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2007 DIGILAW 160 (ORI)

State of Orissa v. Anonga Kumar Nanda

2007-03-07

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is an appeal by the unsuccessful plaintiff challenging the judgment and decree passed by the 2nd Addl.Subordinate Judge, Cuttack in M.S. No.178 of 1977. 2. Appellant-plaintiff filed a suit claiming compensation of Rs.19,546/- from the defendant-respondent No.1 with the plead¬ing that the truck bearing registration No. ORU 4473 belonging to the defendant-respondent No.1 and driven by defendant-respondent No.2 in rash and negligent manner met with an accident on the Mahanadi bridge causing damage to the left side foot-path of the girder parapet, cross-girders, rails, slabs etc. It was pleaded that for the repair of the above noted damages to the bridge, a sum of Rs.21,697.66 paise was spent, but after completion of the repair work, the wooden materials used for the repair were sold in public auction and a sum of Rs.2151/- was realized leaving a balance of Rs.19,546.66 paise. The defendants in their written statement denied the claim and the pleading of the plaintiff-appellant in toto. The defendant-respondent No.1 not only denied the ownership of the truck in question, but also denied to have engaged defendant No.2 as driver of the truck. The fact of acci¬dent and damage to the bridge was also denied. In addition to such denial, it was further pleaded that the suit was not main¬tainable as the Executive Engineer, N.H. Division, Cuttack is not the proper person to represent the State and that the claim aris¬ing out of a motor vehicle accident is not maintainable in the Civil Court. Considering the pleadings of the parties, learned Sub-ordinate Judge framed as many as 12 issues and accepted the evidence of the parties. The plaintiff examined the Sub-Assistant Engineer as the sole witness and produced some documents to prove the expenditure with regard to the repair of the bridge. No evi¬dence oral or documentary was adduced from the side of the de¬fendants. Considering the pleadings and evidence on record, learned Sub-ordinate Judge came to the conclusion that there was damage to the Mahanadi bridge because of rash and negligent driving on the part of the driver of the truck bearing No.ORU-4473 and that the plaintiff had to spend Rs.21,697.66 paise for repair of the damaged portion of the bridge. Considering the pleadings and evidence on record, learned Sub-ordinate Judge came to the conclusion that there was damage to the Mahanadi bridge because of rash and negligent driving on the part of the driver of the truck bearing No.ORU-4473 and that the plaintiff had to spend Rs.21,697.66 paise for repair of the damaged portion of the bridge. The Court also accepted that the wooden materials were sold for Rs.2151/- and that the suit is maintainable in the Civil Court, but disallowed the claim of the plaintiff on the ground that there was no evi¬dence to show that the defendant No.1 was the owner of the truck or defendant No.2 caused the accident due to his rash and negli¬gent driving. The claim was also negatived on the ground that Executive Engineer, N.H. Division was not competent to represent the State of Orissa and maintain the suit. Aggrieved by such findings, the plaintiff-State has filed this appeal. 3. Mr. Sangram Das, learned Addl.Standing Counsel appear¬ing for the appellant submits that the statement of P.W.1 that during spot inspection he found the name and address of the defendant No.1 written on the truck describing him as the owner of the truck was sufficient to establish the ownership of defend¬ant No.1 over the truck particularly when there is no rebuttal evidence from the side of the defendants. He also submits that by a notification the State Government has given special power to all Executive Engineers, to sign plaint, written statement on behalf of the state and therefore, there was no scope for the trial Court to observe that the Executive Engineer, N.H. Divi¬sion, Cuttack was not competent person to represent the State and bring the suit. Mr. Das seeks permission of this Court to produce those documents as additional evidence as per Order 41 Rule 27 (b) of the C.P.C. 3. Learned counsel for the respondents states that the plaintiff claimed damages from the defendants making certain allegations; so the burden was on the plaintiff to prove the allegations and link the defendants with the incident. According to him, when the plaintiff failed to produce any evidence to show that the defendant No.1 was the owner of the truck and defendant No.2 was driving the truck rash and negligently, there was abso¬lutely no scope for the trial Court to entertain the claim of the plaintiff. According to him, when the plaintiff failed to produce any evidence to show that the defendant No.1 was the owner of the truck and defendant No.2 was driving the truck rash and negligently, there was abso¬lutely no scope for the trial Court to entertain the claim of the plaintiff. Learned counsel further states that the Executive Engineer, N.H. Division, Cuttack is not the statutory person to represent the state and no specific authorization of the State having been proved, learned trial Court was justified in its observation that the said Executive Engineer was not competent to bring the suit. The prayer of the appellant for adducing addi¬tional evidence is resisted with the submission that the docu¬ments now sought to be produced were all along in the custody of the plaintiff and therefore, Order-41 Rule 27 (aa), C.P.C. stands as a bar and further more allowing additional evidence after lapse of 25 years without any justifiable reason will not be in the best interest of justice. 