IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2011 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.Nos.320 and 322 of 2004 A.S.No.320 of 2004: M.Oman ... Appellant/Plaintiff Vs. 1.Union of India, represented by The Secretary to Govt. of India, Ministry of Finance, New Delhi. 2.The Government of Pondicherry, represented by The Secretary to Government, Public Works Department, Pondicherry. 3.The Chief Engineer, Public Works Department, Pondicherry. 4.The Executive Engineer, Public Works Department, Pondicherry. ... Respondents/Defendants Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, against the decree and judgment passed in O.S.No.51 of 2002 dated 31.10.2002 on the file of the learned Additional District Judge, Karaikal. For Appellant : Mr.R.Natarajan https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.M.Devendran, Senior Panel Counsel for Central Government for R.1 Mr.D.Srinivasan, Govt.Pleader (Pondy) for R2 to R4. * * * * * A.S.No.322 of 2004: K.Rajendiran ... Appellant/Plaintiff Vs. 1.Union of India, represented by The Secretary to Govt. of India, Ministry of Finance, New Delhi. 2.The Government of Pondicherry, represented by The Secretary to Government, Public Works Department, Pondicherry. 3.The Chief Engineer, Public Works Department, Pondicherry. 4.The Executive Engineer, Public Works Department, (Building and Maintenance), Pondicherry. ... Respondents/Defendants Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, against the decree and judgment passed in O.S.No.37 of 2002 dated 31.10.2002 on the file of the learned Additional District Judge, Karaikal. For Appellant : Mr.R.Natarajan https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.M.Devendran, Senior Panel Counsel for Central Government for R.1 Mr.D.Srinivasan, Govt.Pleader (Pondy) for R2 to R4. * * * * * COMMON JUDGMENT A.S.No.320 of 2004 has been preferred by the appellant/plaintiff as against the judgment and decree dated 31.10.2002 in O.S.No.51 of 2002 passed by the learned Additional District Judge, Pondicherry. 2. A.S.No.322 of 2004 has been preferred by the appellant/plaintiff as against the judgment and decree dated 31.10.2002 in O.S.No.37 of 2002 passed by the learned Additional District Judge, Pondicherry. A.S.No.320 of 2004: 3. The trial Court on an appreciation of oral and available documentary evidence on record, while passing the judgment in O.S.No.51 of 2002 on 31.10.2002, has among other things observed that 'the appellant/plaintiff has sustained the permanent disability of 49.8% and for his permanent disability granted a sum of Rs.50,000/- (Rupees Fifty Thousand only) and a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards pain and sufferings and a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards the plaintiff's attendant expenses and in all, awarded a sum of Rs.90,000/- (Rupees Ninety Thousand only) as compensation to the appellant/plaintiff together with interest at 9% p.a. from the date of filing of the complaint till the date of realisation and also with costs'. Further, it directed the first respondent/first defendant to pay the aforesaid amount jointly and severally for and on behalf of the respondents 2 to 4/defendants 2 to 4 and passed a decree to that effect. Moreover, three months time has been granted to pay the compensation amount from the date of passing of the judgment. 4. Before the trial Court, in the main suit in O.S.No.51 of 2002, three issues have been framed for adjudication. On behalf of the appellant/plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.7 have been marked. On behalf of the respondents/defendants, D.W.1 has been examined and Exs.B.1 and B.2 have been marked. Also, Ex.X.1 to X.5 have been marked as Court Exhibits. https://hcservices.ecourts.gov.in/hcservices/ 5. Being dissatisfied with the quantum of compensation awarded by the trial Court, the appellant/plaintiff as an aggrieved person, has projected the present appeal in A.S.No.320 of 2004, claiming enhancement of compensation. 6. The points for consideration in this appeal are: (i) Whether the respondents/defendants are liable for gross negligence on account of crumbling and collapse of the entire roof of the Copy Section building on 27.02.1998 at about 04.45 p.m? (ii) Whether the appellant/plaintiff is entitled to claim a compensation of Rs.2,00,000/- (Rupees Two Lakhs only) from the respondents/defendants for the injuries sustained by him? A.S.No.322 of 2004: 7. The trial Court on an appreciation of oral and available documentary evidence on record, while passing the judgment in O.S.No.37 of 2002 on 31.10.2002, has inter alia observed that 'the appellant/plaintiff has sustained the permanent disability of 68.8% for which, the trial Court awarded a sum of Rs.70,000/- (Rupees Seventy Thousand only) and a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards pain and sufferings and a sum of Rs.20,000/- (Rupees Twenty Thousand only) towards the plaintiff's attendant expenses, and in all, awarded a sum of Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only) as compensation to the appellant/plaintiff together with interest at 9% p.a. from the date of filing of the complaint till the date of realisation and also with costs'. Further, it directed the first respondent/first defendant to pay the aforesaid amount jointly and severally for and on behalf of the respondents 2 to 4/defendants 2 to 4 and passed a decree to that effect. Also, three months time has been granted to pay the compensation amount from the date of passing of the judgment. 