Himachal Pradesh High Court
RSA/384/2004 of VIRENDER SINGH Vs SHYAM LAL on 31 December 2018
COURT OF HIMACHAL PRADESH SHIMLA RSA No. 384 of 2004. Reserved on : 14 th December, 2018. Decided on : 31 st December, 2018. Virender Singh & another ..Appellants/Defendants Versus Shyam Lal ....Respondent/Plaintiff. Coram: The Hon’ble Mr. Justice Sureshwar Thakur, Judge. Whether
IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA
RSA No. 384 of 2004.
Reserved on : 14th December, 2018. Decided on : 31st December, 2018.
Virender Singh & another
..Appellants/Defendants
Versus
Shyam Lal....Respondent/Plaintiff.
Coram:
.The Hon’ble Mr. Justice Sureshwar Thakur, JudgeWhether approved for reporting?[1] Yes.
Sureshwar Thakur, Judge.
The instant appeal is directed by thedefendants/appellants herein, against, the verdictrecorded, upon, Civil Appeal No. 88-CA/13 of 2003 by thelearned District Judge, Sirmaur District at Nahan, 1 Whether reporters of the local papers may be allowed to see the judgment?
wherethrough, he after reversing the verdict, of,dismissalof the plaintiff's suit, rendered by the learned trial Court,partly decreed the plaintiff's suit, for, damages comprisedin a sum of Rs.50,000/-, subject to the requisite courtfees, vis-a-vis, the afore sum being, within a period of 15days, appended upon the plaint. 2.Briefly stated the facts of the case are thatthe plaintiff is employed as driver in HRTC, Nahan. On24.11.1997, around 9 a.m., the plaintiff was on duty onBus No.HP-18-3546. He was driving the bus, in questionfrom Village Vasni to Sarahan. When the plaintiff reachedat village Bhelan bus stop, the defendants Virender Singhand Gian Singh stopped the bus, without any provocationand with criminal intent assaulted the plaintiff while hewas sitting on driver's seat. He was dragged out of thedriver sat. The defendants gave him blows of fist andlegs, as a result of which he fell down in the Nali. Thedefendants continued assaulting him with their fists and feet. Resultantly, the left leg of the plaintiff was fracturedat the knee joint. The defendants have also inflictedinjuries on the head on left and right side by hitting himfrom feet. He was also hit in the stomach. As a result ofserious injuries, the plaintiff remained admitted inSarahan hospital for 10 days. He remained bed riddenand looked after by two attendants. From SarahanGovernment Hospital, he was referred to District HospitalNahan, from where he was further referred to PGI,Chandigarh for treatment. The The plaintiff's case is thathe is still under treatment and is unable to do his dutiesof driving. He can only stand and move with the help ofsupport. Despite having remained under treatment, theplaintiff's case is his knee joint remains swollen. TheSpecialist at PGI, according to him, advised operation ofknee joint and left leg The operation was advised in themonth of June, 2000. The plaintiff's further case is thatbefore 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, heavers, he cannot under take the driving of bus, he hasbeen given light duty, and, has been suffering a loss ofRs.4,000/- per month ever since the occurrence. Theplaintiff avers that he has been crippled for life and he isunable to lead now a normal life. The plaintiff's case isthat, on 15.1.2000, though, he sent a registered notice tothe defendant,s but they refused to receive the same.This how the plaintiff's suit for damages/compensation ofRs.1,50,000/- was laid by him in the trial Court. 3.The defendants contested the suit and filedwritten statement, wherein, they have taken preliminaryobjection qua maintainability, non joinder of necessaryparties and court fee. On merits, it is denied by thedefendants that had inflicted any injuries on the personof the plaintiff.
4.On the pleadings of the parties, the learnedtrial Court struck the following issues inter-se the partiesat contest:-
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1. Whether the plaintiff was assaulted by the defendants and sustained injuries and thereby plaintiff became incapable to lead a normal life, as alleged? OPPby 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?OPPaffirmative, 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?OPDin the present form, as alleged?OPD
4. Whether the suit is bad for non joinder of necessary parties, as alleged?OPD. 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. 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 Courtpartly allowed, the, appeal, and, reversed the findingsrecorded by the learned trial Court.
