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Bhagwant Sarup and ors. Vs. Himalaya Gas Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.S. No. 26 of 1976
Judge
Reported inI(1985)ACC214,AIR1985HP41
ActsCourt-fees Act, 1870 - Section 7
AppellantBhagwant Sarup and ors.
RespondentHimalaya Gas Co. and ors.
Appellant Advocate D.D. Sood, Adv.
Respondent Advocate Kamlesh Sharma and; H.K. Bhardwaj, Advs.
Excerpt:
- v.p. gupta, j.1. plaintiff no. 1 (bhagwant sarup) was registered as a consumer no. f/487 with defendant 1 (m/s. himalaya gas company) for the supply of cooking gas. a gas connection was installed in his premises known as 141, malhotra building, lower bazar, shimla. the cooking gas cylinders used to be supplied by defendant 1 through its trained workmen and servants who used to replace old empty gas cylinder by installing a new gas cylinder. defendants 2 and 3 (surinder kumar and devinder kumar) are the partners of the firm defendant no. 1.2. the plaintiffs allege that they had booked replacement of a gas cylinder with defendant 1 on 3/4th june, 1975 because their previous gas cylinder had exhausted. defendant 1 sent a cooking gas cylinder through defendant 5 (gulam mohamad) on 14-6-1975.....
Judgment:

V.P. Gupta, J.

1. Plaintiff No. 1 (Bhagwant Sarup) was registered as a consumer No. F/487 with defendant 1 (M/s. Himalaya Gas Company) for the supply of cooking gas. A gas connection was installed in his premises known as 141, Malhotra Building, Lower Bazar, Shimla. The cooking gas cylinders used to be supplied by defendant 1 through its trained workmen and servants who used to replace old empty gas cylinder by installing a new gas cylinder. Defendants 2 and 3 (Surinder Kumar and Devinder Kumar) are the partners of the firm defendant No. 1.

2. The plaintiffs allege that they had booked replacement of a gas cylinder with defendant 1 on 3/4th June, 1975 because their previous gas cylinder had exhausted. Defendant 1 sent a cooking gas cylinder through defendant 5 (Gulam Mohamad) on 14-6-1975 at about 2.20 p.m. Defendant 5 kept the cylinder in the corridor and asked the plaintiffs to give some instrument for opening the cylinder and got a small axe meant for breaking fire wood and coal etc. It is alleged that defendant 5 gave two or three knocks to the gas cylinder which appeared to be defective. Plaintiffs (Brij Bala) asked defendant 5 to take back the gas cylinder as the same was defective but defendant 5 told her that it was his routine job and the gas cylinder would be replaced and fitted. As a result of the knocking, some serious damage was caused to the gas cylinder with the result that liquid gas started leaking out and within a few seconds it caught fire because in the kitchen which adjoins the corridor, a fire was burning. Defendant 5 after seeing the fire gave a kick to the gas cylinder towards the door thereby blocking the exit from the premises. He himself fell outside the door. Plaintiffs 2, 3. and 5 saw the fire and they jumped out of the room from the windows because the door was blocked. Plaintiff 4 and one Kumari Seema deceased (daughter of plaintiff 1) remained inside the room. Plaintiff 2 wanted to rescue both these girls but could rescue plaintiff 4 only. Kumari Seema deceased was found dead in the room after the fire had been put off by the fire-brigade.

3. It is alleged that plaintiff 3 was in advanced stage of pregnancy. She suffered serious burn injuries on her face, neck and head, right and left arms, chest and abdomen, thighs and legs and her hair were also burnt. She remained admitted in the hospital but in spite of the medical treatment she could not recover her normal health and was disfigured permanently. She suffered, mentally and physically and is permanently unfit to discharge her normal duties. Plaintiff 2 also received burn injuries on his face, both hands and both legs and blisters on right calf and remained admitted in the hospital for treatment. Plaintiff 4 also remained admitted in the hospital because she also received burns on her legs, hands, abdomen and back and her hair were also burnt. Plaintiff 5 also got burns and remained admitted in the hospital.

4. Plaintiffs 1 and 2 are real brothers while plaintiff 3 is the wife of plaintiff 1 and plaintiff 4 is the minor daughter of plaintiff 1. Plaintiff 5 is the servant with plaintiff 1.

5. The plaintiffs allege that they have suffered the burn injuries on account of the negligence and carelessness of defendant 5 in performance of his duties. They also allege that merchandise goods stored by them in an adjoining room of the house were totally burnt and other goods were also burnt in fire. The plaintiffs have claimed the following losses as detailed in para 14 of the plaint :

i) Shri Bhagwant Sarup

a) for thedeath ofhis child Kumari Seema.

Rs. 10,000/-

b) for theloss of health ofhis wife.

Rs. 5,000/-

c) for mental torture suffered by him..

Rs. 5,000/-

d) forexpenses incurred on treatment of sufferers.

Rs. 3,000/-

e) for costof household effects burnt.

Rs. 24,000/-

f) forreplacement of new articles

Rs.6,000/-

g) for valueof his share of cloth burnt.

Rs. 8,000/-

h) for lossof business

Rs. 1,500/-

Rs. 62,500/-

ii) Brij Bala :

a) for thedeath of her child Kumari Seema.

