PER A.P. SAHI, J., PRESIDENT

1. This is an unfortunate case pertaining to the loss of life of the complainant’s son who was a bright student and was undertaking coaching classes for the Civil Services.  For his stay and studies, he had rented an accommodation which he was sharing with two of his friends.  The accommodation had an air-conditioner installed in it which needed repairing and servicing for which the services were availed of and while the air-conditioner was being serviced, a blast occurred as a result whereof the complainant’s son and one of the repairing mechanics suffered serious burn injuries and both of them expired.  According to the narrative, there were two mechanics and the other one also suffered injuries but he survived.
2. The surviving mechanic Sanjay Kumar son of Amarjeet Singh gave a statement to the police on the date of the incident i.e. 30.04.2014 while in hospital in an injured state and the said statement was converted into an FIR lodged at Police Station Kirti Nagar, District West Delhi.
3. The complainant who is the father of the deceased student L. Santosh, filed this complaint alleging negligence on the part of the repairing mechanics and also made allegations of liability on the landlord, the opposite party no.1 Mr. Man Singh, and allegations of vicarious liability on the opposite party no.2 M/s Madras Trading Co. through its proprietor Mr. Sukhpreet Singh as he had sent the mechanics for carrying out the repair and services.
4. The FIR narrates the earliest information that was recorded therein.  Sanjay Kumar who was one of the mechanics injured in the blast, is stated to have narrated, that he and another colleague one Mr. Tata were asked by the owner of M/s Madras Trading Co. to visit the premises in question for re-filling of the gas in the compressor of the air-conditioner.  The FIR also narrates that the informant had asked the owner that he was only class VIII passed and therefore another technician should also be sent but the owner insisted that the work has to be done only by him and his other colleague Mr. Tata.  It is also narrated that the air-conditioner was a second hand air-conditioner which according to the informant had been purchased from M/s Madras Trading Co.  The statement further narrates that while the coil was being welded, the blast occurred resulting in the injuries to all three including the informant and Mr. Tata.
5. The present complaint was filed on 18.08.2015 where-after the landlord, the opposite party no.1, filed his written statement and made the following averment in paragraph-5 thereof.

“5.      That the contents of para 5 of the complaint are wrong and denied.  It is denied that the on 30.04.2014, since the air conditioner of the rented premises required repairing and servicing the 1^st respondent called M/s Madras Trading Company (a proprietary concern of one Shri Sukpreet Singh engaged in the servicing, repair and sales of Air Conditioner and hereinafter referred to as the 2^nd respondent) for servicing and repairing the air conditioner.  It is also denied that the said air conditioner fitted on the rented premises was a used one purchased by 1^st respondent from the 2^nd respondent.  It is submitted that the premises was rented without air conditioner on 28.07.2013 and no air conditioner was fitted on 28.07.2013 and no air conditioner was fitted on 28.07.2013 in the premises.  It is further submitted that providing air conditioner was not part of the tenancy agreement dated 28.07.2013 executed between answering respondent and Mr. Sanjay Aski alongwith complainant’s son and Mr. Jasvinder Singh.  It is submitted that Mr. Sanjay Aski along with complainant’s son and Mr. Jasvinder Singh purchased the second hand air conditioner and fitted the same in the rented premises without the permission and knowledge of the answering respondent.  And further to make it functional / operational they called the mechanics from the nearby shops i.e. respondent No.2 for getting it serviced /repaired.  It is pertinent to mention herein that while servicing the air conditioner, the same got blast and the unfortunate incident happened because of the negligence on the part of the complainant’s son and other room partners on one side and on the part of the alleged personnel sent by the respondent no.2.

                   It is also submitted that the answering respondent had let out the premises without air conditioner, which is apparent from the rent deed dated 28.07.2013.  It is further submitted that providing air conditioner in the rented premises was not the part of the tenancy agreement dated 28.07.2013 executed between the answering respondent and complainant’s son alongwith other room partners.  They fitted the air conditioner in the rented premises without permission and knowledge of the answering respondent.  The complainant / tenants have not hired any services for consideration of answering respondent qua fitting of air conditioner and repairing of the same in the tenanted premises which is clear from the rent agreement dated 28.07.2015.  Accordingly, no dispute between the answering respondent / landlord and complainant/tenant in relation to the tenanted premises and covered by the tenancy agreement has arisen which can be brought before the Consumer Redressal Agency by the complainant / tenant by filing a frivolous complaint.”

6. The landlord therefore denied having any concern or agreement or of having participated either in engaging the services of anyone from the opposite party no.2 or for having installed the air-conditioner.  This denial is further supplemented by the statement that the hirers had got the air-conditioner fitted in the rented premises without his permission and knowledge and it is they who had called the mechanics.
7. The complainant in his evidence affidavit in paras 11 and 12 has stated that the services from the opposite party no.2 were called for - for repair and servicing, and the second opposite party sent Mr. Sanjay Kumar and Mr. Tata for the same.  There are allegations that these two mechanics had no experience and were absolutely unskilled who did not know much about repairing air-conditioners but on the insistence of the proprietor of M/s Madras Trading Co. Mr. Sukhpreet Singh, they came and were virtually forced to attend the job that resulted in the mishap.
8. The complainant later on voluntarily opted to delete his claim as against the opposite party no.1 landlord and accordingly a statement was made on 05.10.2016 to the following effect:-

“Learned counsel for complainant states at bar that he has received instructions from the complainant that he does not wish to pursue with the matter against respondent no.1 and he may be deleted from the array of the parties.  Learned counsel for the complainant is directed to file fresh memo of parties. …”

9. As a result of the aforesaid deletion, the opposite party no.1 landlord was removed and the memo of parties was amended even though the Opposite Party NO.1 had filed his written statement.
10. Interestingly one of the co-tenants along with the deceased was one Sanjay Kumar Aski s/o Bheemappa Aski, another student who was living in the same room.  His evidence by way of affidavit on behalf of the complainant was filed on 08.02.2017 and paragraphs 3 and 4 of the said affidavit are relevant which are extracted hereunder:

“3.      I state that on 30.04.2014, since the air conditioner of the rented premises required repairing and servicing, we called for the services of M/s Madras Trading Company (a proprietary concern of one Shri Sukpreet Singh engaged in the servicing, repair and sales of Air Conditions and the 2^nd Respondent herein) for servicing and repairing of the air conditioner.

