STATE OF GUJARAT Vs. GOVINDBHAI JAKHUBHAI

JUDGEMENT

(1.) The Appellant-State of Gujarat challenges in this appeal the judgment and order dated 3-9-1982 passed by the learned Civil Judge (S.D.), Himatnagar, in Special Civil Suit No. 33 of 1979, holding it to be vicariously liable for the tortious act of its police constable and decreeing compensation of Rs. 1,98,000/- with 6 percent interest from the date of the suit till payment and costs, in favour of the present respondent No. 1, Govindbhai, who was the original plaintiff.

(2.) The plaintiff's case was that at the relevant time when he had undertaken the work as a contractor for construction of Rajendranagar Dam, the present respondent No. 2, Keshabhai, who is the original defendant No. 2, was working as a Police Constable at Raigadh Outpost and was in the service of the appellant- State of Gujarat, who was the original defendant No. 1. On 22-4-1976, after the close of the work for the day, the plaintiff was proceeding to Himatnagar for purchasing a kingpin for his damaged truck and when he was passing by the Raigadh Police Outpost, which is on the highway, he came to know that the truck-driver, Devdan Duda, who was carrying some of his labourers in his truk, was detained in the Outpost and was being manhandled. The plaintiff, threfore, went inside the Police Outpost and requested the Constable, defendant No. 2 desist from beating the driver, asking him that he may take legal action as may be warranted, but should not take law into his own hands. Thereupon, the defendant No. 2-Constable became excited and started abusing the plaintiff and gave him threats. He asked another policeman to bring his rifle from the adjoining room, and on getting the rifle, he confirmed his hostility towards the plaintiff and before the plaintiff could run away, he fired a shot at him, which hit the plaintiff on his right thigh above the knee-cap. The plaintiff fell down and had to be carried by his son Hirjibhai in the jeep-car to the hospital at Himatnagar where he was admitted as an indoor patient. According to the plaintiff, he was transferred to the Civil Hospital, Ahmedabad for further treatment and thereafter was operated upon by an eminent Orthopaedic Surgeon. The bullet-injury, however, did not heal and the plaintiff had to get his right leg amputated above the knee-cap. The plaintiff thus lost his limb because of illegal and unauthorised firing by the defendant No. 2. According to the plaintiff, the defendant No. 2 had acted wrongfully, illegally and unauthorisedly in assaulting and injuring the plaintiff. It was contended that since the defendant No. 2 was in the service of the defendant No. 1 at the relevant time and since the defendant No. 2 acted illegally and wrongfully and fired the shot from his rifle at the plaintiff with a view to cause injury, the act of the defendant No. 2 was a tortious act for which the defendant No. 1 was vicariously liable. According to the plaintiff, because of his confinement to the hospital for a period of more than six months and loss of his leg, he was not able to attend to his work as a contractor for 12 months. He was having a monthly income of Rs. 3,500/- at the relevant time, which was loss to him for a period of 12 months. Moreover, he had to employ two persons for getting the work done, which he would have done himself and had, therefore, to spend Rs. 1500/- per month. He had lost his earning capacity by 50% as a result of this tortious act of defendant No. 2 and his yearly economic loss would come to Rs. 18,000/-, and that, at the multiplier of 7, he was entitled to claim Rs. 1,26,000/- by way of compensation. For loss of enjoyment of life and diminution in full pleasures of living, he claimed Rs. 25,000/-. For the personal expenses, he claimed a further sum of Rs. 25,000/-; for mental shock, he claimed Rs. 25.000/-, and, for diminished capacity to work, a further sum of Rs. 25,000/- He also claimed Rs. 25,000/- for future expenses on medical treatment.The total claim was put up at Rs. 2,26,000/-. Statutory notice under Sec. 80 of the Code of Civil Procedure, 1908 was sent by the plaintiff to the State, which was served on 15-2-1979. According to the plaintiff, both the defendants were liable for the tortious act of the defendant No. 2 which resulted in grievous injury to the plaintiff.

(3.) In the written statement, Exh. 25, the allegations regarding the incident were denied. It was alleged that on the contrary the plaintiff and others had tried to attack the Police Outpost and had obstructed the public servants in discharge of their duties. It was alleged that the plaintiff had received injuries due to his own wrong. It was denied that he was illegally, wrongfully or unauthorisedly assaulted and injured by the defendant No. 2. It was alleged that the plaintiff had taken law in his own hands and tried to overawe the public servants in discharge of their duties by criminal assault and intimidation. In the alternative, it was contended that the defendant No. 2-Constable did not have any authority to fire from his rifle and that he had deliberately fired from his rifle with a view to cause injury to the plaintiff, for which the State of Gujarat is not liable. It was contended that for unauthorised and deliberate acts of its employees, the State of Gujarat was not liable and there was no vicarious responsibility on the part of the State of Gujarat for the alleged wrong done to the plaintiff. The plaintiff was put to strict proof regarding the amputation of his right leg and its being lost because of the unauthorised and illegal firing of the defendant No. 2 and also to the strict proof of proving that he was not in a position to walk or that he had to walk on crutches. It was denied that the defendant No. 2 committed any tortious act, during the course of the employment of the defendant No. 1. It was also denied that the deprivation of leg had resulted in great financial loss to the plaintiff. Various other contentions raised in the plaint were specifically denied.