Sohan Singh and Another vs Nawab Deen and Another

R.B. Misra, J.—The present Original Side Appeal (OSA) has been preferred u/s 10 of the Delhi High Court Act, as applicable to the State of Himachal Pradesh, read with Clause-10 of the Letters Patent Act and Section 96 CPC against the judgment and decree dated 2.4.2002, passed in Civil Suit No. 14 of 1995, by learned Single Judge of this High Court.

The Plaintiff/Respondent No. 1 preferred above civil suit No. 14 of 1995 before learned Single Judge against the present Appellants/Defendants No. 1 & 3 as well as Respondent No. 2 herein as Defendant No. 2, claiming damages to the tune of Rs. 10,50,000/- in different heads, with future interest @ 12% per annum on account of bodily injuries caused to the Plaintiff/Respondent No. 1, by them, consequential loss of earnings during the period of treatment, medical expenses, future loss of income and personal dependency.

The pleadings were exchanged and issues were framed and after adjudicating, learned Single Judge, while decreeing the above suit vide its order dated 2.4.2002, has awarded the compensation of Rs. 1,20,000/- with interest at the rate of 12% per annum from the date of institution of the suit till realization thereof in favour of Plaintiff/Respondent No. 1 and against the Appellants/Defendants jointly.

The brief facts, necessary for adjudication of the case, are that the Plaintiff/Respondent No. 1, aged 29 years at the time of institution of the suit, was injured on 3.10.1991 by the stones pelted by Appellants/Defendants as a result of which the Plaintiff / Respondent No. 1 suffered great pain, remained under treatment till the date of institution of the suit and even thereafter became disabled to the extent of 75% and despite having spent huge amount on his medical treatment, he became unable to walk and talk properly and his eye sight was damaged. In reference to the same incident, a criminal case No. 42/2 of 1992 was also adjudicated in the Court of learned Sub Divisional Judicial Magistrate, Chopal wherein the Appellants/Defendants were acquitted for the alleged offences against them.

The Appellants/Defendants contested the claim and filed written statement. Keeping in view the pleadings and materials on record, following issues were framed:

(1) Whether the Defendants caused bodily injuries to the Plaintiff? OPP

(2) If issue No. 1 is proved, what is the extent of disability as suffered by the Plaintiff due to the injuries as caused to him by the Defendants? OPP

(3) To what amount of compensation the Plaintiff is entitled to recover from the Defendants? OPP

(4) Whether the suit is not maintainable?

(5) Whether the suit is time-barred? OPD

(6) Whether the defendants re not liable to pay any amount of compensation? OPD

(7) Relief.

The learned Single Judge took into consideration the testimony of DW-3 Sant Ram, the father of the Plaintiff, who visited the spot and found the Plaintiff lying there in the injured condition. PW-1, on medical examination of the Plaintiff on 3.10.1991 at 10 A.M., noted following injuries:

Patient semi conscious not responding to verbal command irritable;

Pulse 68 per minute regular, occasionally irregular;

B.P. 100/60 mm Mercury;

Bleeding from nose and mouth positive, no bleeding from ears;

Apparently all the limbs are normally moving;

Right pupil is constricted and not reacting to light;

Left pupil not examined due to the black eye and massive oedema of left eye - lid; and

All signs and symptoms suggestive of cerebral oedema (Head Injury).

Specific Examination:

Lacerated wound over the occipital area of scalp right side, two and half centimeters long and scalp thickness deep;

Massive oedema of left side of face, including upper part of same side of neck;

Black eye with massive oedema of left eye - lid. Left eye ball could not be examined; and

Signs and symptoms suggestive of suspected cerebral oedema.

The Plaintiff/Respondent No. 1 (PW-4), Shakinu Deen (PW-5) and Mohammad Rafique (PW-6) were examined. PW-4 has stated that when Appellants/Defendants Sohan Singh and Asha Devi started cutting grass from his Ghasni, he shouted from his house but they did not listen. When the Plaintiff/Respondent No. 1 went to the spot, the said Appellants/Defendants pelted stones on him resulting multiple injuries on him on his head, face and teeth and consequently he fell unconscious on the spot.

PW-5, Shakinu Deen, has endeavoured to support the version of Plaintiff/Respondent No. 1. However, in cross examination PW-5 has stated that when Appellants/Defendants were pelting stones he and Mohammad Rafique were first to reach on the spot and the Ors. came later. However, nothing is emanating from the statement of PW-5 that Defendant No. 3 Nazroo Devi also pelted stones on Plaintiff/Respondent No. 1.

