Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 215 (HP)

Bhanu Devi v. State Of H. P.

2017-03-20

VIVEK SINGH THAKUR

body2017
JUDGMENT Vivek Singh Thakur, J. (Oral) - Petitioner is wife of deceased Rajinder Singh, Junior Engineer H.P. Public Works Department, expired in an accident dated 19.11.2006 on collapse of a bridge during its load testing. She has approached this Court under writ jurisdiction praying for compensation from respondents for causing death of her husband in the accident in question on account of negligence on the part of respondents. 2. Respondents 1 to 4 have filed reply, admitting the claim with averment that on the basis of indemnification clause 74.2 of the contract agreement signed between department and respondent No. 5, it was obligation and responsibility of respondent No. 5 to ensure and pay damages against loss or injury which might occur to any person (including an employee of department) by or arising out of carrying out the contract. Objection of nonjoinder of insurance company, name of which was to be disclosed by respondent No. 5, has also been taken. 3. It is also objected by respondent-State that there are four legal heirs of deceased whhereas present Petition has been filed only by one legal heir i.e. wife of deceased Rajinder Singh and non joinder of necessary party on this count is pleaded by placing legal heir certificate of deceased Rajinder Singh, on record. 4. Respondent No. 5, despite granting opportunities since 2009 till 2012, has not preferred to file reply. 5. I have heard learned counsel for parties and have also gone through records. 6. From arguments of learned counsel for parties and documents on record following undisputed facts emerge:- (a) That deceased Rajinder Singh, having date of birth 31.1.1965, aged 41 years, working as Junior Engineer with H.P. Public Works Department in the pay scale of Rs. 5800-9200 with gross salary Rs. 12704/- per month was posted in B&R Division, Kalpa Division in Jaunary 2005 vide office order dated 31.12.2005 (b) That respondent No. 5 was awarded work of construction of super structure of 65 meter effective span motorable steel truss bridge over river Satluj at Tashigang, District Kinnaur, H.P. vide letter dated 25.10.1999 issued by Executive Engineer, Kalpa Division with time limit of two years for completion i.e. on or before 10.11.2001. (c) That launching of bridge and fixing of bearings was done in January 2005 and July 2005 respectively prior to posting of deceased. (c) That launching of bridge and fixing of bearings was done in January 2005 and July 2005 respectively prior to posting of deceased. Thereafter deck slab was laid in September 2006 and date for load testing was fixed on 19.11.2006 and on that day deceased died on collapse of bridge during load testing. (d) That after incident, respondent-State had constituted Inquiry Committee, consisting of Chief Engineer, PMGSY (Chairman), Superintending Engineer (Mechanical) HPPWD, (Member) and Additional District Magistrate-II (Member) to ascertain cause of fall of steel truss bridge over river Satluj. The committee submitted its inquiry report to the respondent-State copy whereof is on record as Annexure P-4. (e) That according to inquiry report (Annexure P-4) submitted by Committee constituted by Respondent-State, various drawings submitted by respondent No. 5 were approved by Chief Engineer (Design) HPPWD, Shimla which are as under:- 1 GAD showing structural steel details bearing Drg. No. BE/99/70/Satluj/RO Approved vide CE(D) Shimla letter No. 1561012 dated 25.2.2000 With note that the Grg. is approved subject to the condition that firm takes full responsibility for the structural stability of the bridge since the bridge system being proposed by it is based on its standard Patent design. 2. Details of R.C.C. Deck slab bearing Drg. No. BE/99/71/Satluj/RO -do- 3. Detail of Rocker bearing plates bearing Drg. No. BE/99/70/Satluj/14/RI Approved vide CE(D) Shimla letter No. 1062264 dated 29.7.2004. With note that the firm shall be fully responsible for the safety of bearing as shear connector on bearing is patent of the firm. 4. Details of Rocker roller plates bearing Drg. No. BE/99/70/Satluj/15/RI -do- -do- 5. Splice Joint details of Intermediate Chord, Drg. No. BE/99/70/Satluj/1- A/RO Approved vide CE(D) Shimla lette No. 2218486 dated 8.11.2004 (f) . That after receiving inquiry report, respondent-State had taken some decisions whereby respondent No. 5 Company was directed to reconstruct the bridge at its own cost and hand over the bridge after load testing by August 2007 and other bridges constructed by respondent No. 5 in the State were also directed to be inspected and with further direction to take remedial measures if required. (g) . That general instructions were also issued to all field officers to observe all safety measures and necessary standard procedures with respect to construction of bridges including technical guidance of senior officers, recording the same in the site inspection books. (g) . That general instructions were also issued to all field officers to observe all safety measures and necessary standard procedures with respect to construction of bridges including technical guidance of senior officers, recording the same in the site inspection books. (h) That it was also decided that respondent No. 5 would pay relief to the family members of person who lost their lives during load testing. Public Works Department was directed to process the case for DCRG, family pension and compassionate appointment immediately with respect to deceased Junior Engineer i.e. Rajinder Singh. (i) That communication dated 12.1.2007 circulating these directions issued in pursuance to decision taken by the Government is on record as Annexure P-5. 