Madhya Pradesh High Court
Mohd. Syed And Anr. vs Hindustan Petroleum And Three Ors. on 10 January, 2003
Equivalent citations: 2003(2)MPHT145
Author: A.K. Shrivastava
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment and decree dated 21-12-1994 passed by the learned 1st Additional District Judge, Bhopal in Civil Suit No. 07-B/91, whereby the suit of the plaintiffs has been dismissed, the plaintiffs have preferred this appeal under Section 96 of the Code of Civil Procedure (hereinafter referred to as 'the Code').
2. In brief, the case of plaintiffs is that their adult son Mohd. Javed died on account of burn injuries sustained by him while he was trying to save the lives of his next door neighbourers in whose house the fire took place.
3. On 13-1-1991 at about 8 a.m., a fire was reported to be broken out in the house adjoining to the plaintiffs' house, as a result of which their adult young and brave son aged about 23 years (Mohd. Javed) rushed to the said house to save the lives of the inhabitants of that house. In this process, their son succeeded to save the lives but unfortunately put his own life into an end on account of sustaining the serious burn injuries. The fire took place on account of the leakage of the LPG gas which caught fire and ultimately the LPG Gas Cylinder got burst. The plaintiff's son Mohd. Javed (hereinafter referred to as 'the deceased') was transmitted to the hospital for the treatment, but, after five days, succumbed to the burn injuries on 18-1-1991.
4. The defendant No. 5 reported the matter to the local police station and after the post-mortem the plaintiffs performed the last ritual of the deceased on 19-1-1991. The Insurance Company (defendant No. 3) is the insurer of the defendant No. 4 (M/s. Book-N-Cook, agent of M/s. Hindustan Petroleum Corporation) and as such the Insurance Company was liable to indemnify the defendant No. 4 on account of the accident occurred.
5. It has been pleaded that the deceased was carrying on the business of photography and was earning Rs. 1000/- per month from the said profession. It has been further pleaded by the plaintiffs that the deceased used to spend Rs. 500/- per month for the household expenses.
6. The plaintiffs claimed compensation to the tune of Rs. 1,10,000/-on account of the death of the deceased in the said fire mishap which occurred due to the blasting of the LPG cylinder manufactured by the defendant No. 1 and supplied to the defendant No. 4.
7. The defendant Nos. 1 and 2, namely, M/s. Hindustan Petroleum Corporation Ltd., and its Area Manager, Bhopal filed joint written statement and defendant Nos. 3 and 4, namely, M/s. National Insurance Company Ltd. and M/s. Book-N-Cook, agent of M/s Hindustan Petroleum Corporation Ltd. filed their joint statement. It is apposite to mention that they admitted the contents of para 5 of the plaint that the LPG cylinder in question was insured with the Insurance Company and the other contents were denied on account of want of knowledge.
8. The Trial Court framed number of issues. The plaintiff No. 1 examined himself and also examined Smt. Vimla. From their evidence, we find that on the fateful day, i.e., 13-1-1991 in the house of Smt. Vimla, the LPG cylinder caught fire, she tried to extinguish it but failed. She shrieked, as a result of which the deceased came to her house and saved her family members. One baby, a female infant, was sleeping inside the house and to save her the deceased went inside the house. As soon as he lifted the infant, the deceased sustained burn injuries and after seven days, he breathed his last.
9. Plaintiff Mohd. Syed also deposed in the similar manner. In furtherance of the case he deposed that by profession the deceased was a photographer and he was earning Rs. 2500/- per month. In very specific words, he has stated that the offending cylinder was of M/s. Hindustan Petroleum Corporation Ltd.
10. After X-raying the evidence of this witness, we find that he has not been cross-examined on the point that the offending cylinder was not of M/s. Hindustan Petroleum Corporation Ltd., meaning thereby his testimony has gone unchallenged on the said score.
11. In the rebuttal, none of the defendant examined any witness.
12. The Trial Court held that the plaintiff having failed to file the relevant papers regarding the gas connection, as such, it can not be gathered that the offending gas cylinder was of M/s. Hindustan Petroleum Corporation Ltd., and was supplied to its agent, defendant No. 4. However, the Trial Court has returned a finding that the deceased died on account of mishap of the fire due to the blast of the gas cylinder.
