Shri Intzar Ahmed & Anr. Vs.virender Kumar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1207521
CourtDelhi High Court
Decided OnAug-01-2017
AppellantShri Intzar Ahmed & Anr.
RespondentVirender Kumar
Excerpt:
* in the high court of delhi at new delhi rfa no.674/2017 + % shri intzar ahmed & anr. through: versus 1st august, 2017 ..... appellants mr. sanjay sharma, advocate. virender kumar coram: hon’ble mr. justice valmiki j.mehta ..... respondent to be referred to the reporter or not?. valmiki j.mehta, j (oral) c.m. no.27156/2017 (exemption) 1. exemption allowed subject to just exceptions. c.m. stands disposed of. c.m. no.27157/2017 (for condonation of delay) 2. for the reasons stated in the application, delay of two days in filing the appeal is condoned. c.m. stands disposed of. rfa no.674/2017 and c.m. no.27155/2017 (stay) 3. this regular first appeal under section 96 of code of civil procedure, 1908 (cpc) is filed by the defendants in the suit rfa no.674/2017 page 1 of 6 impugning the judgment of the trial court dated 29.3.2017 which has decreed the suit for a sum of rs.5 lacs claimed on account of injuries suffered by the respondent/plaintiff on account of negligence of the appellants/defendants.4. the facts of the case are that the respondent/plaintiff pleaded that he was studying in 11th class in a government school and his father was a supplier of tractor parts after manufacturing the same. it was further pleaded that the respondent/plaintiff besides pursuing his studies also used to help his father in his business. on 2.10.2007, the respondent/plaintiff had accompanied his father sh. bharat lal to the factory of the appellant no.1/defendant no.1 for executing some job work and wherein the appellant no.2/defendant no.2, the son of the appellant no.1/defendant no.1 was also present. it was further pleaded in the plaint that the respondent/plaintiff was asked by the appellant no.1/defendant no.1 to clear the dust which was accumulated on rulla machine at his premises which was visited by the respondent/plaintiff and his father to do some urgent work. when the respondent/plaintiff started cleaning the rulla machine, the appellant no.2/defendant no.2 without verifying that the respondent/plaintiff was cleaning the rfa no.674/2017 page 2 of 6 machine, switched on the same and resultantly the left hand of the respondent/plaintiff got stuck in the running machine which was recklessly switched on by the appellant no.2/defendant no.2 at the instance of the appellant no.1/defendant no.1. as a result of the accident, it was pleaded that little finger of the left hand of the respondent/plaintiff was amputated and the ring finger and middle finger were chopped off from the second plunge. accordingly, the subject suit was filed claiming damages of rs.5 lacs. respondent/plaintiff claimed rs.50,000 for operation and post operation care and rs.1 lakh towards mental torture and agony. damages were also claimed of rs.1.50 lacs and rs.1 lakh on account of loss of status and adverse effect on the matrimonial status and earning livelihood.5. the appellants/defendants filed the written statement pleading that 2.10.2007 was a holiday on account of gandhi jayanti as also because on this day ramzan was being observed by the appellants/defendants and who were busy in offering namaz from 5.00 am to 9.00 pm. it was pleaded that factory was never opened by the appellants/defendants being a national holiday and that no rfa no.674/2017 page 3 of 6 occurrence as alleged did happen. it was further pleaded that in fact father of the respondent/plaintiff had purchased raw material from the appellant no.1/defendant no.1 and a sum of rs.59,000/- was outstanding and which amount was not paid by the father of the respondent/plaintiff. the suit was accordingly prayed for being dismissed.6. while dealing with relevant issue nos.1 and 2, the court below has arrived at the conclusion of happening of the accident in the premises of the appellant no.1/defendant no.1 and for which purpose the trial court has placed reliance upon the fir ex.pw1/1. the hospital record was proved as ex.pwwas also relied upon. there was deposition on behalf of the respondent/plaintiff with respect to negligence of the appellants/defendants and consequent injuries upon his hand. the disability certificate issued by the medical board of shri baba saheb ambedkar hospital was proved as ex.pw6/a. trial court accordingly held that the respondent/plaintiff has been successful in proving that accident had happened on account of the negligence of the appellants/defendants, and therefore, compensation of rs.5 lacs was awarded. trial court held that 2.10.2007 being a holiday did not rfa no.674/2017 page 4 of 6 mean that it has to be held that factory of the appellant no.1/defendant no.1 did not open inasmuch as otherwise the accident was proved to have occurred.7. learned counsel for the appellants/defendants argued only one main aspect before this court that the suit before the civil court was not maintainable inasmuch as the compensation claim had to be filed before the employee’s compensation commissioner under the employee’s compensation act, 1923. it was argued that the respondent/plaintiff was the employee of the appellant no.1/defendant no.1.8. in my opinion, this argument now urged on behalf of the appellants/defendants is a totally misconceived argument because it is seen that no such issue has been framed by the trial court with respect to a civil court not having jurisdiction on account of a claim petition having to be filed under the employee’s compensation act and which shows that this issue was not pleaded and pressed in the trial court. also, i may note that there is no evidence whatsoever led on behalf of the appellants/defendants to show that respondent/plaintiff was ever an employee of the appellant no.1/defendant no.1. in fact, as proved by rfa no.674/2017 page 5 of 6 the respondent/plaintiff he was the son of sh. bharat lal and who was manufacturing and selling tractor parts and who had accompanied his father to the factory of the appellant no.1/defendant no.1 for doing job work for the appellant no.1/defendant no.1 on 2.10.2007 when the accident had taken place. the argument urged on behalf of the appellants/defendants before this court that civil court did not have jurisdiction is therefore rejected.9. there is no merit in the appeal. dismissed. august01 2017/ne valmiki j.mehta, j rfa no.674/2017 page 6 of 6
Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI RFA No.674/2017 + % SHRI INTZAR AHMED & ANR. Through: versus 1st August, 2017 ..... Appellants Mr. Sanjay Sharma, Advocate. VIRENDER KUMAR CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA ..... Respondent To be referred to the Reporter or not?. VALMIKI J.

