Partly allowed

The Reg.Mang,Oriental Insurance Comp.Ltd v. Mumtaz.Moizuddin,and 7 Ors.

Telangana HC21 Oct 2022CCCA/59/2002

Case brief

AI extract

What is this about?

The High Court held that a claim for compensation for death arising from gross negligence involving strict liability falls under Article 113 of the Limitation Act. Liability was reduced for the insurance company and government, while the contractor remained liable for death compensation and reduced hire charges.

What did the court decide?

Insurance company and government exonerated from compensation liability; contractor liability partially allowed with reduced compensation for hire charges.

The Reg.Mang,Oriental Insurance Comp.Ltd… — Contract and Commercial Disputes | Telangana HC (2022)

¶1

[³²¹⁶ ]

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IN THE HIGH COURT^{FOR THE STATE OF TELANGANA} AT HYDERABAD

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FRIDAY,^{THE TWENTY FIRST DAY OF OCTOBER} TWO THOUSAND^{AND TWENTY TWO}

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PRESENT

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THE HONOURABLE^{SRI JUSTICE M.LAXMAN}

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C.C.C.A. NOS: 59.^{60. '101}

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207 OF 2002:178 AND^{179 0F 2003}

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c.c.c.A. NO^{: 59 OF 2002:}

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Appealfiledundersectiong6ofC.P.C.againstthejudgment-andde.cree OateO ZbltO-2001^{madein O.S.No.664of 1993 on the file of the Court of the} noa-ition"r Judge, city^{small causescourt-cum-Vlsenior civil Judge, city civil} Court at Hyderabad

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Batween:

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TheRegionalManager,orientallnsuranceComp.Ltd,.SnehalathaBuildings' Panjagutta, Hyderabad

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...APPELLANT'DEFENDANT^NO.3

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AND

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Mumtaz.Moizuddin,^{S/o. Mohd.Zaigum Ali}

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Asmatunissa^{Begum, Wo. Mumtaz Moizuddin,}

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FayyazMoizuddin,^{S/o.Mumtaz Moizuddin, Age:17 years}

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ShLeraz Moizuddin,^{D/o.Mumtaz Moizuddin Age'16 years}

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- Sheerin Mumtaz,^{D/o.MumtazMoizuddin,Age:'t3 years}

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tpi"i.titt"^{3 to 5 areminorsunderthe guardianship_offirst plaintiff)}

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... RESPONDENTS/PLAINTIFFS

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1. M/s. A.B.C.^{lndia LimitedTransport House, R'4' New CIT road' Tirhastty} Bazar, Calcufta-73 ...ReSpOXOENT/DEFENDANT^NO'2

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The Secretary,^{lrrigation and CommandArea Development'} Oor"tn."nt iri^{nnOnra Pradesh. ...RESPONDENT'DEFENDANTNO'4}

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(D4 impleaded as^party as^{per orders passed in l'A 31/99' dt 24-10-2000)}

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Counsel for the^{Appellant:SRI S. AGASTYA SHARMA}

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Counsel for the^{Respondents1 to 5: SRI VIJAY KUMAR HEROOR}

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Counsel for the^{Respondent No. 6: SRISRINIVAS CHITTURU}

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Counsel for the Respondent^{No. 7: GPFOR APPEALS}

¶28

C.C.C.A. NO: 60 O = 2002:

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Appeal filed under Section 96^{of C.P.C. againstthe judg'nent and decree} dated 20-10-2001 made^{in O.S.No.532of 1993'onthe fie of the Court of the} Additional Judge, )ity Small^{Causes Court-cum-VlSenior} 'l:ivil^{Judge, City Civil} Court at Hyderabac

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Between:

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The Regione I Manager, Oriental lnsurance^{Comp.Ltd,finehalathaBuildings,} Panjagutta, I lyderabad

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...APPELLA NI]TDEFENDANT NO.3

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AND

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Mumtaz.l/toizuddin, S/o. Mohd.Zaigum Ali^{...RESl'ONDENT/PLAINTIFF}

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M/s. A.B. ). lndia Limited 8O/1 , 8th Floor,^{Paigh Plaza,Bar;heerbagh,} ...RESPONDENT/DI:FENDANT NO.'l

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Hyderabz d

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M/s. A.B. l. lndia Limited Transport House, P.4.^{Ne't tllT road, Tirhastty} Bazar. Ct lcutta-73 ...RESPONDENT/DI:FENDANT NO.2

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The Secr, rtary, lrrigation and Command Area Devel:pment, Governm rnt of Andhra PTadesh. ...RESPONDENIIDEFENDANT^NO.4

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(D-4 implead :d as party as per orders passed in l.A 31 '911, dl24-10-2000)

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Counsel for the A1^pellant: SRI S. AGASWA SHARMA

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Counsel for the Re spondent {: SRI VIJAY KUMAR HEROCTR

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Counsel for the Re spondents 2 & 3: SRI SRINIVAS CHITTIJRU

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Counsel forthe Respondent No.4: GP FOR APPEALS

¶44

C.C.C.A. NO: 101^(tF 2002:,

¶45

Appeal filed under Section 96 of C.P.C. against the ir.rdgrnent and decree dated 20-10-2001 nade in O.S.No.532 of 1993 on the fil: of^{the Court of the} Additional Judge,^(;ity Small Causes Court-cum-Vl Senior Oivil Judge, City Civil Court at Hyderabad

¶46

Between:

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The Secrr tary, lrrigation and Command Area Devel,rp,metlt, Governmr^rnt of Andhra Pradesh.

¶48

(D-4 implead rd as party as per orders'passed in l.A.30,ilr:)00^{dl24-10-2000)}

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...APPELLAI,IT/DEFENDANT^NO.4

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AND

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Mumtaz.Moizuddin, S/o. Mohd.Zaigum^Ali

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... RESPONDENT'PLAINTIFF

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M/s. A.B.C. lndia Limited 80/1, 8th Floor, Paigh^{Plaza, Basheerbagh,} ...RESPONDENT/ DEFENDANT No.1

¶54

Hyderabad (R-2 is dismissed for default vide Court Order dated 21-10'2011l.

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M/s. A.B.C. lndia Limited Transport House, P.4.^{New CIT road, Tirhasfty} Bazar, Calcufta-73 ...RESPONDENT/ DEFENDANT No.2

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The Regional Manager, Oriental lnsurance^{Comp.Ltd,. Snehalatha} Buildings, Panjagutta, Hyderabad

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...RESPONDENT/ DEFENDANT No.3

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Counsel for the Appellant: GP FOR APPEALS

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Counsel for the Respondent No. 1: SRI^{VIJAY KUMAR HEROOR}

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Counsel for the Respondent No.3: SRI SRINIVAS^CHITTURU

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Counsel for the Respondent No.4: SRI S. AGASWA^SHARMA

¶62

C.C.C.A. NO: 207 OF 2002:

¶63

Appeal filed under Section 96 of C.P.C.^{againstthe judgmentand decree} dated 20-10-2001 made in O.S.No.664 of^{1993 on the file of the Court of the} Additional Judge, City Small Causes^{Court-cum-VlSenior Civil Judge, City Civil} Court at Hyderabad

¶64

Between:

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The Secretary, lrrigation and Command^{Area Development,} Government of Andhra Pradesh.

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(D-4 impleaded as party as^per orders^{passed in 1.A.31/1999, dt 24-10-2000)}

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...APPELLANT/DEFENDANT NO.4

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AND

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Mumtaz.Moizuddin, S/o. Mohd.Zaigum^Ali

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Asmatunissa Begum,^{Wo.Mumtaz Moizuddin,}

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F ayyaz Moizuddin, S/o.Mumtaz^{Moizuddin, Age:17 years}

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Sheeraz Moizuddin, D/o.Mumtaz^{Moizuddin Age.16 years}

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Sheerin Mumtaz, D/o.Mumtaz^{Moizuddin,Age:13 years} (Plaintiffs 3 to 5 are minors under the^{guardianshipof first plaintiff)} ...RESPONDENTS/PLAINTIFFS

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M/s. A.B.C. lndia Limited 80/1,^{8th Floor, Paigh Plaza, Basheerbagh,} ...RESPONDENT/DEFENDANT^NO.1

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Hyderabad

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M7s. A.B.C. lndia Limited^{Transport House, R.4. New CIT road, Tirhastty} Bazar, Calcufta-73 ...RESPONDENTIDEFENDANT^NO.2

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B. The Reg ional Manager,^{OrientallnsuranceCornp.t-td,.Snehalatha} Buildings, Pan^{jagufta,HYderabad}

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...RESPONDEt\l'ri DEIFENDANT^NO.3

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Counsel for the Ap^{pellant: GP FORAPPEALS}

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Counsel for the^Re spondents^{'l to 5: SRI VIJAY KUMAR HI:ROC)R}

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Counsel for the Re tpondents^{6 & 7: SRISRINIVASCHITTI,RU}

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Counsel for the Re ipondent^{No.8: SRI S. AGASWA SHARMA}

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C.C.C.A. NO: 178 C F 2003

¶84

Appeal filed rnder Section 96^{of C.P.C. againstthe judgnrentand decree} dated 20-10-2001 rnade in o.s.No.664 0f^{1993 0n the fili) of the court of the} Additional Judge, C ity Small Causes^{Court-cum-VlSenior i)ivil .,udge, City Civil} Court at Hyderabad

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Between:

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M/s. ABC lnd a Ltd.,80/1 ,8th Floor,^{Paigah Plaza, Baslr,:,:rbagh,Hyderabad.}

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M/s. ABC lnt ia Ltd., Transport^{HouseP4, New CIT [],:ad, TirhattyBazar,} Calcutta 700 \73.

