Karnataka High Court
Sri Bhimarao vs Smt Shreya on 23 September, 2023
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
-1-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
RFA CROSS OBJ NO. 100004 OF 2014
C/W
REGULAR FIRST APPEAL NO. 1493 OF 2007
REGULAR FIRST APPEAL NO. 1546 OF 2007
IN RFA CROB NO.100004/2014:
BETWEEN:
1. VISHWANATH
S/O BALAKRISHNA KOLEKAR,
AGE: 65 YEARS, OCC: BUSINESS,
AND PRIVATE SERVICE,
R/O MANGALWARPETH,
DHARWAD-580 001.
2. JYOTHIBA @
ARUN BAKAKRISHNA KOLEKAR,
Digitally
AGE: 62 YEARS, OCC: BUSINESS.
signed by
VN
VN BADIGER
BADIGER Date: ...CROSS OBJECTORS
2023.12.21
15:52:43
+0530
(BY SRI SAGAR HEGDE ADVOCATE FOR
SRI P.K SANNANINGAMMANAVAR ADVOCATE)
AND:
1. SRI.BHIMARAO
S/O BALAKRISHNA KOLEKAR,
AGE: 60 YEARS, OCC: BUSINESS,
R/O MANGALWARPETH, NOW AT
DIXIT WADA, NEAR RAM TEMPLE,
LINE BAZAR, DHARWAD-580 001.
-2-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
2. SMT. GIRIJADEVI
W/O SHIVANAND SHEELAVANT,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: PRIVATE SERVICE,
R/O CHAPPARBAND COLONY,
HOSAYALLAPUR,
DHARWAD-580 007.
3. SMT. SAVITHRIBAI
W/O BALAKRISHNA KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/ O MANGALWARPETH,
DHARWAD-580 006. (SINCE DIED,
THE LEGAL HEIRS ARE ALREADY ON RECORD)
4. SMT. ARUNA
W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGASLWARPETH,
DHARWAD-580 006.
5. KUMAR. PARATEEK
S/O TUKARAM KOLEKAR,
OCC: NIL, SINCE MINOR REPRESENTED BY HER
NEXT FRIEND (I.E. NATURAL MOTHER)
SMT. ARUNA W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006.
...RESPONDENTS
(SRI NAVEEN CHATRAD, ADVOCATE FOR R.1;
SRI SURESH P. HUDEDAGADDI, ADVOCATE FOR R.2)
THIS RFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
THE CODE OF CIVIL PROCEDURE CODE ACT, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 31.01.2007
PASSED IN O.S.NO.71/1996 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE SENIOR DIVISION AND CJM DHARWAD AGAINST
-3-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
THE CROSS OBJECTORS WITH COSTS IN THE ENDS OF
JUSTICE AND EQUITY.
IN RFA NO.1493/2007:
BETWEEN:
SRI. BHIMARAO
S/O BALAKRISHNA KOLEKAR,
AGE: 60 YEARS, OCC: BUSINESS,
R/O MANGALWARPETH, NOW AT
DIXIT WADA, NEAR RAM TEMPLE,
LINE BAZAR, DHARWAD-580 001.
...APPELLANT
(BY SRI NAVEEN CHATRAD, ADVOCATE)
AND:
1. SMT. GIRIJADEVI
W/O SHIVANAND SHEELAVANT,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: PRIVATE SERVICE,
R/O CHAPPARBAND COLONY,
HOSAYALLAPUR,
DHARWAD-580 007.
2. SMT. SAVITHRIBAI
W/O BALAKRISHNA KOLEKAR,
AGE:MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006. (SINCE DEAD,
THE LEGAL HEIRS ARE ALREADY ON RECORD).
3. SMT. ARUNA W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006.
4. KUMAR. PARATEEK
S/O TUKARAM KOLEKAR,
AGE: MAJOR (CORRECT AGE NOT KNOWN)
-4-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
OCC: NIL, SINCE MINOR REPRESENTED BY HER
NEXT FRIEND (I.E.NATURAL MOTHER)
SMT. ARUNA W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006.
5. VISHWANATH
S/O BALAKRISHNA KOLEKAR,
AGE: MAJOR, (COREECT AGE NOT KNOWN)
OCC: PRIVATE SERVICE, AT LIC OFFICE,
KCD ROAD, NOW AT R/O MANGALWARPETH,
DHARWAD-580 001.
