THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No. 1325 of 2002 Date: 14-02-2011 Between: Singareni Collieries Company Limited, Rep. by its General Manager, Srirampur. …..Appellant And Sanam Satyanarayana and two others …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.No.1325 of 2002 JUDGMENT: The 1st defendant in O.S.No.18 of 1994 on the file of Senior Civil Judge, Asifabad, is the appellant herein. The suit was filed for recovery of a sum of Rs.4,00,778/- for the damages caused to the lorry belonging to the plaintiff. Allegations in the plaint goes to show that the plaintiff is the owner of the lorry bearing No.ADA 1556. The lorry was engaged for transport of coal to the 2nd defendant. On 25.5.1994, the said vehicle has gone to the bunker of SRP-3 of the 1st defendant for loading of the coal. When the said vehicle was stationed under the bunker for loading at about 7.30 p.m., the bunker collapsed and fell down upon the vehicle crushing and completely destroying the vehicle. The construction of the bunker was defective and it was not good and the 1st defendant has not taken any precautions to give sufficient strength to the bunker and consequently, the bunker has collapsed and the vehicle was damaged. On 7.9.1994 a joint inspection was done by the Executive Engineer of the 1st defendant company and the Surveyor of the insurance company also assessed the damages @ Rs.2,87,728/-. There are some missing parts and the total amount of damages comes to Rs.3,08,528/- and the plaintiff also suffered loss of earnings Rs.750/- per day from 25.5.1994 to 25.9.1994, total 123 days, which comes to Rs.92,250/-. When the claim was made to the 1st defendant company, no action was taken and therefore, the suit was filed against the defendants. The 2nd and 3rd defendants remained ex-parte and the 1st defendant filed a written statement admitting the ownership of the lorry by the plaintiff and also the said lorry was engaged for transport of coal and further that on 25.5.1994, the vehicle has gone to the bunker at SRP-3 of the 1st defendant and when the vehicle stationed under the bunker, it has collapsed and fell on the vehicle. There was heavy gale and due to that, the bunker collapsed and therefore, there is no liability to the 1st defendant. It was further pleaded that the vehicle was hired by defendant Nos.2 and 3 for transport of coal from the 1st defendant and therefore, there is no liability, and if any amount is payable, it shall be paid by the defendant Nos.2 and 3 and as such the claim is not maintainable. Accordingly, the 1st defendant pleaded for dismissal of the suit. Basing on the pleadings, the following issues were framed. (i) Whether the plaintiff is entitled for Rs.4,00,778/- towards damages, daily earnings and missing parts of vehicle No. ADA 1556 from the defendants? (ii) Whether the plaintiff is entitled for Rs.750/- per day as daily earnings on the vehicle No. ADA 1556 from 25.9.94 till its realisation of Rs.4,00,778/- from the defendants? (iii) Whether the bunker is in sound condition and defendant is negligent in maintaining the bunker in good condition? (iv) To what relief? On behalf of the plaintiff, P.W.1 to P.W.4 were examined Ex.A-1 to A-25 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and marked as Ex.B1 to Ex.B-3. After considering the evidence on record, the learned Senior Civil Judge, Asifabad, decreed the suit and aggrieved by the said judgment, the present appeal is filed. The points that arise for consideration are:- (i) Whether there was any negligence on the part of the 1st defendant and if so, whether the damages were caused due to the negligence of the 1st defendant? (ii) Whether the 1st defendant, who is the appellant herein, is not liable to pay the compensation as claimed? (iii) Whether the judgment and decree passed by the learned Senior Civil Judge, is legal and permissible? There is no denial about the fact that the lorry belonging to the plaintiff was engaged for transport of the coal and on 25.9.1994, when it came to the premises of the 1st defendant and when it was stationed under the bunker at S.R.P-3, the bunker has collapsed and lorry was damaged. It is also his evidence that apart from this lorry, another lorry was also damaged and three persons have died. Therefore, the factom of the collapse of the bunker and the consequential damages which were caused in the premises of the 1st defendant, cannot be disputed. The learned counsel for the appellant seriously contends that there is no defect in the construction of the bunker and as there was heavy gales, the bunker has collapsed and caused the incident and pleaded that it is an act of god. Further it was contended that the lower Court having found that the burden generally is on the plaintiff to prove the negligence the circumstances were taken into consideration and burden was cast on the defendant and decreed the suit. The contentions raised by the learned counsel for the appellant sans facts available on record. It is to be noted that a bunker which has been constructed recently is to collapse for the gales, one can understand the quality of the