IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 AS.No. 65 of 1996() ------------------- OS.237/1992 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S)/PLAINTIFF: -------------- ROY P. JOSEPH, POOVUMMOLEL HOUSE, PERINGOLE KARA, KOLENCHERRY P.O. BY ADV. SRI.BABY KURIAKOSE SRI.P.VIJAYAKUMAR RESPONDENT(S)/DEFENDANTS: --------------- 1.THE CHIEF ENGINEER, NATIONAL HIGHWAY, THIRUVANANTHAPURAM. 2.THE SUPERINTENDING ENGINEER, NATIONAL HIGHWAY, CIRCLE, TRICHUR. 3.THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY BRIDGES DIVISION, PALARIVATTOM. 4.THE ASSISTANT EXECUTIVE ENGINEER, NATIONAL HIGHWAY SUB DIVISION, ALUVA. 5.THE ASSISTANT ENGINEER, NATIONAL HIGHWAY SECTION, KALAMASSERY. 6.THE DIRECTOR GENERAL (ROADS), MINISTRY OF SURFACE TRANSPORTS (ROAD WING) TRANSPORT BHAVAN NO.1 PARLIAMENT STREET, NEW DELHI. 7.UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF SURFACE TRANSPORT (ROAD WING) TRANSPORTS BHAVAN NO.1, PARLIAMENT STREET, NEW DELHI. 8.SUPER ROAD WAYS T.A.BEERANKUNJU ROAD, COCHIN-18. GOVERNMENT PLEADER K.B.RAMANAND THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/06/2010 ALONG WITH A.S.NO.239 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NOS.239 OF 1995 & 65 OF 1996 () ----------------------------------- Dated this the 8th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. These two appeals arise from the decree in a suit for recovery of damages. A.S.No.65 of 1996 is filed by the plaintiff and A.S.No.239 of 1995 is filed by the defendants 1 to 5. 2. The gist of the allegations of the plaintiff is that a tanker lorry belonging to him, carrying CBFS oil from Madras Refineries Limited to the Carbon and Chemicals India Ltd., Karimugal, overturned while maneuvering a stretch of road which had a gutter causing damage to the vehicle, loss of the oil in the tanker and also certain other damages. The plaintiff admittedly got relief from the insurer. The suit as laid, is for different items of claims based on the loss of the oil that was being transported, loss of business due to the lorry getting A.S.NOS.239/95 & 65/96 () 2 stationed for repairs following the accident and also on certain other counts. The plaintiff attributed negligence on defendants. 3. Defendants 6 and 7 namely, the Director General (Roads) Ministry of Surface Transports (Road wing) and the Union of India filed written statement contending inter alia that the State of Kerala not being a party to the suit, the action is bad for non-joinder of necessary parties and that there is no negligence in the matter of maintaining the road. 4. Before the court below, PW2, the driver of the vehicle stated that he reached the alleged scene of occurrence at about 6 a.m. and the tanker lorry driven by him fell into a gutter filled up with rain water and overturned. He states that the gutter was at the entry to the bridge and that the vehicle reached at that place at about 6 a.m. He said that as a result of the accident, he suffered certain injuries to his head, was not conscious after the accident and was taken to the hospital. A.S.NOS.239/95 & 65/96 () 3 PW5 is the driver of another tanker lorry which belonged to the brother of the plaintiff. That tanker lorry was brought to the site to shift the oil which was in the vehicle involved in the accident. This is the statement of PW5. Yet he does not say anything about the presence of the gutter or the possibility of the gutter being the cause for the accident. This fact was noticed by the court below. DW1, the Assistant Engineer gave evidence regarding the fact that damage was caused due to the rash and negligent driving of the vehicle and proceedings were initiated by the State for recovery of certain losses from the plaintiff and that the plaintiff did not respond to notice seeking payment of such funds. 5. The court below after adverting to the evidence specifically noticed that PW4, a photographer who took Ext.A15 series photographs, said that the collection of water in a tarred road will help a prudent man to note the existence of any gutter therein. The court below noted that there is no evidence to A.S.NOS.239/95 & 65/96 () 4 prove that there was heavy rain at the time of the incident. Apart from the interested testimony of PW1, the owner of the vehicle, PW2, the driver did not have such a case. With all these materials, the court below went on to hold that the fact would be that the accident occurred because of the negligence of PW2, the driver, coupled with the presence of the gutter. Based on such finding, the court below passed a decree for damages to the extent of one half of the amount actually found due. The appeal by the plaintiff (A.S.No.65/1996) is for the remaining amount claimed in the plaint and the appeal by defendants 1 to 5 (A.S.No.239/1995) is against the decree to the extent granted. 