RSA No. 2943 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2943 of 2010 (O&M) Date of decision 21 .7.2011. Jagtar Singh and others ...... Appellants. versus Rinkle & others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Ashwani Arora, Advocate for the appellants. Mr. R.S.Athwal, Advocate for the respondents. K.C.PURI . J. This appeal is directed by defendants/appellants against the judgment and decree dated 8.5.2010 passed by Shri U.S. Gera, District Judge, Fatehgarh Sahib, vide which the appeal preferred by the defendants/appellants against the judgment and decree dated 5.10.2009 passed by Mrs.D.P.K.Bedi, Civil Judge ( Senior Division ) Fatehgarh Sahib was dismissed. 2. The case of the plaintiffs in brief is that Harshdeep Singh plaintiff No.2 is minor and the suit was filed on his behalf through his mother and next friend Rinkle plaintiff No.1 who has no adverse interest to that of minor plaintiff Harshdeep Singh. It is alleged that Jatinderpal Singh who was aged about 25 years was murdered by the defendants on 26.11.2000 in village Khanpur Tehsil District Fatehgarh Sahib. On that day Pirthipal Singh plaintiff No.4 alongwith his sons Jaspal Singh and RSA No. 2943 of 2010 2 Jatinderpal Singh deceased were irrigating their wheat crop. At about 5.00 p.m. Dharmpal Singh defendant armed with 'Takua' Ranjit Singh defendant armed with iron 'Noja' Rajpal Singh @ Raju defendant armed with 'Soti' and Jagtar Singh defendant armed with 'Dang' came in the fields of Prithipal Singh plaintiff in the area of village Khanpur, P.S. Sirhind, District Fatehgarh Sahib. Ranjit Singh defendant raised a 'Lalkara' that Pirthipal Singh plaintiff and his sons be taught a lesson for not delivering possession of the land to them. Then Ranjit Singh defendant gave an iron 'Neja' blow to Jatinderpal Singh in his head who fell on the ground. Dharmpal Singh defendant gave a 'Takua' blow from the blunt side on the head of Jatinderpal Singh. Dharmpal Singh also gave a 'Takua' blow from the blunt side on the back of the right hand of Jaspal Singh, Jagtar Singh gave a 'Dang' blow to Prthipal Singh plaintiff in his head and Rajpal Singh @ Raju also gave a Dang blow on the head of Pirthipal Singh plaintiff. Dharampal Singh defendant again gave 'Takua' blow from blunt side on the head of Pirthipal Singh plaintiff on his back, hands, arm and legs with their respective weapons. Pirthipal Singh plaintiff raised alarm 'Mardita Mardita' which attracted Baljit Singh son of Surinderpal and Manjit Singh son of Rajpal Singh residents of GT Road Bara (Sirhind) who witnessed whole of the occurrence and then the defendants ran away from the spot with their weapon. The bone of contention is that Harnam Kaur mother of Pirthipal Singh plaintiff had died. Pirthipal Singh plaintiff was in possession of the land inherited by him from his mother according to his share and the defendants were bent upon to dispossess Pirthipal Singh plaintiff from the said land by force. Litigation between the parties was pending in the Court. RSA No. 2943 of 2010 3 Stay order was granted in favour of Pirthipal Singh plaintiff and the parties were also bound down in security proceedings. After the occurrence said Baljit Singh took Pirthipal Singh plaintiff and his sons Jatinderpal Singh and Jaspal Singh injured persons to civil Hospital Fatehgarh Sahib. Pirthipal Singh and Jaspal Singh were admitted in Civil Hospital Fatehgarh Sahib, on the same day but Jatinderpal Singh was referred to Rajindera Hospital Patiala by the doctor of Civil Hospital Fatehgarh Sahib. Doctor on duty in Rajindera Hospital Patiala referred Jatinderpal Singh to PGI Chandigarh, where he was admitted on the same day. Jatinderpal Singh succumbed to his injuries in PGI Chandigarh on the next day. All the defendants committed the said offence with common intention and object in conspiracy with each other. Prithipal Singh plaintiff and his son Jaspal Singh remained admitted in Civil Hospital Fatehgarh Sahib for 5/6 days and 2/3 days respectively where they were medically examined and the post mortem of the dead body of Jatinderpal Singh was conducted in PGI Chandigarh on 27.11.2000. A FIR regarding the occurrence in question under Section 302/323/325/34 IPC was registered in police station Sirhind on 27.11.2000 and after completion of the investigation defendants were challaned by the police and now they are facing a trial under Section 302/323/325 IPC in the Court of Sessions Judge, Fatehgarh Sahib. Rinkle plaintiff No.1 who is aged about 23 years is widow of Jatinderpal Singh deceased. Harshdeep Singh plaintiff No.2 is son of Jatinderpal Singh deceased who was born 5/6 months after the death of Jatinderpal Singh. Darshan Kaur plaintiff who was aged about 50 years is mother and Pirthipal Singh plaintiff who is aged about 55 years is father of Jatinderpal Singh RSA No. 2943 of 2010 4 deceased. The plaintiffs have suffered a great shock and loss suffered by them cannot be compensated. The plaintiff has been deprived of their right to support and to take out their livelihood due to