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... APPELLANTS'DEFENDANTS^{1 & 2}

¶89

AND

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1 Mumtaz Moiz rddin, S/o. Mohd.^Zaigum Ali, ...RESPONDENT/PLAINTIFF 2 The Regional Manager, Oriental lnsurance^{Co. Ltd.,SneralataBuilding'} Punjagutta,Hrderabad ...RESPONDENT/DE:E:NDANTNO.3

¶91

1. Secretary, lrri^yation and Command Area Development^[)epanment, Government^< f A.P., Secretariat, Hyderabad.

¶92

(D-4 impleade d as party as^per orders^passed in^I A.31/^{1999, dt24-10-20o0)}

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...RESPONDEN T/DEFENDANT^NO.4

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Counsel for the Aplrellants: SRI SRINIVAS^GHITTURU

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Counsel for the Rer^pondent No.1: SRI VIJAY KUMAR^HERI:'OR

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Counsel for the Res^pondent No.2: SRI S. AGASTYA^{SHARITU</sup>}

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Counsel for the Res^pondent No.3: GP FOR APPEALS

¶98

'ctw crvtL couRT APPEAL NO: 179 OF 2003

¶99

Appeal filed under^{section96 of C.P.C. againstthe judgmentandde-cree} OateO Zb-tO-2001^{madein O.S.No.664of 1993 on the file of the Court of the} Additionat Judge, City Small^{Causes Court-cum-VlSenior Civil Judge, City Civil} Court at Hyderabad

¶100

Between:

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M/s. ABC lndia Ltd.,80/1,8th^{Floor, Paigah Plaza,Basheerbagh,} Hyderabad.

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M/s. ABC lndia Ltd.,^{Transport House P4, New CIT Road, TirhattyBazar,} Calcutta 700 073.

¶103

...APPELLANTS/DEFENDANTS^{1 & 2}

¶104

AND

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'1. Mumtaz.Moizuddin, S/o. Mohd.Zaigum Ali

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Asmatunissa Begum, Wo.^{Mumtaz Moizuddin,}

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Fayyaz Moizuddin, S/o.Mumtaz^{Moizuddin, Age:17 years}

¶108

Sheeraz Moizuddin, D/o.Mumtaz^{Moizuddin Age.'16 years}

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Sheerin Mumtaz,^{D/o.Mumtaz Moizuddin, Age:13 years}

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...RESPONDENTS/PLAINTIFFS

¶111

(Plaintiffs 3 to 5 are minors under the^{guardianshipof first plaintiff)}

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The Regional Manager,^{Oriental lnsurance Co.Ltd.,Snehalata} Building-, Punjagutta, Hyderabad^{...RESPONDENT/DEFENOANT NO'3}

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Seretary, lrrigation and^{Command Area DevelopmentDepartment,} Government of A.P., Secretariat,^Hyderabad.

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...RESPONDENT/DEFENDANT^NO.4

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Counsel for the Appellants:^{SRISRINIVAS CHITTURU}

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Counsel for the Respondents^{1 to 5: SRI VTJAYKUMAR HEROOR}

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Counset for the Respondent^{No.6: SRIS. AGASWA SHARMA}

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Counsel forthe Respondent^{No'7:GP FORAPPEALS}

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The Court delivered the^{following:COMMON JUDGMENT}

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TIIE HON'BLE SRI JUSTICE M.LAXMAN CITY CML COURT APPEAL [os.59.'60. LOL._l.l,O1' of 2OO2t 178 and L79 of2OO3

¶121

COMMON JU])GMENT:

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Since th: issue raised in ali the appezds is or-re arrd the same, they err being disposed of by this common.;udgment.

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All thesr appea-Is arise out of the commc n judgment and decree da,ed 20.10.2001 in O.S.Nos.664 & :,::\2,:f 1993 on the filt: o I tLLe Additional Judge, City Srrz:11 Causes Court-cum-VI Senror Civil Judge, City C ivil Court, Hyderabad, u,l erern both the suits were decreed :',' arvarding damages in th: fdrm of compensation for the dee.th ctf Aizaz Moizuddin irn I also towards hire charges f,rr the two electrica-i moto^' pump sets hired by M/s.ABC India. Linrited

¶124

O.S.No.6ti4 of 1993 was filed seeking comp,: nszrtion of Rs.5,00,0OO/- for the death of Arzaz M<'tizudclrn in the incident that tas occurred on 10.06.1990 r,r,hile shiftrng the Budda Statue from the shore of Hussain Sagar I al<e to rock Zlbraltur in th: Hussain Sagar Lake. O.S.No.5:i:.1 of 1993. was filed seeki rg damages to'r"ards loss of lrire cl'targes for the trvo electri:al motor pumps supplied to the r::ontractor

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¶126

i.e., defendant Nos. 1 and 2 in the suits for^{pumping out the} stagnated water in the Plantoon. Both suits^were decreed by granting compensation of Rs.5,OO,OO0/- for death of deceased and Rs.3,OO ,OOO / - towards loss of hire charges. Hence, all these appeals afe individually filed by the contractor, Government and the Insurance Company.

¶127

For the sake of convenience, the parties hereinafter are referred to as they are arrayed,in O.S.No.664 of 1993.

¶128

The sum and substance of the case of the plaintiffs is that they run M/s. Mumtaz and Sons, which is a^proprietary concern involved in supply of various materials. Defendalt Nos.l and 2 hired two electrical motor pump sets to^pump out the water stagnated on the plantoon of the barge, agreeing to pay hire charges of Rs.225/- per day for each pump and the deceased - Aizaz Moizuddin was employed to oversee the pumping of water from the stagnated^plantoon. On 10.03.1990, in the morning hours, while shifting^the Budda Statue towards ZlbraTtur from the shore of^the Hussain Sagar Lake on the barge pulled by tug, the^Budda statue slid off and fell off in the water. The statue^{was sunk}

¶129

)

¶130

and the de:ce: sed \,as one of the persons amonf,:he ten (10) people, u'ho 1< st their lives in the incident. Apar- frorn death, two electrical Trotor pump sets supplied by the plaintiffs were also submerl ed and they could not be retr i€:verl. The deceased was 22 years old and he was stuclying F)ngineering II year. On t re date of incident, he was deputr rl to oversee the work of dewatering from the plantoon. lr-r the said mishap, the deceased died and therefore, t-rt:y claimed compensation for the death of the deceased. Apzrrt from the compensation they also sought damages for the lcss of hire charges for th e tv/o motor pumps hired by defe rulan t Nos. 1 ar;d 2, who an e the contractors. They claimed R;.li,OC,00O/towards comp:nsation for death of deceased Rr;.l),0,J,000/for loss of hir e charges. Defendalt Nos.1 anrl 2 a:-e the contractors frc m defendant No.4. The defendanl l{o..1 is the insurance corr pany which insured the statue arrri [rerght. As per the plaintil ls, urll of them are^jointly and sever;lly liable to pay the compe rsation and damages as claimed at o,/e

¶131

Defendar t No.1, 3 and 4 filed separrt,: w'ritten statements. I )efendart No. 1^{in written} statenl,trtt^{<1id not} deny the aspects of hiring of^{tu'o pump sets antl ,:mploying}

¶132

¶133

the deceased to oversee the pump sets installed to dewater from the plantoon. However, they denied the educational qualification, earnings and the age of the deceased. They also denied that they hired two pump sets ald agreed to pay hire charges. However, they claimed that work of dewatering was assigned to the plaintiffs and they installed the pump sets to dewater and deputed the deceased to supervise the dewatering through the pumps. If any liability is fastened, defendant No.3 being the insurer, is liable to pay compensation and damages.

¶134

Defendant No.3 admitted the issuance of insurance policy, which was covering the statue as well the freight. According to them, there was no policy covering the loss of human beings, but there was a policy to cover the freight only. The freight insurance did not cover the liability of the insurance company for loss of any human beings, but it only covers the loss or damages to the subject matter, which is the good undertook for the transport. They also admitted that the policy was existing as on the date of incident covering the statue as well as the freight and they disclaimed any liability towards the claim made by the plaintiffs.

¶135

¶136

Defenda nt No.4 was impleadecl strltsequently.

¶137

Defendant N r.4 as well as the Government a-lso l-rled independer-rt written statements pleading th,at the Government 1as no liability to pay compensrrt ion to the plaintiffs. Thr Government disclaimed liability o:r the ground that there war i coverage of any loss or damages rt th,: statue as well as the freight. It is also their claim that as per the terms and cor ditions of contract in between defenrlalt Nos. 1 & 2 and defer dant No.4, defendant Nos. 1 & 2 rrnder-took to incur any liab lity on account of loss of an1 hunran treing in the course of t xecution of the work. They relied rrltor-. clause No.45 of the .erms and conditions of contract. They also stated that th e suit is barred by limitation an,l prayed to dismiss the su t.

¶138

Based or L the above pleadings, the Court lrekrw has framed the foll, nving issues:

¶139

"Issues in ).S.IVo.664 of 7993:

¶140

Whether tl .e ltlaintiffs are entitled for Rs S,')(,,OCO/ - against def':ndant l[os. ] fo 3^jointly and seuerallg tctutards compensati' D7 ft>r the loss o/ ltf,: of lote Aizaz M:it:uddtn tuith inter< st thereon at 7 8o./o p.a. ttIY fi-te d e of realization?