8. Before the trial Court, in the main suit in O.S.No.37 of 2002, three issues have been framed for adjudication. On behalf of the appellant/plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.8 have been marked. On behalf of the respondents/defendants, D.W.1 has been examined and Exs.B.1 and B.2 have been marked. Also, Ex.X.1 to X.5 have been marked as Court exhibits. 9. Being dissatisfied with the quantum of compensation awarded by the trial Court, the appellant/plaintiff as an aggrieved person, has projected the present appeal in A.S.No.322 of 2004, claiming enhancement https://hcservices.ecourts.gov.in/hcservices/ of compensation. 10. The points for consideration in this appeal are: (i) Whether the respondents/defendants are liable for gross negligence on account of crumbling and collapse of the entire roof of the Copy Section building on 27.02.1998 at about 04.45 p.m? (ii) Whether the appellant/plaintiff is entitled to claim a compensation of Rs.2,00,000/- (Rupees Two Lakhs only) from the respondents/defendants for the injuries sustained by him? The Contentions, Discussions and Findings in Point No.(i) in A.S.Nos.320 and 322 of 2004: 11. The case of the appellants/plaintiffs is that on 27.02.1998, the appellants/plaintiffs were working as a Junior Clerk and as a Copyist in the Copy Section of the Additional District Court, Karaikal and at about 04.45 p.m, on that day, when the plaintiffs were discharging their duties, they heard a thundering noise and within a minute, the entire roof of the Copy Section of the building constructed with long wooden logs and mud and bricks, fell down on the entire body of the appellants/plaintiffs. The appellants/plaintiffs raised an alarm for a moment and that they lost their consciousness as they were suffocated and trapped under the debris and the collapsed ruins. 12. Added further, the other employees of the Judicial Department on hearing the alarm, rushed to the place of incident and they noticed the murmuring sounds coming below the ruins and they found the appellants/plaintiffs in a pool of blood living as dead bodies and with their efforts, the appellants/plaintiffs were dragged out them from the debris. After sending message to the Hospital and Superior Officers, the appellants/plaintiffs were taken to the General Hospital, Karaikal where they were admitted as inpatients, etc. 13. According to the learned Counsel for the appellants/plaintiffs, the third respondent/Chief Engineer, P.W.D, Pondicherry, has a duty to take care of the District Court building which is under his control and he ought to take reasonable care including to avoid any act or omission and exercise all ordinary care and caution which is expected from a prudent person. The District Court building is a Centenary old building and cracks were found in several part of the roofs of the building and during rainy seasons, the entire roof of the building leaked and as a result thereof, the rain water gathered in the building including in the District Court hall. The Head of Office of Judicial Department brought these facts to the knowledge of the respondents/defendants and it is https://hcservices.ecourts.gov.in/hcservices/ also a fact that the respondents/defendants has been asked to carry out effective renovative works. But, inspite of the repeated demands made to the respondents/defendants, they have not taken action. 14. Continuing further, it is the contention of the learned Counsel for the third respondent/third defendant, the Chief Engineer, P.W.D, Pondicherry, visited and inspected the building only after the collapse of a portion of the building namely, the Copy Section and started to carry out the renovation works. If timely action has been taken in carrying out the repair/renovation works, the incident of collapse of a portion of the District Court building could have been avoided and the appellants/plaintiffs would not have sustained serious injuries. 15. Advancing his arguments, it is the submission of the learned Counsel for the appellants/plaintiffs that the respondents/defendants 1 to 4 owed a legal duty with a reasonable foreseeability of the consequences from the prevailing/existing condition of the building and the omission to do a legal duty also amounts to a gross negligence by the conduct and act of the respondents/ defendants. Because of their negligence, a portion of the building collapsed and consequently, the appellants/ plaintiffs sustained the injuries and therefore, each of the appellants/plaintiffs claimed a compensation of Rs.2,00,000/- (Rupees Two Lakhs only). 