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Gujarat High Court · body

2000 DIGILAW 730 (GUJ)

STATE OF GUJARAT v. PURNIMABEN

2000-08-29

J.N.BHATT, K.M.MEHTA

body2000
J. N. BHATT, J. ( 1 ) IN this appeal under section 96 of the Code of Civil Procedure, 1908 (Code for short), at the instance of appellants (original defendants), the challenge is against the judgment and decree recorded in Civil Suit No. 5051 of 1986, by the City Civil Court, at Ahmedabad, on 19th March, 1999, whereby, the respondents (original plaintiffs) came to be awarded an amount of Rs. 4,35,000. 00 by way of compensation with interest at the rate of 10 per cent, towards the untimely and unfortunate demise of the breadwinner, young, tax practitioner, Vinod Kapasi, holding that the deceased became victim of the negligent and tortuous act of one PSI, K. S. Kotra of Navrangpura Police Station, while firing shots from his revolver. The parties are, hereinafter, referred to as they originally arrayed in the suit, for the sake of convenience and brevity. THE suit was founded upon the premise that deceased Vinod Kapasi was shot dead by defendant No. 2, PSI, K. S. Kotra, in the evening around 6. 00 p. m. on 24. 7. 85, without any reason and any fault on the part of the deceased, that the act committed by defendant No. 2 was without any lawful authority and it was unauthorised and that the act resulting into cutting short the life of a promising tax practitioner, on account of firing by defendant No. 2, PSI, Kotra, was negligent and reckless act, as he fired shot without any precautionary measure and remained indifferent to the safety of the people. The plaintiff, therefore, claimed an amount of Rs. 5 lacs with interest at the rate of 18 per cent per annum from the date of suit till payment, by way of compensation against the defendant No. 1, State of Gujarat and defendant No. 2, PSI K. S. Kotra, contending that the act of defendant No. 2 was, unauthorised, illegal and negligent and, therefore, he and his master, State of Gujarat, are jointly and severally liable for making loss good to the plaintiffs. On account of the unfortunate demise of a young, promising tax consultant, who was the only earning member of the family, the plaintiffs suffered incalculable loss and harm with the physical exit of deceased Vinod Kapasi, who was survived by plaintiff No. 1, helpless, young widow, two minor children and an aged mother. On account of the unfortunate demise of a young, promising tax consultant, who was the only earning member of the family, the plaintiffs suffered incalculable loss and harm with the physical exit of deceased Vinod Kapasi, who was survived by plaintiff No. 1, helpless, young widow, two minor children and an aged mother. IT was the case of the plaintiffs that the deceased was around 38 years of age and he was an income tax practitioner. He was B. Sc. LL. B. He was a social worker and associated with Lions Club and other NGOs at the relevant time. The deceased had a brilliant academic career and he was the only earning member of the family. He was having annual income of Rs. 38,000. 00 at the relevant time and he would have flourished and earned substantial amount in the later years of his life, had his life not been cut short by the act of the defendants. On this premise, the plaintiffs, demanded an amount of Rs. 5 lacs by way of compensation, by giving notice under section 80 of the Code, on 2. 6. 86, and followed by a notice under section 161 of the Bombay Police Act, on 30. 6. 86. Both the notices were not replied and complied. The plaintiffs were, only, offered an amount of Rs. 20,000/by the defendant No. 1, State of Gujarat, as a relief. The amount was also accepted as it was offered as a relief and ex-gratia payment. THE defendants appeared and resisted the suit by filing composite written statement, Ex. 12, inter alia, contending that: (1) the suit was not maintainable as it was time barred, (2) the Court had no jurisdiction, (3) the defendant No. 2 was not responsible for the death of deceased Vinod Kapasi, as on the date of incident, at the relevant time, on account of communal riots in Ahmedabad, bomb blasting and private firing had, also, taken place, and therefore, the deceased was victim of private firing and not the firing made by defendant No. 2, PSI, and that the plaintiffs have received an amount of Rs. 20,000. 00 by way of compensation paid by the State of Gujarat and therefore, the suit is not maintainable. UPON the pleadings of the parties and the facts and circumstances, the Trial Court raised issues, at Ex. 22. 20,000. 00 by way of compensation paid by the State of Gujarat and therefore, the suit is not maintainable. UPON the pleadings of the parties and the facts and circumstances, the Trial Court raised issues, at Ex. 22. In support of the plaintiffs case, they relied on the evidence of plaintiff No. 1, widow, Purnimaben, at Ex. 24 and one Pankaj J. Dalal, at Ex. 70 and one Jatinbhai A. Shah, examined, at Ex. 71. The plaintiffs also relied on the documentary evidence. The defendants placed reliance on the evidence of one PSI and Investigating Officer, N. D. Vyas, at Ex. 82 and defendant No. 2, examined, at Ex. 81. They also placed reliance on the documentary evidence produced, at Ex. 44 and 74. UPON assessment and appraisal of the evidence, both testimonial and ocular, the Trial Court decreed the suit and awarded an amount of Rs. 4,35,000. 00, by way of compensation for the unfortunate demise of deceased Vinod Kapasi, due to firing by defendant No. 2, PSI,kotra, with interest and cost against both the defendants holding that defendant No. 2, who, was the servant of defendant No. 1, State was negligent and responsible for causing death and defendant No. 1, State is, vicariously, liable and the State is not entitled to raise the defence of plea of sovereignty. That is how this First Appeal has come up before us, at the instance of the original defendants, questioning the legality and validity of the impugned judgment and decree passed against them in favour of the original plaintiffs. LEARNED Government Pleader Mr. Oza in support of the appeal, has raised the following contentions, before us: (1) That the plaintiffs have failed to prove that the deceased was the victim of the firing by PSI, defendant No. 2, as there was commotion and communal disturbance, near the venue in Ahmedabad and there was also private firing. (2) That the act of defendant No. 2, as an Officer of the defendant No. 2, State, is protected on account of the doctrine of State sovereignty. (3) That the amount of compensation to the extent of Rs. 20,000. 