Madras High Court
N.R.Rangasamy vs Palaniammal
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.12.2018
Delivered on : 05.03.2019
CORAM :
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.779 of 2018
and
C.M.P.No.22041 of 2018
N.R.Rangasamy ... Appellant
Vs.
1.Palaniammal
2.P.Vairamani
3.The District Collector,
Erode District,
Erode.
4.The Assistant Executive Engineer,
Rural Development,
Gobichettipalayam,
Erode District.
5.The Block Development Officer,
Nambiyur Panchayat Union,
Gobichettipalayam,
Erode District.
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6.The Union Engineer,
Nambiyur Panchayat Union,
Gobichettipalayam,
Erode District. ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure
to set aside the decree and judgment dated 20.03.2018 made in A.S.No.31 of
2017 on the file of the III Additional District and Sessions Court,
Gobichettipalayam, confirming the decree and judgment dated 28.04.2017 made
in O.S.No.132 of 2010 on the file of the learned Subordinate Court,
Gobichettipalayam.
For Appellant : Mr.R.Vijayan
For Respondents : Ms.J.Prithivi
for Mr.S.Kaithamalai Kumaran
JUDGMENT
The 5th defendant in O.S.No.132 of 2010 is the appellant before this Court. The appellant seeks to set aside the judgment and decree of the III Additional District and Session Court, Gobichettipalayam, in A.S.No.31 of 2017, confirming the judgment and decree of the Subordinate Judge, Gobichettipalayam in O.S.No.132 of 2010.
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2.The facts in brief to which this Court would allude for disposing of the second appeal are as follows and the parties are referred to in the same litigative status as in the trial Court.
3.Plaintiff's Case:
3.1.The plaintiffs who are the widow and the daughter, respectively, of one deceased Kuttippa Gounder, had filed the suit in O.S.No.132 of 2010 on the file of the Subordinate Court, Gobichettipalayam, for a decree directing the defendants to pay a sum of Rs.9,99,900 (Rupees nine lakhs ninety nine thousand and nine hundred only) together with interest at the rate of 12% p.a. from the date of the suit till the date of realization, as compensation for the death of the said Kuttiappa Gounder in an accident on 07.12.2007, exclusively due to the negligence of all the defendants in leaving a trench open without any warning indications.
3.2.The facts in brief are as follows. The 5th defendant was engaged by the 3rd defendant to construct a cause-way from Neelampalayam to Gobichettipalayam and pursuant to the work contract being awarded to him, the said 5th defendant had started the work. As per the Tamil Nadu Detailed Standard Specifications (for brevity “TNDSS”), protective measures were to be http://www.judis.nic.in 4 adhered to, by the contractors, while undertaking such projects. However, the 5th defendant, for the reasons best known to him, had not adopted these protective measures. The 1st defendant, who is the District Collector, Erode, was responsible for overall administration, execution and completion of the project.
The 2nd defendant namely the Assistant Executive Engineer, Rural Development, Gobichettipalayam, was in-charge of its supervision and it was the 3 rd and 4th defendants, who are respectively the Block Development Officer, Nambiyur Panchayat Union, and the Union Engineer, Nambiyur Panchayat Union, who were tasked to monitor the day-to-day progress of the project, which included monitoring the safety measures that have been taken up by the contractors. The contractors were bound to provide traffic barricading arrangements, which includes the installation of danger lights, and other similar arrangements to warn motorists/pedestrians about the danger on the road on account of the project being under way.
3.3.It appears that on 07.12.2007, the deceased Kuttiappa Gounder was returning to Gobichettipalayam from Neelampalayam and without noticing the open trench, he had fallen into the same and had sustained grievous injuries, to which, he ultimately succumbed. The investigation conducted by the Sub-Inspector of Police, Kunnathur, found fault with the 5 th defendant and the http://www.judis.nic.in 5 eye witnesses had also given evidence that the trench was kept open and no warning signs were put up around the same and it was this, that led to this mishap.