¶141

Whether M'.Mumtaz Moizuddin uas the owne' of tlrc pump sets, tnd that he lent the pump sets on hire?

¶142

¶143

Wether the plaintiff Lns any cause of action to file the suit?

¶144

Wheth.er Aizoz Moiztddin died duei to the gross negligence of defendant No.1?

¶145

Wether tlere utas no piuitA of contract between the plai_ntiff and dekndant No.3 for paying ang d,amages due to death of Aizaz Moizuddin?

¶146

To uthat reliej?

¶147

Addltlonal Issues.'

¶148

Wetler tltere utas priuitg of contract betuteen late Aizaz Moizuddin and defendant No.4?

¶149

Whether the suit i-s baned bg limitation?

¶150

Issues in O. S.l\Io.532 of 7993:

¶151

1 . Wlether plaintiff is entitled for the suit claim and. interest as praged for?

¶152

W'ltether defendant No.3 has no piuity of contract tuith plaintiff and not liable to paA the suit amount?

¶153

Vlhether the suit is bad for non-joind-er of necessary partg? 4. Whether this Court has no teritoial jurisdiction tolrg ine sutt?

¶154

Wlettter the suit is baned bg limitation?

¶155

Whether defendant No.l is not liabte to pag the suit claim?

¶156

To tuhat relief

¶157

Additlonal Issze.'

¶158

Wlether tlere utas piuitg of contract betueen late Aizaz Moizttddin and dekndant No.4?,

¶159

The plaintiffs, to support their case, examined pWl & PW2 and relied upon Exs.Al to A24. The defendants, to support their case, examined DWI & DW2 and relied upon Exs.Bl to 83.

¶160

¶161

¶162

1 1. The tr al Court,^{after consideringthe pl":adings and} evidence on record,^{decreedthe suit state: sttpra and} fastenecl the liability^{on the defendantsjointly zrndseverally'} Aggrieved b I the same,^{the present appea r; have been} preferred.

¶163

Heard the learned^{counselrepresen-ng forthe} appellants a nd the respondents^{and perused-'he material} placed on record.

¶164

13 The fol owing^{potnts emerge for considera.tl') n.}

¶165

"1) Wh,tther O.5.No.664^{of 1993, tthich tuc:;} filed for compens, Ltion for the death^{of Abaz, Moizttctilin,uas} barred b1, limitation?

¶166

Wlteiter the compensation fixed^{bg the Courl beiow is} just and easonable? -3).Wheth r the accident tttas result of negligencz cr it falls undet' tfu rule of stict^low?

¶167

Whett er the^{lnsuranceCompang/drtnda''t l[rr'3 is} li.abte to pag the^{compensation on ttle st'ength of} Ex. B 3 / ln ;urance^Policg.?

¶168

Wteth zr the^compensation frxed^{toutords htre: charges} required' ng^{intederence?"}

¶169

Points 1 anc 3:

¶170

The fac ts and^{evidenceon record sh o'"r' tltzrt defendant}

¶171

No.4 assigne I contract^{to defendantNos' L & ill.o 1'ransport} Monolithic B rddha^{statue from the shoreo1' H rr ssainSagar} Lake to rock Zibraltur^{locatedin the middleol l.he Hussain}

¶172

¶173

Sagar Lake. In the morning hours, on 1O.03.1990, white shifting the monolithic statue frorri the shore to zibraftur rock on the barge pulled by the tug, the monolithic Budda statue slid of ald fell into the water. In the mishap, I O human lives are lost including the deceased. The barge arrd the tug were also sunk in the water.

¶174

It is also not in serious dispute that the deceased one among the ten (lO) persons, who lost his life in the accident and he was supervising the dewatering of prantoon. It is arso not in serious dispute that two motor pumps were installed to dewater the plantoon. The present suits have been instituted on the premise that the accident which resulted the death of the deceased was on account of gross negligence and it was not claim of strict liability. However, the death was resulting of tortious act.

¶175

The Court below while adverting to limitation has relied upon the two decisions of the Hon,ble Apex Court in the case of (l) Jagalaxmi Salt Works priuate Ltmited, us. State of GuJarat - {tgg4 SCC (4) t} and (ii) Bank oJ India vs. Laxmt das - (AIR 2OOO SC ttZ2).

¶176

¶177

17 . The feLct s in the said two cases show that t-^r:: claims are ansing out ol darnages suffered on account of rla.mages, but not relating t c the compensation for the death of a human being. Thos: claims are also based on the :omrnon law remedies for l ortious act. In the context of liabil 't' u:rder the common la.w for the tortuous Act, the Ape> Court has referred to tl e residuary Article of Limitation ,\ ct prior to 1963 Amendnent Act to the Limitation Ac1. Strictly speaking. the principle applied in the said two <:,:rses is not applicable to t he facts of the present case

¶178

In the present case, the claim was mzLde for compensation for the death of the individual, wh,r rliel in the accident, whi, :h accident claimed to be a tor.r(:,us act of negligence on the part of the contractor involled in the transportation of rnonolithic Budda statue from -he s,hore of Hussain Sagar to Zibraltur rock.

¶179

The learr ed counsel for defendarrt Nos.1 & 2 had relied upon the decir ion of the Apex Court in the cast^r.>f Damini and others t,s. Managing Director, Jodhpur, Vidguth Vitran Nigcm Limited and. Another (2077 9 SCll 443) and

¶180

¶181

contended that all fata_l accidents must be laid under the Fatal Accident Act, 1g55 and Artible g2 of Limitation Act thereof deals with the limitation for filing the suits for compensation for death in the fatal accident. A contention was raised before the Apex Court to the effect that the claims under the fatal accident are based on the negligence ald the limitation contained under Article g2 was applicable but not Article 113 of the Limitation Act.

¶182

Now the question is whether the Fatal Accident Act applies to the case which demonstrates that the incident is combination of negligence and the rule of strict liability. If the claim is filed based on strict liability but not based on the negligence, whether such claim has to be under the Fatal Accident Act. In fact, this issue was raised in Jagalaxmi Scrlt Worfts Prioate Limlted's case (supra). However, in the facts and circumstances of the said case, the Apex Court found that the incident in the said case was not result of strict liability. Therefore, the said question was not fallen for consideration.

¶183

¶184

2l . To ans^{wer above issue, it is relevanr to r:fr:r 1'o Section}

¶185

1(a) of Fatal Accident^{Act, which readsas under}

¶186

"Suit for^{t'ompensationto the} fantlg^{oJ a pe;'son for loss} occasione I to it^{bg his death bg actlonctble wrong'-} Wheneuer^{:he tleath of a personshalt be causec ltg urongful} act, neglec^{or c)efault,and the oct, neglect or defctLltis suchos} utould (if d zath^{had not ensued) haue entitled the P'artllinjured} to main.ta^. an^{actionand recouerdamagesin res y-'ecl thereof'} the portA t^{,ho tuouldhauebeenliable if deathha; not ensued'} shall be lialtle to^{anaction orsuit} it' damages' notwithsto tding^{the d-eothof the person inlured ctltd although} the de-ath : hall^{haue been caused undersuchcirc tritstances as} amounl in aut^to felong^{or other cime'}

¶187

Euery : uch action^{or suit shallbe} for^{the bene.r.tof lhe uife'} husband, lwrent^{and-chitd, if ang, of the person t} 'ho:;e^death shall haue been^{so caused, and shall be broughtb:l antd in the} name oJ'^t, re^{executor, administrator or represe'tt{7tiue of the} Person^deczased;

¶188

Lch cramages and. in zuery^{such action, tle court moA gtue {t} as it maA^{think proportionedto tte lossresulti'it)' fr'cm such} death. to t\e^{parties respectiuely,} for^{tuhom ar t'i' for whose} benefit su.;h action^{shall be brought, antd thz ant ount so} recouered,, tfter^{d'eductingall costsand expenses,brch':dingthe} costs rrot^recouered from^{the defendont,shal be diuided} amongst tl^{.e before-mentionedporties,or antgof tllem in such} shares as he^{court bg its} iud-gment^{or decree shaI} ':lirect''

¶189

A rez ding^{of theabove provision vrrluld clearly} demonstratt that^{when the death of a pers ()t1 occurson} account of a^{u'rongfulact, neglect or clefau 1, ttLe injured} partl'has a remedy^{to maintaina commoll larv r':medyunder} the Fatal A :cident^{Act. It creates exception -'''r the rule of}

¶190

¶191

Actio personalis moitur d)m persona which means cause of action dies with the person.

¶192

The Apex Court had an occasion to deal with the concept of tortious liability 1n Jagalaxml Salt Works Prioate Ltmlted.'s case (supra), wherein it has been held as follows:

¶193

para 7: To determine if tlrc lau stoted, seemingly, so simplg bg tLE leanted third Judge get so broadlg, is acanrate understanding of the exhaustiueness of the expression used in Article 36 as extending to all kinds of torts it mag be necessary to understand the meaning and scope of torts and tte uidth and ambit of th.e expression used in Article 36. 'Tort' dictionary means 'breach of dutg leading to damage'. Same meaning attach.es to it in laut. Salmond has defined it as,a ciuil urong for uhich the remedg i.s a common low action in unliquidated damages and uthich is not exclusiuely tLrc breach of a @ntract or the breach of a trust or otLer merelg eEtitoble obligation.