4.       I state that the two persons were sent by Shri Sukpreet Singh viz. (i) Mr. Sanjay Kumar and (ii) Tata; for repairing the air conditioner and to fill up gas.  I state that the said Sanjay Kumar and Tata came to the building and went to the top floor and carried with them a gas cylinder, at which point in time Santosh was also present at the rented premises.  I state that the duo without disconnecting the air conditioner and removing the spares, straightaway started to punch the coil of the said air conditioner by applying pressure due to which there was a huge blast in the air conditioner.  I state that the blast occurred as a result of the negligent manner in which the duo operated.  I state that the duo alongwith the Complainant’s son were grievously injured from the blast and were immediately shifted to hospitals nearby.  I state that the Complainant’s son received burns as well as other severed injuries and was taken to Kalra Hospital, New Delhi.”

11. A perusal of the aforesaid averment indicates that the complainant’s witness has owned the fact of calling for the services from M/s Madras Trading Co. and has also alleged that the two mechanics who had arrived had proceeded to straightaway punch the coil of the air-conditioner by applying pressure without disconnecting the air-conditioner, as a result whereof a huge blast occurred leading to the catastrophe. 
12. It is with these versions in the background that the learned counsel for the complainant urged that from a recital of the FIR coupled with these pleadings, the negligence on the part of the M/s Madras Trading Co. that had provided the mechanics, is clearly made out and no due diligence or care was taken to send skilled persons for carrying out the job which was highly risky.  Thus, the opposite party no.2 was clearly liable and negligent for having sent the two mechanics whose negligent performance in the repair and servicing led to the accident.
13. Learned counsel for the complainant then proceeded to urge that the other mechanic Mr. Tata who also lost his life in the said incident was stated to be in the employment of the opposite party no.2 along with Mr. Sanjay.  For this he has relied on the order passed by the Labour Commissioner, Employees Compensation dated 24.01.2017 that had found the opposite party no.2 to be having an employee-employer relationship and it was also held that the death of Mr. Tata had occurred during the course of his employment.  A copy of the order has been produced during hearing. Compensation was therefore awarded to the tune of Rs.8,67,640/- and the said order of the Labour Commissioner in an appeal was confirmed by the High Court of Delhi vide judgment dated 13.02.2024.  A copy of the said judgment has been placed before us.  Paragraphs-3 to 10 of the said judgment are extracted hereunder:

“3.      Briefly stated, the claimants instituted the Statement of Claims before the Commissioner on 27.07.2015, which has been incorrectly recorded in the impugned order as 29.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. It has been averred that on 30.04.2014, Sh. Tata was sent by the appellant to do certain AC repair work at H. No. l-B/66, 3rd Floor, Single Story, Ramesh Nagar, New Delhi and during the course of doing the repair work, the AC compressor burst resulting in fatal injuries to him and he died at the age of 25 years.

4.       As a necessary corollary an FIR bearing No. 287/2014 was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of his coworker Sh. Sanjay Kumar that he along with the deceased had gone to the above-noted address at around 4:00 PM on 30.04.2014, to carry out work pertaining to filling of gas in the Air Conditioner on the third floor of the building when the accident occurred and he made a statement that both of them were employed with the appellant firm. The claimants sought compensation to the tune of Rs. 20,00,000/- (Rupees 20 Lacs) along with penalty of 50% of the amount of compensation sought and interest @12% per annum, payable from the date of the incident till realization. The claim of compensation was filed before the Commissioner by the respondents/claimants on 27.07.2015, being the legal heirs of the deceased,

5.       The appellant filed its reply to the claim of compensation on 09.12.2015, vehemently denying the „employer-employee‟ relation with the deceased, and further placing its objection on the record as to the non-enclosure of any documents/proofs substantiating on such employer-employee relationship at the behest of the claimants. Thereafter, a rejoinder was filed by the respondents on 10.02.2016.

6.       On behalf of the claimants, evidence was led by way of filing an affidavit of Respondent No.1, who was subsequently crossexamined on 23.05.2016. On the other hand, the appellant led its evidence through an affidavit of Sh. Sukhpreet Singh, the proprietor of Madras Trading Corporation, who was thereafter cross examined on 03.06.2016.

7.       Following issues were framed by the learned Commissioner:

“(i)     Whether the employee - employer relationship exists between the parties? –

(ii)      Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to?

(iii)     Relief, if any?”

8.       With regard to Issues No 1 & 2, the learned Commissioner decided in favor of the claimants/respondents. It was the finding of the Commissioner that the evidence led by the claimants, in specific the FIR bearing No. 287/2014, was reliable and sufficient in proving the events as claimed. Furthermore, it was the view of the learned Commissioner that the respondent firm (appellant herein), failed to make good the averment that no employer-employee relation existed between it and the deceased and was unable to produce any evidence or document in this respect, which suggested that the deceased was not employed with it on the day of the accident.

9.       The findings of the learned Commissioner are produced hereinbelow:

“8. As per evidence filed by the claimant by way of affidavit with documents exhibited as CW-1/1 to CW-1/15, the claimant has clearly stated that the deceased workman Mr. Tata was son of claimant and he was working as AC Mechanic with the respondent and his monthly wages were Rs. 15,000/-. On 30.04.2014 he was sent by the respondent to repair AC at H. No. 1-8/66, 3rd Floor, Single Story, Ramesh Nagar, New Delhi and he met with an accident due to blast of AC Compressor and he died. At the time of accident his ages was 25 years and the compensation of Rs.20 Lakhs with interest & penalty has been claimed. In his cross examination he has stated that his son was working with the respondent firm and he met with an accident which was out of and in course of his employment. The evidence & documents specially FIR No-287 dated-01.05.2014 full support the claim of the claimant and proved the claim of events as such the evidence of the claimant is reliable & accepted.

9. In his evidence, the respondent denied the employment of the deceased and also denied the accident. However, the respondent failed to produce any document to show that the deceased was not employed on the date of accident with them. They, have also not filed any attendance register, salary register etc. and in absence of. the documents an adverse inference is drawn that there was employee-employer relationship between the deceased and the respondent which also supported by the contents of the FIR, in which the chain of events leading to death of the deceased workman clearly mentions that he was working at the accident site on the direction of the respondent to fill the gas in the compressor of the AC at H. No. l-B/66, 3rd Floor, Single Story, Ramesh Nager, New Delhi, when there was compressor blast as a result he died. The above evidence proves beyond the doubt that they was employee-employer relationship between the deceased and respondent and he met with an accident leading to his death which was out of and in course of his employment with respondent and accordingly, the Issue no. 1 & 2 are decided in favor of claimants and against the respondent.”

10.     In view of these findings, with respect to Issue No. 3, the learned Commissioner held the claimants entitled to a compensation to the tune of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.”

14. The High Court after having analyzed the facts, also dwelt upon the proceedings of the criminal case that had commenced on account of the FIR lodged as stated hereinabove and then ruled as under:

“19.    In view of the aforesaid proposition of law, without further ado, reverting to the instant appeal, the learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. Indeed, CW-1 Ramjit, who was father of the deceased was not an eye witness to the accident. However, the reliance on the contents of the FIR and statement of co-worker Sanjay Kumar during the course of investigation by the learned Commissioner cannot be faulted in law. It is pertinent to mention that the proceedings under the EC Act are summary in nature and the strict technicalities of the Indian Evidence Act, 1872 cannot be applied in such proceedings.

