IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.11.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.No.596 of 2003 1.The Union of India, rep. By the Chief Secretary, Government of Pondicherry. 2.The Local Administration Department, rep. By its Under Secretary, Government Of Pondicherry. 3.Bahour Commune Panchayat, rep. By its Commissioner, Bahour Pondicherry. ....Appellants/defendants1 to3 Vs 1.Bertine Jeanne Marie 2.Bortine Maria Nathalia (R2 declared as major and R1 discharged from guardianship vide order of court dated 19.11.2007 made in CMP Nos.3297 and 3298 of 2007) 3.Bertine Sbestine Gilbert (Minor) 4.Sain John Paul (Minor) (Minor Respondents 3 and 4 rep. by R1 Mother) 5.S.Muthukrishnan ....Respondents/Plantiff/defendant4 Prayer:Appeal filed under Section 96 of C.P.C. against the Judgment and Decree dated 06.01.2003 in O.S.No.315 of 1999 on the file of the Sub Judge, Pondicherry. For Appellant :Mr.D.Sreenivasan Government Pleader (Pondicherry) For Respondent : Mr.R.Subramanian for RR1, 3 and 4 No Appearance for RR2 and 5 J U D G M E N T The Appellants/Defendants D1 to D3 have preferred the present Appeal as against the Judgment and Decree dated 06.01.2003 in O.S.No.315 of 1999 passed by the Learned Additional Sub Judge, https://hcservices.ecourts.gov.in/hcservices/ Pondicherry. 2.The trial court while passing the Judgment in O.S.No.315 of 1999 dated 06.01.2003 has among other things observed that 'the Appellants/Defendants 1 to 3 are made liable to pay the compensation to the Respondents/Plaintiffs and not the Fourth Defendant in this case and further directed the Appellants/Defendants D1 to D3 to pay a compensation amount of Rs.5,20,200/- in equal proportions with interest at 9% p.a. from the date of filing of O.P. till date of payment within three months from the date of Judgement, etc., and ordered the Government to pay the Court Fees. 3.Before the trial court, on behalf of the Respondents/Plaintiffs, Witness P.W.1 (First Respondent/Plaintiff) has been examined and Exs.A1 to A10 have been marked. On the side of the Appellants/Defendants D1 to D3, Witness D.W1 to D.W3 have been examined and Ex.B1 has been marked. 4.Being dissatisfied with the Judgment and Decree passed by the trial court in O.S.No.315 of 1999 dated 06.01.2003, the Appellants/Defendants D1 to D3 have projected the present Appeal before this Court as aggrieved persons. 5.The points that arise for consideration in this Appeal are: i)Whether the Bus Stop (Passenger Shed) has been constructed by the Fourth Defendant in a faulty manner? ii) Whether the Third Appellant/Third Defendant and the First Appellant and Second Appellant/Defendants D1 and D2 are squarely responsible for the faulty construction of the shed and for not carrying out the supervision of the said construction work properly? iii)Whether the Bus Stop (Passenger Shed) has collapsed due to Act of God resulting in the death of Constable Bertine Antony Maiojassee? iv)Whether the Respondents/Plaintiffs are entitled to claim a compensation of Rs.15 Lakhs as minimal damages together with just interest from the Appellants/Defendants? CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINTS 1 TO 3: 6.According to the Learned Government Pleader (Pondicherry), the Appellants 1 and 2/Defendants 1 and 2 have nothing to do with the suit claim because of the fact that the Plaintiffs have stated that the bus shed in issue belongs to the Third Appellant/Third Defendant which called for the tender and caused it to be constructed by the Fourth Defendant/Contractor and the Third Appellant/Third Defendant being governed by the Pondicherry Commune Panchayat Act is only responsible if at all there is any act of offence is made out and in short, absolutely there is no cause of action against the Appellants 1 and 2/Defendants 1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 7.It is the contention of the Learned Government Pleader that the trial court having found that the Fourth Defendant/Contractor who built the Passenger Shed is also jointly and severally liable but in one single stroke it observed that "with regard to the payment of compensation as already discussed the Fourth Defendant/Contractor is to be exempted from paying compensation along with the other Defendants and the trial court without any legal or factual basis in this regard has applied this rider incorrectly and therefore, the Judgment of the trial court in this regard is to be set aside by this Court, in the interest of justice. 8.Advancing his arguments, it is the contention of the Learned Government Pleader that there is absolutely no evidence in regard to the manner in which the alleged accident taken place on 22.06.1996 and further, the trial court should have considered that because of the rain, the Passenger Shed has fallen naturally on the date of accident and it is an Act of God but this aspect of the matter has not been appreciated by the trial court in proper perspective. 