^ \o^L^ ft^ >ri ''*._* SlltCJ o IN THE HISH COUBT OT iTBBIC&TOKE AT BIIASPOR (CG) First Appeal Na§ /^1^ Of 2004 ( Meiaorandam of Flrst Appeal U/s 96 of G.p.c. ) SPPEI&ANT DEFEHBMiT N0.1 sukblal C3ioahan S/o Ganesh Ram Choahan.aged about 48 years,occupa- -tioja Post Master» resident of Infront o£Jute Mill Gate Kaigarh Post Office soutli Chakradhar Nagar Kaigarh (CG). RESPOMBBiTS PL&INTIFFS s yl£ '^^ y' ^ 'X^-^^ ^N^ .••'' .0/^x' ./ ;>' > s^y ^"'^' ..•• '<>"" .L^.--' '-I .•"llv..\ ^.•••'z-lP''Qy 4S Minor Balmlki '/'^•^..••''~ ' . C, Bhagat,aged a .** Ail -C** Versas Sat* Rajmat.1. WS/o Ajit Bhagat, by caste Mali, aged 29 years, occupatJLon house wlfe. Minor Pappu Kumae Bhagat S/o Aji$' Bhagat,aged about 7 years* l^ Hinor Kumari Manisha D/o Ajit (-, Bhagat,aged 5 years « Kumar S/o Ajlt about 3 yearst ^< Minor Banti Kumar s/o Ajtt Bhagat aged 3 month • --~ (Plaintiff no«2 to 5 minors throu^i natural guardlan mother Rajmati Wd/o Ajit Bhagat,r/o Behind Jate Mlll Police Chowki Kaigarft»Distt Raigarh* Italshraj S/o Baleshwar Prasad aged about 35 years* c/o Infront of Jute Mill Oali Kard No«21 Ra-i-garb TehsJ.1 and DJLstrict Raigarh (CG). ^. MEMORAHDBM OF FIRST APPEAL ONDER SEC'CTON 96 OF C.P.C. '-7 DEFEHDANT N0.2 / f-'^^^-'St^^liy'T'^W"'':r HIGH COURT OF CHHATTISGARH AT BILASPUR F.A. No. 164/2004 APPELLANT Sukhlal Chouhan ^ RESPONDENTS Versus Sm.t. Rajmati and others ORDER Postfbr^! -1-2011 ?l Sd/- N.K. Agrawal Judee t» HIGH COURT OF CHHAmSGARH AT BILASPUR F.A. No. 164/2004 APPELLANT Sukhlal Chouhan b Versus RESPONDENTS Smt. Rajraati and others SB:- HON'BLE SHRI N.K. AGARWAL, J PRESENT:- Shri Sunil Sahu, Advocate, for appellant. Shri K.N. Nande, Advocate for the respondents No. 1 to 5. ORDER j-1-2011) 1. Instant appeal is directed against the judgment and decree dated 26-8-2004 passed by the IInd Additional District Judge, Raigarh in Civil Suit No. 10-B/2004 whereby a decree has been passed in plaintiffs favour against the defendant No. 1 / appellant for Rs. 2,44,800/- along with interest at the rate of 6% per annum. Facts of the case in brief are that:- 2. A suit for recovery of Rs. 14,88,OOO/- was filed by the legal representatives of deceased Ajit Bhagat inter alia on the ground that on 23-11-1997, on appellant's call late Ajit Bhagat went to appellant home for masonry work which was to be done over slab and main gate constructed only 15 days prior to the date of incident. Late Ajit Bhagat went near that slab in order to commence his work. Suddenly the slab and beam fell down over his head and pi.irsuant to the injuries sustained he died. 3. The matter was reported to police and offence has been registered against the defendant. Challan was filed and the case is pending. 4. It was further pleaded that the said death had occurred due to defendants gross negligence. Deceased Ajit Bhagat ^SWHBMnsSBtsne -rf^li^ ""Hili. l/''Jf ws-^^. IBI'i?' ,,r«i;2SS: used to earn Rs. 100/- per day and was of the age of 32 years. 5. The defendants filed their separate written statement. The defendants denied the plaint averments and pleaded that he has not issued any direction to the deceased, he came to his house at his own in his absence. His family members advised hira to wait for defendant. The deceased unauthorizedly tried to climb over balcony, did not succeed, fell down and sustained injuries. Therefore, the accident had occurred due to his own negligence and the appellants are not entitled for any compensation. 6. Learned trial Coiirt framed issues based on pleadings of the parties. The parties have led evidence. Based on appreciation of evidence, learned trial Court has held that the said accident had occurred due to negligence of defendant No. 1 and late Ajit Bhagat died due to falling of slab and beam over him and decreed the suit to the extent of Rs. 2,44,800/- in plaintiffs favour against the defendant No. 1 only and dismissed the suit against defendant No. 2. 7. Shri Sunil Sahu, learned counsel appearing for the appellant would contend, the respondents No. 1 to 5 have failed to prove that late Ajit Bhagat was working in the appellants' home on appellant's direction. The work of construction was being carded out by respondent no. 6 on behalf of the appellant and there was no occasion for the appellant to engage late Ajit Bhagat for masonry work. He would further submit that the amount of damages awarded by the trial Court is shockingly on higher side. 8. On the other hand, learned counsel appearing for the respondents No. 1 to 5 Shri K.N. Nande would submit, the judgment and decree passed by the trial Court is well reasoned, is passed on appreciation of evidence and deserves to be upheld. ^'^ igiife /.' 9. I have heard learned counsel for the parties and perused the record of fhe trial Court. C^f 10. The defendant No. 1/appellant in fac't has denied in his written statement that the said accident had occurred due to falling of slab and beam. The case pleaded by the appellant was that the deceased was trying to climb over balcony of main gate, could not succeed, fell down and died. P.W. 1 Rajmati and P.W. 2 Ramnath have clearly stated in their statement that deceased Ajit Bhagat went to appellant s home to do niasonry work only to due appellant's repeated call and he died due to falling of slab and beara which were not properly constructed and was lying there without any support. The appellant failed to rebut the above statement. 11. Learned trial Court on appreciation of entire evidence adduced in the case has rightly held that the said incident had occurred due to negligent act of the appellant. Learned trial Court has further rightly applied maxim of res ipsa locutor in holding that the appellant was negligent who failed to rebut the presumption. The deceased was of the age of 32 years at the time of accident. Income of the deceased was assessed only Rs. 1800/- per month and after deducting l/3rd towards his personal expenses, loss of dependence was worked out to Rs. 1200/- per month i.e. 14,400/- per year. After applying multiplier of 17, leamed trial Court has awarded Rs. 2,44,800/- as compensation against the appellant. Looking to fhe over all evidence adduced in the case, in the considered opinion of this Court, the amount decreed is in fact on lower side, the amount of damages awarded does not call for any interference. 12. Therefore, in view of the above, I do not find any substance in the instant appeal. The same is liable to and is hereby dismissed. - - - _ 13. No order as to costs. Sd/- N.K. Agrawal Judge <-t