Shri Ram Nath Jain & Ors. vs Shri Hari Om Devi & Others
2011 Latest Caselaw 1095 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.413 /2001


%                                                 23rd February, 2011

SHRI RAM NATH JAIN & ORS.                               ...... Appellants
                     Through:         None

                          VERSUS


SHRI HARI OM DEVI & OTHERS                              ...... Respondents

Through: None

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. This matter is on the Regular Board of this Court since

17.1.2011. Today, it is effective item no.5 on Regular Board. None appears

for the appellant though it is 12:15 pm. I have therefore perused the record

and am proceeding to dispose of the matter.

2. The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and decree dated 2.7.2001 whereby the suit for recovery of

money of the appellants against the respondents was dismissed. The suit for

recovery of damages was filed on account of death of Sh. Sanjay Jain who

was the son of the appellant No.1 and which death was said to have been

caused on account of explosion in the gas cylinder kept by the respondent

No.2 for the purpose of welding in his shop which pertained to repair of

cycles and sale of second hand cycles.

3. The facts as pleaded in the plaint are that the deceased son of

the appellant No.1/plaintiff No.1, namely, Sh. Sanjay Jain was passing by the

shop which was owned, managed and operated by the defendants and in

which shop since the respondent Nos.2 and 3/defendant Nos.2 and 3 were

doing the work of welding rashly and negligently, a blast took place in the

gas cylinder in the shop and on account of which incident late Sh. Sanjay Jain

suffered grievous injuries and died on his way to the hospital. It was pleaded

in the plaint that late Sh. Sanjay Jain was 20 years old at the time of his

death and was helping the appellant No.1 in his electric shop. It was also

pleaded that the deceased Sanjay Jain was an able bodied man keeping good

health, was a champion of karate and was coaching karate in a club. The

deceased Sanjay Jain had studied up to Class-X. The appellants/plaintiffs

who are the father, sisters and brothers of the deceased Sanjay Jain claimed

that the deceased would have survived for more than 50 years and would

have earned more than Rs.20 lakhs, however, since they did not possess

sufficient means of finance for affixing Court fee on a larger amount

therefore a sum of Rs.95,000/- was claimed as damages. The

respondents/defendants filed a joint written statement and pleaded that

there was no blast in the gas cylinder or the welding tank in the shop which

belonged to the defendant No.2. It was pleaded that the defendant No.2 was

a tenant under defendant No.1/his mother and that the defendant

No.3/brother of defendant No.2 had nothing to do with the shop of the

defendant No.2. It was pleaded that a chemical drum was lying outside the

shop and with which respondent No.2 had no concern and which exploded as

a result of extreme heat of the day and therefore the

respondents/defendants denied the liability for the damages as claimed in

the suit.

4. After the pleadings were complete, trial Court framed the

following issues:

"1. Whether the plaintiffs have no locus standi to file the present suit as alleged, if so, its effect? OPD

2. Whether there is no cause of action in favour of the plaintiff and against the defendants and the suit is liable to be dismissed U/o 7 Rule 11 CPC, as alleged, if so its effect? OPD

3. Whether the suit is bad for mis-joinder of defendants 1 & 3 as alleged, if so, its effect? OPD

4. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction as alleged, if so, its effect? OPD

5. Whether the plaintiff is entitled to claim any damages, if so, to what amount and from which of the defendants? OPP

6. Relief"

5. The appellants in support of their case examined ten witnesses

to prove: the FIR, the factum of death due to explosion in the gas cylinder

which belonged to the respondents/defendants, the post mortem report with

respect to the death and the other aspects as pleaded in the plaint. PW-1

Police Constable proved the FIR Ex.PW1/1, PW-2 was appellant No.1/plaintiff

No.1 father of deceased Sanjay Jain. PW-3 was a passer by at the time of the

incident and who knew the deceased Sanjay Jain as also the defendants.

PW-4, Sh. Hemchand Jain was an important witness because he was an

independent/neutral/impartial witness who was not in any manner related to

the appellants and who in fact had given his cycle for repair at the shop of

the defendant No.2 and was told by the defendant No.2 that the said cycle

would be repaired after completing the job of welding already in hand. PW-5

was the brother of Sanjay Jain and PW-6 was the witness from the school

where the deceased Sanjay Jain studied and who proved the age of the

deceased by the School Leaving Certificate Ex.PW6/1. PW-7 was ASI

Vijender Singh who proved the FIR Ex.PW1/1 by bringing the original record.

PW-8 was the Record Clerk from Maulana Azad Medical College, New Delhi

who proved the post mortem report as PW8/1 which was signed by Dr. Anil

Aggarwal. Dr. Anil Aggarwal, himself, and who was the Professor of Forensic

Medicines, Maulana Azad Medical College, New Delhi, was examined as PW-9

and PW-10 was the Ahlmad from the Court, who brought the file of the

criminal case which was filed against respondent No.2/defendant No.2 and

he proved the post mortem report as Ex.PW10/1 and the report under

Section 173 Cr.P.C. as Ex.PW10/2. The two witnesses from the side of the

defendants were Sh. Shiv Kumar, respondent No.2/defendant No.2 and Sh.

