IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 AS.No. 867 of 1998() ---------------- OS.521/1993 OF II ADDL.SUB COURT, TRIVANDRUM ................. APPELLANT / DEFENDANT -------------------------------------- STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. P.K. BABU RESPONDENTS / PLAINTIFFS ----------------------------------------- 1. L. KOSHY, S/O. LAWRANCE, T.C.12/1224, LAW COLLEGE JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. 2. SMT. K. RADHA, W/O. L. KOSHY, T.C.12/1224,LAW COLLEGE JUNCTION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM. R1 & R2 BY. ADV. SRI.B.R.SHYAM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 867 OF 1998 = = = = = = = = = = = = = = = Dated this the 27th day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvananthapuram in O.S.521/93. The suit is one for damages. It is the case of the plaintiffs that their son who was returning from the school fell on a pit in the compound of Vikas Bhavan and was injured by burns and later succumbed to the injuries. It is the case of the plaintiffs that had the authorities taken appropriate care and precaution the child would not have fallen in the pit resulting in the tragic death. The plaintiffs have claimed damages of two lakhs. 2. The defendants on the other hand would contend that there was no thoroughfare through A.S. 867 OF 1998 -2- the compound and the pit was situated in a corner of a compound and therefore there was no negligence on the part of the authorities and so the plaintiffs are not entitled to any damages. 3. On an analysis of the materials the trial court granted a decree for Rs.60,000/- with 12% and it is against hat decision the State Government has come up in appeal. 4. Heard. Unfortunately the case deals with the death of an young boy who sustained severe burn injuries when he had fallen in a pit situated in the Vikas Bhavan, Thiruvananthapuram as a result of which he sustained severe burn injuries and succumbed to the same on 16.2.91. The boy was born in 1983 and died in 1991. It is the case of the plaintiffs that inhabitants of the locality and public used the way in the Vikas Bhavan compound for reaching the other A.S. 867 OF 1998 -3- side and it has not been objected to by the authorities and as the pit was so near the way without any cover or indication the fall had taken place. It is true that as found by the trial court there is nothing to show that it is a public pathway. But in our country it is a practice, whenever there is a way and doors were opened the public had a tendency to use that shortcut to reach the other side. There are no security guards or indication preventing the public from entering through that gate. PW2 who was a councillor at that point of time had deposed before the Court that the said passage had been used by the inhabitants for more than a decade in order to go to P.M.G or to the Law College. He had also deposed that the pit was so close to the way and further “............. ................................................ A.S. 867 OF 1998 -4- He has spoken to the effect that papers were dumped into the pit and the fire was only on the bottom portion of the pit and since the entire pit is covered with paper one may not be able to see or identify the existence of fire in that pit. So as the pathway and the pit is on the same level the child had fallen into the pit, went inside and suffered severe burn injuries. 5. Time and again it has been held by the Courts that contributory negligence cannot be attributed on young children. The age of 8 years is a playing age and when they are moving out they will be at a different world. So the principle of contributory negligence cannot be attributed in this case. When this passage is used by the inhabitants of the locality and the children for their ingress and egress there was a duty cast upon the authorities either to A.S. 867 OF 1998 -5- prevent the entry or take sufficient precaution so as to avoid a danger of this nature. It is nothing but natural when the passage and pit is on the same level and on the top of the pit lot of papers are dumped one may not know about the existence of the pit, especially children and it is exactly what had happened resulting in the death of the child. Therefore just because the Government have succeeded in proving that it is not a public pathway one cannot jump to the conclusion that all is well with the Department. The Department did owe a duty to prevent these types of eventualities by either putting absolute restrictions regarding the entry as a thoroughfare or at least would have dug the pit at a distance away from the pathway so that these types of calamity would not have happened. Therefore I find there has been negligence on A.S. 867 OF 1998 -6- the part of the Department. Under the law of torts negligence can be by doing a positive act or refusing to do a positive act which is contemplated. Therefore I concur with the finding on negligence given by the trial court. 6. Now the next question is regarding the damages. Much water has flown especially after the liberalization of compensation under the provisions of the M.V.Act. The father was aged 41 years and the mother was aged 39 years at the time of the incident. The child was only aged 8 years. Even if it is taken for granted that the child would have obtained some employment at the age of 21 the father would have been 54 and the mother would have been 52 when the child could have begun to earn. Being a son he would have married after four or five years, i.e. at the age of 25 or 26 years and thereafter the A.S. 867 OF 1998 -7- dependency rate would have come down considerably. Applying the principle laid down by the Hon'ble Supreme Court of India in Sarala Varma's case[2009 ACJ 1298(Sarala Varma v. Delhi Transport Corporation)] and taking into consideration the age of the parents the appropriate multiplier to be used is 11. For the first 5 years I take the dependency rate at the rate of Rs.500/- per month which would come to Rs.30,000/-. Thereafter I reduce it to Rs.300/- for the next six years and it would come to Rs.21,300/- thus making a total damages of Rs.51,600/-. The compensation has to be fixed at Rs.51,600/- for the reason that under no other head increase of award amount is demanded and there is no challenge regarding the same by the parents of the child. So far as the interest is concerned it is only reasonable that A.S. 867 OF 1998 -8- 9% interest is granted from the date of suit. 7. In the result the judgment and decree are modified and the plaintiffs are given a decree for realisation of Rs.51,600/- with 9% interest on the said sum from the date of suit till realisation with proportionate costs and the appellant namely the defendant in the suit is liable to pay the same. Direction for reimbursement of the Court fee as ordered by the Court below will remain so far as it relates to the suit. In the appeal, the parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 867 OF 1998 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 867 OF 1998 = = = = = = = = = = = J U D G M E N T 27th September, 2010.