The State Of M.P. & Ors. vs Mukesh & Ors.
2023 Latest Caselaw 5439 MP

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                      BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 1st OF APRIL, 2023
                FIRST APPEAL No. 611 of 1999

BETWEEN:-

  1. THE   STATE   OF  M.P.         THROUGH
     COLLECTOR, BALAGHAT.

  2. CHIEF MEDICAL       OFFICER,   DISTRICT
     BALAGHAT.

  3. INCHARGE,   MEDICAL      OFFICER,
     GOVERNMENT HOSPITAL, WARASEONI.

  4. SUPERINTENDING   ENGINEER, P.W.D.
     (BUILDING AND ROAD) BALAGHAT,
     DIVISION BALAGHAT.

  5. S.D.O., P.W.D.   (BUILDING   AND   ROAD)
     WARASEONI
                                                 .....APPELLANTS
(BY SHRI ROHIT JAIN - GOVERNMENT ADVOCATE)

AND

  1. MUKESH, SON OF SHRI ATMARAM, AGED
     ABOUT 29 YEARS,

  2. MST.DHARABAI, WIFE OF MUKESH, AGED
     ABOUT 25 YEARS,

      BOTH  RESIDENT   OF   WARD   NO.9,
      WARASEONI,   DISTRICT   BALAGHAT
      (MADHYA PRADESH)
                                                .....RESPONDENTS
(NONE FOR THE RESPONDENTS)
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"Reserved on : 28.03.2023"
"Pronounced on : 01.04.2023".
      This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
                             JUDGMENT

1. This First Appeal under Section 96 of CPC has been filed against the Judgment and Decree dated 17-4-1999 passed by 1st Additional District Judge, Waraseoni, Distt. Balaghat in C.S .No. 5B of 1999.

2. The facts necessary for disposal of present appeal in short are that the plaintiffs/respondents filed a suit for damages to the tune of Rs. 50,000/- on account of death of their 1 ½ year old son due to drowning in a soakpit constructed in the premises of Government Hospital, Waraseoni. It is the case of the plaintiffs that the plaintiff no.1 is working on the post of Gatekeeper whereas the plaintiff no. 2 is a Bidi Labour. The plaintiff no.1 was medically sick, therefore, he went to Distt. Hospital, Waraseoni, along with plaintiff no.2 and his 1 ½ years old son. The plaintiff no.1 was admitted in the hospital. The son of the plaintiffs went missing and ultimately his dead body was found in the soakpit which was filled with water and was open without any protection. The soakpit was constructed in the hospital premises sometimes in the year 1988 by the PWD for stopping the leakage of water from Water overhead tank. Accordingly, the suit was filed for damages to the tune of Rs. 50,000/-.

3. The defendants no. 2 and 3 i.e., Chief Medical Officer, and Incharge Doctor of Distt. Hospital Waraseoni filed their written

statement and denied the plaint averments. In additional pleadings, it was pleaded that whenever the patients are admitted in the hospital, then they and their attendants are always advised not to bring small kids in the hospital. It was denied for want of knowledge as to whether the plaintiff no.1 had come to hospital on 27-7-1988 for his treatment or not. No one in the hospital had seen the child in alive condition. The factum of death due to drowning in soakpit was denied. However, it was admitted that a soakpit was constructed by the PWD and it was also admitted that due to heavy rains the soakpit had collapsed. It was further pleaded that it was the duty of the plaintiffs to look after their child.

4. The defendants no. 1, 4, and 5 filed their written statement and also denied the plaint averments. In additional pleadings it was accepted that the PWD had constructed a soakpit and due to heavy rains, it had collapsed. The entry of small kids in the hospital is banned. The factum of death of the deceased child was also denied.

5. The plaintiffs examined Namdeo (P.W.1), Babu Miyan (P.W.2), Shikharchand (P.W.3), Mukesh (P.W.4), Kishore Kumar (P.W.5), Dharabai (P.W.6), Head Constable Bhanupratap (P.W.7). The defendants examined N.R. Bisen, Dresser posted in Civil Hospital Waraseoni (D.W.1), T.K.K. Mishra (D.W.2), Dr. P.C. Rawat (D.W.3).

6. The Trial Court by the impugned judgment and decree has decreed the suit and has awarded Rs. 35,000/- towards damages.

7. Challenging the judgment and decree passed by the Trial Court, it is submitted by the Counsel for the Appellants that the plaintiffs have failed to prove that any child had died in the hospital due to drowning

in the soak pit and even otherwise, it is the duty of the parents to keep a watch over their own child.

8. None appears for the respondents though represented.

9. Heard the learned Counsel for the appellants.

10. The defendants in their written statement had specifically admitted that a soak pit was constructed by the PWD and due to heavy rains, the soak pit had collapsed. Therefore, the presence of soak pit in the hospital premises is undisputed.

11. T.K.K. Mishra (D.W.2) has admitted in this cross- examination that after took over the charge, he was informed by his predecessor, that a child had died in the Government Hospital. Dr. P.C. Rawat (D.W.3) has also admitted that there is a water tank and a soak pit. Thus, it is proved beyond reasonable doubt that there was a soakpit in the hospital premises.

12. Mukesh (P.W.4) and Dharabai (P.W.6) have specifically stated that there was no protection around the soak pit and it was filled with water. Namdeo (P.W.1) has also stated that the dead body of the child was found in the soak pit which was 3-4 ft.s deep. No board of caution was displayed at the place of soak pit. Babu Miyan (P.W.2) has stated that he was admitted in the hospital and there was no fencing around the soak pit. Shikharchand (P.W.3) has also stated that his daughter was admitted in the hospital, and there was a soak pit in the premises.

13. Thus, it is clear that the plaintiffs have succeeded in proving that there was a soak pit in the hospital premises, which was filled with water and there was no fencing around the soak pit. The plaintiff no.1

was busy in taking treatment, and if the 1 ½ year child accidentally went towards the soak pit, and died because of drowning, and when there was no fencing around the soak pit, this Court is of the considered opinion, that the Trial Court did not commit any mistake by decreeing the suit.

14. Ex consequenti, the Judgment and Decree dated 17-4-1999 passed by 1st Additional District Judge, Waraseoni, Distt. Balaghat in C.S .No. 5B of 1999 is hereby affirmed.

15. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF 2023.04.01 17:47:44 +05'30' HS