9. Proceeding further, the Learned Government Pleader appearing for the Appellants submits that the trial court has adopted the concept of 'Neverthless Application' and this is adopted as out of context one and the same cannot be sustainable in the eye of law. 10. According to the Learned Government Pleader appearing for the Appellants, the trial court assumed that the alleged Passenger Shed collapsed within a period of 1 ½ years from the date of its construction and that by itself is a negligent act in the matter of construction and maintenance which is not correct legally and also, the trial court has not given any finding as to how the Appellants 1 and 2 are responsible jointly and severally to pay the compensation at all. 11.Lastly, it is the submission of the Learned Government Pleader appearing for the Appellants that the trial court has applied the principles of Motor Vehicles Act in determining the quantum of compensation in respect of the death of Bertine Antony Maidjasse, which is not sustainable in the eye of law. 12.In short, the contention of the Learned Government Pleader appearing for the Appellants/Defendants is that the trial court has not adverted to the material factual aspects and legal aspects of the matter in a proper perspective which has resulted in miscarriage of justice and therefore prays for allowing the Appeal to promote substantial cause of justice. 13. In response, the Learned counsel appearing for the Respondents/Plaintiffs submits that the Respondents/Plaintiffs in the plaint have claimed a total compensation of Rs.15 Lakhs from the https://hcservices.ecourts.gov.in/hcservices/ Appellants/Defendants and the Fourth Defendant/Contractor jointly and severally with just interest from the date of filing of the suit and the trial court on an appreciation and scrutiny of the available oral and documentary evidence on record has come to the resultant conclusion in awarding Rs.5,20,200/- together with interest at 9% p.a. from the date of filing of O.P. (Pauper Suit) till date of realisation which is a reasonable, fair one and the same need not be interfered with by this Court sitting in Appeal at this distance of time. 14. It is useful for this Court to refer to the oral evidence of P.W1 and D.Ws.1 to 3 which play a significant role in the present case. 15.The First Respondent/First Plaintiff has been examined as PW1. PW1 in her evidence has deposed that the Respondents 2 to 4 are her minor children and her husband is the deceased Bertine Antony Maidjasse and he served as a Constable in Puducherry Police Station and on 22.06.1996, at about 06.30 p.m. in the evening her deceased husband Bertine Antony Maidjasse after returning from his work at Bahour Police Station near Kuruvi Natham Vazhapattu junction waiting for the bus at the Bus Stop/Passenger Shed, at that time, the Passenger Shed/Bus Stop collapsed and because of the shed collapsed her husband died on the spot itself and the Bus Stop/Passenger Shed has been maintained by the Third Appellant/Third defendant and the Fourth Defendant/Contractor is the person who has constructed the Passenger Shed and since the Third Appellant/Third Defendant comes within the purview of Pudhucherry Government and local Administrative Department, the Appellants 1 and 2 have been arrayed as parties to the suit. 16.The evidence of P.W1 is also to the effect that it is wrong to state that on the date of accident, there has been incessant rain and she has claimed approximate compensation of Rs.10 lakhs for which she issued Ex.A6 Notice to the Defendants and they have not given reply to the Notice. 17.It is the evidence of P.W1 (in cross-examination by D4 counsel) that the shed has been constructed in the supervision of the Third Appellant/Third Defendant and the shed has been handed over to the Commune Panchayat and it is only after 1 ½ years of handing over possession to the Third Appellant/Third Defendant, the shed has got collapsed and she has not filed any documents to show that the shed was constructed out of sub standard and spurious materials. 18.P.W1 goes on to add in her evidence that since her husband died at the age of 40 in the accident she has claimed a compensation of Rs.10 Lakhs and that a sum of Rs.1 Lakh has been given by the Third Appellant/Third Defendant as compensation for the death of her https://hcservices.ecourts.gov.in/hcservices/ husband. 19.D.W1 (Assistant Engineer in Thirunallar Commune Panchayat) has deposed that the bus shelter described in the plaint has been constructed by the Defendants under his supervision and at that time, the shelter has been maintained by the Third Appellant/Third Defendant and it has been constructed with quality materials prescribed by P.W.D. Specifications and these materials were not of sub standard quality as claimed in the suit and the bus shelter has collapsed due to heavy rain accompanying with thunder and lightning with high velocity of winds. 