IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 AS.No. 918 of 1997() -------------------- OS.296/1993 of ADDL.SUB COURT,PARAVUR .................... APPELLANT(S)/PLAINTIFFS: --------------------------------------- 1. MARAKKAR, CHERUPIILLY VEETTIL, PANAIKULAM KARA, LANGAD VILLAGE, PARAVUR TALUK. 2. FATHIMA, W/O. MARAKKAR, -DO- -DO- BY ADV. SRI.S.K.BRAHMANANDAN RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, KAKKANADU, ERNAKULAM. 2. EXECUTIVE ENGINEER, P.W.D. DIVISION, ERNAKULAM. GOVERNMENT PLEADER SRI. R. LAKSHMI NARAYAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 18/09/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 918 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2009. JUDGMENT Bhavadasan, J, Are the legal heirs of a person, who died as a result of an injury suffered due to the fall in the pot hole on a main road, entitled to receive compensation? If so, who is liable? These are some of the interesting questions thrown up for consideration in this appeal. First on to the facts: Little did the members of the family of late Rafeeq realise what was in store for them on 18.7.1991, when Rafeeq as usual set out on his bicycle to the parallel college to attend classes. On the way back he fell into a pot hole on the road. He suffered a head injury. He was taken to Anwar Memorial Hospital, from where he was referred to Medical Trust Hospital, Ernakulam. He left for the heavenly abode on 20.7.1991 at 6.45 p.m. According to the plaintiffs, the cause of injury was the fall in the pot hole on Kodungallur- A.S.918/1997. 2 Kongorppilly road maintained by the P.W.D. It is pointed out that on several occasions complaints had been preferred to the P.W.D. by the people regarding the pot holes on the road, but that did not yield any result. Had the road been properly maintained, according to the plaintiffs, this mishap could have been avoided. They also pointed out that P.W.D. and the State were under an obligation and duty to maintain the road in proper condition and keep it safe. Their failure to do so has resulted in the accident. 2. Rafeeq, who was a school drop out was studying in a parallel college. He was aged 17 years at the time of the accident. It is claimed that he used to help his father in running a teashop and by his death his parents have suffered a loss of Rs.30/- per day as his services are no more available. They would also say that they had to borrow Rs.25,000/- for the treatment of Rafeeq. They also claimed amounts towards transportation to hospital, funeral expenses etc. Even though compensation due, is much more than Rs.2 Lakhs, the plaintiffs limited their claim to Rs.2 Lakhs with A.S.918/1997. 3 future interest at 12%. 3. The defendants resisted the suit. They denied that there was a pot hole as alleged in the plaint. According to them the road takes a sharp turn at the place of accident and the lower portion near the super elevation, which is at lower level. It was so aligned for the purpose of smooth negotiation of the vehicle. That is described as a pot hole. The accident occurred due to the carelessness on the part of Rafeeq himself. The road had been properly maintained. The allegation that the people had complained about the pot holes on the road is incorrect. There was no such complaint, nor were there any pot holes on the road. The second defendant had taken timely steps to maintain the road properly. There was collection of some rain water on the road. It was unnecessary to provide any sign of caution as there was no danger posed. They denied the quantum of compensation claimed by the plaintiffs. Pointing out that the defendants were not responsible for the accident and that they were not liable to pay A.S.918/1997. 4 compensation, they prayed for dismissal of the suit. 4. The court below raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 4 and Exts.A1 to A12 marked on the side of the plaintiffs. The defendants had D.W.1 examined and Ext.B1 marked. The court below came to the following findings: i) Exts. A8(a) to (d) were not properly proved. ii) There was no evidence to show how Rafeeq had fallen in the pot hole on the road. iii) The person, who accompanied Rafeeq and who was the eye witness is not examined. iv) Plaintiffs were not able to prove how exactly the accident had occurred and that there was a pot hole as alleged. 5. Based on the above conclusions, the suit was dismissed. The said judgment and decree are assailed in this appeal. 6. Both sides were elaborately heard. 7. The following issues arise for consideration: A.S.918/1997. 5 i) Was the death of Rafeeq as a result of the injury suffered in the fall in the pot hole on the road as alleged by the plaintiffs? ii) Are the defendants responsible for the unfortunate incident? iii) What, if any, is the compensation due to the plaintiffs? 8. Issue No.1 : This is the main issue in this case. The court below found that the plaintiffs have miserably failed to establish that the injury was caused to Rafeeq consequent on the fall in the pot hole on the road. The court below refused to accept Exts.A8(a) to A8(d) stating that those documents are not proved and also did not find the evidence of Pws. 1 to 3 acceptable. The lower court accepted the evidence of D.W.1 to the effect that the road was fit for traffic and there were no pot holes on the road. The statement by D.W.1 that inner curve is constructed in a lower level and the outer curve is on a higher level for safety of the A.S.918/1997. 