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2016 DIGILAW 2401 (HP)

Dharam Singh v. Braham Dass

2016-11-15

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree dated 29.3.2006, passed by the learned Additional District Judge, Presiding Officer, Fast Track Court, Hamirpur, in Civil Appeal No.12 of 2000/303 of 2004, whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Civil Judge (Junior Division), Court No.1, Hamirpur, in Civil Suit No.82 of 1992, dated 26.11.1999. 2. Briefly stating facts giving rise to the present appeal are that respondent/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for recovery of Rs.1,00,000/- against the appellant/defendant (hereinafter referred to as 'the defendant') on account of the damages suffered by him due to the act and conduct of the defendant. It is averred that plaintiff's father late Shri Basant Ram, was murdered by the defendant intentionally on 11.5.1991 and defendant caused grievous and dangerous injuries to the plaintiff, as a result of which, he has become handicapped from his right hand and unable to work. Due to these grievous and dangerous injuries suffered by him, he remained in District Hospital, Hamipur, from where he was referred to IGMC, Shimla and further referred to Chandigarh, for treatment and for this travelling, he had to spend about Rs.14,000/- in all including the treatment. In addition to it, he had to spend about Rs.10,000/- for performing the last rites of his father, who was murdered by the defendant. It has been further averred that his deceased father was able bodied person, being Carpenter, earning Rs.70/- per day. The father of the plaintiff suffered loss of income approximately amounting to Rs.20,000/- to Rs.25,000/-. Plaintiff has also claimed that the act and conduct of the defendant rendered the plaintiff, as handicapped seeking medical advise and so, unable to earn his livelihood as Carpenter, as the plaintiff has claimed to be earning Rs.70/- per day before the occurrence and in addition to that the plaintiff has been forced to seek medical treatment and thereby suffered loss of Rs.25,000/-, by getting treatment in PGI, Chandigarh, as the plaintiff has to be accompanied by one attendant for coming and going to PGI, Chandigarh. The plaintiff has also claimed to have suffered mental agony and torture, as he has been deprived of the love and affection of his father and thereby the plaintiff has claimed total damages of Rs.1,00,000/- from the defendant. The plaintiff has further averred that the defendant was tried and sentence to life imprisonment for an offence punishable under Section 302 of the Indian Penal Code as well as under Section 326 of the Indian Penal Code. 3. The suit was resisted and contested by raising preliminary objections qua limitation and cause of action. On merits, it has been contended that the defendant has denied the factum of committing murder to the father of the plaintiff as well as causing injuries to the plaintiff. However, the defendant has admitted the relationship between of the plaintiff and his father. The defendant has also denied the capacity to earn to the father of the plaintiff as well as to the plaintiff. The defendant has denied that the plaintiff and his father were working as Carpenter and claimed that the plaintiff was living separately from his deceased father. There is no question of depriving the plaintiff from the earning of his father as well as the loss of any love and affection. The defendant has admitted that in a case of murder registered against him, he has been convicted and sentenced to undergo life imprisonment, but the appeal against the same is pending before Hon'ble Apex Court. The defendant has denied any liability to pay any damages to the plaintiff. 4. The learned trial Court framed following issues on 27.12.1993 : "1. Whether the plaintiff is entitled to damages as claimed, if so, to what extent? OPP. 2. Whether the suit is time barred ? OPD. 3. Relief. " 5. The learned trial Court has decided Issue No.1 partly in favour of the plaintiff, Issue No.2 against the defendant and partly decreed the suit. Thereafter, the appeal was maintained by the defendant before learned Addl. District Judge, Presiding Officer, Fast Track Court, Hamirpur and the same was dismissed. Hence, the present regular second appeal, which was admitted on the following substantial questions of law: "1. Whether the judgment of both the Courts below can be upheld as it ignores important documents/oral evidence on record of the case ? 2. District Judge, Presiding Officer, Fast Track Court, Hamirpur and the same was dismissed. Hence, the present regular second appeal, which was admitted on the following substantial questions of law: "1. Whether the judgment of both the Courts below can be upheld as it ignores important documents/oral evidence on record of the case ? 2. Does the conviction of the appellant have any bearing on the damages granted by the Civil Court ?" 6. Learned counsel appearing on behalf of the plaintiff has argued that the learned Courts below has failed to take into consideration the fact that the plaintiff was not in a position to make the payment of damages, as he was in jail. He has further argued that the damages awarded are on the higher side. 7. On the other hand, learned counsel appearing on behalf of the defendant has argued that the learned Court below has only awarded damages of Rs.50,000/-, for such a great loss to the plaintiff i.e. Rs.25,000/- for expenditure on the treatment, physical and mental agony due to the injuries inflicted by the defendant including the loss of love and affection and Rs.25,000/- for loss of future earnings, as a result of which the injuries inflicted on his both hands. There is no ground to interfere with the well reasoned judgment passed by the learned Courts below. He has argued that the appeal deserves dismissal along with costs. 