Dharambir Bajaj vs Uoi & Ors.
2013 Latest Caselaw 4564 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 3th October, 2013

+      RFA 248/2001 and CMs no.20685/2010, 8147/2011, 10255/2013 (all
       of the appellant u/O 41 R-27 CPC).

       DHARAMBIR BAJAJ                                         ..... Appellant
                   Through:            Ms. Amita Gupta, Adv.

                                    Versus
       UOI & ORS.                                          ..... Respondents
                         Through:      Mr. Rahul Chopra for Mr. Jagjit
                                       Singh, Adv. for R-1&2.
                                       Mr. Rajiv Shukla & Ms. Sneha
                                       Mukherjee, Advs. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 19 th February,

2001 of the Court of the Addl. District Judge, Delhi of dismissal of Suit

No.106/1996 filed by the appellant for recovery of Rs.4,29,000/- as damages

from the respondents/defendants.

2. Notice of the appeal was issued. The appeal was on 15 th March, 2002

admitted for hearing. The appellant/plaintiff has filed CMs No.20685/2010,

8147/2011 & 10255/2013, all under Order 41 Rule 27 of the CPC. After

some hearing on 21 st February, 2011, the respondent/defendant no.3 Indian

Oil Corporation (IOC) was directed to re-consider whether the

appellant/plaintiff was entitled to any more compensation than Rs.10,000/-

already paid to him and a suggestion was also mooted for payment of a

further sum of Rs.2 lacs to the appellant/plaintiff towards compensation and

the respondent/defendant no.3 IOC was requested to sympathetically

consider the matter. However the appellant/plaintiff addressed a letter to the

Court objecting the said proposal of the Court, which was thus aborted.

3. The counsel for the appellant/plaintiff and the counsel for the

respondent/defendant no.3 IOC have been heard. No arguments have been

addressed by the counsel for the respondents/defendants no.1&2 Union of

India through the Ministry of Railways.

4. The appellant/plaintiff instituted the suit from which this appeal

arises, pleading:-

(a). that he was employed as a Junior Design Assistant with the

Ministry of Railways with pay package of Rs.1,313.90 per

month and posted at Lucknow;

(b). that during the course of his employment he was on or about

15th May, 1983 sent on tour to Delhi where he became the

victim of sudden fire and explosion at the LPG Bottling Plant at

Shakurbasti of the respondent/defendant no.3 IOC on 15th May,

1983;

(c). that though the appellant/plaintiff was 1.5 to 2 kilometers away

from the actual site of fire explosion but he was seriously

injured in his legs and was rushed to Hindu Rao Hospital and

was operated upon the same day and thereafter again on 27th

May, 1983 and was repeatedly put in plaster cast;

(d). that he was during aforesaid term advised to consume highly

nutritious non-vegetarian diet for healing of his wounds;

(e). that due to the said injury he suffered acute mental tension and

mental torture, separation from his family who were throughout

living at Lucknow and in physical pain;

(f). that the wife of the appellant/plaintiff who is also employed

with the Railways had to take large number of leaves for

attending to the appellant/plaintiff at Delhi;

(g). that the children of the appellant/plaintiff aged 15 years, 12

years and 10 years had to continue staying alone in Lucknow

for the sake of continuity of their education and the

appellant/plaintiff was thus forced to maintain two

establishments, one at Delhi and the other at Lucknow;

(h). that the plaster cast of the appellant/plaintiff was removed only

on 21st February, 1984 when he could walk with the help of

crutches;

(i). that the appellant/plaintiff at the time of the institution of suit in

or about April, 1985 was still expected to undergo more

operations;

(j). that the appellant/plaintiff had to spend huge amount on his

daily diet, take a house in Delhi at a rent of Rs.375/- per month

and spend on travel of his wife and children to and fro

Lucknow;

(k). that the appellant/plaintiff since the date of the accident and till

the institution of the suit was spending approximately

Rs.4,000/- per month by borrowing from relatives and friends;

(l). that the Union of India through the Ministry of Railways as

well as the IOC were jointly and severally liable to compensate

the appellant/plaintiff;

(m). that the respondent/defendant no.3 IOC had failed to visualize

such an explosion while maintaining such explosive materials

in the heart of the city without proper safety arrangements;

(n). the appellant/plaintiff would not have suffered such injuries had

the respondents/defendants no.1&2 Ministry of Railways not

sent the appellant/plaintiff on tour on the relevant date;