20.     Evidently, the FIR had been recorded soon after the unfortunate accident and there are grounds to presume that the facts were truthfully revealed as regards the circumstances that resulted in the fatal accident and the same were incorporated by the Investigating Officer acting in the ordinary course of his duties. It must also be appreciated that that claimants come from an impoverished background suffering from illiteracy and ignorance. The testimony of respondent No.1 read as a whole would show that his version that his son was working with the appellant as he was in possession of a visiting card, that was placed on the record and unrebutted, is sufficient to connect or show the nexus of the appellant as an employer of his deceased son. The evidence led by a party coming from a weaker section and suffering from an impoverished background should be appreciated in its totality.

21.     In essence, the basic foundation to the claim had been laid forth by the claimants and the onus then shifted upon the appellant to refute the employer-employee relationship between the parties. The appellant was better placed in all respect to lead some evidence in this regard so much so that he could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee.”

15. It may be mentioned that the learned counsel has also placed before us the order passed by the Apex Court on 26.04.2024 whereby the Special Leave to Appeal No.8845/2024 filed against the above mentioned judgment of the High Court was dismissed by the following order:

“1.      We are not inclined to interfere with the judgment impugned herein under Article 136 of the Constitution of India.

2.       The Petition for Special Leave to Appeal is dismissed.  Pending application is disposed of.”

16. The case took another turn, and which has been noted by the High Court, that Sanjay Kumar, the informant who was one of the mechanics injured, turned hostile while making his deposition before the criminal court where a chargesheet had been filed against the opposite party no.2 and the trial is still pending.  The said statement of Mr. Sanjay Kumar dated 20.07.2022 is extracted hereunder:

“FIR No. 287/14

PS : Kirti Nagar

State Vs. Sukhpreet Singh

20.07.2022

PW-1 Statement of Sanjay Kumar, s/o Amarjeet Singh r/o Kamruddin Nagar, Nangloi, Delhi

On S.A.

          I am residing at the above said address since 2007.  I used to do the repairing work of AC with my friend namely Tata.  On the day of incident, I alongwith my friend Tata went to the Ramesh Nagar to fill the gas in the AC.  We were having equipments for filling the gas.  On the request of my friend Tata, I went to the Madras Trading Corporation to purchase valve of AC.  When I came back at the spot, when I was about 6 ft. away from the AC, that AC was old AC, suddenly the compressor of that AC bursted and I sustain injuries in that blast.  I got unconscious and do not know anything else.

          At this stage, Ld. APP for the State seeks permission to cross examine the witness as witness is resiling from his earlier statement.

          Heard.  Allowed.

          I do not know whether the incident took place while doing welding of the coil of the AC.  It is correct that complaint Ex.PW1/A bearing my thumb impression at point A.  I was taken to the spot for repairing AC by my friend namely Tata.  I did not visit the spot at the request of accused Sukhpreet Singh.  I do not remember today when I visited the Madras Trading Company to purchase the valve of compressor of AC, whether accused Sukhpreet Singh present over there or not.  It is wrong to suggest that I requested the accused to send other technician for repair, however, he forced me to visit the spot along with my friend Tata.  It is correct that my friend died on 30.04.2014 when he sustained injuries while repairing an old AC.  I do not know as to why blast took place in the compressor of AC.  I do not come to the court today along with accused.

          It is wrong to suggest that I have compromised with the accused to save him.  It is wrong to suggest that I have taken money consideration from the accused.  It is wrong to suggest that I have won over the accused.  It is wrong to suggest that incident took place due to the negligence of accused Sukhpreet Singh as he did not provide necessary safety equipments to us.  It is wrong to suggest that I am deposing falsely.

Xxxxx by Sh. Bimlesh, Ld. Counsel for accused.

          I am 12^th pass.  I did not read the complaint Ex.PW1/A when I affixed my thumb impression on the same.  I do not remember whether I put thumb impression on blank paper or not.  I do not know the accused Sukhpreet Singh.  I never met with Sukhpreet Singh prior to the said incident.  In the police station, I made thumb impression and signature on some blank papers.  I went police station only once.  My statement was not recorded by police.  I never made any statement in the police station or before any police official.

RO&AC

                                                              Sd/-

                                                       (Kapil Kumar)

Chief Metropolitan Magistrate-West

     THC/20.07.2022”

17. It is pointed out that the impact of the statement of Sanjay Kumar was also noticed and analyzed by the High Court in Para 22 and 23 of the Judgment that are extracted hereinunder:

“22. During the course of arguments, much mileage is sought to be drawn by the learned counsel for the appellant from the testimony of Sanjay Kumar i.e., the co-worker recorded in the criminal proceedings arising out of FIR No. 287/2014. Even a bare perusal of his testimony recorded on 20.07.2022 would show that he categorically testified that he had gone to the site in question along with the deceased, where the fatal accident occurred. He also testified that they had gone to the spot for repairing an Air Conditioner. Merely for the fact that he was treated as a hostile witness by the prosecution does not afford any credence to the defence of the appellant.

23. The plea by the learned counsel for the appellant that respondent No.1 acknowledged that he did not know the proprietor of the appellant hardly cuts any ice given the background of the parties. It does not strike to reason that parents hailing from such a background would be knowing the exact details of the employer. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for that matter the co-worker Sanjay Kumar to have given a false statement soon after the accident”

