1. Present Regular First Appeal has been directed by the appellant-defendant, having felt aggrieved by the judgment and decree passed by the learned trial Court in Civil Suit No.6 of 2003, decided on 20th November, 2008 whereby the suit for recovery filed by the respondents, hereinafter to be referred as ‘the plaintiffs’, was decreed for a sum of `3,30,000/- as damages for causing death of Naranjan Singh, husband of respondent No.1 Trishla Devi, by fire-shot by the appellant, hereinafter to be called as ‘the defendant’.
2. In short, the brief facts giving rise to the present appeal can be stated thus. On 5th August, 2001, at about 6.40 pm, Naranjan Singh deceased a class IV employee in the Ayurvedic Department, was working in the fields of his brother Rakesh Kumar alongwith other family members. The defendant came to the spot alongwith his servant Ramu and threatened the deceased with dire consequences, in case he alongwith his family members would not desist from pursuing the agricultural operations any further.
Rakesh Kumar aforesaid intervened and tried to pacify the matter by saying that the land was purchased by him from Shri Sukh Dev Singh and possession thereof was also delivered to him after taking demarcation, but the defendant was not ready to hear anything. He used abusive language and became aggressive.
According to the plaintiffs, the defendant stood in the maize-field within his licensed gun and fired a shot which did not hit anyone, but the second shot fired by him hit the deceased, with the result he sustained fatal injuries, later died in the hospital at Una during the same night.
3. FIR No.408 of 2001 was registered against the defendant for the offence of murder. He was arrested, tried and later convicted and sentenced for life. It is alleged that by the death of Naranjan Singh, the entire family of the plaintiffs was totally shaken and his death caused heavy losses to them, as he was the only bread earner of the family. Plaintiff Trishla Devi is the widow of the deceased and others are his minor daughters and son. They filed the suit for recovery to the tune of `10 lacs with interest @ 12 % P.A. on account of damages and compensation for having caused the murder of late Naranjan Singh on the grounds that:
(i) Due to sudden and unexpected demise of Naranjan Singh they suffered financially as he was contributing `9,000/- per month towards the household affairs;
(ii) The plaintiffs also claimed general and pecuniary damages apart from the mental pain and suffering, the loss of consortium and estate; thus prayed for a decree.
4. The suit was resisted and contested by the defendant. He filed his written statement wherein he raised the preliminary objections about the maintainability of the suit, concealing of material facts, valuation, estoppel and cause of action, however, on merits, denied the facts as alleged. According to him, the land comprised of khasra No.299 was purchased by him from one Sukh Dev Singh in the name of his wife, whereas the brother of the deceased named Rakesh Kumar had purchased the remaining land from said Sukh Dev Singh.
It is alleged that Rakesh Kumar and his family members were threatening to dispossess him forcibly from the aforesaid khasra number, as such his wife filed civil suit and obtained ad-interim injunction against Rakesh Kumar restraining them not to interfere and dispossess them, but despite that Rakesh Kumar and his family members did not stop such threats, thus the matter was reported to Police. Police visited the spot and told them to maintain peace and harmony till the matter is finally decided by the civil Court.
5. It was also the case of the defendant that Rakesh Kumar and deceased Naranjan Singh alongwith his family members conspired to dispossess the defendant from the suit land forcibly during the pendency of the suit and destroyed the maize crop sown by him. He having come to know about the illegal design of the opposite party approached them not to cause any damage to his crop, but the family members of the deceased who were about 30-35 in number threatened to eliminate him and gave a chase to the defendant right upto his house and the mob was headed by Naranjan Singh deceased.
It was also the case of the defendant that they created terror. Thus, feeling unsafe he fired the shots in the air to desist them from illegal activities without any intention to cause harm or kill anybody. He also averred that the injuries sustained by Naranjan Singh were not fatal, but he was not given timely medical aid, therefore, he died due to excessive bleedings, for which his family members are responsible. It was also pleaded that one of the family members has been appointed in the Department on compassionate ground and other family members are drawing pension, thus, there was no financial loss to them.
6. In replication, the preliminary objections were denied and even paras of the plaint were reaffirmed.
7. On the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiffs are entitled for recovery of `10,00,000/- on account of damages and compensation for causing the death of Naranjan Singh from defendant as alleged? OPP.
