Rajasthan High Court - Jodhpur
Nand Lal vs The Sarpanch, Gram Panchayat And Ors on 28 November, 2019
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 252/2018
Nand Lal S/o Sochand, By Caste - Dhakad, R/o Sodarshanpura,
Post - Chechi, Tehsil - Begun, District - Chittorgarh.
----Appellant
Versus
1. The Sarpanch, Gram Panchayat, Daulatpura, Tehsil -
Begun, District - Chittorgarh.
2. The Development Officer, Panchayat Samiti, Begun,
District - Chittorgarh.
3. State Of Rajasthan Through The District Collector,
Chittorgarh.
----Respondents
Connected With
S.B. Civil First Appeal No. 251/2018
1. Shambhu Lal S/o Sochand, By Caste - Dhakad, R/o
Sodarshanpura, Post - Chechi, Tehsil - Begun, District -
Chittorgarh.
2. Smt. Durga Devi W/o Shambhu Lal, By Caste - Dhakad,
R/o Sodarshanpura, Post - Chechi, Tehsil - Begun, District
- Chittorgarh.
----Appellants
Versus
1. The Sarpanch, Gram Panchayat, Daulatpura, Tehsil -
Begun, District - Chittorgarh.
2. The Development Officer, Panchayat Samiti, Begun,
District - Chittorgarh.
3. State Of Rajasthan Through The District Collector,
Chittorgarh.
----Respondents
For Appellant(s) : Mr. Hari Singh, on behalf of Mr.
Manish Kumar Pitaliya
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 28/11/2019 (Downloaded on 03/12/2019 at 08:31:41 PM) (2 of 6) [CFA-252/2018] These two appeals, arising out of two separate and identical judgments dated 19.01.2018 passed by the learned Additional District Judge No.2, Chittorgarh in Civil Suits Nos.18/2010 and 19/2010 respectively, involve common questions of facts and law and thus are being decided together by this judgment.
Brief facts relevant and essential for disposal of the present appeals are noted hereinbelow.
Two boys named Babu Lal and Om Prakash drowned to death in the village rain water Sodarshanpura pond (Naadi) on 19.07.2009. The appellants Shambhu Lal and Smt. Durga Devi, being the father and the mother respectively of the child Babu Lal, filed Civil Suit No.18/2010 and the appellant Nand Lal, being the father of the child Om Prakash, filed Civil Suit No.19/2010 under the provisions of the Fatal Accidents Act, 1855 in the Court of the Additional District Judge No.2, Chittorgarh seeking compensation to the tune of Rs.15.30 lacs and 16.30 lacs respectively by impleading the Sarpanch, Gram Panchayat, Daulatpura; Vikas Adhikari, Panchayat Samiti Begun; and the State of Rajasthan, through the District Magistrate, Chittorgarh as defendant parties. The suits filed by both set of plaintiffs contain exactly identical averments regarding the manner in which the incident happened. For the sake of ready reference, the contents of para Nos.3 to 5 of the plaints, which were allegedly the primary causes of action for the lis are reproduced hereinbelow while omitting the names of the respective deceased :
"3- ;g fd fnukad 19-07-09 dks xkWo lksn"kZuiqjk esa lqcg djhc 8 cts e`rd HkSal pjkus ds fy, x;k tgkW dh pjuksV esa cuh vLFkk;h ukMh esa ugkrs oDr e`rd dh ikuh esa Mwcus ls e`R;q gks xbZA (Downloaded on 03/12/2019 at 08:31:41 PM) (3 of 6) [CFA-252/2018] 4- ;g fd foi{kh la- 1 }kjk xkWo esa fuekZ.k dk;Z djok;k x;k ml oDr xzke lksn"kZuiqjk esa fLFkr ukMh dh feV~Vh fudyokdj xgjhdj.k djok fn;k x;k ysfdu ukMh ds xgjhdj.k djokus ds ckn Hkh foi{kh la- 1 us ukMh ds pkjksa vksj dksbZ fnokj o iky ugh cuokbZ uk gh foi{kh la- 1 us fdlh rjg dh ukMh dh dksbZ lqj{kk dk bartke ugh djok;k x;kA ftlls e`rd dh ukMh esa Mwcus ls e`R;q gks xbZA 5- ;g fd foi{kh la- 1 }kjk ukMh ,slh txg cukbZ xbZ tgkW vke vkneh dk vkuk tkuk fnu&jkr jgrk gS o tgkW ij NksVs&NksVs cPps [ksyrs jgrs gSA foi{kh la- 1 }kjk ukMh dks xgjh dj nh xbZ o ukMh ds lqj{kk bartke ugh fd, x, ftlls izkFkhZx.k ds iq= dh ikuh esa Mqcdj e`R;q gks xbZA"
The defendants were summoned and they filed written statement in both the claims asserting inter alia that the Nadi (pond) was an old existing natural water body and was not man- made. It was, however, absolutely safe. The rivers, nalas, ponds etc. in the villages are found commonly and usually devoid of any boundary wall or safety measure because it is impractical to do so. It is the person getting into the pond himself, who has to ensure that precautions are taken while doing so because failure to do so could result into an accident. Thus, the plaintiffs were attributed negligence and were held responsible for the accident because they had assigned the job of grazing the cattle to their minor sons without ensuring proper supervision. The Nadi was at a distance of 500 meters from the village and was located amidst the Charagah land, which was not a place meant to be used as children's playground. On these grounds, the respondent defendants sought dismissal of the suits.