6. The formidable defect to the sustainability of the suit is the absence of the State of Kerala on the array of parties as the defendant. No attribute is made against defendants 1 to 5 personally to fasten them with any liability except as agents of the State. On this short ground, it having been found that defendants 6 and 7 are not liable, the suit ought have been A.S.NOS.239/95 & 65/96 () 5 dismissed. In terms of Order XXVII Rule 5-A of the Code of Civil Procedure, even in cases where a suit is instituted against a public officer for damages or other relief in respect of any action alleged to have been committed by him in his official capacity, the Government shall be joined as a party to the suit. In terms of Order I Rule 9 of the CPC, what is curable is only misjoinder of parties or non-joinder of proper parties, but not non-joinder of necessary parties. Therefore, the suit from which this appeal arises ought to have been dismissed, of course, after giving an opportunity to implead. 7. The court below, disbelieving the version of PW2, had found support in the statement of the photographer, PW4 that collection of water in a tarred road will help a prudent man to note the existence of the gutter in the road. PW5, who, knowing about the incident, came to the spot to remove the oil from the overturned tanker lorry, did not say anything about the presence of the gutter, which he, going by the normal course of human A.S.NOS.239/95 & 65/96 () 6 conduct, ought to have seen. The reason why the tanker lorry overturned and other details relating to the accident are matters to be established by the plaintiff to sustain his suit for damages. No report from any competent and expert authority like the Motor Vehicles Inspector regarding the vehicle and other details is forthcoming. The court below has essentially fastened the liability of the defendants on the assumption that there was a gutter in the location and it is the presence of that gutter which contributed to the accident. There is really no legal evidence in respect of these two findings. We say so because DW1, the Engineer, who was in charge of the work, specifically stated in his deposition that there was no gutter. The allegation that there was a gutter was denied by him. He also denied the suggestion in cross examination that immediately after the incident, the gutter was filled up using surfacing metal. Ext.A15 series of photographs taken by PW4 and proved by him in court essentially shows that if at all there was any gutter, it was not across the entire road. The evidence clearly suggests that if A.S.NOS.239/95 & 65/96 () 7 PW2 had taken reasonable care and caution, expected and due from a driver possessing a heavy duty driving licence, the accident would not have occurred in the manner stated by the plaintiff. 8. The plaintiff having admittedly obtained amounts from the insurer, better evidentiary materials in the form of mahazars, letters, report etc. could have been placed on record. There is no reliable evidence on the basis of which the court could have concluded as to any loss that was caused by reason of the alleged spilling of oil from the tanker as pleaded by the plaintiff. Ultimately, the decree granted by the court below is essentially only for compensation towards the leakage of oil by attributing it to a loss presumably caused by the overturning of the vehicle after falling into the gutter. 9. The quality of evidence of record, in no manner, supports the decree granted by the court below, that too, A.S.NOS.239/95 & 65/96 () 8 without the State of Kerala on the party array in spite of a specific objection being raised in that regard, as to non-joinder of necessary parties by defendants 6 and 7. For the aforesaid reasons, A.S.No.239 of 1995 is entitled to succeed and A.S.No.65 of 1996 is liable to be dismissed. Accordingly, we allow A.S.No.239 of 1995 and dismiss A.S.No.65 of 1996. Decree in O.S.No.237 of 1992 on the file of the Principal Sub Judge, North Paravur is set aside and that suit is dismissed. Parties are, however, directed to bear their respective costs. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NOS.239 OF 1995 & 65 OF 1996 () ----------------------------------- J U D G M E N T 8th day of June, 2010 A.S.NOS.239/95 & 65/96 () 10