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2012 DIGILAW 415 (MP)

Santoshdevi v. State of M. P.

2012-04-17

A.K.SHRIVASTAVA, J.K.MAHESHWARI

body2012
ORDER Shrivastava, J. -- 1. The judgment passed in this appeal shall also govern the disposal of connected First Appeal No.598/2006 (Smt. Anita v. State of M.P.); First Appeal No.596/2006 (Kamal Saxena v. State of M.P.); First Appeal No.600/2006 (Ushadevi v. Krishi Upaj Mandi Samiti, Neemuch); First Appeal No.601/2006 (Ritadevi v. State of M.P.) since all these appeals have arisen out of common judgment passed by the trial Court. 2. Feeling aggrieved by the judgment and decree dated 11.5.2004 passed by the learned District Judge, Neemuch in Civil Suit No.45-B/2002 dismissing the suit, the plaintiffs have filed the present appeal. 3. First Appeal No.598/2006 has been filed against the judgment and decree dated 11.5.2004 passed by the learned District Judge, Neemuch in Civil Suit No.39-B/2002 (Smt. Anita v. State of M.P.) dismissing the suit plaintiffs. First Appeal No.596/2006 has been filed against the judgment and decree dated 11.5.2004 passed by the learned District Judge, Neemuch in Civil Suit No.40-B/2002 (Smt. Kamal Saxena v. State of M.P.) dismissing the suit of plaintiffs. First Appeal No.600/2006 has been filed against the judgment and decree dated 11.5.2004 passed by the learned District Judge, Neemuch in Civil Suit No.57-B/2002 (Smt. Usha Devi v. Krishi Upaj Mandi Samiti) dismissing the suit of plaintiffs. First Appeal No.601/2006 has been filed against the judgment and decree dated 11.5.2004 passed by the learned District Judge, Neemuch in Civil Suit No.41-B/2002 (Smt. Rita Devi v. State of M.P.) dismissing the suit of plaintiffs. 4. In the aforesaid civil suits the plaintiffs are different but the defendants are the same and point in dispute is also the same, hence the learned trial Court decided all the aforesaid civil suits by a common judgment by dismissing all the suits. By this common judgment all the aforesaid appeals as well as civil suits are being decided. 5. A suit for compensation has been filed by the plaintiffs arraying the State of Madhya Pradesh, Krishi Upaj Mandi Samiti, Neemuch (hereinafter referred to as ‘the Mandi Samiti’) and Municipal Council, Neemuch as defendants. According to the plaintiffs there is a Well in the premises of the defendant Mandi Samiti having 50 feet depth. The said Well was acquisitioned by the defendant Municipal Council, Neemuch and under control of these two defendants for last 4-5 years from the date of filing of the suit which was filed on 11.10.2001. According to the plaintiffs there is a Well in the premises of the defendant Mandi Samiti having 50 feet depth. The said Well was acquisitioned by the defendant Municipal Council, Neemuch and under control of these two defendants for last 4-5 years from the date of filing of the suit which was filed on 11.10.2001. In order to prevent the water from pollution, by inserting the Gardars upon it and by laying stone slabs the Well was covered. On 6.9.2000 at 3:00 p.m. a meeting was convened by the defendant Mandi Samiti upon the impugned covered Well. According to the plaintiffs, the material used to cover up the Well was of inferior quality as a result of which when several persons assembled there to hold the meeting, all of a sudden the stone slabs were fallen down resulting into the death of several persons on account of drowing. The injured persons were taken out from the Well with the assistance of local administration but anyhow seven persons could not be saved and they died on account of drowning. The husband of the first plaintiff and the father of second, third and fourth plaintiffs Om Prakash had died in the said accident on account of drowning. The age of the deceased Om Prakash was 38 years and he was the sole bread earner of the plaintiffs. The deceased was serving on the post of Accountant in Firm M/s. Jai Mata Dee Traders, Neemuch and was drawing salary of Rs.3,000/- per month. Hence a suit for compensation to the tune of Rs.5.00 lacs has been filed by the plaintiffs. Similarly other suits were also filed. 6. Further it has been specifically pleaded by the plaintiffs that the covered place covering the Well was not to be used to hold any meeting and there was no indication nearby it that the said place should not be used for sitting purposes and, therefore, the defendant Mandi Samiti and Municipality, Neemuch were negligent and hence decree of compensation be passed against them. According to the plaintiffs, the State of Madhya Pradesh is also vicariously liable to pay the compensation and hence it has been prayed that by passing a joint and several decree the suit of plaintiffs be decreed. 