1. The river Wainganga with a span of 555 meters separates Gadchiroli and Mul and for want of bridge a ferry service used to operate between the towns in the sixties. In 1967. M/s. Khare & Tarkunde of Nagpur, a company of construction engineers, were awarded the contract of construction of a bridge over Wainganga. The Company had three engineers, M/s. Vaidya, Kashikar and Menon working as resident engineers at the site. A complement of ten staffers and labour force of 200 used to reside at the site. The company had constructed a labour camp and other facilities for the workmen, an approach road to the Bridge site, a Camp office for themselves and another office for the Public Works Department. The design of the bridge was made by Dr. Pandit a specialist who used to occasionally visit the site.
2. From the Govt. side, Dave was working as an Executive Engineer stationed at Chandrapur who was assisted by one G. S. Deshpande, Deputy Engineer.
3. The Construction company used to fabricate and assemble steel girders an essential structural component at the site. Each girder was about 220 feet in length. and weighed a Massive 55 tonnes. To effect easy movement and launching of this heavy girder, the Company had adopted a system by which the girder was placed on two trollies which ran on land rails placed at the approaches of the bridge.
4. As is usual with the allocation of work in the Government department, Dave, the Executive Engineer was not only in charge of this bridge construction work, but also other works in his district. Many contractors visit an Executive Engineer for various matters connected with the works entrusted to them. The plaintiff Nuruddin wanted to contact Dave for some work in connection with the contract which his master had taken at Gadchiroli. Upon learning that the Executive Engineer was supervising the work of the bridge. Nuruddin came up at the bridge site on 3-11-1969. Dave, Deshpande and the Company engineers were watching the trolly of the launching girders when suddenly the movement of the front trolly was obstructed. Vaidya, Deshpande scurried to locate the fault and discovered that the girder was not actually resting on the trolly but was hanging from the top. Suddenly the girder slipped away from its platform, fell down and hit Deshpande as well as Nuruddin. The plaintiff had to be taken to various Hospitals at Chanda, Nagpur and rushed by air to Bombay where his leg was amputated and an artificial limb was fitted. The plaintiff sued the contractor to recover Rs. 60,000/- as damages which suit having been dismissed. the plaintiff appeals.
5. Shri Sanyal the learned counsel f6r the respondent has supported the Judgment on the basis that the defendant contractor owed no duty to the plaintiff who was a rank trespasser at the site.
6. It is a trite law that the only duty owed by the occupier of the premises to a trespasser is not to injure him deliberately or recklessly, and if the contractor can prove that the plaintiff was a rank trespasser, the plaintiff would be out of court. The plaintiff has entered the box to explain the purpose of his visit to the site; namely that of making enquiry about the bills which were pending in respect of Gadchiroli contract and this story has been confirmed by the Executive Engineer Dave. As the map (Exh. 8) shows, the site was converted into a small hamlet where three Engineers, a staff of 10 more helpers and a labour force of 200 were camping. There was a store shed, a casting yard where the girders were cast, deep burrow pits and a camp office for the P.W.D. and one for the contractor.
7. According to D.W. 1 Vaidya, one of the Engineers employed by the Company, the Company had kept two Watchmen for guarding the materials such as cement, mixture, steel, sand, metal etc: which were stocked at the site. Over the approaches which were about 30 feet in breadth, were placed the land rails for transporting the girders. On both the sides of the rails precast girders were lying and the one which was sought to be launched was carried on two trollies. On 3-11-1969, when the trollies were set in motion, the operation was being watched by the Executive Engineer Dave, the Deputy Engineer Deshpande as well as the staff of the Company. They noticed that the movement of the trolly was obstructed Vaidya felt that the jumping of the girder from the trolly was on account of the fact that the girder was not actually resting on the trolly but was hanging from the top; possibly it was precariously balanced on the perch of the trolly as a cantilever with its centre of gravity falling beyond the platform. Another reason given by P.W.2 Naik, who was working as an Overseer in the P.W.D. and was present at the site, was that the bolt of the launching girder was broken. A 55 tonnes steel girder, 6 feet in breadth and 220 feet in length, does not have self-propelling propensity to jump off its perch on its own. The fall was simply due to gravity and that can only happen if the girder is not squarely fastened to the platform of the trolly. The negligence of the contractor in carrying out this operation is writ large on the mechanics of the event.
