csl