IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 346 of 2001 Reserved on : 05.03.2010 Decided on : 22.03.2010 The Associated Cement Companies Ltd., …Appellant Gagal Cement Works Barmana, Versus Smt. Arjan Kaur and others …Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting? Yes. For the appellant: Mr. K.D. Sood, Advocate. For respondents No.1 to 4: Mr. Rajiv Jiwan, Advocate. V.K. Sharma, Judge This appeal arises out of the judgment and decree dated 05.10.2001, of the learned District Judge, Bilaspur, in Civil Suit No. 4/1 of 1999, titled Smt. Arjan Kaur and others V. The Associated Cement Companies Ltd., whereby the suit for recovery of Rs. four lac as compensation/damages on account of death of Shri Bakshish Singh due to the alleged negligence on the part of the defendant, filed by the respondents as plaintiffs against the appellant being defendant in the suit, has been decreed with costs and interest @ 9% per annum from the date of filing of the suit, i.e w.e.f 27.3.1999. In brief, the case set up by the plaintiffs is that plaintiff No.1 ------------------------------------------------------------------------------ 1 Whether the reporters of the local papers may be allowed to see the Judgment? No. 2 is widow, plaintiffs No.2 and 4, daughters, plaintiff No.3, son and plaintiff No. 5, mother of deceased Shri Bakshish Singh, who had died in an accident within the premises of the defendant at Barmana on 30.12.1998. The defendant, Associated Cement Companies Ltd., is engaged in the manufacture of cement. One of its factory is situate at village Barmana, Distt. Bilaspur (H.P.). The manufactured goods are being carried and transported through trucks to various destinations in India. The deceased, late Shri Bakshish Singh, who shall hereinafter be referred to as ‘the deceased’, was driver of truck No. HP24-7197. He was an expert driver. On 30.12.1998, the deceased came with his truck and entered the factory premises of the defendant for loading cement. The truck was parked at the loading centre. The loading was to be carried out by the employees or contractor of the defendant. As soon as, the deceased came out of the truck and was in the factory premises, it was noticed that his dead body was lying there. It was taken to the hospital, but, he had already died within the factory premises due to coming into contact with conveyor belt No.7. According to the plaintiffs, the conveyor belt was not properly guarded nor any protection was there. There was also no sign of danger. It was due to negligence on the part of the defendant that the accident leading to the death of the deceased had occurred. Consequently, a case under Sections 304-A, 287 and 336 IPC was registered against the defendant vide FIR No. 5/99, on 7.1.1999. It is alleged that the FIR was delayed due to the pressure exerted by the defendant, which is a big concern. 3 It was further averred that the deceased was working as driver on the truck belonging to one Shri Khushal Singh and was getting monthly salary of Rs. 3000/-, besides Rs. 30/- as daily expenses. He was aged about 36 years at the time of his unfortunate death in the accident. In the opinion of the Doctor, who had conducted autopsy on the dead body of the deceased, he had died due to asphyxia as a result of head injury and traumatic asphyxia. It being so, it was clear that the death of the deceased was as a result of coming into contact with conveyor belt installed in the factory belonging to the defendant. The plaintiffs were dependant upon the deceased, who was the sole earning member in the family. It was lastly averred that a demand notice was served upon the defendant through registered post on 21.2.1999, calling upon to pay compensation of Rs. five lac. However, neither the notice was replied nor compensation was paid by the defendant compelling the plaintiffs to file the suit. The suit was contested by the defendant on preliminary objections regarding maintainability, locus standi, cause of action, jurisdiction and the suit having been filed with intent to grab compensation by unfair means. On merits, inter se relationship between the plaintiffs and the deceased was denied for want of knowledge. The death of the deceased within the factory premises belonging to the defendant on 10.12.1998, was also denied altogether. It was stated that the factum of the deceased being driver of truck No. HP24-7197 for the last so many years could be answered only in case the plaintiffs made available the relevant documents such as appointment letter etc. The entry of the 4 deceased along with the truck in the factory premises for loading purpose on the date of occurrence was denied. The cause of death of the deceased i.e coming into contact with the conveyor belt was also completely denied. Instead it was averred that in fact the conveyor belts function at the height of 4/5 feet above the ground level. It being so, “there is no probability of human body lying on the belt due to negligence on the part of defendant”. Moreover, warning in the form of sign of danger was properly displayed there on the site. It was denied that the accident had occurred due to negligence or rashness on the part of the defendant. Though a criminal was registered, but, the FIR was cancelled after investigation. It was lastly stated that the defendant is not in any way liable to pay any compensation or damages to the plaintiffs. The plaintiffs filed replication refuting the stand taken by the defendant in the written statement and reiterating the averments set up in the plaint. On the above pleadings, the parties went to trial