00 paid to the plaintiffs before filing of the suit was sufficient and in the alternative, such an amount ought to have been deducted by the Trial Court. (3) That the amount of compensation to the extent of Rs. 20,000. 00 paid to the plaintiffs before filing of the suit was sufficient and in the alternative, such an amount ought to have been deducted by the Trial Court. (4) That the amount of compensation awarded by the Trial Court is very excessive and on a higher side. THE aforesaid contentions are countered by the learned advocate appearing for the respondents-original plaintiffs. It is also contended on behalf of the original-plaintiffs that the deceased was young, energetic, promising tax consultant and his life was cut short on account of the unauthorised, illegal and also reckless firing made by defendant No. 2, PSI, Kotra. The judgment and decree recorded in favour of the plaintiffs is, fully, supported. BEFORE we embark upon the merits of the appeal and the challenge against it, in the light of the evidence, which we have referred, in extenso, by calling original record and proceedings from the Trial Court, following aspects may be articulated, which are no longer in controversy. (1) That on the day of incident, like that, on 24. 7. 85, in the evening around 6. 00 p. m. , deceased Vinod Kapasi lost his life, prematurely, untimely, unfortunately, on account of gun shot firing. (2) Deceased, Vinod Kapasi, was aged about 38 at the time of his death. He was brilliant in academic life and he is survived by young, helpless widow, two minor children and an aged mother. (3) Deceased was an income-tax practitioner and he was, as per the evidence on record, earning Rs. 38,000. 00 per month at the relevant time. He was B. Sc. LL. B. He was active even in social life. He was associated with various NGOs. DEFENDANT No. 2, PSI, K. S. Kotra, had fired thrice from his revolver before the incident occurred. Defence raised on behalf of the defendants was that the deceased Vinod Kapasi was not a victim of his bullet, but by the bullet fired by a private person. B. He was active even in social life. He was associated with various NGOs. DEFENDANT No. 2, PSI, K. S. Kotra, had fired thrice from his revolver before the incident occurred. Defence raised on behalf of the defendants was that the deceased Vinod Kapasi was not a victim of his bullet, but by the bullet fired by a private person. The incident occurred almost at twilight near Nav Darwaja, Khadia Char Rasta area which was at the relevant time, within the territorial jurisdiction of Kalupur Police Station; that there was some commotion and communal tension and riots, not only on the day of incident, but prior to that in certain areas of Ahmedabad and the venue where the deceased succumbed to the firing was forming part of such areas. That Vinod Kapasi sustained serious bullet injuries and he succumbed to the same instantaneously; that the defendant No. 2, PSI, Kotra, had shot three fires from his service revolver as he was on duty near the venue of incident on account of the communal riots along with other security personnel. DEFENCE raised by the defendant No. 2, PSI, K. S. Kotra, that he had fired one shot in the air and two aiming at the violent mob from his service revolver at the relevant time and none of his bullets had hit deceased Vinod Kapasi. That PSI, N. D. Vyas, defence witness No. 1 rushed to the venue on receiving the intimation after the incident was communicated to Kalupur Police Station, whereupon, offence came to be registered with C. R. No. 312/85; that PSI Vyas had investigated into the offence and upon completion of the investigation sought a summary which was granted. IT could, very well, be seen from the factual aspects that the controversy has shrunk down to a very narrow dimension and compass. Since the death of deceased Vinod on account of bullet firing in the evening around 6. 00 p. m. on 24. 7. 85 is an admitted fact. However, the controversy revolves round as to who was the author of the death of late Vinod. Upon appraisal and analysis of the evidence, the Trial Court has reached to a clear conclusion, that the deceased had sustained serious injuries on his shoulder and chest through which the bullet passed off on account of bullet firing from the service revolver of defendant NO. Upon appraisal and analysis of the evidence, the Trial Court has reached to a clear conclusion, that the deceased had sustained serious injuries on his shoulder and chest through which the bullet passed off on account of bullet firing from the service revolver of defendant NO. 2 PSI, Kotra and has awarded an amount of Rs. 4,35,000 with interest by way of compensation. This finding of the Trial Court is assailed, mainly, on the premise that no eye witness is examined to prove the case of the plaintiff and, secondly, that since there was private firing at the relevant time on the day of incident, deceased became the victim of a bullet shot out of private firing and not from the service revolver of defendant No. 2, PSI. This plea is reiterated before us. THE second contention advanced on behalf of the appellants original defendants, by the learned Government Pleader is that even if it is assumed to be an outcome of the bullet shot fired by defendant No. 2, PSI, at the relevant time was on account of maintaining law and order situation while being on duty and therefore, it was in furtherance of the duty and not in breach of duty and since it is also having a protective umbrella of sovereignty of the State. .