6. JYOTHIBA @ ARUN BAKAKRISHNA KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: BUSINESS, R/O MANGALWARPETH,
DHARWAD-580 001.
...RESPONDENTS
(SRI SURESH P. HUDEDAGADDI, ADVOCATE FOR R.1;
SRI SAGAR HEGDE ADVOCATE FOR
SRI P.K SANNANINGAMMANAVAR ADVOCATE FOR R.2,
5 AND 6)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 31.01.2007 IN O.S.71/1996
PASSED BY THE COURT OF PRL. CIVIL JUDGE (SR.DN.) AND
CJM, DHARWAD AND DISMISS THE SUIT WITH COST.
IN RFA NO.1546/2007:
BETWEEN:
SRI. BHIMARAO
S/O BALAKRISHNA KOLEKAR,
AGE: 60 YEARS, OCC: BUSINESS,
R/O DIXIT WADA, NEAR RAM TEMPLE,
LINE BAZAAR, DHARWAD-580 001.
...APPELLANT
(BY SR NAVEEN CHATRAD, ADVOCATE)
-5-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
AND:
1. SMT. SHREYA
W/O SHASHIDHAR SHEELAVANT,
AGE: 35 YEARS, OCC: TAILORING,
R/O: GIRIKRUPA P.B.ROAD,
DHARWAD-580 001.
2. JYOTHIBA
@ ARUN BALAKRISHNA KOLEKAR,
AGE: MAJOR (CORRECT AGE NOT KNOWN)
OCC: BUSINESS,
R/O MANGALWARPETH,
DHARWAD-580 001.
3. SMT. SAVITHRIBAI
W/O BALAKRISHNA KOLEKAR,
AGE:MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006. (SINCE DEAD,
THE LEGAL HEIRS ARE ALREADY ON RECORD).
4. SMT. ARUNA
W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH, DHARWAD-580 006.
5. KUMAR. PRATEEK
S/O TUKARAM KOLEKAR,
AGE: MAJOR (CORRECT AGE NOT KNOWN)
OCC: NIL, SINCE MINOR REPRESENTED BY HER
NEXT FRIEND (I.E.NATURAL MOTHER)
SMT. ARUNA W/O TUKARAM KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
OCC: HOUSEHOLD WORK,
R/O MANGALWARPETH,
DHARWAD-580 006.
6. VISHWANATH
S/O BALAKRISHNA KOLEKAR,
AGE: MAJOR, (CORRECT AGE NOT KNOWN)
-6-
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
OCC: PRIVATE SERVICE,
R/O MANGALVARPETH,
DHARWAD-580 006.
...RESPONDENTS
(SRI SURESH P. HUDEDAGADDI, ADVOCATE FOR R.1;
SRI P.K SANNANINGAMMANAVAR ADVOCATE FOR R.2, 3 AND 6
ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 31.01.2007 IN
O.S.No.78/1996 PASSED BY THE COURT OF PRL. CIVIL JUDGE
(SR.DN.) AND CJM, DHARWAD AND DISMISS THE SUIT WITH
COST.
THESE RFA AND RFA CROB, HAVING BEEN POSTED FOR
FURTHER HEARING ON 23.09.2023, HEARD AND RESERVED
FOR JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging common judgment dated 31.01.2007 passed in O.S.nos.71/1996 and 72/1996, RFA no.1493/2007 is filed insofar as decree in O.S.no.71/1996. In said appeal, RFA.Crob.no.100004/2014 is filed. Likewise, challenging common judgment dated 31.01.2007 in O.S.nos.78/1996 and 79/1996, RFA no.1546/2007 is filed insofar as decree in O.S.no.78/1996. It is stated that R.A.no.72/2007 was filed against judgment and decree in O.S.no.72/1996 before Prl. District and Sessions Judge, Dharwad, and R.A.no.32/2007 was -7- NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 filed against judgment and decree in O.S.no.79/1996 before Prl. District and Sessions Judge, Dharwad, which were pending.
2. RFA no.1493/2007 is by defendant no.4 in O.S.no.71/1996. Respondent no.1 therein was plaintiff; respondents no.2 and 3 were defendants no.1 and 2 and respondents no.4 to 6 were defendants no.4 to 6 respectively. RFA.Crob.no.100004/2014 is filed by defendants no.5 and 6.
