1 fa1210 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1210 OF 2010 The State of Maharashtra The Secretary to the Government of Maharashtra ...Appellants vs. Smt.U.P.Adke & Anr. ...Respondents Mr.A.R.Patil, A.G.P for the appellants Ms Jyoti Pande for the respondent nos.1 to 4 Respondent nos.5 and 6 dead. None appears for the respondent no.7 CORAM : A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED:SEPTEMBER 15,2011 DATE ON WHICH JUDGMENT IS PRONOUNCED:OCTOBER 19,2011 JUDGMENT: 1 The appellant-State of Maharashtra and the Secretary of Public Works Department of Government of Maharashtra have preferred the present appeal for challenging the Judgment and decree dated 6 th may 2010 passed by the Civil Judge (Senior Division) at Nashik by which the appellants have been directed to pay compensation of Rs.2,00,000/- to respondent nos. 1 to 6 who are the original plaintiffs. The appellants have been directed to pay interest at the rate of 9% per annum from the date of suit till realization. The compensation has been ordered and decreed to be paid as the State Government failed to maintain a public road in a proper condition which resulted in the accidental death of the husband of 2 fa1210 the first respondent. The State Government and the Cantonment Board have blamed each other for the accident. 2 The record of the suit was called for and the appellants were permitted to file paper book. The parties were put to notice that the Appeal will be taken up for final disposal. The appeal arises out of a very unfortunate incident which took place on 10 th November 1995. One Mr.Pundalik (deceased husband of the respondent No.1) was plying his scooter on a road known as Lam Road, Nasik. He was proceeding towards his house from Nasik Road at about 10.30 p.m. When the said Pundalik reached near the Dastagir Dhaba Square on the Lam Road, there was a ditch dug across the road. The ditch was dug for the purpose of providing the water pipe line connection from the main pipeline which was on the right hand side of the road which proceeds from Nashik Road towards Deolali camp. The said ditch was of considerable depth and width. It is alleged that there was no indicator put on for warning the drivers of the vehicles that there was a ditch. Though the deceased was driving the vehicle very cautiously, he fell down in the said ditch. He sustained injuries to the head and other parts of the body. Unfortunately, he succumbed to the injuries after he was admitted to a hospital. The death was due to shock caused by the head injury. The first respondent is the widow of the deceased. The second to fourth respondents are the minor children of the deceased and fifth and sixth respondents are the parents of the deceased. The 3 fa1210 appellants were impleaded as first and second defendants in the suit and the seventh respondent Cantonment Board has been impleaded as the third defendant. 3 The allegation in the plaint is that the road was vested in the appellants and therefore, it was the statutory duty and obligation of the appellants to maintain the road in proper and good condition. It is contended that there was neglect, default and wrongful omission on their part. It was contended that the water pipeline was owned and maintained by the 7 th Respondent-Cantonment Board. At the spot of accident, the main water line was on the right hand side of the road and the digging was made across the road for giving supply to the premises on the left hand side of the road through the main line on the right hand side. It was contended that even the Cantonment Board is guilty of negligence as it failed to maintain the portion of the road in proper condition. 4 It is alleged that the age of the deceased was 42 years and his income was about Rs.1,00,000/- per annum. A claim for damages in the sum of Rs. 10,00,000/- was made by the plaintiffs after giving a statutory notice to the appellants as well as to the seventh respondent. 5 Written statement was filed by the Appellants on 13 th February 1999 which was subsequently amended. It was contended that prior written permission of the Executive Engineer of the Public Works Department of 4 fa1210 the State Government is required before carrying out the work of any kind including the digging or repairs of the roads. It was contended that the work of laying down pipe line was going on at the instance of Cantonment Board and therefore, the Appellants cannot held to be liable. By way of amendment to the written statement, reliance was placed on the provisions of the Public Works Manual. However, as far as other paragraphs of the plaint are concerned, there is a vague denial in the written statement. There is no specific case made out that there was no ditch on the road or that the deceased did not fall in the ditch. 