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Judgment
1) Heard Mr. M.H. Rajbarbhuiya, the learned counsel appearing for the appellant as well as Ms. S.D. Choudhury, the learned counsel appearing for
the respondents No. 1 to 3 and Mr. C.K.S. Baruah, the learned Junior Government Advocate appearing for the respondents No. 4 to 9 and 11. None
appears on call for respondent No.10, although the names of the learned counsel appear in the cause list.
2) This appeal under section 96 of Civil Procedure Code (CPC for short) is directed against the judgment and decree dated 28.01.2011 passed by the
learned Civil Judge, Karimganj in T.S. No.8/2009.
3) The respondents No. 1 to 3 are the plaintiffs in the suit. The appellant herein was the defendant No. 9 in the suit. The respondents No. 4 to 11 i.e.
the State of Assam and its officers were arrayed as defendants No. 1 to 8 in the suit.
4) The case of the respondents No. 1 to 3, i.e., plaintiffs in brief is that on 07.05.2007 at about 7.00 pm, their predecessor- in- interest, namely, Ranjit
Choudhury, the husband of respondent No. 1 and the father of respondents No. 2 and 3, while returning home at Puhalia Part 5 from Patharkandi on a
bicycle along the Patharkandi Kazir Bazar, PWD Road, on reaching Unamgaon village near ONGC Colony, along with his bicycle, he fell down into a
deep unprotected hole/ trench, that was cut on the road for construction of a culvert and he died on the spot due to injuries suffered by him. An entry
vide Patharkandi P.S. G.D.E. No. 195 dated 07.05.2007 was made. Later on, Patharkandi P.S. Case No. 60/2007 under Section 283/304(A) of the
Indian Penal Code was registered against the respondents No. 8, 10, 11 and the appellant. The police submitted charge-sheet in the said case and as
per the plaint, at the time of filing of the suit, the trial was pending before the Court of learned SDJM, Karimganj vide G.R. Case No. 394/2007. A
notice under Section 80 Code of Civil Procedure, 1908 had served on the appellant and the respondents No. 4 to 11. It was projected that the
deceased was having an income of Rs.10,000/- per month from agricultural income and by doing tuitions and on his death, the respondents No. 1 to 3
being very poor and could not bear the expenses of court’s fee etc., applied for assistance before the District Legal Services Authority,
Karimganj, which was allowed vide order dated 20.01.2009 and thereafter, the suit was filed.
5) The State respondents No. 4 to 11 contested the suit by filing their written statement. It was stated that the suit was not maintainable and it was
barred by limitation. It was also pleaded that the appropriate court fee was not paid and it was further stated that the required notice under Section
80(1) CPC was not given and, as such, the suit was not maintainable and that as the plaint was filed without obtaining leave under Section 80(3) CPC.
It was further stated that in this case, the contract work was allotted to the appellant for construction of WBM work of Patharkandi Kazir Bazar Road
including H.P. culvert at 1st and 2nd K.M. on the road. It was stated that for constructing the 2nd culvert, a trench having a depth of 1.65 metre only
was dug for laying hume-pipe therein, which was near the residence of the deceased, and that the hole was barricade with excavated spoils upto a
reasonable height in one side and the hume pipe was placed on other side of the trench and the remaining 50% of the road was left open for plying of
vehicular traffic and for movement of pedestrians. It was also stated that everyone in the locality including the deceased were aware of the trench
work and the deceased also might have crossed the same location several times like other people and that because of barrier, a bicycle rider could not
have crossed the obstruction and could not die as the depth of the trench was less than the height of one man, as such, the death might have been
caused for other reasons and therefore, the State respondent claimed that they were not liable to pay any compensation.
6) The appellant by filing her separate written statement, also took up a plea similar to the State Respondents. It was further stated that after recovery
the dead body, the respondents No. 1 to 3 along with other persons removed all precautions like signboard, caution board and barricade from the work
site and thereafter, the First Information Report (FIR) was lodged with false averments and the police without investigating had sent the case for trial.
It was stated that the deceased had died due to his own rash and negligent driving of the bicycle or that he had died for any other cause and the dead
body was kept at the work site of culvert.
7)trial:- Â On the basis of pleading of parties the following issues were framed for
1) Is there any cause of action for the suit?
2) Is the suit maintainable in its present form?
3) Whether the suit is barred under the principle of Waiver, estoppels and acquiescence?
