RAMAN Vs. COCHIN DEVASWOM BOARD

JUDGEMENT

(1.) Caprisoned elephants add charisma and enchantment to many religious festivals and social functions of ours. Without being aware of the fact that an elephant is ferae naturae (of a wild nature or disposition) or the intricacies of the Scienter Rule, people freely mingle with the animal, occasionally resulting in casualties. Ordeal of two mahouts, who have been dragged into a long drawn legal battle on account of the unexpected and unpredictable behaviour of the animal resulting in the unnatural death of a lady. Facts relevant for decision of this case can be summarised thus: Appellant, his brother Madhavan and Cochin Devaswom Board (in short, "the Board") had been arrayed as defendants in a suit for compensation by the legal representatives of deceased Rajeswari Thampuran, who was killed by an elephant owned by the Board. On 29.05.1986 at about 7.30 a.m., the deceased went to Sree Poornathrayeesa Temple, Thripunithura to offer prayers. She entered the temple through "western gopuram". She saw the elephant by name Seetharaman standing on the northern side of "deepasthambam" and asked the appellant and his brother (the mahouts) whether she could proceed further. The mahouts showed an affirmative gesture. Then she moved forward. The elephant suddenly charged and knocked her down. Tusk of the elephant was thrust into her body causing fatal injuries. The appellant and his brother along with the Board were called up to answer the claim in a suit for compensation, which was decreed all throughout, including this Court. Rs. 1,00,000/- was allowed as compensation against the appellant and other defendants. Board paid the compensation amount in full pending the appeal filed by the appellant and initiated action to recover the said amount in moieties from the appellant and his brother Madhavan. Challenge raised in the present suit is against the right of the Board to recover any amount from the appellant on the contention that joint and several tortfeasors have no right to claim contribution between themselves.

(2.) It is an admitted case that the Board did not prefer any appeal against the decree passed in the suit for compensation. On 04.10.1990, the appellant was served with a notice by the Secretary of the Board intimating that the Board had decided to realise Rs. 50,000/- plus interest, each from the appellant and the co-mahout. No dispute, the appellant and the co-mahout were in care and custody of the animal at the time of the incident. Appellant and his brother preferred O.P. No. 2306 of 1992 before this Court challenging validity of the order passed by the Board. However, it did not yield the desired result. Later, they approached this Court with a contempt case (C.C. No. 164 of 1992) against the authorities alleging that the Board had defied the orders of this Court. The contempt case was disposed of by this Court without any positive result in favour of the appellant. Then the appellant filed the suit seeking a declaration that recovery of amounts by the Board from his salary was unlawful and arbitrary and also that the appellant is entitled to be exempted from paying any amount as contribution towards the liability under the decree in the compensation suit. Further, a permanent prohibitory injunction is also sought against the Board from recovering any money from his salary towards the decree amount in the compensation suit. Still further, a mandatory injunction decree is also prayed for directing the Board to pay back the entire amounts already recovered from the salary of the appellant for satisfying the decree.

(3.) The defendant/Board filed a written statement opposing the plaint claims. According to the defendant, the decree passed in O.S. No. 263 of 1987 on the file of the Sub Court, Ernakulam, (the suit for compensation), was passed against all the three defendants jointly and severally. According to the Board, the co-defendants in the compensation suit are liable to contribute. In the earlier rounds of litigation, this Court held that the question of paying contribution inter se the defendants will have to be agitated separately. According to the Board, the contention of the appellant that the decree in the compensation suit, if at all to be executed, can be executed only in accordance with the terms in Section 60 CPC. is legally unsustainable. The prayers in the suit are not legally allowable.