Mahadev and others vs Tek Chand

G.S. Sandhawalia, J.

CM No. 13849-C of 2011

Application for condonation of delay of 630 days in filing the appeal is allowed in view of the averments made in the application which is duly supported by an affidavit.

CM No. 13850-C of 2011

Application for exemption from filing the certified copies of the judgments and decrees are allowed in view of the averments made in the application which is duly supported by an affidavit.

RSA No. 4755 of 2011

The present appeal has been filed by the defendants who are aggrieved against the concurrent findings of the Courts below wherein the suit of the plaintiff had been allowed and the plaintiff was held entitled to recover amount of Rs. 73,700/- from defendants along with future interest @ 10% per annum from the date of filing of the present suit till the realization of the decretal amount vide judgment and decree dated 29.09.2007 on account of causing injury to the plaintiff whereby he lost his vision in the left eye and his said eye had to be removed. The case of the plaintiff is that he is a peace loving person of village Kundal and the defendants are very forceful, strong headed and quarrelsome persons who had formed an unlawful assembly on 02.03.1999 at about 1.30 PM and defendant No. 1, Mahadev had hit some object on the left eye of the plaintiff and the left eye of the plaintiff was broken into pieces. The plaintiff was removed to Civil Hospital, Rewari and was medico-legally examined by Dr. R.A. Gupta and as the condition of the left eye of the plaintiff was serious, he was referred to Safdarjang Hospital, Delhi. A criminal case was also registered and FIR No. 44 was got registered at police station Sadar Rewari on 04.03.1999. The plaintiff remained admitted at the hospital from 02.03.1999 to 08.03.1999 as indoor patient under severe pain and since the eye was damaged, it was removed by surgery on 03.03.1999. Accordingly, the plaintiff has claimed a sum of Rs. 50,000/- for medicines, conveyance, loss of income, pain, suffering and permanent loss of vision on the ground that he is 43 years old and had become blind by one eye and that he was working as Gangman in the Railway Department and had suffered economical loss and was not able to drive any vehicle, and accordingly, claimed compensation to the tune of Rs. 1 lac.

The defendants, in defence, apart from taking various preliminary objections with regard to locus standi, maintainability and limitation, denied that Mahadev had caused any injury along with other defendants and defendant No. 1 along with defendant No. 4 were repairing the wall along with other persons. The plaintiff, along with other persons, came there and started uttering abuses and when defendant Nos. 1 & 2 raised objections, the plaintiff and other persons started beating them and since the plaintiff and his companions were armed with lathis and danda, defendant Nos. 1 & 4 rushed towards the roof of the house of the defendants and the said persons followed the defendants and climbed the roof of the house. It is pleaded that the plaintiff gave lathi blow on the back of defendant No. 4. Plaintiff, Manohar Lal also gave lathi blow on the head of defendant No. 4 and Itbari also gave a lathi blow on the leg of defendant No. 4. Thus, it has been pleaded that the defendant had not caused any injury and the plaintiff got his eye operated without any injury and the liability to pay was denied. The other defendants also filed similar written statements.

The trial Court, after taking into consideration the issues framed and the statements of 9 plaintiffs witnesses and 11 defendant''s witnesses, noticed that the following injuries were there on the person of the plaintiff:

A.U. Shaped lacerated wound of 6 cm x 1 cm x skin deep was present on the left eye brow margins are irregular with fresh bleeding.

Cornea of left eye was ruptured, iris and vitrus was coming out from the wound blood was present in the enterior chamber. Case was referred to eye surgeon.

Lacerated wound of 1.5 cm x 1/2 cm x skin deep was present on the near the nasal bridge margins were irregular with fresh bleeding nose was swollen. X-ray was advised.

A diffuse swelling was present on right partial area, near mid line x-ray was advised.

The said injuries were proved by Dr. R.A.Gupta, PW2. Accordingly, the trial Court came to the conclusion that the plaintiff had received an injury in the left eye and lost vision and relying upon the evidence of Bharat Singh, PW3, an independent witness, came to the conclusion that due to the injury caused by defendant No. 1, Mahadev, the plaintiff had lost vision in the eye. It was also noticed that Tek Chand had not received any injury on his person and that the story regarding the jumping from the roof of the house of the defendants which was put forward in the complaint filed by the defendants was not correct as the complaint was filed for the said purpose after several months of the alleged occurrence. Accordingly, the trial Court took into account that as the plaintiff was working in the Railway Department and was earning Rs. 3,700/- per month, came to the conclusion that the plaintiff was entitled to Rs. 73,700/- which included the amount spent on medicine, conveyance, treatment in the hospital, and accordingly, decreed the suit.

An appeal was field before the lower appellate Court which was dismissed on 18.03.2010. Accordingly, the present regular second appeal has been filed.

Counsel for the appellant argued that the Courts below were not justified in coming to the conclusion that the injuries were caused by the defendants and that the interest granted on the amount was successive. The fact that the defendants have been convicted by the Judicial Magistrate, 1st Class u/s 325/34 IPC is a factor which also stands in the way of the appellants. The trial Court has taken into consideration the statement of the eye witness and even as per the case of the defendants themselves, a incident had taken place though deposed in a different manner by the defendants. The Doctor has been examined to show that the plaintiff had lost vision in the eye and he remained admitted in the hospital and ultimately the eye was removed. In the present suit, preponderance of probabilities has to be taken into consideration which has been done by both the Courts below. The Doctor has denied that it could be a self-suffered injury and an independent person has deposed regarding the incident.

Keeping in view the fact that a suit has been filed and for a wrongful act, the person himself is responsible for his act for causing an injury in view of Section 1A of the Fatal Accidents Act, 1855, the Courts below were justified in awarding the compensation for the loss of one eye. The present case, though tried under the general law for damages, would also fall within the purview of the provisions of the Fatal Accidents Act, 1855, Section 1A of the Act reads as under:

1 A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before- mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.

The plaintiff had pressed for interest @ 10% per annum from the date of filing of the suit, i.e., 23.02.2000 till the realisation of the decretal amount which is the discretion of the Court as the amount became due from the date of the incident and when the surgery was done on the plaintiff on 03.03.1999, and therefore, the award of interest is meant to compensate the plaintiff and cannot be said to be excessive.There is no perversity in the findings of the Courts below. No question of law much less any substantial question of law arises in the appeal for the consideration of this Court. Accordingly, the appeal is dismissed and the judgments and decrees of Courts below are up-held.