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2018 DIGILAW 2318 (HP)

Virender Singh v. Shyam Lal

2018-12-31

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed by the defendants/appellants herein, against, the verdict recorded, upon, Civil Appeal No. 88-CA/13 of 2003 by the learned District Judge, Sirmaur District at Nahan, where through, he after reversing the verdict, of, dismissal of the plaintiff's suit, rendered by the learned trial Court, partly decreed the plaintiff's suit, for, damages comprised in a sum of Rs.50,000/-, subject to the requisite court fees, vis-a-vis, the afore sum being, within a period of 15 days, appended upon the plaint. 2. Briefly stated the facts of the case are that the plaintiff is employed as driver in HRTC, Nahan. On 24.11.1997, around 9 a.m., the plaintiff was on duty on Bus No.HP-18-3546. He was driving the bus, in question from Village Vasni to Sarahan. When the plaintiff reached at village Bhelan bus stop, the defendants Virender Singh and Gian Singh stopped the bus, without any provocation and with criminal intent assaulted the plaintiff while he was sitting on driver's seat. He was dragged out of the driver sat. The defendants gave him blows of fist and legs, as a result of which he fell down in the Nali. The defendants continued assaulting him with their fists and feet. Resultantly, the left leg of the plaintiff was fractured at the knee joint. The defendants have also inflicted injuries on the head on left and right side by hitting him from feet. He was also hit in the stomach. As a result of serious injuries, the plaintiff remained admitted in Sarahan hospital for 10 days. He remained bed ridden and looked after by two attendants. From Sarahan Government Hospital, he was referred to District Hospital Nahan, from where he was further referred to PGI, Chandigarh for treatment. The plaintiff's case is that he is still under treatment and is unable to do his duties of driving. He can only stand and move with the help of support. Despite having remained under treatment, the plaintiff's case is his knee joint remains swollen. The Specialist at PGI, according to him, advised operation of knee joint and left leg The operation was advised in the month of June, 2000. The plaintiff's further case is that before the said incident, he was an efficient driver and he was able to work for 10to 12 hours a day. He was earning about 12,000/- per month. The Specialist at PGI, according to him, advised operation of knee joint and left leg The operation was advised in the month of June, 2000. The plaintiff's further case is that before the said incident, he was an efficient driver and he was able to work for 10to 12 hours a day. He was earning about 12,000/- per month. But, after the incident, he avers, he cannot under take the driving of bus, he has been given light duty, and, has been suffering a loss of Rs.4,000/- per month ever since the occurrence. The plaintiff avers that he has been crippled for life and he is unable to lead now a normal life. The plaintiff's case is that, on 15.1.2000, though, he sent a registered notice to the defendant's but they refused to receive the same. This how the plaintiff's suit for damages/compensation of Rs.1,50,000/- was laid by him in the trial Court. 3. The defendants contested the suit and filed written statement, wherein, they have taken preliminary objection qua maintainability, non joinder of necessary parties and court fee. On merits, it is denied by the defendants that had inflicted any injuries on the person of the plaintiff. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff was assaulted by the defendants and sustained injuries and thereby plaintiff became incapable to lead a normal life, as alleged? OPP 2. If issue No.1, is answered in affirmative, whether the plaintiff is entitled to the damage, if so what amount? OPP 3. Whether the suit is not maintainable in the present form, as alleged? OPD 4. Whether the suit is bad for non joinder of necessary parties, as alleged? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 6. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the plaintiff/respondent herein, before the learned First Appellate Court, the latter Court partly allowed, the, appeal, and, reversed the findings recorded by the learned trial Court. 6. OPD. 6. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the plaintiff/respondent herein, before the learned First Appellate Court, the latter Court partly allowed, the, appeal, and, reversed the findings recorded by the learned trial Court. 6. 