IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.28 of 2000. Judgment reserved on:24.7.2008. Date of decision: 7th August, 2008. Munish Kumar(deceased) through his LRs Sh.Janak Raj and others …..Appellants/Plaintiffs -Versus- State of H.P. and others ….Respondents/Defendants Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the Appellants: Mr.K.D.Sood, Advocate with Mr.Sanjeev Sood, Advocate. For the respondents: Mr.R.M. Bisht, Dy.A.G. with Mr.Rajesh Mandhotra, Dy.A.G. Deepak Gupta, J. This appeal is directed against the judgment and decree passed by a learned single Judge of this Court in Civil Suit No.117 of 1991 decided on 1.9.2000 dismissing the suit filed by the plaintiff Munish Kumar, predecessor in interest of the present appellants. The undisputed facts are that the bridge over the Garali Khud known as “Garali Khud Bridge” was damaged on 7th August, 1984. This bridge was thereafter closed to vehicular and other traffic. On 18.9.1988 at about 5 p.m. the plaintiff Munish Kumar was travelling on his motor cycle No.PAH-3340 from village Badoh to Garoh in Tehsil Nurpur, District Kangra, H.P. One Ravinder Kumar was travelling as the pillion rider. The bridge falls on this route. The plaintiff went on to the bridge but since the bridge was incomplete and two spans were missing he alongwith his motor cycle and pillion rider fell off the bridge into the khud and sustained injuries. 2 The disputed facts are that according to the plaintiff there was no blockade at the bridge and there was no indication or any signage to show that the bridge was incomplete or damaged. According to the plaintiff the impression which he got was that the bridge was in a normal condition and it was safe to pass through the same. The approach to the bridge is after a curve and is at an incline and the complete bridge was also not visible. The plaintiff alleged that the accident in question occurred due to the sheer negligence of the defendants in not keeping the bridge in a proper condition. It was further contended that the defendants had not put up any signage or blockade to advise the public that the bridge was damaged and nobody should go on to the bridge. According to the plaintiff he had suffered serious spinal injuries resulting in paraplegia. He alleged that he had suffered 100% permanent disablement and was absolutely bed ridden and unable to perform any physical functions. He could not even answer the call of the nature. On these allegations the plaintiff filed a suit for recovery of damages of Rs.12 lakhs. The defendants while contesting the suit admitted the fact that they owe a duty to the general public to ensure that the roads, bridges and paths are properly maintained. However, according to the defendants after the bridge was damaged on 7.8.1984 a diversion through the khud was provided on both sides of the bridge. Sign boards were fixed indicating that the bridge was damaged and the road leading to the bridge was closed by placing boulders and other material. According to the defendants they had taken all steps to forewarn the general public about the damage of the bridge and the accident occurred due to the negligence of the plaintiff himself. On the pleadings of the parties, the learned single Judge framed the following issues: 1. “Whether the plaintiff met with the accident as alleged in para 2 of the plaint? OPP 3 2. If issue No.1 is proved in the affirmative, whether injuries were suffered by the plaintiff due to negligence of the defendants? OPP 3. To what compensation, the plaintiff is entitled to on the basis of averments made by him? OPP 4. Whether the plaintiff is entitled to interest, if so, on what amount and at what rate? OPP 5. Relief.” The learned single Judge decided issue No.1 in favour of the plaintiff and held that the accident did occur. However, the learned single Judge held that the accident did not occur due to the negligence of the respondents and consequently held that the plaintiff was not entitled to any compensation and therefore the question of payment of any damages or interest did not arise. Aggrieved by this judgment and decree the plaintiff instituted the present appeal. At the outset we may point out that we had earlier decided this appeal vide judgment and decree dated August 27, 2007 and awarded compensation of Rs.8,50,000/- in favour of the plaintiff Munish Kumar. Thereafter, the State filed an application being CMP No.25 of 2008 for recalling the said judgment on the ground that the plaintiff Munish Kumar in whose favour the appeal had been allowed had expired on 28th July, 2003 much prior to the hearing and decision of the appeal. We had allowed this application and recalled our earlier judgment vide order dated 9.4.2008. In the meantime the father and brothers of the deceased who are the legal representatives of the deceased plaintiff filed an application for being substituted in his place. This application was allowed vide order dated 4.7.2008 and the heirs of Sh.Munish Kumar were brought on record. Before we deal with the merits of the case, we shall have to deal with the question as to whether the appeal filed on behalf of the injured can be continued to be prosecuted on behalf of his legal representatives and even