C B SINGH Vs. CANTONMENT BOARD AGRA

JUDGEMENT

(1.) THESE are three connected appeals by the plaintiffs from the judgment and decree of the 1st Additional Civil Judge, Agra, in the three suits for damages founded on tort. The suits were consolidated and decided by a common judgment and hence the appeals may also be disposed of by one judg ment All the suits were dismissed with costs and hence these appeals were pre ferred. However, the appellant Dr. C. S. Patel in First Appeal No. 434 of 1958 arising out of suit No. 223 of 1955 is dead and hence that appeal has become in-fructuous and is dismissed. We are now left with First Appeals Nos. 429 and 430 of 1968 arising out of Suits Nos. 222 and 224 of 1955 respectively. The defendant in the three suits was the same, namely, the Cantonment Board, Agra.

(2.) DR. C. B. Singh instituted suit No. 222 of 1955. He was at that time a Professor and Head of the Department of Surgery in the Medical College, Agra and a renowned Surgeon, having an ex tensive practice, DR. R. V. Singh institut ed suit No. 224 of 1955. He was at that time a Professor of Clinical Surgery at the Lucknow Medical College. The alle gations in the two plaints were almost identical. They were that at about 10 p.m. on 10-4-1955 DR. C. B. Singh along with DR. C. S. Patel and DR. R. V. Singh and Miss Patel, niece of DR. C. S. Patel, were going to see the Taj in the car owned and driven by DR. C. B. Singh. DR. C. B. Singh was driving the car with his usual1 care and at a very moderate speed of about 15 miles per hour. The car sudden ly collided with a traffic island at the crossing of the Mall and Metcalf Road (now known as General Cariappa Road), The said traffic island was wrongly and negligently built by the defendant Board at a very inconvenient spot in or about the middle of the Mall Road. There were no overhead lights on the traffic island nor any other light near it. It was not equipped with ruby lights so as to make it noticeable for vehicles using the road at night. The defendant Board was charged with the duties of lighting the streets and other public places, main taining streets and roads and removing for purposes of public safety undesir able obstructions in streets and roads and keeping them safe for vehicular traffic. As a result of the collision the occupants of the car including the three plaintiffs, suffered injuries which gave severe physical pain and great mental shock to them. There was a permanent impairment of certain organs of the body which had affected their earning capaci ties for life and resulted in loss of in come due to inability to do professional work. DR. C. B. Singh and DR. V. R. Singh claimed Rs. 30.000/- each as damages and compensation as a result of this gross negligence, misfeasance and malfeasance,

