Udayprakash @ Chanthu S/O Sasidharan v. Manjusha and Prasanna (RSA No.461 of 2006)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943 RSA NO. 461 OF 2006** **AGAINST THE JUDGMENT IN AS 250/2002 OF DISTRICT COURT ,** ## **THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT IN OS 49/1998 OF SUB COURT, NEDUMANGAD,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/RESPONDENT/PLAINTIFF:** UDAYAPRAKASH @ CHANTHU S/O. SASIDHARAN, PRAKASH MANDIRAM, MULAKUZHI, VALIYAKATTAKKAL, VENJARAMOOD P.O., NELLANADU VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD SRI.MANU V. SRI.RAM MOHAN.G. ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 MANJUSHA, D/O PRASANNA, VENJARAMOODU P.O., NELLANADU VILLAGE, THIRUVANANTHAPURAM. 2 PRASANNA, W/O. BABU PARUTHIKUNNU VEEDU, VALIYAKATTAKKAL VEEDU, VENJARAMOODU P.O., NELLANADU VILLAGE,, THIRUVANANTHAPURAM. BY ADVS. SRI.G.BIJU FOR R1 SRI.M.RAJAGOPALAN NAIR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO. 461 OF 2006** **2** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.461 of 2006 --------------------------------------------- Dated this the 22[nd] day of October, 2021 ## **JUDGMENT** This Regular Second Appeal is directed against the judgment and decree passed by the District Court, Thiruvananthapuram, in A.S.No.250/2002, which arose from the judgment and decree passed by the Subordinate Judges Court, Nedumangad in O.S.No.49/1998. The plaintiff in the trial Court is the appellant and defendants 1 and 2 are the respondents. 2. The facts giving rise to this appeal are extracted below: 2.1. The plaintiff and the defendants belong in Ezhava community. On 29.01.1998, the plaintiff, the defendants and their relatives assembled in the defendants' residence and agreed to conduct plaintiff's marriage with defendant No.1 as per religious rites and customs prevailing in their community. They decided to conduct the marriage on 17.08.1998. The betrothal ceremony was held on 29.01.1998. Thereafter the defendants withdrew from the agreement raising the allegation that the plaintiff had illicit **RSA NO. 461 OF 2006** **3** relations with another lady. The plaintiff suffered pecuniary loss as well as mental agony due to the conduct of the defendants. 2.2. The defendants resisted the claim of the plaintiff. They admitted that they agreed to solemnize the marriage. They were made to believe that the plaintiff was aged only 25 years and that he was highly educated. After the betrothal ceremony, it was revealed that the plaintiff had not possessed the qualification as claimed and he was 12 years elder than defendant No.1. The plaintiff had an illicit connection with another lady and he was leading a loose life. Defendant No.1 never consented to the marriage between the plaintiff and herself. The plaintiff has not sustained any damages as claimed. 3. The trial Court framed the following issues: - “1. Whether there was a concluded and enforceable contract? 2. Whether the specific performance of agreement or the damages claimed as alternative prayer are allowable? 3. Whether the injunction prayed for is allowable 4. Reliefs and costs?” **RSA NO. 461 OF 2006** **4** 4. The evidence consists of the oral evidence of PWs 1 to 4 and DW1; Exts. A1 to A13 were marked on the side of the plaintiff. Ext.X1 was also marked. 5. The trial Court held that there was a concluded contract between the plaintiff and the defendants and that the defendants had withdrawn from the contract. It was further held that the defendants are liable to pay compensation for the loss sustained by the plaintiff. 6. The trial Court decreed the suit granting a sum of Rs.75,000/- towards mental agony suffered by the plaintiff and a sum of Rs.5,000/- towards pecuniary loss suffered by him. 7. The defendants challenged the judgment and decree of the trial Court before the District Court, Thiruvananthapuram, in A.S. No.250/2002. 8. The First Appellate Court confirmed the findings of the trial Court that there was a concluded contract between the plaintiff and the defendants and the defendants are liable to pay compensation for the loss sustained by the plaintiff. The First Appellate Court also confirmed the finding of the trial Court that the defendants caused damage to the plaintiff's reputation. Accordingly, the Court interfered with the quantum of damages **RSA NO. 461 OF 2006** **5** awarded by the trial Court and granted a sum of Rs.5,000/- towards pecuniary damages, taking into account the expenses incurred by the plaintiff, and a further sum of Rs.5,000/- as compensation towards mental agony to the plaintiff. 9. Aggrieved by the judgment of the First Appellate Court reducing the amount of compensation awarded to the plaintiff towards the mental agony, the plaintiff has come up before this Court by filing this Regular Second Appeal. 10. After hearing both sides and perusal of the materials placed, this Court reformulated the substantial question of law as:- _i) Did not the lower appellate court act contrary to law in reducing the compensation for mental agony?_ 11. Heard Sri.Shinod G.P., the learned counsel for the appellant and Sri.G.Biju, the learned counsel for the respondents. 12. The learned counsel for the appellant contended that it was illegal on the part of the First Appellate Court to fix the compensation for breach of contract, by reducing or varying the compensation depending on the resultant consequences. The learned counsel contended that the principle of _restitutio in integrum_ has no applicability while measuring tortious damages. **RSA NO. 461 OF 2006** **6** 13. _Per contra,_ the learned counsel for the respondents submitted that there is no illegality in the finding of the First Appellate Court on fixing the quantum of compensation at Rs.10,000/- towards pecuniary and non-pecuniary damages. 14. The case of the appellant/plaintiff is that on 29.01.1998, the parties and their relatives assembled at the residence of the defendants and had fixed the marriage of the plaintiff with defendant No.1. The marriage was proposed to be held on 17.09.1998. According to the plaintiff, without any reason, the defendants withdrew from the contract raising false and frivolous allegations. According to the plaintiff, the defendants' conduct by withdrawing from the agreement to marry raising the allegation that he had an illicit connection with another lady has affected his reputation and he suffered severe mental pain. The plaintiff claimed a sum of Rs.1,15,436/- as compensation, as damages. 