Rs. 10,000/-

b) for theconsequential result of the incident i.e. injuries caused, pain, mental torture, disfigurement and temporary and permanentdisabilities caused etc. suffered and being suffered by her.

Rs. 16,000/-

Rs. 26.000/-

iii) Shanti Sarup :

a) for theinjuries caused in consequence of the sudden breaking out of fire and forbeing confined to the hospital having suffered pain and mental torture.

Rs. 5,000/-

b) for his share of stock of cloth burnt in store.

Rs,6.000/-

c) for lossof business

Rs. 1,500/-

Rs. 12.500/-

iv) KumariRajni :

Although she is entitled to much more amount of damages yet in the meantime on her behalf only Rs. ten thousand are being claimed for all consequences of thesaid negligent act

Rs. 10,000/-

v) Shiama Nand :

Plaintiff Shiama Nand claims for the pain and mental torture and worry faced by him and for the disfigurement of his face etc., a sum of Rs.

Rs. 5,000/-

Grand Total

Rs.1,16.000/-

6. A notice is alleged to have been sent to the defendants but the defendants while admitting the accident denied the cause of the accident. With these allegations, the plaintiffs have filed the present suit on 14-6-1976 for the recovery of Rs, 1,26,000/- (in fact Rs. 1,16,000/-).

7. Notices of the suit were issued to the defendants. Defendants 1 to 3 in their written statement allege that the suit is not maintainable and the plaintiffs should have filed separate suits. The complaint of injuries is not actionable in law and the defendants are not liable for any damages. The liability of these defendants stood statutorily indemnified by the Oriental Fire and General Insurance Company Ltd. and there was no negligence or breach of duty on the part of these defendants. They have exercised due and reasonable care in the course of their agency qua the plaintiffs. The alleged injury is the direct result of plaintiffs' own negligence and contributory negligence and therefore the defendants are not liable. They admitted that defendant 5 was their deliveryman and was duly trained and appointed by defendant 1 on behalf of the Oil Corporation for the furtherance of the trade of Oil Corporation and strictly in accordance with the express terms and conditions of the agency. They further allege that at the time of the issuance of the connections for the gas, an instruction card is issued to the consumers, and with each L. P. Gas cylinder a warning table/card is issued. The consumers have to take all the precautions according to the instructions. The L P. Gas Cylinder supplied to the plaintiffs was duly checked in the store and was found in perfect order before the same was handed over to defendant 5 for delivery to the plaintiffs. There was no negligence or carelessness on the part of the defendants. The plaintiffs themselves are responsible for the fire and consequent injuries complained of by them is direct result of their own acts of negligence and contributory negligence.

8. Defendant 5 in a separate written statement has raised similar objections, he further alleges that when he reached the house of the plaintiffs, the plaintiffs were taking their meals in the kitchen. He was not allowed to enter the kitchen and, therefore, he kept the gas cylinder outside the plaintiffs' residence and waited for 5/6 minutes. Then he requested the plaintiffs to take the delivery of the gas cylinder. One servant of the plaintiffs came out and asked to handover the gas cylinder to him. He refused to do so but plaintiff 5 assured. him that he (plaintiff 5) had been fixing the gas cylinder earlier also. The plaintiff 5 thereafter took the gas cylinder inside the kitchen. Defendant No. 5 then heard the voice of the falling of the gas cylinder inside the kitchen and fire broke out in the house. Defendant 5 picked up the cylinder and threw it outside the main house with the result that he got burn injuries. He alleges that the injuries caused to the plaintiffs were due to their acts of neglignece and contributory negligence and that there was no breach of duties on his part. He never knew that an angethi/fire was burning inside the kitchen as he never entered the kitchen. Defendant 4 was originally described as the Regional Manager of the Indian Oil Corporation of India. Subsequently by orders on an application (O. M. P. No. 166 of 1978) the name of 'Regional Manager' was allowed to be deleted with the result that Indian Oil Corporation became defendant 4. The learned counsel for defendant 4 filed an application (O. M. P. No. 73 of 1980) for permission to take an additional plea of limitation. On this application defendant 4 was allowed to raise the plea of limitation. Defendant 4 raised similar pleas and also alleged that the suit is time barred, is bad for multifariousness and is not maintainable. It is also bad for non-joinder of necessary parties and misjoinder of parties. There is no liability of defendant 4 and defendant 4 is entitled to special costs under Section 35-A of the C.P.C.

9. Replication was filed in which the allegations of the written statements were denied and the allegations of the plaint were re-asserted.

10. On the pleadings of the parties, the following issues were framed on 18-3-1980 : --

1. Is not the suit properly valued for the purposes of court fee and jurisdicton? OPD

2. Is the Oriental Fire and General Insurance Company Ltd. a necessary party? OPD.

3. Whether the accident in question took place on account of the negligence of defendant 5 who is admittedly the agent of the other defendants? OPP.

4. Whether there was any contributory negligence on the part of the plaintiffs or any, of them which contributed towards the occurance of the accident in question? OPD.

5. Whether the plaintiffs committed the breach of any term of the contract between the parties which contributed to the occurrence of the accident in question? OPD.