4) Whether the suit is barred under the provisions of Article 82 of Indian Limitation Act under heading part vii?
5) Whether the claim of compensation is genuine of bonafide and the plaintiffs are entitled to compensation as prayed for?
6) To what relief, plaintiffs are entitled to?
8) The respondents No. 1 to 3 i.e. the plaintiffs had examined 2 (two) witnesses and exhibited the following documents, viz., Certified copy of FIR in
GR Case No. 394/2007 (Ext.1), Certified copy of charge sheet in said case (Ext.2), Certified copy of seizure list in said case (Ext.3), Certified copy of
post mortem report (Ext.4), Copy of 80 CPC notice dated 30.06.2007 (Ext.5), Postal receipts [Ext.5(1) to 5(9)], returned acknowledgment cards
[Ext.510) to Ext.5(16)], Reply to notice under Sec.80 CPC received from Defendants No. 4, 5, 7, 8 and 9 [Ext. 5(17) to Ext.5(21)], Reply to notice
under Sec.80 CPC received from A.D.C., Karimganj [Ext.5(22)], Copy of renewal of Registration of Class-II contractor in the name of the deceased,
Ranjit Choudhury (Ext.6). Photo taken on spot (Ext.7). However, the appellant and the State respondents No. 4 to 11 did not examine any witnesses.
9) In respect of issue No.1, the learned trial court had held that there was ‘cause of action’ for the suit. In respect of issue No. 2 relating to
maintainability of the suit, the learned trial court had that the respondent No. 1, the wife of the deceased and the plaintiff No. 1 had applied for legal
assistance on 05.01.2009 to institute the suit and thereafter, the suit was filed and therefore, the suit was found to be maintainable. In respect of issue
No. 3, it was held that the plea of the suit being barred under the principles of waiver, estoppel and acquiescence were taken without any basis and
the said issue was found unnecessary and redundant and accordingly, the issue was decided to be redundant. In respect of issue No. 4, the learned
trial court by discussing the evidence, being the notice issued under Section 80 CPC (Ext.5) as well as the replies vide Ext.5(17) to Ext.5(22), arrived
at a finding that on simple calculation, the notices were found to be issued within the time and, as such, the suit was held not to be barred under Article
82 of the Limitation Act. In respect of issue No. 5, by discussing the evidence on record, the learned trial court had held that he appellant had died by
falling in the ditch dug on the road, and that the State respondents cannot be absolved of the liability on account of negligence and carelessness merely
because of non-availability of light in the bicycle. In respect of issue No. 6, it was held that the claim of compensation was proved and the claim was
found to be genuine and bona fide. Accordingly, by holding that the income of the deceased was Rs.10,000/- per month, equivalent to Rs.1,20,000/-
per year. However, as there was no documentary evidence, the suit was decreed for a sum of Rs.4,00,000/- (Rupees Four lakh only). The appellant
and the State respondents were directed to pay the compensation with pendente lite interest and future interest at the rate of 6% per annum.
10) The learned counsel for the appellant has submitted that for constructing the 2nd culvert trench was dug with the depth of 1.65 meter only for
laying down hume-pipe in the said trench, which was dug on half portion of the road very near to the residence of the deceased, but the said hole/
trench/ ditch was barricaded with excavated spoils upto a reasonable height on one side and the hume pipe was placed on other side of the trench. It
is submitted that the remaining 50% of the road was left open for plying of vehicular traffic and for movement of pedestrians. It is submitted that the
deceased was grossly negligent to cross those barricades and to fall down on the ditch and, as such, the deceased had contributed to the accident and
he was solely responsible for his own death. It is further stated that the deceased was driving his bicycle without any light and therefore, he was sole
responsible for his own death, which had arisen because he had not taken due care to drive a bicycle in evening time without any light. It is further
submitted that after the accident, the respondents No. 1 to 3 had removed all the barricades and had lodged the First Information Report (FIR) with a
false story and therefore, the respondents No. 1 to 3 were not entitled to any relief from the appellant.
11) The learned State counsel has also advanced his argument on similar lines. He has supported the argument advanced by the learned counsel for
the appellant and stated that the suit was barred by limitation. It was submitted that the State Respondents had awarded the contract work to the
appellant and, as such, the appellant was only responsible for all the consequences which arose from and/or out of the said contract. It is submitted
that having handed over the work site to the appellant, no duty was cast on the State Respondents to take care or precautions in respect of the said
site of the contract work and therefore, the State respondents No. 4 to 11 could not be made responsible for payment of any compensation to the
respondents No. 1 to 3.
