Delhi District Court
Yogesh Jain vs Vipin Jain on 2 January, 2016
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGE
II (CENTRAL): TIS HAZARI COURTS: DELHI
CS No. 239/2013
Unique Case ID No.: 02401C0005022007
Yogesh Jain
S/o Sh. Bharat Jain
R/o 9988E. Sarai Rohilla.
New Rohtak Road,
New Delhi - 110005
........ Plaintiff
Versus
1. Vipin Jain
S/o Sh. Subhash Chand Jain
R/o 9988E, Sarai Rohilla,
New Rohtak Road,
New Delhi - 110005
2. Subhash Chand Jain
S/o Late Sh. Nand Lal Jain
R/o 9988E, Sarai Rohilla,
New Rohtak Road,
New Delhi - 110005
3. Smt. Kamlesh Jain
W/o Sh. Subhash Chand Jain
R/o 9988E, Sarai Rohilla,
New Rohtak Road,
New Delhi - 110005
........ Defendants
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 1
Date of Institution: 04.01.2007
Judgment Reserved on: 18.12.2015
Judgment Pronounced on: 02.01.2016
JUDGMENT (Oral):
(1) This suit for damages and compensation for a sum of Rs.12 Lacs (Rupees Twelve Lacs only) has been filed by the plaintiff against the defendant no.1 Vipin Jain the alleged assailant who is also first cousin and the defendants no. 2 and 3 i.e. Subhash Chand Jain and Smt. Kamlesh Jain the parents of Vipin Jain the defendant no.1, who are into a dispute with the family of the plaintiff over partition of their ancestral property and are also into professional rivalry being into similar business which they are running in shops adjoining each other.
Plaintiff's Case:
(2) The case of the plaintiff is that he is the cousin of the defendant no.1 and their families are living separately in the premises having their individual portions adjacent to each other. It is pleaded that Bharat Jain who is the father of the plaintiff and brother of the defendant no.2 Subhash Chand Jain are doing similar business of Ayurvedic Medicines in their respective shops at the ground floor. According to the plaintiff, the defendants no.1 to 3 were jealous to his father on account of the advertisement of discount on the medicines and used to threaten his father and the entire family. It is further pleaded that the defendant no.1 who is a matriculate is doing manufacturing of plastic sculpture and antiques with Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 2 the help of certain toxic chemicals, acid and raw plastic whereas the plaintiff has done diploma course in Ayurveda Pharmacy. It is also pleaded that the defendants were also unhappy towards the decision of the Will executed by the late grandfather of the plaintiff regarding their properties and often quarrelled with the plaintiff and his family having a grudge against them. According to the plaintiff, on 14.01.2005 at 11:30 AM when he was accompanied by his friend Mayank Jain were going to the nearby barber's shop, the defendant no.1 called him by name from the back side and when the plaintiff turned around the defendant no.1 threw sulfuric acid mixture with some toxic chemicals and caustic soda (which the plaintiff came to know later on), on the right side of his face, head, neck, chest and back portion of the right hand side, which fell till lower part of the body. It is pleaded that the acid was very dangerous and spread all over major portion of the face, head, neck and flowed downward resulting into complete loss of right side of the face (3/4th of the face), right ear, right eye, head and body. It is further pleaded that the friend of the plaintiff namely Mayank Jain also got some drops of acid on his neck and back of his head and sustained injuries. (3) According to the plaintiff, he was thereafter rushed to nearby Jeewan Hospital and from there to Guru Nanak Eye Hospital by his uncle Prem Chand Jain and other neighbours and then to Goel Eye Hospital and ultimately he was referred to Safdurjung Hospital where he was admitted in Burns and Plastic Ward. It is pleaded that after throwing the acid on the Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 3 plaintiff the defendant no.1 ran away from the spot whereas the defendants no. 2 and 3 also absconded from their premises after locking their respective house/ portion. It is also pleaded that the plaintiff lost his right eye which is totally blinded and right ear which has melted down and he has to go to various doctors and hospital for his treatment for the injuries and damaged face. According to the plaintiff, the plaintiff has incurred around Rs.5,00,000/ (Rupees Five Lacs) on medical treatment and expected to have spent approximately Rs.20,00,000/ (Rupees Twenty Lacs) for further treatment for face correction, skin grafting, plastic surgery and for artificial enamel eye and ear etc. apart from the loss of permanent blindness from right eyesight as well as pain and tension, which cannot be compensated in terms of money. It is further pleaded that the father of the plaintiff had already spent Rs. Five Lacs and is not in a position to spend more on the future treatment of the plaintiff and hence the plaintiff has approached this court seeking damages/ compensation for a sum of Rs.12,00,000/ (Rupees Twelve Lacs only) from the defendants.
Defendant's Case:
(4) Pursuant to the filing of the suit, the defendants were duly served who put in their appearance in the court and filed a detail written statement wherein a preliminary objection has been raised that the present suit is not maintainable since damages and compensation can be claimed against any person only when there is a factum of a civil wrong done by Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 4 that person. However, the in the plaint the plaintiff has raised only allegations of criminal assault which are yet to be established by a competent court. It is pleaded that on the one hand the allegations are based on surmises and conjectures and future expenditures which are yet to accrue whereas on the other hand the plaint is devoid of the factum of a civil wrong. According to the defendants, there is no description of the loss suffered by the plaintiff in specific and express terms which is sought to be compensated by the plaintiff and the suit for damages and compensation lies only when a civil wrong is already done and ascertained as a matter of fact and not which might be done at a future date of which is to be interpreted to have been done. It is also pleaded that the suit of the plaintiff is liable to be rejected in terms of the provisions of Order VII Rule 11 (a) of CPC for want of cause of action since the identity of the wrong doer and the factum of the civil wrong are yet to be established. It is pleaded that the plaintiff has based his case on a pretext that the defendants are already guilty of the alleged assault which is contrary to the principles of jurisprudence. It is further pleaded that the suit is premature and unless the role and identity of the defendants in respect to the alleged act is established beyond doubt by a competent court the defendants cannot be made liable to pay the compensation/ damages. According to the defendants the relief as claimed by the plaintiff is not supported by any documentary proof in respect of his claims towards the amount spent on his treatment as there are no bills filed along with the plaint. Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 5 (5) It is further submitted that this Court has no jurisdiction to try the present suit as per the provisions of Section 9 CPC since the plaint does not disclose the factum of civil wrong in favour of the plaintiff and hence passing a decree in favour of the plaintiff for the damages and compensation for the alleged criminal assault would tantamount to the establishment of guilt of the defendants with regard to the alleged criminal assault. According to the defendants, the plaintiff has not mentioned about the criminal proceedings pending between the parties. It is pleaded that an FIR bearing No. 18/2005, under Section 326 IPC was lodged by the plaintiff against the defendant no.1 with Police Station Anand Parbat and thereafter a complaint case under Sections 307, 326, 308, 201, 120B, 506 and 34 IPC read with Sections 190 and 200 Cr.PC. was filed by the plaintiff against all the defendants on 03.08.2005. It is further pleaded that the aforesaid criminal cases are based on similar facts and are still pending, which fact has not been mentioned by the plaintiff in his plaint.
