NEUTRAL CITATION
C/FA/1065/2003 JUDGMENT DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1065 of 2003
With
R/FIRST APPEAL NO. 1066 of 2003
With
R/FIRST APPEAL NO. 1067 of 2003
With
R/FIRST APPEAL NO. 1068 of 2003
With
R/FIRST APPEAL NO. 1069 of 2003
With
R/FIRST APPEAL NO. 1070 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DEPUTY EXECUTIVE ENGINEER & 2 other(s)
Versus
SAMUBEN DHIRUBHAI CHAVDA (DECD. THOR LEGAL HEIRS) & 4
other(s)
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2,3
MR ADTIYA DAVDA AGP for the Defendant(s) No. 3
MR KIRTIDEV R DAVE(3267) for the Defendant(s) No. 1.1,1.2,1.3,1.4
RULE SERVED for the Defendant(s) No. 2,4,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/09/2023
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NEUTRAL CITATION
C/FA/1065/2003 JUDGMENT DATED: 13/09/2023
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COMMON ORAL JUDGMENT
An accident occurred on 19/06/1998 in the Village Mojidad, Tal. Limdi, Dist: Surendranagar wherein the overhead water tank constructed under the Javahar Rojgar Yojna had fallen down due to atmospheric effect resulted into the death of six persons; legal heirs of the six deceased persons have preferred the SCS No.94 of 2000; 93 of 2000; 113 of 2000; 127 of 2000; 96 of 2000 and 145 of 2000 before the Court of learned Civil Judge (SD) Surendranagar.
2. Pleadings in the suits are pari materia seeking recovery of the damages with interest under the law of tort and the learned trial Court, after leading evidence in all the matter pari materia has passed the judgment and decree to the following effect:
First Appeal Special Civil Suit Valued Amount granted Number Suit Number @ Rupees for compensation in Rupees 5,00,000 4,56,000 1065 94 of 2000 5,00,000 2,76,000 1066 93 of 2000 5,00,000 2,76,000 1067 113 of 2000 5,00,000 2,76,000 1068 127 of 2000 5,00,000 2,76,000 1069 96 of 2000 5,00,000 2,76,000 1070 145 of 2000
3. All the above judgments and decree are challenged by way of preferring appeal/s under Section 96 of the Code of Civil Procedure (for short CPC). Since all the appeals involve similar Page 2 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023 NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined and identical issue, they are decide and disposed of by this common judgment.
4. With the consent of learned Advocate for both the sides, First Appeal No.1065 of 2003 is taken up as the lead matter, as also the facts stated therein is taken up for deciding this group of appeals. The parties are also referred to as their original status before the learned Court below.
5. Briefly stated; the facts of the case are that Javahar Rojgar Yojna was floated by the Union of India and under the said scheme, the construction of overhead water tank was carried by appellants-defendant nos.3 to 5 as the grant was channelized from the Union of India reaches to their end. The construction work of the overhead water tank was completed somewhere in the year 1992. On 19/06/1998 unfortunate victim/s went to overhead water tank for fetching water, but finds the death as the said tank collapsed due to atmospheric effect. In wake of above mishap, legal heirs of the deceased filed suit for recovery of compensation under the law of tort claiming the income of the deceased alongwith their ages and dependency etc. The Court below issued summons to the concerned defendant/s; however defendant nos.3 to 5 have filed their written statement at Exh.31(pari materia) stating their denial to the averments made in the plaint; with further contention that the said tank was not filled to the extent that it can endanger to the human life and can be collapsed. The stand is taken to unshoulder the negligence; it is stated that it is the responsibility of respondent nos.6 and 7 as the management and upkeep of the said tank was within their domain.
Page 3 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined 5.1 The Court below framed the issues at Exh.32 which reads thus:
"1. Whether the plaintiffs prove that they are the successors and dependents of their deceased Samuben who had burried under collapsed overhead water tank at village Mojidad on 19.6.98 ?
2. Whether the plaintiffs prove that the overhead water tank's construction was weak, & also no care to repair the same was taken by the defendants which resulted into sudden collapse said overhead water tank at village Mojidad ?
