SATYAVIR Vs. SATBIR SINGH

JUDGEMENT

(1.) The defendant is in Second Appeal against the judgment and decree of both the Courts below whereby, suit of the plaintiff for recovery by way of damages, to the tune of Rs. 62,500/- along with interest @ 8% per annum has been decreed from the date of occurrence i.e. 28.1.2001 till the date of realization, against defendant No. 1 and 2 jointly and severally.

(2.) The case set up by the plaintiff is that on 28.1.2001 at 10.30 PM defendant No. 1, while driving tempo Tata 407 bearing No. HR.46A/5715, under the employment of defendant No. 2, while coming from the direction of Bahadurgarh in a rash and negligent manner dashed against the shop-cum-kothara of the plaintiff and damaged it completely, which caused loss to him to the tune of Rs. 62,500/-. One FIR No. 38 dated 29.1.2001, under Sections 279 & 336 IPC, was also registered at the instance of plaintiff against defendant No. 1 at Police Station, City Bahadurgarh. It was alleged that defendant gave an assurance to indemnify the plaintiff of the damage, which was caused because of his negligence, but the assurance was not fulfilled which led to the filing of the suit. On notice, defendant No. 2, vide order dated 24.10.2002 was proceeded against ex parte whereas vide order dated 22.1.2003, name of defendant No. 3, was deleted from the array of the suit. Defendant No. 1, in his written statement alleged that the story of the plaintiff is concocted and he is not responsible for any damages.

(3.) After the total denial of the defendant, the plaintiff filed replication reiterating the stand taken in the plaint. On the pleadings of the parties, following issues were struck: