- (1.) THIS appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.127 of 1998 dated 21.02.2002, which confirmed the judgment and decree passed by the trial Court in O.S.No.441 of 1993 dated 09.06.1993.
(2.) THE appellant before the first appellate court and this court is the defendant and the respondent in both the forums is the plaintiff. The brief facts of the plaintiff's case before the trial Court would be as follows:- On 21.09.1992, at about 6.00 a.m, one of the sons of the plaintiff, by name, Vijayakumar went to answer the call of nature in the public lavatory in the Krishna Street where the plaintiff is residing. At that time, the wall of the lavatory collapsed and due to the same the plaintiff's son Vijayakumar and another person died on the spot. The occurrence took place on account of the failure of the defendant to maintain the public lavatory in a proper manner. No proper foundation has been laid for the lavatory, while constructing the same and the defendant also did not maintain the lavatory in good condition and only due to their negligence and carelessness, the wall of the lavatory collapsed and thus, the occurrence had taken place and the plaintiff's son lost his life. Therefore, the defendant is liable to pay suitable damages to the plaintiff. At the time of incident, the plaintiff's son was aged 24 years and was earning a sum of Rs.50/- per day as a painter and he used to give a sum of Rs.800/- to the plaintiff, for family expenses. If the plaintiff's son Vijayakumar was alive, he would have lived for another 46 years and would have supported the plaintiff and her family to a great extent. But due to the sudden demise of her son Vijayakumar, the plaintiff is put to great loss and hardship. The plaintiff issued notice dated 19.01.1993 claiming damages from the defendant, but the defendant sent a reply notice containing false allegations, stating that the defendant is not liable to pay the damages. The defendant is bound to maintain and provide basic necessities to the people, but on account of its failure to maintain the public lavatory and also to provide a suitable lavatory, the defendant is liable to pay damages to the plaintiff on account of the death of her son, Vijayakumar. Therefore, the plaintiff claimed a sum of Rs.1,40,000/- as damages. The contentions of the defendant raised in the written statement are as follows: The suit is not maintainable either in law or on facts. It is false to state that the deceased son of the plaintiff Vijayakumar was engaged in painting job and earning a sum of Rs.50/- per day and giving a sum of Rs.800/- to the family. It is false to state that on account of failure of the defendant to maintain the public lavatory in dispute, Vijayakumar met with the accident. The amount of compensation claimed by the plaintiff is excessive. Hence, the defendant is not liable to pay the compensation to the plaintiff. For the notice issued by the plaintiff, the defendant has given a proper reply containing true facts. The public lavatory in Krishna Street was constructed about 60 to 70 years ago and the same was only provided with four walls without any roof. The municipality was maintaining the lavatory now and then and also envisaged a scheme, to replace the existing public lavatories by providing the public with modern lavatories with all facilities and in continuation of the scheme, the public were warned and informed not to use the lavatories and in order to prevent the public from utilising the same, stones and thorns were put inside the toilet. Prior to the occurrence, there was heavy rain in the locality and due to the incessant rain, the walls of the lavatory got soaked and despite the warnings given and the precautionary steps taken by the defendant to prevent the people from using the lavatory, the deceased son of the plaintiff Vijayakumar, at his own risk, used the lavatory and met with the accident. Therefore, the death is only due to the act of God and not on account of the negligence or carelessness on the part of the defendant. The walls collapsed owing to the heavy rain and not on account of poor maintenance of the defendant. The deceased met with the death on account of his own negligence and the defendant is in no way connected with the same. Hence, the plaintiff is not entitled to compensation. Hence, the suit is liable to be dismissed.
(3.) THE trial court had framed necessary issues and had come to the conclusion of decreeing the suit for a sum of Rs.1,40,000/- with subsequent interest and costs. The aggrieved defendant filed an appeal before the learned second Additional District Judge, Salem in A.S.No.127 of 1998 against the judgment and decree passed by the trial Court. After hearing both the parties, the said appeal was dismissed with costs by confirming the judgment and decree passed by the trial court. Aggrieved by the judgment and decree passed by the first appellate court, the defendant has come forward with this Second Appeal before this Court.;