PW-6, Mohammad Rafique, has also supported the version of the Plaintiff/Respondent (PW-4). In cross examination, PW-6 has stated that he was not aware that what talk took place between the parties and has further stated that the first stone was pelted by Asha Devi followed by Sohan Singh. As per the version of Appellants/Defendants, statements of PW-5 and PW-6 are not reliable as they contradicted their earlier statements regarding the occurrence by way of Ext.PW-5/DX and Ext.PW-6/DX1 made in the Court of Judicial Magistrate but PW-6 has not been confronted with any thing inconsistent to his former statement Ext.PW-6/DX-1, as such, the Appellants - Defendants cannot take any benefit of any inconsistencies made in the statement Ext.PW-6/DX-1. No specific portion containing inconsistent statement in statement Ext.PW-5/DX was put to PW-5 also to bring out the inconsistency in his statement. PW-5 was never asked that he had made any different/contradictory statement vide Ext.PW-5/DX. PW-5 had not been confronted with any inconsistent portion of his statement Ext.PW-5/DX, as no opportunity was given to explain anything inconsistent in his former statement Ext.PW-5/DX, as such, testimony of PW-5 and PW-6 was not taken as doubtful on the strength of Ext.PW-5/DX and Ext.PW-6/DX-1. As such, statements of PW-5 and PW-6 were taken to be corroborating the statement of the Plaintiff/Respondent/(PW-4) to the effect that Sohan Singh and Asha Devi caused injuries to Plaintiff/Respondent No. 1 by pelting stones.

Sant Ram (DW-3), in his cross examination, has admitted that Mohammad Rafique (PW-6) had informed him that the Plaintiff/Respondent No. 1 was hit with stones by Sohan Singh and his wife (Asha Devi). DW-3 has further stated that when he saw the Plaintiff / Respondent No. 1, he was vomiting blood but he has not noticed any injury on his head.

On the analysis of the statement of the complainant and the statements made on his behalf and on behalf of the Appellants/Defendants, learned Single Judge has rightly arrived at the findings that the Appellants/Defendants had caused injuries to Plaintiff/Respondent No. 1, as such, Issue No. 1 was partly rightly decided in favour of the Plaintiff.

So far the permanent disability of Plaintiff/Respondent is concerned, in addition to statement of Plaintiff himself as PW-4, statements of PW-2 Dr. R.C. Thakur, PW-3 Dr. B.K. Goel and PW-6 Mohammad Rafique read with disability certificate Ext.PW-2/A are relevant. In view of the certificate Ext.PW-2/A dated 4.2.1994, issued by a Medical Board consisting of Dr. D.S. Puri, Professor B.K. Goel (PW-3), Dr. Ravi Sharma and Dr. R.C. Thakur (PW-2), the Plaintiff was found to be physically disabled to the extent of 75% of permanent nature.

Whereas PW-2, Dr. R.C. Thakur, has stated that disability certified vide Ext.PW-2/A at 75% was because of the following:

i) Regarding epilepsy;

ii) Left side facial palsy including problem also; and

iii) Left side hemipersesis.

PW-2, however, has stated that disability to the extent of 75% was assessed by the ''Board'' and the aforesaid certificate was issued but in his cross examination he has admitted that so far as he is concerned, he was one of the members of the ''Board'' and other members of the Medical Board might explain the disability and he was not in a position to give the percentage of disability on each of the aforesaid points. PW-2 has further stated that the disability certified as 75% does not reflect the loss of working capacity or earning capacity of the Plaintiff and a person having such disability, can have children and can enjoy his normal sexual life. The statement of PW-2 does not clarify and prove the three aforesaid aspects of the disability in any manner to show its nexus with the injuries sustained by Plaintiff/Respondent No. 1.

PW-3, Dr. B.K. Goel, is one of the members of the Board constituted for the purpose, in his cross examination, has stated that on examination of the Plaintiff/Respondent No. 1, it was found that he was having poor vision in the left eye. According to PW-3, disability was due to loss of vision of one eye i.e. 30%. However, he has stated that this disability of vision could not be because of the injuries sustained by the Plaintiff, as such, statement of PW-3 does not prove that the disability regarding vision was due to the injuries sustained by the Plaintiff and due to the pelting of stones on him by Appellants/Defendants.

