Jammu & Kashmir High Court
Union Of India vs Imran Khan (Minor-8 Years) on 19 October, 2023
Sr. No. 47
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 19.10.2023
Case No: CFA No.38/2014
IA No. 1/2016
IA No. 47/2014
1. Union of India
Through Defence Secretary, New Delhi.
2. Union of India through Commanding
Officer, 25 R.R. C/o 56 APO. .....Appellant(s)..
Through :- Mr. R.S.Jamwal, CGSC.
Vs
Imran Khan (Minor-8 years)
S/o Sh. Mohd. Ishaq
Through his father
Mohd. Ishaq S/o Abdullah,
R/o Dandi Dhara Chiti Bhatti,
Tehsil Surankot, District Poonch. ....Respondent(s)..
Through :- Mr. Rahil Raja, Advocate.
Mr. Qamar Zaman Qureshi, Advocate.
Case No: CFA No.37/2014
IA No. 46/2014
IA No. 1/2016
1. Union of India through
Defence Secretary, New
Delhi.
2. Union of India through .....Appellant(s)..
Commanding Officer, 25 R.R.
C/o 56 APO.
Through : Mr. R.S.Jamwal, CGSC.
Vs
Zamir Ahmad (Minor)
S/o Mohd. Ishaq through
his father Mohd. Ishaq
S/o Abdullah, R/o Dandi
Dhara Chiti Bhatti,Tehsil ....Respondent(s)..
Surankot, District Poonch.
2 CFA Nos. 38/2014,
37/2014 & 39/2014
Mr. Rahil Raja, Advocate.
Through : Mr. Qamar Zaman Qureshi, Advocate.
Case No: CFA No. 39/2014
IA No. 48/2014
IA No. 1/2015
IA No. 1/2016
1. Union of India through
DefenceSecretary,New Delhi.
2. Union of India through ...Appellant(s)..
Commanding Officer, 25 R.R.
C/o 56 APO.
Mr. R.S.Jamwal, CGSC.
Through :
Vs
Mohd. Asif (Minor-10yrs) S/o
Sh. Mohd. Ishaq (Infact
Mushtaq Ahmad) Through his
father Mohd. Ishaq S/o
Abdullah, R/o Dandi Dhara ...Respondent(s)..
Chiti Bhatti, Tehsil Surankot,
District Poonch. Mr. Rahil Raja, Advocate.
Mr. Qamar Zaman Qureshi, Advocate.
Through :
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
19.10.2023
1. The appeal has been preferred against judgment and decree dated
14.03.2014 passed by the learned District Judge, Poonch wherein the
learned trial court decreed the three suits by clubbing them together and
37/2014 & 39/2014
awarded compensation in each case as mentioned in the judgment in
favour of the plaintiff.
2. The File No. 31/Civil titled 'Mohd. Asif v. Union of India and another',
File No. 32/Civil titled 'Imran Khan v. Union of India and another' and
File No. 33/Civil titled "Zamir Ahmad and another v. Union of India
and another' were disposed of by the trial court by the common
judgment. The judgment and decree passed in the aforesaid suits stand
challenged by the appellants herein by three separate appeals which are
clubbed together for disposal, the same having arisen out of the common
judgment passed by the trial court.
3. It is suffice to mention herein that the applications in all the aforesaid
cases under Order 37 CPC were filed and allowed by the trial court and
the plaintiffs in those suits were declared as indigent persons and
permitted to sue the respondents as pauper.
4. The judgment and decree passed by the trial court in the aforesaid suits
is challenged on the ground that the trial court has passed the decree on
assumption and presumption and no evidence was brought on record by
the plaintiff in support of case. The trial court has treated the suit as if
one filed under the provisions of the Motor Vehicles Act. The court also
did not consider the fact that the plaintiff had been given ex-gratia relief
by the Government of Jammu and Kashmir. The appeals stand contested
by the respondent-plaintiff.
37/2014 & 39/2014
5. The record in all the three suits is also before this Court.
6. The case of the plaintiffs in all the suits before the trial court is that on
07.09.2008, the respondent-Company was stationed at Chiti Bhati,
Tehsil Surankote, District Poonch. The army did not take preventive
measures and the area of the blast was not sealed by the army by way of
protection by installing red flags. The son of each plaintiff got injured
due to the blast occurred in the area and suffered permanent disability as
mentioned in each suit. The plaintiff was also admitted in the hospital.
The plaintiff sought compensation in each case.