20.The evidence of D.W1 is also to the effect that the construction of the bus shelter has been completed on 06.01.1995 and soon after the collapse of the shelter, he has visited the spot and they are not in the practice of maintaining any register for inspecting the construction building under his control and after the construction of the shelter, it is the duty of the Third Appellant/Third Defendant Commune Panchayat for maintaining the same and there is no maintenance Register for the same. 21.D.W2 (Senior Clerk in the office of Daily Thanthi, Pondicherry) in his evidence has deposed that he has brought the Daily Thanthi Newspaper dated 23.06.1996 of Pondicherry Edition and in that paper at page No.4, paragraph Nos.5 and 6, it is reported that there was heavy rain at Kuruvinatham Village accompanied by heavy thunder and lightning with high velocity of wind and this has been reported based upon the Report submitted by their area reporter. 22.D.W2 in his cross-examination has categorically stated that the Report has not been published in their Newspaper after verification from the Weather Office, Pondicherry (Meteorological Office) and he does not know whether the Report has been based on any authenticated document obtained from the Weather Office, Pondicherry. 23.D.W3 (Fourth Defendant/Contractor) in his evidence has stated that he is a licenced P.W.D. Contractor and he has submitted his tender for the construction work of a passenger shelter at Kuruvinatham Village, Vazhapattu junction and he has been entrusted with the work and he has constructed the shed under the direct supervision of Assistant Engineer and Junior Engineer of the Third Appellant/Third Defendant and he has started the construction during the month of November 1994 and completed the constructed in the month of January 1995 and after completion of the work, he has handed over the shed to the Third Appellant/Third Defendant after inspection of the same by the Assistant Engineer and Junior Engineer of the Third Appellant/Third Defendant. 24.According to the evidence of D.W3, after completion of the construction of the shed, it is the duty of the Third Appellant/Third https://hcservices.ecourts.gov.in/hcservices/ Defendant to maintain the same properly and that the materials used for the construction have been duly verified by the Assistant Engineer and Junior Engineer with reference to quality and also with reference to specification and the shed has collapsed only after 1 ½ years after handing over it to the Third Appellant/Third Defendant and that he has been acquitted in S.T.R.No.267 of 1998 and further, the suit filed against him is not maintainable in law. 25.It is to be noted that negligence becomes actionable if actual damage can be established. As a matter of fact 'Negligence alone does not give a cause of action; the two must co-exist' as per decision J.R.MUNDAY LTD., V. LONDON C.C. 1960(2) KINGS BENCH 331, 334. 26.It is to borne in mind that the tort of negligence comprises of three essential requisites, each of which must arise viz., a) duty b) breach and c) resulting damage. Indeed, the existence of a duty to take care, which is owed by the Defendant to the complainant must be there. Also, the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty. Damage, which is both casually connected with such breach and recognised by the Law, has been occasioned to the complainant. 27. The duty of a Contractor in constructing a building or shed is to use the reasonable care and skill and such persons of ordinary competence, measured by the professional standard of the time. The building Contractor if not properly constructing the bus shed/Passenger Shed then he will be liable in negligence. 28.In evidence of negligence, the well known principle is Res ipsa loquitur i.e., the occurrence speaks for itself. In the instant case on hand, the Passenger Shed/Bus Stop has got collapsed on 22.06.1996 and on that date, the Deceased Constable has been standing in the Passenger Shed waiting to return to his home after completion of his duty at the police station. At that point of time, the Passenger Shed collapsed as a result of which the Constable viz., Bertine Antony Maidjasse viz., the Husband of the First Respondent/First Plaintiff died. The Respondents/Plaintiffs have proved the happening of the accident in the present case on hand. If the Respondents/Plaintiffs establish the manner of occurrence of accident then nothing more is required under the principle of Res ipsa loquitur. In such a case, the Respondents/Plaintiffs cannot prove more i) whether they can or not does not proceed to establish any specific act or omission on the part of the Appellants/Defendants. The mere 'occurrence of accident' speaks for itself since it will more