Andhra HC (Pre-Telangana)
Pillutla Savitri And Others vs Gogineni Kamalendra Kumar And Others on 26 June, 2000
Equivalent citations: 2001ACJ1156, 2000(5)ALD194, 2000(5)ALT58, AIR 2000 ANDHRA PRADESH 467, (2000) 5 ANDHLD 194, (2000) 5 ANDH LT 58, (2001) 1 ACC 263, (2001) 1 ACJ 1156, (2001) 2 CURCC 191
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. 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 practising advocate of Guntur. The suit was filed by them claiming a total sum of Rs.1,50,000/-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 1 and 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 8.00 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 sunshade 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/- 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.A14) to which the second defendant sent a contentious reply (Ex.A15) denying liability. Hence the suit.
3. The suit was resisted by the defendants denying the alleged accident and asserting that Sitikanta Saslry 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 the 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 PWs.1 to 4 and got marked Exs.Ai to A29 and Exs.X1 and Ex.X2. On the defendants' side, the third defendant was the solitary witness examined as DW1 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 D1 and D2. 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 unauthorised, illegal and defective. He also submitted that the evidence of PWs.1 to 4 coupled with the documentary evidence Exs.X1, X2 and the photographs Exs.A7 to A13 amply prove the case of the plaintiffs whereas the defendants miserably failed to discharge the legal burden lying on them. The evidence of DW1 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 postmortem was conducted. The procedure contemplated by Sections 40(d), 174 and 176 of Cr.PC 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 PWs.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 arc 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 PW1 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 PW1 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 demeanour 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 PWs. 1, 2 and 4 besides the newspaper reports about his death which are marked as Exs.X1 and X2 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.A7 to A13. PW1 is the first plaintiff who is no other than the wife of the deceased. She deposed that both the parapet wall and the sun-shade fell on her husband while he was lying on a cot in open space under the sun-shade and relaxing. All the other family members were inside the house. Between 8.30 p.m. and 9.00 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 sun-shade 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 postmortem 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.X1 and X2 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. PW2 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 (PW2) 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 sated 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 PW1 did not mention about his presence in her evidence.
12. PW3 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. PW4 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 sun-shade 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 PW2 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 drink always and he was suffering from heart ailment and blood pressure. He also stated that Sitikanta Sastry's family was not depending on his income. He further deposed that his father was an A-Class PWD contractor and the building in question was constructed under his supervision and as such there was no possibility of the constructed 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 his 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 Sitikanla 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 PWs.1, 2 and 4 coupled with Exs.X1, X2 and A7 to A13, 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 PWs.2 and 4 who are independent witnesses. Their evidence is corroborated by contemporaneous newspaper reports Ex.X1 and X2 and the photographs and negatives marked as Exs.A7 to A13. The contradictions and inconsistencies in the oral evidence of PWs.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. PW1, 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.A15, 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 finds 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 loquitor'. 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 Traflord, No.2 (1918) 2 KB 523). 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 Bhoi, ). In the leading case of Scot v. London and Katherine Docks Co., (1865) 3 H&C 596, 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 Karnataka, , 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. Subhagwanti, , the Supreme Court had to deal with a case where a clock tower owned by the Municipal Corporation and abutting the highway 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. Kamalamma, AIR 1968 Mys. 345, 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 Das, 1975 ACJ 249, 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 Rajasthan, 1974 ACJ 296, is again a case where the Supreme Court held that the doctrine of res ipsa loquitur is applicable when the cause of 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 India, , 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 properly 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 petitioners in that case.
In M. Bheemayya v. APSEB, Vidyut Soudha Bhavan, 1997 (6) ALD 217, 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. Venugopala, , and also on certain observations made by the Supreme Court in the case of Syed Akber v. State of Karnataka (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 (supra), in my view, does not render any assistance to the defendants herein. The observations on which the learned Counsel for the respondnets 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 1o criminal trials. Thus the said observations of the Supreme Cout 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 stated in 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 dependants. 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 Silikanta Sastry was aged 57 years as borne out by the certificate of his enrolment as an advocate which is marked as Ex.A16. In the plaint as well as in the notice issued before suit, his income was estimated by the plaintiffs at Rs.2,000/-per month. PW1 in her evidence deposed that her husband used to get Rs.2,000/- per month as advocate and in addition he also used to get Rs.2,000/- per month as commission agent of Teaching Aids Enterprises, publishers, suppliers and manufacturers of teaching aids, maps, charts and printing materials at Guntur. Ex.A5 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 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 as he was a labour leader and that he was earning a minimum of Rs.2,000/- 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 DW1 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 dependant on his income. Even this version of the defendants is not corroborated by any independent evidence except the interested testimony of DW1. 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 sometime. 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.1,200/- 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 Corporation v. Trilok Chandra, , 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.1,200/-, Rs.200/-per month will have to be deducted towards his personal expenses and the balance of Rs.1,000/- 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. 12,0007-per annum. In General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, and U.P. State Road Transport Corporation v. Trilok Chandra, (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 certainty 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/- (Rs.12,000/-X8). The plaintiffs have claimed a sum of Rs.5,0007-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 wilt 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 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 realisation 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/respondnets and the balance Court fee shall be recovered from the plaintiffs/appellants.
24. 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.