JUDGMENT
A.K. Shrivastava, J.
1. This appeal was originally preferred by Mohd. Sayed and Smt. Shamina Sultan. Both of them are dead and the present appellants are their legal representatives. Earlier this appeal was finally heard on 7-10-2002, and was decided on 9-l-2003.During the course of hearing, when this appeal was heard earlier, neither any application was filed by the present appellants for their substitution, nor it was brought in our notice that both the appellants were dead, when the appeal was heard. After the pronouncement of the judgment the present appellants by filing an application under Order 22 Rules 3 and 9of the Code of Civil Procedure, sought permission for their substitution. The said application was registered as M.C.C. No. 262/2003 and was decided and allowed by this Bench on 21-7-2003. In this manner the present appellants are brought on record in the appeal and as directed in the order dated 21-7-2003, in M.C.C. No. 262/2003, this appeal was re-listed for hearing.
2. Mr. Justice Brennan has said :–
“Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.”
3. In the words of Mr. William Watson :–
“Let the justice be done, though the heavens fall.”
4. Adam L. Gordon :–
“Life is mostly forth and bubble, two things stand like stone kindness in another’s trouble, courage in our own.”
If the fact and evidence of the present case is perused, we are bound to accord our verdict that still the humble citizens of this country are following the prayer:–
ua Roga dke;s jkT;a u LoxZa ukiquHkZoe~ A
dke;s nq%[krIrkuka izkf.kukekfrZ uk’kue~ AA
“Na Twaham Kamaye Rajyam Na Swargam Na Punarbhawam Kamaye Dukh Taptanam Praninamartinashanam”
5. The above quotations we have quoted because in the present factual scenario of the case these are fully applicable. What sin, the deceased Mohd. Javed, committed if he had saved the innocent human lives of his neighbours, whose house was ablazed and the deceased was succeeded to save the lives of his neighbourers but unfortunately put his own life into an end, on account of sustaining the serious burn injuries and if the poor parents of the deceased had filed a suit against the defendants (Gas Company and Insurance Company) for compensation in spite of appreciating the kindness and humanity of the deceased, whether on account of the technicalities the suit should be dismissed. In the words of Justice Krishnan Ayyer “Law is a means to an end and justice is that end. But in actuality, law and justice are distance neighbours; sometimes even stage hostile. If law shoots down justice, the people shoot down law.”
6. One should not conflict that the kindness is the golden chain by which society is bound together.
7. The plaintiffs filed suit on account of burn injuries sustained by their adult young son Mohd. Javed, who while trying to save the lives of his next door neighbours in whose house the fire took place put his own life to an end. On 13-1-1991 at about 8 a.m. a fire was reported to be broken out in the house adjoining to the plaintiffs house, as a result of which their adult young and brave son, aged about 23 years rushed to the said burning house and saved the several lives of the inhabitants. The fire took place on account of the leakage of L.P.G. Gas, which got burst. The deceased though transmitted in the hospital but could not be saved and he breathed his last after five days.
8. It is no more in dispute that Insurance Company (defendant No. 3) is the Insurer of defendant No. 4 (M/s Book-N-Cook agent of M/s Hindustan Petroleum Corporation) and as such the Insurance Company was liable to indemnify the defendant No. 4, on account of the accident occurred. According to the plaint averments, the deceased was carrying on the business of Photography and was earning Rs. 1000/- per month from the said profession. According to the plaintiffs the deceased was sharing Rs. 500/- per month in their house hold affairs. The plaintiffs claimed benefit to the tune of Rs. 115000/- (One lac & fifteen thousand) on account of the death of the deceased, in the said fire mischief, which occurred on account of the blasting of the L.P.G. Gas Cylinder, manufactured by defendant No. 1 and supplied to defendant No. 4.
9. In the written statement it was admitted that the L.P.G. Cylinder in question was insured with the Insurance Company.
10. The Trial Court framed several issues, thereafter plaintiff No. 1 examined himself and also examined Smt. Vimla. The defendants did not choose either to examine themselves or any witness. From the evidence of the plaintiff it transpired that in the house of Smt. Vimla the L.P.G. cylinder got fired, she tried to extinguish it but failed. Thereafter she shrieked, as a result of which the deceased came to her house and saved her family members. One baby, a female infant, was sleeping inside the house and to save her the deceased again entered inside the burning house and as soon as he lifted the infant he sustained burn injuries and after seven days he passed away. Similar type of evidence is of plaintiff Mohd. Sayyed and in furtherance he has also stated that by profession the deceased was a Photographer and was earning Rs. 1000/- per month.
11. After scanning the evidence, adduced on behalf of the plaintiffs we find that the witnesses have not been cross-examined on the point that cylinder was not of M/s Hindustan Corporation Ltd., meaning thereby their testimony remained unchallenged on the said score.
12. In the rebuttal none of the defendant examined any witness. The Trial Court, however, dismissed the suit on the ground that plaintiffs having failed to file the relevant papers regarding the case and as such it could not be said that the offending gas cylinder was of M/s Hindustan Gas and Petroleum Corporation Ltd. and was supplied to its agent (defendant No. 4).
