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2017 DIGILAW 1391 (ORI)

State of Orissa v. Kashi Das

2017-12-01

D.DASH

body2017
JUDGMENT : This appeal has been filed questioning the judgment and decree passed by the learned Ad hoc Additional District Judge (Fast Track Court), Jharsuguda in C.S. No.22/56 of 2005/2007. 2. By the said judgment, the court below has decreed the suit by awarding compensation of Rs.5,12,000/- to be paid to the respondent (plaintiff) by the appellants (defendants) subjecting the same to a reduction by a sum of Rs.1,00,000/- as has already been awarded by this Court in W.P.(C) No. 2212 of 2004 by order dated 24.02.2005. 3. The facts necessary for the purpose of this appeal is stated hereunder :- (a) Plaintiff’s son namely, Kanta Das having graduated in Arts was running a grocery shop at Brajarajnagar and later was also doing construction work on contract basis. It is said that he was earning Rs. 10,000/-per month and was maintaining the parents and family being their eldest son. Kanta having been convicted in a sessions case i.e. S.T. Case No. 35 /68 of 2000 had preferred an appeal i.e. Crl. Appeal No. 127 of 2001. While on interim bail by the order of appellate court, he was again arrested by police in connection with another case and remanded to jail custody. On 26.09.2003, he was being taken by the police from the prison to the court of Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jharsuguda for his production before the said court. While he was being escorted by police to the court, bombs were thrown resulting explosion and Kanta was shot dead by the miscreants. Two of those miscreants were shot dead during encounter. The father of the deceased Kanta had filed a writ application before the High Court. This Court having held the defendants liable to pay compensation to the father of the deceased for the said unfortunate death had directed the State to pay a sum of Rs. 1,00,000/- as interim compensation, keeping it open for determination of just and proper compensation by the competent court of law. The father of the deceased having died, his mother filed the above noted suit seeking compensation of Rs. 30,00,000/- from the State. (b) The defendants in the written statement questioning the maintainability of the suit pleaded that the deceased had no such source of earning except from his involvement in the criminal activity. The father of the deceased having died, his mother filed the above noted suit seeking compensation of Rs. 30,00,000/- from the State. (b) The defendants in the written statement questioning the maintainability of the suit pleaded that the deceased had no such source of earning except from his involvement in the criminal activity. The death of the deceased is said to have taken place on account of the unlawful act of those miscreants, in enmical terms with the deceased. The State thus averred to have no liability since its officials were not at all careless in discharging their duty. 4. The trial court on the above rival case has framed five issues. Out of those most important are :- (i) the entitlement of the plaintiff to the compensation; (ii) liability of the defendants in the matter of payment of compensation, if any; and (ii) the quantum of compensation payable in case of plaintiffs entitlement to the same is so found. 5. Learned counsel for the appellants submits that the trial court ought to have answered the issue holding the defendants as not liable to pay the compensation in the present suit at the behest of the mother of the deceased. He further submits that the court below ought to have taken into account the evidence on record that the deceased was having criminal track record to his credit and accordingly it ought to have been held that the unfortunate incident of his death had taken place on account of his personal enmity with the miscreants and for their acts punishable in law. He contends that as per evidence when it reveals that the officials of the State had taken all the reasonable and probable care for protection of the life of the deceased while taking him to produce before the custody in court in seisin of the case, the court below has erred in law by saddling the liability of payment of compensation on the State. It is submitted that the court below has simply been swayed away taking note of the evidence that the death has taken place when he was in custody of the police officials, who were taking him to the court for his production as on the date fixed in the criminal case, and has held the State as liable to pay the compensation. It is further submitted that the court below ought to have given a specific finding as to whether reasonable care within the best possible reach had been taken at that time in protecting the life of the deceased son of the plaintiff. His next contention is that the evidence with regard to the age and income of the deceased have not been properly scanned. It is further submitted that in view of the fact that the deceased had involvement in several criminal cases, the finding of the trial court that he was having an income of Rs. 4,000/-per month is against public policy and a court of law thus cannot take into account the income of a person which he derives by way of commission of any such act which is forbidden and punishable under law. He further submits that the determination of the compensation has also not been made in consonance with the principles of law holding the field that it being a claim of compensation by the mother of the deceased-son, the contribution from out of the income of the deceased in so far as his mother is concerned, ought to have been taken as half of the assessed monthly income of the unmarried son. It is placed that in this case, the compensation has been determined by taking into account the assessed total annual income of the deceased multiplied by the chosen multiplier for the age group of the deceased. With all the above, he contends that the judgment and decree passed by the trial court are liable to be set aside and accordingly the plaintiff has to be non-suited. 