16. In response, the learned Counsel for the respondents/ defendants submits that the building housing the Court of the Additional District and Sessions Judge of Pondicherry at Karaikal is about 120 years old with Madras Terrace Roofing and the Public Works Department has attended to the repair works in the said building. Furthermore, during the inspections by the P.W.D. Engineer, it was found that the cracks were developed in the building and during rainy season, the rain waters were leaking through the cracks during heavy rains at times dislocating the Court works and the Public Works Department at Karaikal had prepared an estimate at a cost of Rs.8.85 lakhs for roof conversion and the same was sent for sanction to the Departments concerned and as such, the charge of negligence and carelessness, etc. are recklessly made against the defendants. 17. The learned Counsel for the respondents/defendants contends that the Public Works Department in its earlier inspection of the Court building, has assessed the condition of the building with reference to the damage to the building and after such inspection, the Department informed the Court authority to attend to such repairs, but the Court authority has not attended to the small works as there is no separate Head of Account for Judicial Department in order to carry out the day- to-day maintenance, renovation of the building etc. That apart, the https://hcservices.ecourts.gov.in/hcservices/ request of the Public Works Department, Karaikal, has been received by the then District and Sessions Judge, who informed the State Government in a letter dated 24.11.1997 for obtaining a separate Head of Account in that regard. 18. The core contention advanced on behalf of the respondents/defendants is that the collapse of the portion of the roof of the building prior to sanction was purely an accident and it can only be described as Act of God for which the Department cannot be made liable much less liable. 19. The learned Government Advocate for the respondents 2 to 4 brings it to the notice of this Court that the appellants/plaintiffs who being the victims of the roof collapse were admitted in the Hospital and given expert treatment in Tamil Nadu Hospital after they were being referred to from the local Government Hospital, Karaikal. Indeed, the State Government has met all the medical expenses at very heavy costs and the appellants/ plaintiffs have been able to join their duties during the month of August 1998. In any event, the claim of compensation by the appellants/plaintiffs at Rs.2,00,000/- (Rupees Two Lakhs only) each, is an excessive and unjust one. 20. On behalf of the first respondent/first defendant, the contentions advanced on behalf of the respondents 2 to 4 have been projected before this Court. 21. It is the evidence of P.W.1 (appellant in A.S.No.320 of 2004/plaintiff in O.S.No.51 of 2002) that when he has been serving as a Junior Clerk on 27.02.1998 in the Copy Section of the District Court building at about 04.40 p.m, the building collapsed and on that day, he has been working with his colleague Rajendran (Copyist) working in the same section (appellant in A.S.No.322 of 2004/plaintiff in O.S.No.37 of 2002) and when he has been discharging his duty, he heard the thundering noise and that the entire roof of the building collapsed and fell down on him and the appellant in A.S.No.322 of 2004. 22. It is also the evidence of P.W.1 that he was under the rubbles of the roof and fell unconscious and suffocated. Also, he along with the appellant in A.S.No.322 of 2004 raised an alarm and they were trapped below the debris and hearing the thundering sound, the other Court staff members rushed to the place of incident and removed the debris. 23. Proceeding further, the evidence of P.W.1 is that they have been taken to the General Hospital, Karaikal and admitted as an https://hcservices.ecourts.gov.in/hcservices/ inpatient etc. The evidence of P.W.1 (appellant in A.S.No.320 of 2004) goes to the effect that the respondents 2 and 3/defendants 2 and 3 are holding full in-charge of the maintenance of the District Court, Karaikal and since the building was centenary old, there were cracks over the entire buildings and he came to know that the Head of Office of the Judicial Department brought to the knowledge of the respondents 2 and 3 repeatedly and asked them to carry out effective renovation works, but the respondents 2 and 3/defendants 2 and 3 had not taken care of the demands. 