2. Whether the suit of the plaintiffs is not maintainable? OPD.
3. Whether the plaintiffs have suppressed the material facts as alleged? OPD.
4. Whether the plaintiffs have not come to the court with clean hands, if so, its effect? OPD.
5. Whether the plaintiffs have no cause of action against the defendant? OPD.
6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? OPD.
7. Relief.
8. After the complete trial, the learned trial Court answered issues No.2 to 6 in negative and issue No.1 partly in affirmative, consequently, the suit was decreed as aforesaid, hence the present appeal by the defendant.
9. Shri Ashwani Pathak, learned Counsel for the defendant, vehemently argued that the deceased had no right, title or interest in the land which was alleged to have been purchased by the defendant from Sukh Dev Singh. The deceased was a rank tress-passer. The defendant also resorted to the legal remedy by filing civil suit and obtained ad-interim injunction, but the deceased alongwith others flouted the order and on muscle strength tried to do away with the life of the defendant and the defendant acted in his self-defence, while he was cornered in his house.
He submitted that these facts were ignored and the learned trial Court mis-appreciated the evidence and came to the erroneous conclusion. He further submitted that the learned trial Court did not consider the fact that the deceased acted like as a hired criminal and was himself responsible for the said incident. It is also argued that there was no financial loss caused to the plaintiffs as the wife of the deceased was employed in Government service on compassionate grounds. Further the judgment passed in case under Section 302 of the Indian Penal Code, by the learned Additional Sessions Judge convicting and sentencing him cannot be taken as a ground to decree the suit.
10. On the other hand, Shri N.K. Thakur, learned Counsel for the plaintiffs vehemently argued that the judgment of conviction and sentence passed by Court exercising the criminal jurisdiction is a circumstance weighing against the defendant and further submitted that the defence to which the defendant has taken in the present suit was not taken by him in the criminal proceedings is another circumstance weighing against him. He further ventilated that the deceased had died on account of deliberate act of the defendant and to support his arguments he led me through the evidence on record and further ventilated that the impugned judgment and decree passed by the learned trial Court do not suffer from any illegality. Therefore, the appeal deserves to be dismissed.
11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record.
12. ADMITTED FACTS
12.(a) Naranjan Singh deceased was having four brothers, namely, Dilbag Singh, Rukman Singh, Rakesh Kumar and Suresh Kumar. All are married and were living together which fact has been testified by PW2 Trishala Devi. Naranjan Singh (deceased) was a class-IV employee posted in Ayurvedic Dispensary, Lalhari and his basic pay was `4,020/- per month and was getting ` 6098/- per month (Ext.PW1/A) .
12.(b) The defendant is an ex-serviceman and a resident of Hoshiarpur (Punjab). He settled down with his family at a distance of 20-25 meters from the house of the plaintiffs in village Nangal Kalan (Una) H.P.
12.(c) Soma Devi, wife of the defendant filed a suit against Sukh Dev Singh and Rakesh Kumar, brother of the deceased for specific performance of contract with respect to the land measuring 0-01-35 Square Meters out of land measuring 1-37-25 Hectares, bearing khewat No.153, khatauni No.200, khasra Kita-7, as entered in the Missal Hakiat Bandobast Jadid Sani for the year 1999-2000, situated in village Nangal Kalan, Tehsil and District Una. Vide order dated 2nd August, 2001 (Ext.DW1/B), the defendants in that suit were restrained from causing interference in the possession of the applicant-plaintiff and also alienating the same and raising any construction thereon till the next date, i.e., 28.8.2001 on which date they were ordered to show cause. Vide order dated 25th March, 2002 (Ext.DW1/C), the learned Counsel for the parties agreed to maintain status quo, qua raising of construction over the suit land till the pendency of the suit.
12.(d) The land belonging to the defendant is stated to be adjacent to the other land of the plaintiffs and their family members.
12.(e) On 5th August, 2001, deceased alongwith his wife, brothers Suresh Kumar, Rukman Singh and sister-in-law Surinder Devi were working in their fields and were cutting bushes from there. In the meanwhile, defendant also turned up and raised objection on the pretext that the fields where they were working belonged to him. When the family members of the plaintiffs told him that it was purchased by them from Shri Sukh Dev Singh vide sale deed and possession was also delivered to Rakesh Kumar, original vendee after taking demarcation, the defendant is alleged to have felt infuriated and left the spot.