on the following issues:- 1. Whether deceased Shri Bakshish Singh had died due to negligence of the defendant, as alleged, if so, its effect? ….OPP. 2. If issue No. 1 supra is proved, to what amount of compensation, the plaintiffs are entitled to? …..OPP. 3. Whether the plaintiffs do not have any cause of action? …OPD. 4. Whether the suit is not maintainable as alleged? OPD. 5. Relief. After the parties led evidence and were heard by the 5 learned trial court, the suit was decreed as already noticed. Whereas issue Nos. 1 and 2 were held in affirmative, the remaining issues were decided in negative. I have heard the learned counsel for the parties and gone through the record. The challenge directed on behalf of the defendant against the impugned judgment dated 5.10.2001, is two fold, that is, on the point of negligence as also quantum of compensation. While adverting to the first point, it shall be pertinent to notice at the very outset that admittedly none of the petitioners was present on the spot at the time of the accident. Thus, they were not expected to know as to what was the exact cause for the accident leading to the instantaneous death of the deceased on the spot. It being so, the testimony of PW-5, Shri Kewal Singh, who was conductor of the truck, on which the deceased was driver, becomes relevant being in the nature of res gestae. He has deposed on oath that he was employed as conductor by Shri Khushal Singh (PW-4) on his truck No. HP24-7197 about six months prior to the death of the deceased. On 30.12.1998, they had come from Govind Garh after loading iron ore to ACC cement factory, Barmana. They had reached Barmana at about 5.30 PM and had unloaded the truck inside the factory premises. When the truck was being unloaded the deceased went inside the factory premises on ‘kanda’, to get loading slip. Thereafter, after sometime the witness was taken by the police to the place where the dead body of the deceased was lying near conveyor belt inside the factory premises. He identified the dead body of the deceased as he was working 6 with him at that time. There were no injuries on the face and head of the deceased, but the remaining part of his body was pressed with conveyor belt. According to him, the conveyor belt was about three feet high from the ground level. It is lastly stated by him that thereafter the dead body was taken to District Hospital, Bilaspur, for postmortem examination. In cross examination he has denied that the height of the conveyor belt at the place of accident was 4-5 feet. His statement was recorded by the police. A positive suggestion was put to the witness on behalf of defendant that he had stated to the police that the deceased had told him that he was going to collect loading slip, which has been admitted by him to be correct. In the very next breath another positive suggestion was put to the witness that the deceased had told him that the vehicle be parked after unloading the same, which has also been admitted to be correct. Thus, it is apparent that both these facts that while the truck was being unloaded the deceased had gone inside the factory premises to collect the loading slip and that while going he had directed the conductor (PW-5, Shri Kewal Singh) that the vehicle be parked after unloading, stand admitted impliedly as also by necessary implication on behalf of the defendant. It being so, it can be safely inferred that the deceased was in fact present inside the factory premises where he had met with an accident and further that his entry inside the factory premises was not unauthorized and instead was in connection with collection of the loading slip. Further suggestions were put to the witness which have been replied by him in the affirmative that on the gate and inside the factory security guards remain posted for patrolling and regulating 7 the traffic and that there is no conveyor belt where the vehicle was parked for unloading the iron ore by the deceased, would unmistakably go to establish two facts, that is, presence of the deceased inside the factory premises in connection with unloading of iron ore as also the factum that his entry inside the factory premises including that on the spot was authorized. Had it been otherwise, the security guards on duty on the gate and inside the factory would have definitely stopped his entry inside the factory premises and prohibited area, if any, inside the same. PW-1, Dr. N.K. Sankhyan, had conducted autopsy on the dead body of the deceased. In his opinion, the deceased had died due to asphyxia as a result of choking due to head injury and traumatic asphyxia. According to him, injuries suffered by the deceased could be caused in case he had come into contact with the conveyor belt. It is apparent from the cross examination directed against the medical witness that height of the deceased was 170 CM or say 5 feet 7 inches approximately. If it was so and the height of the conveyor belt was 4-5 feet from the ground level, it cannot be said that he could not have come into contact with the conveyor belt. According to the witness the injuries found on the person of the deceased were sufficient to cause death. Even from the evidence lead on behalf of the defendant it can be safely inferred that the deceased had died due to negligence on the part of defendant in not ensuring that the conveyor belt was properly enclosed/guarded/secured, so that none including the deceased could come into contact with the same, so as to endanger human life. DW-1 H.C Teg Singh has proved in evidence 8 cancellation report Ex.R-1, vide which FIR No. 