VASAVA CHATURBHAI JIVANBHAI Vs. PATEL DAHYABHAI LALLUBHAI

JUDGEMENT

(1.) This appeal and Cross objections are directed against the judgment in Special Civil Suit No. 208 of 1972 rendered by the Civil Judge (S.D.) Baroda on 30-12-1974 The facts which gave rise to this appeal and the Cross objections may be stated as under: One Puna Chaturbhai Vasava expired on 14-9-1971 leaving behind him his father his mother and sister. They filed Special Civil Suit No. 208 of 1972 against the defendants on the allegation that Puna died because of negligence on the part of the defendants because they had taken work of spraying poisonous chemicals in their fields without supplying proper protective masks etc The claim was for a sum of Rs. 20,000.00. The learned Civil Judge (S.D.) Baroda came to the conclusion the defendants were leable and ultimately passed a decree for a sum of Rs. 3000.00 with costs thereon and interest at the rate of 6% from the date of the decree till payment to plaintiffs Nos. 1 and 2. The plaintiffs filed Appeal for the rest of the amount which was not decreed while the defendants filed Cross objections against the decree which was passed against them for a sum of Rs. 3000/-.

(2.) I have heard the learned advocate Shri Majmudar for the plaintiffs and Shri M.B. Shah for the defendants. It may be stated that the case of the plaintiffs was that Puna was working as a labourer and while spraying poisonous chemicals in the fields of defendant No. 1 he died and therefore the defendants were liable. The case of the defendants was that defendant No. 2 had sent Puna to defendnt No. 1 for the purpose of fetching a pump for spraying. For that purpose Puna was paid Rs. 2.00 and he was given travelling expenses. His duty was only to bring the pump for spraying from defendants No. 1. According to the defendants Puna was never asked to spray any pesticides in the fields. Further case of the defendants was that Puna was drunk and he was taken to Dr. Ochhavlal who gave him tablets and thereafter Puna died. I have gone through the entire evidence and it clearly appears that there was sufficient evidence to come to the conclusion that there was a standing crop of Shankar-4 cotton in the field of defendant No. 1. It is clearly admitted by defendant No. 2 that he had sent Puna from Tulsipura to Vanadar but according to him he had sent him for the purpose of fetching a pump and he was not sent for spraying pesticides in the field of defendant No. 1. Now defendant No. 1 gave his evidence at Exh. 38. In his evidence he stated that he had two servants by name Raman and Sultan. According to him he grew Shankar-4 cotton; peddy wheat etc. He further stated that by a machine pump or hand pump pesticides were sprayed for Shankar 4 and according to him his servants Raman and Sultan used to spray pesticides. He thereafter admitted that Puna had come to take pump from him. According to him the pump belonged to defendant No. 2 According to him as pump was out of order he had brought the pump from defendant No. 2 for his own use for two days. His further evidence was that Puna had come with a letter of defendant No. 2. Thereafter he stated that Raman and Sultan were spraying pesticides in his field and therefore he did not send the pump on that day and even on the next day because the work was going on in his field. Now therefore according to defendant No. 1 though Puna had come to take back the pump of defendant No. 2 he was not given that pump for two days and thereafter according to defendant No. 1 he learnt from Puna that he had headache and stomachache. He therefore took him to Dr. Ochhavlal who resided at Vanadar. Defendant No. 1 thereafter stated that Dr. Ochhavlal gave him tablets for headache and thereafter told him that he would not treat him as Puna was drunk. Defendant No. 1 thereafter stated that Puna was taken home. Thereafter in a tractor he was taken to Bhilpur and from that place motorrickshaw was hired and he was taken to Baroda. From Baroda he was brought back to Tulsipura and according to defendant No. 1 he died on the way and the dead body was handed over to the parents. This story of defendant No. 1 cannot be accepted. If defendant No. 2 had sent Puna for fetching the pump either defendant No. 1 would give him a pump or would tell him that the pump cannot be given for two more days. It was not necessary for Puna to wait there. It is clear therefore that Puna was not sent for fetching the pump but he was sent for spraying pesticides. He therefore stayed there for that purpose only. Defendant No. 1 did not examine Raman and Sultan otherwise they could have stated as to who were the persons and who 5prayed pesticides in the field. If Puna was never asked to wait and he was never asked to spray pesticides there could not be a case of Puna giving complaint to defendant No. 1 that he was suffering from stomach ache or headache. It was hardly necessary for defendant No. 1 to take him to Dr. Ochhavlal. It is therefore clear that because Puna sprayed pesticides in defendant no. 1s field for two days defendant no. 1 felt that it was now his duty to take him to a Doctor. Defendant no. 1 did not examine Dr. Ochhavlal. If a person is taken to a Doctor he would not treat him for headache only. It is clear that Dr. Ochhavlal immediately realised that is was beyond him and therefore he must have advised to take the person to a bigger city and therefore he was being taken to Baroda. Immediately they realised on the way that the person would die. He was therefore brought back home and he was handed over to the parents. Defendant no. 1s evidence therefore clearly established that it was he who asked Puna to spray pesticides in his field and it is clear that defendant no. 2 had sent him for that purpose only otherwise Puna could not do that work and as there was effect of pesticides defendant no I felt that it was his duty to treat him. He perhaps tried his best to save him but be could not. His case that he was supplying masks to his labourers is not borne out. He was questioned and he could not give names of the merchants from whom he purchased masks and he could not also produce any bills for the purchase of masks. It is clear therefore that non examination of Dr. Ochhavlal non examination of two servants Raman and Sultan clearly established the fact that Puna was sent by defendant no. 2 to defendant no. 1 for the purpose of spraying pesticides in the field of defendant no. 1 and defendant no. I had no masks and he did not supply them and the result was that Puna felt headache and other symptoms which ultimately resulted in his death.

(3.) Defendant no. 2 gave his evidence at Exh. 44. He tried to make out a case that he had sent Puna with a letter to bring his pump back from defendant no. 1. That letter is not brought on record. On behalf of the plaintiffs Chaturbhai is examined at Exh. 21. Naturally he could only say that Puna was working as an agricultural labourer at the place of defendant no. 2. That fact cannot be disputed. In paragraph 23 of the Cross examination it was brought out that when Puna left he told his father that he was being sent to spray insecticides. This statement is admissible under sec. 32 of the Indian Evidence Act because ultimately it is this which resulted in his death. It is the statement by a dead person as to the cause of his death or as to any of the circumstances which resulted in his death. This statement is admissible under sec. 32(1) of the Indian Evidence Act because cause of that persons death is in question and he had told his father that was going to spray insecticides and he was sent for that purpose. So these are the circumstances of transaction which ultimately resulted in his death.