the untimely death of Jatinderpal Singh. Jatinderpal Singh was running a shop for sale of painting material and other items at GT road Sirhind, District Fatehgarh Sahib under the name and style of Pirthipal Singh Sodhi and sons. He was income tax payee and was earning about 30,000/- per month from his said business and agricultural operations. After the death of Jatinderpal Singh, said business has come to an end and there is also 70% decline in the agriculture income. Jatinderpal Singh deceased was a sober man and was without any vice. He was spending whole of his income for upkeep and betterment of his family. He was only earning member of the family. Under the circumstances noted above plaintiffs were entitled to recover a sum of Rs.25,00,000/- from the defendants as damages. Hence the suit. 3. Upon notice, defendants appeared in the main suit with counsel and filed written statement and contested the suit of the plaintiffs by taking preliminary objections that the suit of the plaintiffs is not maintainable in the present form, the plaintiffs have no locus standi to file the present suit, the plaintiffs have concealed the true and material facts from the Court, the suit of the plaintiffs is false, frivolous and baseless and the same is liable to be dismissed, the present suit is abuse and misuse of the process of law, the plaintiffs have no cause of action to file the present suit, the plaintiffs are estopped by their own act and conduct to file the present suit. The suit of the plaintiff is liable to be stayed under Section 10 CPC as another case on the same subject matter is pending in the same court. On merits it is RSA No. 2943 of 2010 5 submitted that no alleged incident even took place as alleged in the suit by the plaintiffs. A false concocted story has been mentioned in the plaint by the plaintiffs with a master mind in order to put the defendants in harassment and the defendants have been false implicated in the case. Defendants have no concern or connection with the above said occurrence as alleged in the plaint. Deceased Jatinderpal Singh was doing nothing and was having no source of income as alleged, so question of spending whole of his income for upkeep and betterment of his family does not arise at all Jatinderpal Singh was not murdered by the defendants as alleged so question of any loss of Rs.25lacs does not arise at all. Remaining para-wise contents of plaint were denied and finally defendants prayed for dismissal of the suit with costs. 4. Replication was filed by the plaintiffs, in which they denied the contents raised by the defendants in written statement and reiterated the averments those of the plaint. 5. Following issues were framed :- 1. Whether the defendants caused murder of Jatinderpal Singh ? OPP 2. Whether the plaintiffs are entitled to recover Rs.25,00,000/- from the defendants as compensation for murder of Jatinderpal Singh ?OPP 3. Whether this suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have got no locus-standi and cause of action to file the present suit ? OPD 5. Whether the plaintiffs are estopped by their own act and conduct to file the present suit ?OPD 6. Whether this suit is liable to be stayed u/s 10 CPC ?OPD. RSA No. 2943 of 2010 6 7. Relief. 6. In order to prove their case, plaintiff Rinkle herself appeared into the witness box as PW-1 and also examined Pirthipal Singh as PW-2, Baljit Singh as (PW-3), Jaspal Singh plaintiff as (PW-4), Dr.Dalbir Singh (PW5), Ashok Kumar Gupta (PW-6) and closed the evidence after tendering certain documents into the evidence. 7. In rebuttal, Subhash Chander defendant appeared as DW-1 and closed the evidence after marking certain documents. 8. The learned trial Court has taken up issue Nos.1 and 2 together and returned finding on both these issues in favour of the plaintiffs and against the defendants. Issue Nos 3 to 5 were also decided in favour of the plaintiffs and against the defendants and consequently, the suit of the plaintiff was decreed with future interest @ 6% per annum from the date of suit till realization. 9. Feeling dissatisfied with the aforesaid judgment and decree, the defendants preferred the first appeal. The said appeal was heard by Shri U.S.Gera, District Judge, Fatehgarh Sahib and vide judgment dated 8.5.2010, the said appeal was dismissed. 10. Still feeling dissatisfied with the judgment and decree dated 8.5.2010 passed by Shri U.S. Gera, District Judge, Fatehgarh Sahib and the judgment and decree dated 5.10.2009 passed by Mrs.D.P.K.Bedi, Civil Judge ( Senior Division ) Fatehgarh Sahib, the defendants/appellants have preferred the present appeal. 