It is also pleaded that the present suit is bad for misjoinder of parties since the defendant no.1 is an accused in the FIR but in the private complaint he has also framed the defendant no.2 and 3 as accused.
(6) On merits, the defendants have denied all the allegations made against them by the plaintiff. It is pleaded that the defendants are not aware of the alleged Will executed by the late grandfather of the plaintiff regarding their properties. It has been denied that the defendants had a revengeful attitude towards the plaintiff and his family. It is also pleaded Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 6 that since the defendants were not at all involved in the alleged incident of acid attack on the plaintiff and hence there is no question nor any occasion for the defendant no.1 to run away from the alleged spot of incident or for the defendants no. 2 and 3 to have absconded from their premises. It is further pleaded that the names of the defendants no.2 and 3 did not figure in the FIR No. 18/2005 which was registered qua the alleged incident. According to the defendants, the claims towards monetary compensation raised by the plaintiff are based upon vague submissions and the costs have been blown up.
ISSUES FRAMED:
(7) The plaintiff has filed his replication to the written statement of the defendants wherein he has reaffirmed what he has earlier stated in the plaint. On the basis of the pleadings of the parties, vide order dated 26.11.2009 the Ld. Predecessor of this court has framed the following issues:
1. Whether the plaintiff is entitled to a decree of Rs.12 lacs on account of damages and compensation from the defendant as alleged? (OPP)
2. Whether the suit is not maintainable as alleged? (OPD)
3. Whether the suit is liable to be rejected as per provisions under Order 7 Rule 11 CPC as alleged? (OPD)
4. Whether this court does not have jurisdiction as alleged?
(OPD) Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 7
5. Whether the suit is bad for misjoinder of necessary parties, as alleged? (OPD)
6. Whether the plaintiff has not approached this court with clean hands and has suppressed material fact from this court as alleged? (OPD)
7. Relief.
EVIDENCE:
(8) In order to prove his case the plaintiff has examined as many as three witnesses i.e. Yogesh Jain (plaintiff himself) as PW1; his uncle Raj Kumar Jain as PW2 and his father Bharat Jain as PW3 whereas the defendants have examined two witnesses i.e. Narender Kumar as DW1 and Dal Chand as DW2.
(9) For the sake of convenience, the details of the witnesses examined by both the parties and their depositions are put in a tabulated form as under:
Sr. No. Name of witness Deposition Witnesses of the plaintiff: 1 Yogesh Jain (PW1) PW1 Yogesh Jain is the plaintiff himself who has in his
examination in chief by way of affidavit Ex.PW1/A has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the following documents:
1. Photographs of injured/ plaintiff which are Ex.PW1/1 (Colly.)
2. Complaint dated 24.1.2005 to the SHO, PS Sarai Rohilla which is Mark A. Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 8
3. Complaint dated 26.1.2005 to the SHO, PS Sarai Rohilla which is Mark B.
4. Complaint dated 2.4.2005 which is Mark C.
5. FIR dated 14.1.2005 bearing No. 18/2005, PS Anad Parbat which is Mark D.
6. OT Slip dated 14.1.2005 which is Ex.PW1/2.
7. Complaint dated 14.1.2005 which is Mark E.
8. Complaint dated 9.5.2005 to DCP, Civil Lines which is Mark F.
9. Complaint to DCP West dated 1.6.2005 which is Mark G.
10. Complaint to Commissioner of Police dated 2.6.2005 which is Mark H.
11. Complaint to Jt. Commissioner dated 2.6.2005 which is Mark I.
12. Complaint to ACP, PS Patel Nagar dated 27.5.2005 which is Mark J.
13. Vasiyat Nama dated 6.11.2000 which is Mark K.
14. Mafinaama given to SHO dated 29.1.2005 which is Mark K1.
15. Raazinama dated 26.5.2005 which is Mark L.
16. FIR No. 202/1987 of PS Sarai Rohilla dated 27.7.1987 which is mark M.
17. Medical Slip of AIIMS dated 14.1.2005 which is Mark N.
18. Discharge Summary of Jeewan Mala Hospital dated 14.1.2005 which is Mark O.
19. OT Slip of Bharat Jain dated 14.1.2005 which is Mark P.
20. Slip of Goel Eye Institute dated 14.1.2005 which is Mark Q.
21. OPD Record of Safdurjung Hospital dated 24.4.2005 which is Mark R.
22. OPD Card of Dr. Rajender Pd. Center dated 11.2.2005 which is Mark S.
23. Medical Slip of Blood Transfusion Department of Safdurjung Hospital dated 7.3.2005 which is Mark T. Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 9
24. Handwritten letter of Subhash Chand dated 18.3.1988 which is Mark U.
25. Character Certificate of plaintiff dated 16.6.2005 which is Mark V.
26. Test Reports of Jeewan Mala Hospital which are Ex.PW1/26 colly.
27. Test Report bill of Jeewan Mala Hospital which are Ex.PW1/27 colly.
28. Prescription of Dr. Jatinder Juneja dated 5.11.2009 which is Ex.PW1/28.
29. Slip of Dr. S.P. Bajaj, Plastic Surgeon which is Ex.PW1/29.
30. Bills of Prayag Medical Hall which are Ex.PW1/30 colly.
31. Bill of Amba Electrostat dated 13.10.2010 which is Ex.PW1/32.
32. OPD Slip of Fortis Hospital dated 19.5.2008 which is Ex.PW1/33.
33. Bills of Amit Medicos which are collectively Ex.PW1/34.
34. Bill of Super Pharmacy dated 25.2.2008 which are Ex.PW1/35.
35. Card of Saraswati Medical Hospital which is Ex.PW1/36.
36. Appointment of Dr. Subhash Kakkar dated 22.2.2008 which is Ex.PW1/37.
37. Slip of Dr. S.P. Bajaj which is Ex.PW1/38.
38. Bills of Naresh Medicos which are Ex.PW1/39.
39. Slip of Dr. S.H. Ponikar which is Ex.PW1/40.
40. Slip of Jeewan Mala Hospital dated 17.09.2009 which is Mark X.
41. Slip of Aggarwal Medical Store dated 19.9.2009 which is Mark Y. In his crossexamination, the witness has deposed on the following aspects:
➢ That he did not disclose to the police either in the FIR or statement under Section 161 Cr.P.C. that his father had decided to offer 10% discount Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 10 on all medicines.
➢ That the date and time of arrival at Jeewan Mala Hospital is 12:30 PM as written in the MLC dated 14.1.2005 which is Ex.PW1/D1 and the time of incident has been mentioned in the MLC as 12:15 PM.
➢ That the time of incident as mentioned on MLC Ex.PW1/D2 is 12:30 PM and time of arrival at Safdurjung Hospital has been given as 4:30 PM.
➢ That his brother Nagraj had taken him to Safdurjung Hospital whereas his friend Mayank and his father Bharat Jain stayed at Jeevan Mala Hospital.