3. O.S.no.71/1996 was filed by Smt.Girijadevi for special and unspecified damages of `1,01,550/-. In plaint, it was stated that defendant no.1 was mother of deceased Tukaram Balakrishna Kolekar ('Tukaram' for short); defendants no.2 and 3 were his wife and minor son; while defendants no.4 to 6 were his brothers.
4. It was stated that Tukaram was running business in selling sewing machines, light gas stove and lighter etc., including repair at shop situated at Tikare Road, near Jakanibhavi under name and style "Jyothi Enterprises", along with defendant no.6. It was stated that business concern was owned by all defendants as undivided members of joint family. It was averred in plaint that on 18.05.1995, at about 8:00 p.m. -8- NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 when plaintiff - Smt.Girijadevi and her son - Santosh (plaintiff in O.S.no.72/1996), along with Shashidhar (her husband's younger brother), his wife Smt.Shreya (plaintiff in O.S.no.78/1996) and daughter Sneha (plaintiff in O.S.no.79/1996) were in Tukaram's shop to purchase sewing machine. At that time, Tukaram was repairing handy gas. Suddenly, a gas cylinder exploded engulfing entire shop in flames, due to which plaintiff suffered heavy burns to face, hands, back etc. Plaintiff had to rush out of shop leaving her hand purse with Rs.280/- and vanity bag of Smt.Shreya containing ` 6,000/- carried for purchasing sewing machine. Immediately, injured persons (i.e. above mentioned plaintiffs in all suits) were shifted to Civil Hospital, Dharwad and thereafter to KMC Hospital, Hubballi. Case in Cr.no.185/95 was registered by Dharwad Town Police Station.
5. It was further stated that plaintiff (Smt.Girijadevi) took inpatient treatment for about one month and was still taking outpatient treatment. She had sustained severe burn injuries to her face, both hands, back and waist. Skin between fingers of right hand had fused, looking ugly and she was advised plastic surgery. To take care of her family, they had to -9- NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 spend `250/- p.m. on servant for cooking, washing cloth etc., and also to purchase food. Plaintiff was also an expert singer and doing handicraft, sewing, painting, embroidery etc., earning `1,000/- per day, was lost by her due to accident. It was further stated that she spent heavily for treatment. Thus, plaintiff sustained financial loss entirely due to negligence of proprietor - Tukaram and defendants. But, they refused to pay any amount, leading to filing of above suit.
6. On similar pleadings and allegations, O.S.no.72/1996 was filed by Master Santosh, which was clubbed with O.S.no.71/1996. Similarly, O.S.no.78/1996 filed by Smt.Shreya was clubbed with O.S.no.79/1996 filed by Kumari Sneha. To avoid repetition and confusion due to change in rank of defendants, henceforth reference would be confined to specific facts in O.S.no.71/1996 only.
7. Upon service of notice, defendant no.2 filed written statement, same was adopted by defendants no.1, 3, 5 and 6. Sum and substance of defence was that 'M/s Jyoti Enterprises' was a proprietorship concern of Tukaram, who was running business of repairing gas light and gas stoves independently.
- 10 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 He was a dealer of Kabson and Primus Kabsons (gas light and gas stoves) and also an authorized dealer of Polar Fans, Rally Fans, Usha and Durby sewing machines and spare parts etc.
8. It was stated that on 18.05.1995, Tukaram was in shop, attending to customers with two-three employees showing sewing machines. One, Sri Shivanand Bheemarao Pawar, one of customers lit cigarette in shop. He was immediately asked to go out of shop. Before he could leave, one of cylinder burst and entire shop was engulfed in flames. Due to said incident, Sriyuths Shivananda Bheemarao Pawar and Tukaram (husband of defendant no.2) sustained severe burns and died. It was stated that husband of defendant no.2 had taken all precautions and safety measures while dealing in gas articles. Therefore, incident that occurred on 18.05.1995 was due to 'vis-majore' and no one was responsible for same.
9. Defendant no.4 filed separate written statement and stated that as on date of incident, 'M/s Jyoti Enterprises' was a proprietary concern of Late Tukaram, who died in incident. Therefore, Defendant no.4 denied liability to plaintiff. Allegation that defendants were running business jointly was
- 11 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 denied. Even assertion that defendant no.4 was liable to pay general or special damages were also denied.
