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2022 DIGILAW 196 (JK)

Union of India v. Iqbal Begum

2022-04-27

MOHD.AKRAM CHOWDHARY

body2022
JUDGMENT : 1. Appellants, through the medium of instant appeal, have challenged the judgment and decree dated 22.11.2012 (for short 'impugned judgment') passed by the learned Principal District Judge, Srinagar in suit No. 5/Pauper titled Abdul Karim Rohella (through legal heirs) Vs. Union of India & Ors., for recovery of damages and compensation, whereby the appellants and respondent Nos. 5 and 6 were directed to pay respondents/plaintiffs an amount of Rs. 24.00 lacs with Rs. 1.00 lac on account of mental shock and Rs. 50,000/- as suit costs, along-with simple interest @ 6% per annum, from the date of decree. 2. The factual background of the case is that the suit was presented in forma-pauperis and in terms of the trial court order dated 02.12.1998 leave has been granted to the respondents herein to sue as an indigent person. The claim for damages was on the allegation that the personnel of the appellants on 12.06.1993 have killed the son of the plaintiff Abdul Karim Rohella namely Tariq Parvaiz Rohella by shooting him deliberately. During the pendency of the suit, the plaintiff Abdul Karim Rohella died and his legal heirs (present respondents 1 to 4) were brought on record and the suit was decided in terms of the impugned judgment dated 22.11.2012 in favour of the plaintiffs/respondents 1 to 4 and against the appellants as well as respondents 5 and 6. The compensation of Rs. 24.00 lacs plus Rs. 1.00 lac on account of mental shock and agony, and Rs. 50,000/- as suit costs was decreed. 3. Respondents/plaintiffs in the suit had pleaded that the deceased Tariq Parvaiz Rohella, who was 27 years of age at the time of his killing by the security forces of 4 th Bn. BSF, was a deliberate attempt and the said deceased was tied with a pole at Sheikh Dawood Colony, Batmaloo. An FIR No. 114/93 was lodged in this regard in the Police Station, Sherghari. It was further pleaded in the suit that the deceased was dealing in wholesale business of food stuffs and kiryana, where he had invested an amount of Rs. 2.55 lacs with monthly earnings of Rs. 8,000-10,000/-. The deceased, as contended in the suit, had invested all the earnings of the plaintiff/father who was retired Government Teacher. Besides, loan was also raised from J&K Bank Branch, Batamaloo. 2.55 lacs with monthly earnings of Rs. 8,000-10,000/-. The deceased, as contended in the suit, had invested all the earnings of the plaintiff/father who was retired Government Teacher. Besides, loan was also raised from J&K Bank Branch, Batamaloo. The untimely assassination of the plaintiff's son engulfed the plaintiff and his family into permanent wail subjecting the plaintiff and his family to deprivation besides inflicting horror, shock and agony as they were deprived of the sole bread earner. It was further stated that had the deceased's son not been killed and allowed to live his normal life he would have earned in coming 40 years more than two crores and since the plaintiff and his family have been deprived of this income, as such, defendants (appellants and respondent Nos. 5 and 6 herein) are bound to pay the amount to the plaintiff as the murder had been committed by the security forces during the course of their employment, exposing the defendants to this liability. 4. The suit was contested by the appellants who filed their written statement refuting the claim of respondent No. 1. Besides raising some preliminary objections regarding the maintainability of the suit, the appellants pleaded that no such incident as alleged in the suit had ever happened in the area. The appellants categorically denied their involvement in the incident leading to the alleged death of the son of the plaintiff. 5. It was specifically pleaded in the written statement that as per the record of the appellants/defendants, on 12.06.1993 a party consisting of commando platoon led by Commandant of the BSF conducted a search operation in the area of Ridge Chowk, Batmaloo, where the militants were reportedly hiding. They fired at the party from different directions. Later on this commando platoon was reinforced by calling company strength from 4th Bn. BSF and 26th Bn. BSF. During the exchange of fire between the two sides, one Constable Bimal Kumar Singh of "F Coy" of the unit sustained bullet injury. He was immediately evacuated to 92 Base Hospital, however, he succumbed to his injuries en-route. Another Head Constable, namely, T. Bhutia of 26 Bn. BSF also