15. The defendants resisted the claim of the plaintiff raising the contention that they were made to believe that the plaintiff was aged only 25 years and that he was highly educated. They later realised that the plaintiff did not have the qualification as claimed, and he was 12 years older than defendant No.1. According to the **RSA NO. 461 OF 2006** **7** defendants, the plaintiff had a connection with another lady and was leading a loose life. 16. The trial Court as well as the First Appellate Court found that there was a concluded contract between the plaintiff and the defendants, in which the defendants agreed to solemnize the marriage of defendant No.1 with the plaintiff. However, both the Courts below found that the defendants had withdrawn from contract and that they are liable to pay compensation for the loss sustained by the plaintiff. 17. The trial Court allowed Rs.5,000/- towards the expenses incurred for taking photographs in connection with the betrothal, purchasing clothes etc. The trial Court also granted a sum of Rs.75,000/- as damages towards mental agony suffered by the plaintiff. 18. The First Appellate Court, taking into account the admitted fact that the plaintiff married another lady after the marriage of defendant No.1, came to the conclusion that the conduct of the defendants did not affect the chance of his getting another lady of his choice. It was also found that the plaintiff was leading a happy married life and moreover, it was observed that **RSA NO. 461 OF 2006** **8** defendant No.1 was also leading a happy life with her husband and children. The First Appellate Court, taking into account all these facts, found that a sum of Rs.5,000/- as compensation towards mental agony is reasonable. 19. The learned counsel for the appellant contended that the First Appellate Court committed illegality in reducing the compensation for mental agony by applying the principle of _restitutio in integrum._ _20._ The rule of _restitutio in integrum_ is that assessment of damages is to be made based on what the injured has lost on account of a wrongful act of the wrongdoer. There are imperfections and uncertainties in the assessment of non-pecuniary damages. After the decision in _**British Transport Commission v.**_ _**Gourley [(1956) A.C. 185 at 197],**_ a new rule was introduced, by which instead of trying to compensate the injured, as nearly as possible it was suggested to relieve the wrongdoer of a part of the burden of his liability. 21. In the present case, there is no statutory authorisation of the measures of damages. The law on compensation now identifies 'reparation' instead of “compensation” in cases where the **RSA NO. 461 OF 2006** **9** injury does not admit of definite pecuniary measurement. It is trite that, damages are usually considered to be remedial rather than preventive. 22. On the principle of _restitutio in integrum in_ C.Kameshwara Rao's Law of Damages and Compensation, 7[th] edition, the learned author writes thus: _“This leads us to a consideration of the basis upon which the assessment of damages has to be made. Is it done on the basis of what the plaintiff has lost on account of the defendant's wrongful act, or of what the defendant is bound to pay or reimburse the plaintiff. This rule universally adopted and applied is restitutio in integrum. This is generally interpreted as meaning that the party injured by a breach of contract or tort is to be put in the same position, so far as money can do, as he would have been in if the wrong had not been committed. That is to say, the plaintiff is entitled to an award of a sum equivalent to what he would have got but for the commission of the wrong; and equally that represents his loss, and normally, it is what the defendant has to pay. It is true that such an award can hardly ever be a perfect compensation to the injured plaintiff, but this is due more to the imperfections of human Tribunals that to a lack of willingness on their part. But by a strange turn of fortune the rule in Gourley's case introduced an element which adds to the already existing imperfections and uncertainties. Instead of trying to compensate the injured party as nearly as possible, the rule in Gourley's case tries to relieve the wrongdoer of a part of the burden of his liability. It says in effect. 'You need to pay all that the plaintiff says he has lost by your wrongful act. You are only to pay what remains to him after defraying certain legal expenditure the incidence of which is uncertain.'”_ 23. The learned author, in Corpus Juris Secundum, Volume 25 pages 628 to 629, writes thus: **RSA NO. 461 OF 2006** **10** _“While damages, to be recoverable, must be compensatory, in the absence of statutory authorization of a different measures of damages, it is perhaps more accurate to speak of reparation than of compensation, where the injury is such that it does not admit of definite pecuniary measurement._ _Damages are usually considered to be remedial rather than preventive, and are generally intended to compensate rather than to punish or impose a penalty, although in certain cases damages are designed not only as a satisfaction to the injured person, but as a punishment to the wrongdoer._ _The right of the injured party to compensation must be considered in connection with the right of the wrongdoer to pay only that which he should justly be compelled to pay, but the wrongdoer is not in a favored position to urge the technical rules governing awards of damages.”_ ## 24. In _**Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat**_ ## _**[ (1994) 4 SCC 1]**_ while dealing with the principle of tortious liability, the Apex Court held thus: _“Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refneness, the liberal approach to tortious liability by courts is more conducive.”_ _(emphasis supplied)_ 25. The First Appellate Court has rightly held that the plaintiff is entitled to a sum of Rs.5,000/- as compensation towards mental agony suffered by the plaintiff. This Court finds no reason to interfere with the said finding. **11** The substantial question of law is answered accordingly against the appellant. The second appeal lacks merits and is dismissed. The parties are directed to suffer their respective costs. **Sd/K.BABU JUDGE** VPK