Farooque and Others vs Municipal Corporation of the City of Ahmedabad and Others

N.H. Bhatt, J.—This is an appeal filed by the original Plaintiffs for damages arising out of the death of their parents and the destruction of their property because of the alleged absolutely unsatisfactory construction of the building of the Defendant No. 6, put lip by the Defendant Nos. 7 and 8, the construction having been completed somewhere in July 1970 and the building having collapsed within a matter of a few days, on 21.8.1970 to be precise.

In order to understand the controversy, a few basic facts are required to be specifically noted. In the city of Ahmedabad, in Jamalpur ward, there was standing an old structure bearing city survey Nos. 1274 and 1275. The deceased mother of the Plaintiffs had sold a portion of that standing structure, admeasuring about 46 sq.yds. to the Defendant No. 6 by a registered sale deed dated 24th January, 1961. The Defendant No. 7 is the husband of the Defendant No. 6. The husband and wife wanted to reconstruct their portion in about February, 1970. They had got a plan for that construction prepared by the Defendant No. 8, who was a licenced surveyor, plan maker and building supervisor for the purpose of approval by the Defendant No. 1 which is the Municipal Corporation. The design was to put up a six-storeyed building to stand with the support of 6 R.C.C. columns to serve as the foundation for the new superstructure, with the retention of the ground floor structure. The Defendant No. 7, the husband of the proprietress, the Defendant No. 6, also was a building contractor by occupation and with the assistance of his colleague, the Defendant No. 8 in that business of a building contractor, he had undertaken to build his property without waiting for the approval or sanction of the Respondent No. 1, municipality. The construction was already started somewhere in February or March, 1970. The deceased father of the Plaintiffs had soon taken up a question and had repeatedly given applications to the Municipal Corporation. They are exhibits 59, 60, 56, etc., respectively dated 2.4.1970, 4.4.1970 and 8.4.1970. Soon on coming to know of this, the Municipal Corporation had given a stay order, or served an injunction restraining the Defendant Nos. 6 and 7 from going ahead with the construction, but they ignored the stay order. The Plaintiffs had then filed a suit No. 783 of 1970 somewhere in June, 1970 and had procured an injunction against the Defendant No. 6 restraining her from going ahead with the construction. It is their say that ignoring that injunction of the city civil court the construction was proceeded with and therefore, the deceased Noormohammed, the father of the present minor Plaintiffs, had given an application invoking the court''s power to initiate contempt proceedings. That was on 29.6.1970. By that time, in May 1970, the Defendant Nos. 6 and 7 had submitted the plans and they were approved on 23.5.1970. The deceased Noormohammed all throughout went on protesting because the construction was carried out in a manner that gave rise to cracks in his walls, but the construction, despite his protests was completed somewhere about 27th July, 1970 and the whole superstructure came down cracking at about 5.30 p.m. on 21.8.1970 killing the deceased Noormohammed, his wife and three daughters, leaving only the present minor Plaintiffs behind. The Plaintiffs then served the Municipal Corporation with a notice and then filed the suit for damages. The total amount claimed was Rs. 2,17,000/-. The municipality and its officers were sought to be fastened with the liability of this suit amount on the ground that they had failed to act in time, had failed to supervise the construction at stages and they had thus contributed to the unsatisfactory state of the new building which ultimately collapsed.

