THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 89 OF 2001 Date: 28-03-2011 Between: Union of India, rep. by General Manager, S.C.Raly, Rail Nilayam, Secunderabad. .. Appellant And D.Nageswari .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 89 OF 2001 JUDGMENT: The defendant in O.S.No.230 of 1995 is the appellant herein. The suit was filed for recovery of Rs.2,56,000/-, which is said to be the damages towards compensation for the injuries caused to the plaintiff at plat form No.4, Secunderabad Railway Station. The claim of the plaintiff is that on 24.12.1994 the plaintiff along with her family members went to Secunderabad Railway Station by purchasing a plat form ticket and while she was on plat form No.4, an iron rod fell on her head from the extension of the roof of the plat form and as a result of which, she suffered several injuries and she was taken to hospital and she spent money for treatment. According to her, she spent Rs.50,000/- for medical expenses and Rs.1,00,000/- claim was made for compensation and pain and suffering and she also claimed compensation of loss of amenities and services at Rs.50,000/- each. The total compensation claimed was Rs.2,56,000/-. It was further pleaded that the incident was due to the negligence of the contractor and the contractor was appointed by the defendant and consequently the defendant is liable to pay the compensation. The defendant has not paid the amount in spite of the legal notice and hence, the suit. The defendant filed written statement contending that the defendant is not liable for the damages and the suit is bad for non- joinder of proper parties, since the construction was given to a contractor by name M/s Balu Builders under an agreement and as per clause-24 of the general conditions of contract, the contractor alone is liable. The defendant also disputed about the nature of negligence and nature of the injuries received by the plaintiff and also the quantum of medical expenses and the damages. The plaintiff is put to the strict proof of the above allegations. There is no negligence on the part of the defendant and the defendant has taken all precautions and immediately the Station Superintendent has attended on the injured and arranged for ambulance. Therefore, the defendant pleaded for dismissal of the suit. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the plaintiff is entitled for compensation for the injuries sustained by him, in a sum of Rs.2,56,000/- as prayed for? 2. Whether the plaintiff is entitled for interest at 24% per annum as prayed for? 3. Whether the suit is bad for non-joinder and misjoinder of the parties as contended by the defendant? 4. Whether the suit is not maintainable? 5. To what relief? On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked Exs.A-1 to A-17. On behalf of the defendant, D.W.1 was examined and marked Exs.B-1 and B-2. After considering the evidence on record, the learned III Senior Civil Judge, City Civil Court, Secunderabad decreed the suit of the plaintiff for a sum of Rs.1,20,000/-. Aggrieved by the said judgment and decree, the defendant has filed the appeal. The plaintiff has also filed cross objections vide S.R.No.68737 of 2001 challenging the rejection of the part of the claim and when it was returned with some objections it was not represented and finally it was represented with an application to condone delay of 3451 days in representing the cross objections. The points that arise for consideration are: 1. Whether the defendant is liable to pay the compensation? 2. Whether the claim for enhanced compensation under the cross objections is entertainable? 3. Whether the judgment and decree passed by the learned III Senior Civil Judge, City Civil Court, Secunderabad is legal and sustainable? POINTS: In this case, there is no dispute about the fact that the plaintiff has gone to the Secunderabad Railway plat form and on the fateful day she received injuries by a fall of iron rod and she was treated in hospital and evidence of P.W.3 discloses about the nature of the injuries and also the nature of treatment she was given. The fact that the plaintiff has gone to the railway plat form after purchasing the plat form ticket is also proved by Exs.A-1 to A-3. In fact in the written statement, it is admitted by the defendant that soon after the incident, the Station Superintendent has attended on the plaintiff and first aid was given and thereafter she was sent in an ambulance. Therefore, the fact that the plaintiff received injuries on the railway plat form due to the fall of the iron rod cannot be disputed. Learned counsel for the defendant contends that there is no liability for the defendant since the construction was given to the contractor and the contractor was not made as a party and in spite of the objection taken by the defendant an application to add the contractor as a party was filed and withdrawn and, therefore, the defendant is not liable to pay the compensation. The learned counsel for the appellant relies upon Section 15 of the Indian Railways Act (for short “the Act”). Section 15 of the Act deals with the chapter relating to construction and maintenance of the works. Evidently, also casts a duty under Section 15 (2) of the Act to pay or tender payment of any damage or loss caused in exercise of the powers under the chapter. Therefore, it is not as though that the railways is absolutely free from liability. Learned counsel for the appellant also relied upon the contractual terms with the contractor whereunder the liability is fixed with the contractor only. Evidently, the said understanding is between the contractor and the defendant and the plaintiff is a third party, who evidently, has received injuries due to the negligence of the contractor. Therefore, the principle of vicarious liability of the defendant for the acts done by the contractor, who is no other than the agent of the defendant, cannot be excluded. In fact, the learned counsel for the appellant further relied upon Section 13 of the Railway Claims Tribunal Act, 1987, whereunder the jurisdiction of the Civil Court with regard to some of the claims have been exercised by the Civil Court are vested with the claims Tribunal. Evidently, the above section does not exclude the jurisdiction of the Civil Court under Section 120(A) of the Act. The right of the individual to approach the Civil Court is not defeated but only prohibition is that having chosen one forum he cannot be allowed to claim compensation in the other forum. The learned counsel for the plaintiff has relied upon a decision reported in the case of RATHI MENON v. UNION OF INDIA[1] on this aspect and also the judgment reported in the case of VINAYA VILAS SAWANT (SMT.) v. UNION OF INDIA[2]. He has also further relied upon a decision reported in the case of UNION OF INDIA v. THANKARAJ[3] of the Kerala High Court. Therefore, the contention of the appellant that the Civil Court has no jurisdiction, cannot be accepted. In fact, there was no specific plea in the written statement about the ouster of the jurisdiction of the Civil Court. Therefore, the lower Court has rightly considered that there is lack of proper maintenance and the incident was on account of the negligence of the railway administration and also relied upon a decision, which were cited by the learned counsel for the plaintiff. Therefore, none of the objections raised by the appellant with regard to the liability or the jurisdiction can be entertained. So far as the counter claim is concerned, the lower Court has considered the available medical bills, which comes to only Rs.11,437-05 ps. from Exs.A-12 to A-14 but however, it granted a further sum and quantified a sum of Rs.20,000/- towards medical expenses. The plaintiff has claimed a sum of Rs.50,000/- towards medical expenses, which was not proved before the lower Court. The lower Court also granted transport expenses of Rs.2,000/- and also Rs.4,000/- towards extra-nourishment as claimed by the plaintiff. The lower Court also assessed the damages for loss of amenities due to disability and granted a sum of Rs.60,400/- and this also is based on factual calculation and also the age of the plaintiff towards the claim for pain and suffering. The lower Court has granted a sum of Rs.50,000/- and, therefore, consequently ordered a lumpsum of Rs.1,20,000/- to the plaintiff. The lower Court has considered every item of the claim made by the plaintiff and assessed the loss of amenities only on the basis of disability and also the pain and suffering were also taken into consideration and there is nothing contra, to which this Court is inclined to enhance the compensation granted by the lower Court. Therefore, I do not find any merits in the cross objections and accordingly, the delay is condoned and the cross objections are rejected. In the result, both the appeal and cross objections are dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 28-03-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 89 OF 2001 Date: 28-03-2011 MR [1] 2001 (3) ALD 52 (SC) [2] (2008) CPJ 13 NC [3] 2000 ACJ 651