IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 AS.No. 754 of 1998(C) & CROSS OBJECTION --------------------- OS.356/1993 of ADDL. SUB COURT, ALAPPUZHA. .................... APPELLANTS/DEFENDANTS 3 & 4: ------------------------------------------------ 1. M.K. KURIAKOSE, ASST. EXECUTIVE ENGINEER, P.W.D. (B & R), ALAPPUZHA, RETIRED AND NOW RESIDING AT AZHAKEDATHU HOUSE, PARAMPUZHA P.O. KOTTAYAM 686032. 2. BIJU PUNNOOSE, ASST. EXECUTIVE ENGINEER, P.W.D., RESIDING AT PACHIKARA HOUSE, 19/239, CHALUKUNNU, KOTTAYAM. BY ADV. SRI.S.K.MURALEEDHARA KAIMAL RESPONDENTS/PLAINTIFFS & DEFENDANTS 1, 2 & 5 TO 7: ---------------------------------------------------------------------------------- 1. K. SREEDHARAN NAIR, SARASWATHI NIVAS, MANCOMBU, THEKKEKARA P.O., ALAPPUZHA DIST. (IST PLAINTIFF) 2. N.M. SARASWATHI AMMA OF DO. (2ND PLAINTIFF) 3. S. BEENA OF DO. (3RD PLAINTIFF) 4. MANU OF DO. (MINOR REP, BY HIS MOTHER AND GUARDIAN, THE 3RD PLAINTIFF) (4TH PLAINTIFF) 5. ANU ANILKUMAR OF DO. DO. (MINOR REP. BY THE 3RD PLAINTIFF HIS MOTHER AND GUARDIAN) (5TH PLAINTIFF) 6. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, ALAPPUZHA (1ST DEFENDANT) 7. T.N. GOPALAKRISHNA KURUP, EX. ENGINEER, PWD (B&R) ALAPPUZHA, RETIRED (2ND DEFENDANT) 8. SIBICHAN, PATHILCHIRA, SETTLEMENT COLONY NO.15, ONNAMKARA, MANKOMBU THEKKEKARA P.O. ALAPPUZHA DIST. (5TH DEFENDANT) 9. MATHUKUTTY, MEMANA HOUSE, NEDUMUDY P.O. ALAPPUZHA DIST. (6TH DEFENDANT) 10. LALYCHAN JOSEPH, AMPATHILCHIRA, CHENNAMKARY P.O., ALAPPUZHA DIST. (7TH DEFENDANT) RESPONDENTS 8, 9 AND 10 ARE STRUCK OUT AS PER ORDER DT.7.705 IN I.A. 2169/05. ADV. SRI.ROY CHACKO FOR R8 & R10 SR. GOVERNMENT PLEADER SRI.P.K. BABU FOR R6 R1 T0 R5 BY ADV. P.R. VENKITESH SRI.K.S.HARIHARAPUTHRAN FOR R3 SRI.GEORGE MATHEW FOR R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/01/2010, ALONG WITH AS NO. 990 OF 1998, THE COURT ON 05/02/2010 DELIVERED THE FOLLOWING: A.K. BASHEER & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 754 & 990 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of February, 2010 JUDGMENT Joseph Francis, J. A.S.No. 754 of 1998 is filed by defendants 3 and 4 and A.S. No. 990 of 1998 is filed by defendants 1 to 4 in O.S.No. 356 of 1993 on the file of the Sub Court, Alapuzha. Respondents 1 to 5 are plaintiffs 1 to 5 in that suit, which was filed for damages. 2. The plaintiffs filed the above suit contending that they are the parents, wife and children of late N.S. Anilkumar, who died as a result of the fatal accident occurred on the night of 20.8.1991 at the toll gate near Nedumudi bridge on the Alapuzha - Changanacherry road. Defendants 5 to 7 were in charge of the toll gate on the A.S. Nos. 754 & 990 of 1998 2 eastern side of the Nedumudi bridge. Defendants 2 to 4 are the persons in charge of the said road under the first defendant. The deceased was travelling along the Alapuzha - Changanacherry road on his scooter on 20.8.1991. At about 11.15 p.m., while he was travelling in the said scooter, he happened to hit against the cross bar put across the road near the toll gate. As a result, he sustained fatal injuries. He was immediately taken to the Kuttanad Medical Mission Hospital, from where he was removed to the Medical College Hospital, Alappuzha and later to the Medical Trust Hospital, Ernakulam. On 23.8.1991, the said Anilkumar succumbed to the injuries sustained in the accident. 3. It is contended that the accident occurred due to the negligence of the defendants. The cross bar was fixed across the road without any reflector caution board or light or any signal notifying the cross bar. Lights fitted on the side of the bridge were not lighted. The cross bar across the road was not painted. The defendants have failed to provide adequate safety measures. A.S. Nos. 754 & 990 of 1998 3 The negligence on the part of the defendants caused the death of Anilkumar, it was contended. 