12.(f) It is evident from the judgment, Ext.P3 passed by the learned Additional Sessions Judge, Una, in Sessions Case No.36 of 2001 that after a short-while two shots were fired by the defendant from the field in which the maize crop was sown one of which hit Naranjan Singh, he fell down which attracted the other members of the family. The defendant fled away from the spot and injured was taken to Zonal Hospital, Una in a jeep and later he succumbed to his injuries around 8.00 pm on the same night.
12.(g) The defendant was charge-sheeted for the offence of murder under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act. The plea taken by the defendant with respect to his identity and false implication and also with respect to his self-defence was negated and he was convicted and sentenced for life.
13. In the instant case (civil suit) PW3 Rakesh Kumar stated that his brother Naranjan Singh was shot dead by the defendant. He denied that they had picked-up the quarrel, on the day of the alleged incident with the defendant and chased him upto his house and with his family members attacked in his house and he fired the shot which hit leg of Naranjan Singh.
14. PW3 Dr. C.S. Chauhan conducted the postmortem of the deceased and proved the copy of the postmortem report as Ext.PW6/A. The perusal of the postmortem report shows that the deceased was well built and was having gun-injury on left side of his hip and waist and the death was opined to be due to shock and hemorrhage caused by gun shot injury.
15. According to defendant, as DW1, the incident did not take place knowing well the consequence, but he was fighting in self-defence. As per judgment Ext.P3 above, the said incident had taken place in the field and not at the residence or the house of the defendant as alleged. No evidence has been adduced by the defendant to probablise the story which he has propounded in his written statement.
16. On the critical examination of the aforesaid evidence, I feel that the learned trial Court rightly concluded that prior to the alleged incident there was a bad-blood inter-se the parties on account of some dispute over the property which is claimed to have been purchased by Rakesh Kumar, brother of the deceased by a sale deed. The defendant had tried to show that the deceased and his family members were the aggressors, but his self-serving statement is not enough to hold so, when the other witness though available, (his servant) was not examined to substantiate his version. Although, the conviction of the defendant in the criminal case is a strong circumstance against him, yet the onus of proof which always lies upon the plaintiff in a case of damages stands discharged by the plaintiffs that the tortuous act was committed by the defendant in the circumstances alleged. The compassionate appointment of the plaintiff’s wife would not be enough to claim the damages from the defendant for his wrongful act.
17. Once the above conclusion is arrived at, the defendant is liable to pay the damages, as compensation to the plaintiffs for the loss suffered by them as a result of the death of the deceased.
18. There cannot be any straightjacket formula for measuring the value of human life and the measure of damages cannot be arrived at by mathematically precision. The learned trial Court has adopted the multiplier method for granting the compensation as is adopted in the motor accident claims. Since the deceased was to superannuate in January, 2019 and his last drawn salary was `6,098/- per month, keeping in view the dependency of the plaintiffs and after deducting 1/3rd of the total income from the salary and pension, the learned trial Court rightly worked out the monthly dependency to the tune of ` 1500/-
Thus, the annual loss was assessed at `18,000/- and keeping in view the age of the deceased (42 years) at the time of death, the multiplier of 15 was rightly applied and the total loss of dependency works out to the tune of `2,70,000/-, but I find that the total sum awarded by the learned trial Court comes to more than ` 3,30,000/- if the amount of ` 25,000/- each as awarded for consortium and loss of love and affection to the each of the plaintiff is calculated, but in my opinion, the calculation of the learned trial Court with respect to non-pecuniary damages in the shape of loss of consortium and loss of love and affection to the tune of `25,000/- is too excessive, the ends of justice would be met if loss of consortium and loss of love and affection is assessed @ `12,000/- to each of the five claimants, which comes to `60,000/-, thus the total sum arrives at `3,30,000/- i.e.2,70,000+60,000 as damages and compensation, which appears to be just and reasonable and shall be apportioned amongst the plaintiffs in the same proportion as ordered by the learned trial Court.
19. For the foregoing reasons, the appeal fails and is accordingly dismissed with costs.