Kerala High Court
K.R.Antony vs Kunjumol on 2 June, 2025
RFA No.763/2016
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'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
RFA NO. 763 OF 2016
AGAINST THE JUDGMENT DATED 30.07.2016 IN OS NO.122 OF
2013 OF COURT OF ADDITIONAL SUB JUDGE, KOTTAYAM
APPELLANT/1ST DEFENDANT:
K.R.ANTONY
AGED 59 YEARS, S/O.K.A.RAPPAI,
KUNJAMARA HOUSE, PERUMBILISSERRY P.O.,
CHERPU, THRISSUR-680561.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SRI.ARJUN SANTHOSH
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS/PLAINTIFFS 1-4 & DEFENDANTS 2 TO 5:
1 KUNJUMOL
W/O.VINCENT BABU, PUTHEN PARAMBIL HOUSE,
KADUVAKULAM-VETTUKUZHI BHAGOM, PANACHIKADU
VILLAGE, KOTTAYAM TALUK, PIN-686029.
2 TINTU ANNA BABU (MINOR) DOB: 12-08-2000,
REPRESENTED BY HER MOTHER KUNJUMOL,
PUTHEN PARAMBIL HOUSE, KADUVAKULAM-
VETTUKUZHI BHAGOM, PANACHIKADU VILLAGE,
KOTTAYAM TALUK, PIN-686029.
RFA No.763/2016
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3 TINTU MARIYAM BABU (MINOR)
DOB:25-04-2005, REPRESENTED BY HER MOTHER
KUNJUMOL,PUTHEN PARAMBIL HOUSE,
KADUVAKULAM-VETTUKUZHI BHAGOM,
PANACHIKADU VILLAGE, KOTTAYAM TALUK, PIN-686029.
4 SHAJI
AGED 62 YEARS, C/O. K.R.ANTONY,
KUNJAMARA HOUSE, PERUMBILISSERRY P.O.,
CHERPU, THRISSUR-680561.
5 RENJU
AGED 42 YEARS, C/O. K.R.ANTONY,
KUNJAMARA HOUSE,PERUMBILISSERRY P.O.,
CHERPU, THRISSUR-680561.
6 NATIONAL INSURANCE COMPANY
REPRESENTED BY MANAGER,
NATIONAL INSURANCE COMPANY, BRANCH OFFICE,
CHANGANACHERRY, PIN-686101.
7 KUTTIKKATTU BHAGAVATHI DEVASWOM
KUTTIKKATTU, DEVASOM REGISTER NO.74/90,
REPRESENTED BY PRESIDENT SABU POONTHANAM,
AGED 40 YEARS, DIVANKAVALA BHAGOM,
MOOLAVATTOM P.O., NATTAKOM,
KOTTAYAM, PIN-686013.
BY ADVS.
SHRI.S.RANJIT (K/250/1999)
SRI.GEORGE CHERIAN (SR.)
SRI.B.KRISHNA MANI
SMT.K.S.SANTHI
SRI.T.VENUGOPAL
SRI.GOKUL DAS V.V.H.
SMT.VINEETHA SUSAN ABRAHAM
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
22.05.2025, THE COURT ON 02.06.2025 DELIVERED THE FOLLOWING:
RFA No.763/2016
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CR'
JUDGMENT
Dated this the 2nd day of June, 2025
The 1st defendant in OS.No.122 of 2013 on the file of the Additional
Sub Judge, Kottayam is the appellant. (For the purpose of convenience, the
parties are referred to as per their rank before the trial court).
2. Originally, the suit was filed by one Vincent, claiming compensation
for the injuries sustained when an elephant named Bastin Vinayashankar,
owned by the 1st defendant, attacked him and inflicted serious injuries to him.
Thereafter, during the pendency of the suit, Vincent died and accordingly his
widow and minor children were impleaded as additional plaintiffs 2 to 4.
