Suit for damages - Appreciation of Evidence = In suit for damages due to fall of portion of building by the tenants, Paper publications, photos and oral evidence is enough , Police report, postmortem report etc., not necessary due to sentiments family avoid for postmortem of body as it is not a criminal case While giving finding no court should go self contradiction of it's own findings =
To prove their case that Sitikanta Sastry died due to the fall of a
portion of the first floor under construction on him, the plaintiffs relied on
the oral evidence of P.Ws.1, 2 and 4 besides the newspaper reports about his
death which are marked as Exs.X.1 and X.2 and the photographs and their
negatives showing the collapsed portion of the building and the debris on ground
which were taken on the day after the accident and which are marked as Exs.A.7
to A.13.
It is true
that no report was given to the police and there was no post-mortem on the body
and there is no medical evidence. P.W.1, however, has given a plausible
explanation for the same in her evidence. After all this is not a criminal case
and proof beyond reasonable doubt is not required. This being a civil
proceeding, what is required is only a preponderance of probability. I do not,
therefore, find any substance in the argument advanced by the learned counsel
for the respondents that non-compliance with the provisions of Sections 40, 174
and 176 of the Criminal Procedure Code is fatal to the suit. Considering the
cordial relations that existed between the two families, it is inconceivable
that the plaintiffs would have foisted a false claim of this nature on the
defendants if really there was no accident. No motive is attributed to the
plaintiffs for foisting a false claim against the defendants. In the reply-
notice Ex.A.15, it is stated that because the defendants demanded arrears of
rent to the tune of Rs.11,000/-, they came up with this false claim. This is
inconsistent with the plea taken in para.8 of the written statement where it is
stated that the second defendant has given up his claim for the arrears of rent
due from the plaintiffs out of compassion taking into consideration their
financial circumstances. Further the plea of contributory negligence put
forward in the reply-notice Ex.A.15 is an implied admission of the accident by
the defendants.
HON'BLE SRI JUSTICE C.V.N.SASTRI,
A.S.No.2329 OF 1993
26/06/2000.
P.Savitri and others.
petitioner
G.Kamalaender Kumar.
respondent
!Counsel for the petitoner:Mr.S.Satyanarayana Prasad,
Counsel for Respondent: Mr.Vilas V.Afzal Purkar
:(JUDGMENT):
The unsuccessful plaintiffs in the suit are the appellants in this appeal.
First plaintiff is the widow, plaintiffs 2, 4 and 5 are the sons and the third
plaintiff is the daughter of late P.Sitikanta Sastry who was a practicing
advocate of Guntur. The suit was filed by them claiming a total sum of
Rs.1,50,000-00 by way of damages and compensation for the pecuniary loss
suffered by them due to the death of their family head Sri P.Sitikanta Sastry in
a fatal accident on 5-5-1991 which allegedly occurred on account of the wrongful
act, negligence and default of the defendants. Originally the suit was filed
against the mother and father of the first respondent herein as defendants 1and
2. As they died during the pendency of the suit, respondents 1 to 3 herein were
brought on record as defendants 3 to 5 in the suit.
2.It is not in dispute that Sitikanta Sastry and his family members were in
occupation of a portion on the ground floor of the building of the defendants as
tenants. It is the case of the plaintiffs that on 5-5-1981 at about 8 P.M.
while Sitikanta Sastry was relaxing in front of his residential portion lying on
a cot, suddenly a portion of the first floor of the building which was under
construction collapsed and the sun-shade and the parapet wall fell down on
Sitikanta Sastry resulting in his death. According to the plaintiffs, the
aforesaid construction was defective and it was made without any proper
guidance, skill or supervision. The plaintiffs also came to know later that the
construction was made without any sanctioned plan and permission from the
Municipality. The defendants are thus guilty of causing the death of Sitikanta
Sastry by their wrongful acts and negligence for which they are liable to
compensate the plaintiffs. Sitikanta Sastry, besides being an active legal
practitioner, was a highly influential and well connected person. He was legal
adviser to several labour unions and he was also a labour leader, a good
sportsman and a cricket player. He was also the Secretary of the Cricket
Association. He was a man of high status in society and he belonged to a very
affluent family. He was earning a minimum of Rs.2,000-00 per month. He was
aged only 55 years by the date of his death. By reason of his untimely death,
the plaintiffs are put to great hardship and loss as he was the only earning
member and head of the family. He was a healthy man and in the normal course he
would have lived up to the age of 75 years. On the said allegations, the
plaintiffs claimed a total sum of Rs.1,50,000-00 towards damages and
compensation. He was survived by his wife, four sons, four daughters and his
aged mother. The suit was, however, filed by the wife, three sons and the
unmarried daughter only on the ground that one son and three daughters were
already married and the mother of the deceased was living separately and they
were not, therefore, his dependants. It is, however, stated in the plaint that
the suit is filed for their benefit also. Before filing the suit, the
plaintiffs got issued a legal notice to the defendants (Ex.A.14) to which the
second defendant sent a contentious reply (Ex.A.15) denying liability. Hence
the suit.
3.The suit was resisted by the defendants denying the alleged accident and
asserting that Sitikanta Sastry died of natural causes only. It was pleaded
that Sitikanta Sastry was aged more than 65 years and he was ailing and
afflicted with blood pressure and cardiac trouble. He ceased to practise as
advocate and he had no income worth mentioning and that he was not in a position
to pay the rent also regularly. The defendants also denied that the new
construction made by them was defective and asserted that the second defendant
was an A-Class contractor of the Public Works Department and that the
construction was made according to standard specifications and by taking
necessary precautions. It was also asserted that the construction was made only
after submission of plans and approval by the Municipality. They also denied
that there was any negligence on their part and disputed their liability. It
was further pleaded that the plaintiffs were not entitled to claim any
compensation as they did not follow the procedure prescribed under the Fatal
Accidents Act and the suit was also liable to be dismissed for non-joinder of
necessary parties i.e., the other legal representatives of the deceased. It was
also pleaded that the first defendant was not a necessary or proper party to the
suit. The defendants also disputed the quantum of damages as being excessive
and exaggerated. Finally it was pleaded that the plaintiffs were trying to make
capital out of the death of Sitikanta Sastry who died of a natural cause only
with an avowed object of gaining illegal benefit and that the plaintiffs' claim
was not sustainable either in fact or at law.
4.On the above pleadings, the following issues were settled for trial:
(1) Whether the first defendant is not a necessary party to the suit.
(2) Whether the suit is liable to be dismissed for non-joinder of necessary
parties.
(3) Whether the defendants are liable to pay the damages, if so, what amount?
(4) Whether the death of the deceased Sitikanta Sastry was the result of
negligence of first and second defendants.
(5) To What relief.
5.To prove their case, the plaintiffs examined P.Ws.1 to 4 and got marked
Exs.A.1 to A.29 and Exs.X.1 and Ex.X.2. On the defendants' side, the third
defendant was the solitary witness examined as D.W.1 but no documents were
marked.
6.On consideration of the oral and documentary evidence on record, the trial
court held on Issue No.4 that the plaintiffs failed to prove that late Sitikanta
Sastry died as a result of negligence of D.1 and D.2. The trial court,
however, found Issues 1 and 2 in favour of the plaintiffs. In view of the
finding on Issue No.4, the trial court held on Issue No.3 that the plaintiffs
are not entitled for any damages. On the said findings, the trial court
dismissed the suit without costs.
7.Sri S.Satyanarayana Prasad, the learned senior counsel appearing for the
plaintiffs-appellants, assailed the judgment of the trial court by contending
that the trial court erred materially in placing the burden of proof on the
plaintiffs and its judgment is thereby vitiated. He also submitted that on the
facts and in the circumstances of the case, the doctrine Res Ipsa Loquitur has
to be applied and it is for the defendants to explain as to how the structure
collapsed. As they failed to do so, negligence has to be inferred. He further
submitted that as the defendants failed to produce the sanctioned plan and the
approval of the Municipality for construction, an adverse inference has to be
drawn against them and it must be held that the construction is unauthorized,
illegal and defective. He also submitted that the evidence of P.Ws.1 to 4
coupled with the documentary evidence Exs.X.1, X.2 and the photographs Exs.A.7
to A.13 amply prove the case of the plaintiffs whereas the defendants miserably
failed to discharge the legal burden lying on them. The evidence of D.W.1 has
no value as he clearly admitted that he was abroad at the relevant time and he
had no personal knowledge of the events leading to the death of Sitikanta
Sastry. He also contended that the entire approach of the trial court is wrong
as the trial court treated the case as a criminal case and applied a wrong
standard of proof. He further submitted that the evidence on record clearly
shows that the parties had cordial relations all through and the plaintiffs had
no motive for foisting a false claim on the defendants. He finally submitted
that the damages claimed are very modest and reasonable having regard to the
age, earning capacity, income and status of the deceased.
