JUDGMENT : 1. These appeals unfold the plight of a young smart boy, who was a student of Canara High School, Mangalore, in the year 1998. In the early morning of 23.10.1998 in an unfortunate incident his dreams were shattered and he was thrown to a wheel chair to pull on, rest of his life. 2. It is the case of the plaintiff/the victim that he was a resident of Kodibail village in Kasaragod Taluk, Kodibail village near to Uppala. He was a day scholar who used to travel to Mangalore everyday from Uppala to attend his school. He also used to go for jogging early in the morning and while so, on 23.10.1998 he along with his brother Laxmisha Rai and a friend one Ramachandra Shetty, a law student went for jogging. Unfortunately, on the way he fell into a trench dug across the public road and left open without any danger board or signal near the place where Uppala Kodibail road joins the National Highway and thus sustained very severe injuries to his spinal cord. He was rushed to City Hospital Research and Diagnostic Centre, Kadri, Mangalore, from where he was referred to Kasturba Medical College Hospital, Manipal. But due to the injury sustained to his spinal cord, he was completely laid up and as a result he could not continue his studies. Though expert treatment was provided by spending huge amount he suffered permanent disability. He was a hard working and enthusiastic student and had good academic carrier in his studies, sports and games and all his good future was lost for ever because of this incident. So, he claimed in total an amount of Rs. 8,00,750/- as damages from the respondents. 3. Defendants 1 and 2 are the Union of India and General Manager, Telecom, Kannur. They filed a written statement denying the incident and inter alia contending that the allegation that a trench was dug across Uppala-Kodibail road is false and no work was carried out on 22.10.1998/23.10.1998 and no trench dug was left open. The allegation that the plaintiff sustained injuries as he fell into the trench is not correct. No incident had happened as alleged and the second defendant did not entrust any work to the fourth defendant as alleged. 4. The allegation that the plaintiff sustained injuries as he fell into the trench is not correct. No incident had happened as alleged and the second defendant did not entrust any work to the fourth defendant as alleged. 4. The third defendant filed a written statement contending that the subject matter under question relates to the affairs of the Telecommunication Department and the third defendant is an unnecessary party. 5. The fourth defendant/contractor filed written statement inter alia contending that he was entrusted with the work of digging the trench and laying pipes in section 98/16 of Uppala Paivalike Peruvai O.F.C. route by the General Manager Transmission Project Ernakulam. The work was done under the supervision of the Divisional Engineer, Telecom Transmission Project Kannur. Uppala Kodibail road junction is at a distance of 600 metres from Uppala Telephone Exchange and the work started on 31.8.1998 from the premises of Uppala Telephone Exchange and completed on 18.9.1998. Thereafter the work was done only by the side of Paivalike road at a distance of 3 km away from National Highway. The trench dug for laying cables was having a width of 45 cms. and depth of 1.65 metres with mud scooped on both sides of the trench. Hence, there was no chance of any person falling into the trench. The plaintiff might have suffered injury from some private property and so, not entitled to claim damages from the defendants. 6. Before the court below the plaintiff was examined as PW-1, PW-2 to PW-6 were examined on his side to prove his case. Exts.A1 to A40 series were also marked. For the defendants DW-1 was examined and Exts.B1 and B2 were marked. Ext.C1 medical certificate was also marked and the court below on evaluation of the entire evidence concluded that the plaintiff had sustained injury due to the negligent act of the defendants and he is entitled to get damages for the same. The suit filed for damages as O.S. No. 6 of 2001 before the Sub-Court, Kasargod was decreed. The said judgment and decree are under challenge by the first, second and the fourth defendants by these two separate appeals. The third defendant did not chose to file an appeal challenging the judgment and decree passed in favour of the plaintiff. 7. Heard Adv. Sri. The said judgment and decree are under challenge by the first, second and the fourth defendants by these two separate appeals. The third defendant did not chose to file an appeal challenging the judgment and decree passed in favour of the plaintiff. 7. Heard Adv. Sri. P. Vijayakumar, the learned counsel for the 2nd appellant in RFA No. 330 of 2005 and the third respondent in RFA No. 486 of 2005, Adv. R. Harishankar for the first respondent in both the appeals and Sri. M.V. Anandan, the learned Government Pleader. 