Gujarat High Court
Jatanben Wd/O Jora Vana Rabari vs Rabari Kalubhai Mashrubhai on 26 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/302/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 302 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JATANBEN WD/O JORA VANA RABARI
Versus
RABARI KALUBHAI MASHRUBHAI
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Appearance:
MR VIPUL S MODI(491) for the PETITIONER(s) No.
1,2,3,4,5,5.1,5.2,5.3,5.3.1,5.3.2,5.3.3,5.3.4,5.4
for the RESPONDENT(s) No. 1,2,3,4,5,6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/09/2018
ORAL JUDGMENT
This Second Appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiffs and is directed against the judgment and order dated 13th November 2017 passed by the 7th Additional District Judge, Banaskantha at Palanpur, in the Regular Civil Appeal No.16 of 2012 arising Page 1 of 12 C/SA/302/2018 JUDGMENT from the judgment and decree dated 23rd December 2011 passed by the 2nd Additional Senior Civil Judge, Palanpur, in the Special Civil Suit No.69 of 1995 filed by the appellants herein for compensation under the provisions of Section 357 of the Code of Criminal Procedure read with the provisions of the Fatal Accidents Act, 1855.
The case of the plaintiffs can be gathered from the facts recorded by the lower appellate court in its impugned judgment. I may quote the same :
"That the plaintiffs are resident of Madana (Dangiya), Tal. Palanpur. Plaintiff Nos.1 to 5 are wife, daughters, son and mother of deceased Jora Vana respectively. The husband of plaintiff No.1 Jor Vana has been killed by defendants and therefore, hereinafter he has been referred to as 'deceased'. Defendants No.1 to 4 are real brothers. Defendant No.5 is son of uncle Ratna of defendants No.1 to 4. It is further case of plaintiffs that plaintiffs and defendants are relatives. Deceased Jorabhai was son of Hari Ranchhod. The grandfather of plaintiff No.5 Harji and great grandfather of defendants Karshan were real brothers. Karshan having two sons, Savdas & Vano and Savdas is grandfather of defendants. There is undivided agriculture land and partition is not done, but as per the family arrangement, all are cultivating different lands. Deceased Joro adopted by Vana Karshan, uncle of defendants.
It is further case of plaintiffs that on 20.11.1989 plaintiff no.5 and deceased and grandfather of plaintiff no.5 and two sons of plaintiff no.5 Joro and Bhikho and wife of Jora Page 2 of 12 C/SA/302/2018 JUDGMENT Jatanbhai had gone to their field known as 'Delavala' and deceased Deva Hari, Bhikha Hari and deceased Jora Hari and wife of Jora were making water couse (Neek) from Government Bore No.1 near the fence of their field at that time, at about 10.00 a.m. defendants came there with an intention to make assault on plaintiffs. Defendant no.1 Kala Mashru have Dhariya, Defendant no.2 Naran Mashru have iron Vansi and other defendants have sticks in their hands and defendants started dispute in respect of making water couse and thereafter, plaintiff no.1's husband Jora took at the field of Raydawala and therefore, to save deceased Jora, Deva and Bhikha Hari and wife of Jora, Jatanbai wente there. Defendant no.1 gave dhariya blow on the head of Jora Vana as a result, Joro fell down and defendant no.2 gave Vansi blow on the head of Devo and Bhikha Hari and also told that kill them so that permanent peace could be achieved. Thereafter, all the accused started giving indiscriminate blows with their respective weapons to the three sons of the plaintiff No.5 and wife of Jora, Jatanbai. Due to the serious assault deceased Devo and deceased Jora Vana and Bhikha Hari and Jatanbai had suffered serious injuries over head, hand and leg. It is further case of the plaintiffs that thereafter, plaintiff no.5 ran to the village and informed Rabari Devkaran Jhaverbhai and Jivanbharthi Bawa and came with cart belonging to one Musla Valibhai to the field and found that due to the assault by defendants deceased had died and Devo found near Neak of field of plaintiffs near Neem tree in serious condition and suffering from great pain. Wife of Jora, Jatanben had also suffered serious injuries on hand, leg and other parts of the body. The dead body of deceased and Deva and Bhikha Hari and Page 3 of 12 C/SA/302/2018 JUDGMENT Jatanbai were taken in cart to dispensary near Chandisar, but as the doctor was not available, they were shifted to Palanpur Civil Hospital at that time, Devo also died. Bhikha Hari and Jatanbai had given treatment in Civil Hospital, Palanpur.
It is further case of plaintiffs that defendants No.1 to 5 had unitedly, by making illegal assembly and by equal purpose, assaulted by fatal weapons like vansi and sticks upon deceased Jora Vana and killed them and cruel and serious sinful act has been done by the defendants and by doing so, plaintiffs have suffered irreparable loss by this cruel act of defendants and for this defendants are responsible to satisfy the loss.
