AS No. 38 of 1996 · Kerala High Court

C.R.K.SURENDRA MOHAN, J.-------------------------------------------A.S.No. 38 of 1996 -------------------------------------------Dated this the 10th day of June, 2009JUDGMENT This is an appeal filed against the judgment and decree dated15.3.1994 of the IInd Additional Sub Judge, Ernakulam in O.S.No.873 of1992. As per the decree, an amount of Rs.24,000/- with 6% interestthereon from the date of suit till the date of realisation and proportionatecosts have been awarded as damages to the first respondent for injuriessuffered by her. The damages are awarded against the seconddefendant/Panchayat. The said second defendant is the appellant in thisappeal.2. The first respondent/Plaintiff is a casual labourer. On21.10.1991, at about 5.15 p.m., the plaintiff was returning homeafter work through the Thuthiyoor-Palachuvadu Kalachal Padam. On her way, she had to cross the Kalachal thodu. For crossing thethodu, there is a foot bridge across the same which is constructedand maintained by the Panchayat for pedestrian traffic.

Whilecrossing the thodu, the concrete slab on the foot bridge collapsed, the plaintiff fell into the thodu and suffered injuries. Her ankle jointwas crushed and she suffered a series of lacerated injuries over her A.S.No.38 of 1996 2body. She was initially taken to a nearby clinic where she wasadministered first aid and was later admitted to the GeneralHospital, Ernakulam, for treatment. The treatment is stated to becontinuing even on the date of filing of the suit. According to theplaintiff, the foot bridge across the thodu belongs to the seconddefendant/Panchayat and the collapse of the foot bridge was due toits defective construction and improper maintenance. ThePanchayat being the local authority had a duty to keep the footbridge safe and in proper maintenance for the benefit of thecommuters and the omission to do so amounted to grossnegligence. Having failed to discharge their statutory duty, it wascontended that the Panchayat was liable to compensate the plaintifffor the personal injuries suffered by her.

It is further alleged that theplaintiff was earning an amount of Rs.50/- per day and was not in aposition to resume work due to her disability and loss of earningcapacity. According to her, she had spent an amount of Rs.5,000/-for treatment and medicine. She caused the issue of a notice, demanding an amount of Rs.8,500/- as damages from thedefendants. But, there was no response. The plaintiff, therefore, filed the suit claiming an amount of Rs.50,000/- as damages, thebreak up of which is contained in the plaint. A.S.No.38 of 1996 33. The first defendant, Chief Secretary, State of Kerala andthe third defendant, the District Collector, Ernakulam remained ex-parte. The suit was contested only by the seconddefendant/Panchayat. The second defendant disputed the incidentitself and denied that there was any collapse of the foot bridge dueto its negligence or any other act of omission or commission on itspart.

The Panchayat denied the allegation that the foot bridge wasunder the ownership and possession of the Panchayat. It alsodenied any liability to construct or maintain the foot bridge. Thesecond defendant denied that the plaintiff had sustained any injuryconsequent to the accident. The second defendant disputed allliability to pay the amount that was claimed as damages in the suit.4. The suit was tried by the court below on the abovepleadings, after framing five issues. 5. The evidence in the suit consists of the oral evidence ofPWs.1 to 5 and Exts.A1 to A11 documents on the side of theplaintiff and EXts.B1 and B2 documents on the side of thedefendants.6. After an elaborate consideration of the evidence on record, both oral and documentary, the trial court found that the foot bridgebelonged to the Panchayat and that the same was under its upkeep A.S.No.38 of 1996 4and maintenance. It is further found that the collapse of the slab ofthe foot bridge was due to lack of proper maintenance andtherefore, the accident was a result of lack of care and negligenceon the part of the Panchayat.

For the above reason, the seconddefendant/Panchayat was found liable to compensate the plaintiff. The damages payable has been quantified and fixed at Rs.24,000/-which amount is awarded with 6% interest thereon andproportionate costs of the suit. The above findings are assailed bythe second defendant/appellant in this appeal.7. I have heard the learned counsel for the appellant as wellas the learned counsel for the first respondent/plaintiff, in detail. Ihave gone through the pleadings in the case as well as theevidence, both oral and documentary.8. The point that arises for consideration is :Whether the court below was justified inallowing the plaintiff to recover damagesfrom the appellant and whether thequantum of damages fixed isreasonable?9. According to the appellant/Panchayat, the foot bridgeacross the Kalachal thodu is not under its ownership andpossession. The same is also not maintained by the Panchayat, it A.S.No.38 of 1996 5is alleged.

Exts.B1 and B2 are two tender registers maintained bythe Panchayat. Ext.B1 tender register relates to the period 1979-1980 and 1980 and 1981. Ext.B2 is the tender register that relatesto the period 1981 to 1983. Page-73 of Ext.B1 shows thatmaintenance of the bunds across the Kalachal thodu was done bythe Panchayat. Page-58 of Ext.B2 refers to the work of providingpermanent shutters to the Kalachal bund, expenditure for which ismet by the Panchayat. The registers show that the bunds acrossthe Kalachal thodu were being maintained by the Panchayat, utilising its own funds. The evidence in the case shows that the footbridge was being used by the general public for crossing the Kalachal thodu. PW2 has given evidence to the effect that thecollapsed foot bridge was constructed using the funds of the Panchayat and that the Panchayat was maintaining the collapsedfoot bridge. PW4 is the present President of the Panchayat.