➢ That on the date of incident he was wearing spectacles and acid had fallen on his spectacles which had fallen off.
➢ That he had handled with chemicals like H2SO4 and HCl during his school time and their reactive natures and explosiveness.
➢ That he had done D. Pharma and has also done
Diploma in Yoga and Natropathy Science.
➢ That neither in the MLC at Jeevan Mala
Hospital nor at the MLC of Safdurjung he had
narrated the name of Vipin Jain nor the same
has been written.
➢ That he did not submit any document to the
police in the FIR No. 18/2005 with regard to the follow up treatment which he had availed pursuant to his discharge or at Safdurjung Hospital.
➢ That there is no averment in the FIR No. 18/2005 with regard to any alleged role of the defendant no. 2 and 3 in the incident.
➢ That he did not give the name of Vipin and other defendants to any of the doctors at any of the hospitals i.e. Jeeva Mala Hospital, Goyal Hospital, Guru Nanak Eye Hospital, AIIMS or Safdurjung Hospital.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 11 ➢ That there is no dispute between his father and Subhash Jain over any property but Subhash Chand is unsatisfied with the distribution of certain property due to which he keeps an ill will towards his father.
➢ That the police and local panchayat has intervened between his father and uncle on many occasions but the disputes go on even thereafter.
➢ That their houses are conjoined as they were part of one large house originally.
➢ That he is not aware if Vipin used to work in a factory where he used to make Laughing Buddhas and no chemicals were used in the said work but the defendant no.1 Vipin used to the chemical work in his house.
➢ That Mayank Jain is his good friend and immediate neighbor and Sh. Anil Jain father of Mayank Jain used to manufacture corrugated boxes.
➢ That it is nowhere mentioned in the document Ex.PW1/33 that he had taken consultation for cosmetic surgery and there is no signatures of Cashier or Manager on Ex.PW1/33.
➢ That he has not stated in his suit, affidavit, statement before the police or before the Court in the criminal case, the medicines for which he had taken for his treatment.
➢ That he has completed DPharma after the incident and has also completed DNYS.
➢ That none of the shopkeepers in the area near the place of incident, are a witness in the criminal case.
➢ That there are number of chemists in his area and they have good relations with Ayurvedic Chemists and also with Ayurvedic Doctors.
➢ That no document of any medicines from the vicinity of AIIMS or Safdurjung Hospital.
➢ That he has not attached any certification of permanent loss of vision of his eight eye from Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 12 any doctor with the petition.
➢ That there is a beat box at a distance of about one minute from his house and there were a number of traffic police persons but they were busy in their traffic duties.
2 Raj Kumar Jain PW2 Raj Kumar Jain is the uncle/ chacha of both the (PW2) plaintiff and also the defendant no.1 who in his examination in chief by way of affidavit Ex.PW2/A has corroborated the testimony of Yogesh Jain (PW1) in toto.
In his crossexamination, PW2 has deposed on the following aspects:
➢ That he was sitting on a chair outside the shop of the plaintiff when the incident had taken place but he is not aware whether the police had recorded the statements of the other persons who gathered there since he had accompanied the plaintiff to the hospital.
➢ That they first arrived at Jeewan Hospital and thereafter they took the plaintiff in an Ambulance to Guru Nanak Eye Hospital and then to Goel Eye Hospital, then to Dr. Rajinder Prasad Hospital and from there to Safdurjung Hospital. ➢ That his relations are cordial with all his brothers including that of Subhash Jain.
➢ That the Sub Inspector told him that the acid thrown was the sulphuric acid but he is not aware what else was mixed in it.
➢ That the defendant no.1 Vipin Jain used to make idols from chemical but he is not aware of the chemicals.
➢ That the incident had taken place at 11:30 AM and since a panic got created and 1015 minutes were wasted for arranging a vehicle, therefore the plaintiff had reached the hospital around 12:00 Noon.
➢ That Mayank Jain had also received injures/ burns on his shoulder and some portion of his face.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 13 ➢ That Mayank Jain and Bharat Jain were taken to Jeewan Hospital and they were discharged from there itself.
➢ That they had gone many times to resolve their dispute at the Police Station but final resolution has not yet come pertaining to the disputes of the property, however he has no dispute with regard to the property.
➢ That he was a witness to the search and seizure dated 16.01.2005 from the open roof of their joint property.
➢ That to go to any of the properties there is a
common staircase and one can reach from one
portion to the other.
➢ That he is not aware if the plaintiff Yogesh Jain
had given a threat to Preeti daughter of Subhash Chand and had planned to abduct and kidnap Preeti and a report to that effect had also been made to the police.
➢ That the photograph Ex.PW2/DA is pertaining to the shop of his brother Bharat Jain which shop is known as Dawai Ghar.
➢ That in the photograph Ex.PW2/DB on the left side of Dawai Ghar his brother Bharat Jain used to sit in the inner side and the customers enter the shop from the right side as the front is 80% closed with the counter.
➢ That the incident took place beyond the tree
which is depicted at Point X which is shown in
the photograph Ex.PW2/DC.
➢ That there are various obstructions on the road constantly as there is material lying on the pedestrian walk.
3 Bharat Jain (PW3) PW3 Bharat Jain is the father of the plaintiff who in his examination in chief by way of affidavit Ex.PW3/A has corroborated the testimony of PW1 Yogesh Jain in toto.
In his crossexamination, PW3 Bharat Jain has deposed as under:
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 14
➢ That he along with his family reside in the same building along with the defendants.
➢ That there is a Will copy of which is Ex.PW3/DA by virtue of which the property stood bequeathed in his favour and his brothers.
➢ That the place of incident is about 10 shops away from his house.
➢ That he did not state to the police with regard to the allegations given in his affidavit Ex.PW3/A in para 8.
➢ That the police did not record the statement of any independent witness to the incident and his statement and that of Mayank and Yogesh were recorded.
➢ That there was no role of defendant no.2 and 3 in the alleged incident and their names were not put in the FIR No.18/05.
➢ That according to MLC Ex.PW1/D1 they had
reached Jeewan Mala Hospital at about 12:30
Noon.
➢ That the incident had taken place prior to 11:30
AM.
➢ That it took about 5 to 10 minutes for them to
reach Jeewan Mala Hospital which is situated at a distance of 1½ km.
Witnesses of the Defendants:
4 Narender Kumar DW1 Narender Kumar has in his examination in chief (DW1) by way of affidavit Ex.D1W1/A has deposed on the following aspects:
1. That the defendant no.1 Vipin Jain is working in a factory owned by Ashok Kumar at 98/2, Than Singh Nagar, Gali No.1, Anand Parbat, New Delhi where resin and dust sculptures were manufactured.
2. That on 14.1.2005 Vipin came to the fact at 9:30 as usual and was in the factory till 8:00 PM since they had a major order for completion before 31.1.2005.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 15
3. That when Vipin did not come on work on the next day and the following day, he went to the house of Vipin and it was then that he came to know from the relatives that the cousin of Vipin had leveled allegations of acid attack.
