THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD A.S.No.2552 of 2000 & Cross Objections (SR) No.23977 of 2003 Date: 20th January, 2011 Between: M/s. Council of Scientific & Industrial Research rep. by its Joint Secretary, Administration, Anusandham Bhavan, Rafi Marg, New Delhi and another …Appellants/Defendants and 1. Smt. A.V.L.Subhadra W/o late Sri A.Sudhakara Rao and 2 others …Respondents/Plaintiffs *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD A.S.No.2552 of 2000 & Cross Objections (SR) No.23977 of 2003 JUDGMENT (Per Hon’ble Sri Justice B.Seshasayana Reddy): This appeal and the cross objections arose out of the judgment and decree dated 5.6.2000 passed in O.S.No.97 of 1995 on the file of the I Additional Senior Civil Judge, R.R. District at L.B.Nagar, Hyderabad, whereby and whereunder, the learned Additional Senior Civil Judge decreed the suit of the plaintiffs for a sum of Rs.11,52,000/- 2. The appellants are the defendants and whereas the respondents are the plaintiffs in O.S.No.97 of 1995. The plaintiffs filed suit claiming compensation of Rs.11,52,000/- for the death of A.Sudhakara Rao in the incident that occurred on 28.5.1993 in the office of the 2nd defendant. The plaint averments, in brief, are: Plaintiff No.1 is the widow and plaintiffs 2 and 3 are children of Sudhakar Rao. He joined in the Regional Research Laboratory-2nd defendant on 7.4.1977 as Scientist and promoted as Scientist E.1 on 1.2.1991. He held the position of Assistant Director in the 2nd defendant institute. The 2nd defendant was conducting Industrial Research relating to Hydrogenation Oils using Carbon dioxide for the said purpose. The Carbon-dioxide cylinders consists of bottom half and upper half which were bolted together in the middle, unlike other cylinders used for holding gases under pressure. Normally, cylinders intended for such use are of seamless construction with an outlet and a regulator at the top. They have to be made according to specifications of ISI and subjected to periodical inspection and certification of safety by the Directorate of Chief Control of Explosive, Government of India at Nagapur. On 28.5.1993, A.Sudhakara Rao indented for an empty cylinder for the purpose of his research work. He was supplied with CO2 cylinder and he was to make the cylinder empty so as to make it useful for his research work. When he attempted to make the cylinder empty, the regulator became non functional. He instructed the technicians to bring out the cylinder into open area. He was supervising the work of operating the regulator for the purpose of releasing out the stored CO2 gas. Due to defective design and manufacture of the cylinder, the regulator became non-functional. As a result, there was bursting of Cylinder causing serious injuries to Sudhakara Rao and another. Sudhakara Rao came to be shifted to Dispensary at IICI and thereafter to Gandhi Hospital, Secunderabad, where he succumbed to the injuries at 5.15 P.M on the same day. The incident occurred due to defective design of the cylinder and also due to the negligence of the defendants in maintaining the cylinders in proper and safe manner. The deceased Sudhakara Rao was aged 42 years as on the date of his death and he was drawing a monthly gross salary of Rs.8,145/-. The plaintiffs being the wife and children of Sudhakara Rao claimed compensation of RS.11,52,000/- for the death of Sudhakara Rao. 3. The 2nd defendant filed written statement disputing the liability to pay compensation. The 2nd defendant pleaded in the written statement that what is supplied by the Department to the deceased is a pressure vessel and it is not a cylinder. He also pleaded that the incident occurred due to the mishandling of the container by the deceased himself. In a way, the fatal accident was due to the negligence on the part of the deceased and therefore, there was no obligation on the part of the defendants to pay compensation. Operating a pressure vessel containing gas under pressure has a specific procedure and the deceased had not followed the same carefully. The loss of dependency to the plaintiffs had already been compensated by providing compassionate appointment to the 1st plaintiff. 4. The 1st defendant filed memo adopting the written statement of 2nd defendant. 5. Basing on the pleadings of the parties, the trial Court settled the following issues:- 1) Whether the deceased A.Sudhakar Rao died in accident due to negligence on the part of the defendants employees ? 2) Whether the plaintiffs are entitled for compensation under the provisions of Sections 1 and 2 of the Indian Fatal Accidents Act ? If so, to what extent ? 3) Whether the plaintiffs are entitled for the suit claim ? 4) To what relief ? 6. On behalf of the plaintiffs, the 1st plaintiff got herself examined as Pw.1 and examined K.V.L.N.Prakash as Pw.2 and marked seven documents as Exs.A.1 to A.7. On behalf of the defendants, one witness was examined as Dw.1. 7. The trial Court, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the accident in which Sudhakar Rao received injuries, for which he succumbed while undergoing treatment, occurred due to the negligence on the part of the defendants and that the plaintiffs are entitled for compensation of Rs.11,52,000/-. Accordingly, decreed the suit of the plaintiff, by judgment dated 5.6.2000. Assailing the judgment and decree, the defendants filed appeal under Section 96 CPC whereas the plaintiffs filed cross objections dissatisfied of not granting interest on the decreetal amount. 