PW-2, Dr. R.C. Thakur, has stated that the Plaintiff was admitted in I.G.M.C. Hospital on 4.10.1991 and remained under treatment till 8.10.1991 and thereafter he was referred to PGI Chandigarh for CT Scan and on being referred back from PGI, the Plaintiff was kept under observation from 14.10.1991 to 21.10.1991 and thereafter he was discharged. The Plaintiff, however, was again admitted in the Eye Department of IGMC Hospital on 11.11.1991 with the complaint that he was unable to close his left eye and was discharged on 19.11.1991 after noticing considerable improvement in his eyes. The statement of PW-2, as such, supports the Plaintiff/Respondent No. 1 only to the limited extent that there were injuries on the body of Plaintiff and the treatment thereof was made. Therefore, in view of the testimony of all these medical experts, it appears that the medical evidences fall short of proving that there was permanent disability, as certified vide Ext.PW-2/A.

Plaintiff/Respondent/(PW-4) himself has not supported the contents of Ext.PW-2/A on material particulars as he has stated that "I received injuries in my head, nose, whereafter my hearing aid has stopped. Some teeth were also broken. My face has tilted.... I have been rendered totally useless because of the aforesaid injuries. I cannot walk. I cannot stand nor can I sleep properly. If I want to go somewhere I cannot go without the help of someone." However, PW-4 has not stated that at the time before the Court that he was having weak eye sight because of the injuries. There is nothing in medical evidence about the loss of hearing capacity or loss of teeth of the Plaintiff nor there was anything about disability of Plaintiff/Respondent No. 1 that he cannot stand and walk.

In view of the statement of PW-2, Plaintiff/Respondent No. 1 was discharged from hospital after treatment for his bodily injuries and similarly he was discharged after having been treated for eye problem after he had shown improvement vide Ext.PW-2/C. For epilepsy, he was treated in May 1993 and was discharged when the disease was controlled as he was admitted and treated for epilepsy after considerable time of having sustained injuries. According to PW-2, subsequent treatment of the Plaintiff, OPD slips, Ext.PW-2/E, give the details of the initial examinations. At least two of such slips show past history of fall and cannot be said to be connected with the bodily injuries caused to the Plaintiff by Appellants/Defendants. Keeping in view the above evidences, it is not proved that the Plaintiff/Respondent No. 1 suffered any permanent disability because of the injuries caused to him by the Appellants/Defendants, as such, the issue was accordingly decided against the Plaintiff/Respondent No. 1.

Regarding Issues No. 3 and 6, learned Single Judge observed that in view of the findings on Issue No. 1, Plaintiff/Respondent No. 1 was entitled to be compensated for loss of income during the period he could not do the work because of bodily injuries and medical expenses but Defendant No. 2 was not liable to pay any compensation to the Plaintiff/Respondent No. 1. Initially the Plaintiff/Respondent No. 1 has shown his monthly income as Rs. 10,000/- as stated by his father (PW-6), however, it was not believed as Plaintiff was a muleteer having three mules and was agriculturist, as such, his monthly income was assessed at Rs. 5000/- by the learned Single Judge and the Plaintiff/Respondent No. 1 was awarded compensation of Rs. 20,000/- for loss of income. The Plaintiff / Respondent No. 1 is resident of Tehsil Chopal and in view of the statements of PW-1, PW-2, PW-5, PW-6 and DW-5, the Plaintiff/Respondent No. 1 was treated for the injuries sustained by him at Nerwa, Shimla, PGI Chandigarh and in IGMC Shimla twice. In absence of direct or documentary evidence regarding the expenditure incurred on the treatment for the injuries sustained by him on guess work only, an amount Rs. 50,000/- was awarded by learned Single Judge towards the expenses incurred on medical treatment/transportation etc., which, in our considered view, is excessive in the facts and circumstances of the case.