4. That he went to Anand Parbat Police Station and informed the police about the same but the police officials refused to pay any heed, rather he was threatened by the police that he should go away or else he would be also named as an accomplice.
In his crossexamination the witness has deposed on the following aspects:
➢ That he is not aware of the contents of his affidavit.
5. Dal Chand (DW2) DW2 Dal Chand is a vegetable vendor who in his examination in chief Ex.D1W2/A has deposed on the following aspects:
1. That on 14.1.2005 he was standing with his cart outside Kundan Hotel gali on New Rohtak Road.
2. That he distinctly remember this day because the tempo which delivers vegetable to him, broke down near his cart itself and was getting fixed till 3:00 PM in the afternoon.
3. That Vipin Jain is known to him since he (witness) has been selling vegetables on the same street for a very long time.
4. That in the evening on the same day he heard rumors that Vipin has been falsely framed in some case.
5. That he came to know from the police officers that some relative of Vipin Jain had made false allegations upon Vipin regarding acid attack.
6. That he was standing almost all the day with his cart on the same street and was shocked to hear the same.
In his crossexamination the witness has deposed on the following aspects:
➢ That MCD license is required for hawking.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 16
➢ That vegetable sellers keep moving from one place to another.
➢ That at the time when he was present in the area at Rohtak Road in front of Kundan Hotel, no incident as alleged by the plaintiff took place. OBSERVATIONS AND FINDINGS:
(10) I have heard the arguments advanced before me by the Ld. Counsels for both the parties and the written memorandum of arguments filed by them. I have also gone through the testimonies of the various witnesses and the material on record. My findings on the various issues are as under:
Issue No.2: Whether the suit is not maintainable as alleged? Issue No.3: Whether the suit is liable to be rejected as per provisions under Order 7 Rule 11 CPC as alleged?
Issue No.4: Whether this court does not have jurisdiction as alleged? Issue No.5: Whether the suit is bad for misjoinder of necessary parties, as alleged?
Issue No.6: Whether the plaintiff has not approached this court with clean hands and has suppressed material fact from this court as alleged?
(11) All the above issues are clubbed together for the sake of convenience involving common discussion and being interlinked. Onus of Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 17 proving all the above issues was upon the defendants. The Ld. Predecessor of this Court had framed the above issues on the basis of the preliminary objections raised by the defendants in their written statement and at that time the criminal prosecution which was launched against the defendant no.1 was still subjudice before the Ld. Trial Court. The trial is now complete and has resulted into the conviction of the defendant no.1 and an appeal has been filed by the defendant no.1 Vipin Jain against the said judgment which appeal is still pending before the Appellate Court. (12) According to the defendants the present suit for damages and compensation is not maintainable in view of the fact that no civil wrong was committed by the defendant and the only allegations are of criminal assault and hence there is no cause of action for filing the present suit on account of which the same is liable to be rejected. It is also alleged that in terms of the provisions of Section 9 CPC this court would have no jurisdiction to try the present suit in as much as the suit in question does not involve a civil wrong and the allegations, if any, are of a criminal nature which is beyond the jurisdiction of this Court. It is further alleged that the suit is bad for misjoinder of parties since in the initial complaint to the police on the defendant no.1 Vipin Jain had been framed as an accused whereas later in the criminal complaint being filed by the plaintiff and pursued thereafter, the plaintiff modified the story and framed up the defendants no.2 and 3 as the accused and hence the plaintiff has not approached the court with clean hands and since the plaintiff has Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 18 concealed the factum of filing of criminal complaint before the court of Ld. MM and the present suit as well as the criminal complaint are based upon the similar fact, the suit of the plaintiff is liable to be dismissed. (13) All these issues so raised by the defendants are issues of law except for the issue regarding misjoinder/ non joinder of the necessary parties which is a mixed question of law and fact. It is an admitted case that the plaintiff has suffered injuries due to acid attack and as per the allegations on 14.1.2005 at about 11:30 AM while he was going to the Barber Shop along with his friend Mayank Jain, the defendant no.1 Vipin Jain came from behind and called him by name and when the plaintiff turned around, Vipin Jain threw acid on his face and body, pursuant to which an FIR bearing No. 18/2005 was registered at Police Station Anand Parbat under Section 326 IPC for the defendant no.1 has been convicted and sentenced to Rigorous Imprisonment for Five years vide detail judgment dated 09.02.2015. It is not disputed that the defendant no.2 and 3 the parents of defendant no. 1 are not accused in the criminal case and even Bharat Jain the father of the plaintiff admits that the defendant no.2 Subhash Chand and his wife Smt. Kamlesh Jain (the defendant no.3) have no role in the incident of acid attack and their names were never put in the FIR.
(14) I may observe that the fact that the plaintiff Yogesh Jain has suffered dangerous injuries due to acid attack is an aspect which is not disputed and what is disputed is the aspect of identity of the assailant. Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 19 Victim Compensation is a concept which is engrained in our Legal System and has now found a place in the Statute Book. Not only can be victim be compensated in criminal proceedings but it is equally open to him to claim damages and compensation from the alleged wrong doer/ violator in civil proceedings. The present case is one such case where the victim of acid attack has approached this court seeking damages and compensation from the person who has assaulted him. It is an admitted case that there has been a long standing civil disputes between the parties relating to distribution of family properties and business rivalry. I am not going into the details and merits of the said civil disputes as they are irrelevant for purposes of deciding the issue relating to damages/ compensation due to the injuries suffered by the plaintiff on account of the alleged incident of acid attack by the defendant no.1 causing injuries on his face and body i.e. loss of complete right eye, loss of complete right ear, disfigurement of nose, loss of hairs etc. and all this is confirmed from a bare physical examination of the plaintiff by naked eye. These burn injuries are visible on the person of the plaintiff and pursuant to this incident the plaintiff had to undergo series of surgeries for reconstruction of his eye, ear, nose and for transplantation of hair. The quality of his life has suffered immensely not only on account of his physical disfigurement but also on account of the immense emotional, psychological, social and financial distress suffered by him. Hence, under the given circumstances, the suit for compensation and damages is maintainable and the incident having taken Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 20 place, I hold that there exists a valid cause of action for approaching the civil court form the same. The pendency of the criminal proceedings including appeal does not bar a claim of liability on the Civil Side. (15) Further, in so far as the aspect of concealment, I may observe that there is no material concealment as alleged by the defendants with regard to the withholding information regarding criminal complaints because filing of criminal complaints do not come in the way of filing the civil proceedings. Even otherwise, the plaintiff has specifically in his plaint pleaded about the FIR being registered pursuant to the incident and even otherwise, does not dispute the filing of the criminal complaints. (16) In so far as the issue regarding misjoinder of the parties is concerned, admittedly in the initial complaint filed with the police on the defendant no.1 Vipin Jain has been named but later on allegations were made against his parents i.e. the defendant no.2 and 3 but they have not been prosecuted. I may observe that the defendant no.2 and 3 are the parents of the defendant no.1 and as per allegations the incident of acid attack was an outcome of the civil dispute relating to the division of ancestral property pending between the parents of the plaintiff and the defendants including the defendant no.2 and 3 and of also there being a professional rivalry between the father of the plaintiff and the defendant no.2. The plaintiff on his part has alleged that the incident of acid attack was an outcome of a conspiracy hatched between the defendants no. 1, 2 and 3 which allegations, however, did not find favour with the Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 21 Investigating Agency and the defendants no.2 and 3 were never sent up for trial. Even before this court the father of the plaintiff i.e. Sh. Bharat Jain (PW3) has in his crossexamination denied any role of defendant no.2 and defendant no.3 in the incident which is despite the claim of the plaintiff that soon after the incident all the defendants including the defendants no. 2 and 3 had absconded after locking their respective premises. Hence, in view of the specific allegations having been made against the defendants no.2 and 3, they are necessary parties to the suit and their impleadment as defendants no. 2 and 3 does not render the suit bad though it is a different matter that the plaintiff may not been able to substantiate the said allegations.