8.On the other hand, Sri Vilas Afzal Purkar, the learned counsel appearing for
the defendants-respondents, has made the following submissions:
It is not proved that it is a case of accidental death. There is no plea or
proof of any injuries sustained by the deceased. There is no medical record or
medical evidence. There is no death certificate. There was no police
complaint. No post-mortem was conducted. The procedure contemplated by
Sections 40(d), 174 and 176 of Cr.P.C. has not been complied with. There is
nothing to show that it is a case of unnatural death. The principle Res Ipsa
Loquitur cannot be applied to the case. The oral evidence of P.Ws.1 to 4 is
highly discrepant and unreliable. The learned counsel for the respondents
finally submitted that the trial court has properly appreciated the evidence on
record and has given very cogent reasons in its judgment and there are no valid
grounds whatsoever for interference in appeal.
9.I have carefully gone through the entire evidence, oral and documentary, on
record and also the judgment of the lower court. Though in the written
statement, the defendants have taken a plea of total denial of the accident
itself, they do not seem to have seriously disputed in the lower court the fact
that a portion of the building under construction collapsed. The main plank of
their defence appears to be that the death of Sitikanta Sastry was not due to
the accident but he died of natural causes and that, in any case, it was not due
to any negligence on their part and they cannot, therefore, be held liable.
The lower court in para.20 of its judgment, while discussing the oral and
documentary evidence adduced on behalf of the plaintiffs, observed as follows:
"Therefore, there is no doubt that there is discrepancy as to
whether it is the fall of parapet wall or of sun-shade or both that caused the
death of late Sitikanta Sastry but in my opinion this discrepancy does not
weaken the plaintiffs' case in any manner since there is no dispute from the
defendants that there is a fall of some portion under construction."
Having said so, the lower court, however, contradicted itself by observing in
para.32 of its judgment as follows:
"Therefore, the accident as alleged is not admitted by the defendants. If it is
proved that there was fall of the parapet wall or sun-shade as the case may be
and if it is proved that the husband of P.W.1 died as a result, then it is for
the defendants to prove that there was no negligence or laches on their part in
construction of the building. But until then, it is for the plaintiffs to prove
that the husband of P.W.1 died by an accidental fall of the portion of the
house. His death is not disputed as I see. How he died is the question."
Mainly relying on the circumstances that no report was given to
the police about the death and no post-mortem was conducted and there is no
medical evidence to prove the nature of the injuries or cause of death and
noticing some inconsistencies in the oral evidence adduced on behalf of the
plaintiffs in that behalf, the lower court went on to hold that in the facts and
circumstances of the case, the maxim Res Ipsa Loquitur has no application and
that the plaintiffs failed to prove that Sitikanta Sastry died as a result of
negligence on the part of the defendants.
It is true that in the matter of
appreciation of oral evidence the trial court stands in a better position as it
has the advantage of observing the demeanor of the witnesses while recording
evidence and its opinion is, therefore, entitled to weight. However, the
appellate court which is the final court of fact is free and it is also its duty
to independently examine and assess the evidence in the light of the settled
principles of law and arrive at its own conclusion.
10.To prove their case that Sitikanta Sastry died due to the fall of a
portion of the first floor under construction on him, the plaintiffs relied on
the oral evidence of P.Ws.1, 2 and 4 besides the newspaper reports about his
death which are marked as Exs.X.1 and X.2 and the photographs and their
negatives showing the collapsed portion of the building and the debris on ground
which were taken on the day after the accident and which are marked as Exs.A.7
to A.13.
P.W.1 is the first plaintiff who is no other than the wife of the
deceased. She deposed that both the parapet wall and the sunshade fell on her
husband while he was lying on a cot in open space under the sunshade and
relaxing. All the other family members were inside the house. Between 8.30
P.M. and 9 P.M., they heard a big sound of falling of a house. The first floor
roof fell down on the parapet wall and also on the sunshade of the ground floor
in which they were residing. A portion of the constructed house material fell on
her husband's body and he died instantaneously due to the fall of a portion of
the building on him. She also stated that the first floor was being constructed
without obtaining any sanction from the Municipality and without any approved
plan and that the portion of the building collapsed due to the negligence on the
part of the defendants as the scaffolding was removed even before the completion
of the period required for settling the concrete. She further stated that they
did not give any report to the police as her mother-in-law did not agree for
post-mortem and as the second defendant also had some discussions with her
husband's brothers after the death of her husband. She, however, stated in her
cross-examination that they did not report to the police since the police
themselves came to the scene. She, further, deposed in her cross-examination
that her husband was taken to the Government hospital and he was examined by the
doctor before admission and she does not know whether the doctor noted the
injuries of her husband and there is no documentary evidence to show the
injuries sustained by her husband and also the cause of death. She also deposed
that the death of her husband was reported in two daily newspapers, namely,
Andhra Patrika and Andhra Jyothi dated 8-5-1981 (which were marked as Ex.X.1 and
X.2 and in which it was reported that Sitikanta Sastry died by falling of a
parapet wall under construction). She also deposed that the said information
for publication was given by one P.S.Venkateswar Rao who was the Secretary of
Andhra Cricket Association and a friend of her husband.
11.P.W.2 is an alleged eye-witness to the occurrence. He hails from the same
village as Sitikanta Sastry and used to live with Sitikanta Sastry and his
family members in the same house while prosecuting his studies at Guntur. He
deposed that on 5-5-1981 Sitikanta Sastry died while he was taking rest on a cot
due to fall of the parapet wall of the newly constructed first floor and he
(P.W.2) personally witnessed the said accident. He also stated that due to
defects in construction, the said parapet wall collapsed and that Sitikanta
Sastry died on the way to the General Hospital. In his cross-examination, he
stated that due to the fall of the wall on the chest and on the face, Sitikanta
Sastry died and as he passed away on the way to the General Hospital, they
brought him back without taking him to the hospital. He also stated that
between 8.30 P.M. and 9.00 P.M., himself and Sitikanta Sastry's son were talking
at the gate while Sitikanta Sastry was relaxing on the cot in open space. The
lower court doubted his presence at the scene on the ground that P.W.1 did not
mention about his presence in her evidence.
12.P.W.3 is a Municipal Contractor and the Secretary of the Lorry Drivers and
Cleaners Union. He was mainly examined to speak about the income and the
earning capacity of Sitikanta Sastry. He deposed that Sitikanta Sastry was
attending to labour courts and was having good practice, that he had two clerks
and was earning Rs.200/- to Rs.300/- per day during those days. He stated in
his cross-examination that his union matter was entrusted to Sitikanta Sastry.
His evidence does not throw much light regarding the manner of death of
Sitikanta Sastry.
13.P.W.4 is a Gazetted Officer who was a co-tenant of Sitikanta Sastry for about
three years in the same building. He stated that just before one month of the
accident he vacated the portion under his occupation and shifted to another
house. On coming to know about the death of Sitikanta Sastry on the next day
morning, he went to the house of Sitikanta Sastry and saw the dead body. He
also noticed debris of the sunshade which was lying in a heap all along the
wall. He also stated that the death of Sitikanta Sastry was reported in the
Andhra Patrika and the Andhra Jyothi daily newspapers on 8th May, 1981 and that
the press release was issued by the Secretary, Andhra Cricket Association to
condole his death. He further stated that he was subscriber of Andhra Jyothi.
He stated that P.W.2 also used to reside in the house of Sitikanta Sastry.
14.As against the above oral evidence on behalf of the plaintiffs, the third
defendant, who is the son of the defendants 1 and 2 and who came on record as
one of their legal representatives after their death, was the sole witness
examined on the side of the defendants. He is a doctor by profession. However,
his evidence is not of much value since admittedly he was living abroad from
December 1979 to January 1982. He clearly admitted in his evidence that he does not know the reasons for
the death of Sitikanta Sastry personally. He, however, deposed that, while
Sitikanta Sastry was residing in their house as tenant, he was not practicing as
advocate, that he had no practice at all, that he was an alcoholic and he used
to be drunk always and he was suffering from heart ailment and blood pressure.
He also stated that Sitkanta Sastry's family was not depending on his income.
