Appealed against trial court decree awarding ₹1,36,000 for death of two sons due to sliding stones. Court upheld decree rejecting appellant's claim of lack of negligence and encroachment, relying on FIR and defendant's own witness statement.
Appeal failed and dismissed; no orders as to costs.; Pending applications disposed of.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 307 of 2008
Decided on: 7th April, 2015
Sh. Karan Singh .......appellant. Versus Smt. Cheeno and another ...Respondents. Coram The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 No. For the appellant: Mr. N.K. Thakur, Senior Advocate with Mr. Ramesh Chand Sharma, Advocate. For the respondents: Mr. Janesh Gupta, Advocate for respondent No. 1. Mr. D.S. Nainta and Mr. Virender Verma, Addl. A.Gs with Mr. Pushpinder Jaswal, Dy. A.G for respondent No. 2.
Dharam Chand Chaudhary, Judge (Oral)
Judgment and decree passed on 25.09.2008 by learned District Judge, Chamba in Civil Suit No. 1 of 2006 decreeing thereby the suit for the recovery of `1,36,000/- towards damages, respondent No. 1 herein (plaintiff in the trial Court) has sustained on account of death of her sons in an incident attributed to the
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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negligence on the part of the appellant-defendant, is under challenge in the present appeal.
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incident. Respondent No. 2 herein (defendant No.1 in the trial Court) was also found negligent having failed in its duty to have check over the Government land and allowed defendant No. 2 to dig the land in question and also to stack stones thereon in a negligent manner, hence the suit for recovery of `8,00,000/- against the defendants allegedly liable jointly and severally.
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PW-4 Shri Karam Singh, Lecturer in Government Senior Secondary School, Runuh Kothi, Tehsil Bharmour, District Chamba has proved the record pertaining to deceased Milap Chand, who was a student of 10th class. PW-5 Shri Mohinder Singh could not produce the summoned record being sent to this Court, hence is a formal witness. 7. In order to rebut the evidence produced by the plaintiff, defendant No. 2 has himself stepped into the witness box as DW-1 and also examined Shri Amar Singh, Tehsildar, Chamba as DW-2. The defendant in his cross-examination has denied he being in possession of the land in question and he having ever deployed labour to excavate the same for the purpose of raising construction as well as stacking of stones thereon. He admits the conviction by the trial Court in the case registered qua this incident and further tells us that the appeal preferred by him against his conviction and sentence is pending in the High Court. DW-2 Amar Singh, Tehsildar Sadar tells us that defendant No. 2 tried to encroach upon the Government land and had stacked heap of stones also there without the permission
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of the Government or its functionaries. This witness was allowed to be cross-examined by defendant No. 2. No doubt, he expressed his ignorance about the height of the heap of stones, however, denied that the stones were not stacked there by defendant No. 2. In his further cross-examination conducted on behalf of the plaintiff, he failed to disclose that defendant No. 2 had fenced the Government land from long time.
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No. 2 and as such, the Court below has erred in awarding a sum of `1,36,000/- without there being any basis for such determination. The falling of stones on the house of the plaintiff allegedly have been constructed unauthorizedly cannot be attributed to defendant No.2. The said defendant, no doubt, was convicted in a criminal case, however, the appeal he preferred against his conviction was challenged in the appellate Court. The impugned judgment whereby the damages have been awarded against him is not based upon the correct appreciation of the facts and law applicable to the given facts and circumstances.
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attention of this Court to the evidence available on record has contended that the death of Parshotam and Milap Chand, two sons of the plaintiff in the incident has duly been proved on record. Also that, the evidence as has come on record by way of own statement of DW-2 examined by defendant No. 2 himself leads to the only conclusion that the stones slided on the house of the plaintiff were stacked only by him and none-else. The registration of the FIR without any delay also substantiates the plaintiff’s case. Mr. Gupta has, therefore, urged that well reasoned judgment passed by learned trial Court on proper appreciation of the evidence available on record need not to be interfered with.
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The manner in which the incident did take place finds full support from the copy of FIR Ext. PW-3/A. As a matter of fact, this document contains very first version of the incident. This document implicates defendant No. 2 to be an offender and responsible for the incident, which had taken away the precious lives of two young sons of the plaintiff. Admittedly, defendant No. 2 has been convicted by the trial Court. An appeal, he preferred against his conviction and sentence is pending disposal in the appellate Court. The own statement of plaintiff and that of her sister-in-law Smt. Bimla (PW-10) and for that matter that of Arjun (PW-6), a labourer deployed by defendant No. 2 for digging work leads to the only conclusion that it is he who encroached upon the Government land, sloppy and in the shape of ‘Dhank’ and started leveling thereof, obviously for raising construction of the house. The stones extracted during the course of excavation of the land were stacked there recklessly and in a negligent manner. The protests thereto of PW-10 went unattended to as defendant No. 2 without paying any heed, ignored the same.
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The same, therefore, being not trustworthy cannot be relied upon.
April 7, 2015 (Dharam Chand Chaudhary) (naveen) Judge
3 issues framed by the court
Whether the plaintiff is entitled to recovery of damages for death of sons caused by negligence of defendants?
Whether the suit is maintainable against defendant No. 1 given plaintiff's alleged encroachment on government land?
Whether defendant No. 2 is liable for recovery of damages despite preferring appeal against criminal conviction?
Karan Singh
Cheeno
State
Dharam Chand Chaudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
