1. ADMIT. Following substantial question of law arises in the present second appeal :
(i) Whether learned Trial Court is justified in awarding Rs.40,000/- towards loss of salary; Rs.30,000/- towards attendant charges; Rs.50,000/- towards pain, shock and suffering; Rs.10,000/- towards transportation, nutritious food, etc., though the same is never claimed by the plaintiff in the claim and even the same is not proved by leading evidence more particularly when no such issue has been framed by learned Trial Court?
Mr.B.D.Karia, learned advocate waives service of notice of admission on behalf of the respondent.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present second appeal is taken up for final hearing today.
3. The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant herein - original defendant to quash and set aside the impugned judgement and decree dated 29/09/2007 passed by learned Trial Court i.e. learned Civil Judge (S.D.), Amreli in Special Civil Suit No.152 of 2002 as well as impugned judgement and order dated 13/01/2012 passed by learned Appellate Court i.e. learned 2nd Additional District Judge, Rajula in Regular Civil Appeal No.66 of 2011, by which, learned Appellate Court has dismissed the said appeal preferred by the appellant herein - original defendant and confirmed the judgement and decree passed by learned Trial Court decreeing the suit and directing the appellant herein - original defendant to pay Rs.3,00,000/- towards compensation to the original plaintiff with interest at the rate of 9% per annum from the date of filing of the suit till realisation.
4. Facts leading to the present second appeal, in nutshell, are as under:
That the respondent herein - original plaintiff instituted Special Civil Suit No.152 of 2002 against the appellant herein - original defendant in the Court of learned Civil Judge (S.D.), Amreli for recovery of Rs.3,00,000/- by way of compensation on the ground that the appellant herein did not exercise proper care and skill while giving injection on his left thigh and, therefore, the plaintiff was required to be operated and he was required to get treatment at Vadodara, Hospital and he remained as indoor patent for three months and he has incurred expenditure of Rs.3,00,000/- for medical treatment.
That the suit was resisted by the appellant herein - original defendant by filing written statement at Exh.8. The defendant denied allegations and averments in the plaint and negligence on the part of the appellant herein in giving injection on the left thigh of the original plaintiff. It was specific denied that he had given injection on the left thigh but according to the defendant, some unqualified inexperienced doctor had given injection at Village: Khisri. It was the case on behalf of the appellant that after giving him primary treatment, the plaintiff was referred to Civil Hospital at Amreli and, therefore, he requested to dismiss the suit. Learned Trial Court framed issues at Exh.9. Both the sides lead evidence documentary as well as oral. That the plaintiff produced medical bills of Rs.1,72,682/-. That learned Trial Court vide judgement and decree dated 29/09/2007 decreed the suit and directed the appellant herein – original defendant to pay a total sum of Rs.3,00,000/- with interest at the rate of 9% per annum from the date of filing of the suit till realisation on the following heads:
(i) Rs.1,72,682/- towards expenditure incurred by plaintiff towards medical treatment;
(ii) Rs.40,000/- towards loss of salary of three months as he was required to remain in Hospital as indoor patient;
(iii) Rs.30,000/- towards service of attendant;
(iv) Rs.50,000/- towards pain, shock and suffering;
(v) Rs.10,000/- towards transportation, nutritious food, etc.
5. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court decreeing the suit and directing the appellant herein to pay total a sum of Rs.3,00,000/- towards compensation with interest at the rate of 9% per annum from the date of filing of the suit till its realisation, the appellant herein – original defendant preferred Regular Civil Appeal No.66 of 2011 before learned District Court, Amreli and learned Appellate Court i.e. learned 2nd Additional District Judge, Rajula by impugned judgement and order dated 13/01/2012 has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court decreeing the suit.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Court below directing the appellant herein to pay Rs.3,00,000/- with interest at the rate of 9% per annum from the date of filing of the suit till realisation, the appellant herein – original defendant has preferred the present second appeal under section 100 of the Code of Civil Procedure.
6. Mr.Chauhan, learned advocate appearing on behalf of the petitioner herein – original defendant has submitted that both the Courts below have materially erred in holding the appellant negligent for the injection administered to the original plaintiff on his left thigh as alleged. It is submitted that by holding the appellant negligent for the injection administered on the left thigh of the plaintiff, the Courts below have not properly appreciated the evidence on record. It is further submitted that in any case and even otherwise the learned Trial Court has materially erred in awarding Rs.40,000/- towards loss of three months salary; Rs.30,000/- towards attendant charges; Rs.50,000/- towards pain, shock and suffering; Rs.10,000/- towards transportation, nutritious food, etc.. It is submitted that the aforesaid amount were never claimed by the plaintiff and for which learned Trial Court did not frame any issue. It is submitted that as such the plaintiff claimed Rs.3,00,000/- for expenditure incurred by him towards medical treatment and the plaintiff proved expenditure of Rs.1,72,682/- only by leading evidence. At the most, learned Trial Court could have passed decree for an amount of Rs.1,72,682/- only.
