IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A. No. 154 of 2003. Judgment reserved on : 30.11.2010 Date of decision : 3.1.2011 Rajesh Kumar and another …Appellants. Versus Pohlo Ram and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. R.K.Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate. For the Respondents : Mr. Rajiv Jiwan, Advocate for respondents No.1 to 4. Kuldip Singh , Judge The defendants 2 and 4 have come in appeal against judgment, decree dated 8.4.2003 passed by the learned District Judge, Bilaspur in Civil Suit No. 6 of 1999 decreeing the suit of respondent No.1, who was plaintiff No.1 and granted him compensation of ` 97,400/- and the amount was ordered to be paid by appellants alongwith proportionate costs. It has also been held 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. yes 2 that respondent No.1 shall be entitled to interest at the rate of 9% per annum on the amount of ` 97,400/- from the date of decree i.e. 8.4.2003 till realisation. The suit of respondent No.1 against others was dismissed. 2. In fact, four persons namely Pohlo Ram, Satya Pal, Shiv Dei and Ramku Dei had filed suit for damages amounting to ` 2,29,220/- against Nathu Ram, Rajesh Kumar, Sarita, Gopala Ram and Nikki Devi alleging that on 14.6.1997 at about 6.00 p.m. all defendants formed an unlawful assembly, armed with sticks and attacked plaintiffs and caused multiple injuries to the plaintiffs. Satya Pal plaintiff No.2 lodged FIR Ex.PA at Police Station, Barmana. The defendants had caused permanent injury to the left leg of plaintiff No.1. He remained under treatment for about two years but still he has not recovered. He could not walk. The plaintiff No.1 had claimed ` 1,40,000/- compensation on account of injuries suffered by him at the hands of the defendants. He has also claimed an amount of ` 5,000/- on account of treatment, ` 12,050/- on account of conveyance charges, ` 12,170/- on account of incidental charges. 3. The plaintiffs No.2 to 4 had claimed ` 20,000/- each as compensation on account of injuries sustained by them at the hands of defendants. The plaintiffs have thus claimed in all ` 2,29,220/- on account of mental and physical sufferings. 4. It has been alleged that plaintiffs had asked the defendants through registered notice to compensate them but without any result and ultimately the plaintiffs had filed the suit. 3 5. The suit was contested by defendants No.1 to 5 by filing written statement in which they have taken the objections of limitation, lack of cause of action. They have denied that they have caused any injury to the plaintiffs. The allegations against defendants No.1 to 5 were false and they have been already acquitted vide judgment dated 18.3.2000. It has been alleged that plaintiff No.1 has not suffered any permanent injury nor he had spent any amount on his treatment. The defendants denied the claim of all the plaintiffs. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendants had caused injuries to the plaintiffs, as alleged? OPP 2. If issue No.1 supra is proved, whether the plaintiffs are entitled to recover damages to the tune of ` 2,29,220/- from the defendants ?OPP 3. Whether the suit is barred by limitation ? OPD 4. Whether the plaintiffs have no joint cause of action? OPD 5. Relief. The issue No.1 was answered in affirmative, under issue No.2, the plaintiff No.1 was allowed compensation ` 97,400/- against defendants 2 and 4, issues No.3 and 4 were answered in negative and ultimately the suit was decreed in favour of plaintiff No.1 and against defendants 2 and 4 as per operative part of the judgment dated 8.4.2003. 7. The defendants No.2 and 4 have assailed the impugned judgment, decree dated 8.4.2003 on the grounds that there were two cross criminal cases. In one case the plaintiffs were the complainants, in the other case the defendants were complainants. 4 In both the criminal cases, the accused were acquitted. The plaintiffs were aggressors. The learned District Judge has failed to take into consideration the evidence recorded in the criminal court. 8. The perusal of statements of PWs in the suit indicates that there are material contradictions. The learned District Judge has erred in decreeing the suit against defendants No.2 and 4. The allegations in the plaint are against all the defendants and all of them have been acquitted by the criminal court. The medical evidence has not supported the statements of PWs 2, 3 and 4. The medical evidence has not ruled out the possibility of injuries due to fall. The plaintiffs have failed to prove which injury has been caused by whom. 9. The learned District Judge has not appreciated that PWs 5 to 8 are closely related to each other. All of them were accused in criminal case and were interested witnesses. The impugned judgment, decree on the basis of medical evidence on record are not sustainable. 