¶194

Winfield has defined toruous law arising from, breach of a dutg pimailg fixed bg lau; this dutg is toutards persons generallg and its breach is redressable bg an action for unliquidated damages. In general, torls consisf of some act done uithout just cause or excltse. "The law of Torts exists for the purpose of preuenting men from hurting one anoth.er uhetler in respect of their propertg, their presence, their reputations or anything tuhich i.s tleirs,' Injury and damage are two bosic ingredients

¶195

¶196

¶197

of tort. Alth tuglt these mag be found in contract a.; wel,!. but the uiolations t thicl'L mag result in tortuous, liabilitg ttnz breach of duty pnma ily Jtued by the laut uhile in contract lL',,.A are ftxed bg the panies themselues. Further in tort the dut tt is ;nuards perso,ls ge erally. In contract it is touards spec lir person or persorrs. At action for tort is usuallg a claim Jct pe,anniary compensati tn ir,, respect of damages suffered as c rzsult of the inuasion of e legallg protected interest. But law oJ r<;rts being o deueloping lau.t its frontiers are incapable of be;ng stictly barricad.ed.

¶198

Liability tn^'.ort u-thich in course of time has becor,u' knoutn as 'stict habi itg', 'absolute liability', 'foult liabili y haue all graduollg goun and uith passage of time haue be'c.ome Jinnly entrenched.^'Absolute liabilitg' or 'special use biirying uith it increased a angers to others' Rylands u. FletcLrcr (:;upra) and 'foult liabili y' ore different forms which giue ise to action in torts. TLLe a istantce betueen'stict liability' and 'J c'.t.tlt iiability' arises fr_on^presence and absence of mental _g.leryent. A breach of legol dutg ttitfuUg, or deliberatet.l o.r euen maliciously i.s regligence emonating from fault tiLtbility but injury or do maoe resultinq without anu lntentlpl_y4_due to lack of 'oleslqhtg9._k_Etrig! liabilitg. Sincr' duttl is the pimary yan Tsti<:k to determine th.e tortuous liabil;.t1; it:; ambit keeps on ui Tening on tle touclrstone of faimess, prctcticalitg of the siftLati.or etc. In Donoghue a. Steuenson (1932'1 AC: 562 a manufochtrt r u.xts held to be liable to ultimate con: tunet on the pincipte of ,lutg to core. In Anns and Ors a. Merton London Borough Cc uncil (1978) AC 728 it uas, rightlg, obst rued,

¶199

the bt oad general pinciple of liabilitu for .fi:t7e5;sedble damage is s-t tuirlelg^{applicablethat} the function o,'t4e ,htty of

¶200

1.4

¶201

care is rrot so^{much to identifycases uthereliabilitg is imposed} os to identifA^{tlnseu)h.ere it b not""""'}

¶202

Trulg speaking^{entirelanaof tortsis founded and structured on} moralitu that no^{onehas a iqht toiniure or hatm others} intentionall u or^{euen1nnocentlu.Therefore, it tttould be Primitiue} to class stictlg or^close finalitg^{the euer-expanding and} grouting horizon of^{torhtousliability} '^Euen for^sociol deuelopment, orderlg^{grorath of tlesocietgand cttltural} refineness, the^{liberal approachto tortuous liabilitybg courts is} more conduciue-

¶203

8.In betu-rcen^{strict tiabilityond} fault^{liabilitg tlere magbe} numerous circumstances^{in which one maA be en.titledto sue} for^{damages. And. it magbe partlgone or the otheror magbe} botL In a welfare^{societg anstruction of dam or bundhfor the} sake of communitg^{i.s essential} function^{and use of land or} acanmulation^{of uater} for^{tle benefit of societg cannot be non-} nahral user.^{But tlwt cannot obsoluethe State fromits dutg of} being responsible^{to its atizens} for^{such uiolations as ore} actionable and^{result in damage, ioss or injury 'What is} fund-amental^{i.s injurgand not the mannerin uhich it hnsbeen} caused.^{'strict liobilitg','absolute tiabititg','fault liabilitg' and} 'neighbour proimitg'^{are all refinements and deuelopmentof} laut bg English^Courts for^{the benefit of societg and the} common man.^{Onettrc occo,sion} for^{loss or damageis failure of} dutg,^{generalor specific, tle cause of action under tort oises'} It mag be^{due to negligence,nuisance, trespass'ineuitable} mistake etc. It^{mag be euen otLerwi'se'In a deueloped or} deueloping^{societg the concept of dutg keeps on changing and} mag extend to^{euen such matters a's u)as highlightedin} 'Donoghue u' Steuenson'--(supra)^{wlere a manufacturer utas}

¶204

¶205

¶206

held respo;tsible for injury to a consumer.^,J.'he11 may indiuidually or e,uen collectiuelg giue risa to torlutt,t:s ltabitity. Since the ap rclla.nt suffered loss on facts found_ dut; tc action of responden.t': offi.cers both at the stage of constru.ctic,n and failure^{to tal. e} steps euen ot the last moment it u_ta: ltable to be compensatet'..

¶207

It is alsr relevant to refer to the decision of the Apex Court in Mz dya Pradesh Electricity Boar<[ Vs. Shail Kumari and others. (11.Oj..2OO2_SC):

¶208

MANU/SC/OC2o-/2OO2, wherein, it is held as fol.orvs:

¶209

Euen ass tming that all such measures haue been. adopted,, a^person un( ertakinq an actiuitu inuoluinq hazardctt: ; or risku exposure to hurnan life is lioble under LauL t_[._ torts to compensote for the tuuru su ered bu anu otl er person, tttespectiue o' anu neolioence or careless ness on tlx -Llort of the manaqers of such undertakinqs The basi,s of sucL Licbtl.litu is the foreseeable nsk inherent in the ueru nqture of st clt a<:tiuitu. TLrc liabilitu :ast on such person i.s knoun. in lau as "stict liabilitu". It d; ffers; from the liability which arises on e.ccount of the negligena t or fault in this uay i.e. the ancept oJ n.egligence comprehends that the foreseeable hann could be ar,,oid.,zd. by taking reasot'.ablet precautions. If the d_efend ant aiC. a that u.thich could i,e done for auoiding the harm he canr u,ti,. bet hetd. liable uhen trc action is based. on anA negligence dttibuted. But such con: ideration is not releuant in cases of stnc:t lictbility u.there the de."endont is held liable irespectiue of ulether he could haue au ided the partianlar harm by toking pre,cctutions.

¶210

The doctr^'ne of stict liabilitg has its origin ;.tt Ettglish Common Law uthen it utas propounded in tLe celeb.s:ted, case of Rglands u. Fletcher 1868 LR (3) Btackbutt J., tfu: autlnr of the said rule I ad obserue,d thus in the.said tLecision:

¶211

¶212

"The rule of lanl is that tle person uho, for his ouLn pufpose, brings on his lands and collects and keeps tare angthing likelg to do mischief if it escapes, must keep it at his peril; and if he does so he is pima facie answerable for all the damage uhich is the .nahtral consequence of its escape.,,

¶213

1O. Th-ere are seuen exception s formulated bg means of case lanu to the doctine of strict liabilitg. It b unnecessary to enumerate those exceptions barrirLg one uhich is thts. "Act of stranger Le. tf tle escape was caused by the unforeseeable act of a stronger, the rule does not apply,,. (uide page S3S Winfi.eld_ on Tort, 1Sth Ed.n.)

¶214

TtE rule of stict liability Lto,s been approued. and. follouted in mang subsequent deci.sions in Englond. A recent decision in recognition of the said doctine is rendered bg the House of Lords in Ca mbridge Water Co. Ltd. a. Eastern Counties Lcatler Plc. 199a(1) Ali ELR (HL) 53. The said pincipte gained approual in India, and deci.sions of the High Courts are a legion to tlnt effect. A Constitution Bench of this Court in Charan La.l Sdhu o. tlnlon oJ India : AIR 199O SC 1480 and. a Division Bench in Gh{arat Sto:te Rocd Tva n sport CotporatTon o. Ra no;nbhai Probhatbhat: [19g2] 3 SCR 4O4 had folloued u.tith approual tte principle in Rglonds u. Fletcher. Bg referring to th.e aboue ttuo deci.sions o tuto Judge Bench of thi.s, Court has reiterated the same principle in Kaushnumo. Begurn o. Neut Indla Assurance Co. Ltd. MANU/SC/ooo2/2oo1 : [2oO1] I SCR 8.

¶215

In DI.C. Mehta v. Unlon of Indta MANU/ SC/OO92/ 1986 : [1987]^{1 SCR 819 this Court} has^gone euen begond the rute of strict liabilitg bg holding tlnt "rthere an enterpise i_s engaged in a hazardous or inherentlg dangerous actiuitg and. hnnn is ccntsed on anA one on occount of tLe accident in the operation of such actiuitg, the enterprise is stictlg and absotutelg liable to compen sate tLnse uho are affected bg the accident; such liability is not subject to ang of the exceptions to the pinciple of strict liability under tle rule in Rglands u. Fletcher.