12) Per-contra, the learned counsel for the respondents No. 1 to 3 has made her submission in support of the impugned judgment and decree by
submitting that the claim was filed within a limitation and therefore, no ground for urging that the claim was not maintainable. It was denied that the
respondents No. 1 to 3 had removed the barricade. It is submitted that no fault can be found for repudiation of the claim on the ground that there was
no light on the bicycle. It is further submitted that their predecessor had died on 07.05.2007, and their engaged counsel issued a notice under Section
80 CPC on 30.06.2007 (Ext.5), which was duly served on the State Respondents, and the proof of due service said notice was the replies given by the
State respondents on various dates between 16.07.2007 to 29.08.2007 [Ext.5(17) to Ext.5(22)]. Thereafter, well within time, due to the economy
condition, the appellant had approached the District Legal Services Authority and the said authority by order dated 20.01.2009, issued a direction to
provide them all legal assistance and that thereafter, the counsel engaged by the District Legal Services Authority had presented the plaint on
22.05.2009. Under the circumstances, they were not at fault and they were entitled to benefit of legal disability and, as such, the suit was filed within
time.
13) Therefore, on the basis of the submissions made by the learned counsel for both sides, the following points of determination arises for decision in
this case:
(i) Whether the suit was barred by limitation?
(ii) Whether the judgment and decree passed by the learned trial court warrants any interference?
14) The point of determination No. 1 is taken up first. On a perusal of the trial court’s record, it is seen that a note has been put up on the body of
the plaint by the Sheristadar of the Court of the learned Civil Judge, Karimganj to the effect that the plaint was accepted by virtue of order dated
20.01.2009, passed by the District Legal Services Authority without payment of the requisite court fee of Rs.11,022/-. In the plaint, a statement has
been made in paragraph 5 of the plaint to the effect that the respondents No. 1 to 3 herein were very poor persons, living below the poverty line and
were unable to bear court fee, lawyer’s fee etc. and therefore, they had applied for legal aid before the Secretary/Chairman District Legal
Services Authority, Karimganj and that the said authority by order dated 20.01.2009, had allowed their prayer and the brief was entrusted to Mr. A.B.
Choudhury, Advocate as a legal aid counsel for them. Accordingly, the suit was filed by the said legal aid counsel. Therefore, the respondents No. 1 to
3 are found to have established the existence of their legal disability as on 20.01.2009. Under the provisions of Article 82 of the schedule to the
Limitation Act, 1963, the period of limitation is two years and the time begins to run from the date of death of the person killed for a suit to be filed by
the representatives under the Fatal Accidents Act, 1855. Hence, ordinarily the suit ought to have been filed on or before 06.05.2009, which is just
before the expiry of two years from the date of death. However, in this present case in hand, it is found that the respondents No. 1, 2 and 3 were all
suffering from legal disability and therefore, had applied for legal aid, which amounts to initiation of action for filing the suit as a pauper and that the
said plea was allowed by order dated 22.01.2009 passed by the District Legal Services Authority. Therefore, it was the bounden duty of the District
Legal Services Authority to present the plaint within time. The plaint having been filed on 22.05.2009, is found to be within time as the filing of the
plaint would relate back to 22.01.2009, when the respondents No.1, 2 and 3 had applied to sue as pauper with legal aid from District Legal Services
Authority.
15) The LCR reveals that the District Legal Services Authority had passed an order to that effect on 22.1.2009. Therefore, the respondents No. 1 to 3
had approached for legal aid well within the period of limitation and hence, as they are found to be suffering from legal disability for instituting the suit
and they were totally depending on the legal aid counsel for filing of the suit. Hence, the respondents No. 1 to 3 are deemed to be suffering from legal
disability which existed from 22.01.2009 to 22.05.2009. Therefore, notwithstanding that the filing of the plaint would relate back to 22.01.2009, but in
addition, the said respondents No.1, 2 and 3 are also entitled to additional protection under Section 13 of the Limitation Act, 1963 under which time is
excluded where leave to sue as pauper is applied for. Therefore, in the considered opinion of this Court, the suit filed by the respondents was not
barred by limitation. Moreover, it is held that notwithstanding that the respondents No. 1 to 3 had initiated the judicial process for filing the suit on
22.01.2009, having approached the competent authority created under the provisions of the Legal Services Authority Act, 1987 and had taken
recourse to the well known legal procedure for filing of the suit, but nonetheless, the respondents are also entitled to exclusion of time taken to sue as
a pauper under Section 13 of the Limitation Act, 1963. It is further held that as the respondents No.1, 2 and 3 had approached the District Legal
Services Authority as far back as on 22.01.2009, therefore, for all intents and purposes, the judicial process having been initiated on 22.01.2009, the
filing of the suit would revert back to the said date and therefore, the respondents No.1, 2 and 3 were not at fault as the plaint was to be filed by the
legal aid counsel, appointed by the District Legal Services Authority and, as such, in view of the discussions above, this Court is of the considered
opinion that the suit was filed well within the period of limitation.
