IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA 171 of 2001. Judgement reserved on 8.9.2009. Date of decision October 29, 2009. State of Himachal Pradesh & another …Appellants/Defendants. Versus Kamla Devi & others …Respondents/Defendants. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the Appellants Mr. P.K.Sharma, Addl. A.G. For respondents 1 & 2 Mr. Baldev Singh, Advocate. For Panchayat Samiti, Bangana Mr. Shrawan Dogra, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the State against the judgment and decree of the learned District Judge, Una, awarding a sum of Rs.4,00,000/- with interest as compensation to the plaintiffs for the death of their son, who 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - was drowned in Govind Sagar while he was being ferried in a boat. The brief facts are that late Sanjay Kumar, son of the plaintiffs was born on 15.5.1976 and was a student of 10+1 in Government Senior Secondary School, Lathiani, Tehsil Bangana. He was living with his maternal uncle in village Dain from where he used to travel to School located in village Lathiani, along with other students in the boat which used to sail between Mandli and Lathiani in the Govind Sagar lake. The plaintiffs pleaded that this boat was under the control of defendant No. 2, Block Development Officer, Bangana and Jamba Ram, defendant No. 3 was employed to ferry passengers in this boat which was under his control and he used to sail and guide the boat across the lake. For all intents and purposes he was under the directions and control of defendant No. 2. On 10.11.1994, when the deceased along with other students was returning to his house in the boat, at around 5 P.M., defendant No. 3 loaded two bullocks in the boat. There were about 20-25 passengers who disembarked at village - 3 - Doh. The allegations are that he was not authorized to transport animals. Their mere presence along with other passengers exceeded the limit/ carrying capacity of the boat. The boat started leaking and defendant No. 3 started clearing the water with the help of a tin can and the noise caused by the scraping of the can frightened the bullocks who started feeling restless and resultantly rocked the boat. When all the water could not be cleared, defendant No. 3 pulled out the pipe which was fixed in the diesel engine which action scared the animals who became more restless and started moving about. As a result, the deceased was pushed into the water about 40 meters away from village Dohghat. He drowned in the lake and died. The boatman, i.e. defendant No. 3 did not make any attempt to save him nor was the boat equipped with any life belt/ jackets or rings which could be thrown to the deceased to rescue him. Defendant No. 3 continued steering and sailing the boat towards village Doh. On seeing Sanjay Kumar drown, several people of the village who were standing on the shore of the lake made desperate attempts to rescue him, but they could not succeed. His body was - 4 - recovered the next day when it was fished out by the local people. FIR No. 75/1994, dated 11.11.1994 under Section 304-A, Indian Penal Code, was registered against Jamba Ram, defendant No. 3, at Police Station, Bangana. The plaintiffs pleaded that Sanjay was their only son and he died on account of rash and negligent acts of defendant No. 3 who was in the employment of defendant No. 2 and, therefore, the defendants were jointly and severally liable to pay compensation. The suit was resisted by the defendants on a number of grounds including the ground of maintainability and jurisdiction. It was pleaded that defendant No. 3 was not employed by defendant No. 1 to sail the boat but the Executive Officer, Gram Panchayat, Bangana was plying the boat through contractors. Jamba Ram, defendant No. 3 was carrying on the business of ferrying passengers on contract basis and according to the conditions of the contract, an agreement had been executed between the Executive Officer with Jamba Ram who alone is liable to pay for any loss/ accident which may have occurred. It was - 5 - pleaded that the death was a result of contributory negligence of the deceased since he was sitting on the edge of the boat and was totally oblivious about the safety measures while traveling in the boat. The presence of the bullocks in the boat was not responsible for causing the death of Sanjay Kumar. Defendant No. 3 pleaded that only two calves were loaded in the boat and that the deceased was himself responsible for his death as he was sitting at its top edge. He was playing with the water ignoring all safety norms and in this process he fell from the boat and drowned. An attempt was made by defendant No. 3 to save the deceased but he was unsuccessful. On the settled issues and more especially issue No. 1 as to whether the death was the result of rash and negligent act on behalf of the defendants, the learned trial Court found in favour of the plaintiffs. While reaching this conclusion, the learned Court relied on the evidence of PW-1 Jagdish Chand, Junior Assistant, Govt. Senior Secondary School, Lathiani, who proved on record the fact that - 6 - Sanjay Kumar was a student in that school. PW-2 Dr. M.L.Nadda, Medical Officer, District Hospital, Una has testified that Sanjay Kumar died because of asphyxia induced by drowning. He proved on record the post mortem report Ex.P-2. PW-4 Kamla Devi, the mother of the deceased has proved on record the Certificates of Merit issued to the deceased in athletics, Exts. P-5 to P-11. She states that he was the only son and that she had undergone operation for tubectomy. Notice under Section 80 of the Code of Civil Procedure Ext. P-12 was served on the defendants which was duly acknowledged vide Exts. P-16 to P-18. No reply was given to this notice. In cross examination, she has submitted that she was only owning about two Ghumaun of land. No other significant question has been asked from her in cross examination. PW-5 is the maternal uncle of the deceased who has supported the case of the plaintiff. In cross examination, he has stated that there was only one boat sailing on the route on which the deceased used