Punjab-Haryana High Court
Major Singh vs Mala Devi on 10 May, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA No.153 of 2015 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.153 of 2015 (O&M)
Date of decision:10.05.2018
Major Singh ... Appellant
Vs.
Mala Devi ... Respondent
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present:- Mr. Vipin Mahajan, Advocate
for the appellant.
AMIT RAWAL J. (Oral)
Appellant-defendant is in regular second appeal against the concurrent findings of facts and law, whereby, suit filed by the respondent- plaintiff claiming damages on account of death of minor son aged 9 years on account of falling of wall of fourth floor, has been partly decreed by the trial Court while directing the defendant to pay damages and compensation amounting to Rs.2.5 lacs alongwith interest @ 6% per annum to the plaintiff and affirmed by the Lower Appellate Court.
The suit was filed by the respondent-plaintiff on the premise that on 27.06.2006, Nitesh Kumar aged 9 years died in unfortunate incident. The defendant was owner of the adjoining house No.1494 of Vijay Kumar in village Burail, U.T.Chandigarh started constructing 4th floor of house upon the common wall separating the room of Vijay Kumar and the defendant. In this process, defendant opened doors and windows towards 1 of 6 ::: Downloaded on - 08-07-2018 05:15:42 ::: RSA No.153 of 2015 (O&M) {2} the house of Vijay Kumar due to which stones and malba kept on falling in the house of Vijay Kumar. Vijay Kumar requested the defendant many times to construct his house with good material and proper care but he did not pay any heed. On 23.6.2006 at 4.15 p.m suddenly wall of the top floor of the house of defendant fell down alongwith bricks and malba over the tinned roof of the house of Vijay Kumar and Vijay Kumar, his wife, their son Badal and Nitesh Kumar got buried under the malba. Nitesh Kumar suffered multiple serious injuries on various parts of the body and admitted to the hospital on 27.6.2006, therefore, the necessity arose to file the suite seeking compensation of Rs.5 lacs alongwith interest.
The appellant-defendant contested the suit by denying the maintainability. On merit, it was stated that construction work was being carried out from the roof of the defendant.
On the pleading of the parties, the trial Court framed as many as five issues including the issue of Relief.
The plaintiff examined herself as PW1 and Vijay Kumar as PW2 and brought on record Ex.P1 and Ex.P2 and medical record. On the other hand, defendant himself appeared as DW1.
The trial Court on the basis of preponderance of evidence partly decreed the suit by awarding damages as indicated above. The appeal preferred before the Lower Appellate Court also met with the same fate.
Mr. Vipin Mahajan, learned counsel appearing on behalf of the appellant-defendant submits that judgments and decrees of the Courts below suffer from illegality and perversity, for, cross examination of PW2-Vijay 2 of 6 ::: Downloaded on - 08-07-2018 05:15:42 ::: RSA No.153 of 2015 (O&M) {3} Kumar had not been read correctly. He had not been coherent and consistent with regard to alleged incident, much less, qua falling of wall in the house of plaintiff. In the FIR, the appellant has been acquitted. No engineer or expert had been examined to establish, rather Vijay Kumar in cross examination admitted the occurrence of bad weather on the ill fate day and thus, urges this Court for setting aside the findings under challenge.
I have heard the learned counsel for the appellant-defendant, appraised the judgments and decrees as well as record of the Courts below with the able assistance of Mr. Mahajan.
For the sake of brevity, examination in chief of PW2-Vijay Kumar reads thus:-
Mala Devi Vs. Majar Singh Evidence by way of affidavit of Vijay Kumar resident of house no.1492, village Burail, Sector 45, Chandigarh I, the above named deponent do hereby solemnly affirm and declare as under:-
1. That the defendant is the owner of adjoining of my house i.e. house No.1494 in village Burail, U.T. Chandigarh.
Defendant started constructing 4th floor of his said house upon the common wall separating the my room and defendant. He opened doors and windows towards my house due to which stones and malba keep on falling in the said house, before starting the said construction I had requested Shri Majar Singh to use proper material and to take proper care and 3 of 6 ::: Downloaded on - 08-07-2018 05:15:42 ::: RSA No.153 of 2015 (O&M) {4} caution while constructing the house. But he never paid any heed to the request, defendant continued raising parradi for (4- 1/2") bricked wall, without proper shutring and safeguard towards the room.
2. That on 23.6.2006 at about 4.15 pm while I was sitting in house alongwith my nephew, my wife Sarita Devi and my son Shri Baddal, suddenly the wall of the 4th floor of the house of defendant broke and fell down alongwith huge bricks and malba, on the tinned roof of my house. As a result of which the tinned roof of the house was broked and all the above mentioned were buried under the malba and bricks. Due to this Nitish Kumar @ Nikki suffered multiple serious and grievous injuries on the vital organs of his body, he was immediately taken to nearby hospital from where he was referred to PGI Hospital, Sector 12, Chandigarh. He was admitted in the said hospital on the same day but despite best treatment given to him, he succumbed to injuries in the hospital on 27.6.2006. The wall being very weak in strength nor properly constructed with proper support or "pairr" and due care and caution by defendant. I lodged the FIR with the police. Copy of which is exhibit P-1.
Chandigarh Deponent
Dated 17.10.2011
Verification:-
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RSA No.153 of 2015 (O&M) {5}
Verified that the contents of my above affidavit are true and correct to my knowledge. No part of it is false and nothing has been concealed therein.
Deponent Chandigarh Dated 17.10.2011"
Attention of this Court has also been drawn to his cross examination but there is no cross examination to the specific averment made in para 1 of examination in chief. It is settled law that in the absence of cross-examination to the specific part of the examination in chief, the same is deemed to be admitted. The aforementioned view of mine is derived from the ratio decidendi culled out by the Division Bench judgment of this Court in Harnam Kaur Vs. SGPC 1992 (1) RRR 135.
There is no cross examination with regard to stopping of construction. The defendant himself admitted that he was raising construction. It is strange that he was constructing fourth floor in the area of Chandigarh probably which is not permissible which itself was a clincher for the Courts below to form the opinion as well as for this Court.
The arguments of Mr. Mahajan and findings of facts and law have not been able to bring the case within the realm of illegality and perversity enabling this Court to form different opinion than the one arrived at by the Courts below which are based upon the appreciation of oral and documentary evidence.
The stay granted by this Court without issuing notice of motion 5 of 6 ::: Downloaded on - 08-07-2018 05:15:42 ::: RSA No.153 of 2015 (O&M) {6} is hereby vacated.
No other argument has been raised.
Accordingly, the appeal stands dismissed.
(AMIT RAWAL)
JUDGE
May 10, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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