New Delhi Municipal Corporation Vs. Rohtas Industries Limited - Court Judgment

Excerpt:
- labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established.m.k. sharma, j.1. this is a suit instituted by the plaintiff against the defendant for recovery of rs. 7,36,286/-. it is stated in the plaint that the plaintiff invited tenders for supply of 3200 mt of o.p.c. cement which was finally awarded to the defendant who were the lowest bidder. on 26.2.1983, the work was awarded to the defendant for the aforesaid supply of cement and the contract was executed to that effect on 28.2.1983. according to the terms of the agreement and the general provisions of the contract, if the goods were not in accordance with the specifications, the plaintiff was entitled to claim damages from the defendant supplier. the defendant supplier did not supply the goods at ex. ndmc store and the plaintiff was compelled to collect the material substantially from the railway siding. it was also found that the goods supplied by the defendant to the plaintiff were defective which was tested at the laboratory. the test reports received thereof show that 27 samples were defective. each sample covered 100 mt of cement, so out of 3200 mt which the defendant supplier was to supply, the plaintiff found 2700 mt to be defective.2. it is further stated that payment for the aforesaid supply was made by the plaintiff to the defendant. after receiving the test report indicating mat the cement supplied was defective, the plaintiff put up a claim with the defendant for rs. 4,78,108 /-, but the defendant has been evading the issue and accordingly the present suit has been instituted in this court praying for recovery of the aforesaid amount.3. after summons and notices were served on the defendant, none appeared on behalf of the defendant nor any written statement was filed on their behalf. accordingly, it was ordered that the suit would proceed ex parte as against the defendant. at the request of the counsel for the plaintiff, this court directed the plaintiff to file affidavits by way of evidence and in pursuance of which an affidavit by way of evidence has been filed by the plaintiff.4. shri b. k. gupta, secretary of the plaintiff has sworn an affidavit which is on record. the said witness has stated that the defendant supplier did not supply the goods at ex. ndmc store and accordingly the plaintiff had to collect the material substantially from the railway site and incur a huge amount in respect of which a statement of account has been proved and exhibited as exb. p-11. he has further stated that out of 3200 mt of cement to be supplied by the defendant to the plaintiff, 2700 mt of cement supplied by the defendant was found defective as per the test report received from the laboratory. the witness has proved the test report which is marked exb. p-8 collectively. the awarding of the work to the defendant is also proved and exhibited in the suit marked exb. p-5. the contract agreement entered into between the plaintiff and the defendant is also proved and marked exb. p-7. sub-clause (a) of clause 9 of the said contract stipulates that if at any time before finalisation of the final bill of the contractor, it is found, as a result of technical examination or otherwise, that the goods supplied do not conform to the prescribed standard, the engineer in charge could get the said material tested in the testing laboratory. the witness has also proved the clause wherein the defendant was to supply the aforesaid cement at ex. ndmc store.5. the aforesaid evidence on record prove and establish that out of the total cement supplied by the defendant, 27 samples were found defective, so out of 3200 mt of cement which the defendant was to supply, 2700 mt of cement was found defective, the price of which was already paid by the plaintiff to the defendant. under the circumstances, the plaintiff is entitled to recover from the defendant a total sum of rs. 7,36,286/- inclusive of interest as claimed in the suit and as detailed in annexure 'a' to the affidavit filed by the plaintiff by way of evidence. the suit accordingly stands decreed for the aforesaid amount of rs. 7,36,286/- as claimed in the plaint with cost. the plaintiff shall also be entitled to interest @ 12% per annum from the date of institution of the suit till realisation.