6. Whether and if so to what compensation are the individual plaintiffs entitled as a result of the said accident?

7. To what relief and against whom are the plaintiffs entitled?

11. An additional issue was framed on 20th May, 1980 :

8. Whether the suit of the plaintiff is within time? Subsequently an application was moved by defendant No. 1 (O. M. P. No. 292 of 1981) with a prayer that M/s. Oriental Fire and General Insurance Company Ltd. be impleaded as defendant. Vide orders D/- 11-3-83. M/s. Oriental Fire and General Insurance Company Ltd. was impleaded as defendani 6. Notices of the suit were issued to defendant 6.

12. Defendant 6 filed a written statement and contested the claim of the plaintiffs. On the written statement of defendant 6 the following four issues were framed on 10-11-1983:-

6-A Whether the suit against defendant No. 6 is within time? OPP

6-B Whether the suit is bad for misjoinder of parties as alleged by defendant No. 6? OPD-6:

6-C Whether the suit does not disclose any cause of action against defendant No. 6? OPD-6.

6-D Whether the suit is not maintainable against defendant 6 for the reasons mentioned in preliminary objections Nos. 3(a), 4 and 5 of the written statement filed by defendant 6? OPD-6.

13. Arguments on the issues framed on 10-11-1983 were heard and vide my orders D/-June 29,1984, it was held that the suit against defendant 6 is not within time and same cannot be decreed against defendant 6. The case was listed for arguments.

14. I have heard the learned counsel for the parties and have gone through the records of the case.

Issue No. 1.

15. This issue is not pressed by the learned counsel for the defendants. The present suit is for recovery of a specific amount of money and ad valorem court fee has been paid by the plaintiffs. In these circumstances the suit has been correctly valued for the purposes of court fee and jurisdiction and issue No. 1 is decided against the defendants.

Issue No. 2.

16. The Oriental Fire and General Insurance Company was impleaded as defendant 6. However, vide order D/- 29-6-1984, the suit against defendant 6 is to be dismissed. This issue is decided accordingly.

Issues No. 3, 4 and 5.

17. These three issues are inter-connected and are being decided together.

18. The learned counsel for the plaintiffs contends that the cylinder supplied by defendants 1 to 3 was defective and defendant 5 acted negligently and carelessly in giving knocks to the cylinder with the result that the liquid gas leaked out and a fire broke in the house. He contends that defendant 5 (deliveryman) was an agent of defendants 1 to 3 and was expected to be a trained man. Any neglignece or carelessness on the part of defendant 5 is carelessness or negligence on the part of defendants 1 to 3, who are liable for the acts, omissions and commissions of defendant 5. It is contended that defendants 1 to 3 had authorised defendant 5 to deliver the gas cylinder by fixing the same in the premises of the plaintiffs. Hence defendants 1 to 3 and 5 are liable for the damages claimed by the plaintiffs. The learned counsel further contends that defendants 1 to 3 have to give training to the deliverymen and a deliveryman can only be appointed after imparting due training to him.

19. The learned counsel concedes that defendant 4 may not directly be liable for the damages claimed and the plaintiffs would feel satisfied if the liability is fixed upon defendants 1 to 3 and 5.

20. The learned counsel appearing on behalf of defendants 1 to 3 and 5 contends that the gas cylinder was taken from defendant 5 by the plaintiff 5 without the consent of defendant 5. It was due to the negligence of plaintiff No. 5 that the cylinder fell down in the kitchen. The defendants are not liable for the acts or negligence or carelessness of plaintiff 5 or the (other?) plaintiffs. The plaintiffs took possession of the cylinder unauthorisedly and illegally. It is further contended that even according to plaintiffs' evidence the plaintiffs are guilty of contributory negligence. The plaintiffs should not have given the hammer/small axe to defendant No. 5 and should not have allowed the lighted angithi to remain in the kitchen. She contends that firstly the acts of the plaintiffs were illegal and unauthorised and secondly in any case the defendants are not liable because the plaintiffs are guilty of negligence/contributory negligence.

21. I have considered the contentions of the learned counsel for the parties.

22. Gulam Mohamad defendant 5 (DW 1) states that he was entrusted with two gas cylinders to be installed in houses Nos. 11 and 12 of the building known as Busher House, Shimla. He installed one cylinder at house No. 11 and was searching for house No. 12, when an old man met him and told him that it was his house. House No. 11 of Busher House building is situate at Ram Bazar but for the installation of the second cylinder he went to the lower Bazar, Simla where the plaintiffs were residing. According to him the cylinder was not to be installed at the residence of the plaintiffs'. This, however, is not the case in the written statement. In para 5 of the plaint, it is specifically mentioned that the plaintiffs had booked a cylinder on 3/4th June, 1975 and defendant 1 (company) sent a cooking gas cylinder to plaintiffs' residence on 14th June, 1975. Defendants Nos. 1 to 3 have admitted in the written statement that a gas cylinder was booked for replacement by plaintiff 1 and a gas cylinder through defendant 5 (DW 1) was sent on 14-6-1975. The statement of Gulam Mohamad (DW 1) to that extent is not correct. It is thus proved that the gas cylinder which had burst at the residence of the plaintiffs was meant for being installed at plaintiffs' house.

