HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A.No.39 of 2000 Date: 01-4-2011 Between 1. The Chairman, A.P.S.E.B., Khairatabad, Hyderabad and 2 others … Appellants/Defendants and 1. Gulam Mohammed Khan and another … Respondents/Plaintiffs HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A.No.39 of 2000 Judgment: Aggrieved by the judgment and decree dated 11-9-1998 in O.S.No.25 of 1990 on the file of the IV Senior Civil Judge, City Civil Court, Hyderabad the appellants, who are the defendants in the suit, filed this appeal under Section 96 read with Order XLI, Rule 1 of C.P.C., whereby the said suit filed by the respondents was decreed for a sum of Rs90,000/- towards damages with costs on account of the death of Gulam Ahmed Khan (hereinafter referred to as ‘the deceased’) due to the negligence of the staff and workers of the appellants herein. 2. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit. 3. The relevant facts leading to this appeal briefly are as follows: On 06-02-1986 the deceased, who was the husband of the 2nd plaintiff and father of the 1st plaintiff, was proceeding on his cycle from Bazarghat to Niloufer Hospital side and when he reached Mulgi No.11-5-305, one electric pole has fallen on him which was being removed by the defendants 1 to 3 and the 4th defendant who was a contractor, due to which the deceased died on the spot due to the injuries to head and skull. The body of the deceased was sent to the hospital for post-mortem examination. By the date of death, the deceased was aged about 54 years. He was an Ex-Jagirdar and was hale and healthy and doing fruit business and earning Rs.1,500/- to Rs.2,000/- per month. As he was in a sound health, general expectation of the life span of the deceased was 70 years and he would have been earning till the age of 65 years. The deceased left behind his wife, four sons and a daughter. The 4th defendant is an agent for the defendants 1 to 3 for removing the electric pole. Therefore, the defendants 1 to 3-Board being the master and the 4th defendant being the contractor is its agent. During the service rendered by the 4th defendant to the defendants 1 to 3 the death of deceased occurred due to the negligence of the defendants. Therefore, all the defendants are jointly and severally liable to pay compensation of Rs.90,000/- towards damages. 4. The defendants 1 to 3 filed a written statement denying the liability. It is further contended that on the request of the authorities of the Municipal Corporation of Hyderabad for road widening, the LT lines, which had been causing obstructions to the smooth flow of traffic, were being dismantled in Bazarghat road from 04-02-1986 to 06-02-1986 near House No.11-4-731. The contractor, who was carrying out the dismantling work, had taken all the necessary precautions to caution the public to keep away from the working area. The red flat indication and display placards were exhibited. On 06-02-1986 while the lines were being dismantled, one of the LT poles at House No.11-4-731 had suddenly fallen from its upright position. While the work was in progress, the deceased who came on a cycle was asked not to proceed further and was shown the work and warning placards. In spite of having been objected he went ahead on the cycle, due to which he died. 5. It is further contended that the staff at the work site took all the precautionary steps to caution, warn and prevent the public. As the pole had got rusted below the ground level it has fallen down accidentally and there was no negligence on the part of any working staff members at the work site and the defendants further denied the age and earnings of the deceased and further contended that they are not liable to pay damages as the injury caused to the deceased was accidental and unintentional. 6. The 4th defendant contended that he is not aware about the death of deceased and also contended that he was aged 65 years and that he was unemployed and used to sit at the electric repair shop of his son. He also denied the age and earnings of the deceased. It is contended that the 4th defendant is not liable to pay any damages. If at all there is any liability, the other defendants i.e., defendants 1 to 3 are only liable to pay damages. 7. On the basis of the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiffs are entitled for the recovery of suit amount as claimed, as prayed for ? (2) To what relief ? 8. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A-1 to A-10 were marked. On behalf of the defendants, D.W.1 was examined and no documents were marked. 9. Considering the oral and documentary evidence adduced by both the parties, the trial Court decreed the suit as prayed for i.e., for Rs.90,000/- with costs. However, the trial Court has not granted any subsequent interest. 10. Aggrieved by the said judgment and decree passed by the trial Court, the defendants 1 to 3, who are the officials of the Board, filed this appeal. 11. The points for consideration in this appeal are : (1) Whether the death of the deceased was due to the negligence of the defendants 1 to 3 ? (2) Whether the plaintiffs are entitled for the suit amount of Rs.90,000/- towards damages ? 12. Point No.1:- According to the plaintiffs, the electric pole broke and fell on the deceased only due to the negligence of the defendants, as a result of which the deceased received injuries to head and skull and died on the spot. In the written statement, the defendants 1 to 3 have admitted the death of deceased due to fall of the electric pole on him while he was proceeding on a cycle. Therefore, the defendants 1 to 3 contended that the working staff of the defendants took all precautionary steps to caution and warn the public and the red flag indication and display placards were also exhibited indicating that the workers are dismantling the poles. The defendants further contended that the deceased was prevented from proceeding further. In spite of that, he has proceeded ahead on his cycle resulting injury to his head due to sudden fall of the pole on him. The defendants have clearly admitted in the written statement that the pole had got rusted below the ground level and therefore falling of the electric pole was only accident and there was no negligence on their part. 13. P.W.1, wife of the deceased, has stated in her evidence about the death of the deceased due to fall of electric pole and she also stated in her evidence that the deceased was hale and healthy at the time of death and no precautionary measures were taken to prevent the persons from going on that road. She also stated that she gave legal notice before filing of the suit and as there was no reply she filed the suit. 14. P.W.2, son of the deceased, also deposed on the same lines and he also stated that the death of his father was due to the negligence of the defendants. 