5/99 relating to the accident under reference was cancelled. A perusal of cancellation report Ex.R-1 would go to show that it was concluded during investigation that the deceased while in haste during the night time might have gone to collect the parchi (slip) through the gypsum gallery considering it to be a shortcut path and while doing so some of his clothing might have come into contact and clung with the gypsum belt and as a result of which he had fallen on the moving belt and had thereby died due to striking of his head against the belt. DW-2, Shri A.K. Mahajan, Personnel Manager of the defendant-company, though not an eye witness to the accident, has quite categorically admitted in the last lines of cross examination that the dead body of the deceased was on the conveyor belt. In view of the above, while applying the law on strict liability first propounded in Rylands v. Fletcher, (1861-73) All. E.R. Rep, application whereof in the Indian context has further been beneficially interpreted by the Hon’ble Supreme Court in M.C. Mehta V. Union of India, (1987) 1 SCC 395, it can be safely held that the accident in question was direct and proximate result of the negligence on the part of the defendant in not employing due care and caution to avoid an accident as of the present nature by making proper arrangements to enclose/guard/secure the aforesaid conveyor belt by appropriate means, so as to obviate the possibility of any one including the deceased or any factory worker coming into contact with the same and thereby endangering human life. Relevant portion of para 31 of the Hon’ble Apex Court judgment in 9 M.C. Mehta’s case , supra which is to the following effect can be noticed with benefit::- “Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence and we cannot countenance an argument that merely because the law in England does not recognize the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule laid down in Rylands v. Fletcher as developed in England recognises certain limitations and exceptions, we in India must hold back our hands and not venture to evolve a new principle of liability since English Courts have not done so. We have to develop our own law and if wind that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm 10 results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.” In so far as the quantum of compensation is concerned , I have no hesitation to say at the very outset that the defendant has not been able to make out any case for any interference with the same. It was contended on behalf of the defendant that in para 5 of the plaint age of the deceased has been mentioned as 36 years. However, PW-3, Smt. Arjan Kaur, who is wife of the deceased has stated during cross examination that the deceased was aged 40 years. In such circumstances, it was not appropriate on the part of the learned trial court to conclude that the deceased was aged 36 years. However, the fact remains that in postmortem report Ex.PA age of the deceased has been mentioned as 35/40 years about which PW-1, Dr. N.K. Sankhyan, has also deposed in the opening lines of his chief examination. Even otherwise, in view of law laid down by the Hon’ble Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another, 2009 ACJ 1298, vide para 21 of the judgment, which is to the following effect, the appropriate multiplier in this case would be 15:- “We, therefore, hold that the multiplier to be used should be as mentioned in column 4 of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, 11 M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” It is in evidence in the statement of PW-3 Smt. Arjan Kaur, PW-4, Shri Khushal Singh (owner of the truck on which the deceased was employed as driver) and PW-5, Shri Kewal Singh, the conductor that the deceased was getting monthly salary of Rs. 3000/-, besides Rs. 30/- as daily expenses on account of diet money. Though there is no documentary evidence to this effect as is usually lacking in such cases, yet taking into consideration the fact that the deceased being a driver fall within the category of a skilled/technical worker, must have in all probability be getting this much of monthly salary and more so when at the relevant time, that is on or about 31.12.1998, even a daily wage worker was getting daily wage of Rs.70-75/- or so. The Hon’ble Supreme Court in the case of Sarla Verma supra has laid down as under vide para 14 of the judgment::- “Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra’s case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be on-third (1/3rd ) where the number of dependent family members is 2 to 3; one-fourth (1/4th) where the number of dependent family members is 4 to 6; and one-fifth (1/5th) where the number of the dependent family members exceed six.” 12 Thus, by taking monthly personal expenses of the deceased to the extent of 1/4th, that is Rs.750/-, keeping in view the size of his family (six including himself) the remainder would be Rs.2250/-, which can be safely taken to be the amount of monthly dependency qua the plaintiffs. The yearly dependency comes to Rs.27,000/- (2250x12). With application of multiplier of 15 the amount that is arrived at would be Rs. 4,05,000/-. However, the claim laid by the plaintiffs was only to the extent of Rs.4,00,000/-. The decree passed by the learned trial court is also to this extent. In view of what has been said hereinabove, it can be safely concluded that the appeal is without any merit and is accordingly dismissed with costs. The record of court below be sent back. (V.K. Sharma) Judge. 22nd March, 2010 Lsp*