HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY APPEAL SUIT No.355 of 2008 JUDGMENT:

The present Appeal Suit is filed against the judgment and decree, dated 28.10.2006, passed in O.S.No.7 of 2003 on the file of the Senior Civil Judge, Nalgonda.

2. The appellants are the defendants and the respondents are the plaintiffs in the suit. For convenience, hereinafter the parties are referred to as they are arrayed in the suit.

3. By the impugned order, the Trial Court decreed the suit filed for damages on account of the death of one Nainavath Dasaratha (hereinafter referred as ‘the deceased’) awarding a sum of Rs.4,00,000/- with interest @ 12% from the date of filing of the suit till realisation against defendant Nos.1 to 5 and dismissed it against defendant No.6.

4. The case of the plaintiffs, in brief, as averred in the plaint is that the deceased, who was the husband of plaintiff No.1, son of plaintiff No.2, and father of plaintiff Nos.3 to 5, was employed as Mason in Hyderabad and earning Rs.3,000/- per month. On 28.10.2000, the deceased left Hyderabad to Kubiya Thanda, his village, by bus to meet his family members. On his way home, at late night, the deceased got down at Kurmedu Gate, where he fell into an unguarded ditch, dug by defendant Nos.1 to 5, for laying telephone cables which lacked any caution boards or danger signals and as a result, he sustained injuries and died.

4.1. On 29.10.2000, two villagers of Kurmedu Village viz., K.Venkataiah and M.Yadaiah, discovered the dead body of the deceased in a ditch, and promptly informed the same to Village Sarpanch- Chikkonda Jangaiah. The Sarpanch immediately proceeded to the location, verified the presence of dead body in the ditch and reported the matter to Chintapally Police Station. Consequently, a case was registered vide Cr.No.91/2000 under Section 174 Cr.P.C. The police took photographs of the dead body, circulated the images to various Police Stations and published them in the newspapers for identification purpose. As their efforts turned futile, on 01.11.2000 Police, with the assistance of local villagers, buried the dead body of the deceased.

4.2. On 02.11.2000 after receiving information of the death of the deceased, the plaintiffs approached the Police and on enquiry, the Police showed the clothes on the dead body to them, which they identified as that of Dasarath.

4.3. At the request of the plaintiffs, police, with the assistance of the M.R.O., exhumed the dead body of the deceased and extracted a bone and the bone along with blood samples of the plaintiffs were sent for DNA testing. The DNA test certified that both are tallying and confirmed that the deceased was Dasarath.

4.4. It was averred that the deceased fell into a pit and died, due to negligence of defendants Nos.1 to 5 since the pits dug by them were left unguarded and also without caution signals.

4.5. It was further averred that the plaintiffs were solely reliant on the income of the deceased for their livelihood and as such, the plaintiffs originally filed the suit claiming damages of Rs.5,22,000/- for the death of the deceased from defendant Nos.1 to 5. Subsequently, defendant No.6 was impleaded as per orders in I.A.No.488 of 2003.

5. Defendant Nos.1 to 5 filed written statement denying the assertions made by the plaintiffs regarding the death of the deceased. They disputed the plaintiffs’ certainty regarding their residence, contending that it was unclear whether they belonged to Kubiya Thanda or Kurmedu Gate. Further, they contended that there is lack of explanation regarding arrival of the deceased at Kurmedu gate when he was to go to Kubiya Thanda. They also denied the employment status and the income of the deceased as claimed by the plaintiffs.

5.1. Defendant Nos.1 to 5 further contended that they dug trenches with ½ feet width and 2 feet depth for laying telephone cables and that a person cannot die by falling in such a pit. They further contended that the work of digging pits was entrusted to a contractor