13. We have heard, Mr. Rakesh Shroti, learned Counsel for the appellant and Mr. Anoop Nair, learned Counsel for the respondent Nos. 1 and 2. None has appeared to address on behalf of respondent No. 3 (M/s. National Insurance Company Ltd.) and No. 4 (M/s. Book-N-Cook, agent of Hindustan Petroleum Corporation Ltd.)
14. In Para 5, the plaintiff had pleaded, thus:--
^^5- ;g fd izfroknh Øekad&4 dk ba';ksjsal izfroknh Øekad 3 us fd;k gqvk gS ,oa ba';ksjsal dEiuh izfroknh Ø- 3 izfroknh Øekad 4 ds O;olk; ds nkSjku gqbZ lHkh vkdfLed ,oa O;olkf;d nq?kZVukvksa ds fy, izfroknh ba';ksjsal dEiuh iwjh rjg tokcnkj gSA**
15. In reply to the contents of Para 5 of the plaint in the written statement M/s. Hindustan Petroleum Corporation and its Regional Manager (defendant Nos. 1 and 2) pleaded as under:--
"3. That para five of plaint is denied. However, it is admitted that LPG cylinder in question was insured with defendant No. 3 by defendant No. 4 as on date of accident. Remaining contents of para are denied for want of knowledge."
16. Similarly, M/s. National Insurance Company Ltd. and M/s. Book-N-Cook, agent of M/s. Hindustan Petroleum Corporation Ltd. (defendant Nos. 3 and 4 respectively) in their joint written statement replied the contents of Para 5 of the plaint as under:--
"5. That para five of plaint is denied. However, it is admitted that LPG cylinder in question was insured with defendant No. 3 as on date of accident. Remaining contents of para are denied for want of knowledge. The Insurance Co. only liable when the customer had taken all the precautions which is required by law and rules of the petroleum company."
17. After carefully perusing the contents of the pleadings of the parties, we find that all the defendants specifically admitted that the LPG cylinder in question was insured with the defendant No. 3 by defendant No. 4 and there is no denial that insurance was not valid on the date of accident. After having admitted that the cylinder in question was insured with defendant No. 3 by defendant No. 4, no room is left to controvert that the Insurance Company is not liable to pay the compensation. The learned Trial Judge in Para 12 has already recorded a finding in favour of the plaintiffs that the deceased died on account of burn injuries as the LPG cylinder did burst.
18. The plaintiff Mohd. Syed in Para 2 has deposed that the offending gas cylinder was of M/s. Hindustan Petroleum Corporation. There is no cross-examination of plaintiff in that regard. It is well settled in law that a witness if not cross-examined on a point stated in the examination-in-chief, that statement on that point remains unchallenged and there is no reason why it should not be accepted. No authority is required on this proposition but we think it proper to refer to the decision of this Court in Rasool Bi and Ors. v. Jaitoon Bi and Ors., 1977 JLJ 61.
19. We have seen hereinabove, the relevant Para 5 of the written statement, it is in two parts, in the first part the defendants had admitted the portion which was averred by the plaintiffs, but, in the second part they had pleaded 'want of knowledge' regarding the other contents. It is clear as noon day that in this type of situation, Order 8 Rules 3 and 5 of the Code, gets attracted and hence, the denial should be specific in regard to each allegation of the fact which is not admitted and if the allegation of fact in the plaint is not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, it shall be deemed to have been admitted. The Apex Court in the case of Jahuri Sah and Ors. v. Dwarika Prasad Jhunjhun-wala and Ors., AIR 1967 SC 109, has held that to say that defendant has no knowledge of fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even as implied denial. The said verdict of the Supreme Court was followed by the Division Bench of this Court in the case of Dhdnbai v. State of M.P. and Ors., 1978 JLJ 879, wherein it has been held that if the allegation in the plaint is not denied specifically or only no knowledge is pleaded it amounts to an admission under Order 8 Rules 3 and 5 of the Code of Civil Procedure.