11. The defendants/appellants in para No.12 of the grounds of appeal have mentioned that following law points are involved in the RSA No. 2943 of 2010 7 present appeal :- i) Whether the learned trial Court and appellate court below have justified by relying upon the findings given in the criminal case whereby the appellants were convicted for the murder as alleged and the criminal case has not attained the finality as the appeal of the same is pending for consideration before this Hon'ble Court ? ii) Whether the principle of assessment of deceased/murdered is correctly based on the Motor Vehicle Act, 1988 or not, if yes then whether 1/3rd out of the earning capacity of the deceased was to be deducted as his personal expenditure or not ? iii) Whether the learned lower courts below has decided the issues framed in correct perspective or not ? iv) Whether the amount of Rs.50,000/- awarded under the head of pain and suffering & mental agony can be granted in a case of death/murder, or not ? v) Whether the awarded interest @ 12% per annum from the date of filing of suit i.e. From 4.10.2002 till decision of the suit i.e. till 05.10.2009 is justified because as per the section 34 of the CPC it should not be more than 6%? vi) Any other question of law which this Hon'ble Court may deem fit for considerations in the peculiar facts and circumstances of the instant appeal. 12. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 13. Notice of motion was issued to the extent of amount of compensation and interest only. 14. The learned counsel for the appellants has submitted that according to the evidence on the file, the income of deceased was Rs.5000/- per month. Both the Courts below have taken the income of deceased as Rs.5000/-per month. However, while calculating the dependency, 1/3rd amount should have been deducted. It is further submitted that the grant of amount of Rs.50,000/- on account of funeral RSA No. 2943 of 2010 8 expenses, loss of consortium and pain and suffering and mental agony should not have been allowed. The grant of interest at the rate of 12% per annum from the date of filing the suit till the date of decree is excessive. Interest @ 6% could only be granted in view of Section 34 of the CPC. Learned counsel for the appellants has relied upon authority Lachhman Singh and others vs. Gurmit Kaur and others AIR 1979 Punjab & Haryana 50. 15. In reply to the above noted submission, learned counsel for the claimants/respondents has submitted that death has taken place in the fields belonging to the deceased. Both the Courts below have not taken into account the agricultural income of deceased otherwise also, the future prospectus of the deceased has to be considered while granting just compensation in view of authorities Raj Rani and others vs. Oriental Insurnace Co.Ltd and others (2009-4) P.L.R. Page 789 and Smt. Sarla Verma and others vs. Delhi Transport Corporation and Anr 2009(3) R.C.R.(Civil) 77. 16. I have given my thoughtful consideration to the rival submissions and have gone through the records of the case. 17. Notice of the appeal has been given only to the extent of quantum of compensation and interest. So far as the interest part is concerned, the Courts below have allowed interest @ 12% per annum and future interest has been granted @ 6% per annum. The said interest is strictly inconsonance with Section 34 of the CPC as future interest has been granted only @ 6% per annum. 18. In authority Lachhman Singh and others' case (supra), it RSA No. 2943 of 2010 9 has been held that dependency has to be calculated after deducting the expenses incurred by the deceased for maintaining himself. 19. In authority Smt. Sarla Verma and others' case (supra) the multiplier applicable up to the age of 15 to 25 years should be 18 which is inconsonance with the multiplier applied by both the Courts below. 20. The only question for determination is whether deduction of 1/3rd amount should be deducted on the facts of the present case. The deceased was running a shop of painting and regarding which income tax returns have been placed on the file. The deceased was young person of 25 years and he has to progress in his life and his income must be increased due to inflation as well as by his work in case he would have been alive. 21. In authority Smt. Sarla Verma and others' it has been held that whether the deceased has permanent job and he was below 40 years. An addition of 50% of salary may be added for the future prospectus. 22. In the present case, the income of the deceased has been taken as Rs.60 ,000/- which is supported by the income tax returns. The deceased was in a private business and the future prospectus in respect of his income should have also been taken by both the Courts below. So, in case future prospectus are taken into consideration then the dependency can be safely taken as Rs.60,000/- in the present case. So, in these circumstances, the learned trial Court has rightly calculated the amount of compensation as Rs.10,80,000/- (Rs.60,000 x 18). The compensation amount of Rs.50,000/- in respect of loss of consortium, funeral expenses and loss of estate cannot be said to be excessive. 23. No other point has been urged before me. So, in view of above discussion points for determination mentioned above stand determined against the appellants. RSA No. 2943 of 2010 10 24. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed with costs. 25. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 21 , 2011 sv