He further deposed that his father was an A-Class P.W.D. contractor and the
building in question was constructed under his supervision and as such there was
no possibility of the construction being defective. He stated that he came to
know from his parents that Sitikanta Sastry died of heart attack. In his cross-
examination, he deposed that he does not know the mode of the construction of
the house and that he does not know whether the parapet wall had fallen or not
as alleged in the plaint. He, however, denied the suggestion that Sitikanta
Sastry died due to the accident mentioned in the plaint. His evidence would
further show that photocopies of all the certificates relating to his
educational qualifications and date of birth etc., were given to Sitikanta
Sastry and it was suggested to him that they were handed over to Sitikanta
Sastry, who was very influential for securing a suitable job for him before he
left for abroad. The witness, however, denied the suggestion. It was also
elicited from him during his cross-examination that his wife died at Hyderabad
while he was abroad and thereafter there was some litigation between him and his
father-in-law. He, however, denied the suggestion that he sought the assistance
and advice of Sitikanta Sastry in that connection. At any rate, his evidence
would reveal that his family had cordial relations with Sitikanta Sastry and his
family members and there was no enmity whatsoever between them.
15.The above oral and documentary evidence on record, particularly the evidence
of P.Ws.1, 2 and 4 coupled with Exs.X.1, X.2 and A.7 to A.13, clearly
establishes that Sitikanta Sastry died due to the accident in which a portion of
the building under construction collapsed and fell on him. I do not find any
valid grounds to doubt the veracity of P.Ws.2 and 4 who are independent
witnesses. Their evidence is corroborated by contemporaneous newspaper reports
Ex.X.1 and X.2 and the photographs and negatives marked as Exs.A.6 to A.13. The
contradictions and inconsistencies in the oral evidence of P.Ws.1, 2 and 4
noticed by the lower court are relatively minor in nature and they are not
sufficient to discredit their testimony. They can be safely ascribed to the
fact that they were deposing nearly a decade after the incident. It is true
that no report was given to the police and there was no post-mortem on the body
and there is no medical evidence. P.W.1, however, has given a plausible
explanation for the same in her evidence. After all this is not a criminal case
and proof beyond reasonable doubt is not required. This being a civil
proceeding, what is required is only a preponderance of probability. I do not,
therefore, find any substance in the argument advanced by the learned counsel
for the respondents that non-compliance with the provisions of Sections 40, 174
and 176 of the Criminal Procedure Code is fatal to the suit. Considering the
cordial relations that existed between the two families, it is inconceivable
that the plaintiffs would have foisted a false claim of this nature on the
defendants if really there was no accident. No motive is attributed to the
plaintiffs for foisting a false claim against the defendants. In the reply-
notice Ex.A.15, it is stated that because the defendants demanded arrears of
rent to the tune of Rs.11,000/-, they came up with this false claim. This is
inconsistent with the plea taken in para.8 of the written statement where it is
stated that the second defendant has given up his claim for the arrears of rent
due from the plaintiffs out of compassion taking into consideration their
financial circumstances. Further the plea of contributory negligence put
forward in the reply-notice Ex.A.15 is an implied admission of the accident by
the defendants.
For all the aforesaid reasons, I am of the view that the lower court erred in
concluding that the plaintiffs failed to establish that the death of Sitikanta
Sastry was due to the accident pleaded by them.
16.The next question, which arises for consideration, is whether there is any
negligence on the part of the defendants making them liable and responsible for
the accident?
17.This being an action in tort for damages on the ground of negligence, the
legal burden of proof, no doubt, rests on the plaintiffs. It is not, however,
always necessary that direct proof of negligence should be adduced by the
plaintiffs. It is enough if they prove the circumstances from which a
reasonable inference of negligence on the part of the defendants can be drawn.
Negligence is not a question of evidence but it is an inference to be drawn from
proved facts. The plaintiffs succeed if the facts proved are inconsistent with
due diligence and care on the part of the defendants. There may be cases where
the plaintiff proves the happening of the accident and nothing more. He may or
may not be in a position to prove any specific act or omission on the part of
the defendant. The mere happening of the accident itself may be more consistent
with negligence on the part of the defendant than with other causes and if that
is so, the court find negligence on the part of the defendant unless he gives a
reasonable explanation to show how the accident may have occurred without
negligence on his part. This maxim is known in legal parlance as 'Res Ipsa
Loquitur'. The general purport of the words 'Res Ipsa Loquitur' is that the
accident 'speaks for itself' or tells its story. The burden of proof will be on
the defendant to explain and to show that the accident occurred without any
fault on his part. It is not a rule of law but is merely a rule of evidence
relating to burden of proof and nothing more (See Cole V. De Traflord1). This
is based on the theory that there are certain happenings which do not occur
normally unless there is negligence. Therefore, in .the case of such happening
the claimant is entitled to rely, as evidence of negligence, upon the mere
happening of such accident. (See S.K.Devi V.Uttam Bhoi2). In the leading case
of Scot V. London & Katherine Docks Co.3, it was held as follows:
"Where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by
the defendants, that the accident arose from want of care."
In Syed Akber V. State of Karnataka4, the Supreme Court
Considered the applicability of the maxim Res Ipsa Loquitur in civil as also
criminal cases in the light of the provisions of the Evidence Act and observed
as follows:
"The rule of Res Ipsa Loquitur, in reality, belongs to the law of torts where
negligence is in issue. But the peculiar circumstances constituting the event
or accident, in a particular case, may themselves proclaim in concordant, clear
and unambiguous voices the negligence of somebody as the cause of the event or
accident. It is to such cases that the maxim Res Ipsa Loquitur may apply, if
the cause of the accident is unknown and no reasonable explanation as to the
cause is coming forth from the defendant. To emphasise the point, it may be
reiterated in such cases, the event or accident must be of a kind which does not
happen in the ordinary course of things if those who have the management and
control use due care. Further the event which caused the accident must be
within the defendant's control. The reason for this second requirement is that
where the defendant has control of the things which caused the injury, he is in
a better position than the plaintiff to examine how the accident occurred."
In MUNICIPAL CORPN. OF DELHI V. SUBHAGWANTI5, the Supreme Court had to deal with
a case where a clock tower owned by the Municipal Corporation and abutting the
high way collapsed resulting in the death of some persons passing along the
highway. It was held that the Municipal Corporation had a special obligation to
ensure the safety of the structure and it was liable for damages for loss of
life caused whether by patent or latent defects and that the principle of Res
Ipsa Loquitur was attracted to the case.
In NARASAPPA V. KAMALAMMA6, a cement concrete beam under construction by a
contractor under the control and supervision of the State Electricity Board
suddenly collapsed causing the death of a workman. Though the cause of the
accident was unknown and specific allegations of negligence were not proved, the
court, applying the maxim Res Ipsa Loquitur, drew a presumption as to negligence
and held both the contractor and the Electricity Board liable in damages.
COLLECTOR, GANJAM V. CHANDRAMA DAS7 was a case in which the portico of a medical
college building fell down causing the death of two persons. The Supreme Court
held that the portico had fallen on account of the defect in construction and
how it had happened is within the exclusive knowledge of the defendants and
accordingly the court, applying the principle of Res Ipsa Loquitur, awarded
damages.
SYAM SUNDAR V. STATE OF RAJASTHAN8 is again a case where the Supreme Court held
that the doctrine of Res Ipsa Loquitur is applicable when the cause of the
accident is primarily within the knowledge of the defendant and the mere fact
that the cause of the accident is unknown does not prevent the plaintiff from
recovering damages.
In RAMESH KUMAR NAYAK V. UNION OF INDIA9, a Division Bench of the Orissa High
Court was dealing with a case where a compound wall of the Post Office collapsed
and fell on a person passing by, causing him injuries. In defence to the claim
for damages, it was pleaded that the wall collapsed due to torrential rain and
it was, therefore, attributable to a natural calamity. The court, however,
repelled the said contention and held that the Post Office was bound to ensure
the safety of the wall and to see that it in no manner endangers any other's
property or person and the inaction to maintain the wall in good condition can
be said to be an act of negligence. It was further observed that if the wall
was in good condition as alleged, it would not have collapsed for a length of
about 30 feet as acceptedly happened. It can certainly be inferred from the
aforesaid facts that the wall was not in good condition. The inaction to
maintain the wall in a good condition whereby the property or person were
endangered, can be said to be an act of negligence, because proper care was not
taken. Accordingly the opposite parties were held liable for payment of
compensation to the petitioner in that case.
In M.BHEEMAYYA V. APSEB, VIDYUT SOUDHA BHAVAN10, this court had to consider the
case of a cyclist who died due to electrocution when he came in contact with a
snapped electric live wire which was lying on the ground. It was held that the
burden lies on the Electricity Board to prove want of negligence by applying the
principle of Res Ipsa Loquitur and the claim for damages was upheld.
18.The learned counsel appearing for the respondents-defendants, however, sought
to contend that the principle of Res Ipsa Loquitur does not dispense with the
proof of negligence, that at best it is a principle of evidence but not of
liability, that it cannot be indiscriminately applied to all cases without
reference to the facts, and the said principle has no application to the facts
of the present case. In support of the said contentions, he sought to place
reliance on the judgment of a Division Bench of this court in K.NARAYANA V.