7. As per inquiry report Annexure P-4, procuring of material was started by respondent No. 5 in March 2000 which continued till March 2001 and material was fabricated by respondent No. 5 at their Sholding khad bridge site and thereafter transported to the site of work at Tashigang and payments of transport of material were made in March, July and September 2004. The launching of the bridge and fixing of bearings was done in January 2005 and April 2005 and due to flash flood in river Parchhu on 26.6.2005, deck slab was laid in September 2006 whereafter on 19.11.2006, the bridge collapsed suddenly during load testing. 8. It has come in inquiry report that on 4.11.2006, respondent No. 5 requested concerned Executive Engineer to carry out load testing whereas drawing of load testing was prepared by respondent No. 5 on 10.11.2006 and the load testing was done on 19.11.2006 and as per reply submitted by respondent No. 5 to inquiry Committee vide letter dated 1.12.2006, probable reason for sudden collapse of the bridge was that during the course of load testing bolt cutting panel 7-8 were found missing which resulted to opening of uni shear joints at the said point, leading to collapse. 9. It has also come in inquiry report that respondent No. 5 had deputed Sh. Ram Morya, site incharge of the work for getting the work executed on its behalf. As per report, construction of bridge was responsibility of firm and as per contract agreement, safety measures, if any, were to be adopted by the firm in consultation with departmental officers. It has also come in inquiry report that respondent No. 5 had deputed Sh. Ram Morya, site incharge of the work for getting the work executed on its behalf. As per report, construction of bridge was responsibility of firm and as per contract agreement, safety measures, if any, were to be adopted by the firm in consultation with departmental officers. It has also come on record that respondent No. 5 had also not deputed any engineer to supervise the construction of bridge and entire work was being executed in the supervision of foreman 10. According to Inquiry Report, after satisfactory launching of the bridge in 2005, there was a gap of one year and nine months in laying the deck slab and respondent No. 5 and department were required to check camber of bridge, tightening of all nuts and bolts and functioning of bearings. Executive Engineer in his statement to Inquiry Committee claimed regular supervision of work by the Department and inspection of shuttering work, nut and bolts, camber before locking the deck slab in the presence of site Incharge of contractor, JE and Assistant Engineer. As per claim of Executive Engineer, he inspected site on 11.11.2006 before date of load testing i.e. 19.11.2006 and as per him, everything was found in order. According to him, on 19.11.2006, site Incharge of firm had checked all nuts, bolts and bearings. He further claimed that bolts were visually seen by him before starting the load testing of bridge and Junior Engineer was also present and bearings and movement of rocker and roller bearing was also claimed to be in order. 11. Interestingly, Site Order Book was not produced before Inquiry Committee despite asking for the same. However, Assistant Engineer Orally stated that no remarks had been given in Site Order Book. From the record of log books of vehicles of concerned officers, placed before Inquiry Committee, it was found that Chief Engineer(S) had never visited the site since 2002 till 2006 and Superintending Engineer had visited the site twice on 22.10.2003 and 25.6.2005 only. Executive Engineer had inspected site, but only in the year 2006, during September 2006 to November 2006. No other record of site inspection by the Departmental officers, except these inspections was found by Inquiry Committee. Executive Engineer had inspected site, but only in the year 2006, during September 2006 to November 2006. No other record of site inspection by the Departmental officers, except these inspections was found by Inquiry Committee. In the statements given to the Inquiry Committee Executive Engineer stated that he had inspected side on 11.11.2006 whereas in his tour diary no such inspection of the site on that day was found. Comments of Inquiry Committee regarding Inspection are as under:- "The bridge was being constructed in the remote area of Kinnaur District. The firm had not deputed any engineer to supervise the construction and the entire system was left to the foreman and his wisdom. The visits of the divisional staff and its supervision seems to be adequate though there seems to be laxity in checking the critical components before load testing viz. nuts and bolts, camber, bearings and approval of load testing drawing. The inspection by the Superintending Engineer have been there twice but not at the time of load testing. The Chief Engineer has not visited the sight nor seems to have given any technical guidance to his staff." 