1. The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein - original defendants - State of Gujarat and another to quash and set aside the impugned judgement and decree dated 20/03/2004 passed by learned 3rd Joint Civil Judge (S.D.), Junagadh in Special Civil Suit No.92 of 1999 as well as impugned judgement and order dated 12/10/2007 passed by learned Principal District Judge, Junagadh in Regular Civil Appeal No.176 of 2005, by which, learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by learned Trial Court awarding a sum of Rs.35,000/- to the respondent herein - original plaintiff by way of compensation for the injury caused by leopard at the time when respondent herein - original plaintiff was working in his own agricultural field outside the forest area.
2. That the respondent herein - original plaintiff instituted Special Civil Suit No.92 of 1999 against the appellants herein - original defendants in the Court of learned Joint Civil Judge (S.D.), Junagadh claiming compensation of Rs.2,75,000/- for injury caused to him by leopard while he was working in his own agricultural field. That the suit was resisted by original defendants by filing written statement at Exh.8. It was the case on behalf of the State that the State was not responsible for the attack by the leopard and, therefore, they are not liable to pay compensation to the original plaintiff.
It is submitted by Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants that at the most original plaintiff is entitled to get compensation of Rs.2,500/- as per the policy of the State Government. Learned Trial Court framed issues and both the sides led evidence documentary as well as oral and on appreciation of evidence, learned Trial Court partly decreed the suit and directed the appellants herein - original defendants to pay compensation of Rs.35,000/- with 9% interest from the date of filing of the suit till realization.
3. Being aggrieved by and dissatisfied with the judgement and decree dated 20/03/2004 passed by learned Trial Court in Special Civil Suit No.92 of 1999 awarding compensation of Rs.35,000/- with 9% interest to the original plaintiff, the appellants herein – original defendants preferred Regular Civil Appeal No.176 of 2005 before learned District Court, Junagadh and learned Principal District Judge, Junagadh by impugned judgement and order dated 12/10/2007 dismissed the said appeal confirming the judgement and decree passed by learned Trial Court awarding compensation of Rs.35,000/- with 9% interest to the original plaintiff.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, appellants herein – original defendants have preferred the present second appeal u/s.100 of the Code of Civil Procedure.
4. Mr.Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants herein – original defendants has further submitted that both the Courts below have materially erred in holding that original defendants are responsible for attack by the leopard and consequently awarding compensation of Rs.35,000/- with 9% interest to the original plaintiff. It is further submitted that both the Courts below have materially erred in awarding compensation of Rs.35,000/- with 9% interest when the plaintiff failed to led evidence with respect to injury caused to him and proved by documentary evidence. Therefore, it is submitted that learned Trial Court has materially erred in awarding compensation of Rs.35,000/- with 9% interest to the original plaintiff.
5. Mr.Anshin Desai, learned advocate has appeared on behalf of the respondent herein – original plaintiff and has opposed the present second appeal by submitting that considering the evidence on record and even considering the fact that original plaintiff was hospitalized and taken treatment for 14 days, no illegality has been committed by learned Trial Court in awarding compensation of Rs.35,000/- with 9% interest to the original plaintiff and no illegality has been committed by learned Appellate Court in confirming the judgement and decree passed by learned Trial Court.
6. So far as quantum of compensation is concerned, Mr.Anshin Desai, learned advocate appearing on behalf of the respondent herein – original plaintiff has left the same to the Court and has requested to grant reasonable amount of compensation to the original plaintiff considering the fact that in fact original plaintiff sustained injury by leopard.
7. Heard learned advocates appearing on behalf of the respective parties at length and considered the judgement and orders passed by both the Courts below as well as considered records and proceedings of the case received from the learned Trial Court. It is not in dispute that in fact leopard attacked on the original plaintiff and he sustained injury. It has also come on record that he has taken treatment for 14 days in Civil Hospital as well as in other Hospitals. It is required to be noted that the appellants herein has deposited Rs.57,808/- before learned Trial Court, out of which the original plaintiff was permitted to withdraw Rs.17,808/-, which original plaintiff has already withdrawn and balance amount of Rs.40,000/- was directed to be invested in Fixed Deposits by learned Trial Court. Therefore, at present Rs.40,000/- is lying with the learned Trial Court in the Fixed Deposits. Considering overall facts and circumstances of the case and considering the fact that while original plaintiff was working in his own agricultural field, leopard attacked upon the original plaintiff and he sustained injury.
In the peculiar facts and circumstances of the case and without citing the same as precedent, this Court is of the opinion that if original plaintiff is permitted to withdraw a further sum of Rs.10,000/- (in all Rs.27,808/-), it will meet ends of justice and balance amount of Rs.30,000/- plus interest accrued on the said FDRs may be permitted to be withdrawn by the appellants herein.
8. In view of the above and for the reasons stated hereinabove, the present second appeal is disposed of by directing the learned Trial Court to pay a further sum of Rs.10,000/- to the original plaintiff, out of an amount of Rs.40,000/- which has been deposited before learned Trial Court pursuant to the order dated 11/05/2010 passed by this Court in Civil Application No.7496 of 2008 and balance amount of Rs.30,000/- plus interest accrued on the said FDRs shall be paid to the appellants herein – original defendants - concerned Department by Account Payee Cheque. The aforesaid exercise shall be completed by the learned Trial Court within a period of one month from the date of receipt of the copy of the present order.
With this, the present second appeal is disposed of.
No costs.
*dipti [M.R.SHAH,J]