Improvement Trust, Bhiwani v. Madhu Bala & Ors.

Present : Mr.Rajinder Goyal, Advocate, for the appellant. K.C.PURI, J. (ORAL) This is regular second appeal preferred by the Improvement Trust, Bhiwani against the judgment dated

30.11.2009 passed by Additional District Judge (Fast Track Court), Bhiwani vide which the appeal preferred by the defendant now appellant against the judgment dated 18.05.2006 passed by Civil Judge(Senior Division), Bhiwani, was dismissed. Madhu Bala filed suit for recovery of Rs.1,50,000/- against the defendant-appellant and others claiming compensation to the tune of Rs.1,50,000/- on account of death of his son Vicky Vikas @ due to electrocution of live electric wire lying in electric pole adjacent to the fountain installed in Nehru Park, Bhiwani. R.S.A NO.1737 OF 2010 -2- The case of the plaintiff is that she had two sons and her elder son was Vicky alias Vikas. On 31.05.1995 at about 6:00 P.M, she along with her sons went to Nehru Park near Ghanta Ghar, Bhiwani for recreation. At about 6:30 PM, her elder son came into contact with live electric wire lying near the electric pole adjacent to the fountain and got electrocuted. Defendant Nos.1 and 2 filed joint written statement and submitted that the defendant Nigam has no concern with fitting and installation of Nehru Park, Bhiwani and the same is maintained by Improvement Trust, Bhiwani. Defendant No.3 filed separate written statement denying the contents of the plaint and submitted that park is maintained by defendant No.4-Improvement Trust. Defendant No.4-Improvement Trust filed written statement and denied the contents of the plaint. It was pleaded that it was the duty of the plaintiff to look after her children. The plaintiff did not file replication. From the pleadings of the parties, following issues were framed by the trial Court : 1) Whether the plaintiff is entitled to recover a sum of Rs.1,50,000/- as compensation on account of death of Vicky @ Vikas, as alleged ? OPP 2) Whether the plaintiff has no locus standi to file the present suit ? OPD R.S.A NO.1737 OF 2010 -3- 3) Whether the plaintiff has not come to the Court with clean hands ? OPD 4) Whether the plaintiff has no cause of action to file the present suit ? OPD 5) Whether the suit is not maintainable in the present form ? OPD 6) Whether the suit is bad for non-joinder and mis- joinder of necessary parties ? OPD 7) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ? OPD 8) Relief. Learned trial Court, after appraisal of the evidence, decreed the suit of the plaintiff for recovery of Rs.1,50,000/- holding that defendant-Improvement Trust is liable to pay the amount. Aggrieved to the said judgment, defendant No.4- Improvement Trust preferred the appeal which was dismissed by the Additional District Judge (Fast Track Court), Bhiwani vide judgment dated 30.11.2009. Feeling dissatisfied with the judgment dated

30.11.2009 and 18.05.2006, the present regular second appeal has been preferred by the Improvement Trust. R.S.A NO.1737 OF 2010 -4- Along with the appeal, an application for condonation of delay of 19 days in filing the appeal has been filed. The same stands condoned on the grounds mentioned in the application. As per para 8 of the grounds of appeal, the following substantial questions of law are involved in the present regular second appeal : 1) Whether the impugned judgment and decree passed by the learned Courts below thereby holding that the appellant is liable to pay Rs.1,50,000/- to the respondent No.1/plaintiff as compensation on account of death of his son Vikki @ Vikas along with interest @ 9% per annum from the date of filing the present suit till its actual realization are illegal, suffers from material irregularities and as such are liable to be set aside ? 2) Whether while passing the impugned judgment and decree, the learned Courts below erred in law and fact, misread, misconstrued and misinterpreted the oral as well as documentary evidence available on the record as also the mandatory and settled preposition of law ? 3) Whether in the absence of any evidence with regard to cause of death, whether the liability to pay the compensation on account of death can be fastened upon the appellant ? 4) Whether the liability to pay compensation on account of death of a child cannot be fastened upon R.S.A NO.1737 OF 2010 -5- the appellant, when the death of the child took place due to fault, carelessness, negligence on the part of the guardian of the child ? Learned counsel for the appellant has submitted that the amount of Rs.1,50,000/- in respect of death of Vicky @ Vikas aged about 4-½ years is on the higher side. It is further contended that it is on account of fault of the plaintiff that her son has died. It is further contended that the trial Court has misread and misinterpreted the evidence available on the record and returned the concurrent finding against the defendant- appellant. I have heard learned counsel for the appellant and gone through the file carefully. No question of law much less substantial question of law has arisen in the present appeal. Learned counsel for the appellant could not point out how the finding of fact recorded by both the Courts below to the effect that defendant-appellant is negligent in electrocution of child, is wrong. There is nothing on the file to show that both the Courts below have misinterpreted and misread the evidence, arriving at the conclusion that it was legal duty of the appellant to maintain the public place i.e Nehru Park, free from live wire. It is also finding of fact that Vicky @ Vikas died due to electrocution. The amount of Rs.1,50,000/- in respect of death of child cannot be said to be in any way excessive. R.S.A NO.1737 OF 2010 -6- In view of the above discussion, the appeal is without any merit and the same stands dismissed. JULY 12, 2010 shalini (K. C. PURI) JUDGE