23. It is admitted that the gas cylinder sent for installation at the plaintiffs' residence by defendant 1 through its agent (defendant 5) caught fire at a time when Smt. Brij Bala (PW 9), Shanti Sarup (PW 10), Shyama Nand (PW 11) and Gulam Mohamad (DW 1) were present in the premises or near it. It is further admitted that all these persons received burn injuries, due to the bursting of the gas cylinder,

24. The next question to be determined is as to whether the delivery of the gas cylinder was taken by plaintiff 5 unauthorisedly and illegally from defendant 5 or whether the cylinder remained in possession of defendant 5. According to the plaintiffs, the gas cylinder was kept by defendant 5 in the corridor (verandah) just near the door of the kitchen. He wanted to open the cap of the gas cylinder so as to enable him to fit the same with, the L.P.G. stove by replacing the old empty cylinder. He could not open the cap and asked for some hammer like thing from Smt. Brij Bala (Plaintiff 3). Smt. Brij Bala told him that the cylinder was not in order and should be taken back. Defendant 5, however, replied that it was his routine job and a small hammer like thing should be given to him for opening the same. Upon the asking of defendant 5, Shanti Sarup (Plaintiff 2) gave a small axe which could also work as a hammer to defendant 5 and defendant 5 gave some hammer strokes on the cap of the cylinder in spite of protests of plaintiff 2. Within a short time the gas from the cylinder began leaking and it caught fire. According to the plaintiffs the accident was due to the carelessness and negligence on the part of the defendant 5 who was an authorised agent of defendant I to 4.

25. The defendants allege that the gas cylinder was to be installed in the kitchen of the plaintiffs, but at the relevant time when the defendant 5 reached the plaintiffs' residence with the gas cylinder the plaintiffs were busy in taking their meals in the kitchen. The defendant 5 was asked to wait out side the kitchen just near the door. Defendant 5 waited for some time, but as he was getting late, therefore, he requested the plaintiffs to get the cylinder installed by replacing the old empty cylinder. Upon this plaintiff 5 (a servant) came to defendant 5 and asked him to entrust the cylinder to him (plaintiff 5). Defendant 5 refused, but the plaintiff 5 took away the cylinder from the door. Thereafter a noise of the falling of the cylinder in the kitchen was heard. According to the defendants, the gas cylinder fell on the floor from the hands of the plaintiff 5 with the result that the same bursted and caught fire in which the plaintiffs and defendant 5 suffered burn injuries.

26. After going through the evidence. I find that the version of the plaintiffs is correct.

27. Shri Surinder Kumar Chaudhary (defendant 2) states that he along with his brother are partners in the Himalaya Gas Company (Defendant 1) and are local distributors of the gas cylinders. He received training for handling of gas cylinders and other equipments. Before employing any person as a delivery man, training is imparted to him and training is also imparted to the store keeper who is involved in the method of stocking the cylinders and handling the cylinders. He also states that the gas cylinders are duly checked for leakage etc. before delivering the same to the delivery man, so that no mishap may occur. The deliveryman is provided with a wrench for installing the new gas cylinder by replacement of the old gas cylinder. Defendant 5 was imparted th'is training before his appointment as a deliveryman. He was fully satisfied that defendant 5 was trained for the job. He further states that instruction cards are also issued to the customers so that they should not in any way tamper with the cylinders or try to install them themselves.

28. Thus according to Surinder Kumar (DW 2), defendant 5 was employed as a deliveryman and was trained in the installation of the filled gas cylinders by replacing the old empty cylinders.

29. Gulam Mohamad defendant 5 (DW 1) states that he was given training for this purpose and he used to carry a wrench for installing the cylinders at the premises of the customers. In case the cap of the cylinder was tight and could not be opened with a wrench then according to the instructions he was supposed to take back the cylinder to the godown.

30. According to the defendants' case the installation of the new gas cylinder by replacement of the old empty cylinder is to be done by a delivery agent of the defendants and the customers have no right or authority to touch the cylinders at the time of replacement. Now, if the gas cylinder was not to be handed over to any customer, then it cannot be believed that Gulam Mohamad handed over the filled gas cylinder to the plaintiffs' servant. Further, Gulam Mohamad (DW 1) admits that he did not receive any payment nor delivered the cash memo, to the plaintiffs. If Gulam Mohamad (DW 1) had delivered the gas cylinder to the servant of the plaintiffs, then in that case he would have received the payment for the same and also got delivery of the old empty cylinder. These facts prove that the gas cylinder which was to be installed, was still in the possession and control of Gulam Mohamad (Defendant No. 5) and the old empty gas cylinder had not yet been replaced. The statement of Gulam Mohamad (DW 1) that the plaintiffs being orthodox Hindus were taking their meals in the kitchen and did not allow him to enter the kitchen premises is not worthy of reliance. He has even given a false statement that the gas cylinder was not to be delivered at plaintiffs' residence while actually in the written statement this fact is admitted by defendants 1 to 3 that the cylinder was to be delivered at plaintiffs' residence.

31. Gulam Mohamad (DW 1) being a duly authorised agent and the deliveryman of defendants 1 to 3 could not take the risk of delivering the gas cylinder to plaintiff 5 as he was not authorised to hand over the same under the instructions/rules. The statements of the plaintiffs (i.e. PW 9, PW 10 and PW 11) who received the burn injuries and were present at the spot cannot be disbelieved. They state that the gas filled cylinder was in possession of Gulam Mohamad (DW 1) and the same was never taken by plaintiff 5 for installation. They never asked Gulam Mohamad (DW 1) to wait for the reason that they were taking their meals.