3. According to the plaintiffs, Vincent, who was an ardent devotee of
the 5th defendant- Kuttikkattu Temple, took part in the procession of the
temple on 24.4.2008, as demanded by the office bearers of the temple. As
demanded by them, he along with two other persons mounted the top of the
elephant, and at about 4 p.m. when the procession reached near Moolavattom
Railway cross, the elephant ran amok. At that time, defendants 2 and 3, who
are the mahouts flee away without attempting to control the elephant. The
elephant pulled Vincent down, stamped him and beat him with trunk and as a
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result of which he sustained serious injuries namely, Traumatic Paraplegia,
fracture 2nd lumbar vertebra, Subtrochanteric fracture of right femur, Fracture
superior and inferior public rami right side pelvis, Tibial lateral condyle
fracture right knee Intra articular and Tibial spine fracture. Immediately he
was admitted in Medical College Hospital Kottayam and he was treated as
inpatient till 2.6.2008. Because of the injuries sustained in the incident, he
had been paralysed and was not in a position to do his day to day affairs
without the help of others. Ultimately, he succumbed to the injuries on
11.7.2009. The compensation claimed in the suit was Rs.33,72,000/-. The 4 th
respondent is the insurer of the elephant and 5 th respondent is Kuttikkattu
Bhagavathi Devaswom.
4. In the written statement, the 1st defendant contended that Vincent
along with his friend who were in an inebriated condition had provoked the
elephant by embracing it by its tusk, which panicked the elephant and pushed
away the plaintiff. It was at that time, he fell down and sustained injuries.
Though the elephant moved little forward, it was controlled by the mahouts.
It was further contended that the untoward incident occurred due to the
contributory negligence of the victim. The quantum of compensation claimed
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in the complaint was also challenged in the written statement.
5. The 4th defendant/ insurer filed written statement admitting that
there wasvalid insurance policy to the elephant. According to them, as per the
policy, the total liability for 3rd party personal injury for one year is
Rs.3,00,000/- and for any one accident during the said one year, the liability
is only Rs.1,00,000/-.
6. The 5th defendant would contend that on that day there were 12
processions arranged by the local sub temples and that those processions were
under the control of persons from each 'Kara'. Further according to the 5th
defendant, they had no role in the hiring of elephant or in the accident.
7. The evidence in the case consists of oral testimonies of PWs 1 to 4
and DWs 1 to 3, Exhibits A1 to A15 and B1 to B3. After evaluating the
evidence on record, the trial court found that Vincent died because of the
injuries inflicted by the elephant owned by the 1 st defendant and awarded a
compensation of Rs.10,93,000/- along with interest @ 9% per annum.
Aggrieved by the above decree, the 1st defendant preferred this appeal.
8. Heard Sri.Arjun Satheesh, the learned counsel for the appellant,
Sri.George Cherian, the learned senior counsel for the 6th respondent,
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Sri.S.Renjit and Sri.T.Venugopal the learned counsel for other respondents.
9. Now, on the basis of the arguments advanced, the point that
arises for consideration are the following:
1) Whether the principle of strict liability applies to
mischief committed by an elephant?
2) Whether the quantum of compensation fixed by the trial
court calls for any interference, in the light of the grounds
raised in the appeal?
10. The points: The fact that Vincent died because of the injuries
sustained in the attack of the elephant belonging to the 1 st defendant is not
seriously disputed. From the evidence of PW2, the child of the deceased and
PW3, an independent witness examined by the plaintiff also substantiates the
above aspect. According to PW2, she saw the elephant pulling down her
father, stamping and beating with its trunk. PW3 also adduced evidence
corroborating the evidence of PW2.
11. DW2, the Veterinary Surgeon, who issued Exhibit B1 certificate
also deposed that though the elephant was in normal condition in the
morning, later on it became violent and attacked Vincent. Further according
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to him, in order to control the elephant he had to tranquilise the elephant by
firing tranquiliser. Therefore, the finding of the trial court that Vincent
sustained injuries because of the injuries inflicted by the elephant and that he
succumbed to the injuries because of the above injuries does not call for any
interference.
12. The learned counsel for the 1st respondent/appellant, relying upon
Exhibit A12 final report filed by the police in the crime registered in respect
of the above incident, would argue that one M.S. Rajeev hanged on the tusk
of the elephant and attacked the elephant with a lance and that is the reason
for the violence of the elephant. He would also argue that this elephant never
behaved violently or caused damage. It is true that though Exhibit A10 FIR
was registered against the mahouts of the elephant, Exhibit A12 final report
was filed by the police against one M.S. Rajeev. From Exhibit A13 judgment
in CC.No.188 of 2010 on the file of the Judicial First Class Magistrate Court-
I, Changanassery, it is also revealed that M.S. Rajeev was acquitted by the
court.