18. It is in this background that the learned counsel for the complainant has advanced his submissions contending that the loss suffered by the complainant of his son deserves to be compensated in the terms as prayed for and the quantum claimed has been computed conservatively keeping in view the excellent educational qualifications of the deceased son of the complainant and his bright career.  It is therefore submitted on behalf of the complainant that the complaint deserves to be allowed.
19. Refuting the aforesaid submissions Mr. Ghose, learned Senior Counsel for opposite party no.2, submits that the complainant had consciously impleaded the landlord who was responsible for having availed of the services and therefore there was no consumer-service provider relationship at all between the roommates, including the deceased son of the complainant, with the answering opposite party.
20. Mr. Ghose urged that there is no evidence on record to the effect that the second hand air-conditioner was purchased from the answering opposite party no.2 nor does the opposite party no.2 deal with the sale or purchase of second hand air-conditioners.  The recital in the FIR by Mr. Sanjay Kumar was without any basis and as noted above Sanjay Kumar has denied the incident which is also evident from his cross-examination before the criminal court.  Thus, the recital in the FIR cannot be treated as evidence.
21. He further submits that even otherwise an FIR is not evidence even under the regular law of the land and therefore the contents thereof have not been proved by its author, namely, Mr. Sanjay Kumar, hence the same is of no relevance.
22. He then submits that there is no contract or agreement whatsoever of the answering opposite party with the roommates or even the landlord for carrying out any such services of an old air-conditioner.
23. He has then vehemently urged that there is nothing on record in the complaint or in the evidence filed by the complainant to establish the employer-employee relationship so as to construe any liability or vicarious liability against the opposite party no.2.  He submits that the order passed by the Labour Commissioner and confirmed by the Delhi High Court is only in relation to Mr. Tata and even those observations are based on a summary assessment under the Employees Compensation Act.  The same is neither binding nor is conclusive proof or any evidence of there being an employer-employee relationship for attracting the vicarious liability of the opposite party no.2.
24. Mr. Ghose therefore submits that there is absolutely no element of negligence as alleged nor is there any expert evidence on record to demonstrate that the work or services alleged to have been carried out had been performed in a negligent way.  Consequently, for all the reasons above, the complaint deserves to be dismissed.
25. Learned counsel for the complainant has concluded his arguments by citing three judgments and four articles from journals to support his submissions contending that negligence is clearly established and so is the vicarious liability of the employer.  The level of skill and diligence that was to be observed was clearly faulty and even if it is presumed that the two mechanics were skilled workers, yet their negligence has resulted in the loss of life for which the opposite party no.2 is vicariously liable.  The judgments and articles relied on by him are as under:

26. Having considered the submissions raised, the first issue is as to what was the nature of the services which were availed and by whom and from whom. The Complainants case is that the services were availed of from the Opposite Party No.2 for the repair of the air conditioner. This was initially alleged with the involvement of the Opposite Party No.1 landlord but as noted above, the Complainant withdrew its allegations and reliefs claimed against the Opposite Party No.1 landlord. Thus, the services for the repair of the air conditioner seem to have been called for by the room inmates including the deceased. To understand the connect of this availing of services, the document on record is the first information report lodged by Mr. Sanjay Kumar, the surviving mechanic. This FIR has been contested by the learned Counsel for the Opposite Party urging that this is no substantive piece of evidence and therefore the contents thereof cannot be relied on. The supporting argument is that Mr. Sanjay Kumar has turned hostile in the criminal case and therefore the contents of the FIR cannot be presumed to have been proved. To that extent, Mr. Ghose learned Senior Counsel for the Opposite Party may be correct that the FIR by itself cannot be conclusive of the facts as alleged by the Complainant but as against this the other mechanic Mr. Tata who was injured fatally was found to have been in an employer-employee relationship with the Opposite Party No.2 in the proceedings under the Workmen’s Compensation Act where the finding recorded by the Labour Commissioner was affirmed by the Delhi High Court which orders have been quoted hereinabove. The High Court further held that the FIR cannot be treated as having been fabricated by the police and even if Sanjay Kumar, the author of the FIR had turned hostile during the criminal trial, yet he has testified of having gone to repair the Air Conditioner. The Statement dated 20.02.2022  before the court concerned has been extracted hereinabove in Para 16. Paras 22 and 23 of the order of the High Court have been extracted in Para 17 hereinabove. The said order was not interfered with by the Apex Court and the SLP filed against it has been dismissed. Thus, there is evidence about the incident having occurred and the mechanics were found to have gone to repair the air conditioner. Mr. Sanjay Kumar who was the author of the FIR in his statement before the Criminal Court even though has turned hostile, yet he has stated that he had accompanied Mr. Tata at the site where the accident took place but he was standing six feet away and he did not know as to how the blast occurred. What is significant in his statement for the purpose of the present controversy relating to the liability of the Opposite Party No.2 is that Mr. Sanjay Kumar states that he does not know Mr. Sukhpreet Singh, the proprietor of Opposite Party No.2. Thus, Mr. Sanjay Kumar has resiled back and turned hostile in so far has his status of engagement by the Opposite Party No.2 is concerned. Consequently, the order of the Labour Commissioner is confined only to a finding of such a relationship qua Mr. Tata only. Nonetheless, the said evidence does indicate that Mr. Tata had been sent by the Opposite Party No.2 and it was not a unilateral professional engagement independent of the involvement of the Opposite Party No.2.
27. The next question is as that even if it is assumed that the mechanics had been sent by the Opposite Party No.2, then whether the Opposite Party No.2 had any direct control over the functions performed by them at the time of the accident. In this respect, the primary issue to be gone into is as to whether there was any existing contract of service of the nature as alleged by the Complainants between the Opposite Party No.2 and the room inmates. From the facts on record, there is no contract in writing for availing any repair services from the Opposite Party No.2. It is therefore not known as to exactly what was the service in specific terms that was sought to be availed of. What can be gathered from the facts is that a call seems to have been given for repairing the air conditioner that was not working. In the absence of any such evidence, the mechanics seem to have gone to do the needful without there being any evidence of the exact nature of the defect in the air conditioner. Thus, there is no evidence to indicate as to the nature of the direction or control of the Opposite Party for performing any specific nature or job. In essence, the instruction might have been to repair the air conditioner but there is nothing to indicate that there were any instructions given by the Opposite Party No.2 as to how and in what manner the repairs were to be carried out. There is no evidence to indicate that the Opposite Party No.2 had instructed the mechanics to carry out a particular nature of repair involving the risk of a blast.
28. Thus, the mechanics seem to have commenced repairs on their own individual assessment and it seems that while probing into the nature of the defect or possibly carrying out the repairs that the blast occurred. There is no evidence except the allegation of the Complainant that the operations had been commenced by the mechanics without putting off the switch. There is no expert evidence or any other evidence except this bald allegation.
29. Learned Counsel for the Complainant has handed out a useful article published in the journal of forensic sciences of January 2017, Vol.62 No.1 titled as “Deaths Due to Accidental Air Conditioner Compressor Explosion: A case Series” This article has been published by five Doctors while probing a random of three cases where mechanics had died due to blasts while repairing air conditioners.  The discussion part of the said article seems to be informative and reflective of the issue presently involved. The article studies the blasts and explosions in a compressor of a domestic air conditioner, and the factors causing blasts have been narrated as under:

“Investigation into the circumstances of the explosion is of utmost important to find out manner of explosion and devices involved. In the first case of this series, investigation revealed that during the welding, the mechanic failed to detect a gas leak, which caused the blast in the compressor. In the second case, the repairman was unaware of the fact that the compressor had already been filled with dry nitrogen by some other repairman prior to his visit. He was looking to check for the leaks in the unit using liquid nitrogen, and the moment he asked another man to switch on the power of the AC unit, the blast occurred. In the third case, the explosion happened because someone switched on power of the unit without asking while the mechanic was repairing the compressor.

