RSA No.3736 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3736 of 2005 Date of decision: 25.3.2009 Kulwant Singh ......Appellant Versus Arjan Singh and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Manu K. Bhandari, Advocate for the appellant. Mr. Amandeep Singh, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for recovery of Rs.1,50,000/- with future interest at the rate of 18% per annum on account of damages for the injury caused to him by the respondents was dismissed and counter claim filed by respondents No.5 and 6 for recovery of Rs.11,042/- with proportionate cost on account of damages caused to tractor was decreed against him. As per the averments made in the plaint, there was a litigation between the parties and due to this, the respondents hatched a conspiracy against the family members of the appellant in pursuance of which on 18.6.1994, the respondents armed with weapons came in drunkard condition and a fight took place. FIR No.119 dated 19.6.1994 was got lodged with Police Station Samana against the respondents. Due to this fight, the appellant received gun shot in his left eye and because of that he suffered permanent disability which was more than 65% as the appellant had gone completely blind from left eye. After initial treatment the RSA No.3736 of 2005 2 appellant was referred to Rajindra Hospital, Patiala where he remained admitted for many days. Thereafter, the appellant was taken to many eye hospitals and he incurred expenses on his travelling and treatment etc. Thus, on account of these injuries the appellant claimed Rs.1,50,000/- on account of loss of the earnings and his earning capacity etc. and for the expenses incurred on travelling and treatment. The suit was contested by the respondents stating that they were not responsible for causing any injury to the appellant. It was further submitted that the appellant was an able bodied person who had suffered no disability nor he suffered in his earning capacity and as such, they were not liable to pay any compensation amount. Respondents No.5 and 6 also put-forth a counter claim that they were owners of Eicher tractor in question which was set on fire by the appellant which caused loss to the tune of Rs.75,000/- to them and as such, they were entitled to recover the aforesaid amount with interest at the rate of 18% per annum from the appellant. In the replication filed, averments made in the plaint were reiterated and those of the written statements were denied. After conclusion of evidence by the parties and hearing the arguments, the trial Court dismissed the suit of the appellant but decreed the counter claim of the respondents for recovery of Rs.11,042/-. Feeling aggrieved against the impugned judgment and decree of the trial Court, the appellant preferred an appeal before the Lower Appellate Court. Along with the appeal, the appellant also filed an application under Order 41 rule 27 CPC for allowing him to lead additional evidence by examining a serving doctor of Rajindra Hospital, Patiala so that disability of his left eye may be determined. It was claimed that earlier Dr.Navdeep Singh was called but he submitted during trial that record in RSA No.3736 of 2005 3 Rajindra Hospital, Patiala was not available qua his treatment due to the destruction of that record and as such it was averred that interest of justice demands that the appellant should be examined from a doctor of Rajindra Hospital, Patiala. The aforesaid application was dismissed by the Lower Appellate Court observing that it was for the appellant to establish that the injury to his left eye was a result of direct firing done by the respondents and it was for him to prove his case by producing relevant evidence. It was also observed that the additional evidence sought to be produced at this stage had not thrown any light upon the real controversy as to how the loss of vision of left eye was actually suffered by the appellant. It was further observed that the evidence sought to be produced by way of additional evidence at this belated stage was within the knowledge of the appellant at the time of leading evidence by him in the trial Court and it was not the case of the appellant that the evidence now sought to be adduced by way of additional evidence was not within his knowledge at the time of leading evidence in the trial Court or that it could not be produced earlier despite exercise of due diligence. Thus, the application for additional evidence filed by the appellant was rejected by the Lower Appellate Court. On merits also, the Lower Appellate Court on appreciation of evidence upheld the findings of the trial Court and dismissed the appeal filed by the appellant. Still not satisfied, the appellant has filed the present appeal challenging the aforesaid judgment and decrees of the Courts below. Challenging the judgment and decrees of the Courts below, learned counsel for the appellant has vehemently argued that the application for additional evidence has been rejected illegally by the Lower Appellate Court as the appellant had exercised due diligence in proving his case and there was no fault on his part as he had summoned Dr. Navdeep Singh from Rajindra Hospital to prove the extent of injuries caused to his RSA No.3736 of 2005 4 left eye. However, the aforesaid witness had clearly stated that the relevant record was not available due to its destruction after five years and thus, no adverse inference could be drawn against the appellant and the appellant ought to have been allowed an opportunity to lead additional evidence by examining a doctor from Rajindra Hospital. Learned counsel has also challenged the findings of the Courts below decreeing the counter claim against him on the ground that the same is not proved from the record and has prayed for acceptance of this appeal and for setting aside the judgment and decrees of the Courts below with further prayer for decreeing his suit as prayed and dismissal of the counter claim of the respondents. On the other hand, learned counsel for the respondents has supported the judgment and decrees of the Courts below and has argued that both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellant has failed to prove his case and thus, no substantial question of law arises and the appeal deserves to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees. The dispute in this case is as to whether the injury to left eye of the appellant resulting in its disability took place due to gun shots fired by the respondents or not? This question can be determined on appreciation of evidence available on record. It was for the appellant to establish that the injury on his left eye was the direct result of firing done by the respondents but the said fact has not been established as no specific reference to the injury on left eye has been made in FIR Ex.P-1. Besides that, there is no evidence to prove the extent of damage to the left eye. Undoubtedly, statement of PW-4 Dr. P.K. Mittal is on record to the effect RSA No.3736 of 2005 5 that on examination of the appellant he found left eye lid of the appellant in swollen and reddish condition. Admittedly PW-4 was not an eye specialist and thus, he refrained from expressing opinion as to whether there was any loss of vision to the left eye of the appellant or not? It is not disputed by the appellant that Dr. P.K.Mittal, had expressed inability to disclose the extent of loss of eye-sight. Not only this, as per the stand taken by the appellant after his initial examination by the aforesaid doctor, he was referred to Rajindra Hospital, Patiala and thereafter, according to him he also got treatment from some other hospitals i.e. Grewal Eye Institute, Chandigarh, C.M.C. Ludhiana, Karnal Eye Institutue, Karnal and from Dr. Jagmohan Singh of Delhi etc. etc. However, the appellant has not placed on record any evidence in this regard. It is also averred by the appellant that he incurred an expenditure of Rs.25,000/- on traveling to different places besides incurring expenditure on treatment. However, no such evidence has been brought on record to prove this expenditure. In view of the aforesaid facts, the prayer of the appellant to produce additional evidence by allowing the examination of a serving doctor from the Rajindra Hospital to determine the disability of his left eye at the appellate stage could not have been granted. It is not the case of the appellant that despite due diligence he could not get himself examined from a serving doctor of Rajindra Hospital to get determined disability of his left eye Rather the case of the appellant is that he had called Dr. Navdeep Singh from Rajindra Hospital. Thus, the appellant was quite aware of the nature of the evidence that could have been adduced to prove the facts relating to loss of eye sight. Thus, the appellant sought production of evidence which was to his knowledge at a belated stage before the Lower Appellate Court. Therefore, the Lower Appellate Court was right in law while holding that none of the ingredients attracting provisions of Order 41 rule 27 CPC were RSA No.3736 of 2005 6 made out by the appellant and the allowing of the application for additional evidence at this stage will be just an exercise in futility. Thus, no fault can be found with the findings of the Courts below as the appellant has failed to prove his case. I find no merit in this case. The learned counsel was also unable to find fault with regard to the findings of the Lower Appellate Court regarding counter claim. No merits. No substantial question of law arises. Dismissed. March 25, 2009 (RAKESH KUMAR GARG) ps JUDGE