Punjab-Haryana High Court
Leelu Ram Son Of Gugan Ram Caste Nayak R/O ... vs Haryana Vidyut Parsaran Nigam Ltd. (Now ... on 3 August, 2009
RSA No. 4342 of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 4342 of 2002
Date of Decision: 03.08.2009
Leelu Ram son of Gugan Ram Caste Nayak r/o Kali Rawan
Tehsil Adampur, District Hisar.
... Appellant
Versus
Haryana Vidyut Parsaran Nigam Ltd. (now Dakshin Haryana
Bijli Vitran Nigam Ltd.) through Xen (Operation) Division No. 2,
Hisar.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. T.C. Dhanwal, Advocate,
for the appellant.
Mr. C.B. Goel, Advocate,
for the respondent.
SHAM SUNDER, J.
**** This appeal is directed against the judgement and decree dated 28.02.2002, rendered by the Court of District Judge, Hisar, vide which, it accepted the appeal, against the judgement and decree dated 28.02.2001, rendered by the Court of Civil Judge (Junior Division), Hisar, vide which, it decreed the suit of the plaintiff/appellant.
2. Leelu Ram, plaintiff, filed a suit, on the averments, that his buffalo, aged about 7 years of Murra breed, died on 25.04.1998, at 11.30 RSA No. 4342 of 2002 2 AM, while grazing in a field, in village Kali Rawan, Tehsil Adampur, District Hisar, on account of touching the stray wire of electric pole. He informed the Police Station Adampur, and daily diary report No. 17 dated 25.04.1998, was recorded. He contacted the Veterinary Surgeon, who conducted post-mortem examination of the deceased buffalo. Accordingly, he claimed compensation, in the sum of Rs. 25,000/-, on account of the death of his buffalo, from the defendant/respondent.
3. The defendant/respondent, put in appearance, and filed written statement, wherein, it took up various objections, and contested the suit. It was stated that the buffalo of the plaintiff, did not die, on account of electrocution. It was further stated that the buffalo died, on account of some disease. It was further stated that this fact was verified by the Gram Panchayat of village Kali Rawan. It was further stated that, under these circumstances, there was no cause of action, to file the suit by the plaintiff, to claim compensation. The remaining averments, were denied, being wrong.
4. On the pleadings of the parties, the following issues were struck:-
i) Whether the plaintiff is entitled to get damages to the extent of Rs. 25000/- with interest @ 18% per annum from the defendant? OPP
ii) Whether the suit is not maintainable in the present form? OPD
iii) Whether the plaintiff is estopped by his own act and conduct from filing the present suit?
OPD
iv) Whether the plaintiff has not come to the Court with clean hands? OPD
v) Whether the plaintiff has got no cause of action to file the present suit? OPD RSA No. 4342 of 2002 3
vi) Whether the suit of the plaintiff is bad in the eyes of law and it has not properly assessed for purposes of valuation and Court fees?
OPD
vii) Relief.
5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6 Feeling aggrieved, an appeal was preferred, by the defendant/respondent, which was accepted by the Court of District Judge, Hisar, vide judgement and decree dated 28.02.2002.
7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant.
8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
9. The following substantial question of law arises, in this appeal, for consideration of this Court:-
Whether the judgement and decree, rendered by the Court of District Judge, Hisar, are the result of mis-appreciation and mis-reading of evidence, resulting into recording of perverse findings, leading to the dismissal of the suit?
10. The Counsel for the appellant, submitted that, as per the necropsy report exhibit P2, the death of the buffalo of the appellant, took place, on account of electrocution. He further submitted that the trial Court, was right, in holding that, since the wire, in question, was lying loose/stray, from the pole of the defendant/respondent, it resulted into electrocution of the buffalo of the plaintiff/appellant, and, as such, it (defendant/respondent), was liable to pay compensation. He further submitted that the Court of District Judge, Hisar, mis-read and mis-appreciated the evidence and came to a wrong conclusion, that the plaintiff/appellant, was not entitled to the RSA No. 4342 of 2002 4 compensation, as the death of his buffalo, was not caused, on account of electrocution. He further submitted that the judgement and decree, rendered by the Court of District Judge, Hisar, are liable to be set aside.
11. On the other hand, the Counsel for the respondent, submitted that the judgement and decree, passed by the first Appellate Court, are based, on the correct appreciation of evidence, and law, on the point. He further submitted that the appellant, was not present, at the time, his buffalo died, and, therefore, he could not say, as to, on account of which reason, the said buffalo died. He further submitted that the findings of the Court of District Judge, Hisar, are not perverse. He further submitted that the judgement and decree of the Court of District Judge, Hisar, are liable to be upheld.
12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble." It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. The first Appellate Court, in para RSA No. 4342 of 2002 5 No. 7 of its judgement, on the basis of Veterinary Jurisprudence Enlarged and Thoroughly Revised Third Edition by S.N. Sharma, M.V.Sc., Assistant Professor, Department of Medicine, College of Veterinary & Animal Science, Bikaner, published by Oxford & IBH Publishing Co., New Delhi, Bombay, Calcutta, came to the conclusion, that in cases of death due to electrocution, rigor mortis develops and passes quickly; and there is early putrefaction and singeing or burning marks on the feet or muzzle besides other changes. The first Appellate Court, came to the correct conclusion, that the changes referred to above, as per the aforesaid treatise, had not been mentioned in the report P2 of the Veterinary Surgeon, though the death of the buffalo took place at about 11.30 AM, on 25.04.1998, whereas the post- mortem, was conducted, on the same day, at 5.45 PM. The first Appellate Court, was, thus, right in coming to the conclusion, that since these changes, did not appear in necropsy P2, it created doubt, regarding the cause of death, particularly when there was reliable evidence led by the defendant/respondent, that the animal did not die, on account of electrocution, but due to some disease. Leelu Ram, plaintiff, when appeared as PW1, in clear-cut terms, stated that he was not present, at the time, his buffalo died. He further stated that his wife, was present, at that time. The wife of Leelu Ram, was not examined, as a witness. Since Leelu Ram, was not present, at the time of the death of the buffalo, he could not say, as to what was the cause of death. The wife of Leelu Ram, who could be said to be the best witness present, at the time of the death of buffalo, was withheld by him. The first Appellate Court, also rightly placed reliance on exhibit D1, duly signed by the Sarpanch, Gram Panchayat, Kalirawan, Sher Singh, Ex-Sarpanch, Dharambir Singh, Panch, Hamir Singh, Panch, and many other persons, wherein it was mentioned, that Leelu Ram, admitted before RSA No. 4342 of 2002 6 the Panchayat, that his buffalo died, on account of ailment, and he dragged the dead buffalo, upto the stray wire, to claim compensation, from the defendant/respondent. No doubt, this document, was not signed by Leelu Ram, plaintiff/appellant. However, it was mentioned, in clear-cut terms, in this document, that Leelu Ram appeared, before the Panchayat, and admitted the aforesaid facts. These witnesses were not at all inimical to Leelu Ram, nor such a fact, was proved on the record. The judgement and decree of the first Appellate Court, being based, on the correct appreciation of evidence, and law, on the point, do not suffer, from any illegality or perversity. The same are liable to be upheld. Substantial question of law, depicted above, is, thus, answered against the appellant.
13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed.
03.08.2009 (SHAM SUNDER) Amodh JUDGE