IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 412 of 2006 Date of Decision : May 4 , 2010 H.P. State Forest Corporation …Appellant-defendant v. Abhilasha & others …Respondents-plaintiffs. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. B. M. Chauhan, Advocate. For the respondents . Mr. Suneet Goel, Advocate Sanjay Karol, J (Oral). Defendant is the appellant and the plaintiffs are the respondents. During the course of the appeal, one of the original defendant master Sushil Kumar expired. 2. Plaintiffs filed a suit for damages for recovery of a sum of Rs.6 lacs against the defendant. 3. As per the plaint Sh. Hira Singh husband of Smt. Abhilasha Kumari, plaintiff No.1, father of Sushil Kumar, plaintiff No.2 and Kuldip Kumar, plaintiff No.3, was a registered Labour Supply Mate. For the year 1997-98, the defendant awarded him a contract for extraction of resin from the forest Division, Nerva, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 H.P.. On 27.7.1997 he had gone to the Forest Depot for weighing the resin. Along side the Depot of the Forest Department, wooden sleepers were stacked in the shape of a shed. At about 1.35 p.m., on 27.7.1997 the shed suddenly fell as a result of which Sh. Hira Singh suffered serious injuries. He was rushed to the hospital but died on the way. The matter was reported to the police. From all sources Sh. Hira Singh was having income of Rs.60,000/- per month. Half of the same was utilized by him for maintaining his family. Plaintiffs filed Civil Writ Petition No. 365/1998 before this Court which was decided on 12.10.1998. In the said petition, interim compensation of Rs.50,000/- was awarded to the plaintiffs and liberty was granted to file a civil suit. 4. Defendant resisted the suit inter alia on the ground that there was no negligence on their part. Hence, they were not liable to compensate the plaintiffs. 5. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the death of Hira Singh caused because of the negligence of the defendant corporation and its forests employees? ..OPP 2. in case issue No.1 is proved in affirmative, to what amount of compensation the plaintiffs are entitled? ….OPP 3. Whether the suit filed by the plaintiffs is not maintainable? …..OPD 4. Whether the plaint is liable to be rejected under the provisions of Order 7 Rule 11-D of the Code of Civil Procedure? ……OPD 5. Whether the suit has not been correctly valued for the purpose of court fee and jurisdiction? 3 …….OPD 6. Whether the plaint has not been correctly verified as per provisions of Code of Civil Procedure, if so, its effect? ……OPD 7. Whether the shed in dispute was not constructed or did not belong to the defendant corporation, if so its effect? ….OPD 8. Relief. 6. In all, plaintiffs examined two witnesses and in rebuttal defendant also examined two witnesses. Keeping in view the decision rendered by this Court in Civil Writ Petition the Court below held the defendant to be negligent. The trial Court accepted the income of the deceased to be Rs.40,000/- per annum out of which he was contributing Rs.25000/- per annum towards his family. By taking the age of the deceased to be 40 years, a multiplier of 15 was applied and compensation was determined to be Rs.3,75,000/- plus Rs.25,000/-. On a sum of Rs.4 lacs, plaintiffs were also held entitled to interest @6% per annum from the date of the suit till realization of the amount. 7. Heard learned counsel for the parties and also perused the record. 8. There is no dispute that the defendant’s witnesses, namely, Daulat Ram (DW-1) and Tulsi Ram (DW-2) have tried to prove the fact that the defendant was not negligent as the shed in question was actually not set up by them. Even according to DW-2 the resin Contractor used to visit the Wood Collection Depot and the sheds for collection of woods was constructed by the 4 labourers of the wood collection Contractor. No doubt he has stated that the Forest Department had nothing to do with the construction of the sheds but the fact of the matter is that the defendant allowed its Contractor to construct the sheds in the forest. That apart, while deciding the civil writ petition this Court in terms of judgment dated 12.10.1998 (Ext.P-1) has held as under:- “Now the question of negligence may be examined in the present case. Precisely, the submission of the petitioners is that the respondent-Corporation committed negligence in maintaining the Forest Depot where late Hira Singh had gone for weighing the resin. It has been admitted by the respondent-Corporation that the timber depot which had fallen down was temporarily constructed by the labourers without the permission of the Corporation officials. If it was so, it was the duty of the officials of the respondent-Corporation not to have allowed putting up a temporary shed by stacking sleepers and made use of it as resting shelter. The respondent-Corporation has submitted that Hira Singh died in the timber shed where he was not required to go and take rest. In fact, the case of the petitioners alleged in the writ petition is that Hira Singh who was a Resin Contractor of the respondent-Corporation had gone to the Forest Depot Shed for weighing the resin and