10. Based on pleadings, trial Court in O.S.no.71/1996, framed following issues:
1) Whether plaintiff proves that she suffered extensive burn injuries when she had been to Jyoti Enterprises for purchase of sewing machine run by Tukaram B Kolekar son of defendant No.1 and wife of defendant No.2 further defendant No.3 and brothers of defendants no.4 to 6 when plaintiff had gone to said shop along with plaintiffs husband's brother viz., Shashidhar and his wife and daughter and also plaintiff's son on 18.05.1995?
2) Whether the plaintiff suffered the burn injuries due to non taking of precautions for safety of customers and visitors while keeping for sale inflammable dangerous goods likely to catch fire and aforesaid defendant No.1 son committed fragrant breach of duty resulting in grave burns to the plaintiff?
3) Whether the plaintiff proves that the plaintiff left in the si shop rushing for her life and along with aforesaid others and purse containing rs.280/- and whether Smt.Shreya left vanity bag containing Rs.6,000/- carrying to purchase sewing machine on 18.05.1995 when the gas cylinder burst in the said shop and when plaintiff and aforesaid others rushed out- side from the shop due to burns to save their lives?
4) Whether plaintiff proves she and her companions due to burn injuries (except
- 12 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 Shashidhar) were shifted to Civil Hospital, Dharwad and from here to KMFC, Hubli?
5) Whether plaintiff proves that crime in this regard is registered at Cr.no.185/1995 in Dharwad P.S.?
6) Whether plaintiff was an indoor patient in KMC Hospital, Hubli, from 19.05.1995 to 19.06 1995 and even after discharge still undergoing treatment?
7) Whether plaintiff proves that the said gas cylinder burst and plaintiff's face, both hands, back, waist are burnt seriously and skin in between finger of right hand joined etc., and whether plaintiff is looking ugly due to burn injuries on her body and needs plastic surgery?
8) Whether the plaintiff proves she is an expert singer doing handicraft, sewing, embroidery etc., earning Rs.100/- per day?
9) Whether she is the only lady looking after her husband another victim, Santhosh and another son Prashant for feeding with meals, Tiffin and keeping up her house?
10) Whether the plaintiff proves that the plaintiffs family is giving Rs.250/- per month to a servant for cooking, cloth washing etc., being unable to do said work due to burn injuries?
11) Whether plaintiff has spent Rs.250/- for engaging servants to bring food and tiffin etc. and traveling expenses amounting to Rs.800/- and car charge of Rs.250/- are incurred?
12) Whether plaintiff proves that the plaintiff's husband lost wages of Rs.7500/- due to attending plaintiff in hospital being assistant store keeper at KSRTC Hubli and he was
- 13 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 compelled to take leave to look after the plaintiff and others who have suffered burn injuries on 18.05.1995?
13) Whether defendants are liable to pay plaintiff requisite amount for plastic surgery?
14) Whether plaintiff proves that the legal notice was served and acknowledged by defendants 1, 2 and 3 on 9.3.96 and others on 14.03.1996 with no reply?
15) Whether plaintiff is entitled to relief claimed for?
16) Whether defendants prove the suit is not maintainable and suffer mis-joinder and non-joinder of party?
17) Whether defendants prove that deceased Tukaram s/o defendant no.1 had taken all precautions for safety dealing gas articles in shop and is not liable to pay any amount as claimed by plaintiff?
11. Thereafter, trial Court recorded evidence of two witnesses i.e., PWs 1 and 2 and got marked Exhibits P1 to P26. In rebuttal, defendants examined four witnesses as DWs 1 to 4 and got marked Exs.D1 to D4.
12. On consideration, trial Court passed impugned judgment and decree answering Issues no.1 to 12, 14 and 15 in affirmative, Issues no.16 and 17 in negative and Issue no.13 according to finding, directing defendants jointly and severally
- 14 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 liable to pay damages to tune of `97,000/- with interest at 6% per annum from date of suit till realization.
[
13. Sri Naveen Chatrad, learned counsel for appellant- defendant no.4 in RFA no.1493/2007 submitted that Sri Bhimrao Balkrishna Kolekar was arrayed as defendant no.4 in O.S.nos.71 and 72 of 1996 and defendant no.5 in O.S.nos.78 and 79 of 1996 respectively. It was submitted that at time of incident, Tukaram was repairing gas cylinder, when gas cylinder burst, Tukaram also died and plaintiff sustained injuries. In suit filed, mother, wife and son of Tukaram were arrayed as defendants no.1 to 3. Defendant no.4 to 6 were brothers of deceased Tukaram.