We have carefully gone through the impugned judgment as well as the statements of the witnesses and materials on record. We are of the considered view that learned Single Judge has rightly arrived at the findings that the Plaintiff/Respondent No. 1 has sustained the injuries due to pelting of stones in the hands of the Appellants / Defendants herein. However, the injuries were not such causing permanent disability, contrary to that as per version of Plaintiff/Respondent No. 1 as he was in a position to work, walk and as subsequently he has never reported to the hospital for any treatment. No documentary evidence has been produced regarding the expenditure incurred on the treatment and on attendant, therefore, Learned Single Judge was not legally justified to award the compensation excessively on guess work only when no documentary evidence of monthly income was also brought for the Plaintiff/Respondent No. 1. Loss of future earning, medical expenses, transportation and future personal dependency could also not be assessed in the manner the assessment is made in respect of compensation under the Motor Vehicles Act. The claim of compensation in the present case cannot also be assessed vis-�-vis second schedule provided in Section 163A of the Motor Vehicles Act, 1988 regarding compensation for third party fatal accident/injury cases, claim where multiplier system is applied and general damage is assessed including medical expenses keeping in view the actual expenses incurred on the injured person in case of injuries and disabilities on pain and suffering and medical expenses actually incurred supported by bills and vouchers and as per formula prescribed therein. In the facts and circumstances, the Plaintiff/Respondent No. 1 could not prove anything about the above mentioned aspects on the basis of the documentary evidence except sustaining of injuries which had affected his normal functioning at the relevant time and now he is able to work, walk and perform duty. The stand of Appellants/Defendants that since they were given benefit of doubt in Criminal Case No. 42 of 1993 in the Court of learned Sub Divisional Judicial Magistrate in Chopal, District Shimla and the case was decided in their favour, as such, the claim of Plaintiff is not justifiable. In our considered view, the judgment of the Criminal case is not binding on the Civil Court, however, such verdict and observations of criminal side Court could be read only as evidence for the purpose of evidence out of several evidences being considered by the civil Court in the light of the observations made by Hon''ble Supreme Court in Seth Ramdayal Jat Vs. Laxmi Prasad, and Shanti Kumar Panda Vs. Shakuntala Devi,

In the totality of the facts and circumstances, in our considered view, the present OSA No. 16 of 2002 is partly allowed in favour of the Appellants/Defendants and against the Plaintiff/Respondent No. 1 and the Plaintiff/Respondent No. 1 is only entitled to Rs. 60,000/- as compensation in respect of the bodily injuries, loss of earning and expenditures incurred on medical expenses including transportation charges etc. In addition, the Plaintiff/Respondent No. 1 is entitled to interest at the rate of 6% per annum on the above awarded compensation from the date of institution of the suit till realization thereof. The Plaintiff/Respondent No. 1, however, is not entitled to any compensation towards the future loss of income and personal dependency, therefore, the decree and judgment dated 2.4.2002 is modified to the extent indicated above.

CROSS-OBJECTION No. 5 OF 2003:

Shri Raman Sethi, learned Counsel for the Appellants/Defendants, has vehemently opposed the cross objection filed by Plaintiff/Respondent No. 1 and has submitted that cross objection is not maintainable. It has also been argued that Plaintiff had claimed himself a poor person before learned Single Judge and on that pretext he was granted legal aid for contesting the suit and on that ground he did not affix the Court fees on the plaint. However, the Plaintiff while appearing as PW-4 and PW-6 (father of the Plaintiff) have claimed income of Plaintiff to be Rs. 10,000/- per month. In such circumstances, Plaintiff/Respondent No. 1 cannot be said to be a poor person, as such, he may be directed to affix Court fees on the cross objections. As has been submitted by Mr. Raman Sethi, the Plaintiff/Respondent No. 1 cannot be allowed to take benefit of claiming enhancement in compensation without paying Court fees, as the Plaintiff/Respondent No. 1 has obtained legal aid by concealing material facts and Plaintiff has not filed any replication to controvert such assertions. As has been submitted by Mr. Raman Sethi, as per the statement of PW-1 in the civil suit except for facial weakness, Plaintiff/Respondent No. 1 could undertake normal pursuits as his hands and legs were working properly and loss of earning capacity was not assessed by the medical experts i.e. PW-2 and PW-3. As per medical experts, Plaintiff/Respondent No. 1 was discharged on 26.5.1993 and thereafter he never visited the hospital and was never given treatment thereafter. PW-2 as a medical expert has indicated that after his discharge Plaintiff/Respondent No. 1 did not come to him for treatment. Permanent disability and loss of earning capacity is not substantiated from the deposition of DW-1 Joban Dass, Pradhan of Gram Panchayat. As per statement of DW-1, the Plaintiff/Respondent No. 1 is attending to his normal pursuits. DW-2, Digvijay Singh, has stated that the Plaintiff/Respondent No. 1 was engaged by him for carrying tins of resin from jungle to depot which is at a distance of two kilometers on his back. In view of the statement of DW-3 Sant Ram made in cross examination, it is wrong to suggest that the Plaintiff/Respondent No. 1 is a disabled person rather he does all the routine work. DW-5 and DW-6 have negated the suggestion that Plaintiff/Respondent No. 1 has become permanently disabled and is unable to earn his livelihood. In these circumstances, there could not be the loss of future earning. None of the medical experts, examined by the Plaintiff/Respondent No. 1, has assessed the loss of earning capacity of the Plaintiff.

In view of our finding recorded in OSA No. 16 of 2002, cross objection No. 5 of 2003 is accordingly dismissed.