8. In rebuttal, learned counsel appearing on behalf of the plaintiff has argued that the plaintiff has already suffered imprisonment, so the appeal may be allowed. 9. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 10. The plaintiff in order to prove its case has examined as many as ten witnesses. PW-1 MHC Sukhdev Singh to prove the FIR. PW-2 Dhian Singh, who is taxi driver to prove the expenses for transportation. PW-3 Dina Nath, has deposed that Basant Ram was murdered by defendant Dharam Singh, as Basant Ram was working as Carpenter, who was earning Rs.60/- or Rs.70/- per day and was aged about 45 years having good health. He has also deposed that the defendant has cut both the hands of the plaintiff and the plaintiff also used to work as Carpenter and earning Rs.80/- to Rs.100/- per day. He has also deposed that the defendant has cut both the hands of the plaintiff and the plaintiff also used to work as Carpenter and earning Rs.80/- to Rs.100/- per day. He has also stated that the plaintiff got treatment of his hands from Chandigarh by spending Rs.50,000/- or Rs.60,000/-. PW-4 Amar Nath, has also deposed that Basant Ram used to work as Carpenter and was earning Rs.70/- per day, who was having good health having 45 to 50 years of age. He has deposed that the last rites of the father of the plaintiff were performed by the plaintiff by spending about Rs.20,000/- to Rs.25,000/-. He has further deposed that both the hands of the plaintiff were cut, the plaintiff is unable to work and has been deprived earn Rs.60/- to Rs.100/- per day, while working as Carpenter and in addition to that the plaintiff was forced to get treatment at Chandigarh. PW-5 Dr. N.K. Galoda, has proved on record that the plaintiff was referred to PGI, Chandigarh, for getting treatment. PW-6 Kamal Dev Sharma, also a witness to the receipt Ex.PW6/A, vide which the plaintiff was taken to Chandigarh. PW-8 Dr. M.K. Pathak, has proved on record the injuries on the person of plaintiff, vide MLC Ex.PW8/A, as injury No.1 on the left arm a curbed incised injury in which muscle, nerves, arteries and veins were found to be severed and the injuries have been opined to be grievous in nature and another incised injury on the right arm in which the muscles, veins, arteries and lower aspect of ulna were found to be severed and these injuries have been opined to be grievous in nature with sharp edged weapon like 'darat'. PW-9 Pritam Singh, has proved on record the discharge slip of the plaintiff from Chandigarh hospital with compound fracture of right ulna and cut flexar tendons and crush in its blend between the period of 12.5.1991 to 16.5.1991 and 21.6.1991 to 29.6.1991. 11. PW-10 Braham Dass (plaintiff), has specifically deposed with respect to the expenses, he has incurred for his treatment as well as for the loss of earning because both the hands were cut and ultimately led to the disability, as he was Carpenter and even after treatment, he could not work properly. 11. PW-10 Braham Dass (plaintiff), has specifically deposed with respect to the expenses, he has incurred for his treatment as well as for the loss of earning because both the hands were cut and ultimately led to the disability, as he was Carpenter and even after treatment, he could not work properly. Taking into consideration the fact that the plaintiff was working as an unskilled labourer and the defendant has cut his both hands and killed his father. So, in these circumstances, it cannot be said that the amount awarded on account of the loss of future earning to the extent of Rs.25,000/-, is at all excessive. At the same point of time, the plaintiff has proved that he has spent an amount not less than Rs.25,000/-, for his treatment in various hospitals on transportation. So, I find that an amount of Rs.25,000/-, awarded on account of the expenditure of treatment, physical and mental agony due to the injuries inflicted by the defendant, loss of love and affection of his father, who was killed by the defendant cannot be said to be excessive. So, substantial question of law No.1 is decided accordingly holding that the learned Courts below has considered all the documents oral as well as documentary evidence in totality and the judgments of the learned Courts below cannot be said to be perverse. Substantial question of law No.2 is decided accordingly holding that the conviction of the plaintiff, as one ingredient and other evidence which has come on record is considered. The plaintiff examined as many as ten witnesses and proved his case. Though, the defendant has also examined Smt. Sharda Devi and himself, as witness, but has failed to establish his case. So, this Court finds that the damages to the extent of Rs.50,000/- granted by the Civil Court is after appreciating the facts which are brought on record. However, the judgment of conviction has only bearing in the case to the extent that the defendant was convicted in the case and nothing else. 12. From the above, it is clear that the findings arrived at by the learned Courts below are just, reasoned and after appreciating the evidence, which has come on record to its true perspective. Hence, needs no interference. 13. With these observations, the appeal of the appellant/plaintiff being without any merit deserves dismissal, hence the same is dismissed. 12. From the above, it is clear that the findings arrived at by the learned Courts below are just, reasoned and after appreciating the evidence, which has come on record to its true perspective. Hence, needs no interference. 13. With these observations, the appeal of the appellant/plaintiff being without any merit deserves dismissal, hence the same is dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own cost (s). Pending application (s), if any shall also stands disposed of.