IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 158 of 2003. Decided on: 19th August, 2010. _______________________________________________________ Shri Yogesh Kumar Sharma ….Appellant. Versus Smt.Meena Devi and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Ashwani Pathak, Advocate. For respondents No.1 to 4 : Mr. G.R. Palsra, Advocate. For respondents No. 5 &6 : Mr. Ravinder Thakur, Central Government Counsel. __________________________________________________________ SURINDER SINGH, J (Oral). Appellant felt aggrieved by the judgment and decree passed by the learned Additional District Judge, Mandi, whereby the suit filed by respondents No.1 to 4 was decreed for damages to the tune of Rs.95,000/- with interest at the rate of 6% per annum from the date of filing the suit, i.e. 22.6.1996. 2. The facts, in brief, can be stated thus. The appellant had taken the contract through tender to erect the telephone line in Telecommunication Division, Mandi and employed Hem Singh deceased as labourer alongwith some others for executing the work. On 1.1.1996 while Hem Singh aforesaid was at work atop the pole, the pole broke down Whether reporters of the Local papers are allowed to see the judgment? . - 2 - from the socket-point, with the result he fell on the ground and sustained grievous injuries, later died in the hospital on next day i.e. 2.1.1996. 3. Respondents No.1 to 4 herein, are the legal representatives of the deceased, i.e., his wife, minor children and mother. Notice under Section 80 of the Code of Civil Procedure was served upon defendants No.1 and 2 and also upon the Contractor, appellant herein, claiming compensation to the tune of Rs.5 lacs as said Shri Hem Singh had died in the course of performing his duties. Defendants did not respond to the aforesaid legal notice, as such respondents No.1 to 4 filed the suit as indigent persons against the defendant-appellant and respondents No.5 and 6, claiming damages to the tune of Rs.5 lacs, seeking the permission. 4. The suit was resisted and contested by the defendants. Defendants No.1 and 2 filed separate written statement raising preliminary objections of no cause of action and further that there existed no relationship of master and servant between them and questioned the jurisdiction of the civil court to try and determine the suit. On merits, the case of the said defendants has been that the execution of work was the sole duty and responsibility of defendant No.3 Yogesh Kumar appellant in whose favour contract was awarded by the replying defendants. The appellant had engaged the labour at his will and choice to execute the work. The material was supplied to the appellant by BSNL for - 3 - installation of the telephone pole which was said to be of a tested quality. As per the agreement, the appellant was required to engage technical person with experience for assembling the parts of the pole. Its installation and erection was to be undertaken by the technical and skilled persons under the supervision of qualified technical staff. The said defendants also averred that the deceased was not a technical person nor he was executing the work under the supervision of technical person employed by the appellant. Since the supply was made in the bulk quantity from the store for installing the telephone line to different Contractors and no such occurrence has taken place, thus supply of substandard material could not be suspected. Thus, they denied their liability to pay any compensation/ damages and also made the reference to Clause 39 of the tender document accompanied with the undertaking given by the appellant to the effect that in any eventuality or untoward mis-happening the Contractor would be responsible. 5. The appellant/defendant also contested the suit on the ground of its maintainability and on merits specifically contended that the deceased was on daily wage at the rate of Rs.45/- per day and he died because of a fall from a pole which was of substandard quality. 6. The learned trial Court, on the pleadings of the parties, framed the following issues: 1. Whether Hem Singh died while working as daily wages labourer with defendant No.3 due to defective - 4 - and substandard pole (who was contractor of defendants No.1 and 2) as alleged? OPP. 2. Whether the plaintiffs are entitled to compensation on account of death of Hem Singh? If so to what amount and from whom? OPP. 3. Whether the plaintiffs have no cause of action against defendants No.1 and 2? OPR 1 & 2. 4. Whether the case falls within the jurisdiction of Labour Court? OPR1&2. 5. Whether the suit is not maintainable and plaintiffs have no cause of action against defendant No.3, as alleged? OPD-3. 6. Relief. 