8. The point of consideration is whether an incident had taken place as alleged by the plaintiff and if so, whether the plaintiff is entitled to realise any amount as damages from the defendants/respondents, for their negligent act? 9. Though the plaintiff was a resident of a village named Kodibail near Uppala in Kasaragod district, he was a student of Canara High School, Mangalore. His case is that he was very bright in his studies and was also very active in sports and games. Ext.A16 and A17 are the certificates produced by him to prove his excellence in the school. Ext.A16 would show that he had participated in State Level Science Talent Examination and secured certificate for his excellence. Ext.A17 would show that he had secured certificate in cricket match also So Exts.A16 and A17 would establish that he was very active in sports and science apart from his studies. His case is that he used to go for his studies by boarding bus to Mangalore from Uppala and he was a day scholar. He also used to go for jogging before going to his school on every day, is his case. 10. According to him on the fateful day at about 5.45 a.m. he went for jogging along with his younger brother Laxmisha Rai and a friend one Ramachandra Shetty. He was moving in front and while so, he fell into a trench which was dug across Uppala Koibail road and became unconscious. Though he was removed from trench and shifted for treatment, he sustained very serious injuries including paraplegia and thus he was totally bed ridden. From the records it is revealed that the incident had taken place on the road by name Uppala Kodibail which joins the National Highway on its eastern side. The spot was somewhere near to the junction which joins the NH 47 road. From the records it is revealed that the incident had taken place on the road by name Uppala Kodibail which joins the National Highway on its eastern side. The spot was somewhere near to the junction which joins the NH 47 road. Though, defendants have denied the allegation that a trench was taken by the second defendant for laying cable through the road and left it open and thus the unfortunate incident happened, did not adduce cogent evidence to deny the allegation levelled against them. Further, it was contended that no work was entrusted to the fourth defendant contractor and no trench on the public road was kept open in the above location, the fourth defendant contractor had a contention that he was entrusted with the work of digging trench and laying pipes in Section 98/16 of Uppala Paivalike Peruvai O.F.C. route by the General Manager Transmission Project, Ernakulam and the work was done under the supervision of Divisional Engineer Telecom Transmission Project, Kannur. It was further admitted by him that Upala Kodibail road junction is at a distance of 600 metres from Uppala Telephone Exchange and the work started on 31.8.1998 from the premises of the Uppala Telephone Exchange and completed on 18.9.1998. Of course, the defendants 1 and 2 have produced Ext.B1 measurement book and Ext.B2, offset diagrams of Uppala-Peruvai O.F Route, but these documents will not reveal that the work was completed by 18.9.1998 and thereafter no work was done by the side of National Highway. A Divisional engineer of BSNL was examined as DW1 in support of their case. But he could not give evidence when the work was exactly completed, with reference to Ext.B1. He in fact testified that records were available to show the progress of the work done by DW4. But the so called records have not been produced to prove that on the date of the incident no trench was dug parallel to NH 47 cutting across Kodibail road, so as to conclude that there was no trench across the said road on 22.10.1998 or in the morning of 23.10.1998. 11. According to him on that fateful day also he went for jogging along with Laxmisha Rai and Ramachandra Shetty. 11. According to him on that fateful day also he went for jogging along with Laxmisha Rai and Ramachandra Shetty. There was no sign board or warning board to alert the public, especially the pedestrians/commuters about existence of the trench to take precaution and there was no trench in existence on the previous day when he returned to his residence from the school. So he did not anticipate any such danger and accidentally, he fell into the trench dug in the night and left open by the defendants. Though, PW-1, the injured was cross examined in length and he faced the piercing cross examination, his evidence that he fell into the trench left open as there was no sign board to alert the people passing there, stands proved. The records further reveal that his physical condition was miserable even at the time of evidence. 12. His father, PW-2 who rushed to the spot on getting information about the incident also deposed about the incident in the same line. Of-course PW-2 was not an eye witness to the incident. 13. But, PW-3 Ramachandra Shetty who was along with PW-1 at the time of the incident was examined to prove the allegation that a trench was kept open on the middle of Kodibail road near the junction where this road joins NH 47. PW-3 had deposed that at the time of the incident he was a law student in a law school at Mangalore and he was also a day scholar. According to him, on 22.10.1998 after his class as usual he returned to his house at 3 p.m. and while he was on his way back to his house, he had seen workmen engaged with the work of digging of trench at Uppala city just 100 metres away from the spot. In the early morning of 23.10.1998 when the incident had taken place there was no street light. Though, there was a workshop near the spot, the light from the workshop was not very much available, and the plaintiff could not see the trench because of the non availability of sufficient light. A compound wall was blocking the light from the workshop. Thus, the plaintiff accidentally fell into the trench having a depth of 1½ metres and sustained grievous injuries. 