8. It was argued at the bar that the contractor had taken sufficient precaution in launching the pad and the accident, if any, was not due to his negligence. Engineer Vaidya tried to support his story by stating that two persons carrying red flags were standing near the trolly and that at the beginning of the road there was a caution board 'No entry without permission'. The story of red flags appears to be an afterthought because Dave specifically mentions that no peon was present to prohibit persons without any work to come to the site. Any way, the relevance of the sign or the red flags gets relegated to the background in this particular case because the plaintiff was not an intrepid intruder but was watching the operations along with experts like the Executive Engineer Dave, his Deputy Engineer Deshpande, Overseer Naik as well as the staff of the Company. It is just a chance that Dave escaped being hit by the girder which injured plaintiff and Deshpande. The presence of the plaintiff near the site is thus explained and none present had the slightest inkling that the girder is likely to jump off the trolly.
9. That brings us to the core of the argument advanced by Shri Sanyal that the defendant company is not liable because there was no nexus between the plaintiff and the contractor, the former having come to the site admittedly for his own work. The Counsel further submits that if at all the plaintiff has a remedy it will be against the State Government, the Executive Engineer being a servant of that Government.
10. It is common ground that the site on bank of the river Wainganga belongs to the State and the defendant company was working there as an independent contractor and not as servant of the State. It is settled law that unlike vicarious liability arising out of malfeasance or misfeasance of a servant the employer is not liable for the tortuous act of its independent contractor. That answers the first point raised by Shri Sanyal about the liability being borne by the State Government.
11. As the defendant company was commissioned to Construct the bridge over the river, the State Government has permitted the company to make use of the Site to stock the material to erect temporary structures for use of their staff etc. It is immaterial whether there has been actual demise in the property or whether the contractor was holding 'any estate in land' or even exclusive occupation. Suffice it to say that as respects the bridge site the defendant company was in 'occupation or control' i.e. control associated with and arising from presence in and use of or activity in the premises Wheat v. E Lacon & Co. Ltd. 1966 AC 552 at 589. The defendant company was thus in occupation and control of the premises where the activity was being conducted.
12. It is true that the plaintiff did not go to the site upon the invitation of the occupier viz., defendant company. The plaintiff Went there for his own business which he had to transact with the Executive Engineer Dave. As part of the site was used by the P.W.D. as an office it would be in the nature of things impossible that the P.W.D. office would be used only by the Executive Engineer. The entire paraphernalia of the office of the Executive Engineer viz., his Deputy Engineer. Time keepers, Head Clerks etc. would always go with him. So would the contractors, who verily have to visit the Engineers and his officers on business such as getting day to day instructions, ensure that the measurements are recorded and the bills are passed periodically. The defendant company who is he occupier of the site had impliedly given a permission to all such persons to enter upon the site whosoever had any work with the Executive Engineer. This implied permission given by the contractor would confer on such person the status of a 'visitor' being a person who at common law will be treated either as an invitee or a licensee, and in no event as a trespasser.
13. Coming now to the question of damages (upon which no finding unfortunately has been recorded by the trial Judge), the plaintiff has divided it under 7 heads. The first item of Rs. 3,000/- relates to actual expenses incurred by him, his friends and relatives on the journey to Chanda, Bombay, Nagpur & Pune where he had to be taken for medical treatment and these expenses are supported by vouchers. The plaintiff claimed Rs. 6,000/-as loss of actual earning, Rs. 12,000/-as loss of prospects of future earning, Rs. 8000/- on account of the permanent disablement for having an artificial limb, Rs. 10,000/- for pain and suffering and anxiety. Rs. 9,000/- for shortened expectation of life owing to inability to lead a brisk and active life, and Rs. 12,000/- as general damages. Considering the fact that the plaintiff was at the threshold of his career as a petty contractor, a loss of one leg would surely diminish his efficiency and his prospects of earning and the claim of Rs. 60,000/- made by him appears to us to be on the lower side.
14. The appeal is allowed and setting aside the judgment and decree of the trial court, we order that the defendant shall pay Rs. 60.000/-and costs to the plaintiff.
15. The Collector to recover the court fee from the plaintiff after the decree is executed and the amount is realised.
16. Leave to appeal refused.