3.4.The plaintiffs had claimed the compensation on the basis that the deceased Kuttiappa Gounder owned agricultural lands, which had irrigation facilities and there were several coconut trees and the deceased Kuttiappa Gounder was actively involved in the agricultural activities and in fact, he was earning an annual income of Rs.2,00,000/- (Rupees Two lakhs only) from these agricultural operations. He was further trading in agricultural products and was making a profit ranging from Rs.1,00,000/- to Rs.2,00,000/- per annum and that apart, he owned ¾ share in a rice mill, through which, he was regularly earning a monthly income of Rs.25,000/-. This confirmed the basis of the demand.
4.Defendant's Case:
4.1.The 3rd defendant had filed his written statement and the same was adopted by the defendants 1, 2 and 4. The only defence that had been put forward was that, the work had been entrusted to the 5th defendant and he was bound to execute the said work as per the rules and procedures under the TNDSS. The 5th defendant had filed his written statement, totally shifting the http://www.judis.nic.in 6 onus on the deceased Kuttiappa Gounder stating that, he was negligent, and it was on account of this that the death has occurred. He would further state that the said road was a busy road and there were no complaints about there being no protective measures on the spot and in fact, the officials of the defendants had been regularly inspecting the work spot and they had been satisfied with the protective measures, that had been adopted by the 5th defendant.
5.Trial Court:
5.1.The learned Subordinate Judge had framed one major issue, namely, whether the plaintiffs could recover the compensation for the death of Kuttiappa Gounder on account of the negligence of the defendants. The plaintiffs, to prove their case, had examined P.W.1 to P.W.3 and had marked exhibits Ex.A1 to A21. The defendants, on their side, had examined the Block Development Officer, namely, the 3rd defendant, as D.W.1, the 5th defendant as D.W.2 and one Venkatachalam and the Sub-Inspector of Police as D.Ws.3 and 4 respectively. They had exhibited Ex.B1A to B2 in support of their case.
5.2.The learned Subordinate Judge, ultimately, had found fault with the defendants 2 to 4, on whom, the duty was cast to monitor the project, which included monitoring the protective measures, and has observed that they had http://www.judis.nic.in 7 failed in their duty. In fact, the learned Judge had taken note of the evidence of the 5th defendant as D.W.2, where, he had submitted that he was not put on notice about the TNDSS. D.W.1 has also admitted that, as per the specifications, the trench had to be barricaded to warn the general public and such barricade/barrier was missing in the case of the trench, into which, the deceased Kuttiappa Gounder had fallen. Therefore, the learned Judge had held that the accident was caused only due to the carelessness of the 5th defendant in not maintaining the work site with proper safety measures.
5.3.The learned Subordinate Judge has also observed that the plaintiffs had not submitted any proof to show that the deceased Kuttiappa Gounder was earning an annual income of Rs.2,00,000/- from his lands and Rs.1,00,000/- to Rs.2,00,000/- from his trading in agricultural products. The learned Judge had also observed that the profits from the rice mill business did not suffer any dent and the profits will continue to go to the plaintiffs as the legal representatives of the deceased Kuttiappa Gounder. Ultimately, the learned Judge had proceeded to award a compensation of Rs.2,00,000/- taking into account the age of the deceased Kuttiappa Gounder. The learned Judge has multed such liability on the 5th defendant, but however, has directed the defendants 1 to 4 to directly pay the above amount to the plaintiff and thereafter, recover the same from the 5 th http://www.judis.nic.in 8 defendant.
6.Appellate Court:
6.1.Challenging the said judgment and decree, the 5th defendant alone had preferred an appeal in A.S.No.31 of 2017 and the other defendants had chosen not to challenge the said judgment and decree. The plaintiffs had also filed their counter claim, since, the amount awarded was on the lower side. The Appellate Authority confirmed the judgment and decree of the trial Court with reference to the execution of the compensation that was directed to be paid to the plaintiffs.