6 The seventh respondent-Cantonment Board filed a written statement by contending that the liability was of the Appellants as the road was vesting in them and the Appellants. The Appellants were responsible for maintenance of the road. 7 After evidence was adduced by the parties, the Trial Court recorded a finding that the deceased Pundalik died as a result of fall in the ditch. The Trial Court held that the Appellants were guilty of negligence in the matter of properly maintaining the road. Though the Trial Court held that the respondent nos.1 to 6 were entitled to compensation, the compensation amount was fixed at Rs.2,00,000/- with interest thereon at the rate of 9% per annum from the date of institution of the suit. 8 The learned A.G.P for the Appellants has taken the Court through the notes of evidence. He invited 5 fa1210 the attention of the Court to the evidence of Shri Jibhau Gangurde, Sub Divisional Officer, South Public Works Division, Nashik. He pointed out that the witness stated in the evidence that, before digging the road there was no permission obtained from the Public Works Department either by the Cantonment Board or by any other party. He pointed out that the witness stated that the road in question has been handed over on 18 th August 2004 to the Cantonment Board. The learned A.G.P, therefore, submitted that the Appellants were not liable as there was unauthorized digging of the road by the some one without obtaining permission from the Public Works Department. He submitted that there can be no negligence attributed to the Appellants. He submitted that the entire liability, if any, ought to have been of the Cantonment Board which has not even bothered to appear before this Court. 9 The learned counsel for the respondent nos.1 to 4 on instructions states that the said respondents are not desirous of filing any cross appeal or cross objection. The learned counsel for the said respondents defended the impugned Judgment and decree and submitted that no interference is called for. She prayed for heavy costs. 10 I have perused the evidence on record. The first plaintiff widow stepped into witness box. Though she had no personal knowledge, she has deposed about the accident. She deposed that there was a ditch on the road and the deceased fell into the ditch. She was cross examined by the Advocate 6 fa1210 for the Appellants in which a suggestion given is that the spot of accident is within the jurisdiction of seventh respondent Cantonment Board. A suggestion was also given that the work of maintenance of the road was being carried out by the seventh respondent Cantonment Board but the correctness of the said suggestion was denied. Other suggestion in the cross examination was that the Appellants were not concerned with the said road. The correctness of the said suggestion was denied by the first respondent. In the cross examination by the Advocate for the Cantonment Board, it was suggested that there was no such ditch on the spot. There is some cross examination made by the learned counsel for the Cantonment Board on the income of the deceased. The plaintiffs examined one Mr. Dharmaraj Wagh a retired police officer who was working as the police Hawaldar on the relevant date with Deolali police station. He stated that the accidental death report in respect of the death of the deceased Pundalik was recorded with Deolali Police Station on 10 th November 1995. He stated that he investigated into the matter. He stated that he recorded inquest panchanama and he recorded statements of the witnesses. He stated that he has also drawn the spot panchanama. He proved the spot panchanama which is at at Exh.59. He stated that after investigation he found that the deceased died as his scooter fell down in the ditch. Surprisingly, the said witness was not cross examined by the Appellants. There is a brief cross examination by the Advocate for the Cantonment Board by giving a suggestion that the witness had not 7 fa1210 drawn inquest panchanama and the spot panchanama. He denied the correctness of the said suggestion. 11 As pointed out earlier, an affidavit in lieu of examination-in-chief was filed by the Appellants of one Mr.Jibhau Gangurde, Sub Divisional Officer of concerned Sub Division of Public Works Division. In paragraph 7 of the affidavit in lieu of examination- in-chief, he stated that for the purpose of giving water connection from the main water line of the Cantonment Board, the road was dug up on behalf of the said Board. He stated that a prior permission of the Public Works Department was not obtained before carrying out the work of digging. In paragraph 10 of the affidavit in lieu of examination-in-chief, he stated that as the Cantonment Board had not obtained permission of the Appellants for carrying out the work on the road, the Appellants are not concerned with the accident. In paragraph 12 of the said affidavit, the witness specifically stated that the road in dispute falls within the jurisdiction of Appellants but as the defendant no.3-Cantonment Board carried out the work without permission, the Appellants are not concerned with the consequences. In the cross examination, he admitted that no action has been taken against the defendant no.3 for digging the road without permission of the Appellants. In the cross examination, the witness came out with a case that at the time of accident the road was not within his jurisdiction. In the further part of the cross examination, he stated that the road was handed over by the Appellants in the year 2004 to the Cantonment 8 fa1210 Board. Even that is the statement made on the affidavit in lieu of examination-in-chief in paragraph 12. 