Joginder Bai And Others vs State Of Haryana Through ...
2021 Latest Caselaw 741 P&H

LPA No.384-2020 (O&M)                                                   --1--


            IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH


                                           CM-984-85-LPA-2020 in/and
                                           LPA No.384-2020
                                           Date of Decision: 24.02.2021


JOGINDER BAI AND OTHERS                              ....APPELLANTS..


                                           Versus


STATE OF HARYANA AND OTHERS                          ....RESPONDENTS


CORAM: HON'BLE MR. JUSTICE JASWANT SINGH
       HON'BLE MR. JUSTICE SANT PARKASH

Present : Mr. Narender Singh Kamboj, Advocate,
          for the appellants.

            Ms. Shruti Jain Goyal, DAG, Haryana.

            ****

SANT PARKASH, J.

CM-984-LPA-2020 For the reasons mentioned in the application, delay of 59 days in

filing the appeal is condoned.

CM stands disposed of.

CM-985-LPA-2020

Application for exemption from filing certified copies of writ

petition, written statement and annexures is allowed as prayed for.

CM stands diposed of.

Main case

The appellants have filed the present appeal, being aggrieved against

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the judgment dated 24.02.2020 passed by learned Single Judge, who has

disposed of the writ petition with liberty to the writ petitioners to avail the

remedy/remedies as may be available to them in accordance with law.

Brief facts of the case are that on 31.05.2016 Gurnam Singh had

gone to a barber shop at his village Hijrawan Khurd and when he was coming

out of the said shop, a branch of an aged kikker tree fell upon him. As a result

of which, he sustained injuries and ultimately, succumbed on the same day.

Copy of the DDR No.36 dated 31.05.2016 and the postmortem report dated

31.05.2016 are annexed with the file. On account of death of Gurnam Singh,

appellants-petitioners sought compensation and served legal notice dated

08.09.2016 upon the respondents, which was illegally denied. Resultantly,

appellants-petitioners approached this Court by way of CWP No.10977 of

2018, inter alia, seeking a writ in the nature of mandamus to direct the

respondents to pay compensation to the tune of Rs.25 lakhs.

The afore-mentioned writ petition was disposed of by the learned

Single Judge vide impugned judgment dated 24.02.2020 with liberty to the

petitioners to avail the remedy/remedies as may be available to them in

accordance with law. Feeling aggrieved against the above-said order dated

24.02.2020, the appellants-petitioners preferred the instant appeal.

Learned counsel for the appellants has contended that the impugned

judgment has been passed by the learned Single Judge without appreciating the

pleadings and material placed on record and as such, the impugned judgment is

liable to be set aside. The findings of the ld. Single Judge regarding no

evidence of the old aged kikkar tree are totally erroneous as the application

dated 30.03.2016 (P-9) would reveal that the kikkar trees standing on the

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public place were in dry condition. This fact has been verified by Gram

Panchayat of village Hijrawan Khurd that the kikkar tree was in dry condition

and it was dangerous for the general public at large. Further elaborating his

arguments, he has submitted that the husband of appellant No.1 died due to the

injuries sustained on account of falling of time-worn branch of kikker tree.

Since, the said kikker tree belonged to the respondents and had the respondents

authority taken an appropriate care and maintained the said kikker tree and

would have removed the time-worn branches, the aforesaid accident could

have been avoided. The negligence on the part of the respondents in

maintaining the said kikker tree is well apparent on the face of it and

respondents are liable to pay the compensation as claimed.

Learned State counsel refuting the arguments as raised by learned

counsel for the appellants has prayed for dismissal of the instant appeal

submitting that the judgment rendered by the learned Single is in consonance

with the settled cannons of law. She further submits that the tree in question

was a healthy one and is still existing on the spot.

We have heard learned counsel for the parties and perused the

record.

Before adverting to the matter in hand, it is noted that Letters Patent

Appeal (LPA) is an appeal by the petitioners against the decision of a Single

Judge to another Bench of the same Court. It is an intra-court appeal in High

Court. The scope of the LPA is limited to the extent whether the judgment

under appeal is permissible in law and is in consonance with the settled canons

of law. Reference in this regard can gainfully be made to the judgment of the

Hon'ble Supreme Court in Management of Narendra and Company Vs

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Workmen: 216(3) SCC 340, wherein it has been held that unless the

Appellate Bench reaches to a conclusion that the finding of the learned Single

Bench is perverse, it shall not disturb the same and there should be no

interference with the order passed by the learned Single Judge merely because

another view or a better view is possible.

While relegating the appellants-petitioners to avail the

remedy/remedies as may be available to them in accordance with law, learned

Single Judge has done the complete justice. The allegations of the appellants

are that Gurnam Singh died due to the injuries sustained on account of the

falling of a time-worn branch of the kikker tree. Though, the appellants-

petitioners have placed on file the documents in the form of Daily Diary Report

No.36 dated 31.05.2016 and postmortem report dated 31.05.2016 (Annexures

P-1 and P-2) but both these documents, by any stretch of imagination, cannot

be said to be the conclusive pieces of evidence to ascertain the amount of

compensation on account of the alleged incident. As rightly observed by

learned Single Judge, the controversy involves the disputed questions of fact,

which cannot be decided while exercising the writ jurisdiction. There are

certain facts which are to be proved and opportunity has to be given to the

respondents to rebut the same and only thereafter, it can be ascertained as to

what was the cause of death and what was the age of kikker tree including as to

whether the falling of such time-worn branch of kikker tree resulted into the

fatal incident.

Consequent upon our aforesaid discussion, we concur with the

findings recorded by the learned Single Judge that controversy revolves around

the dispute questions of fact and the appellants are at liberty to avail the

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appropriate remedy available to them in accordance with law.

In view of the aforesaid discussion, we do not find any infirmity or

illegality in the impugned judgment dated 24.02.2020, and the same is hereby

affirmed.

Dismissed.

            (JASWANT SINGH)                           (SANT PARKASH)
                JUDGE                                     JUDGE


24.02.2021
sonika
            whether speaking/reasoned: Yes/No
            whether reportable:        Yes/No




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