13. Though the statement given by the deceased to the police
discloses the involvement of M.S Rajeev for the elephant turning violent, the
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said statement (Exhibit B3) was not proved by examining the officer, who
recorded it. Therefore, the trial court was justified in holding that Exhibit B3
dying declaration of the deceased was not proved. In this case there is no
reliable oral evidence to prove the exact reason for the violence of the
elephant. Even then, from Exhibit A10 final report it can be presumed that the
elephant ran amok because of the involvement of a 3rd person, namely M.S.
Rajeev. Similarly, it can also be seen that there was no willful negligence on
the part of defendants 1 to 3, for the untoward incident.
14. On the other hand, the learned counsel for the plaintiffs would
argue that, even though there was no negligence on the part of the owner or
mahouts of the elephant, the principle of strict liability applies in this case as
the mischief was committed by an elephant, which, by it's very nature, is a
ferocious animal.
15. In the decision in Madhavan v. Raja Raja Varma [1993 (1) KLT
616], a Division Bench of this Court, relying upon an earlier decision of the
Madras High Court, held that even though there was no intent or negligence
on the part of the owner or person in possession of a dangerous animal like
elephant, he is liable for the damages caused by such animal. In paragraphs 8
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and 9, the Court held that:
"8. We need not go into such questions elaborately in this case,
since in Vedapuratti v. Koppan Nair ILR 35 Mad 708, it has been
said very clearly that elephant belongs to that class of animals
which is grouped as dangerous class of animals. Further, it has been
held in that case that the liability of a person for any harm done by
his animal independently of any intent or negligence on his part
does not depend on the manner or extent to which such animals are
employed, but upon the nature of the class to which such animal
belongs or the particular kind of mischief committed. The learned
Judges have quoted the decision of Lord Esher, MR. and also other
English decisions to support their conclusions.
9. The court below also has referred to those decisions and came to
the right conclusion that the defendants are liable to pay damages to
the plaintiffs for the great tragedy caused to the plaintiffs by the loss
of life of late Rajeswari Thampuran, a loving wife to the 1 st plaintiff
and an affectionate mother to the other plaintiffs, in an horrendous
circumstance by the attack of a ferocious animal kept by the
defendants. As we said earlier, there is no dispute at all as regards
the quantum of damages. The appellants submitted that their appeal
confines to their liability. In Vedapuratti v. Koppan Nair ILR 35 Mad
708, it has been said very clearly that owner as well as the person in
possession of the animal, which, according to us, means the person
who is in custody or immediate possession of the animal, is liable to
pay compensation to the victims. The Madras High Court when said
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that the owner as well as the person in possession, it has to be
understood that the person in possession is the person who has got
immediate control over the animal at the time when the mischief
took place. In this respect, we have no hesitation to hold that the
defendants are also liable to pay the compensation."
16. In the decision in Veeramani Chettiar v. Davis and Others [2012
(4) KHC 114], another Division Bench of this Court while dealing with the
law governing the nature and extent of liability of the owner of a dangerous
animal, highlighted the necessity of enacting a comprehensive legislation in
that respect and held in paragraph 9 that:
"Be that controversy as it may, first of all, we may consider the
legal position, in view of the case advanced by the 1st defendant.
What is the law governing the nature and extent of liability of the
owner of a dangerous animal for the damage caused by such
animal? In India, unlike in England, the law governing the nature
and extent of liability of the owner / keeper, for the damage caused
by the animal is being occupied, by English common law which are
followed in decisions laid down by Indian Courts. In England now a
new comprehensive and codified enactment, 'the Animal Act, 1971'
is occupying the field. But in India a comprehensive legislation
needs to be enacted to meet the needs of the day. The concept of
legal duty and liability for the damage caused by a dangerous
animal is enlarged by means of case law, by inventing the "doctrine
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of strict liability" (Reylands v. Fletcher, 1908 (2) KB 825). Under
the principle of Reylands v. Fletcher "a person who brings
dangerous substances upon premises and carries on a dangerous
trade with them is liable if, though without negligence on his part,
these substances cause injury to persons or property in their
neighbourhood. It is immaterial whether he is or is not aware of the
danger at the time when he brings and uses them".
