J.B. Pardiwala, J.

This First Appeal under Section 96 of the Civil Procedure Code is at the instance of the original plaintiffs and is directed against the judgment and order dated 3rd March 2011 passed by the City Civil Judge, Court No.11, Ahmedabad, in the Civil Suit No.1219 of 2005.

2. It appears from the materials on record that on 3rd November 2001 at about 10:30 in the late evening the elder son of the plaintiffs, namely Shehjad Hussain, left his house for a cup of tea at a tea stall situated near the Vanijya Bhavan, Kankariya, Maninagar, Ahmedabad. While he was sitting next to the tea stall, a compound wall of about 100 feet height, constructed for the Metal Depot of the Ahmedabad Municipal Corporation, collapsed. As a result, the son of the plaintiffs got crushed beneath the debris. The deceased suffered serious injuries on his ribs, chest, back, spine and other parts of his body. The deceased ultimately succumbed to the injuries on 16th April 2002. The deceased was a tailor by profession and was earning about Rs. 3,500.00 to Rs. 4,000.00 per month.

3. In such circumstances referred to above, the plaintiffs, as the parents of the deceased, preferred a civil suit in the City Civil Court at Ahmedabad, seeking compensation of Rs. 5,80,800.00 from the Corporation towards damages.

4. The Ahmedabad Municipal Corporation - original defendant, although served with the summons issued by the court, yet did not appear before the court. Even, written statement was not filed by the Corporation.

5. Having regard to the pleadings, the court below framed the following issues at Exh.90 :

"(1) Whether the plaintiffs prove that their son named Shehjad Hussain had died on 16.4.2002 on account of the tortuous action of the defendant wherein on 3.11.2001 a compound wall having height of about 100 feet had collapsed wherein the son of the plaintiffs became victim of the said occurrence ?

(2) Whether the suit of the plaintiffs is proved to be not bad for statutory notice ?

(3) Whether the plaintiffs are entitled for damages of Rs. 8,00,000/- along with interest at the rate of 12% per annum from the date of the suit till realization as damages for the tortuous action of the defendant ?

(4) Is the suit of the plaintiffs suffering from any impediment in grant of the relief prayed for ?

(5) What order and decree ?

6. The issues framed by the trial court referred to above came to be answered as under :

(1) In the affirmative.

(2) In the affirmative.

(3) In the affirmative.

(4) Not maintainable in view of Section 487 of the Bombay Provincial Municipal Corporation Act.

7. The trial court recorded the following findings so far as the issues nos.1 to 3 are concerned.

"6. In support of his case, the plaintiffs have examined himself at exh.31, one Rajendra T. Solanki at exh.36 and Dr. Kulbhushan S. Nayak, of LG Hospital at exh.49. The plaintiffs have also produced birth certificate of the deceased at exh.24, follow up card issued by LG Hospital at exh.23, Injury certificate of LG Hospital at exh.26, death certificate of the deceased at exh.27, Letter written to Kagdapith Police station under RTI Act, at exh.28, bills of medicines collectively at exh.38, income certificate of the deceased issued by Solanki Mens Wear at exh.37 and copy of statutory notice at exh.32 and acknowledgment receipt at exh.33.

7. Upon perusal of the entire oral as well as documentary evidence it is to be noted that accidentally on 3/11/2001 a compound wall having height of 100 ft. had collapsed wherein the son of the plaintiffs had become victim and succumbed to the injuries sustained by him. Therefore, the plaintiff has claimed damages. It has come in their evidence that the son of the plaintiff was doing tailoring work and earning Rs. 3500/- to Rs. 4000/- per month and accordingly they have claimed damages.

8. So far as occurrence of incident is concerned, of course no complaint