Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 193 (HP)

Neeraj Sharma v. Brij Mohan Gautam

2016-03-04

RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P. dated 1.9.2004, passed in Civil Appeal No. 79-G/XIII/03. 2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for recovery of damages against the appellant-defendant (hereinafter referred to as the defendant). According to the plaintiff, he was owner of the bus No. HP-36-1941, registered with the registering Authority Dehra. The defendant Neeraj Sharma had forcibly and with malafide intention stopped the bus of the plaintiff from plying on its route on March 10, 1997 at about 5:45 PM when the bus reached at village Kaloha. The defendant asked the plaintiff to show the route permit of the bus. The plaintiff produced the route permit and the defendant snatched the same from him and ran away with the intention to get financial benefit because he was also owner of another vehicle having the same route. The plaintiff asked the defendant to return the document but in vain. On 12.3.1997, the plaintiff reported the matter to the police. The defendant admitted his fault on March 21, 1997 and undertook to compensate the plaintiff. The plaintiff made request to the RTA Dharamshala for the renewal of the route permit who refused to do so and demanded the original route permit which was in possession of the defendant. The plaintiff served a legal notice on March 13, 1997 for the damages and loss sustained by him to the tune of Rs. 1650/- per day. The defendant replied the notice and admitted that he had been in possession of the route permit. The bus could not be plied between March 11, 1997 to March 25, 1997. It is, in these circumstances, the plaintiff claimed the damages. 3. The suit was contested by the defendant. According to him, the plaintiff was plying his bus on the route allotted to the defendant. The defendant asked the plaintiff to show his route permit. Thereafter, the plaintiff handed over the route permit to the defendant. The defendant warned the plaintiff not to ply the bus on the route other than the allotted route. The defendant asked the plaintiff to give photocopy of the same. The defendant asked the plaintiff to show his route permit. Thereafter, the plaintiff handed over the route permit to the defendant. The defendant warned the plaintiff not to ply the bus on the route other than the allotted route. The defendant asked the plaintiff to give photocopy of the same. The plaintiff handed over the original by saying that the defendant could get the photocopy of the same. The defendant obtained the photocopy of the original permit on March 11, 1997 and got the same attested from the Sub Divisional Magistrate, Dehra. When the defendant went to return the permit to the plaintiff, the latter refused to receive the same. He has never admitted his fault or agreed to give compensation to the plaintiff. 4. The replication was filed. The learned Sub Judge (I), Dehra, H.P., framed the issues on 20.2.2001 and suit was dismissed on 8.5.2003. Feeling aggrieved, the plaintiff preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala, allowed the same on 1.9.2004. Hence, this regular second appeal. 5. This Regular Second Appeal was admitted on the following substantial question of law on 23.11.2004: “1. Whether the findings of the District Judge are dehors the evidence on record?” 6. Mr. Ajay Sharma, Advocate, for the appellant, on the basis of substantial question of law, has vehemently argued that the first appellate Court has not correctly appreciated the oral as well as documentary evidence. On the other hand, Mr. Ashwani K. Sharma, Sr. Advocate, has supported the judgment and decree of the learned first appellate Court dated 1.9.2004. 7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully. 8 PW-1 Brij Mohan Gautam deposed that the defendant demanded the route permit of the bus of the plaintiff on March 10, 1997 at Kaloha. The route permit was shown to the defendant but he snatched it and retained the same. The route permit expired on March 13, 1997 and it could not be renewed because the original route permit was retained by the defendant. Notice was issued to the defendant vide Ext. DW-1/A. The defendant replied vide Ext. DW-1/B. The bus remained stranded w.e.f. March 11,1997 to March 25, 1997 due to non-availability of route permit with the plaintiff and thereby plaintiff suffered loss to the tune of Rs. Notice was issued to the defendant vide Ext. DW-1/A. The defendant replied vide Ext. DW-1/B. The bus remained stranded w.e.f. March 11,1997 to March 25, 1997 due to non-availability of route permit with the plaintiff and thereby plaintiff suffered loss to the tune of Rs. 1650/- per day. The matter was reported to the police on March 12, 1997 and thereafter a compromise was arrived at in between the parties vide Ext. PW-1/B. The defendant has agreed to pay the entire damages to the plaintiff. The plaintiff has denied in his cross-examination that on the next day the defendant came to return the permit to the plaintiff but the latter declined to take it. 9. PW-2 Gurbachan Singh is the scribe of the agreement Ext. PW- 1/B. He scribed the agreement at the instance of the parties. The parties signed it after admitting the contents of the same to be correct. 