12. General findings of Inquiry Committee are as under:- "The drawing of the superstructure approved by the Head Office does not any where mention about the camber to be provided in the bridge. The design calculation provided by the firm show a camber of 10.8 cm. The Assistant Engineer on verbal enquiry stated that camber of 4" was provided during erection. This fact cannot be verified as there is no reference from field office to head office to clarify this discrepancy in drawing, nor any authority available with field office for the same. The providing of camber therefore remains in doubt as the same was missing in approved drawings. The load testing drawing was not sent by the firm or the field office to the office of Chief Engineer (Sought) for approval. The load testing has been done based on an un-approved drawing." 13. The providing of camber therefore remains in doubt as the same was missing in approved drawings. The load testing drawing was not sent by the firm or the field office to the office of Chief Engineer (Sought) for approval. The load testing has been done based on an un-approved drawing." 13. On the basis of opinion of Design Wing of Public Works Department, Committee has also arrived at following conclusion:- "(a) As per IRC SP:51-1999, clause 4.3-''the test load shall be applied in stages so that timely action such as stopping the test can be taken if any untoward distress is observed at any stage.'' the suggested stages of test load phase are 30%, 50%, 70%, 80% 90% and 100/-. Unloading should be in the same stage. The next incremental loading should be added only after the deflection under the previous load have stabilized and all the stipulated observations are completed. b) As per IRC SP; 37-1991, clause 6.4.2-''test vehicles will be placed at marked locations on the bridge so as to produce maximum movement effects on girder.'' While placing the test vehicles at the desired location on the deck, these will preferably be move from both directions leading to their final positioning. Both these procedures were not followed while doing load testing. Hence it is inferred that the procedure of load testing adopted was erratic and not as per codal requirements, thus leading to failure of the bridge." 14. Report of Inquiry is not disputed either by respondent-State or respondent No. 5. Respondent No. 5 had not chosen to file reply to rebut the contentions of Petitioner or respondents No. 1 to 4 including findings of inquiry report. 15. It is submitted on behalf of respondent-State that it is duty and responsibility of respondent No. 5 to pay compensation to the family of deceased Rajinder Singh as per contractor liability provided in Clause 74.4 of contract agreement dealing with damage to a person and property which reads as under:- "74.4 Before commencing execution of the work, the Contractor shall without in any way limiting his obligations and responsibilities under the conditions, insure against any damage, loss or inquiry which may occur to any property (excluding that the Department) or to any person (including any employee of Department) by or arising out of carrying out of the Contract." 16. Learned Sr. Advocate, Mr. Learned Sr. Advocate, Mr. J.S. Bhogal on behalf of respondent No. 5 submits that deceased was site incharge and he was also party to the negligence causing the accident and it was he only who was responsible for taking all necessary precautions and to check all codal formalities including the approval of test loading drawings prior to conducting load test. It is also contended that family of deceased has been duly compensated with all service benefits and Petitioner has also been provided job on compassionate ground and therefore Petitioner or legal heirs of deceased are not entitled for any compensation from respondents particularly from respondent No. 5. It is submitted that there are highly disputed questions of facts involved in present case and cause of accident and responsibility thereof is also in dispute between State and the respondent No. 5 and therefore, Petitioner is not entitled for any compensation by invoking jurisdiction of this Court under Article 226 of Constitution of India. It is further submitted by learned Sr. Counsel for respondent No. 5 that criminal proceedings initiated against officers and officials of respondent No. 5 have also culminated into acquittal and no negligence on the part of officers and officials of respondent No. 5 has been established and therefore, respondent No. 5 is not liable to pay any compensation to Petitioner or legal heirs of deceased and compensation, if any, in all eventualities is to be paid by respondents'' department. 