Shiv Shankar the brother of the respondent No.2/defendant No.2.

6. So far as issue No.3 is concerned, trial Court has held that

respondent No.3 not liable as the shop was only of the respondent

No.2/defendant No.2. I agree because the respondent No.2 had filed the rent

receipts on record and got them exhibited as Exs.DW1/1 to DW1/4. The

main issue in this case was/is issue No.5 as to the liability of the respondent

No.2/defendant No.2 for the death caused of deceased Sanjay Jain on

account of explosion of the gas cylinder. While dealing with this issue, the

trial Court has arrived at a finding that the defendant No.2 was doing welding

in his shop while the deceased Sanjay Jain was standing near him talking to

him and in the meantime the tank/gas cylinder burst and a portion thereof

struck against the head of the deceased Sanjay Jain. This finding, in my

opinion, is clearly correct because testimony of PW-4 was rightly relied upon

and who deposed that he had given his cycle for repairing the puncture to

the defendant No.2 and who said that he would do so after completing the

job of welding which was already in his hand showing that there did exist a

gas cylinder. The trial Court has also rightly relied upon the admission of the

defendant No.2 while examined as DW-1 that he was doing work of welding

in the shop at the relevant time. The trial Court after arriving at the

aforesaid finding of fact of Sh. Sanjay Jain dying due to explosion on account

of bursting of the gas cylinder and being hit by an object, being a part of the

cylinder, however, held that what really happened was only "Vis Major" i.e.

an act of god and an unforeseen event for which no one can be held

responsible. The trial Court while dealing with the issue has held that

welding with the help of a gas cylinder cannot be considered as a hazardous

or inherently dangerous activity and that there was no negligence on the

part of the respondent No.2 because there was no evidence on record as to

what was the pressure of gas inside the gas cylinder and the distance of the

gas cylinder from the deceased Sanjay Jain.

I have, for one, wholly failed to understand this reasoning of the

trial Court, which causes injustice to the appellants/plaintiffs in light of

detailed evidence of ten witnesses who have deposed with respect to the

incident of the bursting of the cylinder and the death of Sh. Sanjay Jain on

account of the blast caused by bursting of the cylinder. It would be

appropriate to reproduce paras 38 to 42 of the impugned judgment which

hold the respondent No.2 not guilty of negligence and the activity not being

inherently dangerous and which paras read as under:-

"38. Now it has to be seen whether doing the work of welding in his shop can be said to a hazardous or inherently dangerous activity. I am of the opinion that the doing of welding with the help of gas cylinder cannot be said to be a hazardous and inherently dangerous activity.

39. Such type of job is done invariably by many persons in the shops. The principle of strict liability, is not applicable in the facts and circumstances of the present case as the act of doing of welding with the help of gas cylinder of tank cannot be said to be a

hazardous or inherently dangerous activity. Now it has to be seen whether there was any negligent act was committed by defendant No.2 while doing welding. It is established fact that defendant No.2 was doing welding work with the help of gas cylinder and in that process the gas cylinder burst and something therefrom hit against the head of deceased Sanjay.

40. There is no evidence in the present case as to which place exactly the gas cylinder/tank was kept. There is no evidence on record as to what was the pressure of the gas inside the gas cylinder/tanki. There is nothing to show as to at what distance the gas cylinder/tanki was kept when the defendant no.2 was doing the welding work.

41. Unless it is shown that the defendant no.2 was very close to the gas cylinder thereby having the possibility of the fumes emitting in the cylinder valve leading to burst no negligence cannot be attributed to him. it is also not the case of the plaintiff that the defendant no.2 was novice and was not doing the work of welding regularly. There is no evidence on record as to how much of the valve of the gas cylinder was open. Simply because the defendant No.2 was doing the welding work in his shop and the gas cylinder burst, it cannot be said that the negligence can be attributed to defendant No.2.

42. In view of my above discussion I hold that the plaintiff has failed to prove as to what was the real reason of the bursting the gas cylinder. As no negligence can be attributed to the defendant No.2 it can be said that he was instrumental in causing the accident. Rather in the facts and circumstances of the case it can be safely concluded that incident was „Vis Major‟."

7. The aforesaid conclusions and findings of the trial Court are

wholly illegal and perverse because bursting of the cylinder and causing of

death of Sh. Sanjay Jain will clearly be covered under the doctrine "res ipsa

loquitor". This, I say so, because welding from a gas cylinder firstly should

not take place where members of the public are found to visit or pass by or

stand. It is established on record that the gas cylinder was kept in a place

which was open to the road i.e., the cylinder was kept in an open shop.

Further, the explosion in a normal gas cylinder is not a normal event and

thus, the respondent No.2 was bound to prove that the cylinder was of a

proper ISI make and not defective and was pressurized only to a correct

limit. The respondent No.2 only filed a certificate dated 29.5.1992

Ex.DW1/5, which showed the cylinder was purchased from one M/s. M.S.