MEHTA, J (ORAL) C.M. No.27156/2017 (exemption) 1. Exemption allowed subject to just exceptions. C.M. stands disposed of. C.M. No.27157/2017 (for condonation of delay) 2. For the reasons stated in the application, delay of two days in filing the appeal is condoned. C.M. stands disposed of. RFA No.674/2017 and C.M. No.27155/2017 (stay) 3. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit RFA No.674/2017 Page 1 of 6 impugning the judgment of the Trial Court dated 29.3.2017 which has decreed the suit for a sum of Rs.5 lacs claimed on account of injuries suffered by the respondent/plaintiff on account of negligence of the appellants/defendants.

4. The facts of the case are that the respondent/plaintiff pleaded that he was studying in 11th class in a government school and his father was a supplier of tractor parts after manufacturing the same. It was further pleaded that the respondent/plaintiff besides pursuing his studies also used to help his father in his business. On 2.10.2007, the respondent/plaintiff had accompanied his father Sh. Bharat Lal to the factory of the appellant no.1/defendant no.1 for executing some job work and wherein the appellant no.2/defendant no.2, the son of the appellant no.1/defendant no.1 was also present. It was further pleaded in the plaint that the respondent/plaintiff was asked by the appellant no.1/defendant no.1 to clear the dust which was accumulated on Rulla Machine at his premises which was visited by the respondent/plaintiff and his father to do some urgent work. When the respondent/plaintiff started cleaning the Rulla Machine, the appellant no.2/defendant no.2 without verifying that the respondent/plaintiff was cleaning the RFA No.674/2017 Page 2 of 6 machine, switched on the same and resultantly the left hand of the respondent/plaintiff got stuck in the running machine which was recklessly switched on by the appellant no.2/defendant no.2 at the instance of the appellant no.1/defendant no.1. As a result of the accident, it was pleaded that little finger of the left hand of the respondent/plaintiff was amputated and the ring finger and middle finger were chopped off from the second plunge. Accordingly, the subject suit was filed claiming damages of Rs.5 lacs. Respondent/plaintiff claimed Rs.50,000 for operation and post operation care and Rs.1 lakh towards mental torture and agony. Damages were also claimed of Rs.1.50 lacs and Rs.1 lakh on account of loss of status and adverse effect on the matrimonial status and earning livelihood.

5. The appellants/defendants filed the written statement pleading that 2.10.2007 was a holiday on account of Gandhi Jayanti as also because on this day Ramzan was being observed by the appellants/defendants and who were busy in offering Namaz from 5.00 AM to 9.00 PM. It was pleaded that factory was never opened by the appellants/defendants being a national holiday and that no RFA No.674/2017 Page 3 of 6 occurrence as alleged did happen. It was further pleaded that in fact father of the respondent/plaintiff had purchased raw material from the appellant no.1/defendant no.1 and a sum of Rs.59,000/- was outstanding and which amount was not paid by the father of the respondent/plaintiff. The suit was accordingly prayed for being dismissed.

6. While dealing with relevant issue nos.1 and 2, the court below has arrived at the conclusion of happening of the accident in the premises of the appellant no.1/defendant no.1 and for which purpose the trial court has placed reliance upon the FIR Ex.PW1/1. The hospital record was proved as Ex.PW
was also relied upon. There was deposition on behalf of the respondent/plaintiff with respect to negligence of the appellants/defendants and consequent injuries upon his hand. The disability certificate issued by the medical board of Shri Baba Saheb Ambedkar Hospital was proved as Ex.PW6/A. Trial court accordingly held that the respondent/plaintiff has been successful in proving that accident had happened on account of the negligence of the appellants/defendants, and therefore, compensation of Rs.5 lacs was awarded. Trial court held that 2.10.2007 being a holiday did not RFA No.674/2017 Page 4 of 6 mean that it has to be held that factory of the appellant no.1/defendant no.1 did not open inasmuch as otherwise the accident was proved to have occurred.

7. Learned counsel for the appellants/defendants argued only one main aspect before this Court that the suit before the civil court was not maintainable inasmuch as the compensation claim had to be filed before the Employee’s Compensation Commissioner under the Employee’s Compensation Act, 1923. It was argued that the respondent/plaintiff was the employee of the appellant no.1/defendant no.1.

8. In my opinion, this argument now urged on behalf of the appellants/defendants is a totally misconceived argument because it is seen that no such issue has been framed by the trial court with respect to a civil court not having jurisdiction on account of a claim petition having to be filed under the Employee’s Compensation Act and which shows that this issue was not pleaded and pressed in the trial court. Also, I may note that there is no evidence whatsoever led on behalf of the appellants/defendants to show that respondent/plaintiff was ever an employee of the appellant no.1/defendant no.1. In fact, as proved by RFA No.674/2017 Page 5 of 6 the respondent/plaintiff he was the son of Sh. Bharat Lal and who was manufacturing and selling tractor parts and who had accompanied his father to the factory of the appellant no.1/defendant no.1 for doing job work for the appellant no.1/defendant no.1 on 2.10.2007 when the accident had taken place. The argument urged on behalf of the appellants/defendants before this Court that civil court did not have jurisdiction is therefore rejected.

9. There is no merit in the appeal. Dismissed. AUGUST01 2017/Ne VALMIKI J.

MEHTA, J RFA No.674/2017 Page 6 of 6