Executive Engineer vs Ramees Ahmad Chopan And Ors

Rashid Ali Dar, J

Respondent No.1 herein has filed the Claim Petition before the court of learned Principal District Judge, Budgam on 18.05.2006 for recovery of the amount of Rs. 25.00 lacs from the State and its functionaries while seeking leave to file the same in indigent capacity and the claim to be treated under Fatal Accidents Act in forma pauperis. Leave has been granted in favour of respondent No.1 herein for bringing action and the case has been treated as the civil suit.

The appellant herein has filed the written statement through his counsel, wherein it is referred that same is filed on behalf of defendants i.e. appellant, respondents 2 to 4 herein and one more person namely Ghulam Hassan Rather, who has not been added as party in the instant appeal.

On 04.12.2009 issues have been framed in the matter and respondent No.1 was directed to produce his evidence. Respondent No.1 has examined some witnesses and his evidence has been closed on 08.08.2012. Appellant and respondents 2 to 4 have been set ex-parte, which was later on set aside. One of the witnesses namely Dr.Adil Hafeez has been examined on behalf of respondent No.1 on 18.06.2014. Neither the appellant nor other official respondents have produced any evidence.

The judgment impugned herein has followed on 01.10.2014 in terms of which respondent No.1 has been held entitled to the compensation amount of Rs. 10.18 lacs including interim relief. Decree-sheet has been accordingly prepared. The compensation has been directed to be recoverable from the department concerned along-with interest @ 6% from the date of institution of the suit.

The impugned judgment and decree is being assailed in terms of the instant appeal by the appellant-Executive Engineer, Electric Division, Budgam while putting forth that same being patently illegal and untenable. The learned trial court is stated not to have followed the procedure in declaring the plaintiff as an indigent. It is being further pleaded that respondent No.1 herein has been awarded under various heads to which otherwise he was not entitled to. The said respondent had deposed before the trial court that he does not know as to how he was injured. In addition, the doctor had deposed that disability of the victim/respondent No.1 can be reduced from 30% and even he can befitted upto 100%, but still the learned court awarded compensation.

Heard learned counsel for the parties.

Learned counsel for the appellant reiterated the grounds taken in terms of memo of the appeal and submitted that the judgment and decree is required to be set aside.

On the other hand, Mr. Manzoor, learned counsel for the respondent No.1 submitted that the judgement and decree has been passed by the learned trial court after examination of the available material on record and proper appreciation of law. It is also his submission that the plaint had been styled to be a claim under Fatal Accidents Act, but the case was tried as a civil suit. The evidence brought on record by the appellant has remained un-rebutted and has been correctly appreciated. Reliance is placed on the judgment of the co-ordinate Bench of this Court in State & Ors. Vs. Hafiza & ors. wherein the Division Bench judgment of this Court reported in 2015(II) SLJ 568 (HC) has also been referred to and the learned counsel submitted therein that the appellate court can interfere only if the evidence recorded by the trial court is not correct reflection of deposition of witnesses, when the findings are not according to law and the documents are not considered. Learned trial court having not misread the evidence or applied the law incorrectly, the appeal be as such, dismissed.

It requires to be noted at the very inception that though the judgment and decree is enforceable against all the official respondents including the State, but the said defendants have not challenged it. The appellant herein is only the functionary of the respondent-State and it is not intelligible as to how he in the individual capacity has challenged the judgment and decree without their being an authorization.

Be it so, even otherwise the appellant and respondents 2 to 4 have not been able to satisfy the learned trial court about the force of the contentions raised in terms of the written statement either about the maintainability of the suit or about the right of the respondent No.1 herein to realize the compensation from them.

Admittedly respondent no.1 was minor at the time accident took place. The evidence on record examined on behalf of respondent no.1 has remained un-rebutted and as such, issue No. 1, 2 and 3 have been decided in favour of respondent No.1. The learned trial court has believed that the accident took place due to negligence of the department and in consequence of this accident the right hand of respondent No.1 was injured/damaged and rendered him disabled.

Similarly, the formula worked out for calculation of the compensation cannot be said to be bad on any count. It is being explained in terms of the impugned judgment:-

"...Admittedly the plaintiff has already underwent two surgeries for which he has incurred expenses of Rs.50,000/- on medicines only(as stated by the medical witness). Therefore, Rs.50,000/- on account of medical expenses are awarded in favour of the plaintiff. He has remained hospitalized from 8.7.2022 to 24.8.2002 and again from 19.12.2003 to 23.1.2004. So the plaintiff has remained during the period of nineteen months admitted in the hospital. Obviously he was minor at that time and attended in the hospital by his father who is the only earning hand in the family of the plaintiff thus he too was forced to be away from his earnings because of the accident of his son. So the plaintiff is to be compensated for his attendant as well. In my opinion Rs.2,000/- per month are suffice for attendant which comes to 19 x 2,000 = Rs. 38,000/- from July 2002 to Jan. 2004. The plaintiff lives at Berwah and obviously he had to be carried to SKIMS off and on for treatment and for follow up as well during above period. Rs.5,000/- in lump are in my opinion are just for travelling therefore, awarded in his favour on account of transportation from his home to the hospital.

It has also come on record that the plaintiff requires further 3 to 4 surgeries but such surgeries are performed in Delhi. The surgeries may cost 3 to 4 lacs but at the same time it has also come on record that after further surgeries the plaintiff cannot be 100% fit. The plaintiff obviously requires an attendant while he is moved 3 to 4 times to Delhi and also for the post operations period he requires the service of attendant in Delhi. Therefore, Rs. 4,00,000 are also awarded in his favour for 3 to 4 surgeries which include expenses to be incurred in tests, consultation, surgeries, medicine, boarding and lodging in Delhi, and travelling but for the attendant during the above period Rs.25,000/- in lump are also awarded in favour of the plaintiff.

It has also come on the record that despite undergoing further surgeries he will not be 100% fit therefore for loss of future prospects of life and amenities Rs.2.00 lacs are just and not exorbitant, thus awarded in favour of the plaintiff.

For physical pain, sufferings loss of pleasures and charm in life, mental agony and torture life, loss of love and affection due to disability Rs.1.00 lac is awarded in his favour.

The disability to the petitioner rendered him dependant on others because he is not able to work with the affected hand therefore on account of loss of income he is required to be compensated. Rs.2.00 lacs are just and not exorbitant if granted on this count.

I am also well aware of the fact that inspite of compensating the petitioner he is not able to have a normal walk of life during the days ahead however the compensation so granted in his favour is just a solace so that he is able to live with honour and dignity in the society. Therefore the issue no.3 is decided in favour of the plaintiff and against the defendants. The plaintiff is entitled to compensation of Rs.10.18 lacs as per the breakup given above..."

It is the acknowledged principle in grant of compensation that same is to be worked out on some guess work. The learned trial court has proceeded in the matter while keeping in view this principle. Approach cannot be faulted with. The evidence on record has been properly appreciated and the contentions raised in the memo of appeal are thus found to be without any merit.

Viewed thus, no merit is found in the instant appeal which is liable for dismissal, as such, is dismissed along-with all ancillary applications.