Jammu & Kashmir High Court
Reserved On 26.12.2023 vs Muzaffar Hussain Shah Son Of Khadam on 28 December, 2023
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CFA No. 60/2014
Reserved on 26.12.2023.
Pronounced on 28.12.2023.
1 UOI Th. Secretary Ministry of Defence
New Delhi. 2. Commanding Officer 45-
RR care of 56 APO
..... appellant (s)
Through :- Mr. R.S.Jamwal CGSC.
V/s
Muzaffar Hussain Shah son of Khadam .....Respondent(s)
Hussain Shah r/o Sanai, Surankote, Poonch.
Through :- Mr. Mumtaz Choudhary Advocate.
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1 Present appeal has been filed against the judgment dated
06.08.2014 passed by the District Judge, Poonch ('trial Court' for short) in File
No. 11/Civil accepting the suit of the plaintiff-respondent herein and passing a
decree for payment of Rs.5,28,000/- with interest @ 7.5% per annum from the
date of institution of the suit.
Factual matrix:
2. On 25.11.2004 at about 8.30 pm, the army personnel of 45 RR after
ambushing the house of the plaintiff-respondent herein (hereinafter referred to
as the 'plaintiff') situated at village Sanai Tehsil Sunrakote asked him to come
out from his house. As soon as the plaintiff opened the door, the Army
personnel resorted to indiscriminate firing upon him, as a result of which, the
plaintiff received injuries on his right arm. After the occurrence, the army took
him in the army hospital and thereafter the plaintiff was referred to GMC
Jammu where he remained admitted for treatment. Due to the act of the army
personnel, the plaintiff has become completely handicapped with permanent
disablement of his arm and, therefore, could not earn his livelihood. The
Deputy Commissioner, Poonch had granted him an ex-gratia relief of
Rs.75000/-. Since the amount granted by the Deputy Commissioner was very
meager and the same has been spent by the plaintiff on his treatment, he served
a legal notice upon the appellants herein for making payment but all in vain
which constrained the plaintiff to file a suit for recovery of Rs.10.00 lac as
compensation on account of his disablement due to bullet injuries of the Army.
3 The appellants appeared before the trial Court and resisted the
claim of the plaintiff on the ground that due to the firing of militants the
plaintiff was injured, as such, there was no negligence on the part of the
appellants herein and, therefore, the appellants are not liable to make any
payment of compensation to the plaintiff .
4. The trial Court, has after perusing the evidence
and hearing the parties, framed following issues:
(i) Whether due to the indiscriminate firing of the Army
during the night of 25.11.2007 the plaintiff was seriously
injured when he on the direction of the army came out from
his house at Sanai ? OPP
(ii) In case issue No.1 is proved in negative, whether the
plaintiff was injured due to the indiscriminate firing of the
militants when they came out from the house of the plaintiff on
being challenged by the army? OPD
(iii)Whether the plaintiff has already received an ex-gratia
relief of Rs.75000/- from the State if so what is its effect on
the suit ?OPP
(iv) In case issue No.1 is proved in affirmative whether the
plaintiff is entitled to compensation if so from whom and to
what extent ? OPP
5 The present case entirely depends upon issue No.1.
So far as issue No.1 is concerned, the trial Court has held that the appellants
herein had failed to produce any witness in support of their contention, whereas
the plaintiff/respondent herein has established the fact that he was injured due
to the firing of the army when he opened the door at the call of the army
officials. In this way, the issue No.1 was decided in favour of the plaintiff and
against the appellants. In view of the findings recorded by the trial Court on
issue No.1, other issues were also decided against the appellants herein. The
trial Court, in view of the findings recorded on all the issues, vide judgment
impugned, found the plaintiff entitled to compensation. It is this judgment
the Trial Court which is under challenge in this appeal.
6 The impugned judgment has been challenged by the appellants on
the ground that the appellants are not liable to pay the amount as they have not
committed any negligence. It is submitted that by accepting Rs.75000 as
compensation from the Deputy Commissioner on account of injury received by
the plaintiff, he is not entitled to claim compensation on account of any
negligence on the part of the army and, therefore, he is esttoped to raise such a
plea.
7 On the other hand, learned counsel for the plaintiff/respondent
herein has submitted that the trial Court has not committed any mistake either
on facts or on law in arriving at a conclusion with regard to compensation
granted to the plaintiff/respondent herein. It is submitted by learned counsel for
the plaintiff that the plaintiff has proved his case before the trial Court and,
therefore, the appeal deserves to be dismissed. Learned counsel for the plaintiff
in support of his case has relied upon judgments of the Supreme Court
rendered in cases titled Helen C. Rebello and others vs. Maharashtra State
Road Transport and another (1999) 1 SCC 1990 and Sarla Verma and
others vs. Delhi Transport Corporation and another (2009) 6 SCC 121.
8 Heard learned counsel for the parties and perused the material on
record.
9 The appellants have raised a two fold plea before this Court.
Firstly, that onus was on the plaintiff/respondent to prove that he got injured
due to the bullet fired by the appellants and secondly, that the appellants have
already granted ex-gratia relief in favour of the plaintiff/respondent for the
injury suffered by him.
10 It is noticed that all the witnesses produced by the plaintiff before
the trial Court have supported the contention of the plaintiff that due to the
indiscriminate firing of the army during the night of 25.11.2007, the plaintiff
was seriously injured. On the other hand, the appellants have not denied the
indiscriminate firing upon the plaintiff when he opened the door but their plea
was that they fired in retaliation of the firing by the militants. They have
further stated that it was due to the firing of the militants the plaintiff received
injuries. The appellants chosen not to produce any witness in support of their
contention whereas the plaintiff has established the fact that he got injured due
to the firing of the army when he opened the door at the call of the army
officials. It has been proved that due to the indiscriminate firing of the army,
the plaintiff received serious injuries. Therefore, the plea of the appellants that
no cogent evidence has been led by the plaintiff to prove that the bullet which
struck him was fired by the 45 RR troops is unacceptable.
11. The other ground raised by learned counsel for the appellant is
that by accepting Rs.75000/- as compensation from Deputy Commissioner
Poonch on account of injury received in militants operation, the plaintiff is not
legally entitled to claim compensation on account of any negligence of army
personnel and, therefore, is estopped to raise such a plea for obtaining
compensation. An ex gratia payment is a voluntary payment made by an
organization, government, or other entity to an individual or group of
individuals. It is a gesture of goodwill by the Government/organization to
compensate any loss or hardship faced by an individual in terms of the rules
applicable. There is difference between ex gratia and compensation. In law,
ex-gratia payment is a payment made without the giver recognizing any
liability or legal obligation. If, for any reason, the legal representatives of the
deceased or injured, or those, who lost their belongings, as the case may be, are
not satisfied with the payment of ex gratia, it is always open to them to
approach the appropriate forum for compensation, by adducing evidence.
Therefore, there is no substance in the plea of the appellants that the
plaintiff/respondent herein is not entitled to any compensation.
12 Thus, keeping in view the nature of injuries, the trial Court has
rightly awarded compensation in favour of the plaintiff/respondent herein. The
compensation awarded by learned trial Court in the present case, is just, fair
and equitable. Therefore, I do not find any infirmity in the impugned judgment
Under these circumstances, the appeal is dismissed.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu
28.12.2023
Sanjeev Whether order is reportable:Yes/No