32. Thus I hold that the delivery of the gas cylinder had not been taken by the plaintiffs from Gulam Mohamad (DW 1) and the gas cylinder did not burst in the kitchen premises due to a fall from the hands of plaintiff 5 or any other plaintiffs. The gas cylinder in fact bursted near the door entrance of the kitchen and was in possession of defendant 5 at the relevant time.

33. It is then contended by the learned counsel for the defendants that the plaintiffs should not have given the hammer/small axe to defendant 5 and by giving the hammer/small axe to defendant 5, the plaintiffs are also guilty of contributory negligence. Another contention is that at the time of the delivery of the cylinder there should not have been any fire in the premises. It is contended that the plaintiffs were having lighted angithi in the kitchen and there was negligence on the part of the plaintiffs.

34. The learned counsel for the plaintiffs contends that the small axe was given to defendant 5 upon his request and the plaintiffs did not know that the small axe was to be used. It is contended that Brij Bala (plaintiff) even cautioned defendant 5, that the main cap of the cylinder was not properly fitted and the cylinder be taken back, but defendant 5 insisted for opening the cap and told Brij Bala (plaintiff) that it was his daily routine job. The defendant 5 gave 7-8 hammer strokes on the top of the cylinder with the result that the cylinder bursted and according to the plaintiffs counsel it was gross negligence and carelessness of defendant 5,

35. Shri Surinder Kumar (DW 2) admits that the deliveryman is provided with a wrench for opening the gas cylinder caps. Gulam Mohamad (DW 1) also admits that he used to carry a wrench of installing the gas cylinders at the premises of the customers, That it is proved that the deliverymen were using wrenches which are supplied by the company for installation of gas cylinders and for opening the caps.

36. Gulam Mohamad (DW 1) states that on the date of occurrence he was not carrying any wrench with him which could he used for opening the cap of the cylinder. It was a gross negligence on the part of Gulam Mohamad (DW 1). He was expected to carry a wrench and should not have asked for the hammer/small axe from the plaintiffs. If Gulam Mohamad himself was not carrying a wrench, then naturally he was requiring some instrument with which he could open the cap of the cylinder. It is stated by Smt. Brij Bala (PW 9) that the cap of the cylinder was not straight, but was in tilting position when the same was brought by Gulam Mohamad (DW 1), Both Brij Bala (PW 9) and Shanti Sarup (PW 10) state that a small axe was provided by the plaintiffs to Gulam Mohamad (DW 1) for opening the cap of the cylinder at the asking of Gutam Mohamad (DW 1) who claimed himself to be an expert.

37. The plaintiffs are laymen and are not expected to know the implications. If Gulam Mohamad (DW 1) who was a trained man asked the plaintiffs to give a hammer for opening the cap of a cylinder, then it can-not he concluded that the plaintiffs were at fault in supplying the hammer/small axe to Gulam Mohamad (DW 1) who was an authorised deliveryman. It was the duty of the deliveryman not to have used the hammer and to have asked for a wrench or to have brought a wrench with him. Thus it is held that by giving a hammer or a small axe to Gulam Mohamad (DW 1) the plaintiffs have not contributed to the negligence.

38. So far as the burning of the angithi is concerned, the room in which the gas cylinder was to be fixed, was a kitchen and naturally being meals time and the gas having been exhausted, the plaintiffs were expected to use the angithi. It was for Gulam Mohamad (DW 1) to have seen that the gas filled cylinder was not kept near the burning angithi. In any case, the leakage in the gas cylinder was not a normal event but it occurred due to the striking of the cap of the cylinder with the hammer/small axe. The bursting of the gas cylinder also took place near the door outside the kitchen. If the plaintiffs had burnt the angithi then Gulam Mohamad (DW 1) should have cautioned or asked the plaintiffs to remove the angithi from that place. In fact the situation for removal of angithi had not arisen because the gas cylinder to be installed in place of the old empty gas cylinder was still to be brought in the kitchen. The plaintiffs could never imagine that while opening the cap the gas cylinder could burst with the coming out of the liquid gas. In these circumstances, even the burning of the angithi by the plaintiffs cannot be said to be an act which can be taken as contributory negligence on the part of the plaintffs. Thus the contention of the learned counsel for the defendants that there was negligence or contributory negligence on the part of the plaittiffs is not accepted.

39. Some instructions are issued to the customers at the time of their registration as gas consumers. These instruction cards marked as 'AA' and 'BB' only impart instructions to the customers for the use of gas cylinders and have nothing to do with the installation of the new gas cylinder in place of old empty cylinders.

40. In view of the above discussion, it is held that the accident in question took place on account of the neglignece of defendant 5 and that there was no negligence/contributory negligence on the part of the plaintiffs, It is further held that the plaintiffs did not commit the breach of any terms of the contract. Issue No. 3 is held in favour of the plaintiffs and issues Nos. 4 and 5 are held against the defendants.

Issue No. 6.

41. The quantum of damages cannot be calculated exactly. There is no specific formula or data for this purpose. One fact is, however, clear that the plaintiffs have suffered losses and they are entitled to certain damages. As there is no specific formula and data, therefore, the quantum of damages can only be based upon approximations so as to give just and reasonable damages to the plaintiffs.

