The State and its instrumentalities have a non-delegable duty of care to ensure the safety of road users by providing adequate warnings at construction sites, and failure to do so, applying the principle of res ipsa loquitur, renders the defendants liable for damages in tort.

Sushil Kukreja, Judge

The instant appeal has been preferred by the appellants/defendants No.1 &2/State against the judgment and decree dated 17.12.2012, passed by the learned District Judge, Mandi, HP, in Civil Suit No.5 of 2009, whereby the suit for damages filed by plaintiff (respondent No.1 herein), was partly decreed and she was held entitled for damages to the tune of Rs.3,33,000/- alongwith interest @ 6% per annum from the date of filing of the suit² till realization of the whole amount from the defendants. However, the ultimate liability to pay the amount of damages was fastened upon defendants No.1 and 2 (appellants herein), who were held vicariously liable for the act of defendant No.3 (respondent No.2 herein).

2. Briefly stated the facts of the case, as emerge from the plaint, are that on 24.05.2009, Shri Ajay Parshad, who was son of the plaintiff, was returning back from Baijnath to Joginderngar on his motorcycle and when he reached near village Ahaju on NH-20, he struck against a stone and died on the spot as half of the road was damaged on account of the big pit lying the road since May, 2008. The repair work of the said damaged portion of the road was awarded to defendant No.3 (respondent No.2 herein) and almost half of the road was dug by the labourers, but there was no sign board affixed on the spot and only some stones were put in the middle of the road without any white wash. As per the plaintiff, her son Ajay Parshad was aged about 25 years at the time of his death and he was a graduate. He had also done two years diploma in Ayurvedic Pharmacy. He was working as a Manager with M/s Harmeet Singh Tripat Enterprises, Dharamashala and was getting Rs.9,500/- per month as salary. A notice under Section 80 of CPC was also served upon defendant No.1, who had denied its liability. Since the accident in question had solely been attributed to the negligent act of the defendants, therefore, it was prayed that a decree for damages in the sum of Rs.10,00,000/- be passed in favour of the plaintiff alongwith interest @ 10% from the date of death till the realization of the said amount.

3. Defendants No.1 and 2 (appellants herein), in their joint written statement, raised preliminary objections regarding maintainability of the suit, cause of action, no legal notice under Section 80, CPC was served upon the defendants and locus standi were taken. On merits, it was averred that proper guide stones and road sign boards were affixed at the site to warn the road users. It was further averred that there was no negligence on their part and the accident had taken place due to the over-speed of the vehicle in question and an FIR was also registered against the deceased.

4. In his separate written statement, defendant No.3 also raised preliminary objections regarding maintainability, cause of action and that the deceased had died on account of his own rash and negligent driving. On merits, defendant No.3 took almost sane and similar grounds as were taken by defendants No.1 and 2 in their written statement.

5. On the pleadings of the parties, the learned Court below framed the following issues on 16.07.2009:-

“1. Whether son of the plaintiff (wrongly typed as deceased) suffered an accident on account of negligence of the defendants in not maintaining the road, as alleged? ...OPP

2. Whether the plaintiff is entitled to recover damages, if so, to what amount? ...OPP

3. Whether the suit is not maintainable? … OPD

4. Whether