6. Now the defendants/appellants herein, haveinstituted the instant Regular Second Appeal, before, thisCourt, wherein they assail the findings, recorded in itsimpugned judgment and decree, by the learned firstAppellate Court. When the appeal came up foradmission, this Court, on 23.8.2004, admitted the appealinstituted by the defendants/appellants, against, thejudgment and decree, rendered by the learned firstAppellate Court, on the hereinafter extracted substantialquestion of law:-
1. Whether the ld. Appellate Court erred in lawin reversing the decree of ld. Trial Courtwhen there is absolutely no evidence onrecord whatsoever to link the alleged injuryof the respondent, with the appellants. Andtherefore whether the impugned judgmentand decree suffers from misreading and notin reversing the decree of ld. Trial Courtwhen there is absolutely no evidence onrecord whatsoever to link the alleged injuryof the respondent, with the appellants. Andtherefore whether the impugned judgmentand decree suffers from misreading and not appreciating the entire evidence on recordof the case?
Substantial question of Law No.1:
7. The suit for damages, arising, from the tort ofassault, allegedly perpetrated by the defendants, upon,the plaintiff, enjoined adduction of cogent proof, vis-a-vis,the afore assault, being, hence perpetrated by thedefendants. A judgement of acquittal, pronounced by thelearned trial Court concerned, upon, criminal case No.37/2 of 97, as, arose from, an incident similar quawherewith the instant suit has been filed, is borne inEx.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 renditionof a decree for damages, arising from, his beingassaulted hence by the defendants, (a) upon, cogentevidence existing on record in proof of the averments, as,reared in the plaint. The afore evidence is comprised inthe evidence of PW-1, PW-2 and PW-3. Even if, the afore
Pws hence rendered rather testifications incorroboration, vis-a-vis, the averments in respect thereof,carried in the plaint, however, the plaintiff was alsoenjoined to prove, the, factum probandum (a) qua theinjuries entailed upon his person in sequel to his beingallegedly assaulted, by the defendants, thereupon, ratherin immediate sequel thereto or in quick spontaneitythereto, hence begetting entailment, of, a severedisability, upon, his person, (b) whereafter he evidentlystood precluded or deterred to perform the dutiesappertaining to his employment. The MLC preparedimmediately subsequent to the occurrence, and,embodied in Mark-A, rather on its closest, and, incisiveperusal, omits to make unfoldments, qua any severecritical injuries being encumbered, upon, the plaintiff.Furthermore, with PW-6, who, in quick spontaneity to theafore assault, hence proceeded to medically examine theplaintiff, 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 bythe plaintiff in the relevant assault, rather no fracturebeing entailed upon his person. The efect thereof, when-construed in entwinement, with, the deposition of PW4,who, issued disability certifcate borne in Ex.PW4/A,and,who during the course of his examination-in-chief, hashence proven it, conspicuously, with his in his cross-examination rather making an echoing, (a) that theinjuries in sequel whereof Ex.PW4/A stood issued,appertaining to a period three or four months earlierthereto, (b) thereupon, when Ex.PW4/A, stood issued inthe year 2000, whereas, the alleged assault occurred inthe year 1997, (c) thereupon, when the disability astestified by PW-4, in his cross-examination, is echoedtherein, 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 quaits issuance, (d) rather fosters an inference that thedisability certifcate borne in Ex.PW4/A, remaining, visiblygrossly unconnected, and, unrelated to the afore alleged-assault, even if it stood proven, by the depositions of PW1 to PW-3. Corollary whereof, sparks a further inferencequa that the dependence made by the learned FirstAppellate Court, upon, the oral testification of theplaintiff, (e) qua in sequel to the afore disability, hisremaining confined in bed for six months, and, thereafter,the learned First Appellate Court, hence, towards loss ofextra salary payable, to the plaintiff, arising, from thenature 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 ratherproceeding to assess a sum of Rs.20,000/- on account ofpain, 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 documentaryevidence, omitting to establish the requisite proximityinter se the assault, and, consequent therewith disabilityencumbered, upon, the plaintiff, as pronounced inEx.PW4/A, (h) AND, hence, the apt applicable hereatdoctrine, of, remoteness of damages, rather working withits fullest negating effects, vis-a-vis, the plaintiff's suit. 8.The above discussion, unfolds, that theconclusions as arrived by the learned First AppellateCourt hence being not based, upon a proper and matureappreciation of evidence on record. While rendering thefindings, the learned first Appellate Court has excludedgermane and apposite material from consideration.Accordingly, the substantial question of law, is, answeredin favour of the appellants/defendants, and, against theplaintiff/respondent.
9.
9. In view of the above discussion, the instant appeal is allowed and in sequel, the, judgment anddecree 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 thelearned trial Court upon Civil Suit No. 59/1 of 2000, is,affirmed and maintained. Decree sheet be preparedaccordingly. All pending applications also stand disposedof. No order as to costs. Records be sent back forthwith.
31[st] December, 2018.
(jai)
(Sureshwar Thakur) Judge.