consistent with negligence on the part of the Appellants/Defendants than with another cause. If that is so, a Court of law may find negligence on the part of the Appellants, since they give reasonable explanation to show how the accident has occurred without negligence on their part. https://hcservices.ecourts.gov.in/hcservices/ 29.The principle of 'Res ipsa locquitur' comes into operative play on the following factors, i) on proof of the happening an unexplained occurrence; ii) when the occurrence is one, which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and iii) the circumstances point to the negligence in question being that of any other persons; 30.The third requirement is fulfilled by showing that the instrument, causing the damage has been in the management and control of the Defendant, at the time of occurrence, but this is not essential. 31.The doctrine of Res ipsa locquitur will not apply when the cause of accident is known. A fall of the ceiling of a Theatre, hitting a member of the audience is a prima facie evidence of negligence on the part of occupiers of the theatre. Similarly, a brick falling out of railway bridge and struck a person on the highway is also a negligence. 32.When the maxim Res ipsa locquitur applies and a prima facie case of the negligence against the Defendant has been proved, it is insufficient for the Defendant to say merely that he has acted carefully but he can rebut the case by proving that he was not negligent even though he cannot prove how the accident has taken place. However, if the Defendants furnished a reasonable explanation, which is equally consistent with the accident happening without their negligence as with their negligence, they have again shifted their burden of proof back to the Plaintiffs to show as they always to show from the early stage that it was the negligence of the Defendants that caused the accident. 33.In considering the effect of reasonable explanation, it is to be noted that whether res established amounts to prima facie evidence of negligence, which is a question of law, and the second is whether the negligence ought to be held to be proved, which is a question of fact. When res ipsa loquitur applies, it is not strictly essential for the Defendant to disprove negligence. It is sufficient for him to neutralise the effect of presumption, raised by the res. In practice, the difference between neutralising the effect of the prima facie case and disproving the negligence may be so small as to be immaterial. 34. A court of law has to judge after analysing all the evidence placed before it, whether on balance the facts establish that the Plaintiffs has proved their case, the burden of which remained at the end as it was at the beginning, on them to discharge. If the Defendants let in no evidence there is nothing to rebut the inference of negligence, but if they let in evidence that has to be https://hcservices.ecourts.gov.in/hcservices/ measured to see whether it is still reasonable to draw the inference of negligence from the mere fact of the happening of the accident. 35.The Respondents/Plaintiffs have issued Ex.A6 Lawyer's Notice dated 14.08.1987 to the Appellants 1 to 3/Defendants 1 to 3 and to the Contractor/Fourth Defendant. In the said Notice, the Respondents/Plaintiffs have claimed a minimal compensation of Rs.15 Lakhs. In the plaint, they have averred that the minimal monthly pension on the death of the husband of the First Respondent/First Plaintiff shall be atleast Rs.2,500/- to ensure the dependency and benefit of life to the Respondents/Plaintiffs for atleast 20 years from the retirement of the Deceased and on such estimate, they have claimed a sum of Rs.10 Lakhs. 36.Before the trial court, the Third Appellant/Third Defendant has filed a Written Statement wherein it is averred that Bahour Commune Panchayat Council resolved to construct a passenger waiting shed near Vazhapattu at Kuruvinatham and the work has been entrusted to the Fourth Defendant and the shed has been constructed based on the estimation, plan and design duly approved by the competent Technical Authorities of the Department and the said Authorities are the technically known how the persons in the field and also, the Third Appellant/Third Defendant has closely watched the due execution of the construction of the Passenger Shed throughout all the days of the work and further, the quality and quantity of building materials and stock have been permitted for use only after being subjected to thorough examination by people who are luminaries with vase expertise to see that the work remain unblemished and perfect in all respects. 