6. Learned counsel for the respondent contends that the State’s liability to pay the compensation for the negligence on the part of its officials in course of discharge of their duty while causing production of the deceased in court in the criminal case as on that day having been conclusively held by this Court in the writ application filed by the father of the deceased, the said issue is no more open for being adjudicated afresh in the suit where the scope as per the order in the writ application is confined to the determination of just and proper compensation. Deriving support from the order of this Court in W.P.(C) No. 2212 of 2014, he contends that when in that writ application this Court has unhesitatingly held the State to be bound to compensate the father of the deceased, now in the suit filed by the mother of the deceased, that question does no more arise for further adjudication. He next contends that in the particular case, the plaintiff has pleaded and proved that her son was earning not through any criminal activities but being engaged in running a beetel shop and in certain works on contract basis. He contends that such evidence has been rightly accepted by the trial court after detail scrutiny. According to him, the finding is not liable to be disturbed on just and proper appreciation of evidence from any angle. He further contends that the income as has been assessed by the trial court, considering the age and all other relevant factors as also the circumstances which have emanated from evidence cannot at all be said to be on a higher side, taken in the year of death, i.e. 2003. He of course fairly does not dispute the fact that the deceased met his death when he was a bachelor and in that event the contribution in so far as the parents are concerned from out of his income, is not permissible to be taken as is taken in case of a married person having wife and children as his dependants and the selection of multiplier is to be made taking into account the prospect of future marriage of the deceased and reduction of the contribution to the parents in that event. 7. On the above rival submission, it is apposite to straight away take note of the order passed by this Court in W.P.(C) No. 2212 of 2004. That was a writ application filed by the father of the deceased claiming compensation on account of death of his son (deceased) alleging gross negligence in discharge of the duty by the police and other associate personnels of the State, on that particular day when the deceased was being taken to the court premises to be produced in the court being so required in a criminal case running against him. Admittedly, the death of the deceased had taken place in the court premises on his receiving gunshot injuries by the miscreants after throw of bombs and their explosion when he was in custody of the police and other officials of the State. In view of these allegations, this Court on that occasion after taking note of the admitted position of the case and rival pleadings had arrived at the following conclusion :- “In the admitted position of the case we have no hesitation to hold that the State is bound to compensate the father of the deceased for the premature death of the son due to failure of the State police to provide full security and safety to his life.” The order passed in the above writ application has remained un-assailed by the State. In view of the above, the submission of the learned counsel for the respondent, receives acceptance on the score that in the suit though the plaintiff had alleged about the negligence on the part of the police officials leading to the death of the deceased as mere narratives for the purpose of claim but not the foundation of the claim in the suit since it has already been decided by this Court in the proceeding initiated by the father of the deceased claiming compensation from the State. So, in my considered view though the trial court has gone to record the finding on said issue, it was not so required for being taken up to answer in the suit within its scope as prescribed by this Court in the order dated 24.02.2005. In that view of the matter, I do not find further justification to touch upon said finding by examining the sustainability of the same rendered by the trial court as to the liability of the State in the matter of payment of compensation by taking up the exercise of analysis of evidence on record. 