12-A. The Trial Court, however, on the basis of the evidence held and decided that on account of mischief of the fire, due to the blast of the gas cylinder, the deceased was heavenly aboard.
13. We have heard Shri R.N. Tiwari for the appellant and Shri Anoop Nair for respondent No. 1. Shri Sailesh Mishra appeared on behalf of Insurance Company, was also heard.
14. In Para 5 of the plaint it has been pleaded on behalf of the plaintiff that the defendant No. 3 is the Insurer of defendant No. 4 and the Insurance Company is liable to indemnify, if any accident had occurred, on account of the business transaction of defendant No. 4. In reply to the contents of Para 5 of the plaint, it has been specifically admitted by the defendant No. 1 that the L.P.G. Cylinder in question was insured with the defendant No. 3, on the date of the accident, however, for remaining contents, want of knowledge was pleaded. Similarly the National Insurance Company and M/s Book-N-Cook agent of Hindustan Gas and Petroleum Corporation Ltd. (defendant Nos. 3 and 4 respectively) in their joint written statement admitted the factum of insurance of the cylinder in question on the date of the incident, but put the ignorance in respect to the remaining part of the contents of Para 9 of the plaint and pleaded want of knowledge.
15. After having admitted by the defendants that the cylinder in question was insured with the insurance company, no room is left to controvert that the company is not liable to pay the compensation. The learned Trial Judge in Para 12 of its judgment has already recorded a finding in favour of plaintiffs that the deceased died on account of the burn injuries, as the L.P.G. Cylinder did burst. Plaintiff Mohd. Sayyed, has stated that the gas cylinder was of M/s Hindustan Gas and Petroleum Corporation Ltd. and there is no cross-examination to this piece of evidence. Needless to say, as it is well settled in law, that if witness has not been cross-examined on a point stated in the examination-in-chief, the same remains unchallenged and there is no reason why it should not be accepted. Sec Rasool Bi and Ors. v. Jaitoon Bi and Ors., 1977 JLJ 61.
16. We have noticed hereinabove that second part of Para 5 of the plaint was denied by the defendant on account of want of knowledge. The law is clear in this regard. Order VIII Rules 3 and 5 postulates, if denial in the written statement is not specific, the allegations of the fact, would amount to the admission. In this regard, we would like to rely the decision of the Apex Court in the case of Jahuri Sah and Ors. v. Dwarika Prasad Jhunjhunwala and Ors., AIR 1967 SC 109. The Division Bench of this Court in the case of Dhan Bai v. State of M.P. and Ors., 1978 JLJ 879 by following the verdict of the Apex Court has laid down the similar law. In this view of the matter we have no hesitation in holding that the L.P.G. cylinder in question was of defendant No. 1, of whom defendant No. 2 was agent and the defendant No. 3 was the insurer. As the deceased died when fire took place in the defendant No. 5’s house, on account of the bursting of the cylinder, when the deceased was trying to save the life of innocent infant. It shall be deemed that the deceased was third party and in that situation the Insurance Company is liable to pay the compensation.
17. It be seen that the defendants did not examine either themselves or any witness. No doubt it is true that initially the burden was on the plaintiffs, however, having discharged the initial burden of proof, it shifted on the defendant. We are saying so on the basis of the pronouncement of the Apex Court in the case of A. Raghavamma and Anr. v. Chenchamma and Anr., AIR 1964 SC 136. The defendants having failed either to examine themselves or any witness on their behalf, failed to discharge the shifted burden. Needless to say that it is the bounden duty of a parly personally knowing the facts and circumstances to the case, evidence on his behalf and to submit to cross-examination and his non-appearance, as a witness would be the strongest possible circumstances, which would go a long way to discredit the truth of his case. See Kastoorchand v. Kapoorchand, 1975 JLJ 333.
18. In the present case the deceased succumbed to burn injuries to save the life of an infant baby and the law is not harsh and would not stray its hands for not providing any relief to the plaintiffs.
19. The present appeal was reheard on account of the changed circumstances, which we have already stated hereinabove, and as we have held that the suit of plaintiff is liable to be decreed, the next, point which arose is that what should be the amount of compensation. The plaintiffs though claimed a sum of Rs. 1,15,000/- but looking to the contribution of the deceased to his family it would be appropriate to allow benefit to the extent of Rs. 50,000/- (Fifty thousands) only.
20. Accordingly the appeal is allowed in part, the judgment and decree of the Trial Court is hereby set aside and the suit of plaintiffs is decreed, against the defendant Nos. 1 to 4, upto the tune of Rs. 50,000/- only. The plaintiffs shall be entitled for the interest at the rate of 9 per cent per annum from the date of the filing of the suit till the amount is actually paid to them. The defendants/respondent Nos. 1 to 4 shall bear the costs of plaintiffs through out. Counsel fee according to the schedule, if pre certified.