if 4 the same can be prosecuted what is the extent of compensation the legal representatives are entitled to. The principle of actio personalis moritur cum persona is a principle applicable to personal injury cases. The literal meaning of this latin phrase is that an action for personal injuries dies with the person injured. It is contended on behalf of the State that the legal representatives cannot be permitted to continue this action on behalf of the deceased and are not entitled to any compensation. On the other hand, on behalf of the legal representatives it is contended that they are entitled to claim the full compensation payable to the injured who is now dead. No doubt as per this principle an action for injuries whether physical or otherwise does not survive if the person injured dies. However, Section 306 of the Indian Succession Act saves the right even in such cases to a limited extent. Section 306 of the said Act reads as follows: “306.Demands and rights of action of, or against decease survive to and against executor or administrator.-All demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.” A bare perusal of the aforesaid provision shows that all demands and rights whatsoever existing in favour or against a person at the time of his death survive to his executors, administrators and heirs. However, an exception has been carved out, that actions for defamation, assault as defined in I.P.C. or other personal injuries not causing death of a party do not survive. Loss to the estate suffered by his legal heirs is not covered under the exception to this action and therefore any loss to the estate can be recovered by the legal heirs. Section 306 has modified the principle of “actio personalis 5 moritur cum persona” to this limited extent and the legal heirs/representatives of injured can continue an action initiated by an injured person in respect to the loss to the estate. A Division Bench of this Court in Narinder Kaur and others vs. State of H.P. and others, 1991 ACJ 767, held as follows: “8. We have heard the learned counsel for the parties and gone through the records. The principle of actio personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. In its applicability, the principle stands considerably modified by the provisions of section 306 of the Indian Succession Act, which clearly lays down that all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death survive except causes of action for defamation, assault and other personal injuries not causing death of the party etc. which come to an end with the death of injured. The loss to the estate is thus not covered by the exceptions contained in section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 (SC) and M.Veerappa v. Evelyn Sequeira, AIR 1988 SC 506. The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased.” The same view has been taken by one of us (Deepak Gupta, J) in Ram Ashari and others vs. H.R.T.C. and another, IV (2005)ACC 379, wherein it was held as follows: “6.It is well settled law that an action in torts for claim of compensation for damages on account of injuries suffered by an injured is a right personal to the injured. This right cannot be continued by the legal heirs or legal representatives. It is no doubt true that the legal heirs or the legal representatives can continue the proceedings in so far as they relate to the loss to the estate such as medical expenses, amount spent on treatment etc. However, the claim with regard to the pain and suffering, future loss of income and such related matters is an action which is personal to the injured 6 alone and cannot be continued after his death unless it is proved that the death is the result of the injuries suffered in the accident.” A Full Bench of the Madhya Pradesh High Court in Bhagwati Bai and another vs. Bablu and others, 2007 ACJ 682 has taken an identical view in the matter. The Full Bench after considering the entire law on the subject held as follows: “15.In the result, we are of the considered opinion that a claim for personal injury filed under Section 166 of the Motor Vehicles Act, 1988 would abate on the death of the claimant and would not survive to his legal representatives except as regards the claim for pecuniary loss to the estate of the claimant……” It is therefore obvious that the legal representatives of the deceased can continue the action but only in respect of pecuniary loss to the estate of the claimant. The two questions which remain for adjudication are; (i) whether the learned single Judge was right in holding that there was no negligence on the part of the defendants; and (ii) if the aforesaid question is decided in favour of the plaintiff then to what amount of compensation the appellants who are the legal heirs of the original plaintiff are entitled to? With regard to the first question, as already spelt out above the defendants have not denied their duty to maintain the road. The learned single Judge relied upon certain English authorities to hold that the plaintiff would be entitled to compensation only in case he proved misfeasance (positive action) on the part of the defendants and would not be entitled to damages in case of nonfeasance (omissions). In Wilson