3. Whether the plaintiffs prove that their deceased Samuben was aged 32 years and she was earning Rs.2000/-p.m.and they were utilising the same as her dependents ?
4. Whether plaintiffs prove that they have spent Rs. 3000/- towards cremation & Rs.15000/-towards after death religious ceremony for their deceased daughter ?
5. Whether the defendants are jointly and severally liable for such mishap of overhead water tank collapsed at village Mojidad ?
6. Whether the plaintiffs are entitled to compensation as claimed with interest at the rate of 24% thereon ?Page 4 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023
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7. What order and decree ?"
5.2 The parties to contest have lead their oral as well as documentary evidence to buttress their case. The Court below after hearing the arguments canvassed before it has answered the issue nos.1, 2 and 5 in 'affirmative', while answer issue nos.3 and 4 in 'partly affirmative' and decided the issue nos.6 and 7 as per final order passed. The judgment ended in favour of the plaintiff and the court below has ordered to grant compensation to the plaintiff as stated herein above with the interest @ 9% from the date of filing of the petition till final disposal of the suit, as also passed the disbursement order.
6. Aggrieved by the said judgment and decree, the appellants are before this Court by way of preferring appeal under Section 96 of the CPC.
7. Heard learned Advocate Mr.Devang Bhatt for Mr.H S Munshaw, learned Advocate for the appellants; learned Advocate Mr.Kirtidev R Dave for respondent no.1 and learned AGP Mr.Davda for respondent - State. Though served, none remained present for respondent nos.4 and 5.
8. At the outset, it is required to be mentioned that the appeal is argued on the limited point i.e. on the point of responsibility. It is sought to be argued by learned Advocate for the appellant that after completion of the construction of the overhead water tank, it was a duty casted upon the Sarpanch and others of the Village Mojidad to maintain the said tank. He would further Page 5 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023 NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined submit that Sarpanch of the said village has failed in discharging of his duty to maintain, manage and upkeep the tank; the duty of the appellants was limited upto construction of the overhead tank in the village pursuant to the execution of the Javahar Rojgar Yojna; the Court below did not consider this vital contention and submission while earmarking the responsibility of the appellants; the reason stated by the Court below for the collapse of the said tank is atmospheric effect caused due to non-filling of water into it; that reasons itself speaks that it is the Sarpanch who has the responsibility to supervise and filling up the tank and not the present appellants and therefore the learned trial Court committed error in earmarking the responsibility of the present appellants. Upon above submissions, he would submit that since the learned Court below has committed error much less error of principle of severance of liability, the present appeals deserve to be allowed and the appellants may be exonerated from liability to pay the compensation.
9. On the other hand, learned Advocate Mr.Kirtidev R Dave for respondent no.1 supports the impugned judgment and decree and the reasons penned therein to arrive at the conclusion of earmarking the responsibility of the defendants jointly and severally. He would submit that the pleading on behalf of appellants missing to the effect that when they have handed over the complete management of the tank to the Sarpanch, in that circumstances, he would submit that the appellants cannot unshoulder their responsibility to pay the compensation. Even otherwise the Sarpanch has no independent duty. It is the engineers of the appellants who have to Page 6 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023 NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined continuously visit and supervised as well as monitor and manage the strength of the said tank. It cannot be left to the mercy of Sarpanch as said tank was constructed from the funds channelized from the Union of India and reached to the Sarpanch; but by the appellants and therefore the appellants are also responsible to pay the compensation in addition the Sarpanch and the State. He would submit that the learned trial Court has not committed any error which permits this Court to interfere with the impugned judgment. Lastly, he prays to dismiss the appeals.
10. Learned AGP Mr.Davda for respondent - State has joined the submissions of learned Advocate Mr.Dave for respondent No.1.
11. Having heard the learned Advocates appearing for the rival sides, following issues arise for the consideration of this Court:
(01) Whether the Court below has committed any error in earmarking the responsibility of the appellants in addition to the earmarking the responsibility of other defendants for paying compensation to the plaintiff? (Answer : No) (02) Whether the learned trial Court erred in fastening the liability on the appellant and as such committed an error in passing the impugned judgment? (Answer : No) (03) What order ? (Answer : As per final Order)
12. For following reasons, issues fixed herein above are Page 7 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023 NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined answered accordingly.