(o). that the injuries aforesaid were thus suffered by the

appellant/plaintiff in the course of his employment;

(p). that the respondent/defendant no.3 IOC vide its letter dated 25th

May, 1983 admitted its liability to some extent and showed

sympathy with the appellant/plaintiff and sent a cheque for a

sum of Rs.2,500/- as ex gratia payment to the

appellant/plaintiff; however the said amount was negligible and

inadequate; the wife of the appellant/plaintiff approached the

Chairman of the respondent/defendant no.3 IOC for adequate

relief and explaining the sufferings of the appellant/plaintiff and

was paid a further sum of Rs.7,500/- in installments and was

told that nothing further would be paid;

(q). that the respondents/defendants no.1&2 Ministry of Railways

also provided negligible financial aid of total Rs.3,000/- only to

the appellant/plaintiff; and,

(r). the appellant/plaintiff thus sought further compensation of -

 Rs.74,000/- towards costs calculated at Rs.4,000/- per

month from 15th May, 1983 till 30th April, 1985 for

medical treatment, special diet and miscellaneous

damages.

 Rs.50,000/- towards damages for physical bodily

pains, mental torture, mental tension and for

separation from the family and children.

                       Rs.5,000/- towards miscellaneous expenses.

                       Rs.1 lac as token damages for loss of pleasure of life,

                         conjugal rights and service to children.




                         Rs.2 lacs towards further increase in expenses due to

                         incapacity or diminished capacity for work.

5. The respondents/defendants no.1&2 Ministry of Railways contested

the suit, by filing a written statement, on the grounds:-

(i). denying that the appellant/plaintiff became a victim of accident

during the course of employment;

(ii). that the appellant/plaintiff was deputed on tour to Delhi for the

period 12th May, 1983 to 19th May, 1983 for participation along

with other officers and staff in the meeting of Carriage of

Wagon Standards Committee;

(iii). that the entire party was supposed to stay at the New Delhi

Railway Station Rest House; that he was also supposed to stay

at the Rest House, also to be available to his seniors for

necessary directions; however during the weekend i.e. 2 nd

Saturday (14th May, 1983) and Sunday (15 th May, 1983) the

appellant/plaintiff left New Delhi Railway Station without

intimation, possibly for private work to Shakurbasti and got

involved in the accident;

(iv). that as a measure of welfare, the wife of the appellant/plaintiff

was transferred from Lucknow and posted at New Delhi from

20th June, 1983 to 9th March, 1984;

(v). that the appellant/plaintiff and his wife were entitled to free

Railway passes and he, his wife and children would have

availed of the same for travelling to and fro Delhi - Lucknow;

(vi). denying that the appellant/plaintiff had sustained injuries in the

course of his employment;

(vii). that the Service Rules did not provide for compensation for loss

suffered during a private errand ;and,

(viii). that that appellant/plaintiff had been sanctioned Rs.75/- as

Handicapped Allowance.

6. The respondent/defendant no.3 IOC also contested the suit, by filing

written statement, on the grounds that the claim of the appellant/plaintiff was

fully discharged on 7th March, 1984 by paying his wife an amount of

Rs.10,000/- towards full and final payment of the claim and denying that the

appellant/plaintiff had suffered any other loss.

7. The appellant/plaintiff filed a replication to the written statement of

the respondents/defendants no.1&2 Ministry of Railways pleading, that he

could not stay at the Railway Station Rest House as there was limited

accommodation therein which was occupied by other officers and was not

entitled to any charges for hotel accommodation and had thus no option but

to seek shelter at the house of his relations at Shakurbasti; that the

appellant/plaintiff owing to the accident had to stay in Delhi for ten months

and run parallel establishments at Delhi and Lucknow. The

appellant/plaintiff also filed a replication to the written statement of the

respondent/defendant no.3 IOC pleading, that his wife was not authorized by

him to give any such discharge against receipt of Rs.10,000/-; that a fraud

had been played upon his wife in obtaining her signatures on a document of

full discharge against receipt of Rs.10,000/- without even supplying any

copy thereof to her; that the signatures of his wife could not bind him.

8. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 25th November, 1988:-

"1. Whether the suit is not maintainable? OPD

2. Whether plaintiff has got any cause of action against defendants in view of the allegations, made by defendants in the written statement? OPD

3. Whether plaintiff suffered any damages? If so, what amount of damages? OPP

4. Whether plaintiff is entitled to claim damages from defendants? If so, the amount? OPP

5. Relief."

9. The appellant/plaintiff examined himself only. The

respondents/defendants no.1&2 Ministry of Railways examined only one of

their officers as witness in defence. The respondent/defendant no.3 IOC

failed to produce any evidence despite opportunities.

10. The Addl. District Judge has in the impugned judgment

found/held/observed:-

(A). that the appellant/plaintiff had admitted receipt of Rs.10,000/-

by his wife from the respondent/defendant no.3 IOC towards

the claim lodged against the respondent/defendant no.3 IOC;

(B). that the appellant/plaintiff had admitted the signatures of his

wife on the receipt in full and final settlement of the claim

against the respondent/defendant no.3 IOC;

(C). that the appellant/plaintiff had not controverted or questioned

his wife as to why she had taken Rs.10,000/- towards full and

final settlement;

(D). that the appellant/plaintiff had not prevented his wife from

meeting the officers of the respondent/defendant no.3 IOC nor

he disagreed with his wife for having been in touch with the

said officers;

(E). the wife of the appellant/plaintiff had not come in the witness

box to support the claim of the appellant/plaintiff though was

cited as a witness;

(F). that the wife of the appellant/plaintiff had in her letter dated 7 th

March, 1984 written a note in her own hand writing as under:-

"This is full and final payment towards total claim against I.O.C. and I will not demand any further payment after recovery of total of Rs.10,000/- Ten thousand only. Rs.3500/- already obtained and Rs.6500/- being given now."

(G). that thus the claim of the appellant/plaintiff against the

respondent/defendant no.3 IOC stood fully satisfied on receipt

of Rs.10,000/- and the suit against the respondent/defendant

no.3 IOC was not maintainable;

(H). that it was an admitted fact that the appellant/plaintiff was

supposed to stay at Railway Rest House available at New Delhi

Railway Station;

(I). that the appellant/plaintiff in the plaint had not disclosed the

name and nature of relationship with the relations with whom

he allegedly stayed at Rani Bagh during the period from 12th

May, 1983 till he met with the accident; it was for the first time

in his examination-in-chief that he deposed that he had stayed at

his in-laws house at Rani Bagh;

(J). that the appellant/plaintiff though was at a distance of 1.5 to 2

kilometers from the occurrence of the blast but was hit on his

right leg with a broken cylinder;

(K). that the accident had happened on Sunday and the

appellant/plaintiff was on a private visit to the vicinity of the

site of the accident and his said visit was not in any manner

connected with the discharge of his official duties;

(L). that the appellant/plaintiff had thus not suffered any injury in

the discharge of his duties or during his employment and the

respondents/defendants no.1&2 Ministry of Railways were thus

not liable to pay any damages to the appellant/plaintiff;

(M). that the appellant/plaintiff had claimed TA for travel from New

Delhi Railway Station to the Office of the Railway Board

where the meeting was scheduled and not for travelling from

Rani Bagh to the Office of the Railway Board which was also

indicative of the appellant/plaintiff being required to stay at

New Delhi Railway Station and not at Rani Bagh;

(N). that the plea of the appellant/plaintiff that there was no

sufficient accommodation at New Delhi Railway Station is an

afterthought;

(O). that the appellant/plaintiff had not even examined his relations

or in-laws with whom he claimed to be staying at Rani

Bagh/Shakurbasti;

(P). that therefore the appellant/plaintiff could not be deemed to be

on official duty on 2 nd Saturday/Sunday when he met with the

accident and suffered injuries and the respondents/defendants

no.1&2 Ministry of Railways could not be held responsible to

pay any damages to the appellant/plaintiff;

(Q). that the appellant/plaintiff had admitted in his cross

examination that he, his wife and his children were entitled to

free Railway passes for travelling from Lucknow to New Delhi;

thus the claim for monies spent thereon was not established;

(R). though the appellant/plaintiff had in his examination-in-chief

stated that due to his hospitalization his wife had to take leave

without pay for attending to him but in cross examination

admitted that his wife was temporarily transferred to Delhi on

compassionate grounds to remain with him; therefore the claim

of the wife having taken leave without pay was negated;