7. Each of the defendants filed their separate written statement. According to the plaintiffs, the State of Madhya Pradesh is also vicariously liable to pay the compensation and hence it has been prayed that by passing a joint and several decree the suit of plaintiffs be decreed. 7. Each of the defendants filed their separate written statement. According to the defendant Mandi Samiti, the Well in question was under the control and was being looked after by the Municipality.The Well in question was also covered by the Municipality and it was not at all related to the Mandi Samiti and therefore the defendant Mandi Samiti is not liable to pay any compensation. It has also been pleaded by the Mandi Samiti in the written statement that construction of covering the Well was carried out by the defendant Municipality and therefore for this additional reason also no liability can be fastened upon the Mandi Samiti. In special plea, a plea of limitation has also been raised. 8. In the written statement filed by defendant No.3 Municipality it has been specifically pleaded that the Well in question was never acquisitioned by the Municipality nor it was in the control of the said Municipality. The defendant Mandi Samiti is the owner of the impugned Well and they are also having possession over the same. The factum of construction to cover the Well by the defendant Municipality has been denied. Hence it has been prayed that no liability can be fastened upon the Municipality and the suit be dismissed against it. 9. The learned trial Court framed necessary issues and after recording the evidence dismissed all the suits. In this manner this appeal and connected first appeals have been filed by the plaintiffs. 10. The contention of Mr. Sameer Athawale, learned counsel for the appellants is that according to the pleadings, oral and documentary evidence placed on record it is proved that the construction to cover up the impugned Well was carried out by the defendant Municipality. In this manner this appeal and connected first appeals have been filed by the plaintiffs. 10. The contention of Mr. Sameer Athawale, learned counsel for the appellants is that according to the pleadings, oral and documentary evidence placed on record it is proved that the construction to cover up the impugned Well was carried out by the defendant Municipality. But, despite it was covered, the said place was not required to be used for sitting or access or convening a meeting of Mandi Samiti and the people ought not to have assembled at that place because on account of huge gathering the cover part could not bear the weight of several persons and, therefore, if it had fallen down resulting into the death of the sole bread earner of the plaintiffrs, certainly the defendants are jointly and severally liable to pay the compensation. 11. The second submission of learned counsel for the appellants is that there was no indication mark that beneath the covered place there is a Well and it should not be used for access or to sit or to hold any meeting etc. and, therefore, the action of Mandi Samiti holding a meeting at the impugned place i.e. the covered place of the Well was hazardous and hence, the defendants are liable to pay the compensation. In support of the contention, learned counsel for the appellants has placed reliance on Union of India v. Prabhakaran Vijay Kumar [ (2008)9 SCC 527 ], and the Constitution Bench decision of Supreme Court in the case of M.C. Mehta v. Union of India [ AIR 1987 SC 1086 ]. Two more decisions of the Supreme Court Jai Laxmi Salt Works (P) Ltd. v. State of Gujarat [1994 ACJ 902], and Municipal Corporation of Delhi v. Subhagwanti [AIR 1967 SC 1750], have been placed reliance by the learned counsel for the appellant. 12. On the other hand Shri Pranav Mandhaniya, learned counsel appearing on behalf of the respondent No.2 Mandi Samiti submits that although the Well in question was in the Mandi premises but the control is of defendant Municipality and it was for the Municipality not to allow to hold any meeting and further it was the duty of the Municipality to put necessary notice that the impugned Well should not be used for access or to sit or to convene any meeting etc. It has also been put forth by learned counsel that since the material to cover up the Well was of inferior quality hence the Municipality is responsible to pay the compensation. 