42. Bhagwant Sarup (plaintiff 1) has claimed Rs. 62,500/- as damages for following items : --

(a) for the death of his childKumari Seema-

Rs. 10,000/-

(b) for the loss of health of his wife.

Rs. 5,000/-

(c) for mentaltorture suffered by him.

Rs. 5,000/-

(d) for expenses incurred ontreatment of sufferers.

Rs. 3,000/-

(e) for cost of householdeffects burnt.

Rs. 24,000/-

(f) for replacement of newarticles.

Rs. 6,000/-

(g) for value of his share ofcloth burnt.

Rs. 8,000/-

(h) for loss of business

Rs. 1,500/-

Total

Rs. 62,500/-

43. I will deal with each item separately, (a) For the death of his child Kumari Seema.

44. It is admitted that Kumari Seema, daughter of Bhagwant Sarup (plaintiff 1), died in the fire accident. Her dead body was found in the room after the fire was extinguished by the fire brigade team. The deceased was a female child aged about 31/2 years and was not earning anything. The parents have definitely suffered and are deprived of the society, love and affection of the child for their remaining life. There are some judgments in which compensation for the death of a male child between the ages of 3 to 8 years has been awarded from Rs. 3000/- to Rs. 8000/-. As already stated, it is only an approximation, therefore, considering all the facts and circumstances and the further fact that the parents have other male and female children, I feel that a total amount of Rs. 5000/- that is, to the father (Bhagawant Sarup) and the mother (Brij Bala) should meet the ends of justice. Hence I allow Rs. 2500/- to Bhagwant Sarup (plaintiff 1) for this claim.

(b) For the loss of health of his wife.

45. There is no evidence to prove that future married life of Bhagwant Sarup has suffered in any manner. Therefore, I am of the view that Bhagwant Sarup (plaintiff 1) cannot be allowed any amount for this item. It is, however, clearly pointed out that the amount of damages to be awarded to Brij Bala shall be considered separately while assessing damages claimed by her and not allowing any amount to Bhagwant Sarup shall not mean that Brij Bala is not to be allowed any amount,

(c) For mental torture suffered by him.

46. Bhagwant Sarup (plaintiff 1) has definitely suffered mentally as all his family members received burn injuries and remained admitted in the hospital. He also suffered torture due to loss of his young female child. The amount of Rs. 5000/- claimed by him for this mental torture is not on the higher side and I am of the view this amount should be allowed to him. This amount is accordingly allowed to Bhagwant Sarup (plaintiff 1).

(d) For expenses incurred on treatment of sufferers.

47. There is no cogent and reliable evidence regarding the expenses incurred on the medical treatment of the family members except his own statement and that of Shri Rajpal (PW 25). Shri Rajpal is a Chemist and he states that medicines worth about 2500/- to 30007- rupees were purchased from his shop for the treatment of various members of the family of Bhagwant Sarup. Bhagwant Sarup (PW 8) also states that he spent about Rs. 30007- on medicines and this statement is not challenged in cross-examination. One fact is evident and admitted that medicines were used by the various sufferes. In these circumstances, although the exact amount of expenses is not proved, still I am of the view that an amount of Rs. 2000/- should be allowed on account of the expenses of medicines and hospital expenses. This amount is accordingly allowed.

(e)& (f) For cost of household effects burnt & for replacement of new articles.

48. Regarding these items Bhagwant Sarup (PW 8) and Brij Bala (PW 9) state that they have suffered huge losses as the goods stored in the building were burnt. They have also given the details and prices of some of the goods burnt in the fire. One can very easily realize that if a person was residing with his family in a building then the burning of the building could have caused a huge loss of the assests. There is no evidence to prove the exact prices of the various goods or that all the various goods as have been enumerated by Bhagwant Sarup (PW 8) and Brij Bala (PW 9) were in the building. There is only a presumption that some loss was caused to the plaintiffs. Some goods were of dowry and some goods were in use for several years by the family members. As no exact amount of damages can be assessed, therefore, taking an over-all picture of the various circumstances, I assess the loss for items (e) and (f) at Rs. 20,000/- and accordingly allow this amount.

(g) For value of his share of cloth burnt.

49. Shri M. V. Section Negi, Income Tax Inspector, Simla (PW 24) states that the plaintiffs claimed a loss of Rs. 14,432.21 as loss of stock and trade due to fire. This assessment was for the financial year 1975-76 and for assessment year 1976-77. There is no other evidence and this part of the statement of PW 24 is not challenged in cross-examination except to the effect that trading accounts did not show as to whether the fire took place in shop or in the house. Bhagwant Sarup (PW 8) and Shanti Sarup (PW 10) have also stated about the loss of cloth burnt in fire. In these circumstances it can legitimately be concluded that the plaintiffs did suffer a loss ofRs. 14,432.21 as loss in stock in trade due to fire. The plaintiffs also produced some witnesses to prove that some cloth was purchased by them and the same was stocked in the house and burnt in fire. In these circumstances, this claim of the plaintiff for Rs. 8000/- is justified. The remaining amounts of Rs. 6000/-are claimed by his brother Shanti Sarup (plaintiff), the other partner in the business, and this amount is allowed. Hence this claim is allowed.

(h) For loss of business.