(S). the appellant/plaintiff had in cross examination also admitted

that during his treatment he was provided with free medicines

from the Railway Hospital and did not spend anything towards

traveling expenses; therefore the claim for miscellaneous

expenses towards travelling etc. goes unproved;

(T). that the appellant/plaintiff had also admitted that he had taken

treatment from Railway Hospital and all these treatments were

given free;

(U). that the appellant/plaintiff had not proved any bills which he

might have paid for the expenses claimed to have been

incurred;

(V). thus it stood proved that all the expenses incurred by the

appellant/plaintiff for his treatment were fully borne by the

respondents/defendants no.1&2 Ministry of Railways;

(W). the appellant/plaintiff had not examined any person from whom

he claimed to have taken loan;

(X). that though the appellant/plaintiff had relied on a medical

certificates but the said certificates had not been proved in

evidence;

(Y). that the appellant/plaintiff had not produced any expert witness

to prove that he was required to take a special diet or high

protein diet for his speedy recovery;

(Z). that thus the claim of having incurred expenses of Rs.4,000/-

per month had not been established;

(AA). that appellant/plaintiff in his cross examination could not state

as to how his marital life had got disturbed due to the accident

and admitted that he had not suffered any disability with regard

to his marital obligations;

(AB). that there was nothing to prove that the children of the

appellant/plaintiff had suffered in any manner;

(AC). the appellant/plaintiff had not examined a single person who

may have looked after the children of the appellant/plaintiff

during his hospitalization;

(AD). that the appellant/plaintiff had not led any evidence to prove

any future increase in expenses;

(AE). the appellant/plaintiff admitted in cross examination that his

service conditions as well as service benefits had not been

reduced in any manner due to the accident and was rather

receiving Rs.75/- per month towards his disability;

(AF). thus the claim of the appellant/plaintiff for future increase in

expenses due to diminished capacity was not established;

(AG). that there was no evidence to indicate that the appellant/plaintiff

had to hire domestic help to take care of his children;

(AH). the appellant/plaintiff had not adduced any evidence to prove

that he had to rent out accommodation at Delhi;

(AI). that in the absence of any proof of physical pain, mental torture,

mental tension and separation from family, no damages on that

account could be awarded;

(AJ). that the appellant/plaintiff had been sufficiently compensated

by the respondents/defendants no.1&2 Ministry of Railways as

well as respondent/defendant no.3 IOC for the physical bodily

pain, mental torture, mental tension, separation from family

etc.; and,

(AK). the appellant/plaintiff had not suffered any damages.

Accordingly the suit was dismissed.

11. I have perused the Trial Court record. The appellant/plaintiff though

initially had along with the suit filed an application for permission to sue as

an indigent person but the said application was subsequently withdrawn and

the requisite Court Fees filed. I have also perused the testimony of the

appellant/plaintiff and do not find any flaw in the findings returned by the

learned Addl. District Judge on the basis thereof. The counsel for the

appellant/plaintiff also has been unable to point out any part of the evidence

which the learned Addl. District Judge may have ignored or on the basis

whereof the learned Addl. District Judge may have drawn erroneous

conclusion except for stating that the learned Addl. District Judge was

unduly swayed by the travelling of the appellant/plaintiff and his family to

and fro Lucknow being free and has not considered the expenses incurred on

conveyance to and fro Railway Station at both the places. However upon

being asked to show the basis for such an argument in the evidence, nothing

could be shown. The counsel for the appellant/plaintiff also argued that the

appellant/plaintiff had taken accommodation at Delhi on rent of Rs.375/- per

month. However neither is there any proof of the same nor could the counsel

inform as to where the rented accommodation was, whether close to the

Railway Station or far away. In fact it was enquired from the counsel for the

appellant/plaintiff whether the appellant/plaintiff or his wife were drawing

HRA during the said time. All that was informed was that there was nothing

on record with respect thereto and it was tentatively suggested that they were

staying in a railway accommodation at Lucknow. However on further

enquiry whether the wife of the appellant/plaintiff on temporary transfer to

Delhi was drawing HRA, no information could be given. I however find on

record some rent receipts filed by the appellant/plaintiff of an

accommodation in Rani Bagh but the same have not been proved.

12. I also do not find on record any document showing the extent of the

injuries suffered by the appellant/plaintiff save for a certificate issued by the

Hindu Rao Hospital, Delhi which too also has not been proved, to the effect

that the appellant/plaintiff had suffered 50% partial permanent disability of

multiple fractures of the femur bone.