¶216

¶217

A readir Lg of the above tu'o decisions of tht. .,\pex Court, it is clear th:.t th.e lau, of tort is founded rLnd strucl.ured on the principle of morality and also on the princ.ltles that no one has a r ght to injure or harm other int:n tionally or innocently. l'he dictionary mearing of the tort ir; breach of duty leading [o damage. The tort constitutes zut act done without just c ruse or excuses. In the process of cl<tvelopment of relinement concept of common la'"r, liability. tlre principles of fault iiabili ty, strict liability, absolute liabiiity. ar,: firmly established. lhe distinction between the lau lt liability ard the strict liabi ity is based on presence or absen:e of menta_l element. If th: damages resulted without aly inte:nticn, due to a lack of fcresight, it fa-lls under the strict li:rbitity. The word strict li rbility, absolute liability, fault I a )ility and neighbor prox mitv are all refinements and dev,:loprnent of law by Engiis^-r courts for the benefit of socie t1, and the common man. In the developed and developing su rcir:t5r, the concept ol dut r keeps on chalging and mav extr-'nd t.o even such matters as was highlighted in Dottoghue a. steuensonson'; case (supra). _--

¶218

_--

¶219

¶220

In strict liability, arry person, who is was undertaking any activity involving hazardous o. ii"Ly exposure to human life and if any untoward incident occurred on account of such activity and any other person suffered irrespective of negligence or carelessness on the part of the managers of such undertakings, such a person is liable for the reason that there is a foreseeable risk inhetent in such activity.

¶221

If the facts in the present case are ana)yzed, in the context of the above principles of the tortious liability the weight that was put on the barge as seen from the policy issued under Ex.A3 ald the report of the Committee of P.Choudary, who was appointed to go into the mishap by One-Man Enquiry Commission through G.O.Ms.No.1049, dated 13.03.1990 and other material demonstrate that at the time of mishap, the monolithic stone was weighing 350 tonnes and 9O tonnes was the weight of the safety rods for the statue and 100 tonnes is ttre weight of trail, on which statue was kept, were placed on the barge. ,.-

¶222

*f\

¶223

¶224

One of the participants in the bidding for alkrcation of the contracl i . e. , Urmila and Company, put r:on dition to transport su:h a large quantity of weight, if th: Go'rernment 1ay cross r,r,-a' from the shore to middle of the lalle , but such a proposal r,r'ar not accepted. The Government ! ent on with the proposal to shift the huge monolithic star r: e c,n water. The undertal.ing of the project and person injure:d in project demonstrzrt.e that the Government was invr I lged in the hazards or r sks which has tendency to oxpos€ human life and in fact it resulted in death of ten (10) persorui. All these would demor strate that the activities carried uporr by the Government with the contractor a-re contair r ing lack of forcibilitl' of isk inherently in the activities urrCertaken by the Governmt nt. If such activity is examined irr^,-he context of the princip es laid down by the Apex Court irr the case of Madga Pradtsh Electricitg Board. us. Shcil )Tumarl and others falls ur rder the strict liability.

¶225

The Ape;: Court further extended the princir,Jes of strict liability in M.t).Mehta vs. Union of India's cas: (supra) by accepting abr ;olute liability theory. Thjs :heory was

¶226

¶227

applicable where an enterprise is engaged in hazardous and inherently dalgerous activity and harm is caused on anyone on account of accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate. In Jag Laxmi Salt Works Priuate Llmited's case (supra), the Apex Court has taken note of existence of numerous circumstances in between the strict liability and fault liability which entitled to sue for damages. It has also taken cognizance of existence of partly one or other or may be both as in the present case.

¶228

The activities of the contract demonstrate that no care has been taken to assess the balance after the huge weight was put on the barge. The barge was to travel nearly 1000 meters, but the mishap was occurred when the barge travelled below 1OO meters. These facts demonstrate that there was a lack of care to see the maintenance of balance of barge after the weight of 450 tones was placed on the barge along with the monolithic rock steel frame work and trailer. On account of failure to maintain the balance of barge after the huge weight was put on the statue slid of and resulted in

¶229

¶230

¶231

sinking. Tl-re incident in this case demonstrates presence of fault theory a rcl strict liabilify theory.

¶232

The liatr Accident Act deals with the case rl fatal death resulted from negligence or fault act, but it does : r.rt deal with the case of d :ath resulted from no negligent lirrbility falling under the str ct liability which is without an int:rrtional Act. The claims r nder the fatal accident case ar t: betsed on damage on z ccollnt of intentional Act. Whr:rL the fatal accident is not only resulting from the fault a<::, t,ut also under strict iability, the application of Articl,: 82 of the Limitation Ac cannot be pressed in and the :nly arlicle available is l.rticle I 13 of the Limitation Act, which is residuary. pror ision. The concept of Actio Perso;'Lalis Moitur cum persona has no relevancy in the present day rt:nce it has been changed and it underwent marly chango s with the developmert o the common law theory

¶233

The leeLrr Led counsel for defendant Nos.I Eit,f il relied upon the decis ion of the Apex Court in the cont,-'r:t of claim based on the f rult theory, which is only maintarrra.ble under the Fatal Accid ent Act. In the said case,^{..-</sup> Suprt:me: Court}

¶234

¶235

had no occasion to deal with^{the case in which death was not} on account of any fault. The Couri^{was dealing with death} falls under the Fatal Accident Act.^{Therefore,the said} judgment has no relevancy in the context of strict liability. This Court feels that the appropriate^{article applicableis} Article 113, which is residual^{provision of articletaking care} of situation not covered in respect^{of the commonlaw} remedies for which limitation is^{prescribed under the} Limitation Act. As seen from the^{Article i 13, it prescribes} three (03) years limitation,^{therefore, Ihold that the} compensation for death of^{the person in the accidentis} within the limitation.

¶236

The Court below has decreed^{both the suits. The} plaintiffs claimed the compensation^{for death of the deceased} as Rs.5,O0,OOO/-. It^{is not se"iously in disputethat the} deceased was a^young boy aged^{about 22 years. His} qualilication shows that he has^{completed intermediate and} according to the^{evidenceof PW. 1, he was studying B.Tech II} year, but no evidence. The^{plaintiffsclaimed Rs. 10,000/-per} month towards his earning. If^{we look at the hire charges,} which was agreed to be paid by^{defendantNos. 1 and 2, the}

¶237

¶238

¶239

earning of Rr;.10,000 l- pe, month is not so lLL11h and the appropriate n.ultiplier applied by relying upon ttr,:: principles laid in dealin I with the deaths in the motor a<,r:ident cases and consortium granted by the Hon,ble Suprerr r: Ccurt, the compensation awarded by the Court below towar(ls ttre death of the deceast d is not so excess one arrd is ver5 ::.easonable. Therefore, qu antum of compensation fixed bl. the Court below for deat r of the deceased is confirmed.

¶240

34 The plair Ltiff also claimed loss of Rs.3,0O.0t,r)/_ .owards loss of hire ch arges. It is a fact that two motor F)r.tmps were installed to de vater the plantoon. The two pump{r are ownecl by the piaintif s and the value of each payment .r,,rers given by the plaintiff Rs. 12,500/-. Both the va_lues come to Rs.25,000/-. "he plaintiff claimed freight/hire ,lharges on account of sir Lking of two motor pumps in tt t: accident. These hire cha'ges were clairned for three (03) years when the value of the tw ) motor pumps is only Rs.25,000/,. If the two motor pumps ile sunk in the water, the plaintiff s cal claim compensation . or that value of the pumps, but tltey claimed hire charges for three years from the date of inciderrt.

¶241

¶242

The Court below has not considered the concept of remoteness of damages in awarding damages. This Court feels that the value of the motor pumps would be the just and proper compensation in respect of the claims damages towards loss of two pump sets. Therefore, awarding of Rs.25,OOO/- is just and reasonable. Accordingly, the compensation granted by the Court below is reduced from Rs.3,OO,0OO/- to Rs.25,O0O/- .

¶243

Liabilitv:

¶244

The contention of the Iearned counsel representing the insurance company is that the policy terms contained under Ex.B3 do not cover the loss of human life. According to him, the loss or damages to the subject matter, was covered under the insurance policy arrd the Insuralce company is not liable to the human loss in the course of transit since human beings are not tJle subject matter of insurance.

¶245

On the contrary, the learned counsel for the defendant Nos. 1 and 2 has contended that the policy coverage was for the statue and freight only. According to him, the payment of

¶246

¶247

premium to he freight includes claims against thc logistic operator frorr third party, with regard to any in,;irlent, in the course of tr rnsit of the goods given for tr rlLsp,crtation. According to . rim. the freight policy covers the lc;r; ol' human beings in the transit. Therefore, the Court beIo,i. has rightly fixed the liab ilify on the defendants, jointly arcl severally. Such finding t loes not require any interference

¶248

The lea :ne<l Government pleader repre s;r::ntr ng the defendant No.4 has contended that the Goverrrnent is not liable to pa)'⁽ oml)ensation on account of trvo rr'itsoris. The hrst one the p. oject was assigned to contractor arrcl the terms of contract sh rw that the contractor is liab1e for i,rry loss of human beings in the execution of the work. He strictly relied upon the clau;e 45 of terms and conditions of t-.(:: contract. It is also his contention that the policy also cover r; tht: entire liabilitl, in resl ect of any untoward incident in tlL: course of execution of th: project and therefore, the Goverrrnent is not Iiabie to pay ar y compensation.

¶249

¶250

A glance of the terms and conditions of the contract, subject matter of the policy under Ex.B3, demonstrated that the policy was relating to cargo as well as the freight, which meuuls, the insurance was taken to the statue as well as the freight. The freight term indicates the transportation of bulk goods by train, sea or air. The concept of freight insurance involves claims relating to forwaiders or logistic providers liability against the claiming arising out of their mistakes or negligence in the process of transit. The policy is primarily intended to cover loss or damage to the goods, which are given for transit. It does not cover the loss of human being in the process of transit. The very object of freight is to protect the carrier from the claim relating to untoward incident resulted in damage to the cargo, which are given for transit. The said coverage is not relating to other than goods, which are given for transit. If the human beings are brought in the definition of freight, which amounts to treating the human beings as a goods. Therefore, the policy was not covered for human beings under the freight. This aspect was not considered by the trial Court.