the said shed fell down resulting in serious head injury to him culminating his death. The said shed was constructed by piling sleepers without any proper and necessary precautions. In a case like this, the doctrine of res ipsa loquitur clearly applies. The officials of the respondent- Corporation were prima facie negligent in not maintaining and up-keeping the shed in a proper condition and, therefore, the respondent-Corporation is vicariously liable 5 for negligence/ fault of its employees. There can be no doubt whatever that the officials of the respondent- Corporation were negligent and fail to perform their duties enjoined on them by law in properly maintaining the forest depot shed. The finding of negligence on the part of the officials of the respondent-Corporation has been arrived at primarily on the allegations made in the writ petition which have not been controverted specifically in the reply by the respondent-Corporation. The respondent-Corporation has admitted that Hira Singh was their Contractor and was extracting resin from the standing trees and thereafter resin filled tins were to be supplied to the respondent- Corporation. The petitioners have specifically alleged that Narain Singh brother of late Hira Singh lodged a report in Police Chowki, Nerwa on 5.8.1997 giving the complete details of the accident but no action appears to have been taken by the police on the said report. In the totality of the facts and circumstances of the present case, we are of the view that the petitioners are entitled to maintain this writ petition for claiming compensation on account of the death of Hira Singh. The question is now about the quantum of compensation. The petitioners have not placed on record adequate material for the grant of full relief in this writ petition. They have only stated that they were solely dependent upon the income of Hira Singh who was an income tax payee and besides forest contractor, he was working as H.P.PWD contractor also. They have not placed on record any material as to what was the income of late Hira Singh and how much amount he was spending for maintaining his family members and further what was the pecuniar loss suffered by the petitioners due to the death of Hira Singh. In our view an amount of Rs.50,000/- would be appropriate 6 compensation as interim measure to be awarded to the petitioners in the present case. Accordingly, we direct the respondent-Corporation to pay a sum of Rs.50,000/- to the petitioners. The said amount shall be deposited in this Court within four weeks from the date of decision of this case. On deposit, a sum of Rs.20,000/- shall be paid to Smt. Abhilasha, widow of Hira Singh and the balance amount of Rs.30,000/- shall be put in fixed deposit in a Nationalized Bank in the names of two minor sons, namely, Sushil Kumar and Kuldip Kumar in equal share till they attain majority. Smt. Abhilasha, mother and natural guardian of the minor sons, shall be entitled to get quarterly interest on the said amount and spend the same for their up-keep, maintenance and education etc.” 9. In this view of the matter it cannot be held that the defendant is not negligent. There is no dispute that Sh. Hira Singh was actually awarded the contract to extract resin in the forest where the incident took place. The same also stands proved by the plaintiffs’ witnesses, namely, Abhilasha Kumari (PW-1) and Sh. Kirpa Ram (PW-2). Considering the entire material on record it cannot be said that the Court below erred in deciding issues No. 1 & 7 in favour of the plaintiffs. 10. Next comes the question of adequacy of compensation awarded by the Court below. No doubt, PW-1 has deposed that her late husband was earning Rs.50,000/- per month and spending Rs.30,000/- on them but there is no documentary evidence to prove the said fact. However, one cannot loose sight of the fact that Sh. Hira Singh was working as a labour supply contractor with the defendant Corporation. He was having some 7 income. He was the sole bread earner of the family. For the purpose of determining the compensation payable to the plaintiffs the Court below has only taken a meager amount of Rs.25,000/- per annum to be the income of the deceased. The incident took place in the year 1997. Even at that time the State Government was paying wages to a daily waged employee at a sum of Rs.60- 65 per day. Hence the contention raised by the defendant that the income determined by the Court below for awarding compensation is on the higher side needs to be rejected. There is no cross-examination to the fact that the age of the deceased was approximately 40 years. This fact is also not disputed by the defendant during the course of hearing. Hence the multiplier of 15 adopted by the Court below on the basis of which compensation was determined and damages awarded cannot be said to be on the higher side. 11. No illegality, perversity or irregularity in the impugned award could be pointed out from the record. The Court below has correctly appreciated the material on record in its entirety. Hence the present appeal without merit is dismissed. CMP Nos.139 & 140 of 2010 Not pressed at this stage. May 4, 2010. (Sanjay Karol) (rana) Judge.