6.2.The Appellate court had also considered the evidence and has come to the conclusion that the 5th defendant had not adhered to the basic safety measures. The learned Judge had also dismissed the counter claim of the plaintiffs, stating that, they have not produced any evidence to substantiate the claim for a compensation of such a huge amount of Rs.9,99,900/-, more particularly, when the deceased Kuttiappa Gounder was over 70 years of age.
7.Second Appeal:
7.1.Challenging this concurrent judgment and decree, the 5th defendant is http://www.judis.nic.in 9 before this Court.
8.Arguments advanced by both sides:
8.1.Heard Mr.R.Vijayan for the appellant/5th defendant. Mr.R.Vijayan would seek to place the entire negligence on the deceased and he would further argue that there was no proof to show that the deceased Kuttiappa Gounder had actually fallen into the ditch and that his death was caused by the fall.
8.2.Per contra, Ms.J.Prithivi, who argued on behalf of Mr.S.Kaithamalai Kumaran would submit that, the eye witnesses were examined immediately after the accident, who deposed to the fact that Kuttiappa Gounder had fallen into the ditch and he was taken out of the trench and was rushed to the hospital, where, he had ultimately succumbed to his injuries. To prove their case, the plaintiffs had examined P.W.2 and P.W.3. The defendants' witnesses had also corroborated the incident. She would also argue that the defendants 1 to 4, who were entrusted with the task of monitoring the work of the contractor, had abdicated their responsibility and therefore, they are also bound to compensate the plaintiffs.
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9.Discussion:
9.1.Heard the learned counsel on either side and perused the records. 9.2.It is seen that, the defendants 1 to 4 have not challenged the judgment and decree in O.S.No.132 of 2010, though, they have been directed to pay the compensation and later claim it from the 5 th defendant. It is only the 5th defendant, who has challenged the judgment and decree.
9.3.The evidence of P.Ws.2 and 3 clearly establishes the fact that the deceased Kuttiappa Gounder had fallen into the trench and on account of the injuries that he had sustained, he had ultimately died. The evidence would further state that he had never regained consciousness. Therefore, the death can be directly attributed to the fall into the trench. The fact that the 5th defendant had not put up any safety measures around the trench has been proved by examining P.Ws.2 and 3 and D.W.1, in his evidence, has also acknowledged this omission. Therefore, the concurrent finding that the death of the deceased Kuttiappa Gounder was on account of the negligence of the 5 th defendant and vicariously upon the defendants 1 to 4 cannot be countenanced.
http://www.judis.nic.in 11 9.4.As rightly pointed out by the trial Court, the deceased was aged 70 years and there is no proof to substantiate the fact that the deceased was getting an income of Rs.2,00,000/- from his agricultural operations and a further income of Rs.1,00,000/- to Rs.2,00,000/- from his trading in agricultural products. The trial Court has rightly held that the profits from the rice mill would continue to go to the plaintiffs as legal representatives of the deceased Kuttiappa Gounder. That apart, the plaintiffs, having not filed any appeal against the dismissal of their counter claim, I find no infirmity in the judgment and decree in A.S.No.31 of 2017 on the file of the III Additional District and Sessions Court, Gobichettipalayam.
9.5.In the result, this Second Appeal stands dismissed and the judgment and decree in A.S.No.31 of 2017 on the file of the III Additional District and Session Court, Gobichettipalayam, is confirmed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
05.03.2019
mkn
Index : Yes / No
Internet : Yes / No
Speaking order / Non-speaking order
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P.T.ASHA, J.,
mkn
To
1.The III Additional District and Sessions Judge, Gobichettipalayam.
2.The Subordinate Judge, Gobichettipalayam.
Pre-delivery Judgment in S.A.No.779 of 2018 and C.M.P.No.22041 of 2018 05.03.2019 http://www.judis.nic.in