16) In respect of point of determination No. 2, it is seen that the appellant has taken a plea that they had barricaded both the sides of the ditch/trench
hole which was dug on the road with excavated spoils on but neither the appellant, nor the State Respondents No.4 to 11 had lead any evidence to
prove their stand. In course of cross-examination of the appellant, the PW-1 had stated that there was no barricade along the said ditch/trench, as
such, the statement of the respondents No.1, 2 and 3 in the plaint as well as in the evidence-on- affidavit of PW-1 could not be demolished. Rather the
PW-1 had denied the suggestion given to him during his cross examination that the alleged hole over the road was covered by fencing by the worker
engaged in the work. From the said reply, it can be inferred that the question put to the PW-1 was that there was a fencing around the hole dug on the
road, which is not the stand of the appellant in her written statement because in paragraph 9(a) of the written statement of the appellant, it was stated
that the respondents No. 1 to 3 along with their known persons had become annoyed and removed all the existing precautions like signboard, caution
board and barricade etc. from the work site. By no stretch of imagination, these precautions can be said to be ‘fencing’ and, as such, the stand
of the appellant is found to have changed while cross-examining the PW-1, which demolishes her own stand.
17) Moreover, it is seen that the State-respondents No. 4 to 11 in their written statement had taken a stand that the respondent No. 10 herein had
issued a letter dated 07.02.2007 to the appellant for making necessary arrangements and precaution on the construction site. They had also taken a
stand that after the incident, the respondents No. 1 to 3 got annoyed and removed all the precautions like signboard, caution board and barricade etc.
from the work site. However, while cross-examining the PW-1, on the question put by the learned Government Pleader appearing for the State
Respondents, the PW.1 had replied that it was not a fact that there was a signboard affixed there by the Public Works Department that construction
work of culvert by the Public Works Department was going on. Therefore, it is apparent by the said question that at the stage of cross-examination,
the State respondents took upon themselves the responsibility of affixing the PWD signboard regarding the construction of culvert. However, the State
respondents No. 4 to 11 did not lead any evidence to prove their stand which was taken in the written statement and that was a change of stand while
cross-examining the PW.1. Moreover, the PW.2, who was also cross-examined by the appellant and for State respondents No. 4 to 11, had denied the
existence of any signboard affixed there to the effect that construction work was going on the road.
18) Moreover, as per the evidence of the PW.1 in his cross-examination, he had stated that he received information about the occurrence at about
7.10 pm and on his arrival he found his father lying dead below the hole of the road alongside his bicycle and being informed, the police had rushed to
the place of occurrence and found his father to be dead and took his dead body for post mortem examination. However, it is very surprisingly that it
was not the initial stand of the Public Works Department i.e. the State respondents No. 4 to 11 or of the appellant that any of them had informed the
police that public property in form of barricade, sign-board, etc. were taken away by the respondents No. 1 to 3 or others. Therefore, in the absence
of any evidence by the appellant or by the State respondents No. 4 to 11 about existence of any barricade whatsoever at the construction site, this
Court finds that there is no infirmity in the finding by the learned trial court that the appellant and the State respondents No. 4 to 11 cannot be absolved
of their liability.
19) Moreover, in course of cross-examination, the witness of the respondents No. 1 to 3 were asked question of the non-existence of any light in the
bicycle. In order to sustain such plea, the onus was on the appellant as well as on the State respondents No. 4 to 11 to show that there was any
requirement by any law in force mandating that a bicycle was required to have a light for use after sunset. Therefore, in the absence of any evidence
on behalf of the appellant or the State respondents No. 4 to 11 on the point of requirement of light on the bicycle, the learned tribunal had committed
no infirmity for not absolving them from any liability.
