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2017 DIGILAW 585 (HP)

Om Prakash alias Parkash v. Devinder

2017-05-24

SURESHWAR THAKUR

body2017
Sureshwar Thakur, J. The instant appeal is directed against the concurrently recorded renditions of both the learned Courts below, whereby, his suit for damages against the defendants stood decreed. In sequel thereto, the defendants/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that on 17.09.1994 at about 6.30 a.m., when plaintiff and his father were standing in the courtyard after doing agricultural work, the defendants came in the courtyard and asked the father of the plaintiff to divide the landed property. The father of the plaintiff told that since crop has been sown now and after harvesting of the crop the land would be divided. Upon this defendants became angry and defendant No.1 assaulted the father of the plaintiff with a Lathi, whereas, defendant No.2 attacked with a spade. The plaintiff also tried to rescue his father as a result of which both plaintiff and his father fell down on the ground. The defendants gave several lathi and spade blows, as a result of which, father of the plaintiff became unconscious on the spot. The wife of the plaintiff was also caught hold by defendant No.3, who did not allow her to save the plaintiff and his father. Lateron, the matter was also reported to the Pradhan by the wife of the plaintiff. Thereafter plaintiff along with his father was taken to CHC, Gagret, who referred them to District Hospital, Una. Lateron, the father of the plaintiff succumbed to the head injury and postmortem was also performed by the doctor wherein the doctor has opined that father of the plaintiff died due to head injury etc. The plaintiff was also admitted in District Hospital, Una and x-ray was also done. There was fracture in the left arm of the plaintiff. It has been averred that plaintiff was driver and earning Rs.2500/- per month and now the plaintiff is unable to do any work with his left arm. The plaintiff also suffered great pain, agony, mental injuries etc. The father of the plaintiff has retired and was drawing Rs.1600/- per month as pension. The father of the plaintiff was having good health and was doing agricultural work. Now the plaintiff had to spend Rs.5000/- every year on labourers for agricultural work as plaintiff is unable to do the same. The plaintiff has restricted his claim to Rs.1,00,000/- only. Hence the suit. The father of the plaintiff was having good health and was doing agricultural work. Now the plaintiff had to spend Rs.5000/- every year on labourers for agricultural work as plaintiff is unable to do the same. The plaintiff has restricted his claim to Rs.1,00,000/- only. Hence the suit. 3. The defendants contested the suit and filed written statement. It has been averred by the defendants that the plaintiff and his father, namely, Harjal Singh were aggressors and they attacked the defendant and inflicted injuries on defendant No.3. A case was also registered against the plaintiff. The criminal case registered against defendants is false as defendants No.1 and 3 acted in self defence. Defendant No.2 was away from home and has been wrongly impleaded as party. The defendants have denied other averments made in the plaint. It has also been alleged that defendant No.3 was medically examined at PHC, Gagret. It has been admitted that Harjal Singh, father of the plaintiff, died at Una, but defendants were not responsible for the injuries of the plaintiff and Harjal Singh. 4. The plaintiff/respondent herein filed replication to the written statement of the defendants/appellants, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to recover Rs. 1 lac. as damages, as prayed?OPP. 2. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendants/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein they assail the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission, on 24.10.2003, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. When the appeal came up for admission, on 24.10.2003, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the award made by the trial Court as affirmed by the first appellate Court is excessive being against the weight of evidence and settled position of law and also mis-interpretation and misreading of the evidence on record? Substantial question of Law No.1: 8. Since, this Court is enjoined to purvey an answer only upon the aforesaid substantial question of law, hence, this Court would not proceed to determine the legality of the pronouncement concurrently made by both the learned Court below, with respect to the maintainability of the suit also with respect to the entitlement of the plaintiff, to the quantum of pecuniary damages assessed vis-a-vis him and against the defendants. However, this Court is enjoined to determine whether the quantum of pecuniary damages concurrently assessed upon the plaintiff and against the defendants, is excessive, inference of excessive assessment whereof, would arise from theirs respectively evidently discarding the apt evidence, also both evidently misreading the relevant evidence besides mis-appraising the relevant laws applicable thereon. 9. In meteing an adjudication upon the aforesaid apposite facet, the fact that both the learned Court below had concurrently assessed a minimal sum of Rs.85,400/-, as pecuniary damages vis-a-vis the plaintiff and against the defendants, besides when the aforesaid quantum of compensation, concurrently assessed by both the Court below, is grooved upon medical bills, comprised in Ex.PW2/A and Ex.PW2/B, wherein reflections occur qua the sums of money borne therein, standing expended for the treatment of the injured concerned also is grooved upon Ex.PW3/A, exhibit whereof likewise stands proven, apparently, hence, the sums of money comprised therein, warranted imputation of credence thereto also when the sums of money reflected therein stood, hence, evidently expended towards the treatment of the injured concerned, necessarily, hence, the sums of money borne therein being computable towards assessing compensation upon the plaintiff against the defendants. In sequel, any reliance upon them by both the learned Courts below for theirs making the relevant assessment(s), does not suffer from any absurdity and perversity. 10. In sequel, any reliance upon them by both the learned Courts below for theirs making the relevant assessment(s), does not suffer from any absurdity and perversity. 10. The suit of the plaintiff was not only with respect to the loss accruing to his estate, on account of the demise of his father also it was for monetary damages being assessed upon him for the injuries which he received in the relevant assault perpetrated upon him and also upon the deceased. The suit was constituted under Section 1A of the Fatal Accidents Act, 1855, provisions whereof stand extracted hereinafter:- “1(A) suit for compensation to the family of a person for loss occasioned to it by his death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. b. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expense, including the costs not recovered from the defendant, shall be divided amongst the beforementioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.” 11. Consequently, the suit instituted by the plaintiff for computation of pecuniary damages with respect to the loss to the estate of his deceased father arising from his demise occurring in sequel to his standing assaulted by the defendants, was within the ambit of the aforesaid provisions, hence was apparently maintainable. Consequently, the suit instituted by the plaintiff for computation of pecuniary damages with respect to the loss to the estate of his deceased father arising from his demise occurring in sequel to his standing assaulted by the defendants, was within the ambit of the aforesaid provisions, hence was apparently maintainable. Moreover, the suit for computation of pecuniary damages vis-a-vis him arising from the factum of his, too, in the illfated assault “even” upon his person, suffering injuries in sequel thereto his standing entailed with great pain, agony and mental sufferings, was also apart from a claim for computation therein of damages qua loss to his estate arising from the demise of his father, hence, maintainable. The factum of his, in sequel to the demise of his father, in sequel to his evidently standing assaulted by the defendants, being entailed with extreme pain, agony and suffering, stood proven by the plaintiff. Since, with proof emanating with respect to the aforesaid pleaded fact also with his, hence evidently on the ill-fated demise of his father, being hence encumbered with evident pain, agony and mental injury, renders also the aforesaid sufferings entailed upon him, to be tenably reckonable for computation of compensation in respect thereof vis-a-vis the plaintiff. Consequently, it appears that the assessment of compensation made upon the plaintiff and against the defendants by both the learned Courts below does not suffer from any perversity or absurdity. 12. However, during the course of arguments, the learned counsel appearing for the appellants/defendants has contended with vigour, that both the learned Courts below have committed a gross error, in levying upon the principal decretal amount of Rs.85,400/-, interest at the rate of 6% per annum from the date of institution of the suit till the realization of the decretal amount. He contends that the aforesaid levying of interest on the compensation amount, is beyond the scope of subsection (1) of Section 34 of the Code of Civil Procedure. For appreciating the worth of the aforesaid contention, of the learned counsel appearing for the appellants, it is apt to extract the provisions of sub-section (1) of Section 34 of the Code of Civil Procedure (hereinafter referred to as the CPC):- “34. For appreciating the worth of the aforesaid contention, of the learned counsel appearing for the appellants, it is apt to extract the provisions of sub-section (1) of Section 34 of the Code of Civil Procedure (hereinafter referred to as the CPC):- “34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on such principal sum}, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit;” 13. Moreover, with the provisions of Section 1-A of the Fatal Accidents Act, not holding any contemplation for levying of interest by a Civil Court on the principal decretal amount, hence, attraction of besides the applicability hereat, of the provisions of Section 34 of the CPC by the Civil Court, when their play remains not ousted by any specific statutory clause, cast in the Fatal Accidents Act, is obviously apt. The word “may” occurring in sub-section (1) of Section 34 of the CPC, is the nerve center, for determining, whether the levying of interest by both the learned Court below upon the principal decretal amount, levy whereof was ordered by both the learned Courts below, to commence from the date of institution of the suit and was to end on realization of the decretal amount, is within the precincts of sub-section (1) of Section 34 of the CPC. The Civil Court concerned, is vested with a discretion, given the apparent directoriness of the parlance borne by the aforesaid coinage “may”, occurring therein, to levy upon the decretal amount interest at the rate of 6% per annum, levying whereon is to occur “from the date of the of suit to the date of the decree”, yet the aforesaid phrase occurring therein, is separated by the coinage “in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit”. Also hence naturally, it also holds its apt relevance, rather a conclusion is enhanced that the discretion vested in the Civil Court, to levy interest on the principal decretal amount “from the date of suit to the date of the decree”, being a discretion, exercisable by it, only when it also exercises the additional discretion in coalescence therewith, comprised in its also levying on the principal decretal amount, interest for a period “prior to the institution of the suit”. However, both the learned Courts below had apparently proceeded to not put into operation, any a part of the aforesaid mandate occurring in the opening portion of sub-section (1) of Section 34, of the CPC. Nonetheless, the learned trial Court below “within” the ambit of the apt, portion of sub-section (1) of Section 34 of the CPC occurring subsequent to the aforesaid part thereof “wherein” a mandate is held that the Civil Court concerned may in consonance therewith, levy the relevant rate of interest on the principal decretal amount, levy whereof would occur from the date of decree upto the date of payment or to such earlier date as the Court deems it fit, besides the signification borne by the coinage occurring therein “from the date of the decree to the date of payment” being none other than that its apparent literal meaning conveys, that its vesting/clothing in the Court concerned, a discretion, to on the principal decretal amount, levy interest commencing from the date of decree or commencing “from such earlier date as the Court thinks fit”, period/date whereof is to be concluded to be envisaged therein to be one from the date of the institution of the suit till the apposite realization occurs also is to be concluded to fall within the four corners of the aforesaid relevant provisions, “hence”, has made an apt adjudication with respect to levy of interest upon the principal decretal amount. In aftermath, the aforesaid rate of interest levied in the aforesaid manner by both the learned Courts below on the principal decretal amount, does not suffer from any infirmity. 14. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. 14. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the plaintiff/respondent and against the defendants/appellants. 15. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.