UNION OF INDIA Vs. GOPALDAS VARANDMAL

JUDGEMENT

(1.) THIS is an appeal from an order of remand of a case passed by the learned Assistant Judge Mehsana in Civil Appeal No. 106 of 1961 on August 7 1963 on his reversing the decision of the trial Court disposing of the suit upon a preliminary issue. The issue was as regards the main- tainability of a civil suit for damages by a workman in a Civil Court in respect of an injury to his eye resulting from the alleged negligence of his employer and the persons appointed by the employer to provide timely and efficient medical aid for treatment of the injury received by the workman in the course of his employment when the workman had allegedly insti- tuted a claim to compensation in respect of the injury under The Workmens Compensation Act. The learned Judge has found that the suit as framed was maintainable and his finding is based mainly on the ground that the suit was one for damages suffered by the workmen as a result of the negli- gence or want of care on the part of the employer and the doctors appointed by the employer and resulting in an injury to the workmans right eye and apprehension of loss of vision to his left eye. the learned Judge has accordingly reversed the finding of the trial Court which had found that the suit was barred by sub-sec. (5) of sec. 3 of the Workmens Compensation Act 1923 (Act VIII of 1923).

(2.) The respendent who was a workman was at the material time em- ployed as a rivetter in the work-shop of the Western Railway at Mehsana. The plaint allegation is that on November 17 1958 at about 840 A. M. while the plaintiff (who will hereafter be referred to as workman) was working in the said railway workshop an accident occurred and a foreign particle entered his right eye and caused grievous injury. This injury was caused by an accident arising out of and in the course of employment at Mehsana. However he was not given any medical treatment at Mehsana Railway Hospital but was removed to Dohad hospital. From Dohad he was sent to Parel hospital at Bombay and from Parel hospital he was removed to the J. J. Group of Hospitals at Bombay where he was treated under instructions from the defendant railway which will hereafter be refer- red to as the employer. His removal from one place to another showed the negligence of the employer and as a result the injury to his right eye was aggravated and an operation was performed in the J. J. Group of Hospitals on November 27 1958 by the doctors appointed by the employer. The first opeation did not prove successful and therefore after some time a second operation on his right eye was performed and this also failed. The injury to the right eye so caused in the the course of his employment as alleged by the workman was likely in the medical opinion to effect his left eye and according to the medical opinion it was necessary to remove the right eye in order to save the affectation to the left eye. I may say that it is not clear from the record before me whether the right eye was enuclated. It is the further case of the workman that as a result of the negligence of his employer which term would include the doctors appointed by the said employer to treat him medically the vision of his left eye was impaired and there is apprehension of permanent loss to his left eye besides there being an irreparable and permanent loss to his right eye. This according to the workman was deprived him of the happiness and zest of life; he has received serious shock and has suffered considerable bodily and mental pain and his reasonable expectation of living a healthy and normal life has been considerably shortened and reduced. On these plaint allegations the workman has filed a suit for damages at Rs. 10 0 against the said employer. This suit was first instituted in forma pauperis on January 19 1960 and on the leave being granted it was converted into regular Suit No. 150 of 1960 of the Court of the Civil Judge Senior Division Mehsana. In the suit the Union of India through the Secretary Ministry of Railways New Delhi was impleaded as first defendant and the General Manager of the Western Railway was impleaded as second defendant.

(3.) The defendants resisted the plaintiffs suit and inter alia raised a preliminary objection as regards the maintainability of the suit in view of the fact that the plaintiff had earlier instituted a claim to compensation before the Commissioner appointed under the Workmens Compensation Act 1923 (Act No. VIII of 1923) which will hereafter be referred to as the Act. It was also contended that on the plaint allegations cause of action did not arise within the jurisdiction of the Mehsana Court and therefore the said Court had no jurisdiction.