6 vehicles was also accepted by the court below. 9. Learned counsel appearing for the appellant pointed out that the court below has not appreciated the evidence in the proper perspective and has overlooked many of the vital aspects. Exts.A8(a) to A8(d) were marked by the plaintiff without any demur from the defendants' side and there is no justification in ignoring those documents. Those documents were prepared by police in relation to the crime registered with respect to the incident in question and the court below could not have ignored the same. The evidence of P.Ws.2 and 3 ought not to have been discarded. According to learned counsel the evidence shows that it was P.W.2, who had taken Rafeeq to the hospital and there were no reasons as to why his testimony should not have been accepted. According to learned counsel there is no dispute in this case that Rafeeq had fallen on the road and has suffered a head injury. There is also no dispute regarding the fact that Rafeeq died due to the injury sustained in the fall. The only dispute was regarding the A.S.918/1997. 7 question whether the fall was due to the pot hole on the road. Learned counsel for the appellants drew attention of this court, that it is admitted even by the defendants that there was stagnation of rain water on the road. The documents produced by the defendants have also not been properly considered. Learned counsel also pointed out that even assuming that what the defendants say are true, they ought to have taken sufficient precautions to see that no untoward incident happens. According to learned counsel, the finding of the court below has resulted in serious miscarriage of justice. 10. Per contra, learned Government Pleader pointed out that the court below has considered the evidence in great detail and has come to the conclusion that the plaintiffs have miserably failed to establish their case. May be that Exts.A8(a) to A8(d) were marked from the side of the plaintiffs without objection. But marking is no substitute for proof. The documents have not been properly proved in accordance with law. The learned Government A.S.918/1997. 8 Pleader also pointed out that the evidence is clear to the effect that there were no pot holes as alleged by the plaintiffs and that the mishap had occurred solely due to the indifference, carelessness and negligence on the part of the deceased himself. There is nothing to indicate that the road was in a bad condition posing threat to the vehicles and passengers using the road. Learned Government Pleader pointed out that the defendants have adduced evidence to show that at the place of the accident the road takes a curve and in order to enable the vehicles to take a smooth turn, the inner curve is constructed at a lower level and the outer curve is on a higher level. According to the defendants the deceased had come at a tremendous speed and had invited trouble. Learned Government Pleader concluded by pointing out that no grounds are made out to interfere with the judgment and decree of the court below. 11. P.W.1 is none other than the father of the deceased. He runs a tea shop. The deceased is his youngest son. He would A.S.918/1997. 9 say that his son suffered an injury by falling into the pot hole on the road on 18.7.1991 and suffered a head injury. He was hospitalised and he passed away on 20.7.1991 consequent to the injury suffered by him. He says that the pot hole was on the eastern side of the road and that while his son was coming along the road as the pot hole was filled with rain water, Rafeeq fell into the pot hole and was thrown off his bicycle. In the fall his head hit the ground and he suffered injuries. He was studying in the Xth standard. P.W.1 stated that the deceased used to help him in the running of the tea shop and now he has to engage an employee paying a sum of Rs.40/- per day. He spoke about the expenses incurred by him for the treatment of his late son in the hospital. According to him the pot hole was present for the last two years and several complaints have been preferred to P.W.D. If the road had been properly maintained, the accident would not have occurred. The documents Exts.A1 to A12 were marked through him. A.S.918/1997. 10 12. P.W.1 had no case that he had seen the incident. He came to know about the incident when he received a call from the hospital. He is unable to say that whether anybodyelse was accompanying his son at the time of the incident. He denied the suggestion that the accident was due to the negligence of this son. 13. P.W.2 is a fish vendor by profession. The plaintiffs are familiar to him and he knew the deceased. He would say that he had seen Rafeeq lying in the pot hole on the road with the bicycle beside him. He was returning home after his business. He would say that he along with a person by name Abdul Khader had fetched a vehicle and taken the injured to the hospital. The pot hole was on the eastern side of the road. This witness would depose that even as on date the pot hole remained at the site. The pot hole had been there for a long time and several complaints had been preferred to the PWD by the people of the locality. According to him, Rafeeq was coming at a normal speed and he fell into the pot hole. In cross-examination he had stated that he A.S.918/1997. 