20. In this view of the matter, we hold that the defendants had admitted that LPG cylinder in question was of defendant Nos. 1 and 2 of whom defendant No. 4 was the agent and the cylinders were insured with the National Insurance Company (defendant No. 3). In this case, the deceased died when fire took place in the house of defendant No. 5 and when he was trying to save the life of innocent infant, at that juncture the gas cylinder got burst and in this situation the deceased shall be deemed to be a third party and if that be the position, the Insurance Company is liable to pay the compensation.
21. It has come in the evidence of Smt. Vimla (wife of defendant No. 5) that she prepared the tea in the morning and when tried to close the nob of the gas cylinder the fire took place. She tried to close the nob of the cylinder and also tried to extinguish the fire but she failed, thereafter she shrieked as a result of which the deceased came to her house and while he was trying to save the innocent infant, all of a sudden the cylinder got burst. In this context, it is profitable to refer the judgment of the Apex Court in Shyam Sunder and Ors. v. The State of Rajasthan, AIR 1974 SC 890.
22. It be seen that the defendants did not examine either themselves or any witness. True, the initial burden was on the shoulder of the plaintiff. However, having discharged the initial burden of proof, the onus shifts on the shoulder of the defendants. At this juncture, it is profitable to refer the judgment of the Apex Court in A Raghavamma and Anr. v. A. Chencham-ma and Anr., AIR 1964 SC 136. The defendants having failed either to examine themselves or any witness, failed to discharge the shifted burden. Needless to say that it is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which would go a long way to discredit the truth of his case. It is apposite to refer the decision of the Division Bench of this Court in the cast of Kasturchand v. Kapurchand, 1975 JLJ 333 (Para 20).
23. More than seven decades back, the law was settled by the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr., AIR 1927 Privy Council 230, wherein it has been categorically held that the practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his (the other party's) own witness is a bad and degrading practice. The true object to be achieved Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicion attaching to it. The story can then be subjected in all its particulars to cross-examination.
24. Shri Anoop Nair, learned Counsel for the respondent Nos. 1 and 2 had placed reliance on Halsbury's Laws of India Vol. 29 (1) Para 285.192 based on voluntary assumption of risk. He has also placed reliance on Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum and Ors., (1997) 9 SCC 552, but, in our view, to the present facts and circumstances, the ratio is not applicable.
25. On the basis of aforesaid evidence, we are satisfied that the gas cylinder was not up to the mark and thus on account of the negligence of respondent Nos. 1 and 2, the gas peaked and caught fire and as a result of which the deceased succumbed.
26. If the present factual scenario is appreciated on the anvil of the evidence adduced, we find no iota of doubt that the plaintiffs have proved their case and the respondents are liable to pay the compensation.
27. The case presents a sample scenario of the tormenting plight of an average litigation who approaches the Court with all expectations of getting his lawful relief but frustrated of his expectations on the technical and incorrect approach of law dis-entitling him to obtain the relief. In the words of Justice Krishna Iyer, "Law is a mean to an end and justice is that end. But in actuality, Law and Justice are distant neighbours; some times even stage hostile. If law shoots down justice, the people shoot down law". Mr. Justice Brennan has said "nothing rankles more in the human heart then a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." [See Sitaram and Anr. v. Ramgopal, 1997 (2) JLJ 54].
28. The question arises now that what should be the amount of the compensation. In Para 7 of the plaintiff, the plaintiffs have pleaded that the deceased was a professional photographer and was earning Rs. 1000/- per month, he was contributing Rs. 500/- per month to the family. The plaintiffs now have been deprived of his earning. They had claimed Rs. 1,15,000/-, but, looking to the contribution of the deceased to his family, it would be appropriate to grant compensation to the extent of Rs. 50,000/- (Rupees fifty thousand only).
29. Accordingly the appeal is allowed in part, the judgment and decree of the Trial Court is hereby set aside and the suit of the plaintiffs is decreed against defendant Nos. 1 to 4 up to the tune of Rs. 50,000/- (Rupees fifty thousand). The plaintiffs shall be entitled for the interest @ 9% per annum from the date of the filing of the suit till the amount is actually paid to them. The defendant/respondent Nos. 1 to 4 shall bear the costs of the plaintiffs throughout. Counsel's fee according to the schedule, if certified.