v. Kingston-upon-Thames Corporation, (1949) 1 All.E.R. 679, the plaintiff, who was thrown from his bicycle and injured owing to the defective condition of the surface of a road, claimed damages from the defendants, the Highway Authority, on the ground that they had carried out repairs to that part of the highway so negligently that it had again became out of repair by the time of accident. It was held that lack of repair of 7 the highway arose from nonfeasance and not from misfeasance in repairing the road negligently, and, therefore, the defendants were not liable. In Burton v. West Suffolk County council, (1960) 2 All.E.R. 26, the defendants therein, a local authority, had taken over a road part of which was frequently flooded during heavy rains. In March, 1954, the defendants carried out some drainage work on the road, but, although the work done resulted in some improvement and was properly carried out and constituted no danger, it was inadequate and the road was still liable to flooding after heavy rains. It was the defendant’s practice to have warning flags or lamps put on the road when there was likelihood of danger to vehicles due to flooding. On the night of December 11, 1954, as the plaintiff was driving his motor-car along the road, the car skidded on a patch of ice, ran off the road into a tree and was damaged, and the plaintiff was injured. At the time of accident there was no flooding; the thin coating of ice which caused the skid was on a part of the road which tended to keep damp owing to the inadequate drainage. The plaintiff claimed damages against the defendants on the grounds (a) that, as the Highway Authority, the defendants were guilty of misfeasance in that they had attempted to improve the drainage but had not completed the work adequately and the road was still dangerous; and (b) that the defendants were negligent in failing to have the warning lights placed on the road on the night of accident. It was held that the defendants were not liable to pay damages to the plaintiff for the following reasons:- (i) The fact that the drainage work done by the defendants was inadequate, was not misfeasance on their part. It was a case of nonfeasance; and (ii) there was no duty on the defendants to give warning of ice on the road. Both these aforesaid cases were considered by the Apex Court in Rajkot Municipal Corporation vs. Manjulben Jayantilal Nakum and others, (1997)9 SCC 552. In the case before the Apex Court a road side 8 tree, which was in a good condition, without any warning fell on the deceased Jayantilal while he was walking on the foot path. Jayantilal sustained injuries and died as a result thereof. The plaintiffs being his widow and children filed a suit for claiming damages. The apex Court discussed the entire law on the subject. With regard to negligence the apex Court held as follows: “……Negligence is failure to use such care as a reasonable, prudent and careful person would use, under similar circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Negligence also is an omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. 12.Negligence and tort have been viewed without elaborately embarking upon the definition of “tort” applicable to varied circumstances and the scope of negligence in its wider perspective. Let us proceed to consider the meaning of “negligence” in the context of tort liability arising in this case. In every case giving rise to tortuous liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. We are concerned in this case with tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in ---(a) duty of care; (b) duty is owned to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an obligation recognized by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Negligence would in such acts and omissions involve an unreasonable risk of harm to others. The breach of duty causes damage and how much is the damage should be comprehended by the defendant. Remoteness is relevant and compensation on proof thereof requires consideration. The element of carelessness in the breach of the duty and those duties towards the 9 plaintiff are important components in the tort of negligence. Negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes. Duty of care is, therefore, crucial to understand the nature and scope of the tort of negligence.” The apex court thereafter considered the concepts of misfeasance and nonfeasance and drew the following distinctions between them: “38. There is a distinction between misfeasance (positive action) and nonfeasance (omission). Misfeasance is willful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Nonfeasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of nonfeasance several factors require consideration for giving rise to actionable negligence….” The apex Court further held that principles of negligence apply to public authority also. In this regard the Supreme Court held as follows: “39. It can be seen that ordinarily the principle of the law of negligence applies to public authorities also. They are liable to damages because by a negligent act or failure to act when they are under a duty to act or for a failure to consider whether to exercise a power conferred on them with the intention that