10. The court below has erred in quantifying the damages. The quantification of the damages is based upon inadmissible evidence. The appellants have ultimately prayed for dismissal of the suit. 11. The learned counsel representing the respondents No.1 to 4 has supported the impugned judgment, decree. He has submitted that the learned District Judge has rightly decreed the suit on the basis of material on record. The damages awarded to the respondent No.1 are on the conservative side in view of the injury 5 inflicted by respondent No.1 and disability sustained by him due to injury. He has prayed for dismissal of the appeal. 12. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to the evidence which has come on record. PW-1 HC Rajinder Kumar has proved FIR No. 80/1997 Ex.PA, Police Station, Barmana. He has also proved FIR No. 81 of 1997 Ex.DA dated 14.6.1997, Police Station, Barmana. 13. PW-2 Dr. S.P.Dhiman has stated that on 14.6.1997 he had examined Pohlo Ram and issued MLC Ex.PA. He had found the following injuries:- “1. Lacerated wound above the left knee joint 3cm of size 1.2 cm x 0.8 cm x 0.9 cm bleeding profusely, white coloured trouser soiled with blood. 2. There is swelling over the left knee joint swollen and movements are restricted.” He has examined other injured also on that date. In cross- examination, he has stated that the injuries described by him in the examination-in-chief of all the persons could have been caused in a scuffle and by fall. PW-3 Dr. N.K.Sankhya has stated that on 16.6. 1997 injured Pohlo Ram was referred for X-ray investigation by Dr. S.P. Dhiman. X-ray film No. 174 dated 16.6.1997 in respect of Pohlo Ram was taken by Ranjit Singh, Radiographer under his supervision. On examination of X-ray film, he found comminute fracture of distal part of left femur. He gave X-ray report dated 16.6.1997 Ex.PE. In cross-examination, he denied that he did not medically examined Pohlo Ram. 6 14. PW-4 Dr. Mukand Lal , Professor Department of Orthopaedics, Dr. R.P.Govt. Medical College, Tanda has stated that on 3.9. 2001 he had examined Pohlo Ram. He was admitted in IGMC, Shimla from 18.6.1997 to 27.8.1997 vide C.R. No. 124359/97. He had once operated the patient during this period. The follow up of the patient was still continuing. He had last time examined him on 12.12.1998. He has proved Ex.PE discharge slip which bears his signatures. He has also proved prescription slip Ex.PF, another prescription slip Ex.PG in the hands of Dr. J.P.Sharma. He has also proved prescription slips Ex.PH and Ex.PJ in the hands of Dr. Pawan Thakur. He identified Pohlo Ram in the Court and stated that patient had not cured till he had examined him last. In cross-examination he has stated that fracture in question, could be caused by fall and by striking against the hard object. 15. PW-5 Pohlo Ram has stated that on 16.6.1997 at about 6.15 P.M. the defendants quarreled with him, his family, Satya Pal, Shiv Dei and Ramku. The defendants gave them beatings with lathis. He was given beatings by Gopala Ram and Rajesh. His left leg was broken. The police came to the spot after the occurrence. He was carried in a cot upto road and thereafter in a jeep at Panjgai hospital where he was medically examined. He was referred to District Hospital and then to IGMC, Shimla where he remained for two months. His leg was operated twice at Shimla and for this purpose his skin from belly was removed for grafting. Satya Pal and Ramku during this period remained on attendance with him. He has not recovered fully from the fracture of the leg nor he can put weight on the leg nor he can do any work. He walks with the help of 7 crutches. Now he is not in a position to walk. He incurred expenses ` 12,050/- on taxi. On medicine, he has spent ` 5,000/-. He has claimed ` 1,40,000/- on account of mental and physical injuries. He has issued notices Ex.PA, Ex.PB, Ex.PC and Ex.PD before filing the suit. The notice was delivered to Nathu Ram vide acknowledgement Ex.PA/7. The notice was delivered to Gopala vide acknowledgement Ex.PA/11. He has placed on record cash memos mark X/1 to mark X/17, taxi bills mark Y/1 to mark Y/13. 