4. Deceased Anilkumar was the sole bread winner of his family. He was aged 28 years at the time of his death. He was a L.D. Clerk in the Taluk Supply Office, Kuttanad. He was very healthy, active and enthusiastic. He was drawing a salary of Rs.1,453/- The plaintiffs claimed a total sum of Rs. 7 Lakhs as compensation. 5. Defendants 1, 3 and 4 filed joint written statement denying the allegations raised and contended that defendants 1 to 4 are not liable to pay any compensation as there is no negligence on their part. The cross bar across the road was well maintained and sufficient precautions were made. Hence there is no negligence on their part. 6. The second defendant filed a separate written statement denying the allegation and contending that he was not in service of the first defendant at that time. Defendants 5 to 7 filed joint A.S. Nos. 754 & 990 of 1998 4 written statement denying the allegations and contending that there was no negligence on their part. They also contended that the death of Anilkumar occurred due to the rash and negligent driving of the deceased and the deceased was drunk at the time of the accident. 7. Pws. 1 to 4 and Dws. 1 to 3 were examined and Exts.A1 to A14 and D1 were marked. The court below, after considering the evidence, found that the accident occurred due to the composite negligence of the deceased as well as the P.W.D. and decreed the suit in part, allowing the plaintiffs to realise a sum of Rs.1,25,550/- from defendants 1 to 4 with interest at the rate of 9% p.a. from the date of the suit till the date of decree and thereafter at the rate of 12% p.a. till the date of realisation. Against that judgment and decree the above appeals are filed. 8. Respondents 1, and 3 to 5 in A.S. N0. 754 of 1998, who are the plaintiffs 1, 3, 4 and 5 in the suit, filed cross objections contending that the accident occurred due to the A.S. Nos. 754 & 990 of 1998 5 negligence of the defendants alone and that the court below ought to have allowed the entire compensation of Rs.7 lakhs claimed in the plaint. 9. Heard the learned counsel for the appellants and the learned counsel for the contesting respondents. 10. The learned counsel for the appellants submitted that the learned Sub Judge ought to have admitted Ext.B1 scene mahazar in evidence and ought to have relied on it to find that there was no negligence on the part of the defendants in properly maintaining the toll gate. The learned counsel for the appellants further submitted that the compensation assessed by the learned Sub Judge is on the higher side. The learned counsel for the contesting respondents submitted that the learned Sub Judge ought to have found that the accident occurred due to the sole negligence of the defendants and that the court below ought to have awarded the full amount claimed in the plaint as compensation. A.S. Nos. 754 & 990 of 1998 6 11. Admittedly, the first plaintiff is the father, second plaintiff is the mother, third plaintiff is the wife and plaintiffs 4 and 5 are the minor children of deceased Anilkumar. In the plaint it is alleged that at about 11.15 p.m. on 20.8.1991 deceased Anilkumar was riding a scooter along Alappuzha - Changanacherry road from Alappuzha side towards east to his house at Mankombu and when he reached at Nedumudi toll gate his scooter dashed against the cross bar put across the road at Nedumudi toll gate. Due to the accident, he sustained serious injuries and he was taken to Kuttanad Medical Mission Hospital and from there to Medical College Hospital, Alappuzha and from there he was referred to the Medical Trust hospital, Ernakaulam and he died on 23.8.1991, while undergoing treatment in that hospital. 