P.VENUGOPALA11 and also on certain observations made by the Supreme Court in the
case of SYED AKBER V. STATE OF KARNATAKA (4)(Supra). One can have no quarrel
with the said propositions of law. But I am unable to agree with the submission
of the learned counsel for the respondents that the principle of Res Ipsa
Loquitur has no application to the facts of the instant case. On going through
the said judgment of the Division Bench relied on by the learned counsel for the
respondents, I do not find anything therein which is contrary to what has been
laid down in the various decisions referred to supra and I am satisfied that the
said decision has no application to the facts of the instant case. As a matter
of fact, in that case, the Division Bench has upheld the award of damages by the
Tribunal below by applying the principle of Res Ipsa Loquitur. Even the
decision of the Supreme Court in SYED AKBER V. STATE OF KARNATAKA (4)(Supra), in
my view, does not render any assistance to the defendants herein. The
observations on which the learned counsel for the respondents seeks to rely were
made by the Supreme Court in the context of highlighting the difference between
a criminal trial and a civil proceeding in regard to the standard of proof. The
Supreme Court pointed out that while in civil proceedings, a mere preponderance
of probability is sufficient and the defendant is not necessarily entitled to
the benefit of every reasonable doubt, in criminal proceedings proof beyond
reasonable doubt is insisted as every man is presumed to be innocent until the
contrary is proved and the criminality is never to be presumed subject to
statutory exception. This is the primary reason for non-application of the
abstract doctrine of Res Ipsa Loquitur to criminal trials. Thus the said
observations of the Supreme Court are of no help to the respondents.
19.I have already held above that the oral and documentary evidence on record in
the instant case clearly establishes that the death of Sitikanta Sastry was due
to the accident pleaded by the plaintiffs. It was for the defendants to show
how a portion of the first floor under construction collapsed. If the
construction was not defective in the normal course of things, it would not have
collapsed. The defendants have not come with any explanation as to how and why
it has collapsed. Added to that the defendants failed to establish the specific
plea put forward by them that the construction was made after obtaining due
sanction from the Municipality. They failed to produce either the sanctioned
plan or any order of approval from the Municipality. Under these circumstances,
an adverse inference has to be drawn against the defendants.
20.For all the aforesaid reasons I am satisfied that the lower court has
committed error of law in holding that the principle of Res Ipsa Loquitur has no
application and that the plaintiffs failed to discharge the legal burden of
proof of negligence which lay on them initially. This error coupled with its
wrong approach in viewing the case as a criminal case has vitiated the judgment
of the lower court.
21.The learned counsel for the respondents has also contended that the suit is
bad for non-joinder of all the legal heirs of Sitikanta Sastry as parties. I do
not, however, find any substance in this contention as it is clearly statedin
para.3 of the plaint that the remaining heirs and legal representatives of the
deceased are not impleaded as parties as they were living separately and they
were not his dependents. It was, however, stated therein that the suit was
being filed for their benefit also.
22.The last question to be considered is with regard to the quantum of damages.
At the time of his death Sitikanta Sastry was aged 57 years as borne out by the
certificate of his enrolment as an advocate which is marked as Ex.A.16. In the
plaint as well as in the notice issued before suit, his income was estimated by
the plaintiffs at Rs.2000/- per month. P.W.1 in her evidence deposed that her
husband used to get Rs.2000/- per month as advocate and in addition he also used
to get Rs.2000/- per month as commission agent of Teaching Aids Enterprises,
publishers, suppliers and manufacturers of teaching aids, maps, charts and
printing materials at Guntur. Ex.A.5 is a letter dated 18-11-1980 addressed by
Teaching Aids Enterprises to Sitikanta Sastry and P.Mohan Rao showing the
details of the commission credited to their account from sales of copy-writing
books at the rate of Rs.3%. It shows that a total sum of Rs.13,425/- was earned
by them as commission and each of them was credited with a sum of Rs.6,712.50.
Though this commission business was not specifically referred to in the plaint
or in the notice issued prior to suit, it was mentioned therein that Sitikanta
Sastry was a very influential person besides being an advocate, that he was a
legal adviser to several labour unions and he was a labour leader and that he
was earning a minimum of Rs.2000/- per month from "several of the occupations he
held". The plaintiffs, however, did not produce any reliable documentary
evidence to prove the income earned by Sitikanta Sastry from his legal
profession. Admittedly he was not an income tax assessee. According to the
oral evidence adduced on behalf of the plaintiffs, Sitikanta Sastry was
practicing as an advocate mostly attending to labour matters and he was also a
trade union leader. However, according to D.W.1,Sitikanta Sastry was not
practicing as an advocate and he had no practice at all, that he was an
alcoholic suffering from heart ailment and blood pressure and his family was not
dependent on his income. Even this version of the defendants is not
corroborated by any independent evidence except the interested testimony of
D.W.1. In this state of evidence some amount of guess work is inevitable in
estimating the income of the deceased. It appears from the material on record
that Sitikanta Sastry was an active man with good connections and he was also
the Secretary of the Andhra Cricket Association for some time. He practised as
an advocate in the High Court for several years and later shifted to Guntur.
Though he hails from an affluent family originally, it appears that by the time
of his death he was left with a meager extent of about 2 1/2 acres of landed
property only and his family was mostly dependent on the income earned by him.
Considering his background and the fact that he has been able to maintain a big
family consisting of several members, it has to be presumed that he must have
been earning some money regularly. Having regard to the broad probabilities and
overall facts and circumstances of the case, I am inclined to hold that the
monthly income of the deceased can be fixed at a minimum of Rs.1200/- per month.
His family consisted of himself and five plaintiffs who were dependent on him
and who were all adults. As per the decision of the Supreme Court in U.P. STATE
ROAD CORPN. V. TRILOK CHANDRA12, the family of the deceased consisted of 12
units at the rate of 2 units per adult. Out of the total number of 12 units, 2
units i.e., 1/6th will have to be deducted from his total earnings towards his
personal expenses. The remaining 5/6th of the total income represents the loss
of dependency i.e., pecuniary loss suffered by the plaintiffs on account of the
death of the deceased. Since the monthly income of the deceased is arrived at
Rs.1200/-, Rs.200/- per month will have to be deducted towards his personal
expenses and the balance of Rs.1000/- per month represents the pecuniary loss
suffered by the family on account of his death. In other words, the loss of
dependency comes to Rs.12,000/- per annum. In GENERAL MANATGER, KERALA STATE
ROAD TRANSPORT CORPN. V. SUSAMMA THOMAS13 and U.P. STATE ROAD TRANSPORT CORPN.
V. TRILOK CHANDRA(12)(supra), the Supreme Court reiterated that the multiplier
method is a sound and appropriate method for assessing the compensation in fatal
accidents cases as it brings a measure of uniformity and certainly in the awards
made by different courts and rules out arbitrariness. As the age of the
deceased at the time of his death was 57 years, the multiplier applicable to the
case on hand is 8. Applying the said multiplier, the total loss of dependency
can be put at Rs.96,000-00 (Rs.12,000/- X 8). The plaintiffs have claimed a sum
of Rs.5,000-00 towards funeral expenses. I feel that it would be just and
reasonable to award a sum of Rs.4,000/- under this head. Thus in all, the
plaintiffs will be entitled to a sum of Rs.1,00,000/- by way of damages or
compensation. The plaintiffs will also be entitled for
interest thereon at 6% per annum from the date of suit till date of till
date of realisation.
23.Accordingly the appeal is partly allowed, the judgment and decree under
appeal are set aside and the suit is decreed in favour of the plaintiffs for a
sum of Rs.1,00,000/- with interest thereon at the rate of 6% per annum from the
date of suit till the date of realization and proportionate costs. Each party
to bear its own costs in this appeal. The proportionate court fees payable on
the plaint and the memorandum of appeal, to the extent to which the suit is
decreed, shall be recovered by the State Government from the
defendants/respondents and the balance court fee shall be recovered from the
plaintiffs/appellants.
Before parting with the case, I wish to place on record my appreciation for the
valuable assistance rendered by the learned counsel
for both parties who have taken the trouble of arguing the matter for a
second time at the request of the court.