7. The defendants contested the claim of the plaintiff in all the cases. The
defendants denied the averments regarding the negligence on their part
as made out in the plaint. It is denied that any blast was made by the
defendant No.2 though it is admitted that a loud explosion was heard by
persons of the defendant-Company 70 meters away where the Company
had its operating base. The defendant admits that one fatal and three
non-fatal casualties had occurred due to the explosion. The loud
explosion was made by unknown terrorists. As per the police report, the
investigation was closed being untraced.
8. The learned counsel appearing for the appellants has reiterated the
submissions made in the appeal. There is no evidence on record to prove
that the occurrence took place due to the negligence of the appellant
No.2 and that the trial court has wrongly applied the maxim resipsa
37/2014 & 39/2014
loquitor in all the suits. The compensation assessed by the trial court is
on the basis of Motor Vehicles Act and Workmen's Compensation Act,
1923 which could not be done by the court.
9. The learned counsel appearing for the respondent-plaintiff has argued
that the trial court has rightly passed the decree in favour of the plaintiff
after thoroughly going through the evidence that has been brought on
record during the trial.
10. Issue No.1 : The court vide order dated 08.09.2011 framed issues in the
case. Issue No.1 pertains to the fact as to whether the plaintiff in all the
suits suffered permanent disability due to the injuries received while
coming back from school towards residence on 07.09.2008 at Chiti
Bhati, Tehsil Surankote, District Poonch due to the blast executed by the
appellant No.2 herein. The blast was due to the act committed by the
appellant No.2 and resulted into permanent disability of the plaintiff was
required to be proved by the plaintiff. The trial court on account of the
statements recorded by the witnesses has held that the blast was caused
by the defendant-Company and no precautionary measure was taken by
the army authorities while executing the blast. So far as disability
suffered by the defendant is concerned in consequence to the injuries
received by the plaintiff due to the blast, the same cannot be disputed.
However, the prime question which requires answer in the matter is if
the blast had been caused by the appellant No.2. It may be mentioned
37/2014 & 39/2014
herein that the suits have been instituted by the minor children through
their respective father. The statements of the father of each child have
been recorded. In File No.31 in addition to the statements of father
Mushtaq Ahmad the statements of Mohd. Azeem, Abdul Ganie, Mohd.
Sadeeq and Dr. Shalinder Sharma have been recorded. In File No. 32
and 33, the statement of father Mohd. Ishaq and the statements of Mohd.
Azeem, Abdul Ganie, Mohd. Sadeeq and Dr. Shalinder Sharma have
been recorded. In other words, the witnesses except the father of the
children are same in all the cases. The perusal of the statements of the
witnesses produced in the suits reveal that they are not witness to the
alleged blast which purportedly resulted into permanent disability to the
plaintiffs. It is, however, evident from the statements of the said
witnesses that some blast occurred around or nearby the area where 25
RR C/o 56 APO Company i.e. appellant No.2 was stationed and the
people reached the spot of the blast after sometime. The area where the
blast took place was not secured by any means by the appellant No.2.
The blast resulted into injuries to the children who were on their way
back from school to their homes. It may be noted herein that the
defendants did not produce any evidence in rebuttal. However, it is also
pertinent to note that the defendants in the written statements filed in the
case did mention that the army people reached the spot after the blast
took place though they denied that the blast was executed by the
37/2014 & 39/2014
defendant No.2. The plaintiffs also received injuries in the occurrence
are not denied. The Court while deciding the issue as to whether the
plaintiff was able to prove negligence held that it may be difficult or
impossible for the plaintiff to explain the acts or omissions which lead to
the damage due to certain circumstances. The trial court applied the
maxim resipsa loquitor. The learned counsel for the appellant has argued
that the trial court could not apply this maxim in the suit proceedings
and more particularly in the facts and circumstances of the case. The
court is not in agreement with the argument of the counsel for the
appellant. The Court can take notice of the judgment passed by the
Hon'ble Supreme Court passed in case titled 'Krishna Bus Service Ltd.
vs. Smt. Mangli & ors.' (In Appeal Civil No. 971 of 1968) decided on
21.01.1976, where the court did not negate the principle of maxim
resipsa loquitor applied by the trial court and the High Court and further
dismissed the appeal of the defendant on the other facts also.
