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2002 DIGILAW 137 (GUJ)

STATE OF GUJARAT v. Sobanbhai Lujabhai Vahuniya

2002-02-15

B.J.SHETHNA, N.G.NANDI

body2002
B. J. SHETHNA, J. ( 1 ) THE State of Gujarat has challenged in this appeal the impugned judgment and decree dated 12. 3. 1999 passed by the learned 5th Civil Judge (S. D.), Bharuch at Godhra in Special Civil suit No. 14 of 1994 partly decreeing the suit of respondents-plaintiffs and awarding the compensation of Rs. 99,800/- with interest @ 12% p. a. from the date of suit till its realisation. ( 2 ) THE respondent No. l Original plaintiff No. 1 was serving as Junior Clerk in the court of JMFC Court at Halol. He was residing there in Government quarter no. 2/18. There was a duppet for outlet of drain water which was required to be covered by a lid, but the same was not covered. Minor daughter aged two and half years, named Minaben of respondents -plaintiffs Nos. 1 and 2 fell down in duppet and died, therefore, the respondents- plaintiffs Nos. l and 2 filed Special Civil suit No. 14 of 1994 before the trial court claiming compensation for Rs. 2,31,000/- on the ground that it was the duty of the defendants to maintain the drainage and by not covering the outlet their minor daughter died. The learned Judge after appreciating oral as well as documentary evidence led before him came to the conclusion that the plaintiffs proved their case that due to negligence on the part of the defendants in not covering the drainage hole, their daughter Minaben fell in it and died. However, he was of the opinion that the claim of the plaintiffs claiming Ps. 2,31,000/- was exorbitant and on facts they were entitled for only rs. 99,800/- and accordingly the same was awarded. ( 3 ) FROM the order sheet of this matter, we find that initially this appeal was placed before the Bench consisting of honble M/s. Justice Y. B. Bhatt and h. H. Mehta on 30. 8. 2001. In absence of the learned counsel for the appellant, even in the second round, Their Lordships adjourned the matter to 13. 9. 2001 instead of dismissing the same for default. Once again when this matter was placed before their Lordships on 1. 10. 2001, we find that the learned counsel for the appellants consistently remained absent even in second round when the matter was called out, therefore, Their Lordships dismissed the appeal for default. Thereafter, Misc. 9. 2001 instead of dismissing the same for default. Once again when this matter was placed before their Lordships on 1. 10. 2001, we find that the learned counsel for the appellants consistently remained absent even in second round when the matter was called out, therefore, Their Lordships dismissed the appeal for default. Thereafter, Misc. Civil Application No. 1790/01 was filed for restoration of the same and the application was granted in terms of para 2 (B) subject to the condition that the costs of the other side quantified at Rs. 500/- be deposited to the Registry may be permitted to be withdrawn by the respondents-plaintiffs. ( 4 ) LEARNED AGP, Shri Sen for the appellants-defendants pointed out that the said order was complied with and accordingly this appeal was restored to the file at its original number. ( 5 ) MR. SEN, learned AGP tried to assail the impugned judgment and decree passed by the learned Judge by submitting that the learned Judge was wrong in decreeing the suit of the respondents-plaintiffs on the ground that there was a negligence on the part of the respondents. He submitted that being parents, it was their duty to carefully look after their minor child. If they were unable to take care of their minor child and due to accident the minor child died, then for that they cannot claim any compensation from the Appellants. In support of his submission, Mr. Sen placed before us copy of oral as well as documentary evidence led before the learned Trial Judge. Having carefully gone through the same and the reasons assigned by the learned Judge in his impugned judgment and decree, we are of the clear opinion that while partly decreeing the suit of the plaintiffs, learned judge has not committed any error. On facts of this case, we are fully convinced that because of sheer negligence on the part of the defendants in not properly maintaining the drainage and not covering the same with the lid, this accident had occurred. In such type of cases, one would not expect the parents to be throughout with their minor child. If the drainage was covered with the lid then, such accident could have easily avoided. In such type of cases, one would not expect the parents to be throughout with their minor child. If the drainage was covered with the lid then, such accident could have easily avoided. ( 6 ) UNDER the circumstances, it cannot be said that the learned Judge was anyway wrong in coming to the conclusion that because of the negligence on the part of the defendants in not properly maintaining drainage the incident had occurred. ( 7 ) IN view of the above discussion, we do not find any substance or merit in this appeal. Accordingly, it fails and is dismissed in limine, at the admission stage itself. As the main first Appeal is dismissed, Civil Application for stay is also dismissed. If the appellants have not deposited the amount awarded by the learned Judge, then they shall deposit before the Trial Court on or before 31. 5. 2002. On depositing the decretal amount, the same may be permitted to be withdrawn, as ordered by the learned trial Court, by the respondents-plaintiffs. .