?1 No.2 (1918) 2 K.B. 523
2 AIR 1974 ORISSA 207
3 (1865) 3 H&C596
4 AIR 1979 S.C.1848
5 AIR 1966 S.C.1750
6 AIR 1968 MYSORE 345
7 1975 ACJ 249
8 1974 ACJ 296
9 AIR 1994 ORISSA 279
10 1997(6) ALD 217
11 AIR 1976 AP 184
12.(1996) 4 SCC 362
13 1994 ACJ 1
To prove their case that Sitikanta Sastry died due to the fall of a
portion of the first floor under construction on him, the plaintiffs relied on
the oral evidence of P.Ws.1, 2 and 4 besides the newspaper reports about his
death which are marked as Exs.X.1 and X.2 and the photographs and their
negatives showing the collapsed portion of the building and the debris on ground
which were taken on the day after the accident and which are marked as Exs.A.7
to A.13.
It is true
that no report was given to the police and there was no post-mortem on the body
and there is no medical evidence. P.W.1, however, has given a plausible
explanation for the same in her evidence. After all this is not a criminal case
and proof beyond reasonable doubt is not required. This being a civil
proceeding, what is required is only a preponderance of probability. I do not,
therefore, find any substance in the argument advanced by the learned counsel
for the respondents that non-compliance with the provisions of Sections 40, 174
and 176 of the Criminal Procedure Code is fatal to the suit. Considering the
cordial relations that existed between the two families, it is inconceivable
that the plaintiffs would have foisted a false claim of this nature on the
defendants if really there was no accident. No motive is attributed to the
plaintiffs for foisting a false claim against the defendants. In the reply-
notice Ex.A.15, it is stated that because the defendants demanded arrears of
rent to the tune of Rs.11,000/-, they came up with this false claim. This is
inconsistent with the plea taken in para.8 of the written statement where it is
stated that the second defendant has given up his claim for the arrears of rent
due from the plaintiffs out of compassion taking into consideration their
financial circumstances. Further the plea of contributory negligence put
forward in the reply-notice Ex.A.15 is an implied admission of the accident by
the defendants.
HON'BLE SRI JUSTICE C.V.N.SASTRI,
A.S.No.2329 OF 1993
26/06/2000.
P.Savitri and others.
petitioner
G.Kamalaender Kumar.
respondent
!Counsel for the petitoner:Mr.S.Satyanarayana Prasad,
Counsel for Respondent: Mr.Vilas V.Afzal Purkar
:(JUDGMENT):
The unsuccessful plaintiffs in the suit are the appellants in this appeal.
First plaintiff is the widow, plaintiffs 2, 4 and 5 are the sons and the third
plaintiff is the daughter of late P.Sitikanta Sastry who was a practicing
advocate of Guntur. The suit was filed by them claiming a total sum of
Rs.1,50,000-00 by way of damages and compensation for the pecuniary loss
suffered by them due to the death of their family head Sri P.Sitikanta Sastry in
a fatal accident on 5-5-1991 which allegedly occurred on account of the wrongful
act, negligence and default of the defendants. Originally the suit was filed
against the mother and father of the first respondent herein as defendants 1and
2. As they died during the pendency of the suit, respondents 1 to 3 herein were
brought on record as defendants 3 to 5 in the suit.
2.It is not in dispute that Sitikanta Sastry and his family members were in
occupation of a portion on the ground floor of the building of the defendants as
tenants. It is the case of the plaintiffs that on 5-5-1981 at about 8 P.M.
while Sitikanta Sastry was relaxing in front of his residential portion lying on
a cot, suddenly a portion of the first floor of the building which was under
construction collapsed and the sun-shade and the parapet wall fell down on
Sitikanta Sastry resulting in his death. According to the plaintiffs, the
aforesaid construction was defective and it was made without any proper
guidance, skill or supervision. The plaintiffs also came to know later that the
construction was made without any sanctioned plan and permission from the
Municipality. The defendants are thus guilty of causing the death of Sitikanta
Sastry by their wrongful acts and negligence for which they are liable to
compensate the plaintiffs. Sitikanta Sastry, besides being an active legal
practitioner, was a highly influential and well connected person. He was legal
adviser to several labour unions and he was also a labour leader, a good
sportsman and a cricket player. He was also the Secretary of the Cricket
Association. He was a man of high status in society and he belonged to a very
affluent family. He was earning a minimum of Rs.2,000-00 per month. He was
aged only 55 years by the date of his death. By reason of his untimely death,
the plaintiffs are put to great hardship and loss as he was the only earning
member and head of the family. He was a healthy man and in the normal course he
would have lived up to the age of 75 years. On the said allegations, the
plaintiffs claimed a total sum of Rs.1,50,000-00 towards damages and
compensation. He was survived by his wife, four sons, four daughters and his
aged mother. The suit was, however, filed by the wife, three sons and the
unmarried daughter only on the ground that one son and three daughters were
already married and the mother of the deceased was living separately and they
were not, therefore, his dependants. It is, however, stated in the plaint that
the suit is filed for their benefit also. Before filing the suit, the
plaintiffs got issued a legal notice to the defendants (Ex.A.14) to which the
second defendant sent a contentious reply (Ex.A.15) denying liability. Hence
the suit.
3.The suit was resisted by the defendants denying the alleged accident and
asserting that Sitikanta Sastry died of natural causes only. It was pleaded
that Sitikanta Sastry was aged more than 65 years and he was ailing and
afflicted with blood pressure and cardiac trouble. He ceased to practise as
advocate and he had no income worth mentioning and that he was not in a position
to pay the rent also regularly. The defendants also denied that the new
construction made by them was defective and asserted that the second defendant
was an A-Class contractor of the Public Works Department and that the
construction was made according to standard specifications and by taking
necessary precautions. It was also asserted that the construction was made only
after submission of plans and approval by the Municipality. They also denied
that there was any negligence on their part and disputed their liability. It
was further pleaded that the plaintiffs were not entitled to claim any
compensation as they did not follow the procedure prescribed under the Fatal
Accidents Act and the suit was also liable to be dismissed for non-joinder of
necessary parties i.e., the other legal representatives of the deceased. It was
also pleaded that the first defendant was not a necessary or proper party to the
suit. The defendants also disputed the quantum of damages as being excessive
and exaggerated. Finally it was pleaded that the plaintiffs were trying to make
capital out of the death of Sitikanta Sastry who died of a natural cause only
with an avowed object of gaining illegal benefit and that the plaintiffs' claim
was not sustainable either in fact or at law.
4.On the above pleadings, the following issues were settled for trial:
(1) Whether the first defendant is not a necessary party to the suit.
(2) Whether the suit is liable to be dismissed for non-joinder of necessary
parties.
(3) Whether the defendants are liable to pay the damages, if so, what amount?
(4) Whether the death of the deceased Sitikanta Sastry was the result of
negligence of first and second defendants.
(5) To What relief.
5.To prove their case, the plaintiffs examined P.Ws.1 to 4 and got marked
Exs.A.1 to A.29 and Exs.X.1 and Ex.X.2. On the defendants' side, the third
defendant was the solitary witness examined as D.W.1 but no documents were
marked.
6.On consideration of the oral and documentary evidence on record, the trial
court held on Issue No.4 that the plaintiffs failed to prove that late Sitikanta
Sastry died as a result of negligence of D.1 and D.2. The trial court,
however, found Issues 1 and 2 in favour of the plaintiffs. In view of the
finding on Issue No.4, the trial court held on Issue No.3 that the plaintiffs
are not entitled for any damages. On the said findings, the trial court
dismissed the suit without costs.
7.Sri S.Satyanarayana Prasad, the learned senior counsel appearing for the
plaintiffs-appellants, assailed the judgment of the trial court by contending
that the trial court erred materially in placing the burden of proof on the
plaintiffs and its judgment is thereby vitiated. He also submitted that on the
facts and in the circumstances of the case, the doctrine Res Ipsa Loquitur has
to be applied and it is for the defendants to explain as to how the structure
collapsed. As they failed to do so, negligence has to be inferred. He further
submitted that as the defendants failed to produce the sanctioned plan and the
approval of the Municipality for construction, an adverse inference has to be
drawn against them and it must be held that the construction is unauthorized,
illegal and defective. He also submitted that the evidence of P.Ws.1 to 4
coupled with the documentary evidence Exs.X.1, X.2 and the photographs Exs.A.7
to A.13 amply prove the case of the plaintiffs whereas the defendants miserably
failed to discharge the legal burden lying on them. The evidence of D.W.1 has
no value as he clearly admitted that he was abroad at the relevant time and he
had no personal knowledge of the events leading to the death of Sitikanta
Sastry. He also contended that the entire approach of the trial court is wrong
as the trial court treated the case as a criminal case and applied a wrong
standard of proof. He further submitted that the evidence on record clearly
shows that the parties had cordial relations all through and the plaintiffs had
no motive for foisting a false claim on the defendants. He finally submitted
that the damages claimed are very modest and reasonable having regard to the
age, earning capacity, income and status of the deceased.