11. The probabilities and not standard of proof as required in criminal cases
is to be seen in the suit. It has also come in the evidence of the plaintiffs
that the area where the blast took place was not secured by any sign or
by installation of red flags. Surprisingly the defendants did not produce
any evidence to rebut this claim of the plaintiffs. The incident was as a
result of terrorist activity though pleaded by the counsel for the
defendant did not get any support as no evidence was brought to the
37/2014 & 39/2014
light in this regard by the defendants before the trial court. How the blast
occurred in the area could not be ascertained by the plaintiff and it was
sufficient for the plaintiffs to prove that the blast did occur which caused
injuries and resultantly the children suffered permanent disability. Why
the defendants did not produce any evidence on record to rebut the case
of the plaintiff is not made known to the court. The circumstances
emanating from the record and also in view of the fact that the
defendants did not produce any evidence to rebut the case of the plaintiff
the same shows that there was negligence on the part of the respondent
No.2 which caused the blast and consequently the injures to the children,
who were returning home from the school at that time. The plaintiff(s) in
all the suits have produced Dr. Shalinder Sharma, Orthopaedic Surgeon
who is one of the signatories to the medical disability certificate issued
by the Board. The injuries received by the children in all the cases as
mentioned in the certificates cannot be disputed. The certificates issued
qua all the victims are duly proved by Dr. Shalinder Sharma. The
certificates are duly exhibited. The court finds no reason to interfere in
the finding of the trial court which held the issue No.1 having been
proved by the plaintiff in all the suits and against the defendants.
12. Issue No.2 reads as under :-
"Whether the army authority has not taken any preventive
measures before blasting and has committed negligence in
execution of the blast? OPP
37/2014 & 39/2014
13. The trial court has decided the issue in favour of the plaintiffs and
against the defendants in view of what had been held by it while
deciding the issue No.1. The court has held that the defendant No.2 had
not taken preventive measures and did not install red flags as a result the
occurrence took place due to negligence of the defendant. The Court
finds no reason to take a view different from what has been taken by the
trial court. The issue stands decided in favour of the plaintiffs and
against the defendants.
14. Issue No.3 reads as under :-
"If the issue No.1 and 2 are proved in affirmative, to what extent
the compensation, the plaintiff is entitled to and from whom? OPP
15. The trial court while deciding the compensation issued has taken the
notional income of the injured minor in terms of the Motor Vehicles Act
and calculated the compensation with reference to the percentage of loss
of earning capacity qua the injuries suffered and resulting into
permanent disability of the victims as per the Schedule I of the
Workmen's Compensation Act, 1923.
16. The learned counsel for the appellant has vehemently argued that the
trial court could not, in any case, invoke the provisions of aforesaid Acts
while assessing the compensation.
17. Learned counsel for the respondent-plaintiff has argued that the court
has not erred in awarding the compensation to the plaintiffs in all the
37/2014 & 39/2014
suits. The method applied by the trial court in assessing the
compensation is as per law.
18. The court is of the view that the trial court has awarded compensation in
favour of the victims who were minors at the time of occurrence and
were school going children. If the trial court has assessed the
compensation keeping in view a specific formula there is no reason to
find fault in it. It is suffice to mention that the plaintiffs have suffered
permanent disability for which they were required to be compensated.
The trial court has found the disability of the plaintiff-Mohd. Asif and
Imran Khan as 40% and of that Zameer Ahmad as 20%. The learned
counsel could not otherwise counter the assessment made by the trial
court of the permanent disability suffered by the victims.
19. The learned counsel for the appellant has also raised a plea during the
course of argument that the so called victims had been granted ex-gratia
relief to the tune of Rs.75000/- and, therefore, the plaintiffs were not
entitled to any relief in the suit for that reason also. The appellants have
not taken any such plea in the appeals filed by the appellants. The trial
court has dealt with this plea of the appellants herein and on the strength
of the judgments has held that the ex-gratia compensation paid to the
claimants by the State Authorities has nothing to do with the
compensation to be assessed in the suits and the amount of ex-gratia
cannot be deducted while assessing the compensation. The trial court
37/2014 & 39/2014
has held the plaintiffs entitled to receive the compensation to the tune of
Rs.1,08,000/- in File No. 31, Rs.2,16,000/- in File No.32 and
Rs.1,20,960/- in File No. 33 along with costs and interest @ 7.5% per
annum from the date of institution of the suit till realisation. The
defendants, appellants herein, have been saddled with the liability to pay
the compensation to the plaintiffs in all the suits.
20. No reason to interfere in the judgment and decree passed by the trial
court.
21. The appeals are, accordingly, dismissed. Decree sheet to follow in all
the appeals.
22. Copy of the judgment be placed on all the files.
(PUNEET GUPTA)
JUDGE
Jammu:
19.10.2023
Pawan Chopra
Whether the Judgment is speaking: Yes/No
Whether the Judgment is reportable: Yes/No
PAWAN CHOPRA
2023.10.21 10:33
I attest to the accuracy and
integrity of this document
