Shri Intzar Ahmed & Anr. vs Virender Kumar
2017 Latest Caselaw 3831 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.674/2017

%                                                     1st August, 2017

SHRI INTZAR AHMED & ANR.                              ..... Appellants
                  Through:               Mr. Sanjay Sharma, Advocate.
                          versus
VIRENDER KUMAR                                       ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No. 27156/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No. 27157/2017 (for condonation of delay)

2. For the reasons stated in the application, delay of two

days in filing the appeal is condoned.

C.M. stands disposed of.

RFA No.674/2017 and C.M. No.27155/2017 (stay)

3. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the judgment of the Trial Court dated 29.3.2017 which has

decreed the suit for a sum of Rs.5 lacs claimed on account of injuries

suffered by the respondent/plaintiff on account of negligence of the

appellants/defendants.

4. The facts of the case are that the respondent/plaintiff

pleaded that he was studying in 11th class in a government school and

his father was a supplier of tractor parts after manufacturing the same.

It was further pleaded that the respondent/plaintiff besides pursuing

his studies also used to help his father in his business. On 2.10.2007,

the respondent/plaintiff had accompanied his father Sh. Bharat Lal to

the factory of the appellant no.1/defendant no.1 for executing some

job work and wherein the appellant no.2/defendant no.2, the son of the

appellant no.1/defendant no.1 was also present. It was further pleaded

in the plaint that the respondent/plaintiff was asked by the appellant

no.1/defendant no.1 to clear the dust which was accumulated on Rulla

Machine at his premises which was visited by the respondent/plaintiff

and his father to do some urgent work. When the respondent/plaintiff

started cleaning the Rulla Machine, the appellant no.2/defendant no.2

without verifying that the respondent/plaintiff was cleaning the

machine, switched on the same and resultantly the left hand of the

respondent/plaintiff got stuck in the running machine which was

recklessly switched on by the appellant no.2/defendant no.2 at the

instance of the appellant no.1/defendant no.1. As a result of the

accident, it was pleaded that little finger of the left hand of the

respondent/plaintiff was amputated and the ring finger and middle

finger were chopped off from the second plunge. Accordingly, the

subject suit was filed claiming damages of Rs.5 lacs.

Respondent/plaintiff claimed Rs.50,000 for operation and post

operation care and Rs.1 lakh towards mental torture and agony.

Damages were also claimed of Rs.1.50 lacs and Rs.1 lakh on account

of loss of status and adverse effect on the matrimonial status and

earning livelihood.

5. The appellants/defendants filed the written statement

pleading that 2.10.2007 was a holiday on account of Gandhi Jayanti as

also because on this day Ramzan was being observed by the

appellants/defendants and who were busy in offering Namaz from

5.00 AM to 9.00 PM. It was pleaded that factory was never opened by

the appellants/defendants being a national holiday and that no

occurrence as alleged did happen. It was further pleaded that in fact

father of the respondent/plaintiff had purchased raw material from the

appellant no.1/defendant no.1 and a sum of Rs.59,000/- was

outstanding and which amount was not paid by the father of the

respondent/plaintiff. The suit was accordingly prayed for being

dismissed.

6. While dealing with relevant issue nos.1 and 2, the court

below has arrived at the conclusion of happening of the accident in the

premises of the appellant no.1/defendant no.1 and for which purpose

the trial court has placed reliance upon the FIR Ex.PW1/1. The

hospital record was proved as Ex.PW1/5 was also relied upon. There

was deposition on behalf of the respondent/plaintiff with respect to

negligence of the appellants/defendants and consequent injuries upon

his hand. The disability certificate issued by the medical board of Shri

Baba Saheb Ambedkar Hospital was proved as Ex.PW6/A. Trial court

accordingly held that the respondent/plaintiff has been successful in

proving that accident had happened on account of the negligence of

the appellants/defendants, and therefore, compensation of Rs.5 lacs

was awarded. Trial court held that 2.10.2007 being a holiday did not

mean that it has to be held that factory of the appellant no.1/defendant

no.1 did not open inasmuch as otherwise the accident was proved to

have occurred.

7. Learned counsel for the appellants/defendants argued

only one main aspect before this Court that the suit before the civil

court was not maintainable inasmuch as the compensation claim had

to be filed before the Employee's Compensation Commissioner under

the Employee's Compensation Act, 1923. It was argued that the

respondent/plaintiff was the employee of the appellant no.1/defendant

no.1.

8. In my opinion, this argument now urged on behalf of the

appellants/defendants is a totally misconceived argument because it is

seen that no such issue has been framed by the trial court with respect

to a civil court not having jurisdiction on account of a claim petition

having to be filed under the Employee's Compensation Act and which

shows that this issue was not pleaded and pressed in the trial court.

Also, I may note that there is no evidence whatsoever led on behalf of

the appellants/defendants to show that respondent/plaintiff was ever an

employee of the appellant no.1/defendant no.1. In fact, as proved by

the respondent/plaintiff he was the son of Sh. Bharat Lal and who was

manufacturing and selling tractor parts and who had accompanied his

father to the factory of the appellant no.1/defendant no.1 for doing job

work for the appellant no.1/defendant no.1 on 2.10.2007 when the

accident had taken place. The argument urged on behalf of the

appellants/defendants before this Court that civil court did not have

jurisdiction is therefore rejected.

9. There is no merit in the appeal. Dismissed.

AUGUST 01, 2017/Ne                          VALMIKI J. MEHTA, J