¶251

¶252

Tht: tr al^()ourt has given more emphasis fur the words used in the .erms and conditions of the policy -rnd,:r Ex.B3. The subject natter of the insurance was goods .n transit not the human l,eing in transit. It was not the intenticn of the insurance pr licy issued for freight. Neither th,: 3o''remment Pleader nor I :arned counsel representing for de i:trdzmt Nos.1 and 2 could re able to place before this Court rrith 'egard to terms and cc ndilions published by the IRDAI re.lating to the insurarce issued to freight coverage.

¶253

Thcrefo e. this Court feels that the extendrnil liability of the insurancr Company for death of persons invtrlve d in the transit is mir conceived. In this regard the firr,jings of the trial Court re< uircd to be set aside.

¶254

The tria Court also went in wrong in fixin11 r-he liability to the Govern nent as well the insurance Comparry re lating to claim for hire :harges. It is beyond policy and G x,ernment is a,lso not lizrltlt to the sub contractor, who took t 1-re r:ontract from the contr actc,r. Any services or materials sr.r1;plierl by the sub-contracto- to the contractor is a contract in lrr:tu een the

¶255

¶256

sub contractor and the contractor, no other persons carr be fastened with liability for breach committed by contractor towards sub-contractor. Defendant Nos.l and 2, who are the contractors and who entered into agreement with the sub contractor alone are liable. Therefore, this Court also feels that the Iindings of the trial Court required to be set aside.

¶257

It is submitted by the learned counsel for defendant No.3 - insurance compa-ny that by virtue of interim orders of this Court, defendant No.3 insurance company had deposited 50% of the decretal amount along with costs awarded in O.S.Nos.664 and 532 of 1993 and the plaintiffs have also withdrawn the said amounts. He further submitted that by virtue of exoneration of liability of defendant No.3 - insurance company from payment of decretal amounts and costs awarded in O.S.Nos.664 and 532 of 1993, he sought refund of the said amounts.

¶258

As per the docket proceedings, it is evident that this Court, while gralting stay, had directed defendant No.3 - insurance company to deposit 50% of the decreta-l amounts along with costs awarded in O.S.No.664 and 532 of 1993 and

¶259

¶260

also pernritt:d the plaintiffs to withdraw Lrt: ieposited amounts. h r pursuance of the same, the p a: ntiffs have withdrawn tL e amounts deposited by defenda : L N,t.3. As defendant No 3 - insurance company is exoner;l.ed lrom its liability unde' these appeals, it is entitled to re:funl of the amount depo;iterl by it. Such refund shail br: made a_fter am ounts zu-e de1>osited 1n respect of decretal ,emount in O.S.No.664 of 1993 by defendant Nos. 1, 2 and^z Insofar as recovery of cle: rosired amount in respect of decretrl arnount in O.S.No.532 ol 1993 is concerned, as the com:t.,ns,ation is reduced from Rs.3,00,000/- to Rs.25,OO0/('/en though defendant No 3 had deposited more than Rs.2I;,000/1n pursuance of he tnterim order of this Court, in tle peculiar facts and circr Lmstances of the case, it is entitle:l to recover only Rs.25,Oi 0/- along with proportionate rosts, from defendant Nos I and 2.

¶261

In the res u1t, the appeals are disposed of as itllorvs: (i) C.C.C,A.l o.59 of 2OO2 iiled by defenden: Irlo.3 - insurance com )anv is a1lowed, setting aside the jrulgrrent of the trial Cour I in O.S.No.664 of 1993 trr rht. extent of fastening the iabrlity on defendant No.3. Co: seqrently, defendant No.3 is exonerated from payment of co:trlrerLsation

¶262

¶263

to the plaintiffs. Therefore, defendant No.3 - insurance company is entitled to recover the amount deposited by it in pursuance of interim order of this Court in respect of decreta_l amount in O.S.No.664 of 1993 from defendant Nos. 1, 2 and 4 or on deposit of such arnounts to the suit credit by defendant Nos. 1, 2 and 4.

¶264

(ii) C.C.C.A.No.6O of 2OO2 filed by defendant No.3 _ insurance company is allowed, setting aside the judgment of the trial Court in O.S.No.532 of 1993 to the extent of fastening the liability on defendant No.3. Consequently, defendant No.3 is exonerated from payment of further compensation to the plaintiffs. As defendant No.3 had deposited SOok of the decretal amount along with proportionate costs and as the same was withdrawn by the plaintiffs, in the peculiar circumstances of the case, defendant No.3 is entitled to recover only Rs.25,OO0/- atong with proportionate costs, from defendant Nos. I aad 2.

¶265

(iii) C.C.C.A.No.101 of 2OO2 fited by defendant No.4 - Government is allowed setting aside the judgment of the trial Court in O.S.No.532 of 1993 to the extent of fastening the liability on defendant No.4. Consequently, defendant No.4 is exonerated from payment of compensation to the plaintiffs.

¶266

(iv) C.C.C.A.No.178 of 2003 filed by defendant Nos. 1 and 2 -^{contractor, is partly allowed} as follows:

¶267

(a) The judgment of the trial Court in O.S.No.532 of 1993 is modified reducing the compensation arnount from Rs.3,00,000/ - to Rs.25,0OO/-. --\

¶268

-1^l

¶269

(b) The said compensation of Rs.25,OO0/ along with proport onate costs shall be paid b}, defi:ndant Nos.1 and 2 to delendant No.3, as defendant No..l had already depositr'd the amount in pursuance of the irrterim order ivhich I as alreadv been u,ithdrawn by the 1-,laintiffs, or deposit the same to the credit of the suit. [i rctr deposit shall be made within two months from th,: ,late of this

¶270

judgmer rt.

¶271

(v) C.C.C.ANo.207 of 2OO2 filed by clefenrlant No.4 - Government rmd C.C.C.A.No.179 of 2003 liled 15, dr:fendant Nos. 1 and 2 - contractor, are dismissed as foilorvs:

¶272

(a) The judl;ment of the trial Court in O.S.No (>ri4 of 1993 is confir mecl to the extent of granting c trnpt:nsation amount cf Rs.5,00,000/- along with ir.rtere;t and costs. Defenda rt Nos. i, 2 and 4 are jointly and serr.rally iiable to pur), such compensation to the plair-rri{fs. Such amount shall be deposited within tvvo mon_t-rs f:om the date o1' tl ris j udgment.

¶273

(b) While pr rying the said compensation am )r.rnt to the plaintiffs along with interest and costs, tti e amount alreaclr. r,r'ithdrawn by the plainti ifs. t'hich was deposite<. by defendant N.3, shall be dcduct:<: and such deductec amount sha,ll be paid to defendant |,lo.li.

¶274

There sirall be no order as to costs. Mr s;,::ellaneous

¶275

petitions, if anv pending in these appeals, slLall stand

¶276

closed.

¶277

Sd,.T(.SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// pl

¶278

:SECTION OFFICER

¶279

To,

¶280

'1 . The Additional ludge, City Small Causes Court-cum-Vl S:nior Civil Judge, City Civil Court at Hyderabad(with records)

¶281

Two CCs to th€ GP for Appeals, High Court for the State :f Tel,angana at Hyderabad. [Ol IT]

¶282

One CC to Sri {; Agastya Sharma, Advocate [OPUC]

¶283

One CC to Sri Vijay Kumar Heroor, Advocate [OpUC]

¶284

One CC to Sri I rinivas Chitturu, Advocate IOPUC]

¶285

Two CD Copies plp

r-l

HIGH COURT

DATED:21 11012022

I
i

COMMON JI'DGMENT

C.G.C.A. NOS: €9 60 101 207 0F 2002 178 AND 179^()F 2003

¶292

ALLOWING^"HE C.C.C.A NOs. 59, 60, 101 OF 2022, PARTLY ALI..OWING THE C.C.C.A.NO.1'78 OF 2OO3 AND DISMIS ilNG THE C.C.C.A.NOs.20'7 OF 2002 &179 0F 2003.

¶293

WITHOUT C0STS

¶294

0n
y" \11

¶295

IN THE HIGH^{COURTFOR THE STATEOF TELANGANA} AT HYDERABAD

¶296

FRIDAY, THE^{TWENWFIRSTDAY OF OCTOBER} TWO THOUSAND^{AND TWENTY TWO}

¶297

PRESENT

¶298

THE HONOURABLE^{SRI JUSTICE M.LAXMAN}

¶299

c.c.C.A. NO: 59 OF 2002:

¶300

Between:

¶301

The Regional Manager,^{Oriental lnsuranceComp.Ltd,. SnehalathaBuildings,} Panjagufta' Hyderabad

¶302

...A''ELLANT/DEFENDANT^No.3

¶303

AND

¶304

Mumtaz.Moizuddin,^{S/o. Mohd.Zaigum Ali}

¶305

Asmatunissa Begum,^{Wo.Mumtaz Moizuddin,}

¶306

F ayyaz Moizuddin,^{S/o.Mumtaz Moizuddin, Age:17 years}

¶307

Sheeraz Moizuddin,^{D/o.Mumtaz Moizuddin Age.16 years}

¶308

Sheerin Mumtaz, D/o.Mumtaz^{Moizuddin, Age:13 years} (Plaintiffs 3 to 5 are minors under^{the guardianshipof first plaintiff)}

¶309

...RESPONDENTS'PLAINTIFFS

¶310

M/s. A.B.C. lndia^{LimitedTransport House, R.4. New CIT road, Tirhastty} Bazar, Calcutta-73 .'.RESPONDENT/DEFENDANT^NO'2

