HIGH COURT FORM (J) 3 HEADING OF JUDGEMENT IN APPEAL. Dist. Cachar. In the Court of Addl. District Judge, Cachar, Silchar.

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1 Page 1 HIGH COURT FORM (J) 3 HEADING OF JUDGEMENT IN APPEAL. Dist. Cachar. In the Court of Addl. District Judge, Cachar, Silchar. Present :- Shri T.K.Bhattacharjee, A.J.S. Addl. District Judge, Cachar,Silchar. Money Appeal No. 1 of This the 1 st day of August/ Assam State Electricity Board & others... Appellant/O.Ps -Versus- Smti. Seema Singha & others... Respondents This appeal having been heard on in presence of Mr.K.D. Choudhury ; advocate for the Appellants and Mr.D.K.Saha, advocate for the respondents. And having stood for consideration to this day the court delivered the following judgment ; J U D G M E N T 1. The present appeal is directed against the judgment and decree dated 13/12/2013 passed by the Ld. Civil Judge (S/D) No.2, Cachar, Silchar in Money Suit No. 18/04 vide which the said Ld. Court decreed the suit of the Respondents as plaintiffs in the said suit. 2. The brief facts of the appellants case is that the Respondents as Plaintiffs filed the original Money Suit No.

2 Page 2 18/04 with a prayer for compensation on account of the death of Monilal Monihar Bandhul Singh who died on after coming in contact with snapped electric line at about 8 p.m. on that night while he was on the way to the house of his employer and thereafter the said suit was decreed arbitrarily and illegally despite being barred by limitation, by ignoring the provisions of law and despite the fact that the remedy was under the Workman s Compensation Act and therefore this Appeal was preferred on the grounds set forth in the Memo of the Appeal with a prayer to set aside the impugned judgment and decree with costs. 3. Accordingly, this Money Appeal was registered and this case proceeded for appeal hearing and the learned respective Counsels of both the sides were heard and the LCR and the relevant documents were also perused. 4. In the course of hearing, the Ld. Counsel for the Appellant contented that that the respondents ought to have filed their claim before the authority under the Workmens Compensation Act, that the provisions of Order 20 Rule 5 of the CPC have not been followed by the Ld. lower court, that the suit was bad for non-joinder and mis-joinder of parties and that the suit was barred by limitation and as such the impugned judgment and decree are liable to be set aside. On the other hand, the ld. Counsel for the respondents submitted that this appeal was filed merely to frustrate the claim of the respondents who had filed the original suit as paupers within the period of limitation but the Appellants are out to deprive the

3 Page 3 Respondents of their legitimate dues without any legal grounds. The Ld. Counsel for the respondent also submitted the Ld. lower court framed issues with respect to the dispute between the parties and decided the suit on merits in favour of the respondents as plaintiffs on the basis of the evidence on record, but the appellant came up with this appeal on baseless grounds in order to deprive the plaintiffs from the fruits of the decree that was passed in their favour and he further submitted that this appeal is liable to be dismissed with costs. 5. On perusal of the entire case record, as well as the judgment and order dated passed by the learned lower Court in the original suit, i.e, M.S. No. 18 / 2004, it is found that the respondent as plaintiff had filed a petition No.394/14 dtd. 22/4/02, praying for declaring them as indigent persons and to accept the plaint submitted separately by them without court fee and to grant leave to them as deem fit and proper and on the basis of the said petition a Misc(Pauper) Case No.53/12 was registered and the prayer of the petitioners were subsequently allowed vide order dtd. 26/5/04 in the said Misc.(Pauper)Case and thereafter the plaint filed by the petitioners with the Misc.pauper case was registered as Money Suit No.18/04 vide order dtd. 3/7/04 and thereafter it proceeded in accordance with law during which the W.S was filed by the defendants and subsequently on the basis of the pleadings of the respective parties the Ld. lower court framed the following issues ; (1)Is there any cause of action for filing this suit? (2)Is the suit maintainable?

4 Page 4 (3)Is the suit barred under the Electricity Act, Workmen s Compensation Act and Indian Succession Act? parties? (4)Is the suit bad for non-joinder and mis-joinder of (5)Whether the plaintiffs are entitled to any relief without obtaining succession certificate from the competent court under Indian Succession Act? (6)Whether the claims of the plaintiff are baseless inflated and imaginary? (7)Whether the plaintiff have got alternative remedy to claim compensation under Workmens' Compensation Act against the owner of the vehicle? (8)To what relief, if any, the plaintiff is entitled to? 6. Thereafter, the evidence of the respective parties were recorded by the Ld. lower court and after hearing the arguments the Ld. lower court passed the impugned judgment and decree dtd. 13/12/13, vide which the suit of the plaintiff was decreed with cost. 7. In view of the contrary arguments of the respective parties the following points are formulated for determination; limitation? (1)Whether the suit of the plaintiff was barred by (2)Whether the impugned judgment & decree passed by the Ld. lower court can be sustained in law?