8.On the other hand, Sri Vilas Afzal Purkar, the learned counsel appearing for
the defendants-respondents, has made the following submissions:
It is not proved that it is a case of accidental death. There is no plea or
proof of any injuries sustained by the deceased. There is no medical record or
medical evidence. There is no death certificate. There was no police
complaint. No post-mortem was conducted. The procedure contemplated by
Sections 40(d), 174 and 176 of Cr.P.C. has not been complied with. There is
nothing to show that it is a case of unnatural death. The principle Res Ipsa
Loquitur cannot be applied to the case. The oral evidence of P.Ws.1 to 4 is
highly discrepant and unreliable. The learned counsel for the respondents
finally submitted that the trial court has properly appreciated the evidence on
record and has given very cogent reasons in its judgment and there are no valid
grounds whatsoever for interference in appeal.
9.I have carefully gone through the entire evidence, oral and documentary, on
record and also the judgment of the lower court. Though in the written
statement, the defendants have taken a plea of total denial of the accident
itself, they do not seem to have seriously disputed in the lower court the fact
that a portion of the building under construction collapsed. The main plank of
their defence appears to be that the death of Sitikanta Sastry was not due to
the accident but he died of natural causes and that, in any case, it was not due
to any negligence on their part and they cannot, therefore, be held liable.
The lower court in para.20 of its judgment, while discussing the oral and
documentary evidence adduced on behalf of the plaintiffs, observed as follows:
"Therefore, there is no doubt that there is discrepancy as to
whether it is the fall of parapet wall or of sun-shade or both that caused the
death of late Sitikanta Sastry but in my opinion this discrepancy does not
weaken the plaintiffs' case in any manner since there is no dispute from the
defendants that there is a fall of some portion under construction."
Having said so, the lower court, however, contradicted itself by observing in
para.32 of its judgment as follows:
"Therefore, the accident as alleged is not admitted by the defendants. If it is
proved that there was fall of the parapet wall or sun-shade as the case may be
and if it is proved that the husband of P.W.1 died as a result, then it is for
the defendants to prove that there was no negligence or laches on their part in
construction of the building. But until then, it is for the plaintiffs to prove
that the husband of P.W.1 died by an accidental fall of the portion of the
house. His death is not disputed as I see. How he died is the question."
Mainly relying on the circumstances that no report was given to
the police about the death and no post-mortem was conducted and there is no
medical evidence to prove the nature of the injuries or cause of death and
noticing some inconsistencies in the oral evidence adduced on behalf of the
plaintiffs in that behalf, the lower court went on to hold that in the facts and
circumstances of the case, the maxim Res Ipsa Loquitur has no application and
that the plaintiffs failed to prove that Sitikanta Sastry died as a result of
negligence on the part of the defendants.
It is true that in the matter of
appreciation of oral evidence the trial court stands in a better position as it
has the advantage of observing the demeanor of the witnesses while recording
evidence and its opinion is, therefore, entitled to weight. However, the
appellate court which is the final court of fact is free and it is also its duty
to independently examine and assess the evidence in the light of the settled
principles of law and arrive at its own conclusion.
10.To prove their case that Sitikanta Sastry died due to the fall of a
portion of the first floor under construction on him, the plaintiffs relied on
the oral evidence of P.Ws.1, 2 and 4 besides the newspaper reports about his
death which are marked as Exs.X.1 and X.2 and the photographs and their
negatives showing the collapsed portion of the building and the debris on ground
which were taken on the day after the accident and which are marked as Exs.A.7
to A.13.
P.W.1 is the first plaintiff who is no other than the wife of the
deceased. She deposed that both the parapet wall and the sunshade fell on her
husband while he was lying on a cot in open space under the sunshade and
relaxing. All the other family members were inside the house. Between 8.30
P.M. and 9 P.M., they heard a big sound of falling of a house. The first floor
roof fell down on the parapet wall and also on the sunshade of the ground floor
in which they were residing. A portion of the constructed house material fell on
her husband's body and he died instantaneously due to the fall of a portion of
the building on him. She also stated that the first floor was being constructed
without obtaining any sanction from the Municipality and without any approved
plan and that the portion of the building collapsed due to the negligence on the
part of the defendants as the scaffolding was removed even before the completion
of the period required for settling the concrete. She further stated that they
did not give any report to the police as her mother-in-law did not agree for
post-mortem and as the second defendant also had some discussions with her
husband's brothers after the death of her husband. She, however, stated in her
cross-examination that they did not report to the police since the police
themselves came to the scene. She, further, deposed in her cross-examination
that her husband was taken to the Government hospital and he was examined by the
doctor before admission and she does not know whether the doctor noted the
injuries of her husband and there is no documentary evidence to show the
injuries sustained by her husband and also the cause of death. She also deposed
that the death of her husband was reported in two daily newspapers, namely,
Andhra Patrika and Andhra Jyothi dated 8-5-1981 (which were marked as Ex.X.1 and
X.2 and in which it was reported that Sitikanta Sastry died by falling of a
parapet wall under construction). She also deposed that the said information
for publication was given by one P.S.Venkateswar Rao who was the Secretary of
Andhra Cricket Association and a friend of her husband.
11.P.W.2 is an alleged eye-witness to the occurrence. He hails from the same
village as Sitikanta Sastry and used to live with Sitikanta Sastry and his
family members in the same house while prosecuting his studies at Guntur. He
deposed that on 5-5-1981 Sitikanta Sastry died while he was taking rest on a cot
due to fall of the parapet wall of the newly constructed first floor and he
(P.W.2) personally witnessed the said accident. He also stated that due to
defects in construction, the said parapet wall collapsed and that Sitikanta
Sastry died on the way to the General Hospital. In his cross-examination, he
stated that due to the fall of the wall on the chest and on the face, Sitikanta
Sastry died and as he passed away on the way to the General Hospital, they
brought him back without taking him to the hospital. He also stated that
between 8.30 P.M. and 9.00 P.M., himself and Sitikanta Sastry's son were talking
at the gate while Sitikanta Sastry was relaxing on the cot in open space. The
lower court doubted his presence at the scene on the ground that P.W.1 did not
mention about his presence in her evidence.
12.P.W.3 is a Municipal Contractor and the Secretary of the Lorry Drivers and
Cleaners Union. He was mainly examined to speak about the income and the
earning capacity of Sitikanta Sastry. He deposed that Sitikanta Sastry was
attending to labour courts and was having good practice, that he had two clerks
and was earning Rs.200/- to Rs.300/- per day during those days. He stated in
his cross-examination that his union matter was entrusted to Sitikanta Sastry.
His evidence does not throw much light regarding the manner of death of
Sitikanta Sastry.
13.P.W.4 is a Gazetted Officer who was a co-tenant of Sitikanta Sastry for about
three years in the same building. He stated that just before one month of the
accident he vacated the portion under his occupation and shifted to another
house. On coming to know about the death of Sitikanta Sastry on the next day
morning, he went to the house of Sitikanta Sastry and saw the dead body. He
also noticed debris of the sunshade which was lying in a heap all along the
wall. He also stated that the death of Sitikanta Sastry was reported in the
Andhra Patrika and the Andhra Jyothi daily newspapers on 8th May, 1981 and that
the press release was issued by the Secretary, Andhra Cricket Association to
condole his death. He further stated that he was subscriber of Andhra Jyothi.
He stated that P.W.2 also used to reside in the house of Sitikanta Sastry.
14.As against the above oral evidence on behalf of the plaintiffs, the third
defendant, who is the son of the defendants 1 and 2 and who came on record as
one of their legal representatives after their death, was the sole witness
examined on the side of the defendants. He is a doctor by profession. However,
his evidence is not of much value since admittedly he was living abroad from
December 1979 to January 1982. He clearly admitted in his evidence that he does not know the reasons for
the death of Sitikanta Sastry personally. He, however, deposed that, while
Sitikanta Sastry was residing in their house as tenant, he was not practicing as
advocate, that he had no practice at all, that he was an alcoholic and he used
to be drunk always and he was suffering from heart ailment and blood pressure.
He also stated that Sitkanta Sastry's family was not depending on his income.