13. The counsel for the respondent/defendant no.3 IOC of course

contends that the appellant/plaintiff is bound by the receipt of full and final

settlement issued by his wife.

14. The counsel for the appellant/plaintiff responds by contending that the

appellant/plaintiff is not bound by the signatures of his wife.

15. I have invited attention of the counsel for the appellant/plaintiff to

National Insurance Company Ltd. Vs. Boghara Polyfab Pvt. Ltd. (2009) 1

SCC 267 I have enquired from the counsel for the appellant/plaintiff

whether the appellant/plaintiff at any time after signing of the said receipt by

his wife issued any letter of protest to the respondent/defendant no.3 IOC

and how was the payment received whether in cash or by cheque.

16. It is informed that no such protest was lodged and the payment

received of Rs.10,000/- was in cash.

17. I have enquired from the counsel for the appellant/plaintiff whether

not the wife of the appellant/plaintiff was at the relevant time his agent and

whether not the appellant/plaintiff had received the benefit of the said sum

of Rs.10,000/-.

18. No reply has been forthcoming.

19. The counsel for the appellant/plaintiff contends that the amount of

Rs.10,000/- was very meager.

20. The counsel for the respondent/defendant no.3 IOC has contended that

the said amount of Rs.10,000/- is not to be seen as per today's value of

money but as per value of money 30 years ago in the year 1983.

21. I agree with the aforesaid. It cannot be lost sight of that the monthly

salary of the appellant/plaintiff then was about Rs.1,300/- and the

appellant/plaintiff claims to have taken a house on rent of Rs.375/- per

month. The compensation received by the appellant/plaintiff of Rs.10,000/-

has to be compared with the said figures. Moreover in the absence of

appellant/plaintiff establishing that he was not bound by his wife's action,

this Court cannot go into the question of sufficiency or insufficiency of the

compensation.

22. That brings me to the three applications under Order 41 Rule 27 of the

CPC filed by the appellant/plaintiff in this appeal.

23. The appellant/plaintiff, as along with CM No.20685/2010, has inter

alia filed (i) a certificate of the Divisional Medical Officer, RDSO Poly

Clinic, Lucknow inter alia to the effect that the appellant/plaintiff in the

incident aforesaid had sustained fracture of the upper part of the right

femoral shaft bone resulting in 2 ½ inches shortening of the lower limb and

advising use of 2 ½ inches raised shoe and use of crutches and light duty; (ii)

medical certificate of Hindu Rao Hospital, Delhi advising knee ankle

transplant and use of calipers; (iii) OPD cards of the Eastern Railway

Orthopedic Clinic also advising the appellant/plaintiff to wear calipers,

raised shoe, and noticing 2/3 inches shortening, to walk with the help of a

stick; (iv) photographs of his limb showing a deep suture on the thigh; (v)

Disability Certificate issued by the Rehabilitation & Artificial Limb Centre

to the effect that the appellant/plaintiff is a case of DFTC Malinated Shaft

Femur right with shortening lower limb and that he is an orthopedically

handicapped; and, (vi) certificate issued by the Addtional Chief Medical

Officer, Lucknow to the effect that the appellant/plaintiff is a case of a

Crushed injury to the right thigh.

24. The appellant/plaintiff has in CM No.8147/2011 pleaded that due to

the injury sustained in the incident aforesaid, he has been suffering fractures

at various parts of the body due to imbalance of his body; that on 8 th July,

1997, there was a Crock Fracture of Proximal and Femur; that on 13 th April,

2002, he fractured his knee cap and was advised surgery for non-union of

patella; that he continues to suffer from Old Fracture Shaft Femur i.e. non-

union of fracture patella; that he again fell down while walking on 3 rd

March, 2011 and fractured his arm; that it is only now that he has realized

the sufferings owing to his shortened leg. The appellant/plaintiff has along

with the said application filed documents of the said injuries, though none

of the said documents co-relate the reason of the injuries to the injuries

suffered in the incident aforesaid.

25. The appellant/plaintiff in CM No.10255/2013 has pleaded that he,

while walking again fell down on 7th October, 2012 and fractured his right

leg and was admitted in Lucknow Hospital and has filed documents in proof

thereof including his photograph and which still shows the deep gash and

suture on the thigh owing to the injury in the incident aforesaid.