17. It is further submitted by Mr. Bhogal that in material testing report got conducted by Inquiry Committee, no fault was found and it was the concerned officers of Department who allowed load testing without approval of drawings and that too in unscientific manner which resulted the collapse of the bridge and therefore respondent No. 5 can not be burdened with responsibility to pay compensation for death of deceased Rajinder Singh or to indemnify the State for compensation to be paid on account of the collapse of bridge. 18. 18. Learned counsel for Petitioner has relied upon judgment dated 2.1.2006 rendered by the Division Bench of this Court passed in CWPIL No. 7 of 2014 wherein after discussing plethora of judgments of the Apex Court, it has been concluded that in appropriate case, exercising power under Article 226 of the Constitution, compensation can be awarded to legal heirs of deceased died in accident caused on account of negligence of State authorities or instrumentalities executing the work on behalf of State. 19. In present case, the bridge was being constructed on behalf of respondent No. 1 and the work was being executed on its behalf by respondent No. 5 and during load testing the bridge has collapsed which was not supposed to be collapsed in normal circumstances, in case construction of the same would have been in accordance with prescribed standards with due diligence and care required to be taken during construction of the bridge. Not only respondent No. 5 has failed to explain justifiable reasons for collapse of the bridge rather there is an undisputed inquiry report of the Committee duly constituted by the respondent-Sate which has not been assailed by either of the respondent indicating admission of negligence of concerned agencies. 20. The appointment and posting of deceased is not disputed and it is also undisputed that deceased was on the site under instructions of concerned Executive Engineer who in response to request of respondent No. 5 had allowed the load testing on 19.11.2006 without approving the drawings for the said purpose. Monthly income of deceased and his legal heirs mentioned in legal heirs certificate (Annexure P6) are also not disputed. So far as negligence is concerned that also stands proved by undisputed and accepted report of Inquiry Committee. Even otherwise, it is a case where the facts itself are speaking that it was a case of negligence. Whether negligence is on the part of respondent-Department or respondent No. 5, or both, it is a matter to be decided interse them for which family of deceased should not have been made to suffer. So far as grant of service benefit to the family are concerned, legal heirs of deceased would have been entitled for those benefits even in case of natural death and those benefits are not in lieu of the sudden accidental death of deceased caused due to negligence of respondents. So far as grant of service benefit to the family are concerned, legal heirs of deceased would have been entitled for those benefits even in case of natural death and those benefits are not in lieu of the sudden accidental death of deceased caused due to negligence of respondents. The plea of respondents that Petitioner has been provided compassionate appointment is also not of much help for them as it is policy of the State to provide compassionate appointment even in other cases of deaths of its employees caused not due to negligence of department, but for other reasons. Though, these facts may be taken into consideration for determining the amount of compensation. 21. Plea of respondent No. 5 that acquittal of its officers and officials in a criminal case leads to conclusion that there was no negligence on their part is also not tenable, because in criminal cases, proof of criminal negligence i.e. gross negligence beyond all reasonable doubts is required to be proved by prosecution whereas in civil cases only preponderance of probabilities is to be proved. In present case, as discussed above, negligence for the purpose of tortuous liability stands duly proved on the basis of material placed on record. Therefore, Petitioner alongwith other legal heirs mentioned in legal heir Certificate (Annexure P-6) is entitled for just and fair compensation for death of deceased Rajinder Singh caused in the accident occurred at the time of load testing of bridge on 19.11.2006. 22. Division Bench of this Court in CWPIL No. 7 of 2014 referred supra has also considered various judgments and methods for calculating the amount of compensation to be paid in such cases and finally concluded that multiplier method is the best method to assess the compensation in accident cases. 