R. S. A. No. 2587 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2587 of 2008 Date of Decision : July 14, 2010 Surjit Singh Ramgaria .... Appellant Vs. Soma and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. M. S. Lobana, Advocate for the appellant. Mr. Dinesh Nagar, Advocate for respondents no.1 and 2. Mr. Vivek Chauhan, AAG, Punjab for respondent no. 3. * * * L. N. MITTAL, J. (Oral) : Surjit Singh Ramgaria – defendant no.2 has filed the instant second appeal having remained unsuccessful in both the courts below. Respondents no.1 and 2 (Soma and his minor son Rinku) filed suit against the appellant and respondent no.3 – State of Punjab for recovery of Rs.20,00,000/-. It was alleged that plaintiff no.1 along with his father Gulzari, wife Satya, son Bittu, daughters Sona and Geeta and another son Rinku – plaintiff no.2 was living in a temporary thatched hut near Octroi R. S. A. No. 2587 of 2008 2 Post, Tanda Road, Dasuya, being nomads. Defendant no.2 – appellant was running a tractor agency adjacent thereto. On 04.07.1995, defendant no.2 raised a mud wall touching the edges of the hut of the plaintiffs in spite of protest by plaintiffs and their other family members. The said wall was raised up to height of 11 feet by defendant no.2 without sanction of building plan from the Municipal Committee. Plaintiffs and their family members told defendant no.2 many times that the wall was dangerous, but defendant no.2 paid no heed and in fact, defendant no.2 wanted to dispossess the plaintiffs and their family members from the hut by making their lives dangerous in the hut on account of this wall. On the night between 4/5.7.1995, the aforesaid wall raised by defendant no.2 fell down on account of rains and resultantly, Satya Devi – wife, Bittu – son and Sona and Geeta – daughters of plaintiff no.1 were buried under the debris of the wall and died at the spot. The said occurrence took place due to rash and negligent acts of defendant no.2. FIR regarding the occurrence was registered against him under Section 304-A of the Indian Penal Code (in short – IPC). Satya Devi aged 35 years had good health and was doing skilled work of making domestic articles like chhaaj, jaali etc. and used to contribute her income to the family. Similarly, Sona aged 17 years was doing the same work and contributed her income to the family. Bittu aged 13-14 years was working as Cleaner in the Truck Union, whereas Geeta aged 6-7 years used to assist her mother in domestic work and other works. On account of said deaths, R. S. A. No. 2587 of 2008 3 plaintiffs claimed compensation of Rs.20,00,000/-. Defendant no.1 – State of Punjab admitted the occurrence and also admitted that occurrence took place due to rash and negligent acts of Surjit Singh Ramgaria – defendant no.2, regarding which FIR was registered under Section 304-A IPC against defendant no.2 and one Avtar Singh. It was also pleaded that compensation of Rs.50,000/- each was paid to next kin of the deceased persons. Other allegations of the plaintiffs were denied. Defendant no.2 failed to appear in the trial court in spite of service and was proceeded ex-parte. Learned Civil Judge (Senior Division), Hoshiarpur, vide judgment and decree dated 05.08.2003, decreed the plaintiffs' suit for recovery of Rs.4,00,000/- i.e. Rs.2,50,000/- on account of death of Satya Devi and Rs.50,000/- each on account of death of Sona, Geeta and Bittu, along with interest @ 9% per annum from the date of filing of suit till recovery. However, compensation amount already received by plaintiffs was ordered to be deducted from the aforesaid compensation amount. Both the defendants were held jointly and severally liable to pay the decretal amount. First appeal preferred by defendant no.2 has been dismissed by learned District Judge, Hoshiarpur, vide judgment and decree dated 22.12.2007. Feeling aggrieved, defendant no.2 has preferred the instant second appeal. R. S. A. No. 2587 of 2008 4 I have heard learned counsel for the parties and perused the case file. As noticed herein above, defendant no.2 – appellant was proceeded ex-parte in the trial court. No written statement was filed by defendant no.2 to controvert the allegations of the plaintiffs. No evidence was either led by defendant no.2 to controvert the evidence of the plaintiffs. Thus, plaintiffs' version and evidence stand unrebutted qua defendant no.2 – appellant. On the other hand, defendant no.1 admitted the occurrence and also admitted that the occurrence took place on account of rash and negligent acts of defendant no.2. Plaintiffs' evidence has been found to be cogent and sufficient by both the courts below to prove their case. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. In fact, there is no version or evidence on behalf of defendant no.2 – appellant. Learned counsel for the appellant, however, contended that for action in tort, it had to be established by the plaintiffs that defendant no.2 owned legal duty to the plaintiffs, but the plaintiffs have failed to do so. The contention cannot be accepted. The plaintiffs and their deceased family members were residing in the hut at the spot, where defendant no.2 raised dangerous wall adjacent to their hut. The said wall collapsed resulting in death of four family members of the plaintiffs. By its very nature, actionable tort is established as maxim res ipsa loquitur is attracted. The R. S. A. No. 2587 of 2008 5 very fact that the wall was raised by defendant no.2 and it fell down during the night on account of rains would give rise to inference that the wall was dangerous and defendant no.2 did not take necessary precaution. Defendant no.2 knew that the plaintiffs and their family members were residing in the hut adjacent to the said wall. It was, therefore, incumbent upon defendant no.2 to have taken precaution to ensure that the wall did not cause any harm to the plaintiffs and their family members. Counsel for the appellant contended that plaintiffs and their family members were trespassers. The contention is completely beyond pleadings and evidence. Moreover, even if they were trespassers, defendant no.2 had no license to kill them by raising a dangerous wall. For the reasons aforesaid, I find no merit in the instant second appeal. There is no infirmity or illegality in the concurrent finding recorded by both the courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. July 14, 2010 ( L. N. MITTAL ) monika JUDGE