10. The plaintiff has placed on record copy of daily diary report Ext. PW-1/A and copy of agreement Ext. PW-1/B dated March 21, 1997, entered into between the parties. 11. The defendant has appeared as DW-1. He led his evidence by filing affidavit Ext. D-1. According to him, he had only asked for the photocopy of the route permit but the plaintiff gave original to him. He went to return the original permit but the plaintiff refused to take it. The bus of the plaintiff did not remain stranded w.e.f. March 11, 1997 to March 25, 1997. He admitted that his own income from bus was Rs. 2,000/- per day. 12. DW-2 Rajesh Kumar has also led his evidence by filing affidavit Ext. D-2. According to him, he was running a shop from the year 1994 to 1998 at Bus Stand Dada Siba and the bus service of Brij Gautam used to ply from Dada Siba in the morning at 10:15 AM and 3:30 PM, which continued plying in the month of March, 1997 throughout. It was not off the road even for a single day. In his cross-examination, he deposed that now he is running STD booth at Dada Siba. 13. DW-3 Dharam Chand has also led his evidence by filing affidavit Ext. D-3. According to him, he used to sell newspapers at Bus Stand Dada Siba. It was not off the road even for a single day. In his cross-examination, he deposed that now he is running STD booth at Dada Siba. 13. DW-3 Dharam Chand has also led his evidence by filing affidavit Ext. D-3. According to him, he used to sell newspapers at Bus Stand Dada Siba. The bus of Brij Mohan Gautam used to ply throughout the month and it was not off the road for any single day. He issued certificate Ext. DW-3/X in the capacity of Pardhan Gram Panchayat Dada Siba. In his cross-examination, he deposed that he used to distribute the newspapers in the school and also in the offices. He used to go to Nangal Chowk at 10:00 AM to distribute the newspapers and it took about 1 or 1 ½ hours. 14. DW-4 Ramesh Kumar has also led his evidence by filing affidavit Ext. D-4. According to him, he has a shop in Chaunor bazaar. In the month of March, 1997, the Gautam Bus service plied throughout the month. 15. The defendant has placed on record the copy of route permit of the bus of plaintiff Ext. DW-1/X (PW-1/C). 16. The permit in question was valid w.e.f. March 14, 1996 to March 13, 1997. Even, as per the agreement, Ext. PW-1/B, the permit was snatched by defendant on March 10, 1997 from the plaintiff. The defendant in his statement has not categorically stated as to when he has returned the permit to the plaintiff. It has come in the statement of PW-1 Brij Mohan Gautam that his bus remained stranded for want of route permit w.e.f. March 11, 1997 to March 25, 1997. The agreement was entered into between the parties vide Ext. PW-1/B on March 21, 1997. It was signed by both the parties. PW-2 Gurcharan Singh has deposed that he had read over the contents of the document and thereafter, the parties had signed the same. The defendant has admitted that since he has snatched the route permit of the bus of the plaintiff on March 10, 1997, the route permit could not be renewed thereafter and that he undertook the responsibility to renew it and to pay the damages and expenses for the renewal etc. 17. The plaintiff had also served legal notice upon the defendant. It was replied to by the defendant. 17. The plaintiff had also served legal notice upon the defendant. It was replied to by the defendant. The route permit was not renewed till March 21, 1997, as per the contents of Ext. PW-1/B. Neither DW-2 Rajesh Kumar nor DW-3 Dharam Chand and DW-4 Ramesh Kumar have mentioned the registration number of the bus of the plaintiff. The defendant could not lead negative evidence by calling the evidence from toll tax barrier and the bus stand concerned. It was not necessary to produce Hans Raj, Pradhan by the plaintiff, as argued by Mr. Ajay Sharma, Advocate. The defendant himself has admitted that he snatched the permit in his statement and as per the contents of Ext. PW-1/B, agreement. The defendant has admitted that his income from his own bus was Rs. 2000/- per day. The plaintiff has led tangible evidence that his income from the bus was Rs. 1650/- per day. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence available on record. The substantial question of law is answered accordingly. 18. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.