The Defendant No. 9, the architect, also was made a party-Defendant and the decree was sought against all the Defendants jointly and severally by these Plaintiffs who had filed the suit through their next friend, one advocate Mr. Habibbhai R. Shaikh. The suit was obviously resisted by the Municipal Corporation and its officers and the Defendant Nos. 6, 7, 8 and 9. On the basis of the pleadings of the parties, the learned Judge was required to raise various issues which are reproduced in the judgment at paragraph 12. The learned Judge exonerated the Municipal Corporation and its officials on the ground that no valid notice was given to the municipality and also on facts. The learned Judge exonerated the Defendant No. 9, the architect, on the ground that all that he had done was prepare the plans and he had nothing to do with the actual mode and method of construction. The learned trial Judge negatived the vigorous plea of the Defendant No. 8 that he had nothing to do with the progress of construction and that the Plaintiffs and the Defendant Nos. 5 and 7 were unjustifiably attributing the role of supervision of the construction to him in order to see that he alone is made liable for the huge claim. The learned Judge, however, did hold that the construction that was put up was so substandard that had it not collapsed, it would have surprised any expert. This particular finding that the construction was contrary to the specifications and the requirements of law is dealt with by the learned Judge in paragraph 29 where the evidence of an expert, one Mr. Panchigar, has been closely analysed by the learned Judge. The very background has been reconsidered by the learned Judge in paragraph 16 of the judgment. The learned advocate who argued the matter before us did not dispute the finding of the learned Judge about the poor condition of the workmanship of the six-storeyed building and that is why we are not required to deal with this question any more.

The next question that we are called upon to decide is the validity of the notice. We are not prepared to accept the finding of the learned trial Judge that the notice in question (Exh. 41/6) dated 17th February, 1971, as held by the learned trial Judge, as bad at law, because paragraph 25 of the said notice clearly mentions that the notice was sent to the Municipal Commissioner for and on behalf of the municipality. Perhaps this pertinent statement has been lost sight of by the learned trial Judge. As a matter of fact the entire tenor of the notice clearly indicates that the Ahmedabad Municipal Corporation was sought to be made liable because of the inaction on the part of its officials. However, this disagreement of ours with the view of the learned trial Judge need not detain us any further for the simple reason that on merits the learned Judge rightly found that the municipal authorities were not in any way responsible for the unfortunate outcome of the poor workmanship of the six-storeyed building. The whole question has been examined by the learned trial Judge in paragraphs 86 to 109. We have gone through this entire reasoning of the learned trial Judge in the light of the various documents referred to therein. The learned Judge has emphasised more, than once that at no stage deceased Noormohammed and his supporter, his brother-in-law, brought it to the notice of the Municipal Corporation or its authorities that the construction that was being put up was in any way contrary to the bye-laws and all that was harped upon time and again was that the construction was so put up as to cause cracks in the walls of Noormohammed''s building. We would reproduce one of the emphatic observations of the learned Judge in that regard. It is from paragraph 86:

In this case, Defendant Nos. 1 to 5 had not led any oral evidence but had only relied upon documentary evidence to show that, at different stages, they had taken the requisite care and caution which they were required to take as prescribed by the provisions of the said Act as well as the relevant building bye-laws and regulations to which the parties had referred to me in the course of arguments.

Then in paragraph 94, the learned Judge observed:

nor those of the building bye-laws had converted Defendant No. 1 into discharging the role of a building supervisor so as to be responsible for such a dangerous structure....

Then again in paragraph 95, the learned Judge observed as follows:

But I do not find satisfactory or sufficient evidence, if at all, to warrant an inference against Defendant No. 1 that at any point of time relevant or material to this case, the Municipal Commissioner or other officers of Defendant No. 1 was or were given any positive information about the disputed structure having become a dangerous structure, which would have warranted or required the Municipal Commissioner to immediately take action in terms of Section 264 of the said Act.

The learned Judge, ultimately in paragraph 104 concluded that the disputed structure had fallen down on account of the structural defects and negligence, rashness and want of reasonable care and caution, on the part of Defendant Nos. 6, 7 and 8 alone and not also on account of any negligence of Defendant Nos. 1 to 5 or Defendant No. 9 as alleged, because the Plaintiffs had failed to prove their case so far as those Defendants were concerned.