24. Apart from the above, it is the evidence of P.W.1 that the repair works of the building have commenced only after it got collapsed and if timely action has been taken to carry out the renovation work, the building could not have collapsed and he would not have sustained the injuries. He sustained injuries because of the negligent act of the respondents 2 and 3. 25. P.W.1 in his cross-examination has denied the suggestion that the collapse of the Court premises was due to the Act of God and on that score, the respondents/ defendants are not liable to pay any compensation for the injuries and disability that they had sustained and suffered. 26. Further, the evidence of P.W.1 (the appellant in A.S.No.322 of 2004/plaintiff in O.S.No.37 of 2002), is on the same line as that of P.W.1 in O.S.No.51 of 2002 as regards the collapse of the entire roof of the District Court building which fell on him and Oman (the appellant in A.S.No.320 of 2004/plaintiff in O.S.No.51 of 2002). Also, the evidence of P.W.1 (the appellant in A.S.No.322 of 2004) is to the effect that the respondents/defendants have not taken care to carry out the effective renovation and repair works and that the repair works of the building started only after the building collapsed. 27. P.W.2 (former Head Sarishtadar of the District Court, Karaikal) in his evidence, has stated that the Court building was centenary old building and originally, the roof of the building was constructed with Madras Terrace Tiles and that the entire Court building including maintenance supervision and periodical repairs over the building are under the control of the Public Works Department, Karaikal and during the period of incident when the building collapsed, he was serving as Head Sarishtadar of the District Court, Karaikal and on 27.02.1998 at about 04.30 p.m, the southern portion of the District Court building where Copy Section was functioning, fell down on two employees (the appellants in both the appeals) who were working in the Copy Section. https://hcservices.ecourts.gov.in/hcservices/ 28. P.W.2, in his evidence further proceeds to depose that the roof of the building of the District Court was bad and in a dangerous condition for the past eight years before the occurrence and that in the roof of the building, there were cracks etc, as a result of which rain water was leaking during the rainy season and rain waters gathered in the District Court building in the Court premises and at that time, the proceedings of the Court were also disturbed. 29. P.W.2, also adds in his evidence that the Head of Office of the District Court repeatedly sent letters (Exs.X.1 to X.5) to the Executive Engineer, Public Works Department, Karaikal, stating that due to bad condition and damages of the rafters and beams supporting the roof of the building worn out in certain places causing leakage of water from the roof and inspite of repeated representations made by the Head of Office in writing to the Public Works Department, Karaikal, they had not taken any steps to carry out the repairs and renovation works. Even during the year 1997, some Public Works Department officials, Karaikal, visited and inspected the building and even then, they have not come forward to carry out the renovative work immediately and failed to take measures for preserving the safety of the building. Only after the incident that took place on 27.02.1998, the Officers of the Public Works Department, Karaikal, visited the Court complex, inspected and started to carry out the renovation work. 30. The evidence of P.W.2 in effect is to the effect that the Public Works Department, Karaikal, came forward to carry out the repair works only after the collapse of the southern portion of the building and if they had taken measures to carry out the repairs over the roof of the building in time, then the collapse of the roof of the southern portion of the Court building would have been avoided and the appellants/plaintiffs would not have sustained the injuries. P.W.2 in his cross-examination, has categorically denied the suggestion that the Public Works Department people were meticulous in maintaining the building in sound stage and inspected the building in several times and did attend to the small works of repair and further that the collapse of a portion of the building was due to an Act of God and beyond the control of the Engineers of the Public Works Department. 31. Apart from the above, the evidence of P.W.2 (former Head Sarishtadar of the District Court, Karaikal) in O.S.No.37 of 2002 is to the effect that the incident occurred on 27.02.1998 at about 04.30 p.m and at that time, he was on duty as Head Sarishtadar of the District Court, Karaikal and the southern portion of the District Court building where Copy Section was functioning, fell down on two employees (the appellants in both the appeals) who were working in the Copy Section and that if the Public Works Department, Karaikal had undertaken measures to https://hcservices.ecourts.gov.in/hcservices/ carry out the repairs over the roof the building in time, then the collapse of the southern portion of the District Court building would have been averted and further to Court staff members of the District Court would not have sustained the injuries. 