14. It was submitted that Tukaram was sole proprietor of "M/s Jyoti Enterprises". But premise in which business was carried on belonged jointly to Tukaram and wife of defendant no.4. But as Tukaram was running his business independently, liability for damages caused would be solely that of defendants no.1 to 3 as L.R.s of Tukaram. It was submitted there was specific assertion by defendant no.2 in para no.10(a) of written statement that Tukaram was running business independently
- 15 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 and there was no joint family business. Therefore suit was filed without verifying relevant documents regarding ownership of shop in question.
15. It was submitted that claim of "M/s Jyoti Enterprises'' as joint family business was not supported by necessary pleadings in plaint. It was merely stated in paragraphs no.2 and 3 that shop was run by Tukaram. Even in Ex.P10 - Legal Notice got issued by plaintiffs, it was stated that, Tukaram, (husband of defendant no.2 and father of defendant no.3) was running business. It was further submitted that defendant no.2, examined as DW.2 specifically stated in her affidavit examination-in-chief as follows:
"And I most respectfully submit here that my husband was a sole proprietor of the shop under the name and style Jyoti Enterprises. He was authorised dealer to sell Polar Fans, Rally Fans, Usha and Durby sewing machines and spares. He was also an authorised dealer to sell portable gas stove and gas lights from Cabson and Primus Cabson (Light gas and Stove gas). These gas materials were supplied with the authorised sealed materials and cylinders by the manufacturer to its dealers. My husband was only selling these sealed articles to the customers, refilling the cylinders was not coming under the preview of his work, i.e., refilling of cylinders is strictly prohibited by the manufactures. Therefore my husband was only selling the sealed portable gas light and stove in this shop".
- 16 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
16. It was further submitted, fact that he was not concerned to 'Jyoti Enterprises' as alleged by plaintiff that was proved by Exs.D-2, D-4, D-5, D-6 and also notice sent to Tukaram by Tax Department and appellant running shop at Gandhi chowk, Dharwad. It was specifically contended that Tukaram was having sufficient and independent properties of his own to satisfy claims of all plaintiffs' and defendant no.4 to 6 were not necessary parties to suit. Therefore prayed for modifying impugned decrees by confining them only against defendants no.1 to 3. On above grounds sought for allowing appeals.
17. Sri Sagar Hegde, learned counsel for Sri P.K Sannaningammanavar, advocate for defendants no.5 and 6 submitted that since, they had not challenged judgment and decree, MFA.CROB. no.100004/2014 was filed invoking power of this Court under Order XLI Rule 33 of CPC.
18. It was submitted that, suit was filed against defendants no.5 & 6 and also other brothers for damages for injuries sustained in incident that occurred on 18.05.1995. It was submitted that though it was pleaded about cautioning
- 17 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 Tukaram about smell of gas leakage, failure to take safety measures etc., no such allegations were made in police complaint filed before Town Police Station, Dharwad.
19. It was submitted that, fact about Tukaram running business in his individual capacity was indicated by records pertaining to said business standing in his name. All licences/authorizations were in his name. In fact, Tukaram held licence for selling gas cylinders and service in name and style of 'M/s Ujwal Agencies', which was ignored by trial Court, while passing decree against defendants holding them jointly and severally liable for payment of compensation.
20. It was submitted that, defendants no.2 and 3 stated in written statement at para-10(a) that, Tukaram was sole proprietor of business and that he was not connected with other family members. He obtained KST and CST registration in his individual name. Therefore, these defendants were not liable pay damages to plaintiff.
21. It was submitted that, an unnatural incident took place in shop of late Tukaram, who died on spot leaving behind defendants no.2 and 3 in misery. And other defendants were
- 18 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 not at all liable to pay damages, since business was run by late Tukaram, independently. It was submitted that defendant no.2 (wife of Tukaram) examined as DW-1, reiterated in her deposition that Tukaram was running business exclusively. Further, documents i.e. business licences, agency certificates etc. obtained by Tukaram (which stood exclusively in his name) were sought to be produced as additional evidence by defendant no.4 in RFA no.1493/2007. Above material would therefore establish that other brothers were not concerned with his business. Consequently, they could not be held liable for accident that occurred entirely during course of business of Tukaram.
22. Lastly, relying upon decision of Hon'ble Supreme Court in case of Mahant Dhangir and Anr. Vs. Madam Mohan and Ors.1,submitted that one defendant could maintain Cross Objections in appeal by another defendant.