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, this Court, on 23.8.2004, 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:- (d) Whether the ld. Appellate Court erred in law in reversing the decree of ld. Trial Court when there is absolutely no evidence on record whatsoever to link the alleged injury of the respondent, with the appellants. And therefore whether the impugned judgment and decree suffers from misreading and not appreciating the entire evidence on record of the case? Substantial question of Law No.1: 7. The suit for damages, arising, from the tort of assault, allegedly perpetrated by the defendants, upon, the plaintiff, enjoined adduction of cogent proof, vis-a-vis, the afore assault, being, hence perpetrated by the defendants. A judgement of acquittal, pronounced by the learned trial Court concerned, upon, criminal case No. 37/2 of 97, as, arose from, an incident similar qua wherewith the instant suit has been filed, is borne in Ex.D-1. However, even if, the afore verdict of acquittal, as, borne in the afore exhibit, has acquired conclusivity, yet it may not oust the plaintiff, to, canvass for rendition of a decree for damages, arising from, his being assaulted hence by the defendants, (a) upon, cogent evidence existing on record in proof of the averments, as, reared in the plaint. The afore evidence is comprised in the evidence of PW-1, PW-2 and PW-3. The afore evidence is comprised in the evidence of PW-1, PW-2 and PW-3. Even if, the afore Pws hence rendered rather testifications in corroboration, vis-a-vis, the averments in respect thereof, carried in the plaint, however, the plaintiff was also enjoined to prove, the, factum probandum (a) qua the injuries entailed upon his person in sequel to his being allegedly assaulted, by the defendants, thereupon, rather in immediate sequel thereto or in quick spontaneity thereto, hence begetting entailment, of, a severe disability, upon, his person, (b) whereafter he evidently stood precluded or deterred to perform the duties appertaining to his employment. The MLC prepared immediately subsequent to the occurrence, and, embodied in Mark-A, rather on its closest, and, incisive perusal, omits to make unfoldments, qua any severe critical injuries being encumbered, upon, the plaintiff. Furthermore, with PW-6, who, in quick spontaneity to the afore assault, hence proceeded to medically examine the plaintiff, rather echoing in his deposition comprised in his examination-in-chief, qua his referring the plaintiff for X-ray examination, and, thereafter in his cross-examination, his, making disclosures, that, the expert concerned, hence, opining qua in sequel to the injuries suffered by the plaintiff in the relevant assault, rather no fracture being entailed upon his person. The effect thereof, when construed in entwinement, with, the deposition of PW-4, who, issued disability certificate borne in Ex.PW4/A, and, who during the course of his examination-in-chief, has hence proven it, conspicuously, with his in his cross-examination rather making an echoing, (a) that the injuries in sequel whereof Ex.PW4/A stood issued, appertaining to a period three or four months earlier thereto, (b) thereupon, when Ex.PW4/A, stood issued in the year 2000, whereas, the alleged assault occurred in the year 1997, (c) thereupon, when the disability as testified by PW-4, in his cross-examination, is echoed therein, to hence stand entailed upon the person of the plaintiff, hence, visibly, is, a sequel, of, injuries suffered, upon, his person, rather three or four months earlier qua its issuance, (d) rather fosters an inference that the disability certificate borne in Ex.PW4/A, remaining, visibly grossly unconnected, and, unrelated to the afore alleged assault, even if it stood proven, by the depositions of PW-1 to PW-3. Corollary whereof, sparks a further inference qua that the dependence made by the learned First Appellate Court, upon, the oral testification of the plaintiff, (e) qua in sequel to the afore disability, his remaining confined in bed for six months, and, thereafter, the learned First Appellate Court, hence, towards loss of extra salary payable, to the plaintiff, arising, from the nature of the duties appertaining to his avocation, hence, assessing compensation, borne in a sum of Rs.24,000/-, (f) and, also in the learned First Appellate Court rather proceeding to assess a sum of Rs.20,000/- on account of pain, suffering and loss of comforts, and, Rs.6,000/- in lieu of gratuitous services, (f) resultantly has wandered astray from the afore best documentary evidence, (g) conspicuously, given the afore best documentary evidence, omitting to establish the requisite proximity inter se the assault, and, consequent therewith disability encumbered, upon, the plaintiff, as pronounced in Ex.PW4/A, (h) AND, hence, the apt applicable hereat doctrine, of, remoteness of damages, rather working with its fullest negating effects, vis-a-vis, the plaintiff's suit. 8. The above discussion, unfolds, that the conclusions as arrived by the learned First Appellate Court hence being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, the substantial question of law, is, answered in favour of the appellants/defendants, and, against the plaintiff/respondent. 9. In view of the above discussion, the instant appeal is allowed and in sequel, the, judgment and decree rendered by the learned First Appellate Court, upon, Civil Appeal No.88-CA/13 of 2003 is set aside, whereas, the judgment and decree rendered by the learned trial Court upon Civil Suit No. 59/1 of 2000, is, affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.