5 Page 5 POINT NO On perusal of the LCR and the relevant order sheets it is found that t the respondent as plaintiff had filed a petition No.394/14 dtd. 22/4/02, praying for declaring them as indigent person and to accept the plaint submitted separately by them without court fee and to grant leave to them as deem fit and proper and on the basis of the said petition a Misc(Pauper) Case No.53/12 was registered and the prayer of the petitioners were subsequently allowed vide order dtd. 26/5/04 in the said Misc.(Pauper) case and thereafter the plaint that was filed by the petitioners with the Misc. pauper case was registered as Money Suit No.18/04 vide order dtd. 3/7/04 and as such it is apparent that the suit of the plaintiff was not barred by limitation because the petition No.394/14, dtd. 22/4/02 was submitted within the period of limitation alongwith the plaint which was however registered at a later date in due process of law. Hence, this point is decided in the affirmative. POINT NO.2:- 9. The contentions of the Ld. counsel for the appellant that the petitioners ought to have filed their claim before the authority under the Workmens Compensation Act has been duly considered and on perusal of the LCR, it is found that specific issues, i.e, Issue No.3 & 7, in this context were framed by the Ld. lower court and decided with the help of a decision of the Hon'ble Gwalior Bench of Madhya Pradesh High Court (reported in 2003 Accident & Claims Journel 2117). I have also gone through the provisions of Section 9 of the C.P.C from which it is also quite conspicuous that the jurisdiction of the Civil Court is not ousted in the instant case. It

6 Page 6 may be mentioned in this context that in a similar matter,i.e, in the case of ASEB Versus Sanjoy Agarwala, reported in (2000)3 GLR 469, the applicability of Section 9 of the C.P.C was discussed and it was held that the jurisdiction for determination of the extent and quantum of compensation lies only with the Civil Court and considering all aspects, I am of the opinion that the contentions of the Ld. counsel for the appellant in this context is devoid of any merit as it is very much open for the plaintiffs to choose the appropriate forum for redressal of their grievances. Further, the contentions of the Ld. counsel for the appellants that the provisions of Order 20 Rule 5 of the CPC have not been followed by the Ld. lower court also does not hold good water as on perusal of the available materials before me, it is found that the Ld. lower court reflected in its judgment the findings on each of the issues that were framed in the said suit though a number of issues were taken up together for discussion as they were interrelated to each other. Apart from that, the Ld. counsel for the appellants also submitted that the mother of the deceased was not made as plaintiff though she was a Class-I heir of the deceased and as such the original suit is liable to be dismissed. On perusal of the impugned judgment, it is found that a specific issue was framed with respect to non-joinder and mis-joinder of parties and the said issue was decided accordingly. It is also found that the mother of the deceased was made a party in the original suit but subsequently she died and her name was struck off from the plaint as she left no other heirs except the plaintiffs, who were already on record and that her husband had expired before her and as such the Ld. trial court did not commit any wrong in holding that the suit is not bad

7 Page 7 for non-joinder of necessary parties. 10. In the Memo of the Appeal, the appellant also raised objections against the amount of compensation, which according to him, was baseless, arbitrary and without ascertaining the proof of date of birth. But, on perusal of the impugned judgment, it is found that a specific issue was also framed and decided in this regard. It may be mentioned in this context that the compensation must always be just and while considering the question of just compensation payable in a case all the relevant factors including the appropriate multiplier are to be kept in mind. The Ld. lower court discussed in the impugned judgment the average earnings of the deceased and had also considered the number of dependents and found the claim of the plaintiff was not baseless or imaginary. On a careful scrutiny of the relevant records it is found that plaintiff No.1 is the widow of the deceased and she is also having minor children and that they have lost the earning member of their family in the occurrence and further the testimony of the P.W.1 that the deceased would have lived for another 30 years was not challenged or controverted in any manner whatsoever and nor the D.W.1 mentioned anything in this regard during his deposition and in view of the above, I do not find any reason to differ with the said decision of the Ld. lower court with respect to the amount of compensation. 11. Another ground that was taken up in the Memo of Appeal was that the Ld. lower court failed to consider the fact that the description of the defendant /appellant was incorrect due to formation of the Assam Power Distribution Company and abolition

8 Page 8 of Assam State Electricity Board and as such the entire judgment and decree passed by the said court is vitiated with illegality. However, on perusal of the Memo of Appeal, it is found that it was filed by the Assam State Electricity Board now designated as Assam Power Distribution Company Ltd. as the appellant No.1 and the W/S filed in the original suit were also by Assam State Electricity Board and others as defendants. Apart from that, Section 99 of the CPC provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court; (provided that nothing in this section shall apply to nonjoionder of a necessary party.). It is apparent that the mere change of name of the defendants from Assam State Electricity Board to Assam Power Distribution Company Ltd at a subsequent stage cannot affect the merits of this case in any manner whatsoever and as such this ground as raised by the appellants is also completely unfounded. Accordingly, the point No.2 is decided. 12. Therefore, in view of the above discussion, I am of the opinion that there are no infirmities in the findings of the Ld.lower court with respect to the issues that were framed and decided after an elaborate discussion in the original suit and therefore I am inclined to hold that the appeal filed by the appellants does not project sufficient merit and consequently the same is dismissed on contest, affirming the impugned judgment and decree passed by the Ld. trial court. However, no costs are awarded.

9 Page Prepare a decree accordingly. 14. Send back the LCR with a copy of this judgment. Given under my hand and the seal of this court on this the 1 st day of August/2015. (T.KBhattacharjee) Addl.District Judge, Cachar,Silchar. Dictated & corrected by me ; Addl.District Judge, Cachar,Silchar. Transcribed by- Sahid Ahmed Laskar., Stenographer.

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