By making above submissions, it is requested to allow the present second appeal.
7. Mr.Bhargav Karia, learned advocate appearing on behalf of the respondent herein – original plaintiff has tried to support the impugned judgement and decree passed by learned Trial Court and confirmed by the learned Appellate Court. However, from the evidence on record and considering the judgement and decree passed by learned Trial Court and confirmed by learned Appellate Court, he is not in a position to satisfy the Court how the learned Trial Court could have granted Rs.40,000/- towards loss of three months salary; Rs.30,000/- towards attendant charges; Rs.50,000/- towards pain, shock and suffering; Rs.10,000/- towards transportation, nutritious food, etc.. He is not in a position to dispute for the aforesaid as neither there were any pleadings in the plaint nor any issue has been framed by learned Trial Court and, therefore, he has requested to pass an appropriate order.
8. Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and orders passed by both the Courts below as well as considered records and proceedings of the case, which are available from the learned Trial Court.
9. At the outset, it is required to be noted that learned Trial Court has awarded total a sum of Rs.3,00,000/- towards compensation on the following heads:
(i) Rs.1,72,682/- towards expenditure incurred by plaintiff towards medical treatment;
(ii) Rs.40,000/- towards loss of salary of three months as he was required to remain in Hospital as indoor patient;
(iii) Rs.30,000/- towards service of attendant;
(iv) Rs.50,000/- towards pain, shock and suffering;
(v) Rs.10,000/- towards transportation, nutritious food, etc.
However, it is required to be noted that in the plaint original plaintiff claimed a total sum of Rs.3,00,000/- towards medical treatment and/or expenses incurred by him towards medical treatment. It is admitted position that in the plaint, plaintiff never claimed any amount towards loss of three months salary; towards attendant charges; towards pain, shock and suffering; towards transportation, nutritious food, etc.. It is required to be noted that even learned Trial Court has not framed any issues with respect to loss of salary; attendant charges; pain, shock and suffering; transportation, nutritious food, etc.. Even the plaintiff has not proved any expenditures incurred by him towards attendant charges, transportation, nutritious food, etc. by leading evidence. The plaintiff could proved an amount of Rs.1,72,682/- towards medical treatment/expenditure by producing medical bills, etc.. Under the circumstances, learned Trial Court has materially erred in awarding compensation of Rs.3,00,000/-. Learned Trial Court has materially erred in awarding Rs.40,000/- towards loss of three months salary; Rs.30,000/- towards attendant charges; Rs.50,000/- towards pain, shock and suffering; Rs.10,000/- towards transportation, nutritious food, etc.. Under the circumstances, the impugned judgement and decree passed by learned Trial Court confirmed by learned Appellate Court deserves to be modified to the extent allowing the suit to the tune of Rs.1,72,682/- with 9% interest only.
10. In view of the above, the present second appeal succeeds in part. The impugned judgement and decree dated 29/09/2007 passed by learned Trial Court i.e. learned Civil Judge (S.D.), Amreli in Special Civil Suit No.152 of 2002 as well as impugned jugement and order dated 13/01/2012 passed by learned Appellate Court i.e. learned 2nd Additional District Judge, Rajula in Regular Civil Appeal No.66 of 2011 are hereby modified to the extent decreeing the suit to the extent of Rs.1,72,682/- with interest at the rate of 9% per annum from the date of filing of the suit till realisation.
It is reported that the appellant herein – original defendant has deposited a sum of Rs.1,25,000/-, which original plaintiff has withdrawn and, therefore, the appellant herein is now required to deposit balance amount, which shall be deposited by the appellant herein within a period of four weeks from today and on such deposit, it will be open for the original plaintiff to withdraw the same, which shall be paid to him by learned Trial Court on proper identification and verification. The aforesaid second appeal is allowed to the aforesaid extent.
In view of the disposal of the main second appeal, Civil Application No.8057 of 2012 does not survive and the same is also accordingly disposed of. No costs.
[M.R.SHAH,J] *dipti