20) On re-visiting the decision of the learned trial court on the issues No. 1 to 3, the said issues have found to be perfunctory because the appellant or
the State respondents have failed to show that there was no cause of action for the suit or that the suit was not maintainable in its present form or that
the suit was barred by limitation or under the principles of waiver, estoppel and acquiescence. In so far as the issue No. 4 is concerned, the said issue
has been taken up by this Court under point of determination No. 1, and the said point of determination has been held against the appellant and in
favour of the respondents No. 1 to 3. Accordingly, no infirmity is found on the decision by the learned trial court on issue No. 4. The issue No. 5 also
appears to be a perfunctory issue. The appellant as well as the State respondents No. 4 to 11 have not been able to show why the claim for
compensation was neither genuine nor bona fide. An incident of accidental death of a person is squarely covered by the provisions of the Fatal
Accidents Act, 1855 which has been enacted for the purpose of maintaining a suit as well as or wrong-doer to be answerable in damages for the
injury cause by him for his wrongful act neglect or default which, in the present case, has resulted in the death of the predecessor- in- interest of the
respondents No. 1 to 3. Therefore, there is no requirement for plaintiff in such a suit to plead and prove that the case was genuine and bona fide.
21) In this case, not only the respondents No. 1 to 3 have pleaded in their plaint that their predecessor was earning Rs.10,000/- per month, but by
proving the registration certificate of registration of the deceased as Registered Class-II Contractor, it can certainly be accepted that the deceased
was capable of having an income of Rs.10,000/-. By the action of the respondents No.1 to 3 by approaching the District Legal Services Authority for
legal aid for filing of the suit, the respondents No. 1 to 3 have proved that they had been reduced to a pauper on the death of their sole bread earner
and they were now even unable to bear the court fees and other legal expenses for filing the suit. Therefore, it cannot be denied that the claim for
compensation was not only genuine but also bona fide and therefore, the learned trial court had rightly held the said issue in favour of the respondents
No. 1 to 3.
22) This Court is conscious about fact that the respondents No. 1 to 3 are not aggrieved with the impugned judgment and decree, as they have not
filed any appeal or any cross objection in connection with this appeal. However, it would not be out of place to make a mention herein that referring to
the provisions of Fatal Accidents Act, 1855 in the matter of computation and/or assessment relating to award of compensation insofar as the death or
disability in respect of the claims made under the provisions of the Motor Vehicles Act, 1988 the courts and tribunals have adopted the application of
multiplier as a inherent component for computation of compensation. Keeping the said principles in mind, this Court has re-visited the issue No. 6
whereby in the absence of any documentary proof, but considering the income of the deceased to be Rs.10,000/- per month, the learned trial court had
awarded a lump sum compensation of Rs.4,00,000/- to the respondents No. 1 to 3. Under the circumstances, although the learned trial court had not
awarded just and fair compensation, but as indicated above, as the respondents No.1, 2 and 3 have accepted the said decree, no case is made out by
the appellant for this court to interfere with the judgment and decree passed by the learned trial court. There is no way to reduce the decree for
compensation as this Court finds that the compensation has been computed and/or assessed in an extremely lower side, by considering the fact that in
the PW-1 had proved that the deceased was a Registered Class-II Contractor and that on the cross- examination of PW-1, his evidence to the effect
that his father was a matriculate and apart from having agricultural income, he was also earning by way of tuitions could not be demolished.
23) Hence, the decree for compensation of Rs.4,00,000/- as passed by the learned trial court is upheld. The decree for interest of 6% also appears to
be at a lower side and in this regard, the case of MCD Vs. Uphaar Tragedy Victim Association, (2011) 14 SCC 481 may be referred to. However, in
the absence of any appeal or the cross objection of the respondents No. 1 to 3, the decree as well as decreetal interest on the compensation @ 6%
per annum from the date of filing of the suit till realization is maintained. Accordingly, in view of the discussions above, the point of determination No.
2 is answered against the appellant and in favour of the respondents No. 1 to 3.
24) In view of the discussion above, this appeal fails and the appeal stands dismissed with costs. Accordingly, the impugned judgment and decree
dated 28.01.2011 passed by the learned Civil Judge, Karimganj in T.S. No.8/2009 is hereby upheld. The appellant shall be liable for the cost of this
appeal as the respondents No.1, 2 and 3 have projected themselves to be pauper as on the date of filing of the suit.
25) Let a decree be drawn up accordingly.
Let the LCR be returned back.