13. Mr. V.K. Jain and Mr. Vaibhav Jain, learned counsel appearing for the Municipality submitted that the construction work was not carried out by the Municipality, in fact, on account of supersession of the Mandi Samiti and the Municipality, the administrator of the Municipality was one is the same who took over the charge of the Mandi Samiti and a decision was taken to cover up the Well in order to protect the water from pollution and dust and other hazardous substance which may fall in the Well and simply the Municipality carried out the work to cover up the Well and nothing more. Indeed the meeting was convened by the Mandi Samiti and, therefore, the defendant Municipality is not at all liable to pay any compensation. 14. Learned counsel for the defendant-Municipality further contended that although the statutory notice was sent and served upon the Municipality, but the suit was not filed within eight months from the date of the accrual of alleged cause of action and, therefore, the suit is barred by time as envisaged under section 319 of the Municipalities Act, 1961. 15. It has further been propounded by learned counsel for the Municipality that though certain issues were decided against the defendant Municipality but since the suit was dismissed in its entirety, those findings can be challenged by the respondent Municipality and in this context the learned counsel has placed reliance on the decision of Supreme Court in the case of Virdhachalam Pillai v.Chaldean Syrian Bank Ltd., Trichur [ AIR 1964 SC 1425 ], which has been relied by the Single Bench of this Court in the case of Ram Charan Singh v. Brij Bhushan Pandey [ 1997(1) MPLJ 565 ]. Learned counsel has also placed reliance on another decisions of this Court in the case of Bhagwandas Pawaiya v. Registered Firm Kailash Narain and Brothers [1991(1) MPJR 361], and Fatimabai v. Jenuddin [1991 MPJR 157], in this regard. Hence, it has been prayed that the suit be dismissed against the defendant Municipality. 16. Learned counsel has also placed reliance on another decisions of this Court in the case of Bhagwandas Pawaiya v. Registered Firm Kailash Narain and Brothers [1991(1) MPJR 361], and Fatimabai v. Jenuddin [1991 MPJR 157], in this regard. Hence, it has been prayed that the suit be dismissed against the defendant Municipality. 16. Learned Panel Lawyer for the State has argued in support of the impugned judgment and submitted that no liability can be fastened upon the State of Madhya Pradesh because the State has not done anything and hence the suit has rightly been dismissed against the State. 17. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed but only against defendant Mandi Samiti. 18. Admittedly the Well in question is situated in an area which is part of Mandi Samiti and thus for all practical purposes the defendant Mandi Samiti was having domain over that area and was also in possession over the entire land including the area upon which the impugned Well was constructed and was covered up. However, we are not at all impressed by the submission of learned counsel for the defendants Municipality that the construction work to cover up the impugned well was not carried out by the Municipality.A bare perusal of Ex.D-2 which is the note-sheet dated 14.6.1994 of the Municipality, Neemuch, it is gathered that in order to protect the Well situated in the Mandi premises from the garbage, dust etc. so that the water of the Well does not get polluted, it was decided to raise a boundary wall having 1-1/2 ft. around the Well. Thereafter, there is a further note-sheet that the said Well should be covered also and on going through the document Ex.D-2 in its entirety, it is gathered that necessary construction work to cover up the impugned Well situated in the premises of Mandi Samiti was carried out by Municipality only, therefore, according to us although the stand of defendant Municipality is that the work to cover up the Well was not carried out by it but it has been proved from their own document Ex.D-2 and therefore we have no scintilla of doubt to hold that the entire work to cover up the Well situated in the Mandi Samiti was carried out by the Municipality. 19. 19. However, we find some substance in the submission of learned counsel for the Municipality that the Municipality only constructed necessary construction to cover up the Well to protect from pollution and dust and nothing more. According to us, merely because the necessary construction to cover up the impugned Well was carried out by the Municipality would not mean that any liability to pay the compensation can be fastened on them. The impugned Well and the land upon which the Well has been constructed is within the Mandi Samiti premises and, therefore, according to us the Mandi Samiti was having domain, control as well as possession over the entire area of the Mandi Samiti including the land on which the impugned Well is situated. Merely because the Well was covered up by the Municipality would not mean that the Mandi Samiti was permitted to use that place for access or to allow the persons to sit on that place. Indeed, the Mandi Samiti should not have convened a meeting on the covered area of the Well because they were fully aware that beneath the covered area 50 ft. depth Well is there and, therefore, according to us the act of the Mandi Samiti convening a meeting over the place of covered Well was hazardous and amounts to negligence. 