14. PW-4 (Narayana Hegde) is the owner of this particular workshop situated near the spot. A compound wall was blocking the light from the workshop. Thus, the plaintiff accidentally fell into the trench having a depth of 1½ metres and sustained grievous injuries. 14. PW-4 (Narayana Hegde) is the owner of this particular workshop situated near the spot. He had deposed that his workshop by name Brakhyath was at Uppala and he used to open his workshop till late night at 10 p.m. and used to work in the worship till then. According to him also on 22.10.1998 he had seen workers engaged with digging of trench across the Kodibail road at the junction which joins the National Highway and the work was near to his workshop. On enquiry, it was told that they would close the trench in the night and make it available and suitable for travelling. The testimony of PW-4 further shows that the trench was dug by the employees in the night, on 22.10.1998. His evidence corroborated the evidence of the PW-1 and 3 to establish that there was digging of trench in the night of 22.10.1998. No reliable evidence was adduced to show that the employees of the fourth defendant had closed the trench and made it suitable for pedestrians when they completed the work. So the evidence of the independent witness would show that the trench was dug by the employees of the fourth defendant, the contractor on the previous night and left it open without any sign board indicating danger. 15. PW-5 Shivananda, an autorickshaw driver who used to park his vehicle at Kodibail junction deposed before the court below that usually he starts his work at 5.30 a.m. and on 22.10.1998 i.e. on the previous day of the incident he found digging of the trench, at a distance of 15 mts away from NH road near the junction by the workers and the trench was there in the night and no street light was available at the spot. He testified that the trench was having a depth of 1½ meters and a width of 1½ ft. He further testified that on 23.10.1998 when he was standing in the auto stand for his work, Laxmisha Rai, the brother of the plaintiff, came running to the auto stand and hired his autorickshaw and took him to Uppala Kodibail road junction. He testified that the trench was having a depth of 1½ meters and a width of 1½ ft. He further testified that on 23.10.1998 when he was standing in the auto stand for his work, Laxmisha Rai, the brother of the plaintiff, came running to the auto stand and hired his autorickshaw and took him to Uppala Kodibail road junction. When they reached there, he found the plaintiff lying near the trench with injuries as he was taken from the trench and he along with others took him to the residence of a nearby doctor and from there to Mangalore. The evidence of these witnesses unerringly establish the fact that a trench was dug by the telephone authorities to lay cable wire in the that area and on the fateful day the trench was not closed and left without sign board alerting danger and the plaintiff happened to fall into the trench and thus sustained very serious injuries. The evidence adduced by the defendants are not at all sufficient to prove that the trench dug by them to lay the cable wire was closed by them and no trench was dug from Uppala and no trench was left open as alleged. No reliable evidence was adduced to substantiate that indication was made regarding the precaution to be taken by the public to avoid danger. Normally, digging of trench and other works will be carried out by the department only after taking sufficient precaution and safety measures by the authorities to avert any kind of danger on the public road. Since it has come out in evidence that the first and second defendants had entrusted the work of laying pipes to the fourth defendant Contractor, the burden is upon them to prove that the digging of the trench in Kodibail road crossing was completed by the fourth defendant by 18.9.1998. So also, there was absolutely no evidence to show that by 22.10.1998 the work was done by the side of the Paivalike road at a distance of 3 km away from National Highway. Therefore, I find absolutely no reason to deviate from the finding of the court below that a trench was dug by the defendants through Uppala Kodibail public road touching the NH 47 road and left it as such without any safety measures or any danger board to alert the public. Therefore, I find absolutely no reason to deviate from the finding of the court below that a trench was dug by the defendants through Uppala Kodibail public road touching the NH 47 road and left it as such without any safety measures or any danger board to alert the public. The failure to foresee a harm likely to be caused to a member of the public, shows negligence on the part of the authorities. It is crystal clear that there was failure to exercise even ordinary care and precautions to avoid danger though they owed duty to the public. 