He further deposed that his father was an A-Class P.W.D. contractor and the
building in question was constructed under his supervision and as such there was
no possibility of the construction being defective. He stated that he came to
know from his parents that Sitikanta Sastry died of heart attack. In his cross-
examination, he deposed that he does not know the mode of the construction of
the house and that he does not know whether the parapet wall had fallen or not
as alleged in the plaint. He, however, denied the suggestion that Sitikanta
Sastry died due to the accident mentioned in the plaint. His evidence would
further show that photocopies of all the certificates relating to his
educational qualifications and date of birth etc., were given to Sitikanta
Sastry and it was suggested to him that they were handed over to Sitikanta
Sastry, who was very influential for securing a suitable job for him before he
left for abroad. The witness, however, denied the suggestion. It was also
elicited from him during his cross-examination that his wife died at Hyderabad
while he was abroad and thereafter there was some litigation between him and his
father-in-law. He, however, denied the suggestion that he sought the assistance
and advice of Sitikanta Sastry in that connection. At any rate, his evidence
would reveal that his family had cordial relations with Sitikanta Sastry and his
family members and there was no enmity whatsoever between them.
15.The above oral and documentary evidence on record, particularly the evidence
of P.Ws.1, 2 and 4 coupled with Exs.X.1, X.2 and A.7 to A.13, clearly
establishes that Sitikanta Sastry died due to the accident in which a portion of
the building under construction collapsed and fell on him. I do not find any
valid grounds to doubt the veracity of P.Ws.2 and 4 who are independent
witnesses. Their evidence is corroborated by contemporaneous newspaper reports
Ex.X.1 and X.2 and the photographs and negatives marked as Exs.A.6 to A.13. The
contradictions and inconsistencies in the oral evidence of P.Ws.1, 2 and 4
noticed by the lower court are relatively minor in nature and they are not
sufficient to discredit their testimony. They can be safely ascribed to the
fact that they were deposing nearly a decade after the incident. It is true
that no report was given to the police and there was no post-mortem on the body
and there is no medical evidence. P.W.1, however, has given a plausible
explanation for the same in her evidence. After all this is not a criminal case
and proof beyond reasonable doubt is not required. This being a civil
proceeding, what is required is only a preponderance of probability. I do not,
therefore, find any substance in the argument advanced by the learned counsel
for the respondents that non-compliance with the provisions of Sections 40, 174
and 176 of the Criminal Procedure Code is fatal to the suit. Considering the
cordial relations that existed between the two families, it is inconceivable
that the plaintiffs would have foisted a false claim of this nature on the
defendants if really there was no accident. No motive is attributed to the
plaintiffs for foisting a false claim against the defendants. In the reply-
notice Ex.A.15, it is stated that because the defendants demanded arrears of
rent to the tune of Rs.11,000/-, they came up with this false claim. This is
inconsistent with the plea taken in para.8 of the written statement where it is
stated that the second defendant has given up his claim for the arrears of rent
due from the plaintiffs out of compassion taking into consideration their
financial circumstances. Further the plea of contributory negligence put
forward in the reply-notice Ex.A.15 is an implied admission of the accident by
the defendants.
For all the aforesaid reasons, I am of the view that the lower court erred in
concluding that the plaintiffs failed to establish that the death of Sitikanta
Sastry was due to the accident pleaded by them.
16.The next question, which arises for consideration, is whether there is any
negligence on the part of the defendants making them liable and responsible for
the accident?
17.This being an action in tort for damages on the ground of negligence, the
legal burden of proof, no doubt, rests on the plaintiffs. It is not, however,
always necessary that direct proof of negligence should be adduced by the
plaintiffs. It is enough if they prove the circumstances from which a
reasonable inference of negligence on the part of the defendants can be drawn.
Negligence is not a question of evidence but it is an inference to be drawn from
proved facts. The plaintiffs succeed if the facts proved are inconsistent with
due diligence and care on the part of the defendants. There may be cases where
the plaintiff proves the happening of the accident and nothing more. He may or
may not be in a position to prove any specific act or omission on the part of
the defendant. The mere happening of the accident itself may be more consistent
with negligence on the part of the defendant than with other causes and if that
is so, the court find negligence on the part of the defendant unless he gives a
reasonable explanation to show how the accident may have occurred without
negligence on his part. This maxim is known in legal parlance as 'Res Ipsa
Loquitur'. The general purport of the words 'Res Ipsa Loquitur' is that the
accident 'speaks for itself' or tells its story. The burden of proof will be on
the defendant to explain and to show that the accident occurred without any
fault on his part. It is not a rule of law but is merely a rule of evidence
relating to burden of proof and nothing more (See Cole V. De Traflord1). This
is based on the theory that there are certain happenings which do not occur
normally unless there is negligence. Therefore, in .the case of such happening
the claimant is entitled to rely, as evidence of negligence, upon the mere
happening of such accident. (See S.K.Devi V.Uttam Bhoi2). In the leading case
of Scot V. London & Katherine Docks Co.3, it was held as follows:
"Where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of explanation by
the defendants, that the accident arose from want of care."
In Syed Akber V. State of Karnataka4, the Supreme Court
Considered the applicability of the maxim Res Ipsa Loquitur in civil as also
criminal cases in the light of the provisions of the Evidence Act and observed
as follows:
"The rule of Res Ipsa Loquitur, in reality, belongs to the law of torts where
negligence is in issue. But the peculiar circumstances constituting the event
or accident, in a particular case, may themselves proclaim in concordant, clear
and unambiguous voices the negligence of somebody as the cause of the event or
accident. It is to such cases that the maxim Res Ipsa Loquitur may apply, if
the cause of the accident is unknown and no reasonable explanation as to the
cause is coming forth from the defendant. To emphasise the point, it may be
reiterated in such cases, the event or accident must be of a kind which does not
happen in the ordinary course of things if those who have the management and
control use due care. Further the event which caused the accident must be
within the defendant's control. The reason for this second requirement is that
where the defendant has control of the things which caused the injury, he is in
a better position than the plaintiff to examine how the accident occurred."
In MUNICIPAL CORPN. OF DELHI V. SUBHAGWANTI5, the Supreme Court had to deal with
a case where a clock tower owned by the Municipal Corporation and abutting the
high way collapsed resulting in the death of some persons passing along the
highway. It was held that the Municipal Corporation had a special obligation to
ensure the safety of the structure and it was liable for damages for loss of
life caused whether by patent or latent defects and that the principle of Res
Ipsa Loquitur was attracted to the case.
In NARASAPPA V. KAMALAMMA6, a cement concrete beam under construction by a
contractor under the control and supervision of the State Electricity Board
suddenly collapsed causing the death of a workman. Though the cause of the
accident was unknown and specific allegations of negligence were not proved, the
court, applying the maxim Res Ipsa Loquitur, drew a presumption as to negligence
and held both the contractor and the Electricity Board liable in damages.
COLLECTOR, GANJAM V. CHANDRAMA DAS7 was a case in which the portico of a medical
college building fell down causing the death of two persons. The Supreme Court
held that the portico had fallen on account of the defect in construction and
how it had happened is within the exclusive knowledge of the defendants and
accordingly the court, applying the principle of Res Ipsa Loquitur, awarded
damages.
SYAM SUNDAR V. STATE OF RAJASTHAN8 is again a case where the Supreme Court held
that the doctrine of Res Ipsa Loquitur is applicable when the cause of the
accident is primarily within the knowledge of the defendant and the mere fact
that the cause of the accident is unknown does not prevent the plaintiff from
recovering damages.
In RAMESH KUMAR NAYAK V. UNION OF INDIA9, a Division Bench of the Orissa High
Court was dealing with a case where a compound wall of the Post Office collapsed
and fell on a person passing by, causing him injuries. In defence to the claim
for damages, it was pleaded that the wall collapsed due to torrential rain and
it was, therefore, attributable to a natural calamity. The court, however,
repelled the said contention and held that the Post Office was bound to ensure
the safety of the wall and to see that it in no manner endangers any other's
property or person and the inaction to maintain the wall in good condition can
be said to be an act of negligence. It was further observed that if the wall
was in good condition as alleged, it would not have collapsed for a length of
about 30 feet as acceptedly happened. It can certainly be inferred from the
aforesaid facts that the wall was not in good condition. The inaction to
maintain the wall in a good condition whereby the property or person were
endangered, can be said to be an act of negligence, because proper care was not
taken. Accordingly the opposite parties were held liable for payment of
compensation to the petitioner in that case.
In M.BHEEMAYYA V. APSEB, VIDYUT SOUDHA BHAVAN10, this court had to consider the
case of a cyclist who died due to electrocution when he came in contact with a
snapped electric live wire which was lying on the ground. It was held that the
burden lies on the Electricity Board to prove want of negligence by applying the
principle of Res Ipsa Loquitur and the claim for damages was upheld.
18.The learned counsel appearing for the respondents-defendants, however, sought
to contend that the principle of Res Ipsa Loquitur does not dispense with the
proof of negligence, that at best it is a principle of evidence but not of
liability, that it cannot be indiscriminately applied to all cases without
reference to the facts, and the said principle has no application to the facts
of the present case. In support of the said contentions, he sought to place
reliance on the judgment of a Division Bench of this court in K.NARAYANA V.