50. Bhagwant Sarup has claimed Rs. 15007-for loss in business. All his family members were confined in the hospital and were ailing due to burn injuries. It cannot be expected that he was running the shop in usual manner as a normal human being. Some of his family members remained in hospital for a period of more than one month. He must have suffered loss in business and the amount claimed by him is not on higher side. As such this amount is allowed to Bhagwant Sarup (plaintiff).

51. In the aforesaid manner, the total amount payable to Bhagwant Sarup (plaintiff) comes to Rs. 39,000/-.

52. Smt. Brij Bala wife of Bhagwant Sarup has claimed Rs. 26,000/- for the following items : --

(a)

For the death of her childKumari Seema.

Rs. 10,000/-

(b)

for the consequential result ofthe incident i.e. injuries caused, pain, mental torture, disfigurement and temporary and permanent disabilities caused etc. suffered and being suffered by her,

Rs. 16,000/-

Rs. 26,000/-

(a) For the death of her child Kumari Seema

53. While discussing the quantum of damages payable to Bhagwant Sarup (plaintiff 1) I have already stated that Rs. 5,000/- should be allowed to both the parents for the loss of the child. In these circumstances, Rs. 2500/- is allowed to Brij Bala (plaintiff) for the death of her child Kumari Seema.

(b) For the consequential result of the incident i.e. injuries caused, pain, mental torture, disfigurement and temporary and permanent disabilities caused etc. suffered and being suffered by her.

54. At the time of the acident the age of Brij Bala (plaintiff) was about 30 years, that is, she was in her young age. For the whole of her life she has to suffer all the mental agony and also the mental torture due to disfigurement etc. Brij Bala (PW 9) states that she remained admitted in the hospital for about 11/2 months and is still under treatment. She further states that due to burn injuries she is unable to move about in the sun and sit near the fire and feels great pain and difficulty while cooking food and that her condition is worst during winter because the winter is intolerable for her and she cannot sit near the fire. Dr. D. V. Behal (PW 23) also states that Brij Bala remained admitted in the hospital for burn injuries. The nature of burn injuries is given in the bedhead ticket Ex. PW 23/B-2 to 5. The very fact that Brij Bala remained confined in the hospital for about one month and 1, days proves that she had suffered severe burn injuries which fact is also evident from the bed-head ticket. In fact due to this accident it can be safely concluded that Brij Bala could not regain her normal health and beauty although she was only about 30 years of age. One can very easily imagine the fate of the lady who had suffered burn injuries pn her body thus disfiguring and disabling her for the rest of the life. It is, therefore, proper to believe the statement of Brij Bala (PW 9) regarding her condition and the difficulties which she is experiencing even after the treatment. Taking all the various facts into considertion and the ' age of Brij Bala, I am of the view that a sum of Rs. 10,000/- should be allowed to her for this claim. In these circumstances, she is allowed Rs. 10,000/- for this claim. Thus the amount payable to Brij Bala comes to Rs. 12,500/-.

55. Shanti Sarup (plaintiff) has claimed Rs. 12,500/- for the following items : --

(a)

for theinjuries caused in consequence of the sudden breaking out of fire and forbeing confined to the hospital having suffered pain and mental torture.

Rs. 5,000/-

(b)

for his share of stock of cloth burnt in store.

Rs. 6.000/-

(c)

for loss ofbusiness

Rs. 1,500/-

(a) For the injuries caused in consequence of the sudden breaking out of fire and for being confined to the hospital having suffered pain and mental torture.

56. Shanti Sarup remained admitted in the hospital for a period of about 18 days as stated by Dr. Behal (PW 23). He also suffered burn injuries and his bed-head ticket is Ex. PW 237A/1. He claims Rs, 5000/- on account of the injuries, treatment and the mental torture etc. as is stated by him (PW 10). Taking into consideration the various circumstances, and the fact that he actually suffered injuries and remained admitted in the hospital for treatment, I am of the view that the amount of Rs. 5000A claimed for the medical treatment etc. as well as the mental torture is not on the higher side and as such this amount is allowed to him.

(b) For his share of stock of cloth burnt in store.

57. As already stated the cloth was worth about Rs. 14,000/- and it was burnt in fire. Out of this amount an amount of Rs. 8000/- has already been allowed to Bhagwant Sarup as claimed by him. The remaining amount of Rs. 6000/- claimed by Shanti Sarup is thus justified and this amount is also allowed to him.

(c) For loss of business.

58. I have already allowed Rs. 1500/- to Bhagwant Sarup (plaintiff) for loss in business Both the brothers were running a joint business, therefore, the claim of this amount is also justified and this amount is also allowed to Shanti Sarup. The amount payable to Shanti Sarup thus comes to Rs. 12,500/-