12. There is no eye witness to the actual occurrence. In connection with the accident Nedumudi police registered Crime No. 79 of 1991 on the basis of the information received from the A.S. Nos. 754 & 990 of 1998 7 Medical Trust Hospital, Ernakulam. Ext.A10 is the copy of the F.I. statement, Ext.A11 is the copy of the inquest report, Ext.A12 is the copy of the final report and Ext.A13 is the copy of the postmortem certificate. Ext.A13 postmortem certificate shows that Anilkumar died due to the head injury sustained in the accident. 13. Pws. 1 to 3 deposed that at the time of the accident the toll gate at Nedumudi was being run by the P.W.D. directly and there was no sign boards indicating the toll gate and was also not provided with reflectors and stop board on the cross bar. They further deposed that the cross bar was not painted with yellow and black fluorescent paint and there was no sign cautioning the motorists regarding the existence of toll gate during night. PW1 deposed that the toll gate never used to be closed during night time and the workers used to stop the vehicle by showing their hands. The workers employed at the toll gate had closed the toll gate by lowering the cross bar and they went to sleep. The A.S. Nos. 754 & 990 of 1998 8 unfortunate victim happened to dash against the cross bar and succumbed to the injuries sustained. 14. Ext.A14 is the third page of the Malayala Manorama daily dt.27.8.1991, which contained the report with regard to the accident. The defendants do not dispute the accident. They contended that the accident occurred not due to the negligence of defendants 2 to 7. Dws. 1 and 3 deposed that the accident was not due to the negligence of the defendants. DW3 deposed that defendants 5 to 7 were not on duty at the toll gate at the time of the accident and they were at the house of DW3 and were planning about the Onam celebrations. But in the written statement of defendants 5 to 7, they alleged that they were present at the toll gate at the time of the accident. 15. Ext.B1 is the copy of the scene mahazar prepared in the criminal case registered in connection with the accident. The police officer, who prepared the scene mahazar, retired from service and he was not examined to prove the contents of the A.S. Nos. 754 & 990 of 1998 9 scene mahazar. DW2, the present Sub Inspector of Police, Nedumudi Police Station, deposed that he does not know the correctness of the matters mentioned in Ext.B1 scene mahazar. Therefore, Ext.B1 scene mahazar cannot be relied on for the purpose of deciding the question with regard to negligence. 16. There is no dispute that the accident occurred at 11.15 in the night and the toll gate was closed by lowering the cross bar at the time of the accident and nobody was present in the toll gate at the time of the accident. Defendants 5 to 7 contended that the deceased was drunk at the time of the accident. From the testimony of DW3 it is clear that defendants 5 to 7 were not present at the toll gate at the time of the accident and they were away in the house of DW3 planning about Onam celebrations. The postmortem certificate will show that the deceased was not drunk at the time of the accident. Therefore, the contention of defendants 5 to 7 that the deceased was drunk at the time of the accident cannot be accepted as true. A.S. Nos. 754 & 990 of 1998 10 17. It is the duty of the P.W.D. to maintain the toll gate properly by providing precautionary board and light. Ext.A14 paper report is to the effect that the toll gate is not properly maintained by the authorities. DW1 deposed that the workers used to paint the cross bar and they used to pull out reflectors from other boards and fix the same on the cross bar. DW1 admitted that there is no record to show that the cross bar and toll gate used to be maintained properly by doing periodical maintenance. 