32. D.W.1, (Junior Engineer of Public Works Department), in his evidence has deposed that Karaikal Court building is under the maintenance of the Public Works Department Buildings Section and that the suit Court building is very ancient and old one which is aged about 100 years and that on being informed from the Court that the Court building is in a damaged condition and during the rainy period, from the roof rain water is leaking, P.W.D Engineers inspected the suit Court building and for changing the Madras Terrace roof into R.C.C roof, they had prepared an expenditure estimate of Rs.8.85 lakhs and sent it to the Pondicherry Government through its Public Works Department and on 15.12.1997 itself, the expenditure Estimate Amount has been sent to the Pondicherry Government and Ex.B.1 dated 24.11.1997, is the copy of the expenditure estimate and for carrying out the temporary repair expenditure in Courts since there is no separate Head of Account for obtaining the said Head of Account. Also, the Judicial Officer has written to the Government and the copy of the said letter is Ex.B.2 and before the sanction of the expenditure estimate as asked by them, the incident had taken place and as such, the appellants/plaintiffs have been affected and it is not true to state that they have failed to maintain the Court building properly and that they have been negligent and lackadaisical in maintaining the building. Further, the incident has occurred naturally for which they were not responsible. 33. D.W.1 in his cross-examination, has stated that it is false to state that for the letters written continuously from the year 1992, because of the negligence of the Public Works Department, they have not inspected the Court building and even during the year 1997, when the Executive Engineer, Natarajan, has inspected the Court building, no explanation has been offered in regard to the dangerous condition of the building, etc. 34. Moreover, the evidence of D.W.1 adduced in O.S.No.51 of 2002 (in A.S.No.320 of 2004) before the trial Court is similar to that of the evidence tendered in O.S.No.37 of 2002 and hence, the same is not repeated. 35. It is to be noted that negligence may be defined as unreasonable conduct i.e. conduct which a reasonable man would avoid on the ground that it involves undue risk of harm to another. The well- known jurist Austin says that 'negligence is a faulty mental condition which is penalised by the award of damages.' Indeed, the law enjoins on https://hcservices.ecourts.gov.in/hcservices/ all individuals the duty to exercise the care, skill and foresight of reasonable man or an average individual of competence and prudence. 36. Negligence is defined in the decision in Blyth v. Brimingham Waterworks Co., reported in (1856) 11 Ex 781, where Baron Alderson has defined 'negligence' as the omission which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which he would not do. The expression 'reasonable foresight' in the situation of existence of duty of care will bear a different meaning from that expression indicated as a test for remoteness of damage. 37. At this stage, this Court worth recalls the decision in C Czarnikow Ltd. v.Koufos reported in (1969) 1 AC 350, at page 385, wherein it is observed that 'the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it. The mere fact that the damage suffered was unlikely to occur may not relieve the defendant of liability if his conduct was illegal or unreasonable.' 38. The liability for negligence is based on a general public sentiment of moral wrongdoing for which the defendant must pay and it is a departure from this principle if his liability is made to depend on the damage being a 'direct' or 'natural' consequence of his act. Further, negligence is a principle of civil liability that a man must be considered to be responsible for the probable consequences of his act. A court of law has to decide not a mere question of foreseeability of the damage but the defendant's responsibility for it. The degree of fault or moral culpability of the wrongdoer is an important element in the decision, in the considered opinion of this Court. In the law of Torts, for negligence, proof of actual damage is an essential ingredient as regards the cause of action. 39. A perusal of Ex.X.1, letter dated 18.11.1992 addressed by the learned Additional District and Sessions Judge, Pondicherry at Karaikal to the Executive Engineer (fourth respondent), Public Works Department, Karaikal, points out that 'the roofs and beams supporting the roof of the District Court building were worn out in certain places causing thereby leakage from the roof and that a request has been made for inspection of the building and for taking