59. Kumari Rajnee claims an amount of Rs. 10,000/- as damages.

60. In the plaint it is not stated specifically as to on what account these damages are being claimed, but one fact is proved that she had suffered burn injuries and remained admitted in the hospital for treatment for about 11 days. It is proved from the out-door patient ticket Ex. PW 22/C and the bed-head ticket Ex. PW 23/C. Immediately after the issuance of the out-door ticket on 14-6-1975, she was admitted to the hospital on 14-6-1975 at 3.30 p.m. She remained in the hospital till 24-6-1975, when she was discharged, Dr. Mrs. P. N. Sharma (PW 22) has issued the out-door patient ticket and Dr. D. V. Behal (PW 23) has issued the bed head ticket. She remained under the treatment and supervision of Dr. Behal, From the bed-head ticket (Ex. PW 237C) it is proved that she received 10% of the burns over her body, that is, legs, both hands, abdomen and back. There is no evidence of any disability or disfigurement etc. due to this accident. She was a girl of about l1/2 year at the time of the accident and may be about 9 years at the present time. Due to non-production of evidence it is difficult to assess the actual amount of damages which should be awarded to her. At the same time as she had to remain in the hospital and some treatment was given to her, therefore, I am of the view that an amount of Rs. 2000/- should meet the ends of justice, because there is no evidence to the effect that this minor girl has been disfigured or has some permanent scars etc. on her body. Hence Rs. 2000/- is allowed to Kumari Rajni.

61. Shiama Nand (plaintiff) has claimed an amount of Rs. 5,000/- for the pain and mental torture and worry faced by him and for the disfigurement of his face etc. due to this accident. He was a servant of the plaintiffs and he also received burn injuries. Bhagwant Sarup (PW 8) and Brij Bala (PW 9) state that Shiama Nand remained admitted in the hospital on account of his burn injuries for about a fortnight. Shiama Nand (PW 11) also states that he remained admitted in the hospital for about a fortnight. This part of the statement of the witness has not been challenged. In these circumstances it is proved that Shiama Nand remained admitted in the hospital for treatment of his burn injuries. His medical record was not traceable and as such was not produced. He was a servant in the house and due to burn injuries he also suffered mental and physical torture. He has claimed an amount of Rs. 5,000/- for medical treatment, mental and physical torture as well as for disfigurement of his face. There is no evidence regarding disfigurement. Taking into consideration the various circumstances, I am of the view that he should also be allowed an amount of Rs. 4000/- for the mental torture, medical treatment as also physical torture. This amount is accordingly allowed to him.

62. In view of the aforesaid discussion, I hold that plaintiff 1 is entitled to a sum of Rs. 39,000/-, plaintiff 2 is entitled to a sum of Rs. 12,500/-, plaintiffs is entitled to a sum of Rs. 12,500/-, plaintiff 4 is entitled to a sum of Rs. 2,000/- and plaintiff 5 is entitled to a sum of Rs. 4,000/- as damages. This issue is decided accordingly.

Issue No. 8 (framed on 20-5-1980).

63. The suit was filed on June 14, 1976 and the accident had taken place on June 14, 1975. Initially, defendant 4 was described as 'Regional Manager, Indian Oil Corporation of India, Indian Oil Bhawan, Janpath, New Delhi'. An application (O. M. P. No. 166 of 1978) was made praying that the description of defendant 4 be allowed to be corrected and defendant 4 be allowed to be described as 'Indian Oil Corporation of India, Indian Oil Bhawan, New Delhi'. This application was allowed on Aug. 2, 1979 in which it was held that the intention of the plaintiff was to sue the Indian Oil Corporation and not its General Manager. It was further held that it was only a case of misdescription of a party. After perusal of the plaint (which remained the same) I find that there are no allegations against the Regional Manager of Indian Oil Corporation and, in fact, the plaintiff wanted to sue the Indian Oil Corporation. As it was a case of misdescription of a party, therefore, the suit against defendant 4 will be deemed to have been instituted to June 14, 1976. If the suit is deemed to have been instituted on June 14, 1976, then the same is within time. As against other defendants the suit is within limitation. In these circumstances, issue No. 8 is decided in plaintiffs' favour and it is held that the suit of the plaintiffs is within time.

Issue No. 7.

64. The learned counsel for defendant 4 contends that defendant 4 is not liable to pay any compensation to the plaintiffs and the liability, if any, is of defendants 1 to 3 and defendant 5. Defendant 5 was a delivery agent of defendant 1 and defendants 2 and 3 are the partners of defendant 1. In these circumstances, the liability to pay the damages is of defendants 1 to 3 and 5. Defendant 5 was a delivery agent of defendant 1 and it was due to his negligence and carelessness that the plaintiffs suffered the injuries. Defendants 1 to 3 being the principal and defendant 5 being their agent, the liability of all these defendants is joint and several. The plaintiffs are thus entitled to recover the amount from defendants I to 3 and 5.

65. The learned counsel for the plaintiffs made an oral prayer that the plaintiffs should be allowed future interest from the date of the institution of the suit till the date of the recovery of the decretal amount. The accident took place on 14-5-1975 and this suit was filed on 14-6-1976. In these circumstances, I am of the view that the plaintiffs should also be allowed future interest.

66. As a result of the above discussion, the plaintiffs' suit is decreed for Rs. 70,000/-(i.e. plaintiff No. 1 Rs. 39,000/-. plaintiff 2 Rs. 12,500/-, plaintiff 3 Rs: 12,500/-, plaintiff 4 Rs. 2,0007- and plaintiff 5 Rs. 4,0007-) against defendants 1 to 3 and 5 with proportionate costs. The plaintiffs are also allowed future interest at the rate of 6% per annum as permissible under the law from 14-6-1976 till the date of the payment on the decretal amount. The suit against defendant 4 is dismissed. The suit against defendant 6 is also dismissed in view of the judgment D7- 29-6-1984.


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