IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 15 of 1999 with C.O. No. 30 of 1999 Reserved on: 11.03.2010 Date of decision: 06.04.2010 State of H.P. and another … Appellants Versus Umawati and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. V.K. Ahuja, J. : This judgment shall dispose of an appeal filed by the appellants/State of H.P. against the judgment and decree of the Court of learned Additional District Judge, Shimla, dated 25.5.1998, vide which the suit of the respondents for recovery of compensation was decreed for a sum of Rupees One Lac alongwith interest a against the appellants. This judgment shall also dispose of the Cross Objections filed by the respondents under Order 41 Rule 22 C.P.C. read with Section 151 C.P.C. for enhancement of the amount of damages to the extent of Rupees Two Lacs. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated, the facts of the case are that the respondents, hereinafter referred to as the plaintiffs filed a suit for recovery of Rs. 2,25,000/- as compensation. It was alleged by the plaintiffs that one Dushyant aged about 9 years and a student of 3rd Class was son of the plaintiffs. He went to take water on 23.11.1988 from nearby water pond constructed by the defendants. It was alleged that there were no safety measures in the water pond to avoid any mishap and no fencing had been provided. It was alleged that while fetching water from the water pond Dushyant, now deceased got drowned in the water tank and died instantaneously on the spot. It was alleged that the death has occurred due to negligence on the part of the defendants who had not taken steps to ensure safety to a person fetching water from the water tank. It was alleged that the water tank has been constructed in the year 1988 by the defendants by the side of a public path and it was their duty to ensure safety and protection of the persons living nearby. Thus, the plaintiffs alleged that they suffered loss, made representations to various authorities and filed the suit for recovery of the amount after issuance of notice under Section 80 C.P.C. upon the defendants. The defendants admitted that the water tank was constructed by them, but they pleaded that it was constructed as per the norms and due safety measures had been taken while constructing the said water tank. They denied their liability to pay the amount of compensation. Some preliminary objections in regard to limitation, maintainability etc. were also taken by the defendants. 3 On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the death of Dushyant occurred on 23rd November, 1988, due to the acts of omission and commission on the part of the defendants, as alleged? OPP 2. In case issue No. 1 is proved, to what amount, the plaintiffs are entitled by way of damages? OPP 3. Whether the suit is within the period of limitation? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs have no enforceable cause of action? OPD 6. Relief. Parities led their evidence and the learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiffs. However, with regard to the compensation it was held that the plaintiffs are entitled to a sum of Rupees One Lac alongwith interest at the rate of 12% per annum from the date of institution of the suit till the realization of the entire decretal amount. I have heard learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Assistant Advocate General, on behalf of the appellants during the course of arguments were in general on all the issues and much reliance was placed upon the issue of limitation. In so far as the findings of the learned trial Court on Issue No. 1 are concerned that no proper fencing had been done by the defendants and due to their 4 negligence, this occurrence had taken place. No particular infirmity could be pointed out in the findings recorded by the learned trial Court. A perusal of the judgment passed by the learned trial Court will show that the learned trial Court had concluded on the basis of the evidence led that there was negligence on the part of the defendants at the time of construction of the water tank since no barbed wire was put around the water tank. A perusal of the written statement filed by the defendants will show that they have themselves pleaded that the defendants had put the fencing now to the water tank, which also suggests that preventive steps were required, which were not taken earlier and now these have been taken by the defendants. I have not discussed the evidence at length since no infirmity has been pointed out in the conclusion arrived at by the learned trial Court on the basis of the evidence and, therefore, I affirm the findings of learned trial Court on Issue No. 1 that the incident had taken place due to acts of omission and commission on the part of the defendants who had constructed this water tank. The findings in this regard are liable to be affirmed. However, in regard to the findings under Issue No. 2 vide which a sum of Rupees One Lac was only granted as compensation, the learned counsel for the respondents had relied upon the decision in support of the Cross Objections filed by him in Lata Wadhwa and others Vs. State of Bihar and others, (2001) 8 Supreme Court Cases 197. That case was also for compensation on account of negligence and keeping in view the facts of the case, the amount of compensation as determined by 5 the Arbitrator was enhanced to some extent by the Apex Court and conventional figure of Rs.25,000/- was enhanced to Rs.50,000/- for determination of total amount of compensation payable. This decision was based upon the facts of that case. However, keeping in view the fact that the deceased was a child of 7 years and the compensation awarded at that time in the year 1998 cannot be less said to be inadequate calling for enhancement and, therefore, the compensation granted by the learned trial Court does not deserve to be enhanced at this stage since interest has also been awarded on this amount. Coming to the plea of learned Assistant Advocate General for the State on the point of limitation, suffice it to say that this plea has been raised only to be raised and there is no merit in the plea. The death has taken place on 23.11.1988 and thereafter, the petitioner made representations to authorities. It was so alleged in the plaint also and the suit was filed on 8.7.1992. Keeping in view the representations made and the fact that there was no rejection of the claim of the plaintiffs at any time and they filed the suit within a period of three years and few months of the date of death, the suit is not barred by time. Issue No. 3 was framed in this regard and the learnable trial Court has given its findings in this regard. Moreover, I may mention herewith that the plaintiffs had alleged in the plaint itself that he had filed the writ petition which was dismissed in limine and in Para-11 of the plaint he had specifically alleged that the State had waived its right to take the plea of limitation, which assertions were not specifically denied by the State while replying to Para-11 of the plaint, in which these specific allegations were made. This also 6 leads to the inference that the plea of limitation had been waived by the State and they cannot be permitted now to raise this plea of limitation in regard to the death of a minor child of the plaintiffs. The findings under Issue No. 3 pertaining to limitation are also liable to be affirmed. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants and rather if advised, they should not have filed the present appeal. The Cross Objections filed by the respondents are also dismissed. The plaintiffs shall be entitled to the amount awarded by the learned trial Court and if the amount has not been paid, it shall be paid to the plaintiffs within a period of three months from today alongwith interest till the date of deposit as awarded by the learned trial Court. Parties are left to bear their own costs. In view of the dismissal of the main appeal, all the Misc. Applications pending if any, shall also stand disposed of. ( V.K. Ahuja ) April 06, 2010 Judge (BSS)