8. Heard Smt. I.Mammu Vani, learned counsel appearing for the appellants-defendants and Sri J.Suryanarayana Murthy, learned Senior Counsel representing Sri K.Sankara Narayana, learned counsel appearing for the respondents-plaintiffs, and perused the material brought on record. 9. Learned counsel appearing for the appellants submits that the vessel containing Carbon Dioxide [ Co2 H2] came to be exploded because of the negligent handling of the container by the deceased himself, in which case, the appellants-defendants cannot be held responsible for the death of the deceased. She would also contend that the witnesses examined by the respondents-plaintiffs did not claim of their presence at the time of explosion. Therefore, no credence can be given to their testimony. With regard to quantum of damages, learned counsel contends that the trial Court failed to take note of the compassionate appointment provided to the wife of the deceased, i.e., 1st plaintiff-1st respondent and extraordinary pension of Rs.2,370/- per month allowed to the plaintiffs while arriving at the total loss of dependency and thereby, the trial Court over compensated the respondents-plaintiffs and the same is required to be reduced considerably. Learned counsel took us to the evidence of Dw.1-Dr.A.A.Khan, who is professionally specialized in Safety and Hazardous assessment. Much emphasis has been laid on the deposition of Dw.1 as to the nature of the vessel, which came to be bursted resulting death of the deceased and injuries to one or two persons. Dw.1 states that the vessel which bursted is not a cylinder, but it is a container and in the case of the container, no certification from the Explosives Department is required. The relevant portion of the evidence of Dw.1 on which much emphasis has been laid by the learned counsel needs to be noted and it is thus:- “ I am a Deputy Director Scientist. I am professionally chemical engineer specializing safety and hazardous assessment. I have been a member of investigating team which took place Bhopal Gas tragedy. I also played a role in Bajaj Assesment of Gas processing complex in India. After the incident in this case I have visited the scene of incident that took place at IICT Hydrozination plant out of my professional interest. The instrument involved in the accident is a vessel. Before opening the container, the gas is to be released through provision made on the vessel and to ensure the gas is released the pressure has to be measured. I have looked at the lid of the vessel. I looked around the area for any evidence of causes of failure. There is a pressure regulator. A release mechanism is also provided. I found both of them not working. I found two nuts and bolts snapped and 3 more nuts and bolts separated at various location. I found 6 nuts and bolts at various places with nuts. The other 3 bolts with the nuts were found elsewhere. The 2 broken bolts the heads and nuts were found at different places. The cause of failure according to me the vessel opened from the flainge unevenly resulting the entire load placed on the two bolts which were broken. According to me the vessel was not opened evenly.” 10. Learned Senior counsel for the respondents-plaintiffs submits that the accident occurred at the work place of the deceased and it is the 2nd respondent-2nd defendant supplied the cylinder that bursted and the burst of the cylinder is because of its defective design in which case, no negligence can be attributed to the deceased and it is the appellants-defendants who are to be held responsible for the supply of defective cylinder/vessel and therefore, they are to be held responsible for the accident. In a way, his contention is that the accident occurred due to the negligent act of the respondents-plaintiffs in supplying the defective cylinder/vessel. Learned counsel by referring the evidence of Pw.2 submits that the cylinder/vessel supplied by the 2nd defendant for research work of the deceased has defective pressure regulator which led to the accident in which case, the finding recorded by the trial Court is not required to be interfered with. Learned counsel also contends that the trial Court without assigning any reason has not granted interest on the quantified amount of damages/compensation and therefore, the cross objection filed by the respondents-plaintiffs assailing non-grant of interest at the rate of 12% per annum as claimed by them deserves to be allowed. 11. In response, learned counsel appearing for the appellants submits that cross objection is not filed within 30 days as contemplated under Order 41 Rule 22 CPC and therefore, the cross objection is liable to be dismissed in lumini. Learned counsel refers the acknowledgments dated 4.12.2000 with regard to receipt of notices in the appeal. Under Order 41 Rule 22 CPC, limitation for filing cross objection to the respondents is 30 days. Admittedly, the appeal came to be admitted on 16.10.2000. The respondents received notices on 4.12.2000 whereas the respondents filed cross objection on 21.3.2003. 