17. The Division Bench further held in the above decision that
elephant is a dangerous animal and hence its owner/keeper is strictly liable
for the damage caused by the elephant. It was also held that, contentions that
the dangerous animal was provoked by the wrongful act of a third party, that
it was well trained, tamed and never behaved violently or caused damage, are
unsustainable defence in law. In paragraph 17 and 18, the Division Bench
held that:
"17. Therefore, relying on judicial precedents as stated above, it can
be safely concluded that elephant is a dangerous animal (ferae
naturae) and the owner/keeper of an elephant is strictly liable,
independently of negligence, for the damage caused by the elephant.
The contentions that the dangerous animal was provoked by the
wrongful act of a third party and thereby damage was caused, and
this particular dangerous animal was well trained, tamed and never
behaved violently or caused damage, are unsustainable defence in
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law. This line of defence does not make any difference in the
application of strict liability.
18. In the light of the above discussion, it could be held that the
contentions raised by the defendant that the incident was caused by
stampede, and not by the direct attack of the elephant, does not make
any difference in the application of strict liability. Similarly another
defence version that this particular elephant was quiet, well trained
and never caused violence also does not give any exception to the
elephant 'Sivan' from the category of dangerous animals, so as to
escape from the liability. Therefore, we find that the defence version
pleaded in the written statement, even if accepted and proved, that
will not absolve the defendant from the clutches of strict liability to
compensate the defendant, even if he is not negligent or careless in
keeping the animal in the pooram procession, as elephant is a
dangerous animal. To sum up, if a dangerous animal attacks,
liability follows. The owner of a dangerous animal keeps it at his
peril and is liable for all damages which it does , if it escapes."
18. Relying upon the decision in Veeramani Chettiar (supra), another
Division Bench of this Court in Zamoodiri Raja of Calicut an Others v.
Puthiyaveettil Aysha Beevi and Others [MANU/KE/2212/2016], also held
that in such circumstances, the principle of strict liability applies.
19. In the light of the above decisions, it is to be held that since the
1st defendant is the owner and defendants 2 and 3 are the mahouts of the
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elephant, which ran amok and attacked Vincent, inflicted serious injuries,
which resulted in his death, the defendants 1 to 3 are liable to compensate the
injuries sustained because of the death of Vincent.
20. With regard to the quantum of compensation assessed by the trial
court, there is no challenge in this case. In the decision in Anitha and Ors. v.
KSEB, Thiruvananthapuram and Ors, 2014 (2) KLT 50, a Division Bench
of this Court held that for computing the compensation on account of the loss
of dependency under Section 1A of the Fatal Accident Act, the guidelines
formulated in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC
121, can be followed.
21. The trial court has taken the notional income of the deceased as
Rs.5,000/-, added 30% towards future prospects, applied the multiplier of 14,
deducted 1/3rd towards personal and living expenses and assessed the loss of
disability at Rs.7,28,000/-. Further, Rs.1,00,000/- was awarded towards pain
and suffering, in addition to awarding compensation on other heads, including
Rs.30,000/- towards treatment expenses, Rs.75,000/- towards loss of
consortium to 2nd plaintiff and 10,000/- towards funeral expenses and
Rs.30,000/- towards mental shock suffered by the plaintiffs and Rs.20,000/-
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towards bystander expenses.
22. According to PW1, her husband was a loading worker getting a
monthly income of Rs.7,500/-. The trial court disbelieved her testimony and
fixed his notional income a Rs.5,000/-. In this case, the incident was on
24.4.2008 and death occurred on 11.7.2009. As per the decision in
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.
Ltd. [2011 (13) SCC 236], the notional income of a coolie in the year 2009
will come to Rs.7,000/-. If his notional income is taken as that of a coolie at
Rs.7,000/-, the loss of disability alone will come to Rs.10,19,200/-. In
addition to the same, the plaintiffs are entitled to get a reasonable
compensation for pain and suffering, treatment expenses, funeral expenses
etc. In the above circumstances, Rs.10,93,000/- awarded by the trial court is
not at all on the higher side. Therefore, I do not find any grounds to interfere
with the quantum of compensation awarded by the trial court.
23. Admittedly, as per Exhibit B2 insurance policy, the liability of the
4th defendant is limited to Rs.1,00,000/-. Therefore, defendants 1 to 3 are
liable to pay the balance amount of Rs.9,93,000/- along with interest at the
rate ordered by the trial court.
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24. In the result, this appeal is liable to be dismissed and accordingly it
is dismissed, confirming the judgment and decree of the trial court.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