7. After the complete trial, learned trial Court held that the claimant-plaintiffs have no cause of action against defendants No.1 and 2 and that Hem Singh had died while in employment by a fall from the pole, therefore, appellant was liable top pay an amount of Rs.95000/- i.e. Rs.45,000/- as damages and Rs.50,000/- as consortium to the wife with interest @ 6% P.A. from the date of filing the suit till it is deposited. Consequently, suit was decreed only against the appellant, whereas it was dismissed against the other defendants. 8. The appellant felt dissatisfied with the impugned judgment and decree, thus filed the instant appeal. 9. Shri Ashwani Pathak, learned Counsel for the appellant vehemently argued that the accident in question had taken place on account of defective supply of the pole material by BSNL for which appellant was wrongly held solely responsible, whereas respondents No.5 and 6 were also - 5 - responsible for the damages and further that the consortium to the tune of Rs.50,000/- awarded by the learned trial Court was too excessive. 10. Contra, Shri G.R. Palsra, learned Counsel for respondents No.1 to 4 forcefully argued that said Shri Hem Singh was in the prime youth, leaving behind his mother, young wife and the minor children. They have no earning, as such the amount awarded for consortium is not excessive at all. He further argued that there was no negligence or fault of the deceased, therefore, the amount of compensation awarded by the learned trial Court may not be disturbed. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 12. It is an admitted fact that the appellant did not intimate or report the accident to respondents No.5 and 6 (BSNL authorities concerned) about the said accident and also no complaint/ representation was made to them about the defective supply of the material to him at any time except the contention raised in suit, whereas the stand taken by the said respondents in suit is that the material supplied was upto the mark and of good quality as various works of installing the telephone poles were going on in the said area on other lines but no such defect was even detected or reported by any Contractor. Further Ext.DA/1 tender document containing Clause 32 has also been relied upon. It reads as under: - 6 - “32. The tenderer shall have to employ sufficient and efficient labours for carrying out the work safely without any damage/loss to men or material and it shall abide by para 6 of the undertaking given during the enlistment…..” 13. The undertaking given by the appellant is Ext.DA/2 by which he undertook the responsibility for untoward mis-happening or the workmen towards the loss if any. 14. It also stands established that the deceased had died during the course of employment of the appellant while executing the work. Therefore, he is liable to pay compensation/damages, if any, to the claimants for the death of Shri Hem Singh which is caused by falling the pole on which he was working. The alleged substandard supply of pole/ material neither has been proved nor borne out from the record. 15. Although, the appellant did not employ the skilled workmen to undertake the work, yet it is evident from the statement of DW-3 Suresh Kumar that both of them, i.e., he as well as the deceased had been working for a quite long time in the field, which means that they had acquired proficiency or enough experience in executing the work. Therefore, in these circumstances, in my considered opinion, the learned trial Court rightly held that the appellant is liable to pay the compensation/ damages and not respondents No.5 and 6. - 7 - 16. In so far as the amount of compensation is concerned, learned trial Court assessed the compensation to the tune of Rs.45,000/- by using the multiplier of 10 on 100 working days in a year being a casual labour employed for specific work appears to be reasonable. But awarding Rs.50,000/- for consortium is on higher side. Thus, it is reduced to Rs.30,000/- instead of Rs.50,000/-. Therefore, the total amount which becomes payable to the plaintiffs comes to Rs.75,000/- with interest at the rate of 6% per annum from the date of filing the suit, i.e., 22.6.1996. An amount of Rs.50,000/- was deposited in the Registry of this Court by the appellant, as per order dated 18.8.2004. Now balance amount be deposited alongwith interest on the above rate from the date of filing the suit, in the Registry of this Court and the amount aforesaid shall be apportioned in favour of respondents No.1 to 4 as follows: (a) Smt. Mathra Devi, mother of the deceased = Rs.20,000/-, (b) Smt. Meena Devi widow = Rs.30,000/-, and (c) Sachin Kumar and Pankaj Kumar minors sons of deceased=Rs.25,000/-in equal shares with proportionate interests. [The share of the minors shall be deposited against FDR terminus to their minority or as directed by the Court.] - 8 - 17. The appeal is partly allowed. The judgment and decree passed by the learned trial Court is hereby modified to the above extent. No order as to costs. August 19, 2010. (Surinder Singh), (rc) Judge.