23. In the given facts and circumstances of present case, there was no contributory negligence on the part of deceased as the bridge had already been launched prior to his joining i.e. in January 2005 and argument raised on behalf of respondent No. 5 that after laying down the deck, the bridge did not collapse even after removing shuttering which was heavier than the load of the vehicles brought on the bridge at the time of load testing, negates the plea of contributory negligence. So far as load testing without approving the drawings for the said purpose is concerned, respondent No. 5 had made request to Executive Engineer who was the superior officer of the deceased and responsible to ensure approval of drawings prior to allowing the load testing of the bridge and deceased, in natural course, was supposed to believe completion of all pre requisite requirement by its superior officers who had deputed him on the site for load testing. Therefore, negligence on the part of deceased Rajinder Singh can not be inferred from the material placed on record. 24. Article 21 provides right to life as fundamental right to citizen of India. In normal circumstances right to have family, father, husband and/or son is also a basic human right which is a part of life of citizen and it is the duty of State to protect the said right of citizen and then only, right to life guaranteed under constitution of India can be said to be protected by the State. Basic human rights are also considered as integral part of right to life and therefore, for infringement of such human right on account of negligence on the part of State or its instrumentalities amounts to violation of right to life guaranteed under Article 21 of the Constitution of India and on account of such violation victim is always entitled to be compensated and definitely this Court is empowered under Article 226 of the Constitution of India to award compensation to victims in such cases. 25. In present case, deceased was drawing salary of Rs. 12704/- per month. After deducting /rd salary, loss to legal heirs comes to be 8470/- per month resulting into annual loss of Rs. 1,01,640/-. Age of deceased at the time of death was 41 years and therefore, multiplier of 15 will be appropriate. By applying this method, amount of compensation becomes Rs. 15,24,600/-. 26. In view of aforesaid calculation, legal heirs of deceased are held to be entitled for Rs. 15,00,000/- compensation amount in lump sum. Learned counsel for Petitioner submits that in the year 2006, rate of interest was 9% per annum whereas counsel for respondents have submitted that present rate of interest should be considered at the time of awarding rate of interest which is less than 7% as of now. 15,00,000/- compensation amount in lump sum. Learned counsel for Petitioner submits that in the year 2006, rate of interest was 9% per annum whereas counsel for respondents have submitted that present rate of interest should be considered at the time of awarding rate of interest which is less than 7% as of now. In my view rate of interest @ 7 1 /2 % per annum from the date of filing of the Petition till full and final payment of awarded compensation. The amount of compensation alongwith proportionate interest shall be apportioned in following manner:- Smt. Bhanu Devi 55% Kumari Sonal 15% Prateek 15% Smt. Roshani Devi 15% 27. Respondents-State has itself taken decision to provide relief to the family of the deceased Rajinder Singh. Though, responsibility to pay compensation has been entrusted upon respondent No. 5, but it is disputing its responsibility stating that there was no negligence on its part and in any case there was contributory negligence on the part of official/officers of the respondent State whereas, by referring clause 74.4 of the contract agreement, it is contended on behalf of State that it was respondent No. 5 who has to pay compensation to the family of deceased. Be it as may be, it is dispute between respondent-State and the respondent No. 5 with regard to pay amount of compensation whereas it is undisputed fact that deceased was employee of the respondent-State and has expired due to collapse of bridge at the time of load testing, being constructed by respondent No. 5 on behalf of respondent State. Therefore, respondent-department and respondent No. 5 are held liable, jointly and severally, to pay amount of compensation to the legal representative of deceased Rajinder Singh. For dispute with regard to liability to pay compensation between respondent-State and respondent No. 5, victims i.e. family/legal heirs of deceased should not suffer. Therefore, respondent-State is directed to pay the compensation to legal representatives of the deceased subject to its right to recover the said amount from respondent 5 in accordance with contract agreement signed between respondent department and respondent No. 5. The payment of compensation shall be made within three months after production of certified copy of judgment along with details of bank accounts of legal representatives of deceased Rajinder Singh. 28. Petition is allowed in the above term and is disposed of alongwith pending application, if any.