23. On above grounds sought for allowing Cross Objections and for setting aside judgment and decree passed against them.
1 1987 (Supp) SCC 528
- 19 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
24. On other hand, Sri Suresh P. Hudedagaddi, learned counsel for plaintiffs sought to support impugned judgment and decree. It was submitted that plaintiffs had specifically stated that all defendants were jointly and severally liable to pay compensation as business was joint family business. Further, premises in which business was carried on belonged to joint family. In fact, defendant no.4 admitted during cross- examination that there was no partition between Tukaram and his brothers. Therefore, even if plaintiffs proceeded against one or some of joint family properties, defendants could always workout equities at time of partition. Thus, there was no merit in appeals and sought for their dismissal.
25. It was submitted that defendants no.4 to 6 admitted that Tukaram was carrying on business exclusively, but they failed to produce any documents to establish that they were doing any other business exclusively.
26. Heard learned counsel and perused impugned judgment and decree and record.
- 20 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
27. From above submission and as defendants no.4, 5 and 6 were challenging impugned judgments and decrees, points that would arise for consideration are:
"(1) Whether finding of trial Court that incident of 18.05.1995 was due to negligence of Tukaram and therefore defendants were liable to pay compensation is justified?
(2) Whether trial Court was justified in passing decree against defendants no.4, 5 and 6 also, even Tukaram was running business exclusively?
(3) Whether plaintiff's suits are bad due to mis-
joinder of defendants no.4, 5 and 6?
Additional Point in RFA no.1546/2007 (4) Whether I.A.no.1/2014 filed under Order XLI Rule 27 of CPC for additional evidence filed by defendant no.4, in RFA no.1546/2007 deserves to be allowed?"
Points no.1 to 3:
28. From above, it is seen that in instant case suit for general and special damages filed by plaintiff is based on allegation that when plaintiffs were in shop belonging to joint family of defendants, Tukaram was repairing gas stove without
- 21 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 regard to their safety and therefore, when gas leakage caused explosion and plaintiffs suffered severe burn injuries and consequent financial loss, they were entitled for compensation from defendants jointly and severally.
29. In order to establish actionable negligence against defendants (in O.S.no.71.1996), plaintiff was examined as PW.1 and Dr.Rajashekhar Puranik as PW.2 and got marked FIR, complaint, discharge card of KMC hospital, injury certificate, photographs, legal notice issued to defendants with postal acknowledgments, property extracts, certificates, marks cards, paper-cutting art certificate, craft certificate, painting certificate, medical certificate and negatives of photographs as Exs.P.1 to P.26.
30. In support of suit claim, plaintiff-PW.1 deposed reiterating plaint averments. Her cross-examination was mainly directed against establishing that she had not made enquiries regarding ownership of shop premises and business. Suggestions were put that Tukaram dealt with only sealed handi-gas and about safety of gas cylinders. However, there is
- 22 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 nothing elicited to disprove occurrence of incident and plaintiff suffering injuries in said accident.
31. Dr.Rajshekar Puranik, who treated plaintiff was examined as PW.2 deposed about injuries sustained by plaintiff and treatment administered and said witness sustained cross- examination.
32. In rebuttal, defendant no.4 was examined as DW.1, defendant no.2 as DW.2 and two others were examined as DWs.3 and 4.
33. DW.1 deposed in terms of written statement and got marked assessment order, letter dated 22.02.1996, attested copy of Sale Deed of year 1999 and sales tax notices were marked as Exs.D1 to D7. In cross-examination, it was elicited that at time of incident, his name was mentioned in property extract and in year 1999 defendant no.2 sold it to him. He also admitted that as per Ex.D6 at time of incident, shop premises stood in joint name of Tukaram and his wife. Exs.D4 to 7 were of period subsequent to 1994. It is also elicited that no documents were produced about partition between himself and his brothers.
- 23 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
34. Defendant no.2 examined as DW.2 stated that her husband Tukaram was sole proprietor of shop by name Jyoti Enterprises and was authorised dealer of Polar Fans, Rally Fans, Usha and Durby Sewing machines and spares and also gas stove and gas lights from Cabsons. In cross examination, she admitted that CTS no.1940 belonged jointly to Bhimrao, Tukaram, Jyotiba and Vishwanath and likewise, as per Ex.P18, CTS no.1017 stood in name of Anusuya Kolekar and Tukaram. She admitted that Tukaram died as a result of gas burst. She also admitted that 3-4 other persons also suffered injuries.