26. The counsel for the appellant/plaintiff has contended that the matter

be remanded to enable the appellant/plaintiff to lead fresh evidence

including of the subsequent injuries aforesaid.

27. The counsel for the respondent/defendant No.3 IOC has argued that

no ground for additional evidence is even pleaded lest made out.

28. I have considered the rival contentions.

29. The factum of the appellant/plaintiff suffering injury owing to being

in the vicinity of the LPG Depot of the respondent/defendant No.3 IOC

where an explosion took place is not in dispute. The said incident is of 15 th

May, 1983. The last installment of payment of Rs.10,000/- in full and final

settlement of the claims of the appellant/plaintiff against the

respondent/defendant No.3 IOC was received on 7 th March, 1984 i.e. within

about 10 months of the incident. The appellant/plaintiff instituted the suit on

or about 30th April, 1985 claiming compensation of Rs.4,29,000/- under

various heads but not mentioning the factum of shortening of leg by 2 ½

inches. What further emerges is that the factum of such permanent

shortening of his right leg was, on the date of institution of the suit, not

known to the appellant/plaintiff as the medical treatment of the

appellant/plaintiff was then still underway. However, when the

appellant/plaintiff appeared in evidence, he in his examination-in-chief

recorded on 6th January, 1997 unequivocally deposed that his leg had been

reduced in size by 2 ½ inches. I have carefully perused the cross-

examination of the appellant/plaintiff by the counsel for the

respondents/defendants No.1 & 2 Railways as well as the cross-examination

by the counsel for the respondent/defendant No.3 IOC. I do not find the said

factum of shortening of the leg by 2 ½ inches to have been controverted in

either of the two sets of cross-examinations. The reason therefor is obvious.

The appellant/plaintiff was before the counsels cross-examining the

appellant/plaintiff on behalf of the respondents/defendants No.1 & 2

Railways and on behalf of the respondent/defendant No.3 IOC and the

shortening of the leg would be apparent to even a layperson and for which

reason only the said fact remained uncontroverted. Thus, though the

appellant/plaintiff perhaps owing to the negligence of his Advocate had not

proved any document of shortening of the leg by 2 ½ inches but the said fact

stands proved. The witness of the respondents/defendants No.1 & 2

Railways also in his cross-examination admitted that the appellant/plaintiff

had suffered a right leg upper portion injury leading to cutting and rejoining

of the leg resulting in shortening of the leg size. The said witness was not

cross-examined by the counsel for the respondent/defendant No.3 IOC. The

respondent/defendant no.3 IOC did not lead any evidence of its own. The

said finding of shortening by 2 ½ inches of the leg of the appellant/plaintiff

owing to the explosion at the LPG Bottling Plant of the

respondent/defendant No.3 IOC is thus binding on the respondent/defendant

No.3 IOC and which seems to have escaped the attention of the learned

ADJ, perhaps for the reason of being not part of pleadings.

30. The rule of no evidence beyond pleadings being looked into would

not apply to the case in hand where the appellant/plaintiff was under medical

treatment even at the time of filing the suit. The full and final discharge

given by the appellant/plaintiff through his wife on 7 th March, 1984 cannot

possibly cover the damage/loss owing to such shortening of the right leg, the

claim even for which had not accrued on that date.

31. The consequence flowing from such shortening by 2 ½ inches of the

right leg though chronicled by the appellant/plaintiff in these applications

under Order 41 Rule 27 of the CPC, can even otherwise be well imagined.

The medical reports filed by the appellant/plaintiff along with his

applications do indeed show the appellant/plaintiff to have had more than the

normal share of fractures. Again, though I have noticed that the documents

do not attribute it to the earlier injury, as indeed they cannot, but there is

weight in the plea of the appellant/plaintiff of the said injuries being

attributable to the shortening of his leg and resultant in bodily imbalance.

32. I have wondered whether to remand the case for additional evidence

but have decided against the said course of action. The appellant/plaintiff

who was 54 years of age at the time of recording of his examination-in-chief

on 6th January, 1997 would now be of 70 years of age and is stationed at

Lucknow. All his medical records also pertain to Doctors/treatment at

Lucknow/Railway Hospital, Calcutta. Proof thereof would entail

summoning of witnesses i.e. Medical Practitioners from far and requiring the

appellant/plaintiff to travel to Delhi. The appellant/plaintiff has already been

embroiled in this litigation for the last 28 years. I am of the view that giving

an opportunity to the appellant/plaintiff to lead further evidence would cause

more suffering than any benefit to the appellant/plaintiff.

