R.S.A. No. 3481 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3481 of 2008 Date of Decision: 4.11.2008 Sukhwant Singh and others ...Appellants. Versus Balwinder Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Gurvinder S. Bhatti, Advocate for the appellants. AJAY KUMAR MITTAL, J. In this regular second appeal filed by the legal representatives of defendant-Bahadur Singh (who were impleaded as defendants No.1 to 7 before the trial court), challenge is to the judgment and decree dated 26.8.2008 passed by the first appellate court affirming that of the trial court dated 25.10.2007 vide which the suit of the plaintiff in forma pauper for recovery of damage and compensation on account of amputation of his right arm while working on the 'Toka Machine' of the defendants, was decreed. Previously also, the suit of the plaintiff was decreed by the trial court vide judgment and decree dated 18.7.2001 for the recovery of Rs.1,98,000/- along with interest at the rate of 6% per annum. Against R.S.A. No. 3481 of 2008 -2- the same, defendant Bahadur Singh preferred an appeal bearing Civil Appeal No. 70 dated 24.8.2001 before the lower appellate court which vide judgment and decree dated 7.5.2002, allowed the appeal and by setting aside the judgment and decree dated 18.7.2001 passed by the trial court, remanded the case to the trial court for fresh decision on the issues framed by the appellate court. The plaintiff filed a suit for recovery of damages and compensation to the tune of Rs.2,00,000/- as forma pauperis and was allowed to file the suit as such by the trial court vide order dated 4.11.1997. It was pleaded that the original defendant-Bahadur Singh was a neighbur of the plaintiff and on 12.3.1995 at about 7.00 PM called him to work on his Toka Machine which was working with a diesel engine, as no member of his family was present. The plaintiff agreed to work on the Toka Machine and the defendant was to control the diesel engine and its speed. It was further pleaded that when the plaintiff was in progress to start the work on machine, the defendant started the engine and let loose its speed all of a sudden rashly and negligently without warning the plaintiff, as a result of which the circles of the Toka Machine increased at a very high speed. The defendant did not stop the engine in spite of the cries of the plaintiff and as a result of which, his right arm was dragged in the Toka Machine and was amputated 4” below the elbow joint. Amarjit Singh and Harbax Singh who witnessed the occurrence, removed the patta (belt) of the machine and got freed the arms of the plaintiff from the Toka Machine. It was also pleaded that the plaintiff was 22 years of age and had been deprived of his right arm for whole of his life and had, thus, become disabled permanently R.S.A. No. 3481 of 2008 -3- entitling him to claim compensation and damages from the defendant. According to the plaintiff he had spent a sum of Rs.40,000/- on his treatment and suffered damages to the extent of Rs.25,000/- on account of pain and suffering and filed the suit for recovery of Rs.2,00,000/- as compensation. To controvert the averments made in the plaint, the defendant filed a written statement raising various preliminary objections. It was pleaded that the defendant never called the plaintiff to work on his Toka Machine and that his arm was not amputated while working on his Toka Machine. It was further pleaded that the father of the plaintiff had caused amputation of the arm of the defendant and he had filed a case in that regard which was pending before the Civil Judge (Senior Division), Ludhiana. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. As mentioned above, in appeal filed by the defendant, then District Judge, Ludhiana while remanding the case framed the following issues for fresh decision thereon by the trial court:- “1. Whether the right arm of the plaintiff was amputated while he was working on a Toka Machine on 12.3.1995 at the asking of the defendant? OPP 2. Whether the amputation of right arm of the plaintiff had taken place on account of rash and negligent act of the defendant? OPD 3. whether the plaintiff is entitled to any compensation by way of damages on account of R.S.A. No. 3481 of 2008 -4- amputation of his right arm? If so, how much and from whom? OPD 4. Whether the suit filed by the plaintiff was not maintainable in the present form? OPD 5. Whether the Civil Court had no jurisdiction to try and decide the present suit? OPD 6. Relief.” The trial court took issues No.1 to 3 together being interconnected and on the appreciation of the oral as well as the documentary evidence adduced by the parties decided the same in favour of the plaintiff holding that on 12.3.1995, the right arm of the plaintiff was amputated due to rash and negligent act of the defendant. The trial court further held the plaintiff entitled to the recovery of Rs.1,98,000/- (Rs.1,92,000/- as damages and Rs.6000/- as medical expenses) along with interest at the rate of 6% per annum from the date of filing of the suit till the date of realization. Accordingly, the suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 25.10.2007. Feeling aggrieved, the legal representatives of the defendant-Bahadur Singh took the matter in appeal and the lower appellate court vide judgment and decree dated 26.8.2008 affirmed the findings recorded by the trial court and dismissed the appeal. I have heard the learned counsel for the appellants and perused the impugned judgments with his assistance. Learned counsel for the appellant has argued that the pleadings and the evidence available on record had not been appreciated by the courts below in their correct perspective. However, R.S.A. No. 3481 of 2008 -5- he could not point out any illegality or perversity in the judgments and decrees passed by the courts below warranting interference by this court in the regular second appeal. Learned counsel for the appellants has made an endeavour to persuade this Court to re-appreciate the evidence available on record so as to differ with the findings recorded by the courts below but the same does not fall within the domain of Section 100 of the Code of Civil Procedure. The courts below have recorded a finding of fact that on 12.3.1995 the right arm of the plaintiff was amputated due to rash and negligent act of the defendant. No question of law, much less a substantial question of law arises in this appeal. Finding no merit in this appeal, the same is hereby dismissed with no order as to costs. November 4, 2008 (AJAY KUMAR MITTAL) gbs JUDGE