16. In cross-examination, PW-5 has stated that in the criminal case the defendants were acquitted by the learned Judicial Magistrate 1st Class, Bilaspur. He has stated that for this very incident, a cross case was instituted against him and others but they were acquitted. He has denied that the cattle go to forest through fields. He has denied that on the date of occurrence, they had stopped the goats of the defendants. On the contrary on the date of occurrence, four goats of the defendants entered their fields as a result of which the dispute had arisen. The occurrence took place in his courtyard and not in the fields. He has stated that his statement Ex.DX was recorded in the criminal court on 27.1.1999. He has denied portions A to A and B to B of his statement Ex.DX, but admitted portion C to C of statement Ex.DX. Gopala and Rajesh hit him with danda on his leg. 17. PW-6 Smt. Goga Dei has stated that occurrence took place in the courtyard of Pohlo, who was given beatings by Gopala and his son with lathis. In cross-examination, she has stated that she had come to Ramku, her real sister, who is wife of Pohlo. The injury was received from the lathi of Gopala. She was also an 8 accused regarding this very occurrence. She has admitted her statement Ex.DY and has stated that she has not stated portions D to D and E to E of Ex.DY. PW-7 Smt. Ramku wife of Pohlo has stated that occurrence took place in their courtyard. Pohlo was given beatings by Gopala Ram and Rajesh with dandas as a result of which leg of Pohlo got fractured. She and Satya Pal attended Pohlo Ram in hospital. She could not do any work for two months. In cross-examination, she has stated that only Gopala gave beatings with danda. She has denied that defendants were given beatings by plaintiffs. 18. PW-8 Satya Pal son of Pohlo Ram has stated that defendants raised the dispute on 14.6.1997, his father Pohlo Ram suffered two injuries and one fracture of the leg. He was got treated by him and his mother at Shimla, Bilaspur. Ex.PW-8/A to Ex.PW- 8/R are the cash memos of the expenses of money which he had incurred on medicines. Ex.PW-8/S, Ex.PW-8/T, Ex.PW-8/U, Ex.PW-8/V to Ex.PW-8/Z3 and Ex.PW-8/Z4 are the taxi receipts, he spent the money. Ex.PW-8/A1 is the cash memo issued by Manchanda and Company. Ex.PW-8/A2 is the cash memo of crutches, the expenses incurred by him are shown in the accounts Ex.PW-8/A4 prepared by him. In cross-examination, he has denied that he had not paid the taxi bills nor spent for medicines. He has stated that he has heard his statement Ex.DZ dated 13.11.1998 but he has not stated portion A to A and C to C of the statement. 19. Gopala Ram in his statement has stated that he had not inflicted any injury on the leg of Pohlo Ram. On 14.6.1997 plaintiffs attacked them, they pelted stones on their family and pushed them. 9 Two reports were lodged and both the parties were acquitted in the criminal cases. In cross-examination, he has stated that in the criminal case in which they were acquitted, the appeal is pending in the High Court. He has shown his ignorance that Pohlo Ram has spent ` 12,050/- on taxies and incidental expenses ` 12,170/-. He said that he does not know that on medicines ` 5,000/- were spent. He said that he does not know that in the occurrence the leg of Pohlo Ram was fractured. He also said that he does not know how the plaintiffs received injuries. The counsel for the defendants has tendered in evidence the copy of judgment dated 18.3.2000 Ex.DA/1. 20. The learned counsel for the appellants has submitted that the plaintiffs have examined only interested witnesses, there were two cross cases in which both the sides were acquitted. There are material contradictions in the evidence led by the plaintiffs in the suit. The plaintiffs have improved their case in the suit. The first version was recorded in the criminal case where the defendants were acquitted. The place of occurrence in the suit has been wrongly projected as courtyard of Pohlo Ram. The medical evidence does not support the case of the plaintiffs, who were aggressors. The weapons allegedly used by the defendants for inflicting injuries have not been produced. It has come in medical evidence that the injuries could be caused in scuffle and by way of fall. The suit has been filed against five plaintiffs on the allegations that all of them gave beatings to the plaintiffs. In these circumstances, the learned District Judge has erred in returning the finding that appellants inflicted injuries on Pohlo Ram, the suit 10 against defendants has been wrongly decreed. The quantum of damages have been assessed without following any acceptable legal principle. The court below has erred in relying inadmissible evidence. 