it would be exercised if and when public interest requires it. Whether the public authority has decided to exercise a power and has done it negligently a person who has acted in reliance on what the public authority has done, may have no difficulty in proving that the damages which he has suffered have been caused by the negligence. Where the damage has resulted from a negligent failure to act there may be greater difficulty in proving causation and requires examination in greater detail. The liability in tort is for the damage done, not for damage merely foreseeable or threatened or imminent…..” The position was summarized in the following words: “57. It would thus be seen that each case requires to be examined in the light of the special circumstances, viz., whether the defendant 10 owed a duty of care to the plaintiff, whether the plaintiff is a person or a class of persons to which the defendant owed a duty of care, whether the defendant was negligent in performing that duty or omitted to take such reasonable care in the performance of the duty, whether damage must have resulted from that particular duty of care which the defendant owed to the particular plaintiff or class of persons. Public authorities discharge public obligations to the public at large. Therefore, it owes a duty of care at common law to avoid causing present or imminent danger to the safety of the plaintiff or a class of persons to which the plaintiff belongs. It is a statutory duty of care under common law which could give rise to actionable claim in the suit of the individual and it is capable of coexistence alongside a statutory duty. The duty of care imposed on a local authority by law may not be put beyond what the statute expects of the local authority or Corporation to perform the duty. The tort of insuperable negligence would emerge from imminent danger created by a positive act. But the duty of care imposed on local authority by law may be gauged from the circumstances in which and the conditions subject to which the duty of care has been imposed on the statutory authority. The imminent danger theory must be viewed keeping at the back of mind the act or conduct creating the danger to the plaintiff or the classes of persons to which he belongs and that by negligent conduct the defendant is not in know of the danger. The defendant also in given circumstances, must owe special responsibility or proximity imposing foreseeable duty to care, to safeguard the plaintiff from the danger or to prevent it from happening. 58. But when the defendant was not in know of the discoverable defect or danger and it caused the damage by accident like sudden fall of the tree, it would be difficult to visualize that the defendant had knowledge of the danger and he omitted to perform the duty of care to prevent its fault. There would be no special relationship between the statutory authority and the plaintiff who is a remote user of the footpath or the street by the side of which the trees were planted, unless the defendant is aware of the condition of the tree that it is likely to fall on the footpath on which the plaintiff/class of persons to which he belongs frequents it. The defendant by his nonfeasance is not responsible for the accident or cause of the death since admittedly 11 there was no visible sign that the tree was affected by disease. It had fallen in a still condition of weather.” A perusal of the judgment of the apex court clearly shows that the apex Court held that where the defendant could foresee that if proper care is not taken an accident may occur then negligence would be attributed to the defendant. When a duty to take care is cast upon a party it must ensure that it takes adequate measures to avoid an accident. Every person has a right to use a road or highway under common law. When the defendant creates by positive action any danger and no signals or warnings are given and consequently damage is done the approximate relationship gets established between the plaintiff and the accident. The Supreme Court held that if this is established then the causation cannot be said to be remote. The apex Court also held that when the defendant omits to perform a particular duty enjoined by the statute or does that duty carelessly there is proximity between the accident and the non-performance of the duty, the defendant can be held liable to the damages. It is in the light of the aforesaid exposition of law that the present case has to be decided. The admitted facts are that the bridge was to be maintained by the defendant. The defendants have clearly admitted in their written statement that the defendants owe a duty to maintain and construct the roads and also owe a duty to the general public to see that the roads, bridges, pathways are properly maintained and that no danger or harm ensues from a lawful use of such roads. It is admitted that the bridge was damaged on 7th August, 1984. Obviously once the bridge was damaged it was the duty of the defendants to provide an alternative to the bridge and more than that there was a duty cast upon the defendants to ensure that the approach to the bridge is blocked and proper signages affixed to warn the general public that the bridge should not