11 saw Rafeeq lying on the road. He denied that he had actually seen the cycle falling into the pot hole. However, he would depose that he reached the place first. He accepted that there was a level difference between the road and the adjoining land at the relevant place. He also stated that there was stagnation of rain water at the place. As a result of that, a person coming from a distance will not be able to recognise the level difference. He would also depose that there were other pot holes on the road. 14. P.W.3, Abdul Khader claims to have seen the incident. He resides near the place of incident. He would depose that the deceased was coming from north towards south and in the process his cycle fell into the pot hole on the road. Rafeeq was thrown off from his bicycle and he fell on the road. P.W.3 claims to have rushed to the place. He would state that he saw the deceased bleeding though his ears. He would say that soon thereafter P.W.2 also reached the place. He had also accompanied the deceased to the hospital. In cross-examination he deposed that A.S.918/1997. 12 at the relevant time he was standing in the veranda of a nearby shop. He also stated in cross-examination that no sooner than he reached the place, P.W.2 had also come there. 15. P.W.4 is an employee of the tea shop of P.W.1. He would say that he was employed after Rafeeq had passed away and he was being paid Rs.40/- per day. 16. From the side of the defendants D.W.1 was examined and Ext.B1 file was produced. He was the Assistant Engineer, P.W.D. Roads at the relevant time. In his chief examination, he would assert that the road was smooth and perfect at the relevant time. Since there was a sharp curve at the site of the incident, in order to provide safety for the vehicles, the inner curve was slightly lower than the outer curve. He would say that there was some stagnation of rain water. According to him, the carelessness on the part of the deceased was the cause for the accident. A.S.918/1997. 13 17. However, in cross examination he conceded that the file produced by him will not show that he had gone to the spot on 19.7.1991 as asserted by him in the chief examination. It is also to be noted that the file will not disclose the source of information of the accident. It is surprising to note that he also says that he had not seen the Mahazar prepared by the police in the case. It is also conceded by him that there was a separate file regarding the maintenance of roads, which would show when maintenance of the road involved in this case was carried out. It is significant to note that an estimate for repair of road on which the accident occurred, according to D.W.1, was submitted a few days after the incident and on that basis the repairs were carried out. It is also shocking to notice that this witness at the time of his first inspection did not prepare a report since he felt that it was unnecessary. More shocking is the subsequent statement that he felt the necessity for filing a report only when the media published the accident. 18. Ext.B1 is the file produced by the defendants. Page A.S.918/1997. 14 21 of Ext.B1 contains a reply sent by the Executive Engineer to the petition sent by the plaintiffs to P.W.D. Therein it is denied that there was any pot hole on the road and according to the Engineer the road was in a good condition. One needs to notice the statement, which reads as follows: “To repair the damages due to heavy rain and heavy intensity of traffic, for which nobody can be blamed, the Department has taken all possible measures then and there.” Page 15 of Ext.B1 contains a report sent by the Assistant Engineer to the Assistant Executive Engineer, P.W.D. Division. Therein also it is denied by them that there is any pot hole at the relevant place. It is also stated that the road is owned and maintained by the P.W.D. But, the significant fact is that the report says that the pot holes in certain portions of the road were formed due to heavy rains. 19. Ext.B1 at page 6 says that the Executive Engineer had written to the Superintending Engineer about the incident on A.S.918/1997. 15 the basis of the report said to have been given to him by the Assistant Executive Engineer, Roads, North Paravur. However, going by the evidence of D.W.1, it is seen that though he claims to have visited on the two occasions, no report was prepared by him on the first occasion. Later, only after coming to know about the accident through the media, he felt it necessary to prepare a report. 20. No explanation whatsoever is offered by D.W.1 regarding the documents produced by the plaintiffs as Ext.A8(a) to A8(d). Ext. B1 can only be a self serving document. 21. Coming back to Exts.A8(a) to A8(d), may be that the court below is technically correct in saying that the documents have not been proved as required under law. But no objection as such was taken to the marking of those documents and one should also note that these documents have been drawn up for the crime registered by the police in relation to the accident. There is nothing to indicate that the statements contained in these documents are either false or that they were made with ulterior A.S.918/1997. 