The main reason for the AC compressor explosion is extre- mely high pressure generated within the chamber of compressor while using dry nitrogen to look for any leak in the pipeline. Normally, AC compressors are designed to function at a gauge pressure of 1000, but when the pressure rises to 2000 or above, explosion occurs. Most of the modern, sophisticated compres- sors are equipped with safety valves, which alleviate excess internal pressure. If the valve becomes dysfunctional owing to some clogged pipe or if the compressor is not equipped with safety valves at all, then the excess pressure can cause explo- sion. Other factors which may be responsible for such explosion are usage of oxygen instead of dry nitrogen to check leaks in pipeline of compressor. When oxygen combines with compres- sor oil and if a fire source is nearby, explosion of compressor may occur.

Wherein India untrained or inadequately trained youths jump into AC repairing as mechanic to earn livelihood, without having any knowledge of the potential hazards of the job. Only certified persons who have formal training from a recognized institute should be hired for such type of hazardous job. In addition, every compressor manufacturers should comply with safety guidelines recommended by ANSI/AHRI Standard 210/240 (air- conditioning, heating, and refrigeration institute) (16).”

30. It is thus seen that it is a matter of investigation and probe to discover the causes and in the present case, there is no evidence signifying the exact nature of negligence. The allegation is that the mechanics started punching the coil through a welding machine without putting off the switch of the air conditioner. As noted above, this allegation has not been supported by any expert evidence but even assuming for the sake of argument that this might have been the possible cause of the explosion, there is nothing to indicate that this negligence was of the Opposite Party No.2. The negligence, if any, was of the mechanics. There is no evidence that the Opposite Party NO.2 was aware of the nature of the defect or the proposed repair. This was exclusive to the mechanics.
31.  The contention that the mechanics were not skilled does not appear to be borne out from facts inasmuch as the order of the Labour Commissioner in the case of Mr. Tata, the other mechanic who died, has recorded that he was under employment for wages @ Rs.15,000/- a month as an AC mechanic. This fact can safely be presumed to conclude that the mechanic was not an unprofessional and was possessed of the ordinary skills required of an AC mechanic to carry out repairs. The Opposite Party No.2 therefore cannot be held liable for sending somebody who did not know anything about the repairs of an air conditioner or risks involved therein. No evidence to the contrary is available to construe that the operations of repair were carried out through unskilled or incompetent personnel.
32. It also needs to be mentioned that the allegation was that the air conditioner had been purchased from the Opposite Party No.2 which was a second hand equipment. No evidence has been led to that effect to establish the purchase of the said air conditioner from the Opposite Party No.2 who has denied it and has also stated that he does not deal in second hand air conditioners. Thus, no knowledge can be attributed to the Opposite Party No. 2 about any possible defects of the air conditioner which does not seem to have been acquired from his shop.
33. The next question that falls for consideration is as to whether the Opposite Party No.2 can be saddled with vicarious liability and if so, then to what extent.
34. The contention as to whether the Opposite Party No.2 is vicariously liable or not has to be viewed from the point of view as to what is vicarious liability and as to whether the legal tests of control as propounded by our Courts can be applied to impose any liability on the Opposite Party No.2 or not. Vicarious liability has been defined in Black’s Law Dictionary is as follows:

“vicarious liability (v1-kair-ee-ǝs). (1890) Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. See RESPONDEAT SUPERIOR. [Cases: Labor and Employment 3026; Negligence 483.]

"The vicarious liability of an employer for torts committed by employees should not be confused with the liability an employer has for his own torts. An employer whose employee commits a tort may be liable in his own right for negligence in hiring or supervising the employee. If in my business I hire a truck driver who has a record of drunk driving and on whom one day I detect the smell of bourbon, I (along with my employee) may be held liable for negligence if his driving causes injury. But that is not 'vicarious' liability-I am held liable for my own negligence in hiring that employee or letting him drive after I know he has been drinking." Kenneth S. Abraham, The Forms and Functions of Tort Law 166 (2002).”

35. The question of vicarious liability is a mixed question of fact and law. In order to ascertain as to whether a service provider can be held to be vicariously liable for any negligent act on the part of anyone having performed a duty at the instance of an employer, one of the guiding principles has been indicated in the celebrated Canadian Supreme Court Judgment in Bazley v. Curry, [1999] 2 S.C.R. 534 where Judge McLachlin observed as follows:

"A wrong that is only coincidentally linked to the activity of the employer and duties of the employee cannot justify the imposition of vicarious liability on the employer. To impose vicarious liability on the employer for such a wrong does not respond to common sense notions of fairness. Nor does it serve to deter future harms. Because the wrong is essentially independent of the employment situation, there is little the employer could have done to prevent it. Where vicarious liability is not closely and materially related to a risk introduced or enhanced by the employer, it serves no deterrent purpose, and relegates the employer to the status of an involuntary insurer"

36. However, this is not a case where parties have alleged any unauthorized or intentional act. The fundamental question is whether the negligent act is anyway related to the conduct authorized by the Opposite Party No.2 for justifying the imposition of vicarious liability on it.
37. The Indian context of control test on the presumption of employer-employee relationship was examined by the Apex Court in several cases and it has been held that adjudication of an enquiry into the status of relationship of employer-employee should be done by an industrial adjudicator which cannot be conveniently made by other Forums. Reference be made to para 126 of the Apex Court in the case of Steel Authority of India & Ors.  v. National Union Waterfront Workers & Ors., (2001) 7 SCC 1. Paragraph 126 is extracted hereinunder:

“126. We have used the expression “industrial adjudicator” by design as determination of the questions aforementioned requires enquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be the Industrial Tribunal/Court whose determination will be amenable to judicial review.”