12. It is contended by the learned senior counsel that the appellants though entered appearance on receipt of notice in Interlocutory application, they did not receive notice of hearing of the appeal in Form –VI as provided under Order 41 Rule 22 CPC as on this day. Therefore, the cross objection filed by the respondents cannot be rejected on the ground of limitation. Learned senior counsel in support of his submissions, placed reliance on the following judgments:- 1) Thazhathe Purayil Sarabi v. Union of India[1] 2) Sarala Verma v. DTC[2] 3) Abati Bezbaruah v. Dy. Director General, Geological Survey of India[3] 4) Shashikala Bai v. State of Maharashtra [4] 5) Sarla Dixit v. Balwant Yadav[5] 6) Rukmani Devi v. Om Prakash[6] 13. The issues that arise for consideration in these proceedings are:- 1) Whether the accident occurred due to the wrongful act neglect or willful default of the appellants-defendants ? and 2) Whether the cross objection filed by the respondents-plaintiffs is maintainable? 14. ISSUE NO.1:- Section 1A of the Indian Fatal Accidents Act, 1855 enables the victim to maintain a suit for compensation whenever death of a person is caused by wrongful act, neglect, or default, and the act, neglect or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof. Every such action or suit shall be for the benefit of the wife, husband, parent and child. 15. Indisputably, the plaintiffs are the wife and children of the victim, i.e., the deceased. The deceased died of injuries received by him due to bursting of the cylinder/vessel at the work place. The First Information Report with regard to the incident has been submitted by S.V.Samuel, an employee of the 2nd defendant Institute on 28.5.1993 at 8 P.M. The incident occurred at 5.15 P.M. It is stated in the report that the accident occurred when the deceased and others were handling the carbon dioxide cylinder. The same is the version stated by the witnesses examined during the inquest. Ex.A-1 is the attested copy of the F.I.R. It has an enclosure of the attested copy of the Inquest Report. It is evident from the report that the vessel involved is a Carbon Dioxide cylinder. Dw-1 is a professional Engineer specialized in Safe and Hazardous assessment. He admits in cross examination that if it is a cylinder, it has to be sent to the Explosives Department for certification periodically. For better appreciation, we may refer the cross-examination of Dw-1 in his own words and it is thus:- “ On 205-93, this accident has taken place. The said hydrogen plant was blasted on its northern side. The material blasted according to me is Carbon Dioxide in a container. The deceased Sudhakar was Scientist E.1. Other than the deceased 1 or 2 persons were injured in the blast. The technicians must have followed the instructions given by the deceased. I.I.C.T does not supply the cylinders. I have been asked by Administration of I.I.C.T to give evidence in this case. The said hydrogination plaint is now in existence. I am not aware if Apro Quinol Project was existing or not. I am not aware whether any resolution was passed by the defendants to grant compensation to the deceased. I have not seen the accident. I have not seen the manufacture marking on the cylinder. The cylinder is made up of steel. I have not seen whether the said cylinder was having any ISI mark. I am not aware whether the said cylinder has been periodically checked. It was used by the deceased. This cylinder was used by the deceased even before the accident. I am not aware pressure gauge was conducted on this cylinder. The explosive department will provide the certification if it is a cylinder. The weight of the cylinder at that time may be around 10 Kgs. approximately. The cylinder will be brought outside as safety measure to release the gas. This blast comes under explosion. I am the Head of Chemical Engineering Division consisting of 6 groups and one of them is involved in safety assessment. There is a separate safety committee in IICT which will look after the safety matters. If it is a cylinder, it has to be sent to Explosives Department for certification periodically. I am not aware whether as per the records of the defendants E.S.R.Anjaneyulu and K.V.S.Prasad wrote several letters to obtain permission from explosive department…..”. 16. The evidence brought on record clearly establish that the cylinder supplied to the deceased for use of research work is specially designed by the 2nd appellant-2nd defendant. It has its own release mechanism. Dw-1 found the release mechanism un- functional when he inspected the scene soon after the accident. Therefore, it can be said without any fear of contradiction that the accident occurred due to the defective design and manufacture of the cylinder. The trial Court considered the material brought on record in a right perspective and found that the accident occurred due to the negligent act of the appellants-defendants. We do not see any valid ground to disturb the findings recorded by the trial Court on this aspect. Accordingly, this issue is answered. 17. With regard to quantum of compensation, the deceased was getting a gross monthly salary of Rs.8,145/-. The deceased was aged 42 years. The trial Court has taken into consideration his future prospects of promotion and assessed the compensation. The method of assessment of compensation does not warrant interference. Even otherwise, learned counsel has not seriously disputed the quantum of compensation awarded by the trial Court. 