It is further case of the plaintiffs that a complaint had been lodged by the plaintiffs in respect of this incident before Gadh Police Station on 20.11.1989 vide I C.R. No.225/89 u/s. 147, 148, 149, 302, 323, 324 of I.P.C. and u/s. 135 of B.P. Act against the defendants. The charge-sheet had been filed by Police against the defendants in Court of Hon'ble Chief Judicial Magistrate, and Criminal Case No.797/90 had been instituted. Thereafter, said matter had been committed to the Court of Hon'ble Sessions Judge, Palanpur vide Sessions Case No.24/90, dated 15.2.1990 and said criminal matter is pending.
It is further case of the plaintiffs that deceased was 38 years of age. He was married, hale and hearty and had no vices. Deceased was doing agriculture work in the agriculture field of plaintiffs. In the said land irrigation has been made Page 4 of 12 C/SA/302/2018 JUDGMENT through bore-well. Deceased Jora was clever, active and expert farmer in agriculture pursuit. He was helping the plaintiffs and was getting good yield and for that plaintiffs were taking three crops in a year. Therefore, plaintiffs were earning Rs.40,000/- to 50,000/- per annum and it could only possible due to Jora. Due to the death of deceased, plaintiffs facing loss of Rs.20,000/- per annum. Plaintiffs facing mental pain and agony due to death of deceased and hence, plaintiffs have suffered irreparable loss. It is further case of the plaintiffs that plaintiffs are mentally and physically depressed due to death of deceased and therefore, defendants are jointly and severally liable for the aforesaid loss.
After the said incident deceased had taken from Mandana (Dagiya) to Chandisar and from Chandisar to Palanpur Civil Hospital in Jeep. Due to serious injuries to deceased in presence of plaintiffs, they have suffered pain, shock and sufferings. Further, deceased had suffered severe pain and agony before his death and hence, plaintiffs have suffered loss of Rs.3,15,000/-. Further, plaintiffs having no sufficient means to pay Court fee Stamp to file the present suit therefore, they have filed pauper application to sue the suit and which was granted by Court on 05.08.1995 and therefore, plaintiffs have filed the present suit for compensation to recover Rs.3,15,000/- from the defendants with running interest thereon at the rate of 18% from the date of suit till full realization."
The case of the defendants can also be gathered from the facts recorded by the lower appellate court in its impugned Page 5 of 12 C/SA/302/2018 JUDGMENT judgment and order as contained in paragraph 2. The same reads as under :
"The defendants have submitted their written statement vide Exh.15, whereby, they have denied the averments and allegations of the plaint. The defendants have denied that defendants have killed husband of Plaintiff No.1 Jora. The defendants have denied that plaintiffs and defendants are relatives. The defendants have denied that there is undivided agriculture land and as per family arrangement all are doing agriculture work in different lands. It is also denied that on the date of incident on 20.11.1989 at about 8- 00 a.m., when plaintiff no.5, Devo, deceased, Bhikho and Jora's wife Ratanben were making Neek in their agriculture field known as Delawala, at that time, at about 10.00 a.m., defendants were assaulted by sticks, iron vansi and Dhariya and in that incident, Deva and Jora were died and Ratanbai had suffered serious injuries. It is also denied that defendants have assaulted on Jorabhai by making illegal assembly and killed deceased Jorabhai. It is admitted by defendants that an F.I.R. has been lodged in Gadh Police Station in respect of said incident, but in the said F.I.R. plaintiffs have submitted false details and for the same, Sessions Case has been committed and Sessions Case No.24/90 is instituted. It is further pleaded that defendants have no knowledge that deceased was 38 years of age. It is denied that he was hale and hearty and had no vices. It is also denied that deceased was doing agriculture work in the field of plaintiffs. It is also denied that deceased was clever and expert in agriculture pursuits and was earning Rs.40,000/- to 50,000/- p.a. It is denied that defendants Page 6 of 12 C/SA/302/2018 JUDGMENT had assaulted in presence of plaintiffs. It is denied that plaintiffs are entitled to get compensation. It is denied that due to assault by defendants deceased died. It is further submitted that on 20.11.1989 defendant Naran Mashru had filed complaint in Gadh Police Station against Rabari Jora Vana, Bhikha Hari and Deva Hari u/s. 324-323-114 of I.P.C. & u/s. 135 of B.P. Act and on the date of incident, Naran Mashru was going to field with his brother Rana Mashru and his brother Kurshi was in the field and at about 9.00 a.m. when they turned towards their field, at that time in the field of Rabari of their village one Vihaji Harchandji Thakor was doing work at that time, Naran had stated him that you are doing agriculture work in the field of Jora and making quarrel with each other and so, you go from here at that time, Jora Vana, Bhikha Hari, Deva Hari all came there with iron pipe, Dhariya and started quarreling and Jama gave blow of iron pipe on left hand of Naran and Bhikha gave blow on head twice and Deva Hari gave blow of stick on left hand of Rana and when Kurshi came to save, Deva gave blow of stick to Kurshi on back side and in this incident, they have assaulted in the agriculture field of defendants by making illegal entry and thereafter, they had lodged false complaint against the defendants. Thus, initially Deva, Jora and Bhikha had assaulted and the said fact has been concealed by plaintiffs in their suit. Hence, no any civil liability is arise of defendants. Consequently, it is pleaded that plaintiffs are not entitled to get any relief as prayed for and hence, the suit should be dismissed with costs."