construction which speaks by itself. Even otherwise the report of the Engineer under Ex.B.3, which was submitted as a guidance for further precautions to be taken clearly goes to show that there is a need for putting up supporting pillars and strong measures for the protection of the bunker. This document can be seen from Ex.B.3. Suggestions can be extracted here which by themselves show the defects available in the construction. “To avoid recurrence of similar accidents in future, you are requested to take the following preventive measures: (a) The structure of the bunker shall be well supported from all four sides to prevent tilting. (b) Any welded joint in the main columns of the bunker shall be additionally strengthened. (c) A shelter of strong construction shall be provided in the vicinity of such areas for people to take shelter at times of strong winds/gales. Therefore, from the report Ex.B.3 given by Director of Mines Safety, clearly goes to show that the quality of the construction is not proper. Furthermore, as rightly found by the lower Court that there was another bunker which was erected much prior is in tact and the newly constructed present bunker has collapsed. These are all circumstances which come within the principle of res ipsa loquitur, where the things speak of themselves and the defendant cannot avoid the negligence and the cause of accident. When the lorries are under bunker, naturally when they have collapsed, either D-2 or D-3 have nothing to do with the cause of the accident. The cause of accident is squarely within the failure of the duty of care of the 1st defendant. It is not a case where any wrong has been done in driving of the vehicle or when the vehicle was in use to attract liability of D-2 and D-3 or the insurance company which is sought to be canvassed by the counsel for the appellant. It is not a case where the lorry entered into the premises of the 1st defendant without authority whereunder it can avoid the liability, but in this case, the lorry was engaged for transporting of the coal from the premises of the 1st defendant under a valid contract and therefore, it cannot be said that the lorry which has entered into the premises is free from liability towards the 1st defendant. Therefore, what all the wrongs and damages that were done to the vehicle within the premises of the 1st defendant, they have to be compensated and paid by the 1st defendant alone. The contract between D- 2 and D-3 to supply the material, is not a contract to compensate them when for the fault of the 1st defendant, any damage or loss is caused. Therefore, from the facts and circumstances of the case, there is sufficient material that there was negligence and failure on the part of the 1st defendant and the factum of collapse of a bunker in the premises of the 1st defendant clearly goes to show that they have not taken any care and therefore, the incident happened. When the damages were caused due to the negligence of the 1st defendant and its employees, it cannot avoid the liability of the 1st defendant. The claim to be made against the insurance company does not arise in this case. If at all there is a policy insurance covering, the 1st defendant can pay the same and collect the same from insurance company, but, it cannot avoid its liability. Counsel for the 1st respondent filed cross-objections contending that the loss of income was not properly assessed by the lower Court and further that the amount of Rs.20,800/- about missing parts was not granted by the lower Court. At any rate, the evidence adduced on behalf of the plaintiff is not sufficient as found by the lower Court and it has given a reasonable assessment of the loss of damages at Rs.375/- per day and it is not at all times that the lorry will be engaged in transport business and giving lorry to all these things, but lower Court has arrived at the amount. I do not feel it is a case where any further interference is called for. So far as the missing of the parts is concerned, the Surveyor, who has given the report was examined. But, the evidence on record does not show that after the accident, the parts which were found to be missing has taken place and at any rate, when the lorry was involved in the accident, vehicle was damaged, it is the duty of the plaintiff also to see that somebody takes care of it. Therefore, there can be no liability for that amount against the 1st defendant. The cross-objections are dismissed. No costs. Therefore, from the facts and circumstances available on record and also the factum of the damages assessed by the competent people and also the fact that Ex.B-1 itself speaks of some remedial measures and preventive measures to be taken, clearly suggests that it is a case of clear negligence on behalf of the employees of the 1st defendant and therefore, the decree and judgment passed by the learned Senior Civil Judge, Asifabad, does not call for interference. The appeal is dismissed with costs. ___________________________________ JUSTICE N.R.L.NAGESWARA RAO Dt: 14.2.2011 Tjmr THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO. 1325 OF 2002 DATE: 14.02.2011