HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.338 OF 2005 JUDGMENT: The 1st defendant in O.S.No.60 of 2001 on the file of the Senior Civil Judge, Peddapalli, is the appellant herein. 2. The suit was one filed by the parents of the deceased Charan, who was aged about 9 years, claiming compensation consequent on the death of the deceased Charan. 3. According to the case of the plaintiffs, on 18.10.2000 at about 7.30 a.m., the deceased went to answer calls of nature at Sulabh complex in the premises of the defendants and fell into the septic tank, which was kept open without closing with any cover negligently, and died. The above complex is constructed and maintained by the appellant. At the instance of the defendants, after such incident the dead body of the boy was brought out from the septic tank. The deceased was only elder son of the plaintiffs, who have got a daughter. They have lost the love and affection. The deceased was studying and would have earned Rs.4,000/- per month. The plaintiffs claimed a sum of Rs.5,00,000/- as compensation. 4. The 1st defendant filed a written statement contending that the plaintiffs have to put strict proof of the rashness or negligence attributed to the defendants. It was further pleaded that the Sulabh complex toilets were given on contract for a period of 30 years for maintenance on payment of charges by the 2nd defendant company, and therefore, there is no liability. The manholes are closed and therefore, there is no possibility of the septic tank. The plaintiffs also filed a Pre Litigation Case before the Mandal Legal Services Authority, Peddapalli, claiming only Rs.4,00,000/-. But, however, in the present suit, the claim was made for Rs.5,00,000/-, which is not tenable. 5. On the basis of the above pleadings, the following issues have been framed for trial: 1) Whether the plaintiffs are entitled for damages as prayed for? 2) To what relief? 6. On behalf of the plaintiff, PWs.1 and 2 were examined and marked Exs.A.1 to A.9. On behalf of the defendants, DW.1 was examined and marked Ex.B.1. After considering the evidence on record, the learned Senior Civil Judge, Peddapalli, granted a compensation of Rs.5,00,000/- with interest at 18% per annum. Aggrieved by the said judgment and decree, the present appeal is filed by the 1st defendant. 7. The points that arise for consideration are: 1) Whether the death of the deceased was due to the negligence of the defendants? 2) Whether the compensation granted by the learned Senior Civil Judge, Peddapalli, is reasonable and sustainable? 8. POINTS: The learned counsel for the appellants strongly contends that there is no proof of negligence on the part of the appellant and in fact, the appellant is not liable as it was not maintaining the complex. The fact that the deceased has fallen into septic tank and he was brought out is proved by the evidence of PW.1 and also Exs.A.4 and A.5. Even the evidence of DW.1 does not seriously dispute about the above fact. The Sulabh complex is within the premises of the appellant is also not in dispute. The appellant has not examined any witness, who maintained the Sulabh complex, to show that the septic tank was not open and it was not possible for the boy to fell into it. In fact, the evidence of PW.2 shows that there were several representations about the irregular maintenance of the septic tank. In fact, reliance is placed on Ex.A.9, which is said to be video cassette showing the manhole from which the dead body of the boy was said to have been removed. In view of the above circumstances, it is not fair on the part of the appellant to deny even the place of death of the deceased. I have no hesitation in holding that the lower Court correctly held that the death of the deceased was due to the fall in the septic tank, which was not properly maintained and consequently, there is a negligence on the part of the appellant. The mere fact that the maintenance of the septic tank was given on contract does not absolve the appellant from the liability since the premises is owned by it and it is vicarious liability for any of the tort committed by the persons working under it or working under a contract with them. Therefore, the liability cannot be disputed. 9. The learned counsel for the appellant relied upon the decision reported in New India Assurance Co. Ltd. Vs. Satender and others[1], wherein a case of motor accident for the death of a child, it was held that it is very difficult to determine the compensation and it can only be guess work and granted a compensation of Rs.1,80,000/- in that case. He also relied on a decision reported in Kaushlya Devi Vs. Karan Arora and others[2] the principle under which is the same. In that case, a compensation of Rs.1,00,000/- was granted. But, however, the learned counsel for the respondents relied on cases of medical negligence for determination of the quantum of damages. He also relied on a decision reported in M.P. Electricity Board Vs. Shail Kumari and others[3], where under due to the snapping of a live electric wire, the person died and compensation was determined under principles of strict liability. 10. The principles under the Motor Vehicles Act, which were relied on by the counsel for the appellant are only a guide applicable to the cases of motor accidents. In cases of tortuous liability otherwise than in a motor accident it is not necessary that at all times the principles should be applied, but they can be taken only as a guide. Evidently, in this case, the deceased was said to be the only son of the plaintiffs. But, in this case the conduct of the appellant is not appreciable since it has denied the incident and also the liability when the death was caused in its premises. They have not accepted for the settlement before the legal services authority, it has caused further agony to the plaintiffs. Therefore, taking into consideration the above facts, I feel the ends of justice would meet if the compensation of Rs.4,00,000/-, which was claimed in the Pre-Litigation stage. As the lower Tribunal has granted interest at 18% per annum from the date of suit till the date of realisation, which is evidently not proper. I feel, the ends of justice would meet if the interest is granted at 12% per annum from the date of suit till the date of decree and at 6% per annum from the date of decree till the date of realisation. Accordingly, points are answered. 11. In the result, the appeal suit is allowed in part and the suit of the plaintiffs is decreed for a sum of Rs.4,00,000/- with interest at 12% per annum from the date of suit till the date of decree and 6% per annum from the date of decree till the date of realisation. Each party shall bear their own costs in the appeal. _______________________ N.R.L.NAGESWARA RAO,J Date:21.07.2011 INL [1] (2006) 13 Supreme Court Cases 60 [2] (2007) 11 Supreme Court Cases 120 [3] (2002) 2 Supreme Court Cases 162