35. While passing impugned judgment and decree, trial Court observed that Exs.P17 and 18 (property extracts) showed that shop premises where Tukaram was running business stood in name of family of defendants. It thereafter referred to deposition of plaintiff that on 18.05.1995 plaintiffs were in shop for purchase of sewing machine, when Tukaram was repairing gas stove, and there was explosion due to gas leakage causing injuries to plaintiffs. And further that FIR-Ex.P1 was registered by Town Police Station against defendants for their negligence.
- 24 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
36. Trial Court further referred to deposition of PW.2- Dr.Puranik, who deposed about injuries sustained by plaintiffs in medical certificate - Ex.P26 and depicted in photographs of plaintiffs - Exs.P5 to P9 were got marked. It observed that PW.2 was a retired District Health Officer, who stated that plaintiff suffered 45% burn injuries and scars were permanent, by referring to treatment records and Medico Legal Register. It was also observed that despite cross examination, nothing worthwhile was elicited from PW.2.
37. Trial Court further observed that though DWs.1 to 4 deposed that Tukaram was selling only sealed gas lights and was not repairing them, deposition of DW.4 claimed to be an eyewitness that on date of incident when he was standing in front shop, Shivanand Bhimrao Pawar had lit a cigarette inside shop. Therefore, DW.4 and Tukaram had asked him to go out of shop, when suddenly there was explosion and therefore, it was an act of god. Trial Court concludes that deposition of defence witnesses was not believable insofar as incident being act of god, but it duly corroborated plaintiffs' version about their presence in shop, occurrence of explosion and they sustaining burn injuries.
- 25 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007
38. Trial Court also took note of deposition of DW.3 - Sales Officer of Primus Kabsons Company Limited, that Tukaram was selling their sealed cylinders, petromax etc., since 1991-92 as unbelievable due to admission that he was working in Company for only one year prior to deposition. But it held that his deposition established fact that Tukaram was dealing in LPG gas cylinders, petromax, Sewing Machines etc.
39. It also observed that documents sought to be relied to indicate partition of joint family were irrelevant, as they came into existence subsequent to date of incident.
40. Trial Court concluded that deposition of PW.1 coupled with evidence of Dr.Puranik referring to injury certificate issued to plaintiffs established that defendants who were dealing in gas cylinders had failed to take sufficient precautions for safety gas cylinders and which had caused explosion and burn injuries as claimed by plaintiffs. Deposition of DW.4 that Tukaram was not repairing handy gas was discounted on ground of he being interested witness as a neighbour of Tukaram. It also reasoned that when shop was in busy market area, defendants were required to take extra care
- 26 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 to ensure that there were no hazardous gas leaks. It concluded that unlike defendants' claim that handy gas and petromax sales were in sealed condition and there was no repair work of same in shop premises, fact that there was gas leakage leading to explosion established failure of defendants to safeguard interest of customers. It further observed that contention of defendants that in case of defective gas cylinders, it would be Primus Kabsons Co. Ltd. (PKCL) who would be liable and non- arraying of PKCL as defendant rendered suit bad for non- joinder was held inadmissible on ground that in such case, defendants were required to first pay compensation to plaintiffs and thereafter recover same from PKCL.
41. Trial Court observed that a person storing and dealing with dangerous substances is required to ensure safety of all his customers, guests, passersby and neighbouring shop owners against damage or injury caused by such hazardous substance. On said reasoning trial Court held defendants were liable to pay compensation, assessed same and decreed suit.
42. First ground of challenge urged by defendants no.4 to 6 is that Tukaram was running business independently and exclusively and therefore other brothers not connected with
- 27 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 said business could not be made liable for damages allegedly caused due to negligence of Tukaram. Contents of para 10 (a) of written statement of defendant no.2 and deposition of DW.2 that her husband Tukaram was sole proprietor of 'M/s Jyoti Enterprises' and was authorized dealer of Polar and Rally Fans, Usha and Durby Sewing Machines and also Primus Kabsons and Kabson light gas and gas stoves, would establish that Tukaram was proprietor of business. But, Exs.P17 and P18 property extracts of shop premises would show that property was not standing exclusively in name of Tukaram, but as belonging to joint family.