(3.) SECTION 116 of the Cantonment Act, 1924 prescribed the duties of the Board. Clause (a) refers to the lighting of street and other public places. Clause (e) deals with 'removing, on the ground of public safety, health or convenience, undesirable obstructions and projections in streets and other public places'. Clause (h) refers to 'constructing, altering and maintaining streets, culverts, markets, slaughter-houses,, latrines, privies, uri nals, drains, drainage works and sewe rage works'. SECTION 108 of the Canton ments Act is important. It provides: "108. Property:- Subject to any special reservation made by the Central Government all property of the nature hereinafter in this section specified which has been acquired or provided or is maintained by a Board, shall vest in and belong to that Board and shall be under its direction, management and control, that is to say. (g) all streets and pavements, stones and other materials thereof and also all trees, erections, materials, implements and things existing on or appertaining to streets." It is thus clear that there is a statutory duty .on the Board of maintaining streets and hence the streets as well as all erec tions existing on them are property which vests in the Board and belongs to it and is under its direction, management and control. It is also the statutory duty of the Board under SECTION 116 (e) to re move undesirable obstructions and pro jections in streets and other public pla ces. Reference may also be made to Sec tion 117 (k) according to which it is in cluded in the discretionary functions of .the Board that it should adopt any measure, other than those specified in SECTION 116, likely to promote the safety, health or convenience of the inhabitants of the Cantonment. Therefore, the Board cannot avoid its responsibility for main taining and managing streets and remov ing undesirable obstructions and projec tions etc. It is of no consequences as to whether the Board is under any statu tory duty or other obligation to construct traffic islands. Even though the duty to erect such traffic rotaries may fall on some other authority, once such erection, is made on the streets which vest in the Board and are maintained, controlled and managed by it, it becomes its duty to prevent it from becoming an undesir able obstruction. Any erection or con struction existing on a road may be in trinsically undesirable in all circumstan ces or it may become undesirable in the absence of reasonable precaution and care which are a condition precedent to its utility. It may, therefore, not be cor-j rect to exclude altogether such erections on the streets as a traffic rotary, never theless if it is constructed at an incon venient site or is not equipped with re quisite measures of safety and becomes dangerous for the public using it, it would surely become undesirable ob struction and it would be the statutory duty of the Board under SECTION 166 (e) to remove such obstruction. Any con struction existing in the middle of a highway necessarily implies some ob struction, though its harmful consequen ces may be mitigated and it may even be converted into a useful device by tak ing recourse to certain preventive mea sures. If on an appraisal of evidence in the case we come to the conclusion that the traffic island in question became a source of danger to the public, there would be no escape from the conclusion that the Board acted negligently by failing to perform its duty of removing or modifying the same. In that view of the matter the question as to who was res ponsible for initially constructing the rotary loses its importance. 5-A. Since however, the definite case of the defendant was that it had constructed the traffic island at the cross ing of the Mall and the Metcalf Road where the accident took place, we may address ourselves also to the question as to who was responsible for constructing the traffic island in question. SECTION 75 of the Motor Vehicles Act empowers the State Government or any other autho rity authorised in this behalf by the State Government to place or erect a traffic sign in any public place for the purpose of regulating the motor vehicle traffic. The State Government may by notification delegate this power to any District Magistrate or Superintendent of Police or in the Presidency Towns, the Chief Presidency Magistrate or the Com missioner of Police. The particulars of such traffic signs are provided in the IX Schedule of the Act, They, are how ever, different from a traffic refuge or rotary, to use a technical term. SECTION 91 of the Motor Vehicles Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter VI which relates to control of traffic. Under clause (2) the rule making power includes the follow ing items:- (e) the maintenance and manage ment of parking places and stands and the fees, if any, which may be charged for their use. (i) generally, the prevention of dan ger, injury or annoyance to the public or any person, or of danger or injury to property or of obstruction to traffic; and (j) any other matter which is to be or may be prescribed. There is a provision in the U. P. Motor Vehicles Rules, 1940 for erection of is lands for the purpose of facilitating the crossing of the road by the public. Rule 184 is the relevant rule corresponding to SECTION 91 (2) (i). It runs as follows:- "With reference to sub-sections (1) and (2) of SECTION 75 of the Act, the Dis trict Magistrate or the registering autho rity, may, in any public place cause, sign boards or notice boards in such script as may be appropriate to be exhibited, or marks to be made oh the surface of the road, for the purposes, of regulating motor vehicle traffic and may also cause islands or refuges of such character as he may consider appropriate, to be erected for the purpose of facilitating the cross ing of the road by the public: Provided that no such island or re fuge shall be erected without the consent of the authority having jurisdiction over such public place, if the said erection en tails breaking the road surface. (b) The signs or notice boards, which may be erected under the provisions of this rule may include sign of the design shown in the ninth Schedule of the Act." The above rule shows that the power to erect traffic refuges has been conferred on the District Magistrate or the register ing authority under the Motor Vehicles Act, which is the Regional Transport Officer. There was therefore, no statu tory duty cast on the Cantonment Board to construct a rotary, but as we have observed, this has no bearing on the liability of the Board for keeping it free from danger. The Board cannot take shelter under the plea that it is absolv ed of the responsibility on the ground that it did not possess any statutory au thority to construct the traffic island. On the other hand, this places the Board in a worse position, inasmuch as it cannot claim even the initial statutory protec tion for the existence of such island on the street. The Board was under a sta tutory duty to maintain the streets free from obstacles.