12 In the present case, the accident occurred on 10 th November 1995 and therefore, admittedly, as of that date, the road was vesting in the Appellants and they were responsible for proper maintenance of the said road. Categorical statement in paragraph 12 of the evidence of Jibhau Gangurde is that the said road which was within the jurisdiction of Appellants was transferred to the seventh respondent-Cantonment Board on 18th August 2004. Therefore, a categorical finding will have to be recorded that on the date of accident it was the responsibility of the Appellants to maintain the road in proper condition. 13 The seventh respondent-Cantonment Board examined one Ramesh Yadav as a witness by filing his affidavit in lieu of examination-in-chief. His version is that on the date of accident, the road was not vesting in the Cantonment Board and that the Public Works Department was the owner of the road. He stated that no one had taken the permission from the Cantonment Board for digging the road. In the cross examination, he admitted that Mr.Sawant was serving in Water Department in Cantonment Board in the year 1995. He stated that he was not aware that on 10 th November 1995, the road was found dug. 14 After consideration of the evidence, the scenario which emerges is that the Appellants have not disputed that there was a ditch on the road. 9 fa1210 The Police Officer of the first Appellant after investigation came to the conclusion that the accident occurred due to fact that the scooter fell in the ditch on the road. The Police Officer was not cross examined by the Appellants. It is an admitted position that on the date of accident, the road was vesting in the Appellants and the Public Works Department of the Appellants was responsible for maintaining the road. It is not the case made out that the digging work was carried out just before the accident and therefore, the Officers of the Appellants were not aware of the said ditch. 15 Notwithstanding the admitted position that the road was vesting in Appellants on the date of accident, a suggestion was given to the widow of the deceased that in her cross examination it was the Cantonment Board which was responsible for maintaining the said road. A suggestion was given to her by the Appellants that there is no evidence produced by her to show that the said Public Works Department was responsible for maintaining the road. To say the least, this stand taken in the cross examination was not honest. Only contention of the Appellants was that the work of digging was carried out without prior permission of the Public Works Department. This contention cannot absolve the Appellants from their obligation of maintaining the road in proper condition. The accident occurred at 10.30 p.m. It is not the case of the Appellants that the road was well lighted. The spot panchanama at Exh.59 is proved by the Police Officer and there is no challenge by the Appellants to the contents of 10 fa1210 the spot panchanama as the Police Officer who has drawn the panchanama was not cross examined. The panchanama records that from one side of the road to the other side, there was a ditch of 6 to 9 inches in depth and 2 feet in width. The spot panchanama shows that there was no warning displayed near the spot that there was such a huge ditch having width of 2 feet and depth of about 9 inches. Thus, that particular section of the road certainly was not fit for traffic. There is a gross negligence on the part of the Appellants. The failed to perform their duty of maintaining the road in proper condition. It was the duty of the Appellants to warn the drivers of the vehicles by putting up display Boards. Obviously, due to darkness, the deceased did not spot the said ditch and the scooter fell in the ditch. Thus, there was complete failure on the part of the Appellants to perform their obligation of taking due care and caution and thus, the Trial Court is right in holding that there is gross negligence on the part of the Appellants. 16 As far as the quantum of compensation is concerned, the age of the deceased was 42 years. Even assuming that there was no specific evidence of income of the deceased, compensation of Rs. 2,00,000/- granted by the Trial Court is in fact less than reasonable, considering the fact that the deceased was survived by his widow and three minor children along with parents. Therefore, it is not possible to interfere with the quantum of compensation. In fact, the compensation could have been higher but the plaintiffs are not interested in 11 fa1210 claiming any enhancement. It is unfortunate that such a suit filed in the year 1998 remained pending till May 2010. 17 Looking to the findings recorded by the Trial Court, the litigation should have come to an end after the decree. However, the matter has been carried by the appellants to this Court. The stand taken by the appellants during the course of trial is not at all fair. The original plaintiffs were required to engage an Advocate before this Court. Therefore, this is the fit case where the appellants will have to be saddled with costs. The amount of costs is quantified at Rs.15,000/-. 18 Hence, I pass the following order : i) Appeal is dismissed. ii)The appellants shall pay costs of Rs.15,000/- to the first to fourth respondents-original plaintiffs within a period of six weeks from today. The amount shall be paid by an account payee cheque drawn in favour of the first respondent payable at Nashik. JUDGE