FIRST APPEAL 3568 of 2009 on 16 July 1998

IN THE HIGH COURT OF PUNJAB & HARYANA ATCHANDIGARH

RSA No.3568 of 2009(O&M)Date of decision : February 26, 2010

Palvinder Singh alias Ladi and others

versus

....Appellants

Balbir Kaur

....Respondent

CORAM: HON'BLE MR. JUSTICE L.N. MITTAL

Present:Mr. N.S. Shekhawat, Advocate, for the appellants.

Mr. G.C. Shahpuri, Advocate,for the respondent.

***

L.N. MITTAL, J. (ORAL)

C.M. No.10926-C-2009

This is application by appellants for permission to file theappeal as indigent persons alleging that the appellants are not possessed ofsufficient means to pay requisite court fee. This application is accompanied byaffidavit. The appellants were allowed by the lower appellate Court to file theappeal as indigent persons. In view thereof, the instant application is allowedand appellants are permitted to file the instant second appeal as indigentpersons.

RSA No.3568 of 2009

Defendants are in Second Appeal, having remained unsuccessful in both the Courts below.

Respondent Balbir Kaur filed suit under Section 1A of theFatal Accidents Act, for recovery of Rs.3 lacs alleging that the defendants on16.07.1998 inflicted serious injuries with spade (kassi) and sword(kirpan) onvarious parts of plaintiff's body. On statement of plaintiff's husband, FIR No.45dated 16.07.1998 was registered against the defendants under Section 307 readwith Section 34 of Indian Penal Code (IPC). The defendants stand convictedand sentenced vide judgment dated 20.09.1999 by learned Sessions Judge,Kurukshetra in the said case. On account of injuries, the plaintiff sufferedconstant pain and was also unable to do work and her face was also disfigured.Prior to this incident, the plaintiff was working as labourer and alsomaintaining buffaloes and thereby earning Rs.6,000/- per month. The plaintiffalso spent considerable amount on her treatment and medicines. Accordingly,plaintiff claimed compensation of Rs.3 lacs from the defendants.

The defendants controverted the allegations of theplaintiff and pleaded that they did not cause any injury to the plaintif. Someunknown persons with muffled faces caused injuries to the plaintiff, who couldnot identify the real assailants. Later on, plaintiff's husband falsely implicatedthe defendants on account of enmity. It was, however, admitted that thedefendants have been convicted and sentenced by learned Sessions Judge,Kurukshetra. The defendants however, pleaded that their appeal againstjudgment of conviction and sentence was still pending in the High Court andsentence has been stayed. It was denied that plaintiff's face has been disfiguredor that she was earning Rs.6,000/- per month. It was alleged that plaintiff isdoing domestic work and has not been disabled.

Learned Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 30.11.2007 decreed the suit of plaintiff for recoveryof Rs.2,23,000/- as damages against the defendants jointly and severally alongwith interest @ 9% per annum from the date of filing of suit till realization.First appeal preferred by the defendants has been dismissed by learned Addl.District Judge, Kurukshetra vide judgment and decree dated 01.06.2009.Feeling aggrieved, the instant Second Appeal has been preferred by thedefendants. I have heard the learned counsel for the parties andperused the case file.

Arguments

Learned counsel for the appellants vehemently contendedthat the plaintiff has filed suit under Section 1A of the Fatal Accidents Act, butthe said provision is meant for claiming compensation on account of causing ofdeath of any person and not on account of injuries as in the instant case andtherefore the suit itself is not maintainable. Reliance has been placed by thecounsel for the appellants in support of his contention on judgment ofRajasthan High Court in case of Raj Kumar Versus District Judge,Sriganganagar & others 2005(2) RCR (Civil)-541. The contention on firstblush appears attractive, but is devoid of any merit. It is correct thatcompensation for injuries cannot be claimed under Fatal Accidents Act underwhich compensation can be claimed only for causing of death. However, merementioning of wrong provision would not be sufficient to non-suit the plaintiff.The plaintiff's suit is maintainable under general law for damages for injuriescaused to her by the defendants. Consequently, mere mentioning of Section 1Aof the Fatal Accidents Act would not be sufficient to dismiss the suit. Noprejudice either has been caused to the defendants by mentioning of the saidwrong provision.

Learned counsel for the appellants next contended that theoccurrence took place on 16.07.1998 but the suit was filed on 12.02.2002 and,therefore, the suit is barred by limitation. It was also contended that even if thedefence of bar of limitation is not raised in the written statement, the suit iffiled beyond limitation would be liable to dismissal in view of Section 3 of theLimitation Act. In support of this contention, reliance has been placed onjudgment of Hon'ble Supreme Court of India in case of Kamlesh Babu &others Versus Lajpat Rai Sharma & Others 2008(2) RCR(Civil)-872.There is no dispute with proposition of law that even if defence of bar oflimitation is not raised in the written statement, the suit would still be liable tobe dismissed if filed beyond limitation, in view of clear provision of Section 3of the Limitation Act. However, in the instant case, learned counsel for therespondent pointed out that the plaintiff-respondent filed the suit as indigentperson on 26[th] November, 1999 but the plaintiff's application for permission tofile the suit as indigent person was allowed by the trial Court vide order dated12.02.2002 and thereupon the suit was registered on 12.02.2002. It waspointed out that prior to 12.02.2002 the defendants had even filed writtenstatement in the suit. In view of this factual submission of learned counsel forthe respondent, which has not been controverted by learned counsel for theappellant the suit instituted on 26.11.1999 cannot be said to be barred bylimitation.

There is concurrent finding of fact by the Courts belowagainst the appellants. The said finding is based on proper appreciation ofevidence and is not shown to be perverse or illegal. No question of law, muchless substantial question of law, arises for determination in the instant secondappeal.

For the reasons aforesaid, I find no merit in the instantsecond appeal, which is accordingly dismissed.

February 26, 2009vcgarg

(L.N. MITTAL) Judge