So this disposes of the appeal against the Respondent Nos. 1 to 5, the original Defendants Nos. 1 to 5. This brings us to the case of Defendant No. 9 who was sought to be made liable. The evidence of this Defendant No. 9 and that of the Defendant No. 8 have been gone through by us, as taken through by the learned advocate Mr. Qureshi. Despite total disclaimer of the Defendant No. 8''s association with the building activities, the learned Judge found, for good reasons which we approve of, that the Defendant No. 8 had associated himself with the building right from the initial preparation of the plans till the completion of the construction. It was he who had taken from the municipality the building permission granted retroactively in May, 1970. It is not the matter of oral say, but it is a matter of series of documents which have been relied upon by the learned trial Judge. We, in this connection, can profitably refer to paragraphs 58, 59, 60 and 65 of the judgment. The learned Judge has also considered the oral evidence of the Plaintiffs as well as that of the Defendant Nos. 7 and 8 and concluded that it was the Defendant No. 8 who all along supervised the construction of the disputed structure as a building supervisor, as per assignment undertaken by him before the Defendant No. 1 at the time of submitting the plans. It is too late in the day for the Defendant No. 8 to escape the liability. We would say, before parting with this, that this was an extremely hazardous construction that was put up by the Defendant Nos. 7 and 8 and the Defendant No. 6 has been rightly held liable as she was the proprietress of the building.

This brings us to the question of compensation. We would say that the learned Judge, here, has not examined the question in its proper perspectives. Firstly, we shall deal with his examination of the question of consortium to the children qua their parents. In paragraph 131, 132 and 133 of the judgment, the learned Judge has examined the question of loss of association or consortium to the children. The learned Judge was truly conscious of his sailing in unchartered sea in that regard. He rightly felt concerned that the children, the three Plaintiffs, lost much needed love and affection in the sad demise of their parents especially when they were at the young age. The learned Judge was conscious that the concept of consortium was related to consorts, namely, the husband and the wife, but then he saw no distinction between the husband and the wife and other known forms of association, fellowship or togetherness. He said that he ventured to go a step further, in the absence of any authority shown to him tying down his hands to the contrary, by examining the case of the present minors so far as their right to claim damages under this head was concerned and said that etymologically the meaning of the term ''consortium'' suggesting partnership, association, fellowship or togetherness, could be extended to such relationship also. It is to be noted that the word has got a fixed meaning, connoting only the husband and the wife and the companionship, fellowship or togetherness of the husband and the wife alone is indicative of ''consortium''. Salmond on the Law of Torts, 17th Edn., page 359, has dealt with ''loss of consortium'' in respect of a married woman, in terms of the English law and has observed that a married woman has no right of action against a person who by a negligent act or omission has deprived her of husband''s society or services. But the learned author stated that, for the death of her husband a wife, if dependant, may claim compensation under the Fatal Accidents Acts. So, the learned Judge, in our view, does not appear to be right in awarding Rs. 10,000/- under this head.

On behalf of Defendant No. 8 it was urged that the calculation of the amount of damages on the basis of family units was erroneous. The learned Judge counted four units for the parents and six units for the six children. According to Mr. Qureshi, counsel for the Defendant No. 8, when the three minors had died simultaneously there was no question of considering their units out of the future income. Technically Mr. Qureshi appears to be right. But in the overall analysis we find that the final figure of compensation arrived at by the learned Judge will not call for any interference with. Against the amount of Rs. 10,000/- given by way of loss of consortium, we would be giving an amount of Rs. 5,000/- as the amount of conventional-damages instead of Rs. 3,000/-. Similarly the learned Judge has not taken into account the future rise in the emoluments of the deceased father. If they are taken into account, the higher amount given by way of wrong calculation of units can be off set by calculating the future earning of the deceased who, the records of the S.T. Corporation amply show, was a brilliant man having good record of service at his back. A man who had got promotion from the post of a helper to the higher post and had further avenues open for further promotion. This also could have gone to enhance the amount of compensation. Taking all these factors into account we find that the ultimate amount of compensation that has been reached by the learned trial Judge can be sustained in the final analysis. This will be the case even, regarding the amount of the land value considered by the learned trial Judge while speaking of the amount of compensation in respect of the loss of property. No doubt the property was an old one. But if the property was required to be reconstructed with the same type of old material, the proverbial notorious rise in prices of all materials also has to be taken into account. But the learned Judge has not taken this into account. So the amount of compensation on the ground of loss of property also can be maintained by the same calculations.

The result is that the appeal and the cross-objections filed by the Respondent No. 8 fail. We leave the parties to bear their own costs in the facts and circumstances of the case.