The Adilabad Municiality, vs Peddaiwar Srinivas
2022 Latest Caselaw 4173 Tel

             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.

[

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