38. There are various other tests which were considered in detail in the celebrated decision of Sushilaben Indravadan Gandhi & Anr. Vs. New India Assurance Co. & Ors. (2021) 7 SCC 151 where after discussing the entire law on the subject of our Courts as well as the Courts in jurisdictions throughout the world, it was held in paragraph 32 and 33 as follows:

“32. A conspectus of all the aforesaid judgments would show that in a society which has moved away from being a simple agrarian society to a complex modern society in the computer age, the earlier simple test of control, whether or not actually exercised, has now yielded more complex tests in order to decide complex matters which would have factors both for and against the contract being a contract of service as against a contract for service. The early “control of the employer” test in the sense of controlling not just the work that is given but the manner in which it is to be done obviously breaks down when it comes to professionals who may be employed. A variety of cases come in between cases which are crystal clear — for example, a master in a school who is employed like other employees of the school and who gives music lessons as part of his employment, as against an independent professional piano player who gives music lessons to persons who visit her premises. Equally, a variety of cases arise between a ship's master, a chauffeur and a staff reporter, as against a ship's pilot, a taxi driver and a contributor to a newspaper, in order to determine whether the person employed could be said to be an employee or an independent professional. The control test, after moving away from actual control of when and how work is to be performed to the right to exercise control, is one in a series of factors which may lead to an answer on the facts of a case slotting such case either as a contract of service or a contract for service. The test as to whether the person employed is integrated into the employer's business or is a mere accessory thereof is another important test in order to determine on which side of the line the contract falls. The three-tier test laid down by some of the English judgments, namely, whether wage or other remuneration is paid by the employer; whether there is a sufficient degree of control by the employer and other factors would be a test elastic enough to apply to a large variety of cases. The test of who owns the assets with which the work is to be done and/or who ultimately makes a profit or a loss so that one may determine whether a business is being run for the employer or on one's own account, is another important test when it comes to work to be performed by independent contractors as against piece-rated labourers. Also, the economic reality test laid down by the US decisions and the test of whether the employer has economic control over the workers' subsistence, skill and continued employment can also be applied when it comes to whether a particular worker works for himself or for his employer. The test laid down by the Privy Council in Lee Ting Sang v. Chung Chi-keung [Lee Ting Sang v. Chung Chi-keung, (1990) 2 AC 374 (PC)] , namely, is the person who has engaged himself to perform services performing them as a person in business on his own account, is also an important test, this time from the point of view of the person employed, in order to arrive at the correct solution. No one test of universal application can ever yield the correct result. It is a conglomerate of all applicable tests taken on the totality of the fact situation in a given case that would ultimately yield, particularly in a complex hybrid situation, whether the contract to be construed is a contract of service or a contract for service. Depending on the fact situation of each case, all the aforesaid factors would not necessarily be relevant, or, if relevant, be given the same weight. Ultimately, the Court can only perform a balancing act weighing all relevant factors which point in one direction as against those which point in the opposite direction to arrive at the correct conclusion on the facts of each case.

33. Given the fact that this balancing process may often not yield a clear result in hybrid situations, the context in which a finding is to be made assumes great importance. Thus, if the context is one of a beneficial legislation being applied to weaker sections of society, the balance tilts in favour of declaring the contract to be one of service, as was done in Dharangadhra [Dharangadhra Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152 : AIR 1957 SC 264] , Birdhichand [Birdhichand Sharma v. Civil Judge, (1961) 3 SCR 161 : AIR 1961 SC 644] , D.C. Dewan [D.C. Dewan Mohideen Sahib & Sons v. United Beedi Workers' Union, (1964) 7 SCR 646 : AIR 1966 SC 370] , Silver Jubilee [Silver Jubilee Tailoring House v. Chief Inspector of Shops & Establishments, (1974) 3 SCC 498 : 1974 SCC (L&S) 31] , Hussainbhai [Hussainbhai v. Alath Factory Thezhilali Union, (1978) 4 SCC 257 : 1978 SCC (L&S) 506] , Shining Tailors [Shining Tailors v. Industrial Tribunal, (1983) 4 SCC 464 : 1983 SCC (L&S) 533] , P.M. Patel [P.M. Patel & Sons v. Union of India, (1986) 1 SCC 32 : 1986 SCC (L&S) 155] , and Indian Banks [Indian Banks Assn. v. Workmen of Syndicate Bank, (2001) 3 SCC 36 : 2001 SCC (L&S) 504] . On the other hand, where the context is that of legislation other than beneficial legislation or only in the realm of contract, and the context of that legislation or contract would point in the direction of the relationship being a contract for service then, other things being equal, the context may then tilt the balance in favour of the contract being construed to be one which is for service.

39. Vicarious Liability under the Law of Tort has been dealt with to a great extent by a celebrated Scholar P.S. Atiyah, Bar-at-Law, on the subject in his book “Vicarious Liability in the Law of Tort” published by LONDON BUTTERWORTHS (1967).  The Author has explained the distinction between vicarious and personal liability and the legal theory underlying the same.  In Chapter 1,  the Author explains this in the following words
    
    
    Vicarious liability in the law of tort may be defined as a liability imposed by the law upon a person as a result of (1) (1) a tortious act or omission by another, (2) some relationship between the actual tortfeasor and the defendant whom it is sought to make liable, and (3) some connection between the tortious act or omission and that relationship. In the modern law there are three and only three relationships which satisfy the second requirement of vicarious liability, namely that of master and servant, that of principal and agent, and that of employer and independent contractor. There is, however, an important difference between the first, and the other two of these relationships, since only in the case of master and servant is there any general rule imposing liability in all circumstances, whereas in the other two types of relationship, vicarious liability exists in particular situations only, and not as a general principle. In - all three cases, on the other hand, the third condition of vicarious liability is required, namely some connection between the tortious act or omission and the relationship between the actual tortfeasor and the person sued. In the case of master and servant, this third requirement is expressed in the formula that the tort must have been committed in the servant's "course of employment" It will be submitted later that in this respect the law is the same in all three cases.

In legal theory, vicarious liability is readily distinguishable from personal liability. There is generally an obvious difference between holding a person liable for his own torts and holding him liable for the torts of a servant, agent or independent contractor, and the difference is emphasised by the fact that in the modern law of torts liability is still generally based on some notion of "fault". A person is not, subject to well-known exceptions, generally liable in tort except where he has intentionally or negligently caused some loss or damage to the plaintiff. But the result of vicarious liability is to make one person compensate another for loss not due to his fault at all, although it may be due to the fault of his servant, agent or independent contractor.

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In the third place, however clear the line between personal and vicarious liability may appear when considering responsibility for an act, the position is quite different when considering omissions. This is simply because it is obviously less easy to identify the party responsible for an omission than the party responsible for an act, and indeed, several people may be treated as responsible for omissions in a way which is rarely possible with acts. This is particularly relevant in dealing with the liability of groups of persons associated together in corporations, public authorities and such like. In such cases the corporation may itself be treated as "personally" liable because of some failure in organisation, some failure in team-work or in system, which is hard to place at the door of any individual person. For example, in Carmarthenshire County Council v. Lewis a little boy wandered out of a nursery school maintained by the defendants, down a lane through an unlocked gate onto the highway, and was there the cause of a serious accident. The Court of Appeal held that the child's teacher was negligent in allowing the child to get out, and that the defendants were vicariously liable for her negligence. The House of Lords, on the other hand, while affirming the defendants' liability, did so on the ground that the defendants were themselves "personally" negligent in allowing such an easy method of escape to young children in a school bordering a busy highway. But this, although classified as personal liability, is really another way of saying that some servant or official of the defendants, at some time, and in some way, had failed to do something which ought to have been done, and that this was the cause of the accident. Moreover, in dealing with situations of this kind, an employer will often be treated as having knowledge of facts known to his servants, and will, as a result of such knowledge, be treated as "personally" liable. In cases of this nature the distinction between personal and vicarious liability is of little practical importance.”