16 motive. It is significant to notice that the crime was registered on 20.7.1991 as Crime No.80 of 1991 of Binanipuram Police Station obviously under the caption unnatural death under Section 174 of the Code of Criminal Procedure. Ext.8(a) is the scene mahazar prepared by the officer concerned. Ext.A8(c) is the copy of the mahazar of the cycle which Rafeeq was riding. A look at Ext.A8(d) shows that the road at the site has a width of three meters. This document was prepared on 21.7.1991. It is true that the defendants have stated otherwise, that is there were no pot holes on the road. But however, at the risk of repetition Ext.B1 file contains documents drawn up by the officers of the department. Exts.A8(a) to A8(d) are documents prepared by an independent body and there is no allegation that those documents were concocted for the A.S.918/1997. 17 purpose of the case. If one is to accept Exts.A8(a) to (d), it follows that there were pot holes on the road as alleged by the plaintiffs. It has already been noticed that in Ext.B1 file also there is a report that there were pot holes on the road though in that communication it was stated that at the site of the accident there was no pot hole. 22. It is not possible to accept the reasons given by the lower court for rejecting the evidence of P.Ws.2 and 3. As far as P.W.2 is concerned, as already noticed, he had taken the injured to the hospital and his name can be seen in the wound certificate, namely Ext.A10 dated 20.1.1991. True in the said document it is only stated that the injury was caused due to a fall. But the fact remains that P.W.2 was at the spot at the relevant time and he could have seen the accident. It is also true that he had stated that he had not seen the cycle actually falling into the pot hole, but had only seen the deceased lying in the pot hole with the cycle beside him. The court below chose to disbelieve him on the ground that P.W.2 was unable to say about the speed at which the deceased had A.S.918/1997. 18 come on his bicycle and also whether somebody else was also riding along with him. The testimony of P.W.3 is disbelieved on the ground that he had claimed that he alone was there at the spot of the accident. Recalling the evidence of P.W.3 it could be seen that what he says is that he saw the deceased coming on his bicycle and falling into the pot hole. Then he rushed to the place. By the time he reached the place, P.W.2 was already there. He also claims that he had accompanied the injured to the hospital. 23. The court below says that there is no evidence shows as to how Rafeeq had fallen down on the road. Lower court relied on the evidence of D.W.1 and Ext.B1 to come to the conclusion that the claim of the plaintiffs that there were pot holes on the road and that Rafeeq had fallen into one of them is incorrect. Further the court below goes on to say that the evidence clearly says that there was a person accompanying the deceased. He was the best person to speak about the accident and he had not been examined. That according to the court below is fatal. A.S.918/1997. 19 24. The court below has omitted to notice the evidence of P.W.1 in this regard. There is no dispute regarding the fact that the person who was coming along with deceased Rafeeq was his friend Shihab on his bicycle. P.W.1 in re-examination has clearly stated that Shihab is at present in the Middle East. It could thus be seen that the failure to examine the said person was not deliberate or wilful. The claim of P.W.1 that Shihab is abroad on employment is not challenged by the defendants. There is nothing to indicate that the said statement of P.W.1 is incorrect or false. The defendants have no case that he was deliberately withheld. Thus it would be seen that the reasons given for disbelieving the testimonies of P.Ws.1 to 3 are not acceptable and justifiable. 25. Coming back to the documents produced by the parties, Ext.A7 is the inquest report prepared on 20.7.1991. A reading of column 10 in the inquest report shows that one Raghu had told the Investigating Officer that he had seen Rafeeq being helped by another person to sit by the side of the road while he was A.S.918/1997. 20 coming in his car. He has specifically stated that the road takes a curve at the relevant place and there was a pot hole filled with water. True that the said person had not been examined. But it is a statutory document prepared by a responsible officer. 26. It is too much to imagine that the documents produced by the plaintiffs, namely Exts.A6 to A12 were all cooked up and manipulated influencing the police. Ext.A9 is the postmortem report, which says that Rafeeq died due to head injury. A12 which is the final report in Crime No.90 of 1991 of Binanipuram Police Station submitted by the investigating officer after due investigation before court also shows that the cycle had fallen into the pot hole on the road and that Rafeeq suffered an injury on his head. 27. Apart from the fact that there is no discussion of the documents by the court below, it is rather inconceivable that all these documents have been got prepared by the plaintiffs for the purpose of this case. It has to be noticed that these documents A.S.918/1997. 21 came into force soon after the incident. The plaintiffs could not have concocted the same so soon. 28. For the above reasons, we are unable to concur with the finding of the court below that the plaintiffs have not been able to establish how the accident had occurred. It is clear that death of Rafeeq was caused due to the injury suffered by him as a result of the fall in the pot hole on the road as alleged by the plaintiffs. 29. Issue No.(ii): The next issue that arises for consideration is whether the defendants can be made liable