15. The plaintiffs examined one Syed Nazimulla, an eyewitness to the incident as P.W.3. In the evidence P.W.3 has stated that on 06- 02-1986 while he was standing at Srinivasa Cycle Taxi due to rainfall, he noticed an electric pole had fallen on an old man, due to which he died on the spot. The evidence of P.W.3 was not challenged by way of cross-examination. 16. The defendants examined D.W.1, who is the contractor for the work. He has stated in his evidence that while his employees were removing the electric pole they had encircled the place with hands and stopped people coming to the spot, but the deceased came on a cycle physically pushed aside the hands of his employees and moved ahead where he had been prohibited from moving, even before the pole fallen down. In the cross-examination he has stated that he was not present at the time of incident and does not know how the death of the deceased occurred. 17. Thus, it is evident from the evidence of D.W.1 that he was not at all present at the time of incident and therefore his evidence that his staff prevented the deceased from moving further and that there was no negligence on the part of their employees, cannot be believed. 18. In the written statement, the defendants 1 to 3 have clearly admitted that the pole, which has fallen on the deceased, had got rusted below the ground level. It is, therefore, clear from the admission by the defendants 1 to 3 that the defendants have not taken any precautionary measures, as stated by D.W.1. Except the evidence of D.W.1, there is no other evidence on behalf of the defendants to prove that the workers of the defendants closed the road and prevented the passengers from going through that road while the work is in progress. The evidence of P.W.3 clearly shows that at the time of incident it was raining. Therefore, it can safely be inferred that the workers who were attending the work also did not take any precautions from preventing the deceased to go ahead. If really the staff and workers of the defendants prevented the deceased he would not have proceeded further inviting harm to himself. 19. When the defendants are removing the electric poles in a busy locality it is their duty to close the entire passage till the completion of the work. The fact that the deceased proceeded on a cycle itself shows that the road was not closed preventing the public to proceed further when the workers of the defendants are removing the poles. Further, the defendants are not expected to fall down the poles on the busy road and they are expected to take all precautions to see that the electric pole would not fall on the road by using ropes and other material. Had the staff and workers of the defendants taken any precautions, the rusted pole would not have fallen on the deceased who was proceeding on the road, innocently probably without noticing the execution of the work by the defendants. The evidence of P.W.3 was not challenged by any of the defendants though he has clearly stated that the electric pole had fallen on the deceased when he was proceeding on the road on a cycle. 20. Considering the evidence of the witnesses, the trial Court has rightly held that the defendants are negligent and are liable to pay damages to the plaintiffs, who were the legal heirs of the deceased. 2 1 . Point No.2:- So far as the quantum of damages is concerned, it is the case of the plaintiffs that the deceased was aged 54 years and was earning Rs.1,500/- to Rs.2,000/- per month. In view of the present longevity of the life of the individuals, a person who is hale and healthy would be able to earn Rs.3,000/- per month by doing any kind of work up to the age of 70 years, that too by doing fruit business the deceased would have earned at least Rs.3,000/- to Rs.4,000/- per month. Therefore, I am of the view that the quantum of damages claimed by the plaintiffs is also low and there are no grounds to interfere with the quantum of damages already granted by the trial Court. The plaintiffs are, therefore, entitled for damages as prayed for. 22. The trial Court did not award any interest on the damages. The learned counsel for the respondents-plaintiffs submitted that when the death of deceased occurred due to the negligence of the defendants the claimants are entitled to interest on the damages/compensation awarded by the Court. In support of his contention, he placed reliance on a judgment in Union of India v. Smt. Nalini Parida[1], wherein while considering the aspect of payment of interest, it was observed that the Railway Tribunal coming under the definition of “Court” can exercise its discretion to award compensation with pendente lite and future interest. 23. Though the trial Court awarded damages to the plaintiffs as prayed for, the judgment of the trial Court is silent about the interest portion. Admittedly, the death of the deceased was occurred due to the negligence of the defendants in the year 1986. So far the legal heirs of the deceased, who were depending on his income, were not granted any compensation in spite of the decree passed by the trial Court. The defendants being the Board ought to have satisfied the decree amount, which is meager when a poor man died on the spot due to the negligence of the workers of the defendants. The defendants ought to have paid some compensation even in the absence of any suit. They did not respond to the legal notices Exs.A-1 to A-3 got issued by the plaintiffs claiming damages. Neither the defendants paid any compensation nor issued any reply. 24. In view of the above facts and circumstances, I feel it just and reasonable to award interest on the amount of damages at the rate of 12% per annum at least from the date of accident i.e., 06-02-1986 till the date of decree, though the plaintiffs have not chosen to file any cross-appeal with regard to the payment of interest, may be due to the financial position of the plaintiffs. 25. In the result, the appeal is dismissed, as indicated above, with costs. _____________________ V.SURI APPA RAO, J. 01st April, 2011. Ak HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A.Nos.39 of 2000 (P.D. Judgment) 01st April, 2011. [1] A.I.R. 2009 ORISSA 56