40. It is further explained by the Author that there are many situations in which a responsibility arises from the fact that the person against whom allegations are made has played some part in creating a risk, which has in point of fact eventuated thereby causing loss to the Claimant.  In the present case also nothing has been adduced by the Complainant that the Opposite Party NO.2 has contributed towards the incident by creating or enhancing any risk. No tool or instrument or any material to cause a risk is alleged to have been tendered or supplied by the Opposite Party No.2 for use during repairs. There is no evidence of any machinery or equipment sent by the Opposite Party No.2 for use during repairs to establish a possibility or probability of creating any risk.
41. In circumstances like the present case, negligence in employing an incompetent and unskilled servant who by his negligence injures the Claimant can give rise to a legal liability on account of such wrongful act even though the master may be an independent party.  To hold a person under a duty to take precautions and then to hold him liable for failure to take due care, the connect between the act or omission duly authorized by the employer to his servant has to be assessed.  It is for this reason that the Apex Court judgment in the case of Sushilaben Indravadan Gandhi (Supra) opines that no singular test of universal application can even yield the correct result as it is a collection of all applicable tests on the totality of the fact situation of a given case involving a complex hybrid situation that a conclusion has to be drawn as to whether the contract was a contract of service or a contract for service.  This would depend onas to whether the functions were integrated or the task performed was only as an accessory.  The control of the employer, if is only to the extent of asking the servant to do some work, may not entail a legal liability as a tort feasor but if the employer defines the manner, the mode and method of the work to be performed, then any breach in such performance may lead to a vicarious liability of the employer as this would be a contract for service.  It is for this reason that the judgment referred to above also opines that ultimately the Court can only perform a balancing act weighing all relevant factors, which point in one direction as against those which point in the opposite direction to arrive at a correct conclusion on the facts of each case.
42. Barrister Atiyah in Chapter 2 of his book (supra) states that a person is not liable for an act or omission in a case of vicarious liability.  He is liable to pay damages for the results of an act or omission, and the function of the law is to decide as to when and how a person bears sufficient responsibility for the results of his acts or omissions to justify imposition of liability.  For that a fairly close causal connection has to be addressed between the acts and omissions of a party and the resulting damage.  He then explains that the peculiarity of vicarious liability lies not so much dependent on the cause, as in fact, the vicarious liability is imposed on a person who is not at fault.  While explaining the theories of justification of vicarious liability, the Author refers to another authority on “Vicarious Liability by Baty”.  He submits that mere control without anything further cannot provide any justification for vicarious liability for the acts of independent contractors, but a certain degree of control over and others conduct does provide for some justification for imposing liability.  The question of profitability or loss arising from the servant’s work is also one of the factors.  If the benefit derived from the work is being profited by the master then this element of benefit undoubtedly would be a vital factor for analyzing and assessing vicarious liability.  Then it is also explained that a master has the obligation of taking care in choosing his servants.  If an incompetent person is engaged then a master cannot be exonerated merely because he had exercised all possible care in the choice of his servant.  Vicarious liability helps a claimant to get over this insurmountable difficulty in such a situation.  However, the learned Author also explains that a major factor in establishing the liability is the presence of such evidence or else a claimant also relies on the principle of res ipsa loquitur but for that some activity under the control of the employer has to be established.  The Author also refers to the celebrated decision of Lord Macmillan in Donoghue v Stevenson [1932] Appeal Cases 562, which is the famous Snail in the Ginger Beer Bottle Case.  On evidence, the Author illustrates the same by saying that it will be very often in circumstances in which possible negligent parties may be servants of single employer.  The responsibility of some, even though the act or omission may not have been caused directly by the employer, is the essence of vicarious liability.  The Author also referred to the American reinstatement of the relationship whereby a person engaged makes his employer responsible for some of his physical acts resulting from the performance of the principal’s business in order to extend vicarious liability.  He states that the ascertainment of the actual terms of a contract is a question of fact.  The Author has quoted Lord Denning in Stevenson, Jordan and Harrison, Ltd. V. Macdonald and Evans [1952] 1 T.L.R. 101, where the learned Judge states as follows:-

“It is often easy to recognize a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi- man and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it, but is only accessory to it.”

43. In another celebrated decision of the Privy Council in Montreal Locomotive Works, Ltd. V. Montreal and A.-G. [1947] 1 D.L.R. 161, Lord Wright stated the law as under:-

"In earlier cases a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of the tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive. Thus the master of a chartered vessel is generally the employee of the shipowner though the charterer can direct the employment of the vessel. Again, the law often limits the employer's right to interfere with the employee's conduct, as also do trade union regulations. In many cases the question can only be settled by examining the whole of the various elements which constitute the relationship between the parties. In this way it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior.”

44. The principles of Common Law were discussed in relation to privity of contract for assessing liability by Justice Antonin Scalia in his work “A Matter of Interpretation” and an illustration narrated therein deserves to be quoted.  It is extracted hereinunder:-

Assume, for example, that a painter con- tracts with me to paint my house green and paints it instead a god-awful puce. And assume that not I, but my neighbor, sues the painter for this breach of contract. The court would dismiss the suit on the ground that (in legal terminology) there was no "privity of contract”: the contract was between the painter and me, not between the painter and my neighbor. Assume, however, a later case in which a company contracts with me to repair my home computer; it does a bad job, and as a consequence my wife loses valuable files she has stored in the computer. She sues the computer company. Now the broad rationale of the earlier case (no suit will lie where there is no privity of contract) would dictate dismissal of this complaint as well. But a good common-law lawyer would argue, and some good common-law judges have held, that that rationale does not extend to this new fact situation, in which the breach of a contract relating to some- thing used in the home harms a family member, though not the one who made the contract. The earlier case, in other words, is "distinguishable”.

