IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.218 of 1985 Date of Decision: 11.10.2010 Mst. Isar Devi. ....... Appellant through Ms.Alka Sarin, Advocate. Versus Hukam Chand and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal has been directed against the judgments and decrees dated 4.8.1981 and 6.1.1984 passed respectively by the Sub Judge Ist Class, Nakodar (hereinafter described as `the trial Court') and the District Judge, Jalandhar (referred to hereinafter as `the first appellate Court') whereby the suit and the appeal of the plaintiff-appellant were dismissed. The plaintiff had filed a suit for recovery of Rs.90,000/- against the defendants-respondents seeking damages on account of death of her husband-Sant Lal by their wrongful act under Section 1-A of Indian Fatal Accidents Act,1855 (for short, `the Act'). It was averred that on 6.7.1974, R.S.A.No.218 of 1985 -2- .... an altercation ensued on account of a burning Angeethi having been put by the wife of defendant-Hukam Chand in front of the house of the deceased which was objected to by the plaintiff; that in the meantime, Sant Lal, Jai Kishan & Munish Kumar reached the spot and the defendants also assembled there with weapons, such as takuas and sottas; that the defendants caused injuries to the deceased; that fatal injuries were caused by defendants – Hukam Chand and Tej Bhan as a result of which Sant Lal died later on; that Manish Kumar and Jai Kishan, who are brothers of the deceased, also received injuries; that a criminal case under Sections 302, 149, 149 of the I.P.C. was registered against the defendants; that defendants- Hukam Chand and Tej Bhan were convicted & sentenced to rigorous imprisonment for five years by the Additional Sessions Judge, Jalandhar on 9.6.1975 and the other defendants were convicted for causing injuries to Munish Kumar and Jai Kishan; that defendant-Baldev Kumar was, however, acquitted; and that the appeal against the orders of conviction and sentence was pending in the High Court at the time of filing of the suit. The defendants, upon notice, appeared and filed their written statement denying the averments of the plaintiff and their liability to pay anything to her. The trial Court framed the following issues:- 1. Whether the defendants murdered Sant Lal husband of plaintiff?OPP 2. Whether the plaintiff is entitled to damages and R.S.A.No.218 of 1985 -3- .... compensation, if so, to what value?OPP 3. Whether the suit is bad for non-joinder of necessary parties?OPD 4. Relief. The trial Court, upon appraisal of the evidence on record, declined the prayer of the plaintiff and dismissed the suit. The first Appellate Court also dismissed the appeal of the plaintiff which has resulted in the filing of the instant appeal. Learned counsel for the plaintiff has contended that the findings recorded by the Courts below are perverse and are liable to be set aside. No one has put in appearance on behalf of the defendants to controvert the contentions of the learned counsel for the plaintiff. Consequently, this Court has been left with no option but to proceed with the case in the absence of any assistance on behalf of the defendants. After having heard the learned counsel for the plaintiff and perused the impugned judgments, as also the record, I am of the opinion that serious error of law has been committed by the trial Court as well as the first appellate Court. Both the Courts below proceeded to examine the evidence to establish the guilt of the defendants in committing the murder of the plaintiff's husband. That ought not to have been their endeavour. The incident in which the husband of the plaintiff died, was not in dispute. The defendants had already faced criminal prosecution in legitimate proceedings initiated against them upon an enquiry having been conducted by the police R.S.A.No.218 of 1985 -4- .... and most of them had been convicted and sentenced for the offences which they had committed. The scope of the proceedings before the trial Court ought to have been confined to the wrongful action of the defendants by which they caused injuries and ultimate death of the plaintiff's husband. The culpability of the defendants was not in issue and the Courts below were, thus, wrong in embarking upon a pursuit to establish the same afresh. The Courts below should have confined themselves to the parameters of assessing whether the action of the defendants was wrongful to justify a claim for damages and, thus, further examination of such a wrongful act which resulted in the death of the deceased and to see whether such action was wrongful and neglectful or not. If the facts of the instant case are to be seen, then it is evident that the quarrel erupted on account of minor incident where the wife of one of the defendants chose to place a burning Angeethi (stove of firewood) in front of the house of the plaintiff which was a cause of errant to the father of the deceased who was suffering from asthma. Upon exchange of hot words, the defendants came over there and caused injuries to the husband of the plaintiff and also to his brothers. Both the Courts below examined the issue to say that the fight erupted over a trivial issue and, therefore, the culpability of the defendants was not established, but as observed earlier, this was not the scope of the exercise which was expected to be undertaken by them. The very fact that the defendants came together, showed an intention of causing a wrongful act which they demonstrated when they inflicted injuries to the deceased and his brothers. R.S.A.No.218 of 1985 -5- .... Since the facts were not in dispute, this ought to have been sufficient for the Courts below to justify the plea of the plaintiff in a suit for damages. Section 1-A of the Act under which the proceedings were initiated by the plaintiff, reads as under:- “1.A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by andin the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively,for whom and for whose benefit such R.S.A.No.218 of 1985 -6- .... action shall be brought; and the amount so recovered, after deducting all costs and expenses,including the costs not recovered from the defendant, shall be divided amongst the beforementioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.” In the light of the aforequoted provisions, the only material which should have been analysed by the Courts below was as to whether the action of the defendants was wrongful and neglectful and which resulted in the injuries to or death of the victim. In my opinion, both the Courts below in the instant case faulted in establishing the culpability of the defendants afresh. Ostensibly this was done to examine as to which of the individuals was liable for such action, but, in the process, the Courts below overlooked the fact that all these persons had gathered together fully armed and actually caused injuries to the plaintiff's husband. The common intent to cause wrongful act was, thus, manifest in their action even though the extent of it may have been different and for which the Court of criminal jurisdiction adequately applied its mind to the material before it while ascertaining and determining the culpability and extent thereof to award justifiable punishment to them. Therefore, the substantial question of law which arises for consideration of this Court is thus:- 1. Whether in a suit for damages initiated under Section 1-A of the Act, were the Courts below justified in embarking upon the determination of the culpability of the culprits afresh, R.S.A.No.218 of 1985 -7- .... especially when the Criminal Court had already determined the same so as to deny the damages to the plaintiff? For the reasons which have been stated above, it is held that the Courts below fell in error in re-evaluating the role of the defendants to re- determine the culpability to deny the damages to the plaintiff, especially when the culpability already stood determined by the Court of criminal jurisdiction and the facts revealed a common intent to do a wrongful act which,in fact, was carried out by the wrong-doers and which resulted in the death of the plaintiff's husband for which she was legitimately entitled to damages as prayed for by her. The question of law is answered accordingly and the appeal is accepted, the impugned judgments and decrees are set aside and the suit of the plaintiff is decreed and she is held entitled to the damages as prayed for by her to be recovered from the defendants, who shall be liable to pay jointly as well as severally. The plaintiff shall also be entitled to interest on the amount of damages at the rate of 9% per annum from the date of filing of the suit till the date of actual realisation. October 11,2010 ( Mahesh Grover ) “SCM” Judge