¶311

The Secretary, lrrigation^{andCommand Area Development,} Government ot Rndnra^{Pradesh....RESPONDENT,DEFENDANTNO'4}

¶312

(D4 impleaded as^party as^{perorders passed in I.A.31/99,dt24-10-2000)}

¶313

Appeal filed under Section^{96 of C.P.C. againstthe judgment and decree.of} the court'of the Additional^{Judge, city small causescourt-cum-Vlsenior civil} Judge, City Civit Court^{at Hyderabad made in O.S.N6.664of 1993,dated 20-10-2001}

¶314

ORDER: This appeal^{coming on for hearingand upon perusing.the grounds} of appeal, the Judgment^{and Decree of the Lower court and the material papersin} the case and upon hearing the arguments^of Sri S. Agatsya Sharma.^{Advocate for Appellant, Sri Vijay KumarHeroor,} fOyo-qate for Resp-ondent Nos.1 to^{5, and sri srinivas chitturu,Advocatefor RespondentNo.6} and GP For Appealsforthe^{RespondentNo.7}

¶315

This Court doth order^{and decree as follows:}

¶316

l.ThattheCCCA59of2}O?filedbythedefendantNo.3_insurancecompany be and herebY is allowed;

¶317

That the^{judgmentof the trial court in o.s. No.664 of 1993 to the extent of}

¶318

= fastening the liability on defendant^{No.3 be and hereby is set aside;}

¶319

That the deft,ndant^{No.3 be and hereby is exonerated lrom paymentof} compensatio r^{to the} Plaintiffs;

¶320

That the deft^ndantNo.3 -^{insurance company be and rereby is entitled to} recover the € mount^{deposited by it in pursuanceof interirrorderof this Court} in respect of lecretal^{amountin O.S.No.664of '1993 frc trr der'endantNos l ,2} and 4 or on c eposit of such amounts to the^{suit credit by defendant Nos.1 , 2,} and 4; and

¶321

That there sl'all be no order^as to^{costs in this C.C.C.A.}

¶322

//TRUE COPY//

¶323

Sd/.K.SRINIVASA RAO JOINT REGISTEAR / a/ .1 SECTION OFFICER

¶324

To,

¶325

The Addition: lJudge, City Small Causes^{Court-cum-Vltienior Civil Judge,} City Civil Cou t at Hyderabad

¶326

Two CD Copi :s

r.ii

HIGH GOURT

DATED:21 11012022

DECREE

C.C.C.A. NO: 59 OF 2002

¶334

ALLOWING HE C.C.C.A WITHOUT CCISTS
0n
v t1
\9)

¶335

¶336

tN THE HIGH COURT^{FOR THE STATEOF TELANGAftA} AT HYDERABAD

¶337

FRIDAY, THE^{TWENTY FIRST DAYOF OCTOBER} TWO THOUSAND^{AND TWENTY TWO}

¶338

PRESENT

¶339

THE HONOURABLE^{SRI JUSTICE M.LAXMAN}

¶340

c.c.c.A. NO: 60 OF^2002:

¶341

Between:

¶342

AND

¶343

The Regional Manager,^{orientallnsurancecomp.Ltd,. snehalathaBuildings,} Panjagutta' Hyderabad

¶344

...A''ELLANT/DEFENDANT^No.3

¶345

l. Mumtaz.Moizuddin,^{S/o. Mohd.ZaigumAli...RESPONDENT/PLAINTIFF}

¶346

M/s. A.B.C. lndia^{Limited 80/1, 8thFloor, Paigh Plaza, Basheerbagh,} Hyderabad ...RESPONDENT/DEFENDANT^NO'l

¶347

M/s. A.B.C. lndia^{LimitedTransport House, P.4' NewCIT road, Tirhastty} Bazar, Calcutta-73 ...RESPONDENT/DEFENDANT^NO'2

¶348

The Secretary,^{Irrigation and Command Area Development,} Government ot Rndnra^{Pradesh....RESPONDENT/DEFENDANTNO'4}

¶349

(D-4 impleaded as^party as^{perorders passed in 1.A 31/99, dl24-1O-200O)}

¶350

AppealfiledunderSectiong6ofC.P.C'againstthejudgmentanddecree.of the court'of the^{AdditionalJudge, city small causes court-cum-vl senior civil} JrOgL, City Civil Court^{at Hyderab=admade in O.S.No.532of 1993,dated 20-10-2001}

¶351

ORDER: This appeal^{coming on for hearingand uponperusingthe grounds} of appeal, the Judgment'and^{Decre6 of the Lower Court and the material papersin} the^" case and upon hearing the arguments^of 6ri s. ng"t"V" Sharma.^{Advocatefor Appellant, Sri Vijal KumarHeroor'} favrylte foi n".p"onO6nt No.1,^{Sri Srinivas Chittuiu, Advocatefor Respondents2 & 3 and GP} for appeals for the^{RespondentNo.4}

¶352

This Court doth order^{anddecreeas follows;}

¶353

l.ThattheccCA60otZOO2filedbythedefendantNo.3-insurancecompany be and herebY^{is allowed;}

¶354

That the^{judgmentof the trial court in o.S.No.532 of 1993 to the to the extent} offasteningtheliabilityondefendantNo.3beandherebyissetaside;

¶355

That the defe ndant No.3 be and hereby^{is exoneratedf orn payment of further} compensatio t to the^plaintiffs;

¶356

That the defe ndant No.3 had deposited 50% of the decrt:tal^{amount along} with proporti( nate costs and as the same was withdraw"^l)y tle^{plaintiffs, in} the pecu[ar c ircumstances ofthe case, defendant^{No.3 be and hereby is} entitled to re(over only Rs.25,0001 along with^{proportiotatec:osts,} from defendant Nc s.'1 and 2; and

¶357

That there sh rll be no order as to costs in this C.C.C A.

¶358

Srl,tK.SRlN|VASA o .,OINT REGIS R

//TRUE COPY//

IiECTION FICER

To,

The Additiona Judge, City Small Causes Court-cum-Vl^lienior Civil Judge, City Civil Cour t at Hyderabad

¶363

Two CD Copit s

HIGH COURT

DATED:21 11012022

DECREE

c.c.c.A. No 60 0F 2002

¶371

ALLOWING^'I HE C.C.C.A WITHOUT CO:JTS

¶372

n
0
\1 \u\t;

¶373

IN THE HIGH COURT FOR THE.STATE^{OF TELANGANA}

¶374

AT HYDERABAD

¶375

FRIDAY, THE TWENW^{FIRST DAYOF OCTOBER} TWO THOUSAND AND TWENW^TWO

¶376

PRESENT

¶377

THE HONOURABLE SRI JUSTICE^M.LAXMAN

¶378

C.C.C.A. NO: 101 OF 2002:

¶379

Between:

¶380

The Secretary, lrrigation and^{Command Area Development,} Government of Andhra^Pradesh.

¶381

(D-4 impleaded as party as^per orders^{passed in 1.A.30/2000, dt 24-10-2000)}

¶382

...APPELLANT/DEFENDANT^NO.4

¶383

AND

¶384

Mumtaz.Moizuddin, S/o.^{Mohd.Zaigum Ali}

¶385

...RESPONDENT'PLAINTIF

¶386

M/s. A.B.C. lndia Limited^{8O/1, 8th Floor, Paigh Plaza, Basheerbagh,} ...RESPONDENT/ DEFENDANT^No.1

¶387

Hyderabad (ti-2 is dismissed for default vide Court^{Orderdated21'10-2011l-}

¶388

M/s. A.B.C. lndia Limited^{Transport House, P.4. New CIT road, Tirhastty} Bazar, Calcutta-73 ...RESPONDENT/ DEFENDANT^No'2

¶389

The Regional Manager,^{Oriental lnsuranceComp.Ltd,Snehalatha} Buildings, Panjagutta, HYderabad

¶390

...RESPONDENT/ DEFENDANT^No'3

¶391

Appeal filed under Section^{96 of C.P.C. against the judgment and decreeof} the court of the Additional^{Judge, city small causescourt-cum-VlSeniorcivil} Judge, city civil court^{at Hyderabad made in o.s.No.532 of 1993, dated 20-10-2001}

¶392

ORDER: This appeal coming^{on for hearingand upon perusingthe grounds} of appeal, the Judgment^{and Decree of the Lowercourt and the material papersin} the case and upon hearing the arguments^of Gp for Appeals, Advocate^{for Appellant,sri ViiayKumarHeroor,Advocate for} Respondent No.1 and Sri^{srinivas chitturu, Advocate for RespondentNo.3 and sri} S. Agastya Sarma, Advocate^{for the RespondentNo.4}

¶393

This Court doth order and decree as follows;

¶394

'1. Thatthe CCCr' 101 of 2002 filed by the deferidant No.4 --llove,rnment be and hereby is allov ed;

¶395

That the^judgn ent of the trial court in O.S.No.532 of 19911 t,: the to the extent of fastening th r liability on defendant No.4 be and herebl is; set aside, That the defen^jant No.4 be and hereby is exonerated frcrn pa)/ment of compensation :o the plaintiffs; and

¶396

That there sha I be no order as to costs in this C.C.C.A.