P.VENUGOPALA11 and also on certain observations made by the Supreme Court in the
case of SYED AKBER V. STATE OF KARNATAKA (4)(Supra). One can have no quarrel
with the said propositions of law. But I am unable to agree with the submission
of the learned counsel for the respondents that the principle of Res Ipsa
Loquitur has no application to the facts of the instant case. On going through
the said judgment of the Division Bench relied on by the learned counsel for the
respondents, I do not find anything therein which is contrary to what has been
laid down in the various decisions referred to supra and I am satisfied that the
said decision has no application to the facts of the instant case. As a matter
of fact, in that case, the Division Bench has upheld the award of damages by the
Tribunal below by applying the principle of Res Ipsa Loquitur. Even the
decision of the Supreme Court in SYED AKBER V. STATE OF KARNATAKA (4)(Supra), in
my view, does not render any assistance to the defendants herein. The
observations on which the learned counsel for the respondents seeks to rely were
made by the Supreme Court in the context of highlighting the difference between
a criminal trial and a civil proceeding in regard to the standard of proof. The
Supreme Court pointed out that while in civil proceedings, a mere preponderance
of probability is sufficient and the defendant is not necessarily entitled to
the benefit of every reasonable doubt, in criminal proceedings proof beyond
reasonable doubt is insisted as every man is presumed to be innocent until the
contrary is proved and the criminality is never to be presumed subject to
statutory exception. This is the primary reason for non-application of the
abstract doctrine of Res Ipsa Loquitur to criminal trials. Thus the said
observations of the Supreme Court are of no help to the respondents.
19.I have already held above that the oral and documentary evidence on record in
the instant case clearly establishes that the death of Sitikanta Sastry was due
to the accident pleaded by the plaintiffs. It was for the defendants to show
how a portion of the first floor under construction collapsed. If the
construction was not defective in the normal course of things, it would not have
collapsed. The defendants have not come with any explanation as to how and why
it has collapsed. Added to that the defendants failed to establish the specific
plea put forward by them that the construction was made after obtaining due
sanction from the Municipality. They failed to produce either the sanctioned
plan or any order of approval from the Municipality. Under these circumstances,
an adverse inference has to be drawn against the defendants.
20.For all the aforesaid reasons I am satisfied that the lower court has
committed error of law in holding that the principle of Res Ipsa Loquitur has no
application and that the plaintiffs failed to discharge the legal burden of
proof of negligence which lay on them initially. This error coupled with its
wrong approach in viewing the case as a criminal case has vitiated the judgment
of the lower court.
21.The learned counsel for the respondents has also contended that the suit is
bad for non-joinder of all the legal heirs of Sitikanta Sastry as parties. I do
not, however, find any substance in this contention as it is clearly statedin
para.3 of the plaint that the remaining heirs and legal representatives of the
deceased are not impleaded as parties as they were living separately and they
were not his dependents. It was, however, stated therein that the suit was
being filed for their benefit also.
22.The last question to be considered is with regard to the quantum of damages.
At the time of his death Sitikanta Sastry was aged 57 years as borne out by the
certificate of his enrolment as an advocate which is marked as Ex.A.16. In the
plaint as well as in the notice issued before suit, his income was estimated by
the plaintiffs at Rs.2000/- per month. P.W.1 in her evidence deposed that her
husband used to get Rs.2000/- per month as advocate and in addition he also used
to get Rs.2000/- per month as commission agent of Teaching Aids Enterprises,
publishers, suppliers and manufacturers of teaching aids, maps, charts and
printing materials at Guntur. Ex.A.5 is a letter dated 18-11-1980 addressed by
Teaching Aids Enterprises to Sitikanta Sastry and P.Mohan Rao showing the
details of the commission credited to their account from sales of copy-writing
books at the rate of Rs.3%. It shows that a total sum of Rs.13,425/- was earned
by them as commission and each of them was credited with a sum of Rs.6,712.50.
Though this commission business was not specifically referred to in the plaint
or in the notice issued prior to suit, it was mentioned therein that Sitikanta
Sastry was a very influential person besides being an advocate, that he was a
legal adviser to several labour unions and he was a labour leader and that he
was earning a minimum of Rs.2000/- per month from "several of the occupations he
held". The plaintiffs, however, did not produce any reliable documentary
evidence to prove the income earned by Sitikanta Sastry from his legal
profession. Admittedly he was not an income tax assessee. According to the
oral evidence adduced on behalf of the plaintiffs, Sitikanta Sastry was
practicing as an advocate mostly attending to labour matters and he was also a
trade union leader. However, according to D.W.1,Sitikanta Sastry was not
practicing as an advocate and he had no practice at all, that he was an
alcoholic suffering from heart ailment and blood pressure and his family was not
dependent on his income. Even this version of the defendants is not
corroborated by any independent evidence except the interested testimony of
D.W.1. In this state of evidence some amount of guess work is inevitable in
estimating the income of the deceased. It appears from the material on record
that Sitikanta Sastry was an active man with good connections and he was also
the Secretary of the Andhra Cricket Association for some time. He practised as
an advocate in the High Court for several years and later shifted to Guntur.
Though he hails from an affluent family originally, it appears that by the time
of his death he was left with a meager extent of about 2 1/2 acres of landed
property only and his family was mostly dependent on the income earned by him.
Considering his background and the fact that he has been able to maintain a big
family consisting of several members, it has to be presumed that he must have
been earning some money regularly. Having regard to the broad probabilities and
overall facts and circumstances of the case, I am inclined to hold that the
monthly income of the deceased can be fixed at a minimum of Rs.1200/- per month.
His family consisted of himself and five plaintiffs who were dependent on him
and who were all adults. As per the decision of the Supreme Court in U.P. STATE
ROAD CORPN. V. TRILOK CHANDRA12, the family of the deceased consisted of 12
units at the rate of 2 units per adult. Out of the total number of 12 units, 2
units i.e., 1/6th will have to be deducted from his total earnings towards his
personal expenses. The remaining 5/6th of the total income represents the loss
of dependency i.e., pecuniary loss suffered by the plaintiffs on account of the
death of the deceased. Since the monthly income of the deceased is arrived at
Rs.1200/-, Rs.200/- per month will have to be deducted towards his personal
expenses and the balance of Rs.1000/- per month represents the pecuniary loss
suffered by the family on account of his death. In other words, the loss of
dependency comes to Rs.12,000/- per annum. In GENERAL MANATGER, KERALA STATE
ROAD TRANSPORT CORPN. V. SUSAMMA THOMAS13 and U.P. STATE ROAD TRANSPORT CORPN.
V. TRILOK CHANDRA(12)(supra), the Supreme Court reiterated that the multiplier
method is a sound and appropriate method for assessing the compensation in fatal
accidents cases as it brings a measure of uniformity and certainly in the awards
made by different courts and rules out arbitrariness. As the age of the
deceased at the time of his death was 57 years, the multiplier applicable to the
case on hand is 8. Applying the said multiplier, the total loss of dependency
can be put at Rs.96,000-00 (Rs.12,000/- X 8). The plaintiffs have claimed a sum
of Rs.5,000-00 towards funeral expenses. I feel that it would be just and
reasonable to award a sum of Rs.4,000/- under this head. Thus in all, the
plaintiffs will be entitled to a sum of Rs.1,00,000/- by way of damages or
compensation. The plaintiffs will also be entitled for
interest thereon at 6% per annum from the date of suit till date of till
date of realisation.
23.Accordingly the appeal is partly allowed, the judgment and decree under
appeal are set aside and the suit is decreed in favour of the plaintiffs for a
sum of Rs.1,00,000/- with interest thereon at the rate of 6% per annum from the
date of suit till the date of realization and proportionate costs. Each party
to bear its own costs in this appeal. The proportionate court fees payable on
the plaint and the memorandum of appeal, to the extent to which the suit is
decreed, shall be recovered by the State Government from the
defendants/respondents and the balance court fee shall be recovered from the
plaintiffs/appellants.
Before parting with the case, I wish to place on record my appreciation for the
valuable assistance rendered by the learned counsel
for both parties who have taken the trouble of arguing the matter for a
second time at the request of the court.
?1 No.2 (1918) 2 K.B. 523
2 AIR 1974 ORISSA 207
3 (1865) 3 H&C596
4 AIR 1979 S.C.1848
5 AIR 1966 S.C.1750
6 AIR 1968 MYSORE 345
7 1975 ACJ 249
8 1974 ACJ 296
9 AIR 1994 ORISSA 279
10 1997(6) ALD 217
11 AIR 1976 AP 184
12.(1996) 4 SCC 362
13 1994 ACJ 1
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