37. Continuing further, the Third Appellant/Third Defendant in the Written Statement has also stated that it has taken every sincere effort in maintaining quality of the material use and utilised the best workmanship and the Chief Engineer, P.W.D. Pondicherry as per Letter dated 03.07.1996 has opined that the workmanship and quality of the materials used are satisfactory and so probable cause of death has not been due to the sub standard quality of the material and workmanship and that the Engineer himself has admitted as per his Letter that the cause of the death may be due to high wind, lightning and thunder leading to the sudden collapse of the slab. 38. According to the Third Appellant/Third Defendant, on 22.06.1996, there has been heavy rain and the Reports about the accident published in the Newspaper and further, the Report of the local public and the Report of the Police Authorities of Bahour Police Station would go to show that the accident has taken place due to heavy rain and the accident is an Act of God, which is bound to happen cannot be prevented by human skill. https://hcservices.ecourts.gov.in/hcservices/ 39.The sum and substance of the contention of the Third Appellant/Third Defendant is that it is not in anyway responsible for the shed accident and that the sudden collapse has taken place due to viz., major and external force such as heavy rain coupled with lightning and thunder. 40.The Third Appellant/Third Defendant's Written Statement has been adopted by the Defendants 1 and 2 as per Memo dated 08.10.2001 filed by their counsel. 41.The Contractor/Fourth Defendant before the trial court in the Written Statement has among other things mentioned that there is no Act of Negligence or defective construction by using spurious materials and subsequent to the construction, the building has been inspected and it has been approved by the officials of the Third Appellant/Third Defendant and handed over to the Municipality and the accident has taken place after 1 ½ years of handing over of the Passenger Shed, it is the duty of the Defendants to maintain or up- keeping of the Passenger Shed. 42.In the Written Statement, the Fourth Defendant has also stated that he has been charged for an alleged offence under Section 304 A of I.P.C. By Bohour Police Station and he has contested the same and he has been acquitted in STR 267/98 on 20.08.1999 by the Sub-Divisional Judicial Magistrate, Pondicherry and the Criminal Court has observed that using of the sub standard materials for constructing the Passenger Shed have not been established to the satisfaction of the Court and as such, the suit is not maintainable. 43. A perusal of the Criminal Court Judgment Ex.B1 in STR 267/98 dated 20.08.1999 points out that a rash and negligent act of the Accused for the obligation of 304 A I.P.C. should be proximate the cause of death and not any act or omission which can at the most said to be the cause of death and therefore, the Fourth Defendant/Accused cannot be found guilty under the second and accordingly, he has been acquitted as per Section 255(1) Cr.P.C. And he has been ordered to be set at liberty. 44. It is apt for this Court in the present case to state that the Reporter of Tamil Newspaper Daily Thanthi has not been examined and as such, the Report of the Newspaper for establishing the case of the Appellants that the collapse of the Passenger Shed has been due to the Act of God and their control, etc., is not accepted by this Court. Generally, a Reporter who publish the concern Report will have to be examined. But in the instant case, the Reporter of Daily Thanthi who publish in the Newspaper about the accident of shed collapse has not been examined and it is certainly not a favourable circumstance in favour of the Appellants/Defendants in the considered opinion of this Court. https://hcservices.ecourts.gov.in/hcservices/ 45.It cannot be denied that the Passenger Shed is collapsed within 1 ½ years of its construction. How the Passenger Shed or Bus Stop has been collapsed on 22.06.1996 the date of accident is to be explained on the side of the Appellants/Defendants. Though an endeavour has been made on the side of the Appellants/Defendants that there has been heavy rain, lightning and wind on the date of accident, the Plaintiffs have denied the same and according to them, there have been a slight rain. No one from the Meteorological office/Weather office has been examined to speak about the the heavy Rainfall/lightning or wind in the instant case. 46. In the present case, though an allegation made against the Fourth Defendant/Contractor that he has used the sub standard materials for the construction of Passenger Shed, etc., the same has not been proved to the satisfaction of this Court. In a criminal case as per Ex.B1 Judgment in STR No.267/98 dated 20.08.1999 , the Fourth Defendant who has been charged under Section 304 (A) of I.P.C. has been acquitted by the Learned Sub Divisional Magistrate, Pondicherry. Therefore, the plea of the Respondents/Plaintiffs that the Fourth Defendant/Contractor has constructed the shed without sub standard materials, etc., falls flat