8. The question next remains is with regard to the findings of the trial court as regards the age, income and the determination of quantum of compensation. Admittedly, the plaintiff is the mother of the deceased. By the time of filing of the suit, the father, who had approached this Court in the writ petition was no more in the mortal world. Admittedly, the plaintiff is the mother of the deceased. By the time of filing of the suit, the father, who had approached this Court in the writ petition was no more in the mortal world. Loss of a son even if it is accepted for a moment that he was involved in criminal activities is certainly a loss for the mother and her loss of dependency. Of course, the settled position of law stands that the person if makes a claim stating that he has the earning from any such source/ activity, which are forbidden and punishable under law; the court of law even though arrives at a factual conclusion that such was the earning of the particular person from said source would not take that into account for the purpose of recording a finding as regards the income from that source for the reason that such acts are frowned upon under the law and are punishable. In that event as per the settled law, the claim even though stands factually established, the suitor is denied with the relief based upon the same which ultimately runs to the advantage of the defendants. On going through the judgment of the court below, I do not find that such principles of law do come to have the play in the present case, where the plaintiff has led evidence that her son was having his earning by working on contract basis and running beetel shop, which also cannot be discarded. Further scanning the evidence with regard to the assessment of the monthly income of the deceased in the year 2003, I also do not find any such infirmity with the view of the trial court that an able bodied young unmarried man within the age of 30-35 years in the year 2003 was not earning a sum of Rs. 4,000/-per month more particularly in the absence of any specific evidence that the person was having any such physical or mental deficiencies / disability in doing any work and thereby was totally idle and going with nil earning being dependant on others. In that view of the matter, the finding of the trial court on the score of monthly income of the deceased receives the approval of this Court. 9. In that view of the matter, the finding of the trial court on the score of monthly income of the deceased receives the approval of this Court. 9. Going to the last question with regard to the contribution of the deceased to the plaintiff from out of his income, the submission of the learned counsel for the State arises for consideration. Taking note of the settled principles of law governing the field of assessment of compensation payable to the plaintiff on account of death of her unmarried son, the trial court is found to committed error by taking the contribution to be the total assessed monthly income of the deceased. The trial court has taken the multiplier of sixteen (16) in ultimately determining the compensation by multiplier method. What the trial court has done in this case is that by selecting the multiplier of sixteen, the same has been multiplied with the total income of the deceased per annum and the resultant figure then has been reduced by a lump sum for uncertainties of life. This is not the method for determination by multiplier method which is presently followed. The appropriate multiplier has to be selected looking at the age and status of the claimants and that is to be multiplied with the annual lips of dependency of the claimants i.e. the annual contribution of the deceased for them. So the compensation as determined by the trial court cannot sustain in the eye of law and the impugned judgment and decree are liable to suitable modification. Taking the contribution of the deceased towards parents at Rs. 2,000/-per month at the time of death i.e. half of the assessed income and accordingly viewing the aspect of future reduction of said contribution in the event of marriage and adding reasonable sum as to have been spent to meet the expenses in the funeral ceremony, the just and proper compensation payable to the plaintiff by the State is assessed at Rs. 4,25,000/-. The trial court having not awarded any interest over the compensation, the same has also been taken care of in the determination of compensation as afore-stated The above determined compensation is to undergo reduction by a sum of Rs.1,00,000/- which has already been paid by the order of this Court in W.P.(C) No.2212 of 2004. 4,25,000/-. The trial court having not awarded any interest over the compensation, the same has also been taken care of in the determination of compensation as afore-stated The above determined compensation is to undergo reduction by a sum of Rs.1,00,000/- which has already been paid by the order of this Court in W.P.(C) No.2212 of 2004. In view of the aforesaid discussion and reasons, the suit is thus decreed holding the defendants liable to pay compensation of Rs.4,25,000/- - Rs.1,00,000/- = Rs.3,25,000/- to the plaintiff and for its realization. The plaintiff, if has already received a sum of Rs.2,00,000/- from out of the decreetal amount deposited with the court below by the appellant (J.Drs.) in Execution Case No. 02 of 2008, in view of the interim order of this Court dated 06.12.2012, further sum of Rs. 1,25,000/- towards full and final satisfaction of the decree shall be paid to her. 10. In the result, the appeal is partly allowed to the extent as indicated above and in the facts and circumstances of the case without cost all throughout.