Traders however, the said certificate in no manner contains or proves the

factum of the cylinder being a cylinder having been manufactured by an

authorized manufacturer and being of the requisite ISI specifications. The

Courts have repeatedly applied the doctrine "res ipsa loquitor" in cases

where circumstances of the case so warrant. In the present case, the

circumstances of the case warrant that this doctrine be applied to hold the

respondent No.2 guilty of negligence for bursting of the gas cylinder which

caused the death of Sh. Sanjay Jain at the age of about 20-21 years. The

stand of the respondent No.2 that the death took place not because of

bursting of gas cylinder but because of bursting of a drum containing some

chemical lying unattended beside the shop which did not belong to

respondent No.2 was clearly unbelievable in the facts and circumstances of

the present case. The testimonies of the independent witnesses, especially

PW-4 of respondent No.2 doing welding work, and which naturally would

require the gas cylinder, admittedly proved that it was the respondent No.2

who was doing welding work by using the gas cylinder. I may, at this stage,

note that the respondent No.2 appears to have been acquitted in the

criminal case filed against him, however, decision in a criminal case does not

bind the Civil Court because whereas the civil case is decided on the

balance of probabilities, a decision in a criminal case requires proof beyond

doubt for conviction. I have therefore only to see the evidence as recorded

in the present case to determine the negligence of the respondent No.2.

8. It is, therefore, held by applying the doctrine of "res ipsa

loquitor" that death of Sh. Sanjay Jain took place on account of bursting of a

gas cylinder which was lying in the shop of the respondent No.2 and which

gas cylinder burst because either it was not of requisite quality or was not

correctly pressurized or the same was negligently being used.

9. The next issue which arises for determination is the

compensation which should be awarded to the appellants. It has been held

in the case of M/s Grewal Vs. Deep Chand Sood 2001 (8) SCC 151 that

principles applied while deciding cases under the Motor Vehicles Act, 1988

can also be applied to deaths caused by negligence under the law of torts .

In the recent decision by the Supreme Court in the case of Sarla Verma Vs.

DTC 2009 (6) SCC 121 the Supreme Court has exhaustively considered all

the earlier decisions on the aspect of determination of the compensation

which should be paid. The Supreme Court has laid down the ratio as to what

multiplier is to be applied, what deductions are to be made and ultimately

what compensation has to be awarded. Step one is to ascertain the income

of the deceased per annum out of which deduction should be made for the

amount which the deceased would have spent on himself and which is a

deduction of 50% in case of bachelors-deceased Sanjay Jain was a bachelor.

Step two is to ascertain the multiplier and which multiplier is 18 in case the

deceased is between 18 years to 25 years at the time of his death-deceased

Sanjay Jain was 20/21 years of age at the time of his death. Step three is

the actual calculation in which besides the compensation to be awarded on

the basis of the income of the deceased, further amounts can be awarded

towards loss of dependency, funeral expenses, medical expenses and so on.

Applying the ratio of the decision in the case of Sarla Verma

(Supra) and the evidence which has been laid in the case of the deceased

being about 20 years of age and helping his father in running his shop, and

the father stating that he would in future have earned about Rs.10,000/- per

month but in the cross-examination stating that the deceased was at the

time of his death effectively earning about Rs.1,000/- per month, and the

fact that in future a higher amount would have been earned, I find that the

monthly income of the deceased should be taken at Rs.1500/- per month

and annual income therefore comes to Rs.18,000/-. Out of the amount of

Rs.18,000/- a sum of Rs.9000/- will have to be deducted towards the

personal expenses of the deceased Sanjay Jain who was a bachelor. Since

however there has to be reasonable guess work and estimate which has to

be done by the Court considering that Sanjay Jain may have married late or

never married and also whether the sisters would have married or when

married and also, considering all the other related facts and circumstances, I

hold that the monthly income of the deceased Sh. Sanjay Jain should be

taken at Rs.1,000/- per month instead of reducing the multiplier from 18 to a

lower figure. Therefore the disposable income would be 500/- per month of

the deceased after considering the deduction of 50% for his personal status

as a bachelor. In the facts of the present case, therefore, the compensation

which is liable to be awarded would the income of be Rs.6,000/- per year

multiplied by 18 i.e. a sum of Rs.1,08,000/-, however, since the appellants

have only claimed a sum of Rs.95,000/-, this amount is awarded in favour of

the appellants and against the respondent No.2 with pendente lite and

future interest @ 4% per annum till realization of the decretal amount.

10. Accordingly, a decree is passed in favour of the appellants and

against the respondent No.2 for a sum of Rs.95,000/- with pendent lite and

future interest @ 4% per annum simple till realization of the decretal

amount. Parties are left to bear their own costs. Decree sheet be prepared.

Trial Court record be sent back.

FEBRUARY 23, 2011                              VALMIKI J. MEHTA, J.
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