(17) This being the background, I hereby hold that the suit of the plaintiff is maintainable and this Court has the jurisdiction to try the present suit. Further, the suit is not bad for misjoinder of necessary parties and there is no suppression or concealment of material facts from the Court by the plaintiff.
(18) All the above issues are decided in favour of the plaintiff and against the defendants.
Issue No.1 Whether the plaintiff is entitled to a decree of Rs.12 lacs on account of damages and compensation from the defendant as alleged?
(19) Onus of proving this issue was upon the plaintiff. The case relates to an incident of acid attack upon the plaintiff Yogesh Jain alleged Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 22 by the defendant no.1 Vipin Jain. The incident in question entails the plaintiff being on the receiving end of an acid attack as carried out by his brother in October 2005. The defendant is the cousin brother of the plaintiff. On further examination the motive behind this heinous crime was ascertained. The overarching disputes between the plaintiff and the Defendant rotated mainly on two issues as under:
1. The plaintiff and the defendants fathers had shops which sold ayurvedic medicines. In a bid to boost their business the plaintiff's father put out 10% discount on all ayurvedic products as sold by him, an aspect which was widely advertised. Seeing this the defendants had overarching concerns about the failure of their enterprise in wake of the competition that they faced from their relatives shops. Thus in retaliation the defendants allegedly threatened the plaintiff.
2. Regarding the share of the ancestral property that the defendants had received received. The defendant No.2 and the plaintiff's father were brothers, investigation revealed their displeasure regarding the share of the ancestral property that they received.
(20) Going back to the event at hand, the plaintiff was walking towards the barbers shop in his locality with his neighbor, Mayank Jain. Only for him for to hear his name called out and when he turned to look back the defendants allegedly sprawled acid on him. The resultant impact of the acid was extensive damage and burns on 3/4th of the right side of the Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 23 plaintiff's face (resulting in loss of his right eye) and extensive damage on the right side of his body. Furthermore his neighbor, who was in close proximity to the aggrieved party was on the receiving end of burns as well. The plaintiff proceeded to run towards his house, on seeing the desolate condition of his son, the plaintiff's father hugged him and received burns as well. The aggrieved party was ultimately taken to the burns and injuries ward of Safadarjung Hospital for treatment.
(21) Post these series of events a criminal case was immediately lodged in 2005 itself, followed by this civil suit for compensation of Rs. 12,00,000/ for the aggrieved party filed in 2007. While the criminal proceedings were on, the defendants requested this court to put a stay on the civil matter pending the criminal case.
(22) In the light of this background, now this court is required to ascertain as to whether the plaintiff can claim compensation before a civil court for a matter for which a criminal prosecution was also launched, the offending act being an offence under the Penal Code.
(23) It is an admitted case of the parties that a case bearing FIR No.18/2005, under Section 326 IPC was lodged by the plaintiff against the defendant no.1 with Police Station Anand Parbat and thereafter a complaint case under Sections 307, 326, 308, 201, 120B, 506 and 34 IPC read with Sections 190 and 200 Cr.PC. was filed by the plaintiff against all the defendants on 03.08.2005 and the defendant no.1 Vipin Jain has been convicted by the Ld. Trial Court and sentenced to Rigorous Imprisonment Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 24 for Five Years vide judgment dated 09.02.2015 against which an appeal has been preferred by the defendant no.1 which is still pending disposal before the competent court. It is argued by the Ld. Counsel for the defendants that the present proceedings for civil liability are required to be halted in view of the pendency of the said appeal before the appellate court and the criminal proceedings having not been concluded so far. Ld. Counsel for the defendants has argued that criminal cases to be given precedence over civil matters.
(24) I have considered the submissions made and at the very Outset I may observe that criminal trial has already concluded resulting into conviction of the defendant no.1 and even otherwise, as observed in the case of Iqbal Singh Marwah v. Meenak Marwah and Harjit Singh Walia v. The State & Ors. in the absence of any such statutory provision which prevents both civil and criminal proceedings to move simultaneously. Secondly, I may observe that the issue being contested in the civil and criminal court are different in nature. No doubt the defendant no.1 has been convicted by the Ld. Trial Court which order is yet to attain finality being challenged in appeal, but in so far as the aspect of compensation is concerned, it is nowhere connected with his acquittal or conviction. Even otherwise, the Standard of proof is different in civil and criminal cases. While in civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt and hence subject to the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872 Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 25 previous judgment of the criminal court and its findings may not be all that relevant or binding in so far as the civil action for compensation and damages is concerned. Thirdly, the perusal of the judgment dated 09.02.2015 shows that the Ld. ACMM has granted no compensation to the victim of acid attack i.e. the plaintiff before this court under Section 357A Cr.P.C. and in so far as the provisions of Section 326A IPC are concerned, the offence having taken place before the amendment of 2013, the question of its applicability does not arise and hence this is one reason why the initiation of the criminal proceedings against the defendant no.1 cannot be a bar to the civil court granting compensation/ damages to the plaintiff, a victim/ survivor of acid attack. Fourthly, every person has a right to enjoy life to its fullest which fundamental right is enshrined under Article 21 of the Constitution of India. It is said where there is a right there is a remedy .... Ubi jus ibi remedium.... Every act of a crime gives a rise to an action for civil claim in addition to the remedy on the criminal side because crime is an aggravated wrong not only against the individual but also against the State and hence in addition to the grant of compensation in criminal proceedings, the compensation can always be granted to a victim of crime in civil proceedings and I do not understand where then is the question of bar to the civil remedies when there is a violation of fundamental right to life. However, the extent of compensation received by the victim in the criminal proceedings would be a valid consideration while determining the quantum/ extent of compensation to be awarded in Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 26 the civil litigation. Lastly, I may note that the prosecutions in the cases of acid attack against perpetrators are tough and more rare are the convictions. Ironical it is that under the cover of rights while the perpetrator walk free most of the time and lead a normal life, the faceless victims/ survivors suffer trauma, loneliness and ostricisation throughout their life, everyday and every minute.
(25) Coming next to the issue of Compensation and whether it falls within this Courts jurisdiction of powers to award the same it is necessary to examine the brevity of the offence committed. As stated earlier the influx of acid desecrated 3/4th of the plaintiff's face along with further extensive burns on the right side of his body. The mere thought of an act so heinous is something that can send tremors down most people bodies, it is equally difficult to fathom what the plaintiff has had to experience daily on an emotional, physical, psychosocial level for the decade that has followed since this incident. The act of violent assault of throwing acid or any other corrosive substance onto the body of another with the intention to disfigure, maim, torture or kill, commonly known as vitriolage is a debilitating act on multiple grounds as stated above. Sadly our country and in particular our state Delhi have always been the centre point for these attacks as ascertained on the basis of the reports gathered by the NCBR (national crime bureau records from 2010 onwards).
(26) Acid Attack is a violent assault of throwing acid or corrosive substance with the intent to disfigure or kill the victim. Perpetrator's aim is Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 27 generally the fact of the victim resulting into scars, blindness and deep form of torture. An interesting aspect about the crime acid attacks is that like rape it is one intensely colored by gender. An overarching assumption is that in such crimes women are always the victims while the assailants are always men. While the latter statements may be largely true but the former statements requires further introspection. According to Daily Mail (UK Edition) since the year 2000 there are more than 3,000 cases of Acid Attack and most of the victims are predominant women but I may observe that in this hate crime even the men are not immuned. As reports of NCBR go 7580% of the acid attack victims are women while the remaining 2025% are said to be males. Women are most often attacked by men they have rejected and are now seeking vengeance. With men, it tends to be jealousy or rivalry. The reasons are very different. But the trauma and the pain both suffer is the same. The reasons behind the attacks vary on grounds of rage, jealousy and in cases of women refusal to marry/mate with the assailants. While in certain cases, the victims succumb to the injuries inflicted on their person, in other cases they do survive. One can take note of the statement of acid attack victim Chandrahaas Mishra (attacked in Meerut, 2011) who stated that his assailants intention wasn't to kill him but to ruin his life, for its emblematic of the perverse nature of such a crime. It also shows that a society where the physical form of a person is of utmost importance, how injury of such a nature completely shuts all doors and avenues for them in any Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 28 regard/aspect of their lives. Leaving them to a shell of their former selves and their lives prior to the incident a distant memory. (27) The case in hand serves as an unpleasant surprise of sorts where contrary to the predominant perceptions the victim/ acid attack survivor is a young male aged about 22 years. To further asses the ardent need for compensation for the plaintiff, it is essential to examine the suffering the victim has had to endure in wake of this crime. This case has to be examined in wake of the recent legislative developments which have taken place in terms of victim compensation schemes which the government has sought to bring about in wake of the of the public interest litigation carried on by acid attack victim Ms. Laxmi who was only 15 when three men, one of whom she had refused to marry, threw acid on her near Tughlaq Road in New Delhi. She has been fighting a lonely battle since 2006 in the Supreme Court, and in the process, succeeded in getting the Indian Penal Code amended to make acid attack a special offence. She further persuaded the court to increase the compensation for victims to Rs. 3,00,000, besides procuring a complete ban on overthecounter sale of acid. Her efforts paved the way for "The Poisons Possession and Sale Rules, 2013″.
(28) In the above case of Luxmi Vs. Union of India reported in 2014 (4) SCC 427 Hon'ble Mr. Justice R.M. Lodha and Hon'ble Mr. Justice Mohd. Khalifullah took a very serious note of this scenario relating to free availability of Acid in the market and have thereafter issued certain Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 29 directions as to the manner in which the State is required to stepin and regulate the sale of acids and also with regard to the response of the state as regards the manner in which assistance medical, financial and otherwise shall be provided to the victim of acid attack. Again, in the case of Parivartan Kendra Vs. Union of India & Ors. in Writ Petition (Civil) No. 867/2013 the Bench of Hon'ble Mr. Justice M.Y. Iqbal and Hon'ble Mr. Justice C. Nagappa reaffirmed the concerns expressed by the earlier Bench in the case of Luxmi Vs. Union of India and impressed upon the State to intervene simultaneously when it observed that ".... If this Court can be traumatized by the mere sight to the injures caused to the victim by the inhuman acid attack, it can be well imagined as to what can be the situation of the victim....". Again, in the recent past the Social Justice Bench headed by Hon'ble Mr. Justice Madan B. Lokur and Hon'ble Mr. Justice U.U. Lalit have steppedin to issue directions to the State Governments to take up the matter with private hospitals for ensuring free of cost treatment to the victims of acid attack and have also directed the government to notify the acid as Scheduled Substance to regulate its sales. (29) Echoing the words and concerns of the Hon'ble Apex Court, it is unfortunate that there is an easy availability of acid, rampant use of corrosive substance which destroy innocent lives and what makes the matter worse is total lack of legal guarantee to free medical care, rehabilitation and adequate compensation scheme for the survivors. The Hon'ble Apex Court had directed the reconstructive surgeries of victim of Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 30 acid attack at State expenses. Acid attack causes long term consequences including blindness, permanent scaring of face with far reaching social, psychological and economic consequences. I find no reason why the perpetrator of such a horrendous crime be not put to financial burden of compensation to their victim. Compensation is not only for physical injury but also for inability to lead a full life as a result of acid attack which causes the victim to be an outcast and suffer loneliness in the society. Not only is the victim entitled to the compensation but there is a need for the State for rehabilitation by way of reservations in Educational Institutions and for jobs.
(30) Serious concerns have been expressed at the International Conference of victims of acid attack. Acid Attack deprives people of their looks and sight. Families are torn apart - Targets are outcast and perpetrator seldom punished. It is in this background, that the issue needed to be addressed by the Legal System of our Country. Based upon the above observations of the Hon'ble Apex Court codification of acid attacks as a separate statutory provision under Section 326A of the Indian Penal Code and Section 357C Cr.P.C. providing for costs of acid attack injuries as well making their treatment free at private hospitals, were inserted in the Statute Book in the year 2013.
(31) In the year 2013 acknowledging the severity of the offence the Legislature has amended the Indian Penal Code so as to incorporate Section 326A providing that:
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 31
326A. Voluntarily causing grievous hurt by use of acid, etc.: Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
(32) It is evident from the above that the provisions of Section 326 A IPC have been made gender neutral and even a male victim who has suffered the acid attack resulting into burns, maiming and disfigurement etc. is covered. The above amendment of 2013 by insertion of Section 326A in the Indian Penal Code provides for imposition of fine which goes to the victim of acid attack but in the present case this court cannot loose sight of the fact that the offence is relating to the year 2005 which was prior to the amendments in Indian Penal Code. Compensation can also be granted to the victim of crime under Section 357A of Cr.P.C. In our country, despite there being a pressing need, there is no special law of the nature of Criminal Injuries Compensation Act provided for interim/ Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 32 final monetary aid/ compensation to the victims of crime but the Hon'ble Apex Court and the various High Courts have time and again risen to the occasion and taken a lead while liberally providing such compensations for purposes of treatment and rehabilitation. (33) The above amendments came much later to the incident of acid attack upon the plaintiff (of the year 2005). While all this may not necessarily eliminate the problem of the acid attacks, it does have a potential, if implemented strictly, to at least reduce the number of such acid attacks.
