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2004(1) JLJ 199
Dipak Misra and A.K. Shrivastava, JJ.
Mohd. Syed and another v. M/s. Hindustan Petroleum and others
First Appeal No. 81 of 1995; against the judgment and decree of I Additional District Judge, Bhopal, passed in Civil Suit No. 7-B of 1991;
Decided 10.1.2003.
The case of plaintiffs is that their adult son Mohd. Javed died on account of bum injuries sustained by him while he was trying to save the lives of his next door neighbourers in whose house the fire took place. [Para 2
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. [Para 4
Held: 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. ... 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. ... If the allegation in the plaint is not denied specifically or only no knowledge is pleaded, it amounts to an admission under Order 8 Rule 3 and 5 of the Code of Civil Procedure. AIR 1967 SC 109 followed. 1978 JLJ 879 relied on. . [Para 19
(2) Tort -- deceased a photographer earning Rs. 1,000/- p.m. contributing Rs. 500/- p.m. -- compensation of Rs. 50,000/- awarded. [Para 28
(3) Practice -- witness not cross-examined on point stated in chief examination -- that statement remains unchallenged and has to be accepted. [Para 18
(4) Evidence Act, 1872 -- S. 138 -- witness not cross-examined on point stated in chief-examination -- that statement remains unchallenged and has to be accepted. 1977 JLJ 61 relied on. [Para 18
(5) Legal Maxims -- res Ipsa loquitur -- gas cylinder burst -- deceased tried to save infant in house and died due to catching of fire -- maxim attracted. AIR 1974 SC 890 followed. [Para 21
(6) Practice -- burden discharged by plaintiff of proving his case -- burden shifts to defendant -- he should examine himself and his witnesses. AIR 1964 SC 136 followed. 1975 JLJ 333 relied on. [Para 22
(7) Practice -- party not called as witness -- other party forced to call him as his witness -- practice is bad and degrading. AIR 1927 PC 230 relied on. [Para 23
(8) Law -- is a means to an end and justice is that end -- law and justice are distant neighbours. 1997(2) JLJ 54 relied on. [Para 27
¼1½ flfoy izfØ;k lafgrk] 1908 && vk- 8 fu- 3 rFkk 5 && okni= ds izdFkuksa dk fofufnZ"V izR;k[;ku ugha && fyf[kr dFku esa *ek= bUdkj* vFkok *tkudkjh ugha* dk vfHkokd~ && Lohd`fr dh dksfV esa vkrk gSA
oknhx.k dk i{kdFku gS fd muds izkIro; iq= eksgEen tkosn dk nsgkar tyus ls gqbZ {kfr;ksa ds dkj.k gqvk tks mls vius iM+kSlh ds ?kj esa vkx yxus ij vius iM+ksfl;ks dk thou cpkus dk iz;Ru djrs le; gqbZ FkhaA ¿ iSjk 2À
chek daiuh ¼izfroknh Ø- 3½ izfroknh Ø- 4 ¼es- faganqLrku isVªksfy;e fuxe dk vfHkdrkZ esa] cqd&,u&dqd½ dk chekdrkZ gS vkSj bl ukrs chek daiuh ?kfVr nq?kZVuk ds dkj.k izfroknh Ø- 4 dh {kfriwfrZ djus ds fy, nk;h FkhA ¿ iSjk 4À
vfHkfu/kkZfjr % ml izR;sd rF; ds vfHkdFku d ckjs esa tks Lohd`r ugha gS] izR;k[;ku fofufnZ"V gksuk pkfg, vkSj ;fn okni= esa rF; ds vfHkdFku dk fofufnZ"V vfHkopu esa dgk tkrk gS fd og Lohdkj ugha gS rc mls Lohd`r le>k tk,xkA------- ;g dguk fd izfroknh dks oknh }kjk vfHkokd~ fd, x, vfHkokd~ fd, x, rF; dh tkudkjh ugha gS] rF; ds vfLrRo ds izR;k[;ku ds leku ugha gS] foof{kr izR;k[;ku ds :i esa Hkh ughaA----- ;fn okni= esa fd, x, vfHkdFku dk fofufnZ"V izR;k[;ku ugha fd;k tkrk ;k tkudkjh ugha gksus dk gh vfHkokd~ fd;k tkrk gS rc og flfoy izfØ;k lafgrk ds vkns‘k 8 fu;e 3 vkSj 5 ds v/khu Lohd`fr dh dksfV esa vkrk gSA , vkb vkj 1967 ,l lh 109 vuqlfjrA 1978 ts ,y ts 879 voyafcrA
¿ iSjk 19À
¼2½ vid`R; && e`rd #- 1]000@& izfrekl viktZu djus okyk QksVksxzkQj && #- 500@& izfrekl dk ;ksxnku && #- 50]000@& dk izfrdj vf/kfu.khZrA ¿ iSjk 28À
¼3½ izFkk && eq[; ijh{kk esa mfYyf[kr fcanq ij lk{kh dh izfr&ijh{kk ugha dh xbZ && og dFku vdkV~; jgrk gS vkSj og Lohdkj fd;k tkuk gksxkA ¿ iSjk 18À
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 138 && eq[; ijh{kk esa mfYyf[kr fcanq ij lk{kh dh izfr&ijh{kk ugha dh xbZ && og dFku vdkV~; gS vkSj mls Lohdkj djuk gksxkA 1977 ts ,y ts 61 voyafcrA ¿ iSjk 18À
¼5½ fof/kd lw= && Lo;a izek.k && xSl flfyaMj QVk && e`rd ds ?kj ds Hkhrj f‘k‘kq dks cpkus dk iz;Ru fd;k vkSj vkx es tyus ls e`R;q && lw= vkd`"V gksrk gSA , vkb vkj 1974 ,l lh 890 vulqfjrA ¿ iSjk 21À
¼6½ izFkk && oknh }kjk viuk i{kdFku lkfcr djus ds Hkkj dk fuokZg fd;k x;k && Hkkj izfroknh ij vk tkrk gS && mls viuh vkSj lkf{k;ksa dh ijh{kk djuk pkfg,A , vkb vkj 1964 ,l lh 136 vuqlfjrA 1975 ts ,y ts 333 voyafcrA ¿ iSjk 18À
¼7½ izFkk && i{kdkj Lkk{kh ds :i esa ugha cqyk;k x;k && vU; i{kdkj }kjk mls vius lk{kh ds :i eas cqyk, tkus ds fy, ck/; fd;k x;k && izFkk nks"kiw.kZ vkSj vi;‘kdj gSA , vkb vkj 1927 ih lh 230 voyafcrA ¿ iSjk 23À
¼8½ fof/k && lk/; dk lk/ku gS vkSj U;k; og lk/; gS && fof/k vkSj U;k; nwj ds iM+kslh gSA 1977 ¼2½ ts ,y ts 54 voyafcrA ¿ iSjk 27À
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 bum 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 bum 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 bum injuries on 18.1.1991.
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. 1,000/- 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 defendants ,No.4.
7. The defendant No.1 and 2, namely, M/s. Hindustan Petroleum Corporation Ltd. and its Area Manager, Bhopal filed joint written statement and defendant No.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. On 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. 2000/- 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 rebu
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