(Note:- the word puce occurring in the above quoted passage is of French origin and means a flea or flea colour)

45. While dealing with skilled and professional men, the status of employment whether it is a contract of service or contract for service has to be analyzed to come to the conclusion as to the extent of control by the employer.  On the facts of the present case one of the mechanics Mr.Sanjay Kumar has resiled from his statement before the Criminal Court of being employed with the Opposite Party No.2.  The evidence, therefore, is that Mr.Sanjay Kumar had accepted having accompanied the other mechanic namely Mr.Tata, but there is no evidence to establish that Mr.Sanjay Kumar was in the employment or under the control of Opposite Party No.2.  The question is as to whether the work performed of repairing the air conditioner was conducted by the Opposite Party No.2 and whether risk factor, which led to the accident, had any connects with the job performed at the instance of the Opposite Party No.2.
46. There is no evidence as to what is exactly was directed to be done by the Opposite Party No.2 and, therefore, the element of any performance of a job involving risk of a blast cannot be attributed directly on the Opposite Party No.2 in the absence of any material to hold that the mechanics had been called upon to perform the repairs in a particular way so as to contribute towards to any possible negligence. 
47. The allegation is that the punching of the coil was done without putting off the switch of the air conditioner.  There is no expert evidence or technical opinion but the literature which had been cited and quoted hereinabove indicates the circumstances when such accidents of blasts can occur.
48. Thus, it boils down to this as to whether the mechanics were skillful enough to handle the situation including what was attempted by them.  There cannot be an assumption that the employer/ service provider had asked the mechanics to perform the repair with the air conditioner switch on or had sent inexperienced hands.  There is nothing to indicate in the shape of convincing evidence that the repair work was being carried out after putting on the switch of the air conditioner.  The air conditioner was not functioning and that is why the services were called for to carry out the repairs.  The duty to take care of looking at the starting switch was, therefore, exclusively of the mechanics and keeping in view the fact that the other mechanic Mr.Tata was of eight years’ experience and was on a salary of Rs.15,000/- per month does indicate that he was skillful enough to understand the consequence or otherwise of the risky condition of work.  The Opposite Party No.2 cannot therefore be said to have engaged Mr.Tata as an unskillful and incompetent mechanic.  To assume this would be a fiction without any fact or evidence. 
49. Unfortunately, Mr.Tata died in the accident but the Order of the learned Commissioner under the Workmen’s Compensation Act did record his relationship and employment with the Opposite Party No.2, which has been affirmed upto the Apex Court.  Even if no relationship of employment is established with Mr.Sanjay Kumar (the other mechanic who had lodged the FIR), the connect of the performance of the repair work at the hands of the Opposite Party No.2 cannot be negated as the ultimate injury caused is a consequence of the said accident and, therefore, the theory of res ipsa loquitur can be invoked. Res ipsa loquitur is a rule of evidence and is an element applied under the law of Tort. It is a rule for drawing an inference of negligence from circumstances that are proved if the real cause of accident is unknown and no reasonable explanation as to the cause is coming forth in defence. In the present case, the immediate and approximate cause of the accident was the blast but the real cause of the blast could not be gathered except by way of an inference of an occupational or professional negligence of the mechanics while carrying out the repairs. The deceased lost his life along with another mechanic on account of a blast that occurred during the repair work of the air conditioner. The tortious act, and the actual tort feasor namely the mechanic who lost his life seems to have been sent by the Opposite Party No.2. Mr. Tata, the deceased mechanic has been found to be in the employment of the Opposite Party No.2. The nature of the employment is also that of an AC mechanic on a salary. In a situation of this kind, the Opposite Party No.2 as an employer can be treated to be having knowledge about the competence of the mechanics who were sent to perform the repair work of an air conditioner. The Opposite Party No.2 is in the business of air conditioning. The repair work therefore is not an ancillary part of his business but is an integral part to cater to customers having problems with air conditioning of their equipments. The service therefore rendered for repairs by the Opposite Party No.2 by all reasonable standards and the evidence on record is established. This is an unwritten and undocumented relationship that emerges on facts that are preponderately probable.
50. We are, therefore, of the opinion that there is a connect of the job performed by the mechanics and the cause of death of the deceased is clearly connected with the blast that occurred during such performance.  There is no evidence to indicate that the mechanics were rank outsiders and independent professionals with no connect at all with the Opposite Party No.2.  Atleast the connect of one of the mechanics is established namely that of Mr.Tata on the evidence discussed above.  The surviving mechanic Sanjai has not denied his presence at the scene of occurrence.  The Opposite Party No.2, therefore, cannot escape from the vicarious liability arising out of the incident causing loss and damage to the life of the Complainant’s son as the connect of the services of repair being carried out through the Opposite Party No.2 is established. The repair work was carried out on the dispatch of at least one of the mechanics by the Opposite Party No.2to the place of the deceased. 
51. We, therefore, hold the Opposite Party No.2 to be vicariously liable but the question still remains to what extent.  As noted above, there is no evidence to indicate that the Opposite Party No.2 had engaged an incompetent or unskilled person or had authorized the mechanics to perform the repair work without exercising due diligence.  Thus to say that the Opposite Party No.2 had not acted reasonably or had not exercised reasonable due care and caution may not be correct in its entirety.  Engaging the services of a mechanic of experience and asking him to perform a repair work is the usual course of business in the trade of the Opposite Party No.2.  Otherwise also it is not expected that he would do so in order to damage his own reputation or earn profits.  It may also be mentioned that there is nothing on record to indicate any billing or profits earned by the Opposite Party No.2 from the repair work.  Thus, the extent of liability on the Opposite Party No.2 has to be minimal and not disproportionate.
52. To calculate and compute the quantum of damages in a case of vicarious liability is not an easy task. The misperformance or negligence in the present case has landed up the Opposite Party No.2 in a situation of vicarious liability. No material has been brought on record to demonstrate that by carrying out the repairs the Opposite Party No.2 has actually made a profit or benefited out of it and at the same time there is nothing to indicate that any act on the part of the Opposite Party No.2 had aggravated the situation. To calculate an amount in an accident of this nature for a vicarious liability, one has to take recourse to some illustration. In the instant case, the dependants of the other deceased mechanic have been awarded adequate compensation by the appropriate forum. The deceased in the present case was a student who had the potential of rising in his career. The loss of dependency of the parents on their child is also evident. We have also taken into consideration certain mitigating factors in this case where the Complainants initially instituted the complaint with the landlord as Opposite Party No.1 who was deleted at their instance. The first informant Mr. Sanjay turned hostile and there was no evidence to indicate that the air conditioner had been supplied and installed by the Opposite Party No.2 as was alleged by the Complainant. There is no expert evidence opining firmly on the exact nature of negligent act but the blast did occur during repairs.
53. With the evidence on record and the fact of the connect of the services rendered through the deceased mechanic Mr.Tata, we find that a lump sum amount of Rs.10 lakhs deserves to be awarded against the Opposite Party No.2 to be paid by him to the Complainant in lieu of the vicarious liability as concluded by us hereinabove.  This is also proportionate keeping in view the compensation that was awarded to the parents of the mechanic Mr.Tata under the proceedings of Workmen’s Compensation Act. 
54. We, therefore, partly allow this Complaint in the terms aforesaid and direct that a lump sum amount of Rs.10,00,000/- shall be paid to the Complainant by the Opposite Party No.2 within a period of three months from today. Disposed of accordingly.