21. Ex.PA is the copy of FIR No. 80/97 dated 14.6.1997, Police Station, Barmana at the instance of Satya Pal, in which it has been stated that Gopala Ram and Raju Ram with dandas in their hands entered in his courtyard and gave beatings with dandas, kicks and fist blows to his mother, father and sister. The father of the complainant suffered injury in his left leg. Ex.DA is the copy of FIR No. 81/97 dated 14.6.1997, Police Station, Barmana recorded at the instance of Sarita Devi. Ex.PA is the MLC dated 14.6.1997 of Pohlo Ram showing injuries as noticed above. Ex.PE is the X-ray report dated 16.6.1997 of Pohlo Ram indicating therein evidence of comminute fracture of distal part of left femur. Ex.PE indicates Pohlo Ram was admitted on 18.6.1997 in IGMC, Shimla and discharged on 27.8.1997. In Ex. PE check up of Pohlo Ram upto 12.11.1997 has been shown. Ex.PF is the prescription slip of Pohlo Ram of 12.12.1997. In Ex.PF check up of Pohlo Ram is recorded upto 4.2.1998. Ex.PH is the prescription slip of Pohlo Ram dated 28.10.1998 in which check up of Pohlo Ram has been recorded upto 6.3.1999. Ex.PG is another prescription slip dated 2.6.1999 of Pohlo Ram. Ex.PJ is the prescription slip dated 29.5.1998 of Pohlo Ram, it shows the check up of Pohlo Ram upto 18.7.1998. Ex.PW-8/S is the taxi receipt dated 15.6.1997 of ` 550/-. Ex.PW-8/A- 1 is the cash memo of ` 789/- of Manchanda and Company in the name of Pohlo Ram. Ex.PW-8/A-2 is the receipt of ` 140/- for 11 purchasing crutches for Pohlo Ram. Ex.PW-8/T and Ex.PW-8/U are the taxi receipts of ` 950/-. Ex. PW-8/V, Ex.PW-8/W, Ex.PW-8/X, Ex.PW-8/Y, Ex.PW-8/Z, Ex.PW-8/Z-1, Ex.PW-8/Z-2 and Ex.PW- 8/Z-4 are the taxi receipts of ` 1,000/- each. Ex.PW-8/Z-3 is the taxi receipt of ` 1,500/-. All these receipts pertain to Pohlo Ram. Ex.PW-8/A to Ex.PW-8/H and Ex.PW-8/J to Ex.PW-8/R are the receipts of medicines. 22. Ex.DX is the statement of Pohlo Ram, Ex.DY is the statement of Smt. Goga Dei, Ex.DZ is the statement of Smt. Ramku Dei. Ex.D-3 is the statement of Satya Pal in criminal case. Ex.DA/1 is the copy of judgment in case No. 173/2 of 1998 decided on 18.3.2000 in which Satya Pal and Ramku and Shiv Dei were the accused. Ex.P-13 is the notice dated 22.2.1999 addressed to Rajesh Kumar which was given at the instance of Pohlo Ram. Ex.PD is the notice dated 22.2.1999 issued to Gopala Ram at the instance of Pohlo Ram. 23. The defendants more particularly the appellants were acquitted in the criminal case but acquittal of the defendants in the criminal case in itself is no ground for dismissal of the suit which is to be decided in accordance with evidence which has come on record in the suit. The occurrence has not been denied by the appellants, only the manner how the occurrence took place that has been denied. PW-5 Pohlo Ram has specifically stated that beatings were given to him by Gopala Ram and Rajesh and his left leg was broken. He was treated at Panjgai, then District Hospital and then in IGMC, Shimla where he remained for two months. His leg was operated twice and grafting of the skin was done by removing from 12 his belly. He was attended by his son Satya Pal and wife Smt. Ramku. He has not recovered fully and cannot put weight on his leg and cannot do any work. He walks with the help of crutches. PW-6 Smt. Goga Dei has stated that Pohlo was given beatings by Gopala and his son with lathis. PW-7 Smt. Ramku wife of Pohlo has stated that Pohlo was given beatings by Gopala Ram and Rajesh with dandas, as a result of which leg of Pohlo got fractured. PW-8 Satya Pal son of Pohlo has stated that his father Pohlo Ram suffered two injuries and one fracture of the leg. He has proved cash memos of medicines and receipts of taxi etc. 24. The learned counsel for the appellants has submitted that plaintiffs has examined interested witnesses inasmuch as PW5 to PW8 are related. The occurrence took place in the courtyard of Pohlo Ram, therefore, his family members are the natural witnesses. PW-6 Smt. Goga Dei is the sister of Smt. Ramku wife of Pohlo Ram and she has stated that she had come to Smt. Ramku on a visit at the relevant time. Thus, PW-6 is also a natural witness of the occurrence. It has been submitted by the learned counsel for the appellants that PW-7 Smt. Ramku has stated that danda blow was given only by Gopala and thus she has contradicted the case of the plaintiffs that danda blows were given by Rajesh and Gopala. The statement of PW-7 Ramku cannot be rejected or otherwise doubted merely because she has stated that danda blow was only given by Gopala. The statement of a witness depends upon various factors such as his observation, how he comprehended the facts and the occurrence. In substance PW-7 Smt. Ramku has supported the 13 plaintiffs case. There is positive evidence that Pohlo Ram was given beatings by appellants. 