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2023 DIGILAW 647 (JK)

Union of India v. Imran Khan S/o Sh. Mohd. Ishaq

2023-10-19

PUNEET GUPTA

body2023
JUDGMENT : 1. The appeal has been preferred against judgment and decree dated 14.03.2014 passed by the learned District Judge, Poonch wherein the learned trial court decreed the three suits by clubbing them together and awarded compensation in each case as mentioned in the judgment in favour of the plaintiff. 2. The File No. 31/Civil titled ‘Mohd. Asif v. Union of India and another’, File No. 32/Civil titled ‘Imran Khan v. Union of India and another’ and File No. 33/Civil titled “Zamir Ahmad and another v. Union of India and another’ were disposed of by the trial court by the common judgment. The judgment and decree passed in the aforesaid suits stand challenged by the appellants herein by three separate appeals which are clubbed together for disposal, the same having arisen out of the common judgment passed by the trial court. 3. It is suffice to mention herein that the applications in all the aforesaid cases under Order 37 CPC were filed and allowed by the trial court and the plaintiffs in those suits were declared as indigent persons and permitted to sue the respondents as pauper. 4. The judgment and decree passed by the trial court in the aforesaid suits is challenged on the ground that the trial court has passed the decree on assumption and presumption and no evidence was brought on record by the plaintiff in support of case. The trial court has treated the suit as if one filed under the provisions of the Motor Vehicles Act. The court also did not consider the fact that the plaintiff had been given ex-gratia relief by the Government of Jammu and Kashmir. The appeals stand contested by the respondent-plaintiff. 5. The record in all the three suits is also before this Court. 6. The case of the plaintiffs in all the suits before the trial court is that on 07.09.2008, the respondent-Company was stationed at Chiti Bhati, Tehsil Surankote, District Poonch. The army did not take preventive measures and the area of the blast was not sealed by the army by way of protection by installing red flags. The son of each plaintiff got injured due to the blast occurred in the area and suffered permanent disability as mentioned in each suit. The plaintiff was also admitted in the hospital. The plaintiff sought compensation in each case. 7. The son of each plaintiff got injured due to the blast occurred in the area and suffered permanent disability as mentioned in each suit. The plaintiff was also admitted in the hospital. The plaintiff sought compensation in each case. 7. The defendants contested the claim of the plaintiff in all the cases. The defendants denied the averments regarding the negligence on their part as made out in the plaint. It is denied that any blast was made by the defendant No.2 though it is admitted that a loud explosion was heard by persons of the defendant-Company 70 meters away where the Company had its operating base. The defendant admits that one fatal and three non-fatal casualties had occurred due to the explosion. The loud explosion was made by unknown terrorists. As per the police report, the investigation was closed being untraced. 8. The learned counsel appearing for the appellants has reiterated the submissions made in the appeal. There is no evidence on record to prove that the occurrence took place due to the negligence of the appellant No.2 and that the trial court has wrongly applied the maxim resipsa loquitor in all the suits. The compensation assessed by the trial court is on the basis of Motor Vehicles Act and Workmen’s Compensation Act, 1923 which could not be done by the court. 9. The learned counsel appearing for the respondent-plaintiff has argued that the trial court has rightly passed the decree in favour of the plaintiff after thoroughly going through the evidence that has been brought on record during the trial. 10. Issue No.1 : The court vide order dated 08.09.2011 framed issues in the case. Issue No.1 pertains to the fact as to whether the plaintiff in all the suits suffered permanent disability due to the injuries received while coming back from school towards residence on 07.09.2008 at Chiti Bhati, Tehsil Surankote, District Poonch due to the blast executed by the appellant No.2 herein. The blast was due to the act committed by the appellant No.2 and resulted into permanent disability of the plaintiff was required to be proved by the plaintiff. The trial court on account of the statements recorded by the witnesses has held that the blast was caused by the defendant-Company and no precautionary measure was taken by the army authorities while executing the blast. The trial court on account of the statements recorded by the witnesses has held that the blast was caused by the defendant-Company and no precautionary measure was taken by the army authorities while executing the blast. So far as disability suffered by the defendant is concerned in consequence to the injuries received by the plaintiff due to the blast, the same cannot be disputed. However, the prime question which requires answer in the matter is if the blast had been caused by the appellant No.2. It may be mentioned herein that the suits have been instituted by the minor children through their respective father. The statements of the father of each child have been recorded. In File No.31 in addition to the statements of father Mushtaq Ahmad the statements of Mohd. Azeem, Abdul Ganie, Mohd. Sadeeq and Dr. Shalinder Sharma have been recorded. In File No. 32 and 33, the statement of father Mohd. Ishaq and the statements of Mohd. Azeem, Abdul Ganie, Mohd. Sadeeq and Dr. Shalinder Sharma have been recorded. In other words, the witnesses except the father of the children are same in all the cases. The perusal of the statements of the witnesses produced in the suits reveal that they are not witness to the alleged blast which purportedly resulted into permanent disability to the plaintiffs. It is, however, evident from the statements of the said witnesses that some blast occurred around or nearby the area where 25 RR C/o 56 APO Company i.e. appellant No.2 was stationed and the people reached the spot of the blast after sometime. The area where the blast took place was not secured by any means by the appellant No.2. The blast resulted into injuries to the children who were on their way back from school to their homes. It may be noted herein that the defendants did not produce any evidence in rebuttal. However, it is also pertinent to note that the defendants in the written statements filed in the case did mention that the army people reached the spot after the blast took place though they denied that the blast was executed by the defendant No.2. The plaintiffs also received injuries in the occurrence are not denied. However, it is also pertinent to note that the defendants in the written statements filed in the case did mention that the army people reached the spot after the blast took place though they denied that the blast was executed by the defendant No.2. The plaintiffs also received injuries in the occurrence are not denied. The Court while deciding the issue as to whether the plaintiff was able to prove negligence held that it may be difficult or impossible for the plaintiff to explain the acts or omissions which lead to the damage due to certain circumstances. The trial court applied the maxim resipsa loquitor. The learned counsel for the appellant has argued that the trial court could not apply this maxim in the suit proceedings and more particularly in the facts and circumstances of the case. The court is not in agreement with the argument of the counsel for the appellant. The Court can take notice of the judgment passed by the Hon’ble Supreme Court passed in case titled ‘Krishna Bus Service Ltd. vs. Smt. Mangli & ors.’ (In Appeal Civil No. 971 of 1968) decided on 21.01.1976, where the court did not negate the principle of maxim resipsa loquitor applied by the trial court and the High Court and further dismissed the appeal of the defendant on the other facts also. 11. The probabilities and not standard of proof as required in criminal cases is to be seen in the suit. It has also come in the evidence of the plaintiffs that the area where the blast took place was not secured by any sign or by installation of red flags. Surprisingly the defendants did not produce any evidence to rebut this claim of the plaintiffs. The incident was as a result of terrorist activity though pleaded by the counsel for the defendant did not get any support as no evidence was brought to the light in this regard by the defendants before the trial court. How the blast occurred in the area could not be ascertained by the plaintiff and it was sufficient for the plaintiffs to prove that the blast did occur which caused injuries and resultantly the children suffered permanent disability. Why the defendants did not produce any evidence on record to rebut the case of the plaintiff is not made known to the court. Why the defendants did not produce any evidence on record to rebut the case of the plaintiff is not made known to the court. The circumstances emanating from the record and also in view of the fact that the defendants did not produce any evidence to rebut the case of the plaintiff the same shows that there was negligence on the part of the respondent No.2 which caused the blast and consequently the injures to the children, who were returning home from the school at that time. The plaintiff(s) in all the suits have produced Dr. Shalinder Sharma, Orthopaedic Surgeon who is one of the signatories to the medical disability certificate issued by the Board. The injuries received by the children in all the cases as mentioned in the certificates cannot be disputed. The certificates issued qua all the victims are duly proved by Dr. Shalinder Sharma. The certificates are duly exhibited. The court finds no reason to interfere in the finding of the trial court which held the issue No.1 having been proved by the plaintiff in all the suits and against the defendants. 12. Issue No.2 reads as under :- “Whether the army authority has not taken any preventive measures before blasting and has committed negligence in execution of the blast? OPP 13. The trial court has decided the issue in favour of the plaintiffs and against the defendants in view of what had been held by it while deciding the issue No.1. The court has held that the defendant No.2 had not taken preventive measures and did not install red flags as a result the occurrence took place due to negligence of the defendant. The Court finds no reason to take a view different from what has been taken by the trial court. The issue stands decided in favour of the plaintiffs and against the defendants. 14. Issue No.3 reads as under :- “If the issue No.1 and 2 are proved in affirmative, to what extent the compensation, the plaintiff is entitled to and from whom? OPP 15. The issue stands decided in favour of the plaintiffs and against the defendants. 14. Issue No.3 reads as under :- “If the issue No.1 and 2 are proved in affirmative, to what extent the compensation, the plaintiff is entitled to and from whom? OPP 15. The trial court while deciding the compensation issued has taken the notional income of the injured minor in terms of the Motor Vehicles Act and calculated the compensation with reference to the percentage of loss of earning capacity qua the injuries suffered and resulting into permanent disability of the victims as per the Schedule I of the Workmen’s Compensation Act, 1923. 16. The learned counsel for the appellant has vehemently argued that the trial court could not, in any case, invoke the provisions of aforesaid Acts while assessing the compensation. 17. Learned counsel for the respondent-plaintiff has argued that the court has not erred in awarding the compensation to the plaintiffs in all the suits. The method applied by the trial court in assessing the compensation is as per law. 18. The court is of the view that the trial court has awarded compensation in favour of the victims who were minors at the time of occurrence and were school going children. If the trial court has assessed the compensation keeping in view a specific formula there is no reason to find fault in it. It is suffice to mention that the plaintiffs have suffered permanent disability for which they were required to be compensated. The trial court has found the disability of the plaintiff-Mohd. Asif and Imran Khan as 40% and of that Zameer Ahmad as 20%. The learned counsel could not otherwise counter the assessment made by the trial court of the permanent disability suffered by the victims. 19. The learned counsel for the appellant has also raised a plea during the course of argument that the so called victims had been granted ex-gratia relief to the tune of Rs.75000/-and, therefore, the plaintiffs were not entitled to any relief in the suit for that reason also. The appellants have not taken any such plea in the appeals filed by the appellants. The appellants have not taken any such plea in the appeals filed by the appellants. The trial court has dealt with this plea of the appellants herein and on the strength of the judgments has held that the ex-gratia compensation paid to the claimants by the State Authorities has nothing to do with the compensation to be assessed in the suits and the amount of ex-gratia cannot be deducted while assessing the compensation. The trial court has held the plaintiffs entitled to receive the compensation to the tune of Rs.1,08,000/-in File No. 31, Rs.2,16,000/-in File No.32 and Rs.1,20,960/-in File No. 33 along with costs and interest @ 7.5% per annum from the date of institution of the suit till realisation. The defendants, appellants herein, have been saddled with the liability to pay the compensation to the plaintiffs in all the suits. 20. No reason to interfere in the judgment and decree passed by the trial court.