13. On perusal of the record, pleading and evidence what transpires that the witness of the defendant Mr.Pravinkumar Kantilal Dave has been examined at Exh.62. He deposed that as per the directions and instructions of the State Government, he had visited the accidental site to inquire about the cause for the accident. In view of his expertise on the subject, he found that overhead water tank remained empty for considerable long time and this has caused atmospheric effect on the construction and it has weaken edifies viz., overhead water tank. This weakened overhead water tank could not bear the weight of the water when it was filled at the fullest. The inquiry carried by the deponent was to the effect that, as soon as the said tank was filled up to the fullest level, it has collapsed within two days. The deposition of the said witness establishes the case of the plaintiff that there is a clear negligence on the part of the Sarpanch as well as others who are responsible to manage, monitor and upkeep the said tank. This mishap has taken away the lives of six persons.
14. Since it is established on record that the atmospheric effect is the central cause for collapse of the said tank and resulted into the accident and further resulted into the cause for death of six persons principle of tortuous liability arises in the case as six persons have lost life due to inaction and negligence; without any fault on their part.
15. Now question arises that who are responsible for causing such accident and who are responsible to pay the amount of compensation.
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16. Before addressing the said issue as to whether appellants are responsible to pay the compensation assessed by the learned Court below, it is required to be mentioned that the State Government has not preferred any appeal; nor the Sarpanch and the private party. What more important is assessment of the compensation is also not questioned in the appeal. Referring to the various provisions of the Panchayat Act, it spells the duty upon the DRDA, DDO & TDO to supervise, to monitor and to examine the various construction work which are carried out under the government scheme. They are required to see that the overhead water tank is properly managed by Sarpnach and work of Sarpanch is directly under the supervision of the TDO and work of TDO is under the supervision of DDO and that is what the hierarchy of the duty is stated in the Panchayat Act. The appellants - defendants no.3 to 5 who owes the statutory duty to supervise, manage and inspect the work carried out under the government scheme cannot unshoulder their responsibility on the ground that after the construction of the said water tank, the management has been handed over to the local Panchayat as well as the Sarpanch. To be noted that, the learned Court below did not specify the responsibility of any defendant which may give cause for the defendant to file appeal. The learned Court below has passed the impugned judgment and order holding liability of the defendants jointly and severally. The State which is parental body since has accepted the verdict of the trial Court, it does not give any independent reason to the appellant to question the legality and propriety of the verdict of the learned trial Court even on the issue that their responsibility is wrongly earmarked.
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17. 'Strict liability' is a kind of liability; which a person is legally responsible for the consequence following from an activity even in absence of any specific fault or criminal intent. It is a legal doctrine that holds a party responsible for his action or inaction. To prove strict liability, victim is not required to prove negligence or fault on part of defendant. Reliance can be placed on the well famous case of Rylands v Fletcher (1868) LR 3 HL 330 wherein the facts of the case are that the defendant got reservoir constructed through independent contractors. There were old unused shafts under the sight of reservoir; which contractor failed to notice so did not break them. When water was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal mines on adjoining land. The defendant was unaware about the shaft and had not been negligent; but he was held liable. In this given case, the principle for liability recognized was "strict liability". This principle is equally applicable to the facts of the present case.
18. As discussed herein above, appellant may have no intent to cause harm to the victim; but breach of duty on their part are sufficient to earmark their responsibility.
19. On overall re-assessment of evidence, this Court does not find any reason to interfere with the judgment and order to replace the finding and reasons arrived at by the learned trial Court.
20. For the reasons stated above, the issues which arises in the appeal does not find favour of the appellant and are Page 10 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023 NEUTRAL CITATION C/FA/1065/2003 JUDGMENT DATED: 13/09/2023 undefined accordingly answered. The appeals deserve no merit and required to be dismissed; accordingly they are dismissed. No costs.
(J. C. DOSHI,J) sompura Page 11 of 11 Downloaded on : Sat Sep 16 17:03:46 IST 2023