Having regard to the pleadings of the parties, the trial court framed the following issues vide Exh.16 :
Page 7 of 12C/SA/302/2018 JUDGMENT "(1) Whether the plaintiffs prove that this Court has jurisdiction to try the present suit ?
(2) Whether the plaintiffs prove that defendants made cruelty, if yes, so how ?
(2A) Whether the suit is barred by limitation ?
(3) Whether the plaintiffs prove that they have suffered loss due to cruelty by defendants ?
(4) Whether the plaintiffs prove that they are entitled to get compensation of loss, if yes, at what amount ?
(5) Whether the defendants prove that they are owner and possessor of disputed suit land ?
(6) Whether the defendants prove that plaintiffs got injury when they tried to save deceased and others ?
(7) Whether the plaintiffs are entitled to get relief as prayed for?"
The issues framed by the trial court referred to above came to be answered as under :
"(1) Partly affirmative. (2) Partly affirmative. (2A) In negative.
(3) Partly affirmative.
(4) Partly affirmative.
Page 8 of 12
C/SA/302/2018 JUDGMENT
(5) Partly affirmative.
(6) Partly affirmative.
(7) Partly affirmative.
(8) As per final order."
The suit ultimately came to be partly allowed. The operative part of the order passed by the trial court reads as under :
"ORDER The suit is partly allowed. The defendants No.1 and 2 do pay a sum of Rs.83,000/- (Rupees Eighty Three thousand only) to the plaintiffs with running interest @ 6% from the date of filing of the suit i.e. from the date of disposal of pauper application as above, till its full realization.
The defendants No.3 to 5 are not liable to pay any compensation.
From the aforesaid amount along with interest be apportioned equally between the plaintiffs no.1 to 5 and the same be paid to the plaintiffs No.1 to 5 by Account Payee Cheque, after due verification.
The defendants No.1 & 2 to bear their as well as the costs of the plaintiffs of the suit.
Deficit Court Fees, if any, be recovered from the awarded amount and the same be taxed as costs of the suit.
Decree be drawn accordingly."
Page 9 of 12C/SA/302/2018 JUDGMENT Being dissatisfied with the judgment and decree passed by the trial court, the plaintiffs preferred the Regular Civil Appeal No.16 of 2012 in the District Court at Palanpur. The lower appellate court, upon re-appreciation of the oral as well as the documentary evidence on record, dismissed the appeal, thereby affirmed the judgment and decree passed by the trial court.
Being dissatisfied with the judgment and order passed by the lower appellate court, the plaintiffs are here before this Court with this Second Appeal under Section 100 of the Code of Civil Procedure.
The following questions have been formulated as the substantial questions of law in the memorandum of the Second Appeal :
"(A) Whether the Appellate Court has committed substantial error of law without giving any reasons for dismissing the appeal and confirming the findings of the trial court rather perfunctorily, mechanically and without application of mind ?
(B) Whether the Appellate Court has committed substantial error of law, by breach of judicial discipline in not even referring to or considering and in the process of summarily dismissing the binding precedents of this Hon'ble Court as well as of the Hon'ble Supreme Court ?
(C) Whether the Appellate Court has committed substantial error of law in calculating the damages/compensation as a whole generally and has erred in arriving at a lower datum Page 10 of 12 C/SA/302/2018 JUDGMENT figure, in assuming income of deceased, much lower than the plaintiff - appellants are entitled to and awarding lesser amount of conventional damages for pain, shock and suffering ?
(D) Whether the Appellate Court has committed substantial error of law in overlooking the principle of prospective earning was required to be applied ?
(E) Whether the Appellate Court has committed substantial error of law, by granting interest only at the rate of 6% per annum and that too from the date of disposal of pauper application which has resulted into miscarriage of justice.
(F) Whether the Appellate Court has committed substantial error of law by not granting the compensation/damages in consonance with law ?"
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that none of the questions formulated in the memorandum of the Second Appeal could be termed as the substantial question of law. The only contention raised in this Second Appeal is with regard to the quantum of the amount awarded by way of compensation.
Having regard to the facts and circumstances of the case and the evidence led by the parties, the trial court thought fit to award a sum of Rs.83,000=00 with 6% running interest from the date of disposal of the pauper application. This decree passed by the trial court has been affirmed by the lower appellate court assigning cogent reasons.
Page 11 of 12C/SA/302/2018 JUDGMENT In my view, the findings recorded by the two courts below cannot be said to be perverse or erroneous in any manner warranting any interference in this Second Appeal under Section 100 of the Code of Civil Procedure.
In the result, this Second Appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 12 of 12