18. DW3 deposed that the workers never used to paint the toll gate and cross bar. The circumstances brought out in evidence show that the accident could have been avoided if P.W.D. had taken some more care. Therefore, we are of the view that the learned Sub Judge is not justified in finding that there was contributory negligence on the part of the deceased. The evidence on record clearly establishes that the accident occurred due to the sole negligence of P.W.D. A.S. Nos. 754 & 990 of 1998 11 19. It is the duty of the 4th defendant in his official capacity to maintain the toll gate properly and it was also the duty of defendants 2 and 3 in their official capacity to see that the 4th defendant was doing his duties properly. Therefore, defendants 2 to 4 are negligent in the performance of their official duty. The first defendant being the employer of defendants 2 to 4, is vicariously liable for the negligence of defendants 2 to 4 in their official capacity. 20. The next question to be considered is with regard to the quantum of compensation payable to the plaintiffs. It has come out in evidence that at the time of the accident Anilkumar was aged 28 years. Ext.A4 salary certificate shows that he was employed as a L.D. Clerk in the Taluk Supply Office at Kuttanad and he was getting a monthly salary of Rs.1,453/- After meeting his personal expenses, he would have contributed Rs.1,000/- p.m. towards the family expenses. A.S. Nos. 754 & 990 of 1998 12 21. Therefore, the loss of annual dependency of the dependents can be assessed as Rs.12,000/- Considering the age of the victim and age of the plaintiffs, 16 can be applied as suitable multiplier. Therefore compensation assessed under the head loss of dependency comes to Rs.1,92,000/- Rs.15,000/- assessed as compensation for loss of consortium for the third plaintiff, wife, and Rs.20,000/- assessed as compensation for loss of love and affection for the minor plaintiffs 4 and 5 are also reasonable. The death of Anilkumar was not instantaneous. Therefore Rs.10,000/- assessed as compensation for pain and sufferings is reasonable. The deceased was taken to the Medical College, Alapuzha and the Medical Trust Hospital, Ernakaulam. Therefore Rs.10,000/- assessed as medical expenses and Rs.1,600/- as transportation charges are also reasonable. Rs.2,500/- assessed towards funeral expenses is also justifiable. 22. Thus, we find that the learned Sub Judge is fully justified in assessing Rs.2,51,000/- as compensation. A.S. Nos. 754 & 990 of 1998 13 However, the finding of the court below as regards composite negligence of the deceased cannot be justified or sustained. We have no hesitation to hold that the mishap occurred only due to the negligence on the part of the defendants. Therefore the plaintiffs will be entitled to get the entire amount of compensation as assessed by the court below. During the pendency of the appeal, plaintiffs 1 and 2 died. Therefore, plaintiffs 3, 4 and 5 are the remaining dependents of the deceased at the time of the accident. The other legal heirs of deceased plaintiffs 1 and 2 are not necessary parties to the appeal as they are not dependents of deceased Anilkumar. The third plaintiff is entitled to get Rs.50,000/- Plaintiffs 4 and 5 are entitled to get the remaining amount equally. Since the liability does not arise out of commercial transaction, the interest awarded from the date of suit as 9% p.a. till date of decree and thereafter at the rate of 12% p.a. till realisation have to be reduced as 6% p.a. A.S. Nos. 754 & 990 of 1998 14 23. Accordingly both the appeals are dismissed as they are devoid of merits. Cross Objection is allowed in part. The judgment and decree in O.S. No. 356 of 1993 on the file of the Sub Court, Alapuzha is modified and plaintiffs 3 to 5 are allowed to realise a sum of Rs.2,51,000/- from the first defendant/State with interest at the rate of 6% p.a. from the date of the suit till the date of realisation with proportionate cost. The parties are directed to suffer their respective cost in these appeals and in the Cross Objection. (A.K. BASHEER) Judge (M.L. JOSEPH FRANCIS) Judge tm