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2019 Supreme(Ker) 964
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHIRCY V., J.
Union of India Rep. by Secretary, Department of Telecommunications – Appellant
Versus
Swaroop Shetty S/o Mahabala Shetty – Respondent
R.F.A. Nos. 330, 486 of 2005
Decided On : 13-12-2019
Important Points
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.
Subject
Tort Law - Negligence
Act Referred
Headnote
Law- Compensation-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-If plea was not put forward, no evidence can be looked into-All the pleadings are clear and definite and evidence was let in on the basis of the pleadings, by the plaintiff-The failure to issue suit notice had adversely affected their case, is of no merits.
Statement of facts:
Victim that he was a resident of Kodibail village in Kasaragod Taluk, Kodibail village near to Uppala-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-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- 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.
Finding of the court:
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.
Result: Dismissed
Advocate Appeared:
For the Appellant : Sri. P. Vijayakumar.
For the Respondents: Sri. R. Harishankar, Smt. Parvathy Nair, Sri. D. Krishna Prasad, Smt. N.S. Rehna.
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 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, s
