COLLECTOR GANJAM Vs. CHANDRAMA DAS

JUDGEMENT

(1.) FIRST Appeal No. 89 of 1971 arises out of Money Suit No. 46 of 1970 and FIRST Appeal No. 90 of arises out of Money Suit No. 47 of 1970. Both the suits were analogously tried in the court of the Subordinate Judge, Berhampur, as they arise out of the same facts. These two appeals have been analogously heard by us.

(2.) IN Money Suit No. 47 of 1970, plaintiff No. 1 is the widow, plaintiffs 2 and 3 are the sons and plaintiffs 4 and 5 are the daughters of deceased Nirakar Sahu. IN Money Suit No. 46 of 1970 plaintiff No. 1 is the widow and plaintiffs 2 and 3 are the sons of deceased Suma Das. Nirakar Sahu and Suma Das died in the morning of 5-9-1969 as a result of the fall of the southern cantilever portico slab of the out-patient block of the Maharaja Krishna Chandra Gajapati Medical College Hospital Berhampur. Plaintiffs in both the suits have claimed compensation from the State of Orissa. Nirakar Sahu was the Cashier in the office of the Superintending Engineer, Electrical, at Berhampur. He was getting Rs. 270/- per month as pay and D. A. at the time of his death. He was born on 23-2-1926 and was appointed in Government service on 24-9-1949. The Medical College is a Government institution. Nirakar was quite hale and hearty. His life expectancy was more than sixty years. He had been to the Medical Collage Hospital on a cycle for treatment. He got down from the cycle under the cantilever portico. While he was there the cantilever portico slab fell down on him and he died immediately on the spot. The place where he got down is intended for parking of vehicles to get into the out-patient block of the Medical College Hospital. The portico fell down due to inherent defect. Nirakar would have received pay and emoluments of Rupees 37,788/- till retirement and the plaintiffs would have been the beneficiaries of the income. The plaintiffs, however, claimed Rs. 25,000/- by way of compensation. Deceased Suma Das was a rickshaw puller. He used to earn Rs. 8/- to Rs. 10/-per day and the plaintiffs in M. S. No. 46 of 1970 used to depend upon his income for their maintenance. He carried a passenger to the out-patient block of the Medical College Hospital and parked the rickshaw underneath the portico. The passenger went inside the block and while Suma Dag was about to leave the portico it fell down and killed him at the spot. The plaintiffs claimed a sum of Rs. 15,000/- as compensation. Defence in both the suits was almost identical. Death of Nirakar and Suma Das by fall of the cantilever portico is admitted. It was, however, asserted that the Chajja was not meant for parking of vehicles underneath. It was meant only to prevent rainfall and sun entering the entrance room. The Chajja stood for 21 months and no defect was visible during that period it was handed over to the Principal, M. K. C. G. Medical College, Berhampur, in November, 1968. Had there been any defect the structure would have fallen just after the centering was removed. As it stood for a long period and withstood the unprecedented cyclone in October, 1968 and heavy intensity of rainfall in 1969 it cannot be said that the portico fell down due to defective construction. It must have collapsed for reasons beyond the control of anybody and must be due to sudden heavy rain accompanied by thunder and lightning which must have resulted in heavy vibration causing heavy bending movements for which the normal design does not provide. The death of the two persons was due to vis major and the defendants were not liable to pay any compensation.