(Downloaded on 03/12/2019 at 08:31:41 PM)
(4 of 6) [CFA-252/2018] The trial court framed an identical issue No.1 for deciding the controversy posed in the suit filed before it, which is reproduced hereinbelow for the sake of ready reference :
"¼1½ D;k foi{khx.k us xzke lksn"kZuiqjk ds pjuksV esa ,d ukMh bl ykijokgh ls cuk;h dh] mlesa vkseizdk"k ugkrs le; Mwcdj ej x;k vkSj mlds fy, {kfriwfrZ iznRr djus gsrq foi{khx.k nk;h gS \ "
During the course of trial, four witnesses were examined by the plaintiffs, i.e. the plaintiffs No.1 Shambhu Lal and Nand Lal as A.W.1 respectively in the two suits, Gopal as A.W.2, Dr. Narendra Kumar Sharma as A.W.3 and Vikram Singh as A.W.4. Certain documents pertaining to the police proceedings and notices sent to the defendants before filing of the suits were exhibited by way of documentary evidence. The respondent defendants examined Khemraj Dhakad in rebuttal. The trial court appreciated the entire evidence available on record and came to a conclusion that both the plaintiffs gave evidence totally contradictory to the pleadings made in the suit. Both of them changed their stance alleging that their sons had gone to graze the buffaloes in the jungle, where the work of deepening of the Nadi was going on and the boys drowned therein because no protective wall or encumbrance was put around the Nadi and also no other safety measures were put up and thus, the boys drowned because of negligence of the Panchayat officials. In cross- examination, the witnesses admitted that the assertion made by them in the plaint that the boys were sent to graze the cattle was wrong. They were also confronted with other pleadings and omissions in the plaint regarding the existence of any playground near the pond in which the boys drowned. The witness Gopal (A.W.2) admitted that when the incident happened, no work was (Downloaded on 03/12/2019 at 08:31:41 PM) (5 of 6) [CFA-252/2018] going on at the Nadi. Khemraj Dhakad (N.A.W.1), being the Gram Sachiv, stated in his evidence that the Nadi was existing since ever. There was no retention wall or protective wall around the Nadi because no such measure was prescribed. The Nadi was kept open from all its sides so that animals could drink water. The trial court took note of the fact that the plaintiffs resiled from the allegations made in the suit and changed their version in a parrot like manner claiming that the children had gone to graze buffaloes and rather had gone to the playground near the Nadi and accidentally fell into the same. The contradictions made in the statements of the respective plaintiffs regarding the boys having gone into the Nadi for taking bath (C to D part of the plaint) was found to be important and going to the root of the matter. The trial court held that the boys acted with negligence while going to take bath in the pond. Even as per the report under Section 174 CrPC, the boys were grazing the buffaloes when they went into the pond for taking bath. The Nadi had been formed in low line contours near the village and water got stored therein naturally during the rains, as such, it could not be accepted that the village Panchayat would be required to construct the protective wall around such a natural water body. If a person tried to get into such water body, he would be doing so by posing threat to his own life. The plaintiffs were held responsible for sending their children to graze the buffaloes without ensuring their safety. The children got into the water because they were not accompanied by any adult for supervision and thus, the respondents could not be held responsible for the accident and rather the plaintiffs themselves acted negligently by sending their children to graze buffaloes while (Downloaded on 03/12/2019 at 08:31:41 PM) (6 of 6) [CFA-252/2018] failing to ensure their safety. With these findings, the primary issue No.1 was decided against the plaintiffs.
Having appreciated the arguments advanced by the learned counsel for the petitioner and after going through the evidence available on record, the impugned judgment and the pleadings of the parties, I am of the firm opinion that if the admitted averments as set out in the plaint are seen, manifestly, the plaintiffs have themselves stated that they sent their children to the grazing ground for grazing buffaloes. While grazing buffaloes, the children decided to get into the water to take a bath. It was then that they lost balance, slipped into the water and unfortunately drowned to death. While sending the minor boys to the grazing ground with the buffaloes, the appellants were primarily required to ensure that they were also supervised by a responsible adult. There was no obligation implied on the Panchayat to put any barricading/safety implements around the said Nadi. The Nadi had formed in the natural low line contours near the village and it was filled automatically by the rain water. Therefore, the averments made in the plaint that the Panchayat and its officers were responsible for the offence of acting negligently was absolutely unsubstantiated. The trial court acted in an absolutely justified manner while appreciating the evidence and dismissing the suit filed by the appellants. I find no merit in these appeals. As a consequence, the appeals fail and are hereby dismissed. The record be returned to the trial court forthwith.
(SANDEEP MEHTA),J 25-Pramod/-
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