33. Shortening by 2 ½ inches of the right leg when the appellant/plaintiff

was about 42 years of age does indeed invite award of compensation. I am

not inclined to allow insufficient legal assistance to come in the way of the

entitlement of the appellant/plaintiff thereto. The same is directly

attributable to the respondent/defendant No.3 IOC. The

respondent/defendant No.3 IOC while maintaining an LPG Bottling Plant at

Shakurbasti surrounded by residential and commercial places ought to be

held strictly liable to ensure that no loss is caused to any person from its

hazardous activities being carried therein. The explosion which occurred at

the said LPG Bottling Plant of the respondent/defendant No.3 IOC speaks

res ipsa loquitor of the negligence of the respondent/defendant No.3 IOC

and for which negligence it ought to compensate the appellant/plaintiff.

34. I am conscious of the limitations in exercise of jurisdiction

circumscribed by the Civil Procedure Code and the law of evidence.

However, I have wondered that when in exercise of powers under Article

226 of the Constitution of India, the Court can grant compensation for

injury, whether I should restrain myself merely because, though the

appellant/plaintiff on the basis of the pleadings and documents on record has

a claim for compensation, was advised to file a suit instead of writ petition.

My conscience does not allow deprivation of the appellant/plaintiff of the

relief which is due to him for the reason of the choice made by the Advocate

engaged by him. I would be failing in my duty to do justice to the

appellant/plaintiff, if by getting bogged down by legal and procedural laws,

deprive him of the relief to which the record shows him to be entitled to.

35. I have during the hearing enquired from the respondent/defendant

No.3 IOC whether any rethinking was done in pursuance to the order dated

21st February, 2011 (supra) in this appeal. The counsel for

respondent/defendant No.3 IOC informs that the matter was considered and

it was felt that if any relief is granted to the appellant/plaintiff, the same may

make the respondent/defendant No.3 IOC liable for other claims. I have

enquired whether there are any pending claims of the said incident. The

answer is in the negative. If that is so, the question of grant of relief to the

appellant/plaintiff exposing the respondent/defendant No.3 IOC to other

claims does not arise.

36. The respondent/defendant No.3 IOC is a Fortune 500 company; even

the Legislature is now proposing to bring the concept of 'Corporate Social

Responsibility'. When the appellant/plaintiff is found to have suffered

owing to the failure of the respondent/defendant No.3 IOC to maintain the

safety standards which it ought to have maintained, I see no reason to not

burden the respondent/defendant No.3 IOC with the said liability.

37. No doubt the entire medical treatment of the appellant/plaintiff has

been at the cost of the respondents/defendants No.1 & 2 Railways.

However, such medical treatment as a term of employment of the

appellant/plaintiff cannot deprive the appellant/plaintiff of compensation for

shortening of his leg. The compensation awarded by the

respondents/defendants No.1 & 2 of Rs.75/- per month is not found to be

sufficient and in any case is statutory compensation and which would not

mitigate the liability of the respondent/defendant No.3 IOC.

38. The next question which arises is as to the quantum of compensation.

The appellant/plaintiff has already lived with a shortened leg for the last

about 30 years i.e. during the prime of his life. Though, no strict formula is

available but considering the fight which the appellant/plaintiff has had to

wage for the last 28 years, the legal and other expenses which the

appellant/plaintiff would have incurred therein and the sheer agony of this

long litigation, I am inclined to grant a lump-sum amount of Rs.4 lakhs as

compensation to the appellant/plaintiff. The said amount would incur

interest only if not paid by the respondent/defendant No.3 IOC within three

months hereof.

39. The appeal thus succeeds; the judgment and decree dated 19 th

February, 2001 impugned in the appeal are set aside. The suit of the

appellant/plaintiff is decreed awarding compensation to the

appellant/plaintiff in the sum of Rs.4 lakhs against the respondent/defendant

No.3 IOC. The respondent/defendant No.3 IOC is directed to pay the said

amount to the appellant/plaintiff within three months, failing which the same

shall incur interest at the rate of 12% per annum. The appellant/plaintiff is

also awarded costs of the suit and this appeal assessed at Rs.25,000/-

payable along with the compensation aforesaid.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J OCTOBER 03, 2013 pp/bs..