sustained bullet injury in his right thigh, during the operation. It is claimed that troops of the appellants/defendants retaliated in self defense. He was immediately evacuated to 92 Base Hospital, however, he succumbed to his injuries en-route. Another Head Constable, namely, T. Bhutia of 26 Bn. BSF also sustained bullet injury in his right thigh, during the operation. It is claimed that troops of the appellants/defendants retaliated in self defense. As soon as, the fire from militants stopped at 1820 Hrs, the area was searched and during search two dead bodies of unidentified persons were found, from whose possession Indian currency of Rs. 75,290/- and empty fired cases of AK-47 Rifle, 16 in number were also recovered. The dead bodies of both the militants were handed over to police and FIR in this regard was also got registered at local Police Station. 6. On the basis of pleadings of the parties, the trial court framed the following issues : (a) Whether the son of the plaintiff namely Tariq Parveez Rohela was killed by defendants forces 4 th Bn. BSF on 12th June, 1993 by shooting him at Sheikh Dawood Colony Batamaloo? OPP (b) Whether the son of plaintiff was a shopkeeper by profession and was earning eight to ten thousand rupees per month? OPP (c) Whether the deceased son of the plaintiff had established business after getting loan from the J&K Bank, Batamaloo? OPP (d) Whether the deceased son of the plaintiff was only source to support the plaintiffs family? OPP (e) Whether a FIR No. 114 of 1997 was lodged with the police station, Shaheed Gunj, Srinagar regarding the alleged killing of the plaintiff's son? OPP (f) Whether the plaintiff and his family was subjected to psychological depression and mental agony in addition to financial loss due to killings of plaintiff's son? OPP (g) Whether the approximate loss to which the plaintiff and his family was subjected is rupees two crores? OPP (h) Whether the mother of deceased Tariq Ahmad Parvez is suffering from psychological disease due to the shock caused to her by death of said Tariq Parveez? OPP (i) Whether the plaintiff has no cause of action to maintain the suit? OPD (j) Whether the suit has not been properly valued, if so, what is the proper valuation? OPD (k) Whether no such incident as alleged by the plaintiff took place in the area of responsibility of answering defendants? OPD (l) Whether on 12.06.1993, the Commando Platoon and the forces of the 4th and 26th Bn. OPD (j) Whether the suit has not been properly valued, if so, what is the proper valuation? OPD (k) Whether no such incident as alleged by the plaintiff took place in the area of responsibility of answering defendants? OPD (l) Whether on 12.06.1993, the Commando Platoon and the forces of the 4th and 26th Bn. of BSF were engaged in encounter at Batmaloo area where two unidentified militants died and ten grenades and sixteen cases of fired bullets were found on spot, if so, what is its effect on the suit? OPD (m) Whether the forces of answering defendants were not responsible for killing of Tariq Parvez Rohella? OPD (n) Relief? 7. The trial court considered the evidence, oral as well as documentary, led by the parties in the case during the trial and after affording opportunity to both the sides, decided the suit vide impugned judgment dated 22.11.2012 and awarded a sum of Rs. 25.00 lacs, along with interest at the rate of 6% per annum from the date of decree till final realization of the compensation amount. 8. Feeling aggrieved of the impugned judgment, the appellants have challenged the same through this appeal inter-alia on the following grounds : (i) the impugned judgment deserves to be set aside as the order is patently erroneous and illegal; (ii) the trial Court has not appreciated the fact that the deceased could have died by the bullet of militants too as his dead body was recovered after encounter stopped. Neither the trial court has given any weightage to the written statement filed by the appellants/defendants before it nor has it considered the evidence placed before it by them. Neither the trial court has given any weightage to the written statement filed by the appellants/defendants before it nor has it considered the evidence placed before it by them. The trial court has on hearsay evidence allowed the suit and passed the decree which is not admissible in the eyes of law; (iii) the trial Court has on flimsy grounds decided that the deceased has been killed by the bullets of appellants and erroneously fixed guilt on the appellants, as if trial court was conducting a criminal trial; (iv) the trial court has not even bothered to say a word or whisper about the other seized articles and has only taken cash as the item recovered from the deceased and thus ignored the very important piece of evidence; (v) the trial court has accepted the fact that the appellants were acting in aid and assistance of the State Government and, therefore, the compensation, if any, was to be paid by the State. This aspect has not been appreciated by the trial Court; (vi) the compensation awarded by the trial court is on higher side and learned trial court has assessed the quantum on flimsy grounds and has done calculations as per its whims. On this score also, the impugned judgment deserves to be set aside. 9. Heard, perused the record and considered. 10. Mr. Nazir Ahmad Bhat, learned counsel for the appellants, has argued that the trial court has miserably failed to appreciate the evidence in proper perspective and has come to an erroneous conclusion that the death of the son of the plaintiff was on account of wrongful act of the security personnel of 4 th Bn. BSF. He also disputes the manner in which the trial court has calculated the compensation. He, therefore, submits that even if it is assumed that the death of the son of the plaintiff had taken place due to some negligent act of appellants, yet the amount of compensation decreed by the trial court is highly exaggerated and exorbitant. 11. Mr. M.Y. Bhat, learned senior counsel for the respondents, on the other hand, supports the impugned judgment. He submits that the respondents/plaintiffs, by leading very cogent evidence, has proved all the issues the onus whereof was on them; he further submits that the defense evidence lead by the appellants/defendants does not inspire any confidence and was thus rightly rejected by the trial court. He submits that the respondents/plaintiffs, by leading very cogent evidence, has proved all the issues the onus whereof was on them; he further submits that the defense evidence lead by the appellants/defendants does not inspire any confidence and was thus rightly rejected by the trial court. 12. Be that as it may, it is worthwhile to note here that from the pleadings of the parties and the evidence led in support thereof by both the sides, the facts which have emerged are that one Tariq Parvaiz Rohella was killed on 12.06.1993. It has also come in the evidence that the deceased had no history of having been involved in militancy or subversive activities. Plea of the appellants in defense that he was a militant and from his possession a cash amounting to Rs. 75,000/- was recovered, has been belied by the evidence of respondents, who has sufficiently proved that the cash of Rs. 75,000/- which was recovered from the deceased Tariq Parvaiz Rohella had actually been obtained by him by encashment of a cheque amounting to Rs. 75,000/- from the Bank and was not part of the proceeds of crime. Even the SDPO, Shaheedgunj, who conducted the investigation had also concluded that the death of deceased Tariq Parvaiz Rohella, resident of SD Colony and one Mohd. Ayoub Wani had taken place because of the cross firing which took place between the appellant forces and the unknown militants. Although from the evidence it has not been established that the deceased son of the plaintiff was killed by the security forces deliberately, yet it has also not been established by the appellants that the deceased was a militant and had fired upon the security party. Rather the contrary evidence has come on record which shows that the son of the plaintiff was an innocent citizen and was killed in the cross firing which took place between the security forces and unknown militants. 13. Having heard learned counsel for the parties and perused the record, I am of the view that so far as the findings of the trial court on the issues, other than the quantum of compensation issue, are concerned, same are based on proper appreciation of evidence on record and, therefore, do not call for any interference. However, the findings recorded by the Trial court on the issue with regard to quantum of compensation, are arbitrary and irrational. However, the findings recorded by the Trial court on the issue with regard to quantum of compensation, are arbitrary and irrational. In the absence of proof of loss of dependency by cogent evidence, it is always prudent and in consonance with law to follow the principles laid down by the Supreme Court, under Motor Vehicles Act, for working out the loss of dependency and for assessment of fair compensation to the next of kins of those who are injured or have died in a vehicular accident. The judgments of the Supreme Court rendered in the case of Sarla Verma & Ors. vs. Delhi Transport Corporation, 2009 (6) SCC 121 and National Insurance Compnay Vs. Pranay Sethi & Ors., 2017 (16) SCC 680 , provide sufficient guidelines to work out compensation in the death cases under the Motor Vehicles Act. In the absence of sufficient evidence on record, a cue from the aforesaid judgments can be taken to work out the compensation which, in the facts and circumstances of this case, for just and fair compensation to be awarded to the respondents/plaintiffs. 