16. As mentioned earlier the plaintiff was a young boy aged only 17 years and he was a student of 10th standard at the time of the alleged incident. Ext.A9 is the wound certificate issued from City Hospital, Mangalore dated 12.1.1999. Ext.A9 reveals that the plaintiff was taken to City hospital, Mangalore with the alleged history of fall into P & T trench at 5.45 A.M at Uppala. Preliminary examination was done in the hospital and it was found that he had tenderness over cervical spine with restricted movements of neck. X- ray of cervical spine shows fracture-dislocation of C6-C7. Then, he was shifted to Kasturba Medical College Hospital, Manipal on the very next day. PW-6 Dr. S. Adyanthaya of Shetty Hospital, Mangalore deposed that on 23.10.1998 at 8.45 p.m. he examined the plaintiff who was brought with the history of a fall into P & T trench at 5.45 a.m. at Uppala and on examination he found tenderness over cervical spine with restricted movements of neck. According to him, X ray of cervical spine showed fracture-dislocation of C6-C7 and so he was shifted to KMC, Manipal. Ext.A12 discharge summary would show that he was treated from 23.10.1998 till 27.12.1999 for a period of 162 days continuously in Christian Medical College Hospital, Vellore. The final diagnosis as per Ext.A12 is as follows: “Bony lesion C6/7 TRAUMATIC TETRAPLEGIA C7 Heterotopic Ossification of both hips treated prior to admission to CMC by excision and radiotherapy.” He was then discharged with a direction to review after 6 months in PMR OPD. 17. Ext.A11 is another discharge summary card which would show that he was again admitted in Kasturba Hospital, Manipal on 12.11.1999 and discharged on 23.11.1999. 17. Ext.A11 is another discharge summary card which would show that he was again admitted in Kasturba Hospital, Manipal on 12.11.1999 and discharged on 23.11.1999. The final diagnosis as per this discharge summary card is as follows: “Cellulitis right thigh with operated fracture dislocation C6-7 with lower limb paraplegia with upper limb paraparesis with myositis ossificans both hips.” 18. Exts.A13 to A15 are the medical bills and Ext.A18 series to A40 are the documents evidencing purchase of medicines from various medical shops. So Exts.A13 to A15 and Ext.A18 to A40 would reflect the fact that huge amount was spent for his treatment before Kasturbha Medical College and Christian Medical College and Hospital, Vellore. Still Exts. A11 and A12, the certificates issued by the experts of both these hospitals would show that he suffered permanent disability. 19. These medical reports, treatment records etc. would establish that the plaintiff had sustained very serious injuries including paraplegia and he was totally bed ridden and became physically invalid. 20. Ext.C1 is the medical certificate of Superintendent of the District Hospital certifying that the Medical Board constituted examined the plaintiff and opined that he has Spastic Quadriplegis. Further it is certified that he is bed ridden and he requires the help of an assistant for everything. Finally his permanent disability is assessed as 100%.This certificate has not been challenged and the court below correctly accepted it. As established by the medical records a talented young boy was thrown to bed for ever. 21. Whether the evidence clearly brings out negligence on the side of the defendants, is the question now arise for consideration. It is relevant to note that the trench was taken by P & T Authorities, but officials failed to conduct an inspection to ensure that the fourth defendant completed the work leaving the trench closed. The officials failed to exercise even a degree of care which even an ordinary reasonable and prudent man would exercise in such a situation. Since the defendants 1 to 3 are burdened with the duty to take care to avoid dangerous situations, failure to exercise such care would itself constitute negligence. Thus, it is apparent that the poor boy happened to be the victim of the negligent act of the authorities. Since the defendants 1 to 3 are burdened with the duty to take care to avoid dangerous situations, failure to exercise such care would itself constitute negligence. Thus, it is apparent that the poor boy happened to be the victim of the negligent act of the authorities. The failure to display a sign board or any indication regarding the danger that was on the public road, by the authorities would show their failure to discharge their onerous duty and responsibility. An ordinary pedestrian/commuters may not foresee or anticipate or expect any such danger on the public lane. It has clearly come out in evidence that the incident was at about 5.45 a.m. and no street light was available and the light available from the workshop was blocked by the compound wall and as such no light was available at the spot so as to see the danger left without any safeguard on the public lane at that point of time. There was absolutely no evidence available apart from the testimony of DW1 and the officials from the department of the defendants 1 and 2 that there was no such trench and no trench remained open at that point of time on the public road as the work was over. Negligence is breach of a duty caused by omission to do something which a reasonable or prudent man would do. The nature of work entrusted to the fourth defendant definitely impose a duty to inspect the spot by the officials. The officials could not shift their responsibility to the shoulders of the contractor alone. They could have taken reasonable care to ensure the safety of the pedestrians/commuters. The careless act of the officials have in a way encouraged the contractor to leave the place without making any arrangements for the safety of the commuters. The work was done by the second defendant, a department functioning under the first defendant. The work was executed through the fourth defendant, on