According to PW4, the Panchayat has not constructed the footbridge and the same does not belong to the Panchayat. But, thewitness admits that two or three foot bridges were constructed bythe Panchayat across the Kalachal thodu which are all maintainedby the Panchayat. PW4 has also issued Ext.A8, which is acertificate given by him to the husband of the plaintiff recommending A.S.No.38 of 1996 6financial assistance to the plaintiff. It is seen mentioned in Ext.A8that the collapsed foot bridge was constructed by the Panchayat. The incident in which the plaintiff suffered injuries has also beenreferred to in Ext.A8. From the totality of the evidence, both oraland documentary available in the case, it can be clearly seen thatthe foot bridge was constructed by the Panchayat and maintainedby it. Therefore, the court below was right in finding so.10. The incident in which the plaintiff suffered personalinjuries occurred at 5.15 p.m. on 21.10.1991.

PW3 is a witness, who was at the scene of occurrence. She pulled the injured plaintifffrom out of the water and has testified to the incident and theinjuries suffered. Ext.A10 Wound Certificate contains the details ofthe wounds suffered by the plaintiff. Ext.A10 certificate of disabilityproves that the injuries were serious in nature and that they hadaffected the mobility of the plaintiff and her capacity to go for work. It is thus clear that consequent to the injuries suffered, the plaintiffwas incapacitated and was not in a position to do any manual work.11. As per Section 57 of the Kerala Panchayats Act, 1960, theduty of construction and maintenance of all public roads in the Panchayat other than National Highways is on the Panchayat. Asper Section 62 of the said Act, all public roads, sewers, drains, A.S.No.38 of 1996 7drainage works, tunnels or culverts whether made at the cost of the Panchayat or otherwise, are all vested in the Panchayat.

Therefore, the Panchayat had a statutory duty to maintain the foot bridge. Itcannot be disputed that the foot bridge was constructed for thepurpose of crossing the Kalachal thodu. The fact that the slab ofthe foot bridge collapsed, when the plaintiff stepped on it to crossthe thodu is sufficient to conclude that the construction of the footbridge was defective and unsafe. The Panchayat had a duty tomake such construction safe for the commuters, but it has failed todischarge its duty. I am supported in the above view of the matterby a Division Bench decision of this Court reported in Pullur PeriyaPanchayat v Karthiyani (1996(2) KLJ 599). That was a suit in whichthe plaintiff's husband had died of drowning by falling into the waterwhen the bridge over which he was walking collapsed. This Courtheld that lack of proper care in the construction and maintenancewas the proximate and immediate cause for the collapse of thebridge.12.

In the present case, the callous and negligent manner inwhich the foot bridge was constructed by the Panchayat is evidentfrom the way in which the accident occurred. A foot bridge isintended for the use of the pedestrian commuters to cross the A.S.No.38 of 1996 8thodu. Therefore, it is expected to be strong enough to at least holdthe weight of a human being. If the same is constructed in amanner in which it would collapse at the whiff of a breath, theycease to be public amenities but become death traps for the citizen. The citizen who suffers injuries in such incidents is entitled to claimcompensation for such injuries from the Panchayat or whoever wasresponsible for providing such public amenity. The Panchayat hasgot a solemn duty to construct and maintain roads, bridges, drainsand other civic amenities. The Panchayat has also got a duty toensure that such amenities are safe. Because, an unwarypedestrian who is lulled into security by the sight of a concretebridge would never expect it to give way the moment he steps on it.

Therefore, corruption, carelessness and negligence is writ largeupon such incidents. Authorities charged with the responsibility ofexpending public money have also a duty to ensure that the same isutilized properly. Otherwise public amenities would become publictraps for the unwary citizen. Therefore, the finding of the court belowthat the Panchayat was liable to pay damages to the plaintiff for theinjuries suffered by her is correct and supported not only by theevidence on record, but also by the law on the point.13. The court below has considered the nature of the injuries A.S.No.38 of 1996 9suffered and fixed the daily wages of the plaintiff at Rs.30/- per day. Compensation has been awarded only for the period during whichthe plaintiff was prevented from doing any manual work. Therefore, the amount of Rs.6,000/- awarded under the above head is perfectlyreasonable. Only an amount of Rs.5,000/- has been awardedtowards medical expenses.

The amount is only reasonable and isliable to be sustained. Towards pain and suffering andcompensation for the loss of amenities in life, the court below hasawarded an amount of Rs.13,000/-. The amount has been awardedtaking into consideration the nature of the disabilities suffered by theplaintiff, as evidenced by Ext.A10 disability certificate. Thecompensation awarded cannot be faulted on any ground, considering the seriousness and nature of the injuries suffered bythe plaintiff. In view of the above, the amount of Rs.24,000/-, thathas been awarded as damages by the court below with 6% interestthereon, is only reasonable. The judgment and decree appealedagainst do not call for any interference and I hereby confirm thesame.14. It is to be noted that the plaintiff is a Harijan lady, who isfacing a lot of financial difficulties. Exts.A8 and A9 certificatesissued by the Ward Member as well as the Panchayat President, A.S.No.38 of 1996 10recommending her case for financial assistance, clearly proves thefinancial incapacity of the plaintiff.