¶397

Sd,.h:.SRINIVASA RAO JOINT REGISTRAR

//TRUE COPY//

p SECTION OFFICER

To,

1 The Additio ral Judge, City Small Causes Court-cum-/l Serrior Civil Judge, City Civil C,rurt at Hyderabad

¶402

2 Two CD Cc pies

HIGH COURT

DATED:21^11012022

DECREE

C.C.C.A. NOr^{101 OF 2002}

¶408

ALLOWING^{..HE C.C.C.A WITHOUT COSTS}

¶409

n
(
$ ",

¶410

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶411

FRIDAY, THE TWENW FIRST DAY OF OCTOBER TWO THOUSAND AND TWENry TWO

¶412

PRESENT

¶413

THE HONOURABLE SRI JUSTICE M.LAXMAN

¶414

c.c.c.A NO: 178 OF 2003:

¶415

Between:

¶416

M/s. ABC lndia Ltd., 80/1, 8th Floor, Paigah Plaza, Basheerbagh, Hyderabad. 2. M/s. ABC lndia Ltd., Transport House P4, New CIT Road, Tirhatty Bazar, Calcutta 700 073.

¶417

... APPELLANTS/DEFENDANTS^,t & 2

¶418

AND

¶419

Mumtaz Moizuddin, S/o. Mohd. Zaigum Ali, ...RESPONDENT/PLA|NflFd) 2. The Regional Manager, Oriental Insurance Co. Ltd., Snehalata Building, Punjagufta, Hyderabad ...RESPONDENT/DEFENDANT NO.3

¶420

Secretary, lrrigation and Command Area Development Depa(ment, Government of A.P., Secretariat, Hyderabad.

¶421

(D-4 impleaded as party as per orders passed in 1.A.31/1999, dt 24-jO-2OOO)

¶422

...RESPONDENT/DEFENDANT NO.4

¶423

Appeal filed under Section 96 of C.P.C. against the judgment and decree of the Court of the Additional Judge, City Small Causes Court-cum-Vl Senior Civil Judge, City Civil Court at Hyderabad made in O.S.No.664 of 1993, dated 20-10-2001

¶424

ORDER: This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the ,material papers in the case and upon hearing the arguments of Sri Srinivas Chitturu, Advocate for Appellants, Sri Vijay Kumar Heroor, Advocate for Respondent No.1 and Sri S.Agastya Sarma, Advocate for Respondent No.2, and Gp for Appeals for the Respondent No.3

¶425

This Court doth^{ord :r and decreeas follows;}

¶426

'1 . That the CC( )A 178 of 2003 filed by the defendant Nos I ancl 2 -Contractor be and heret^y is^partly allowed;

¶427

That the^{judg ment of the trial court in} O.S.No.532^{of 19911be and hereby is} modified redrrcing the compensation amount^{from Rs.3 (X),0Cr0 /- to} Rs.25,000/-;

¶428

That the said compensation^{of Rs 25,0004alongwith pr-,lrortionatecosts} shall be^paid ry defendant^Nos.'1 and² to^{defendantNt,.3,as; defendantNo,3} had already c eposited the amount^{in pursuanceof} the^{itterim orderwhich has} already been withdrawn by the^{plaintiffs,or deposit the s,ame to the credit of} the suit. Sucl' deposit shall be made within two^{months iom} the^{date of} this ludgment;^antI

¶429

That there sh^rll be no order^{as to costs in this C.C.C A.}

¶430

S(I/.K.SRINIVAS ,RAO ,.IOINT REGI R

//TRUE COPY//

SiECTION OFFICER

To,

'1 . The Ad litional Judge, City Small Causes Court-cr rr-Vl Senior Civil Judge, )ity Civil Court at Hyderabad

¶435

1. Two Ct Copies

.ii

HIGH COURT

DATED:21 11012022

DECREE

C.C.C.A. NO: 178 OF 2003

¶442

PARTLY ALI.OWING THE C.C.C.A WITI{OI.'T COSTS

¶443

{n
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\9Pl

¶444

IN THE^{HIGH COURT FORTHE STATEOF TELANGANA}

¶445

AT HYDERABAD

¶446

FRIDAY, THE ._ TTruOTHOUSAND^{TWENTY FIRST ANDTWENTYTWODAY OF OCTOBER}

¶447

PRESENT

¶448

THE HONOURABLE^{SRIJUSTICE M.LAXMAN} c.c.c.A. NOS:^{207 0F 2002 AND 179 oF 2003:}

¶449

c.c.c.A. NO:^{207oF 2002:}

¶450

Between:

¶451

The Secretary,^{lrrigation and Command Area Development'} Government^{of Andhra Pradesh'} (il'rm[i;;;-as^partv ".^{p"ioio"opassed in lA 31/1999'dt 24-10-2000)}

¶452

...APPELLANT/DEFENDANT^NO.4

¶453

AND

¶454

Mumtaz.Moizuddin,^{S/o' Mohd ZaigumAli} . .. i. A.r"trni..a^{Begum, Wo Mumtiz Moizuddin'} .-

¶455

;;y;;^{M;izuddin'S/o. Mumtaz Moizuddin' Age:1 7- vears} ;. $A;;.^{Moizuddin, D/o'Mumtaz Moizuddin Age'16 years}

¶456

" i. iPi;i;i',fd ah;;;',^Mrmtaz, tio s1'"^{Dio.Mumtaz Moizuddin'} minors under th" n'"'0.'flttpotlEl,$Slltll'*r'rrt^{Age:1.3.vears}

¶457

M/s. A.B.C.^{lndia Limited 80/1, 8th Floor' Paiqh.Plaza' Basheerbagh'} "'RESPONDENT',DEFENDANT^NO'l

¶458

Hyderabad

¶459

z. ftlit. n.e.C.^{lndia LimitedTransport} !qryg:L{.[9w^{CIT road' Tirhasttv} Bazar,Calcutta-73^{-' -} "'ReSpONDENT/DEFENDANTNO'2

¶460

The^{Regional Manager, oiientatlnsuranceComp'Ltd''Snehalatha} Buildings,^{Panjagutta,HYderabad}

¶461

...RESPONDENT/^{DEFENDANTNO.3}

¶462

Appeals filed^{under Section96 of C'P'C'against the judgment and decree of} theCourtoftheAdditionalJudge,CitySmallCausesCourt-cum-VlSeniorCivil Judge, City^{Civil Court at Hyderabad made in O'S'No'664 of 1993' dated 20-10-2001}

¶463

oRDER:Thisappealcomingonforhearinganduponperusingthegrounds of appeal,^{the Judgment and Decree of the Lower Court and the material papersin}

¶464

the^, case^and upon hearing^the arguments^of

¶465

¶466

GP for Appeals, l dvocate for Appellant, Sri Vijay Kumar l-leroor, Advocate for Respondents 1 to t, sri srinivas chitturu, Advocate for the F!:sponoents 6 & 7 and Sri S. Agastya Shar na, Advocate for Respondent Nb.B

¶467

C.C.C.A. NO: 179⁽ rF 2003

¶468

Between:

¶469

1 M/s LBC lndia Ltd., B0/1, 8th Floor, paigah [:,laza, Basheerbagh, Hyderi rbad.

¶470

2 M/s. IBC lndia_Ltd- Transport House p4, Nelv Cl'f Road, Tirhatty Bazar, Calcutta 700 073.

¶471

...APPELLANTSi/TIEFENDANTS 1 & 2

¶472

AND

¶473

Mu ntaz.Moizuddin, S/o. Mohd.Zaigum Ali

¶474

Asr ratunissa Begum, Wo. Mumtaz Moizuddirr

¶475

Fayyaz Moizuddin, S/o.Mumtaz Moizuddin, A,1e:.17 years 4. Shr eraz Moizuddin, D/o.Mumtaz Moizuddin A!;e.16 years

¶476

Shr erin Mumtaz, D/o.Mumtaz Moizuddin, Age :t 3 y,:irs ...RESPONDE \I]'S/PLAINTIFFS

¶477

(Plaintiffs :i to s are minors under the guardianship of first oraintiff)

¶478

The Regional Manager, Oriental lnsurance Cc. t-td. Snehalata BuilJing, Punjagutta, Hyderabad ...RESP()t{DENT/DEFENDANT NO.,

¶479

Ser >tary, lrrigation and Command Area Develcpment Department, Gol ernment of A.p., Secretariat, Hyderabad. ...RESPONDEN]TDEFENDANT NO.4

¶480

ORDER: Thir appeal coming on for hearing and upon perus;ing the grounds of appeal, the Judgn ent and Decree of the Lower court and lhe m;aterial papers in the case rtnd upon hearing the arguments of sri srinivas chitturu, Advocate for Appellants, sri Vijay Kumar ll -.rorrr, Advocate for the Respondents 1 k 5, sri s. Agastya sharma, Advocate for Respc,ndent No.6 and GP for Appeals for th, I Respondent No.7

¶481

¶482

This Court doth order and decree as follows-1,

¶483

That the CCCA 2O7 ot 2OO2 filed by the defendant Nos.4 -Government and CCCA No.'t 79 of 2003 filed by defendant Nos.1 and 2- contractor be and hereby are dismissed as follows;

¶484

That the^judgment of the trial court in O.S.No.664 of 1993 be and hereby is confirmed to the extent of granting compensation amount of Rs.5,00,000/along with interest and costs. Defendant Nos. 1, 2 and 4 are^jointly and severally liable to pay such compensation to the plaintiffs. Such amount shall be deposited within two months from the date of this^judgment;

¶485

That the said compensation amount while paying to the plaintiffs along with interest and costs, the amount already withdrawn by the plaintiffs, which was deposited by defendant No.3, shall be deducted and such deducted amount shall be paid to defendant No.3; and

¶486