THE HON'BLE SRI JUSTICE M. LAXMAN
SECOND APPEAL No.982 OF 2016
JUDGMENT:
1. The present appeal has been directed against judgment and decree dated 07.04.2016 passed in A.S.No.5 of 2012 by the Judge, Family Court-cum-IV Additional District Judge, Adilabad, wherein and whereby the judgment and decree dt.10.04.2012 passed in O.S.No.7 of 2009 by the Senior Civil Judge, Adilabad was confirmed. The said suit was filed by the 1st respondent herein for compensation for the injuries sustained by him for the acts of negligence of 3rd respondent, who was engaged by the appellant and he was in the service of 2nd respondent. The said suit was decreed granting compensation of Rs.3,00,000/- with interest directing the appellant, 2nd and 3rd respondents herein jointly and severally liable .
2. The present appeal is at the instance of the 2nd defendant in the suit. The 1st respondent is the plaintiff, 2nd respondent is the 1st defendant, 3rd respondent is 3rd defendant in the suit. For brevity, the ranks of the parties as they were referred in the suit, is maintained.
3. The sum and substance of the case of the plaintiff is that on 17.11.2004 at about 8.00 a.m., he was returning from Gopala Krishna Temple after performing pooja and when he was near Gopala Krishna Mandir, bullet, which was intended to kill stray dogs and pigs, was fired 2 ML,J SA No.982 of 2016 by the 3rd defendant, and it hit the plaintiff on his temporal region, as a result, he suffered grievous injury. Immediately, he was shifted to Government Hospital, Adilabad. Subsequently, he was shifted to NIMS and later to Care Hospital, Hyderabad and he suffered 35% neurological deficiency on account of injury and he also incurred expenditure for treatment and other incidental charges. As such, he claimed Rs.5,00,000/- as compensation.
4. The case of the defendants is that they did not deny the fact that 3rd defendant was working under the 1st defendant and he was engaged by the 2nd defendant to eliminate the stray dogs and pigs, which were causing nuisance to the public and there is also no denial of the fact that bullet which was fired by the 3rd defendant, hit the plaintiff. However, the defendants claimed that there was no negligence on the part of the 3rd defendant, but it was due to sudden appearance of the plaintiff, bullet hit him and also pleaded that the expenditure claimed is on higher side and compensation is also on higher side and that the defendants are not liable to pay any compensation.
5. Basing on the above pleadings, the Primary Court framed the following issues:
1. Whether the plaintiff is entitled for compensation as prayed for?
2. Whether there is negligence on the part of defendant No.3?
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3. Whether Government is vicariously liable to pay compensation?
4. Whether the defendants are individually liable?
5. To what relief?
6. The plaintiff in order to prove his case, got examined PWs.1 to 3, and relied upon Ex.A1 to A18. On behalf of defendants, DWs.1 to 3 were examined and no document is marked.
7. The primary Court after appreciating the evidence on record found that the injuries sustained by the plaintiff was on account of rash and negligence of 3rd defendant who is the servant of 1st defendant and engaged by the 2nd defendant to kill the stray dogs and pigs and consequently, fixed compensation of Rs.3,00,000/- and ordered the defendants to pay the compensation jointly and severally. Aggrieved by the same, the 3rd defendant as well as 2nd defendant preferred the appeals. By a common impugned judgment, both the appeals were dismissed by confirming judgment and decree of trial Court. Aggrieved by the same, the present second appeal is filed.
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8. The main contention of the learned Standing Counsel for the appellant/2nd defendant is that both the Courts have not properly appreciated the rebuttal evidence on record, which clearly shows that 4 ML,J SA No.982 of 2016 there was no negligence on the part of the 3rd defendant and the incident occurred on account of own negligence of the plaintiff. It is also his contention that both the Courts have shifted the burden of proof wrongly on the defendants instead of plaintiff. Therefore, according to him, the findings suffer from perversity.
9. Going through the evidence on record, both the Courts have found that the firing activity by the 3rd defendant constitutes the act of negligence. Even without proof, the negligence can be inferred by invoking the doctrine of Res Ipsa Loquitur. The circumstances surrounding the incident clearly manifests that 3rd defendant fired the bullet in a public movement place without taking proper precaution of movement of the inmates in the locality. The act of 1st and 2nd defendant in engaging the services of 3rd defendant for killing stray dogs and pigs with bullets in a residential locality is an act of negligence and breach of duty of care which was supposed to be taken in a similar circumstance by a prudent person and burden of proof is rightly placed. No fault can be found. In the said circumstances, I do not find any perversity in the findings of both the Courts below. There is no substantial question of law to be framed and appeal is liable to be dismissed.
10. Accordingly, the appeal is dismissed with costs.
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11. As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________ M. LAXMAN, J DATE:17.08.2022 BDR