The Municipal Corporation and its contractor are jointly and severally liable for compensation under tortious liability when negligence in securing a public road excavation site (lack of signage/barricades) leads to a fatal accident.

JUDGMENT

1. The first appeal challenges the judgment and decree dated 26.12.2001, passed by the 3rd Joint Civil Judge, Senior Division, Jamnagar in Special Civil Suit No. 106 of 1994, whereby the learned trial Court partly decreed the suit and directed the defendant to pay Rs.6,50,000/- towards the compensation, with interest at 12% per annum from the date of the suit till realisation.

2. This appeal by the Jamnagar Municipal Corporation, who is original defendant No.3. Plaintiffs were the heirs of the deceased - Jayantikumar Parshottam in this appeal. Plaintiff No.1 - Gauriben was the mother of deceased - Jayantikumar Parshottam, who expired, but she is survived by the rest of the respondent Nos.2 to 4, who are the wife and children of deceased - Jayantikumar Parshottam. Accordingly, appellant was directed to carry out the necessary amendment to delete Gauriben from the array of respondents.

3. The brief facts, in a nutshell are as under:-

3.1 It appears that the unfortunate incident took place on 10.06.1993, within the city of Jamnagar, deceased - Jayantikumar Parshottam, who was riding cycle to bring the kerosene in the morning and that time, the pit of 20 feet deep was excavated by the defendant No.1, under the instruction of Jamnagar Municipal Corporation, without keeping any sign or signal or any board/notice, etc.

3.2 This excavation work was going for laying underground drainage purpose on the public road. The deceased, in the early morning, could not see the 20 feet deep unmarked pit, and fell in the pit to receive the multiple injuries and later on, succumbed to the injuries.

3.3 The heirs of the deceased filed the Special Civil Suit claiming that the deceased was doing mason work, he was earning Rs.3,000/- per month, and if he did not expire, he could have earned up to 60 years and mainly upon above contention, the plaintiff claimed the recovery of Rs. 6,50,000/- towards the compensation, arising out of the tortious liability of the defendant Nos.1 to 3, with interest.

3.4 The plaintiffs have served the legal notice to defendants. The written statement was filed by the defendants, whereby the defendant No.1, the contractor of the Jamnagar Municipal Corporation has admitted that no Notification regarding drainage work was published in any newspaper and further contented that he has requested the Municipal Commissioner, Jamnagar, by communication dated 18.03.1993, to publish the Notification to make aware the public at large about the ongoing drainage work, but the Jamnagar Municipal Corporation did not publish the necessary required Notification.

3.5 The New India Insurance Company also filed the written statement and resisted the suit proceedings.

3.6 The Jamnagar Municipal Corporation filed the written statement and opposed the suit proceedings and did not admit the liability to pay any compensation, but hurled the liability upon the defendant No.1 - the contractor, and further contended the personal negligence of the deceased, who did not take the care to avoid the mishap. Upon such contention, it was contended to dismiss the suit.

3.7 The learned trial Court, permitted both the parties to lead the evidence, after fixing as many as 8 issues and ultimately, decreed the suit in aforesaid terms. It is in this background the Jamnagar Municipal Corporation filed the appeal challenging the impugned judgment and decr