(34) It was necessary for me to cullout these guidelines and observations of the Hon'ble Apex Court to bring home the fact that the assistance and aid which is now available to the victims of acid attack were not available to the plaintiff Yogesh Jain, the incident having taken place almost a decade back.
(35) In order to discharge the onus upon the plaintiff Yogesh Jain has examined himself as PW1wherein he has corroborated what he has earlier stated in the main plaint. Apart from himself the plaintiff has also examined his uncle/ Chacha and father who have supported his version and there is no reason to doubt the version of the plaintiff and the injured i.e. uncle Raj Kumar Jain (PW2) and father Bharat Jain (PW3) who had received acid injuries when they picked up the plaintiff and rushed him to the hospital. They have unanimously pointed out towards the involvement of defendant no.1 and the fact that the incident was an outcome of the civil Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 33 dispute relating to the ancestral property which dispute is admitted but in so far as the present suit is concerned, this court will not look into the merits of the dispute of the property i.e. Will left by the grandfather of the plaintiff. All these aspects are alligned and not relevant to the issues in dispute before this Court and have to be decided by the competent court in appropriate proceedings. In so far as this Court is concerned, it would restrict itself to the limited issue of the incident of acid attack and the injuries caused to the plaintiff and the compensation/ damages thereof.
Plaintiff has also placed his reliance on the findings of the Ld. Criminal Court i.e. ACMM in judgment dated 09.02.2015 holding the defendant no. 1 (accused before it) guilty of the offence under Section 326 IPC and sentenced to Rigorous Imprisonment for Five Years which judgment is not disputed by the defendants and against which an appeal has been filed and is still pending before the Court of Competent Jurisdiction. (36) I have also gone through the evidence on record in the form of medical records and photographs of the plaintiff as well as the various criminal complaints and the judgment dated 09.02.2015 (not disputed). The perusal of the said judgment dated 09.02.2015 reveals that one Mayank Jain is also an eye witness to the incident. He was with the plaintiff Yogesh Jain at the time of the incident and had also received acid injuries on his body in the incident. It was this Mayank Jain who was accompanying the plaintiff to the Barber's Shop on 14.1.2005 at about 11:30 AM when the defendant no.1 allegedly threw some liquid of the Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 34 plaintiff and his face got burnt and some drops of the liquid also fell on the head, face, neck and clothes of Mayank Jain as a result of which even Mayank Jain sustained injuries and had to be shifted in Jeewan Mala Hospital where he was medically treated. The medical record of both the plaintiff Yogesh Jain and Mayank Jain were produced before the Ld. ACMM and proved by calling Dr. Ajay Kumar Chauhan from B.L. Kapoor Hospital which doctors had duly proved having examined three patients namely Mayank, Yogesh Jain and Bharat Jain and further that Yogesh Jain had suffered grievous injuries whereas two other had suffered simple injuries. The subsequent treatment record of the plaintiff Yogesh Jain was also proved in the Court of the Ld. ACMM by Dr. Harish Kumar, Senior Specialist (Plastic Surgeon) Safdurjung Hospital who has been examined before the Ld. ACMM as PW6. He has proved that the injuries caused to the plaintiff Yogesh Jain were dangerous in nature as they were caused by acid burn and were on the face, neck and shoulder. He has further proved that they had tested the injuries by Litmus Paper and acid injuries were clearly diagnosed. The fact that the liquid which was thrown on the plaintiff Yogesh Jain, was Sulphuric Acid stands confirmed by the witness from the FSL i.e. Sh. Narain, Assistant Director, FSL, Rohini who has been examined as PW12 before the Ld. ACMM. It has also come on record and not duly controverted by the defendant no.1 that he was doing the business of making idols and the corrosive chemicals were available with him.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 35 (37) Admittedly, at the relevant time the plaintiff was hardly aged 22 years of age and was unmarried and was doing DParma and as per his testimony has done Diploma Course in Ayurveda Pharmacy with an objective to develop ayurveda pharmacy after completion of diploma course, but for the injuries could not studied further having lost his right eye, right ear, suffered disfigurement of nose and right side of body. The nature of injuries suffered by the plaintiff due to acid attack are detailed as under:
➢ Loss of complete right eye ➢ Loss of complete right year ➢ Disfigurement of Nose ➢ Loss of hairs around the right portion.
(38) The plaintiff before this Court is a Victim of Crime. The Indian legislature does not define the term 'Victim of Crime' under any law and the etymological meaning of phrase 'Victim of Crime' suggests that it would encompass:
1. Anyone suffering physical, emotional or financial harm as a direct result of a Crime.
2. Spouses and children of the person who has suffered.
3. Parents, foster parents, siblings, guardians or other custodians of minor victims, mentally or physically incapacitated victims, or victims of homicide.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 36
(39) In this regard reliance can be placed upon United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power adopted in November 1985, which through Article 1&2 gives exhaustive definition of the phrase:
Article 1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.
Article 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
(40) A combine effect of these Articles probably encompasses every thing that ought to have been the part of definition of the phrase and would include persons who have suffered harm, including physical or mental and emotional suffering.
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 37 (41) Further, in so far as the term 'Compensation' is concerned it means something given in recompense i.e. equivalent rendered . It is to be noted that the whole purpose of compensation is to make good the loss sustain by the victim or legal representative of the deceased. Generally when we talk about compensation in the present context it only limits it self to monetary compensation which is calculated on the basis of two head i.e. pecuniary loss and nonpecuniary loss. (42) I may observe that the Hon'ble Apex Court and various High Courts have been liberal in granting compensation to the victim of crime, both in Civil as well as in Criminal proceedings which include persons having suffered physical or mental and emotional harm. (43) The evidence on record confirms that the incident of acid attack had taken place wherein the plaintiff Yogesh Jain had received injuries in the presence of Mayank Jain while they were going to the Barber Shop and some drops of acid also fell on Mayank Jain and Bharat Jain the father of the plaintiff who came to his assistance and rushed the plaintiff Yogesh Jain to the hospital. When I saw the plaintiff Yogesh Jain in the Court, I did not need any other proof of the horrendous incident of acid attack or his sufferings as evident from the following photographs (which I may note are matching with his physical appearance as observed by me in the Court):
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 38
(44) As evident, the sight of the plaintiff is sufficient to move one's heart. The plaintiff, a survivor of acid attack with just a half face, in his statement has made a painful disclosures of how the society has treated him. He is an outcast, for his sight itself is sufficient to put people off and Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 39 as deposed by the plaintiff himself, he has still not found any suitable job which requires public dealings/ presentation job due to his disfigurement. (45) The plaintiff has specifically proved that he is unable to expose himself towards the heat in the summer seasons due to the nature of injuries suffered by him being a victim of acid attack which has completely burnt his skin of right side of his face, due to which reason he is unable to tolerate heat and direct sunlight and due to temperature hike often there is bleeding from his right eye. It is a matter of common knowledge that the victims of acid feel etching in heat as there cannot be any sweating on the affected area. The plaintiff has been able to establish that during his treatment skin has been transplanted to the affected area after removing the skin of stomach and lower part of the body for which he had undergone several surgeries and is still undergoing at least 1012 surgeries which itself is a trauma to his life and he cannot lead his normal life because of the above said injuries. It has been proved that the plaintiff has to undergo surgery for his right eye, construction of right ear and hair transplantation, which will cost around Rs.1012 lacs besides the pain and suffering and this amount of Rs.1012 lacs which is required for the surgery (cosmetic and otherwise) of the plaintiff is over and above what he has claimed in the present suit.