14. This brings me to the core question of the quantum of compensation payable to the respondents/plaintiffs. Again, the facts are not in dispute and rather well established by the evidence on record. Deceased was claimed approximately to be 27 years old at the time of his death and was earning a sum of Rs. 8,000/- to Rs. 10,000/- per month. Besides, the deceased had five more family members dependant on him (parents, two brothers and one sister). But whether or not they were dependent upon the deceased, is not forthcoming from the record. The evidence on record is deficient to come to any definite conclusion with regard to the quantum of compensation that is payable to the respondents/defendants. It could be a case for remand to the trial court for taking evidence on the issue afresh, but taking note of the fact that litigation started when an application to sue an indigent person was filed in the year 1998, for the interest of justice, I refrain from doing so and therefore, proceed to determine the compensation payable to the respondents/plaintiffs. 15. The facts with regard to the age of the deceased, his income and number of dependants are not in dispute. Deceased was stated to be of the age of 27 years at the time of accident. 15. The facts with regard to the age of the deceased, his income and number of dependants are not in dispute. Deceased was stated to be of the age of 27 years at the time of accident. His monthly income had been accepted by the trial court as Rs. 7,500/- from his business concern, which was not challenged by any of the parties. Therefore, an income of Rs. 7,500/- is to be taken as one of the units to assess the compensation. At the time of death of the deceased, he was survived by his father, mother, two brothers and one sister. 16. Having regard to the age, income and the number of dependants, the compensation has to be worked out, following the principles laid down by the Hon'ble Apex Court in the afore-stated cases under Motor Vehicle Act,. The income of deceased has to be increased, keeping in view the future prospectus. In the age group of deceased such an increase has to be 40%. Deduction on personal expenses has to be 1/3rd. The multiplier to be applied in the age group of the deceased has to be taken as 17'. 17. Keeping in view the facts of the case and the principles of law to be applied for calculation of compensation awardable, the same is worked out as under : Monthly income of deceased Rs.7,500/- Increase on account of future prospectus upto the age of 40 years @ 40% Rs.3,000/- Total monthly income Rs.10,500/- Deduction on account of personal expenses/defendants @ 1/3rd of the monthly income Rs.3,500/- Monthly loss of income to be taken into account Rs.7,000/- Annual loss of income (7000x12) Rs.84,000/- Total Loss of Income/ dependency (multiplier is taken as 17 i.e., 84000x17) Rs.14,28,000/- Loss of consortium Rs.40,000/- Loss of estate Rs.15,000/- Funeral expenses Rs.15,000/- Total Rs.14,98,000/- (Rupees Fourteen Lac and Ninety Eight Thousand) only. 18. This amount shall be payable to the respondents/plaintiffs along-with interest @ 6% per annum from the date of decree passed by the trial court till realization together with costs of Rs. 50,000/-. Since the suit had been filed in 'forma pauperis' as an indigent person, payment of requisite court fee shall be first charge on the decretal amount. 19. The appeal is disposed of, and the impugned judgment is modified to the aforesaid extent. Registrar Judicial, Srinagar, shall prepare the decree sheet, accordingly. 20. 50,000/-. Since the suit had been filed in 'forma pauperis' as an indigent person, payment of requisite court fee shall be first charge on the decretal amount. 19. The appeal is disposed of, and the impugned judgment is modified to the aforesaid extent. Registrar Judicial, Srinagar, shall prepare the decree sheet, accordingly. 20. Trial court record along-with a copy of this judgment and decree shall be sent down forthwith.