18. ISSUE NO.2: The appeal came to be admitted on 16.10.2000. Once the appeal is admitted, notice which is required to be sent to the respondents is with regard to hearing of the appeal. Indeed, notices have been sent to the respondents and they received the notices on 4.12.2000. An interim order came to be passed on 17.10.2000 as per the orders in C.M.P.No.18971 of 2000, which reads as hereunder:- “ There shall be interim stay on condition of the petitioners/appellants depositing 50% of the compensation awarded by the lower Tribunal, within eight weeks from today. On such deposit, the respondents-claimants are permitted to withdraw the same without furnishing security and following the guidelines issued by the Supreme Court in the case of Kerala Transport Corporation v. Susamma Thoms [1994(1) ALT SC 1].” Subsequently, the respondents-plaintiffs entered appearance and filed C.M.P.7155 of 2003 seeking the following relief:- “ For the reasons stated in the accompanying affidavit filed along with this petition, the petitioners named above pray that the Hon’ble Court may be pleased to vacate the interim order of stay granted by the Hon’ble Court on 17.10.2000 in C.M.P.No.18971 of 2000 in A.S.No.2552 of 2000 on the file of this Hon’ble Court and pass such other orders as the Hon’ble Court may deem fit and proper in the circumstances of the case as otherwise the petitioners herein would be put to irreparable loss”. C.M.P.No.7155 of 2003 and C.M.P.No.18971 of 2000 came to be disposed of on 16.4.2003. The order passed therein reads as hereunder:- “ This Court by its order dated 17.10.2000 in CMP No.18971 of 2000 granted interim stay on condition of the appellants depositing 50% of the compensation awarded by the lower Tribunal. It is not in dispute that the above said conditional order was complied with by the appellants. The claimants have filed a petition seeking vacation of the interim stay granted by this court on 1710.2000 and requested the Court to direct the appellants to deposit the entire amount awarded by the lower Tribunal. Heard the learned counsel appearing on either side. The appellants are therefore directed to deposit the entire amount awarded by the lower Tribunal with costs within a period of six weeks from today. On deposit of the said amounts, the claimants are permitted to withdraw the balance of the 50% of the compensation amount by offering sufficient immovable property security to the satisfaction of the lower Tribunal. Both the CMPs are disposed of accordingly.” 19. Subsequently, the respondents filed C.M.P.No.16020 of 2003 seeking the following relief:- “ For the reasons mentioned in the accompanying affidavit, it is therefore prayed that this Hon’ble Court may be pleased to direct the office to post the above A.S.2552/2000 before the Court as “For Being Mentioned” and to pass such other order or orders as are deemed fit and proper in the circumstances of the case”. The said application came to be allowed permitting the respondents-plaintiffs to withdraw the costs of the suit. 20. It is the contention of the learned Senior counsel appearing for the respondents that the respondents have not received the notice of hearing of the appeal and the notices received by the respondents is only in stay application and therefore, the cross objection filed by them on 21.3.2003 cannot be said to be beyond the period of limitation. We are not inclined to accept the contention of the learned Senior Counsel on this aspect. The respondents received notices on 4.12.2000 vide acknowledgments. Sub-rule (2) of Rule 2 of Order 41-A CPC reads as hereunder: “(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of Memorandum of Cross-Objections, if any, unless otherwise ordered, by thirty days from the service of notice upon him.” As per Rule 39 of the Appellate Side Rules, when once the respondent enters appearance by an advocate, copy of the appeal notice shall be taken by the advocate from the Notice Section of the Office of the Registry within one month from the date of his duly entering appearance, and such notice shall be a notice for the purpose of sub-rule (2) of Rule 2 of Order XLI-A CPC. 21. Indisputably, the respondents received notices on 04.12.2000 vide acknowledgements. Even if it is assumed that the said notice relates to the interlocutory applications, it is deemed that they got the knowledge of the filing of the appeal. They can as well receive the copy of the appeal notice and file cross objections within 30 days. Therefore, the 30 days period is to be counted from 04.12.2000. The Cross-Objection filed on 21.03.2003 is hopelessly barred by limitation and it is liable to be rejected in limini. Court fee paid on cross objection is ordered to be refunded to the respondents-plaintiffs. 22. In the result, the appeal is dismissed and the cross objection is rejected. Both parties are directed to bear their own costs. _____________________ B.SESHASAYANA REDDY, J ________________ P.DURGA PRASAD, J Dt.20-01-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD A.S.No.2552 of 2000 & Cross Objection (SR) No.23977 of 2003 (Judgment of the Bench delivered by Hon’ble Sri Justice B.Seshasayana Reddy) Date: 20th January, 2011 [1] (2009)7 Supreme Court Cases 372 [2] (2009)6 Supreme Court Cases 121 [3] (2003)3 Supreme Court Cases 148 [4] (1998)5 Supreme Court Cases 332 [5] (1996) 3 Supreme Court Cases 179 [6] 1991 ACJ 3