to travel. The capacity of the boat was 20-25 passengers which at times used to ferry even 40 to 45 passengers - 7 - at a time. He states that no attempt was made to save his nephew and that there were no life belts/ jackets or life rings on the boat. One “military man” tried to save Sanjay Kumar but of no avail. PW-6 Baldev Singh and PW-7 Durga Dass are two passengers who were sailing on the same boat. PW-6 stated that he was traveling in the same boat on 10.11.1994 which was carrying 20-25 passengers with two bullocks. Respondent No. 3 was steering the boat. When it was about 50 yards from village Doh, water started leaking in the boat and Jamba Ram tried to throw this water out of the boat by using a tin can. The scraping sound of the can with the bottom of the boat frightened the oxen who became restless, as a result of which the boat tilted throwing Sanjay Kumar into the water which ultimately resulted in his death by drowning. He has denied the suggestion that Sanjay was playing with the water and when he reached out to touch the surface of the lake, he lost balance and fell down. PW-7 Durga Dass was also a passenger on the boat, who corroborates the case put forth by the plaintiffs. - 8 - DW-1 Narain Dass, retired as Block Development Officer. He stated that he was posted as Block Development Officer at Bangana from 1993 to 1995 and that he retired in the year 1995. He says that “Bangana ki Panchayat Samiti ka Executive Officer, Bator BDO Hone Ke Nate, mein hi tha”. He proved on record Ex.DA which is an inquiry having been conducted by him into the incident and he reached the conclusion that although Sanjay Kumar died as a result of drowning, but he died as a result of his own negligence, as despite repeated requests from the boat man (Jamba Ram, defendant No. 3) and other passengers, he did not sit properly. I find that this report is not worthy of reliance since not only does it disclose a bureaucratic tendency to exonerate the State of all wrong doings by its own officers, but is badly off the mark and does not consider the fact as to whether any life saving equipment for use in an emergency was kept on the boat. It is indeed strange that the State should allow a boat to sail which does not have any safety equipment in the nature of life belts, jackets and life rings. It does not - 9 - require any effort of imagination to say that a boat should be equipped with life saving equipments so that in the eventuality of any mishap, immediate action can be taken. The report is conspicuously silent on this point and deserves to be rejected outright. Learned Additional Advocate General appearing for the appellants urges that the State is not responsible for the accident, as neither defendant No. 3 nor the boat was under the control of the State of Himachal Pradesh. This submission requires to be rejected outright. I find from the record that not only DW-1 has stated that it was under the control of Block Development Officer, Bangana who was also the Executive Officer of the Panchayat Samiti, but no attempt was made to prove the terms of the purported contract having been entered into between the State and the Panchayat etc. From the record, I find that an application dated 21.5.1998 under Order 18 Rule 17 and 17-A read with Section 151 of the Code of Civil Procedure was filed to prove on record some agreement entered into between the Executive Officer of the - 10 - Panchayat Samiti, Bangana and defendant No. 3. The learned Court has rightly rejected this application. There are two orders recorded on that day. The first order records that arguments have been heard and the case has been adjourned to 1.6.1998. Immediately thereafter, the second order records that an application for additional evidence has been filed which was rejected since the arguments had practically been concluded. On 1.6.1998 and 19.6.1998, the case was taken up again for further proceedings and judgment was pronounced on 3.8.1998. I cannot find any fault with the order passed by the learned District Judge as the application had been moved at the stage when arguments were heard and some minor points had to be cleared by the learned counsel appearing for the parties. True, that under Order 18 Rule 17 and 17A of the Code of Civil Procedure, permission to lead additional evidence is not to be refused lightly, but at the same time no liberty is to be granted to any party to litigate at his own will and pleasure, that is to say to place documents on record without any explanation as to why they were not proved or - 11 - exhibited earlier. The reason for not proving the documents on record is given in para 2 of the application, which reads: “2. That after the exercise of due diligence, the applicants / defendants could not prove the copies of terms and conditions of the auction orders and the agreements made by Shri Jamba Ram, defendant No. 3 with the Executive Officer of the Panchayat Samiti, Bangana and the same remained un- exhibited on the records of the case file, in the absence of which the matter in controversy between the parties cannot be adjudged.” Surely, this is not a ground to invoke the discretion of the Court for leading additional evidence by adopting crass negligence and a cavalier attitude towards litigation as the reason. Under any circumstances, the reasons given for not producing the evidence on the grounds as urged in the application cannot be used by the defendants for invoking the discretion of the Court in its favour. The submission made by the learned Additional - 12 - Advocate General on this count, is, therefore, rejected. On the other aspect that the boat was not under the control the appellants, I do not find any force in the submissions made by the learned Additional Advocate General as their own witness DW-1 has admitted that it was under the control of the Block Development Officer, Bangana who was also the executive officer of the Panchayat. No other point has been urged. There is no merit in the appeal, which is accordingly dismissed. There shall be no order as to costs. Pending application(s) shall stand dismissed. October 29, 2009 (PC). (Dev Darshan Sud), J.