4. The evidence of P.W.1 shows that he visited the spot, made a spot enquiry and during his spot visit he found the foot-path, railing, girder parapet of the bridge broken and the truck bearing Registration No.ORU-4473 lying on the river bed in broken condition. This part of his evidence has not been disputed or rebutted. P.W.1 also stated that he submitted a report and after obtaining orders necessary repairs to the bridge were effected incurring an expenditure of Rs.21,697.66 paise. To support this contention P.W.1 proved receipts marked as Exts.1/a to 2/z and vouchers as Exts.2 to 2/z and 2/a to 2/a-34, Exts.3 to 3/v Pay¬ment Register and Ext.5 Register of accounts containing relevant entries Ext.5/a to 5/f. These documents show the amount of mate¬rials used, and connected expenditure made. So, it is clearly established from the evidence of P.W.1 and the documents that a portion of the Mahanadi bridge was damaged due to the accident involving truck bearing No.ORU-4473 and for repair of the damaged portion an expenditure of Rs.21,697.66 paise was incurred. 5. P.W.1 stated that during spot inquiry he found the name and address of defendant No.1 written on the truck describing him as the owner of the truck. But he admitted that he did not verify the registers and documents of the office of the R.T.O. to ascer¬tain as to whether actually defendant No.1 was the owner of the truck. 5. P.W.1 stated that during spot inquiry he found the name and address of defendant No.1 written on the truck describing him as the owner of the truck. But he admitted that he did not verify the registers and documents of the office of the R.T.O. to ascer¬tain as to whether actually defendant No.1 was the owner of the truck. No document or evidence was produced except the oral statement that the name of defendant No.1 was written on the truck describing him as the owner. Such writing in the truck cannot establish the ownership and will not be sufficient to saddle such a person with liability such as compensation or damages. Now the appellant wants to produce the R.C. Book and other documents from the R.T.O. office as additional evidence. It is not the case of the appellant that those documents were not available or its existence was not within its knowledge. That being so, such evidence cannot be permitted to be adduced after lapse of 25 years as additional evidence, particularly when the provision under Order 41 Rule 27(1) (aa), C.P.C. stares at the face. When the plaintiff failed to produce any credible evidence oral or documentary about the ownership of defendant No.1 over the truck which caused the accident and there was no evidence of any kind to show that the defendant No.2 was driving the truck at the relevant point of time, there was hardly any scope for the trial Court to saddle the defendants with the claim of compensa¬tion. 6. Admittedly, the Executive Engineer, NH Division, Cuttack is not the statutory person to represent the State of Orissa. The Secretary of the concerned Department is statutorily authorized to represent the State in any Civil litigation. No document showing specific authorization of the State empowering the Executive Engineer to file the suit was produced before the trial Court. So, the trial Court had every justification of saying that the suit was not maintainable at the behest of the Executive Engineer, N.H. Division, Cuttack. Here again Mr. Das wants to produce a notification of the State Government to show that the Executive Engineer, N.H. Division, Cuttack had been specifically authorized to sign the plaint and written statement. So, the trial Court had every justification of saying that the suit was not maintainable at the behest of the Executive Engineer, N.H. Division, Cuttack. Here again Mr. Das wants to produce a notification of the State Government to show that the Executive Engineer, N.H. Division, Cuttack had been specifically authorized to sign the plaint and written statement. But such additional evidence at this stage cannot be entertained because admittedly such document was in the possession of the plaintiff all along and now allowing such document as additional evidence would amount to patching of lacuna in the case of the plaintiff. 7. Though the damage to the bridge by rash and negligent driving of truck bearing No. ORU-4473 and the amount spent for repair work were established by the plaintiff, the defendants could not be linked with the alleged incident and locus standi of the plaintiff to bring the suit was also not substantiated. In such a situation, there was no scope for the learned Civil Judge to grant the relief prayed for. 8. The impugned judgment and decree is thus not liable to be interfered with. Consequently, the appeal is found to be without any merit and is dismissed on contest, but in the pecul¬iar circumstances without any cost. Appeal dismissed.