43. Defendant no.4 examined as DW.1 admitted that shop premises was standing in his name. Though, it was specific contention of defendant no.4 that only after partition among joint family members, Tukaram had established his independent business in shop premises by obtaining dealerships and agencies in individual name. But, they failed to lead any evidence to establish partition. On other hand, admission by DW.1 that property was standing in joint name of Tukaram and Smt.Anusuya (wife of defendant no.4) would be directly contrary to above stand. Lack of acceptable explanation
- 28 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 would in fact have to be considered as establishing that there was no partition and business carried on, though in individual names, were that of joint family.
44. Referring to documents produced by defendants, trial Court observed that same indicated that they were subsequent to date of incident. Therefore, merely on ground that business was being run in individual names, there cannot be presumption about partition.
45. As observed above, there is no dispute about plaintiffs' sustaining injuries in incident occurred in shop premises on 18.05.1995. As rightly observed by trial Court, when deceased Tukaram was dealing in dangerous and hazardous items, he would owe duty to protect everyone who could suffer harm from it. In this regard, defendants have merely contended that Tukaram had taken all care and precautions. Hon'ble Supreme Court in case of M.P. Electricity Board v. Shail Kumari,2 has held :
"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered 2 (2002) 2 SCC 162
- 29 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9. The doctrine of strict liability has its origin in English common law when it was propounded in the celebrated case of Rylands v. Fletcher [(1861-73) All ER Rep 1]. Blackburn, J., the author of the said rule had observed thus in the said decision : (All ER p. 7E-F) "[T]he true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape."
...............
...............
12. In M.C. Mehta v. Union of India [(1987) 1 SCC 395] this Court has gone even beyond the rule of strict liability by holding that : (SCC p. 421, para 31) "Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of
- 30 -
NC: 2023:KHC-D:11535
RFA.CROB No. 100004 of 2014
C/W RFA No. 1493 of 2007, RFA No. 1546 of
2007
strict liability under the rule
in Rylands v. Fletcher [(1868) 3 HL 330]". ..............."
46. Therefore, principle of strict liability is well established and regardless of pleading or proof by defendants about due care and caution having been taken, when third parties suffer damage due to such inherently dangerous activity, they cannot escape from liability.
47. In light of matter, when plaintiff has pleaded that business being carried out in shop premises by Tukaram was a joint family business and as held above that defendants no.4 to 6 failed to establish partition, they cannot contend that they were not necessary parties to suit. Consequently, trial Court would be justified in concluding that defendants were jointly and severally liable to pay compensation to plaintiffs. Their submission that as Tukaram was running business independently and exclusively and that defendants no.1 to 3 his wife and children had sufficient properties of their own to satisfy decree or on ground that defendant no.4 had subsequently purchased interest of Tukaram in shop premises would not hold much water. Defendants had to work out their
- 31 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 equities at time of partition amongst themselves or by seeking for indemnification from other defendants.
48. Since no question nor contention were urged regarding maintainability of Cross-Objection by defendant and another defendant in appeal, ratio in Mahant Dhangir's case (supra) would not lend any help to appellants.
49. In view of above, points no.1 and 2 are answered in affirmative and point no.3 in negative.
50. Insofar as point no.4, I.A.no.1/2014 filed by defendant no.4 - appellant in RFA.no.1546/2007 for leading additional evidence by way of production of documents namely:
i. Application for KST Registration of "Ujwal Agency";
ii. KST Registration certificate dated 11.12.1991; iii. Application for CST Registration; iv. Form no.3 for payment of KST; v. Letter dated 20.03.1995 for payment of KST surcharge.
51. In affidavit filed in support of application, it is stated that said documents were not in his custody. After purchase of shop in year 1998, they were kept in his home and only after his counsel enquired about documents of shop, when
- 32 -
NC: 2023:KHC-D:11535 RFA.CROB No. 100004 of 2014 C/W RFA No. 1493 of 2007, RFA No. 1546 of 2007 these appeals were posted for hearing, he traced out same on 22.03.2014 and filed application.
52. Said assertions would clearly indicate that documents were very much in custody of defendant no.4 and there is not even a formal assertion about due diligence or that said documents were necessary for proper disposal of suit. Thus, necessary grounds for allowing application for additional evidence are not made out and as such, application deserves to be dismissed. Hence, point no.4 is answered in negative.
53. In view of above findings, I pass following:
ORDER Both appeals and Cross-Objection are dismissed with costs as being devoid of merits.
Sd/-
JUDGE mkm/-