the road/place owned by the third defendant. Without the permission of the third defendant it will not be possible to dig the road. So it is clear that the job was done by the defendants 1, 2 and 4 with the permission of the third defendant. The work was executed through the fourth defendant, on the road/place owned by the third defendant. Without the permission of the third defendant it will not be possible to dig the road. So it is clear that the job was done by the defendants 1, 2 and 4 with the permission of the third defendant. Leaving a trench uncovered/unattended or left as such in a dangerous manner without any sign board to caution the pedestrians/commuters, adequately prove failure to discharge the duty by the defendants. At least a barricade could have been provided when the work was undertaken by the Government agencies. Therefore, all the defendants are guilty of negligence for causing physical injuries to the plaintiff and untold sufferings to him and his family as well economic loss to the family. 22. Apart from that, applying the principle of strict liability also the defendants can be made liable and responsible for the unfortunate incident. Doctrine of strict liability is explained in Rylands vs. Fletcher, 1868 LR (3) HL 330 as under: “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prime-facie answerable for all the damage which is the natural consequence of its escape.” In M.P. Electricity Board vs. Shail Kumari, 2002 (2) SCC 162 the Apex Court has observed as follows: “7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension, the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is no defence on the part of the management of the board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road, the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. 8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as strict liability. It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 9. The doctrine of strict liability has its origin in English Common Law when it was pre-pounded in the celebrated case of Rylands vs. Fletcher, 1868 Law Reports (3) HL 330. Blackburn, J. the author of the said rule had observed thus in the said decision. The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so, he is prima-facie answerable for all the damage which is the natural consequence of its escape.” 23. If the rule in Rylands vs. Fletcher is applied, then also the defendants could be held liable for negligence. If the rule in Rylands vs. Fletcher is applied, then also the defendants could be held liable for negligence. There is nothing available to hold that the defendants are not responsible for the plight of the plaintiff or to absolve them from the liability to pay damages. Initially, the plaint claim was only for a meager amount and thereafter amendment was effected and the claim was enhanced for an amount of Rs. 8,00,750/-. The records produced by the plaintiff would show that huge amount was spent for treatment and now also he is continuing with the treatment as he sustained serious injuries to his spinal cord. The negligence of the defendants had thrown him to wheelchair and even now the help of others for all his needs is indispensable. The careless and negligent act and failure/breach to perform the duty promptly and correctly by the defendants, had not only shattered the life of the young boy but also his family. The amount claimed by the plaintiff was allowed as such by the court below rightly considering the harm caused to the plaintiff and appreciating the entire aspects involved in the case. 24. Learned counsel for the defendants relying on the decision in Elizabeth vs. Saramma, 1984 KLT 606 had argued that the failure to issue suit notice before presenting the plaint, had adversely affected the case of the defendants as they could not place their defence in the proper way. It is pertinent to note that in the said decision, it was observed that if plea was not put forward, no evidence can be looked into. But, here all the pleadings are clear and definite and evidence was let in on the basis of the pleadings, by the plaintiff. Therefore, the contention raised by the defendants that the failure to issue suit notice had adversely affected their case, is of no merits. 25. Therefore, I find no merit in the appeals as well absolutely no reason to interfere with the findings of the court below. I uphold the impugned Judgment and Decree. It is also to be noted that at the time of admission of the appeals only an amount of Rs. 2 lakhs was deposited by the second defendant as per the direction of this court. The plaintiff was permitted to withdraw the same on executing a personal bond. I uphold the impugned Judgment and Decree. It is also to be noted that at the time of admission of the appeals only an amount of Rs. 2 lakhs was deposited by the second defendant as per the direction of this court. The plaintiff was permitted to withdraw the same on executing a personal bond. Thereafter, no amount was paid by the defendants till this date. Considering the misfortune, sufferings and pathetic condition of the plaintiff, I hereby direct the defendants to pay the amount at the earliest, at any rate, within a period of one month from the date of receipt of a copy of this judgment. 26. Resultantly, the appeals are dismissed with costs. The amount of Rs. 2 lakhs deposited by the second respondent will be adjusted towards the decree amount.