(46) It cannot be disputed that the Quality of Life of the plaintiff has been adversely affected since on account of the injuries suffered by him and loss of complete right eye and according to the plaintiff he is Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 40 facing great difficulty while driving a vehicle. (47) Further, it has been established that the plaintiff has faced Mental and Social Ostracization since at the time of the incident he was hardly 22 years of age and was unmarried and having aspiration from his life and was having big dreams in his mind for his future life. The plaintiff in his testimony has explained how he has faced a lot of difficulties and humiliation since many families rejected him for marriage only after even first meeting. It is in the light of these sufferings which the plaintiff Yogesh Jain and his family had to endure since that fateful day in 2005, that makes its essential to ensure he is suitably compensated and why I feel that mere launching of the criminal proceedings alone would not provide ample justice to the plaintiff. Look at the pain which the plaintiff is facing of living with a partial face. What pain the plaintiff will continue to suffer throughout his life which can never be compensated in terms of money.
(48) It is heartwrenching to see that a young boy in his twenties with a world of possibilities and options, literally had his life taken away from him. Thus it essential that the plaintiff should receive the compensatory amount as requested in his pleadings, to if not to do anything else but at the very least take care of his substantial medical expenses more of which he may yet incur.
(49) I may observe that with his facial injuries have ensured an infliction of extremity of pain and suffering, which have most definitely Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 41 scarred him on psychological level. As a resultant of the said burns the plaintiff experiences extreme discomfort when out in the sun due to erosion of his sweat glands. Furthermore post this incident his avenues in marriage, education (which he was in keen to pursue in field of alternative medicine) as well as professional aspirations looked bleak to say the least.
Moving on to the financial ramifications, the plaintiff had already spent an amount of Rs.5,00,000 with a further Rs.20,00,000/ to be paid on procedures such as skin grafting and plastic surgery. On realistic front the Rs. 12,00,000/ the plaintiff has sought compensation for is in reality a mere 25% of a total amount stretching up to Rs.2,00,00,000/ for all the restorative surgeries and treatment he needs to receive. (50) This being the background, I hereby hold that the plaintiff is entitled to the compensation/ damages for a sum of Rs.12,00,000/ (Rupees Twelve Lacs only) from the defendant no.1 along with interest @ 12% per annum from the date of decree till the date of realization and also the costs of the suit. In so far as the defendants not.2 and 3 are concerned, the evidence on record is insufficient to confirm their liability. (51) Issue is accordingly decided in favour of the plaintiff and against the defendants.
Relief:
(52) In view of my above discussion and findings on the various issues, I hereby hold that the plaintiff is entitled to the compensation/ Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 42 damages for a sum of Rs.12,00,000/ (Rupees Twelve Lacs only) from the defendant no.1 along with interest @ 12% per annum from the date of decree till the date of realization and also the costs of the suit. In so far as the defendants no.2 and 3 are concerned, the suit is dismissed qua them.
FINAL CONCLUSIONS:
(53) Vide my detail findings on the various issues as aforesaid, the plaintiff is held entitled to the compensation/ damages for a sum of Rs.
12,00,000/ (Rupees Twelve Lacs only) from the defendant no.1 along with interest @ 12% per annum from the date of decree till the date of realization and also the costs of the suit. In so far as the defendants no.2 and 3 are concerned, the suit is dismissed qua them.
(54) Suit of the plaintiff is accordingly Decreed against the defendant no.1. Parties to bear their own costs. Decree Sheet be prepared accordingly.
(55) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 02.01.2016 ADJII(CENTRAL)/ DELHI Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 43 Yogesh Jain Vs. Vipin Jain Etc. CS No. 239/2013 02.01.2016 Present: Plaintiff in person. Defendants no. 1 and 2 in person.
Case has been listed for orders today. The file is taken up by this Court to enable this Court to observe the injuries on the body of the plaintiff in order to better appreciate the evidence on record. The plaintiff states that he has photographs showing the extent of his injuries as on date which he can also place before the court. I have considered the request made and I may observe that the photographs already on record are the photocopies and are not clear. I have personally seen the visible injuries on the person of the plaintiff and also perused his photographs which the plaintiff has placed before me (Court Observation). I may observe that the injures as reflected in the photographs are matching with his physical appearance as observed by me in the Court today. The photographs are taken on record. The plaintiff is directed to supply a copy to the same to the defendants.
Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ADJII(Central)/ 02.01.2016
Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 44
4:00 PM
Present: Plaintiff in person.
Defendant no. 1 and 2 in person.
Vide my separate detail order dictated and announced in the open court, but not yet typed, the suit of the plaintiff is Decreed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
An application under Section 340 Cr.P.C. has also been filed on behalf of the defendants wherein it is pleaded that the plaintiff has filed a Will dated 06.11.2000 executed by Sh. Nand Lal Jain in respect of the property No. 9988E and 9988F, Sarai Rohilla Chowk, New Delhi which will is Ex.PW3/DA. According to the applicants/ defendants the admitted signatures of Sh. Nand Lal Jain and the disputed signatures on the above said Will were sent to the Handwriting Expert who has opined that the disputed signatures are forged. It is pleaded that the plaintiff has intentionally and deliberately with malafide intention has filed the said forged Will in the present case to play fraud upon the court and to get favourable orders in his favour and hence proceedings under Section 340 Cr.P.C. be initiated against the plaintiff.
A detail reply to the above application has been filed on behalf of the plaintiff who has denied the various allegations made against him.
I have considered the evidence on record and I may observe that the application under Section 340 Cr.P.C. is misconceived since the Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 45 issue before this court is damages and compensation on account of the incident of acid attack on the plaintiff on 14.01.2005 and the note the civil dispute relating to the property. I have specifically observed in the detailed judgment that in so far as the Will in question and civil disputes are concerned they are immaterial before this Court and it is for the competent court to decide the same and hence have not been dealt with. In this background, the above application filed by the defendant under Section 340 Cr.P.C. is misconceived and is hereby dismissed.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 02.01.2016 Yogesh Jain Vs. Vipin Jain Etc., CS No. 239/13 Page No. 46