25. The learned counsel for the appellants has submitted that the medical evidence has not supported the case of the plaintiffs. The medical evidence has not ruled out the possibility that the injuries on the person of Pohlo Ram could be caused in scuffle and due to fall. It has not come in medical evidence that injuries sustained by Pohlo Ram including fracture could not be caused by danda blows. A typical type of injury is possible more than one way, simply the doctor has stated that injury can be caused in some other way also that does not mean that the same injury cannot be caused by other alternative way from which it can be caused. The civil suit is to be decided on the basis of preponderance of evidence whereas in criminal case the proof beyond reasonable doubt is required. In the present case, there is positive ocular evidence on record that appellants have given beatings with dandas to Pohlo Ram which has resulted injuries on the person of Pohlo Ram including fracture of his left leg. There is no medical evidence on record that injuries sustained by Pohlo Ram cannot be caused by danda blows. 26. The learned counsel for the appellants has submitted that dandas which were allegedly used by appellants has not been produced in the Court and, therefore, evidence of the plaintiffs that the injuries were caused to Pohlo Ram with the beatings given by dandas cannot be accepted. The submission made by learned counsel for the appellants has no force inasmuch as the positive case of the plaintiffs is that injuries were inflicted on the person of Pohlo Ram by appellants with danda blows. The plaintiffs have 14 proved their case and appellants could not disprove the case of the plaintiffs. Gopala Ram only appeared in the witness box and has stated that he does not know how the plaintiffs have sustained the injuries. At the risk of repetition, it is reiterated that the present matter has arisen out of civil suit and not from criminal case. After the proof of the case by the plaintiffs, the appellants cannot escape the liability merely by silence. The production of dandas with which the injuries were inflicted on the person of Pohlo Ram in the evidence was not absolute necessary in the facts and circumstances of the present case when on the basis of ocular evidence the plaintiffs have proved their case which has not been rebutted by the appellants. 27. The learned counsel for the appellants has submitted that the plaintiffs have projected the case that all the defendants have given beatings even though the plaintiffs has raised claim in the suit against all the defendants. It has been submitted that in these circumstances, the learned District Judge has erred in decreeing the suit only against appellants and in favour of Pohlo Ram only. There is no merit in this contention of the learned counsel for the appellants. The duty of the court is to appreciate the material on record and to remove chaff from the grain. In these circumstances, no fault can be found in the decree only on the ground that suit was filed against several defendants by several plaintiffs but decree has been passed only in favour of one plaintiff and against two defendants. The learned District Judge has closely considered the matter and after satisfying that only Pohlo Ram has 15 made out a case against appellants, the suit was partly decreed only against appellants. 28. The learned counsel for the appellants has lastly submitted that the quantum of damages assessed by learned District Judge are also wrong. The learned District Judge has taken the age of Pohlo Ram 66 years and on the basis of material on record has recorded a finding that Pohlo Ram had been laid off for three years. The income of Pohlo Ram was assessed at ` 30/- per day. The assessment of damages by learned District Judge on account of period of laid off at the rate of ` 30/- per day amounting to ` 32,400/- cannot be said to be on higher side or wrong. In view of nature of injuries, hospitalization of Pohlo Ram, expenses of medicine, transportation, mental and physical pain, lumpsum compensation of ` 50,000/- total amounting to ` 97,400/- decreed by learned District Judge is just and reasonable