20. According to us negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. [See Ratanlal and Dhirajlal, The Law of Torts, 26th Edition 2010, page 474]. 21. It is proved from the pleadings and the evidence placed on record rather it is an admitted fact that the meeting was convened by the Mandi Samiti over the covered Well which was not at all permissible. The Mandi Samiti and its office bearers were fully aware that the Well is only covered so as to protect the water from the pollution. It has been proved from the evidence and learned counsel for the defendant Mandi Samiti could not point out that any notice was displayed nearby the area that the covered area of the Well should not be used for access or to sit or to convene any meeting. It has been proved from the evidence and learned counsel for the defendant Mandi Samiti could not point out that any notice was displayed nearby the area that the covered area of the Well should not be used for access or to sit or to convene any meeting. Surprisingly knowing this fact that beneath the covered portion the Well is in existence, the Mandi Samiti has convened a meeting and that too at that particular hazardous place only and therefore the action of Mandi Samiti comes within the definition of “actionable negligence”. According to us the actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. [See Ratanlal and Dhirajlal, The Law of Torts, 26th Edition 2010, page 474]. 22. According to Winfield, “negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”. The definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage. [See Ratanlal and Dhirajlal, The Law of Torts, 26th Edition 2010, page 474]. 23. According to us, the negligent act of Mandi Samiti by convening a meeting at the hazardous place where several persons assembled there and they were not knowing that it is not a place to sit or to hold any meeting because no notice, etc. in that regard was displayed at that place, therefore, the deceased persons cannot in any manner be said to be negligent. in that regard was displayed at that place, therefore, the deceased persons cannot in any manner be said to be negligent. The office bearers of Mandi Samiti were fully aware that if a meeting is convened at the hazardous place covering the Well there are possibilities to harm the others and if that would be the position the law has to treat them as liable on the term of injuring the public against injury irrespective of who was at fault.The principle of strict liability applies in the present case against the defendant Municipality and therefore according to the decision of the Supreme Court Prabhakaran Vijaya Kumar (supra), placed reliance by the learned counsel for the appellant is fully applicable and paras 20 to 23, 27, 31, 37 and 38 of the said decision are fully applicable in the present case. We may also profitably place reliance on the decision of Constitution Bench of apex Court in the case of M.C. Mehta (supra), which has also been relied upon in the case of Prabhakaran Vijaya Kumar (supra). The other two decisions of Supreme Court in the case of Jai Laxmi Salt Works (P) Ltd. (supra), and Subhagwanti (supra), are also squarely applicable in the present case. 24. For the reasons stated herein above, we are unable to uphold the impugned judgment passed by the learned trial Court dismissing the suit of plaintiffs. The impugned judgment and decree passed by the trial Court is hereby set aside and the case is sent back to the trial Court to decide the amount of compensation in each suit and pass a decree accordingly, since this exercise has not at all been done while dismissing the suit. 25. Since the suit is quite old, the parties are hereby directed to appear before the learned trial Court on 14th May, 2012 and no separate notice shall be issued to either parties for the date of hearing. The trial Court is directed to decide the suits and to assess the compensation on or before 1st October 2012. The Principal Registrar of this Bench is directed to send the record posthaste so as to reach the trial Court much prior to 14th May, 2012. 26. Resultantly, this appeal is hereby allowed with cost. Counsel fee according to the schedule, if pre-certified. .............