1
IN THE COURT OF PRINCIPAL DISTRICT JUDGE,
KURNOOL.
PRESENT: Sri. N.Srinivasa Rao ,
Principal District Judge, Kurnool
Wednesday, the 28th day of December, 2022
Appeal Suit No.81 of 2018
1. M.L.Srinivasa Reddy
2.E.V.N.Sulochana … Appellants
-Versus-
State of Andhra Pradesh represented by the District Collector, Kurnool, Kurnool District. … Respondent
On appeal against the decree and judgment dated 23-08-2018 passed in OS.No.593 of 2012 on the file of Principal Senior Civil Judge, Kurnool.
Between :
1. M.L.Srinivasa Reddy, S/o late M.Narayana Reddy, Advocate, aged about 59 years,
2. E.V.N.Sulochana, W/o M.L.Srinivasa Reddy, Employee, aged about 55 years.
Both are residents of H.No.40/37L/12C, beside L.I.C. office, River view colony, Kurnool town and District – 518 004. … Plaintiffs
AND
1. State of Andhra Pradesh represented by the Chief Secretary of A.P., Secretariat, Hyderabad (A.P.).
(Defendant No.1 is deleted as orders in
IA.No.100 of 2011, dated 08.06.2011 on
the file of Principal Senior Civil Judge, Kurnool.)
2. State of Andhra Pradesh, represented by the District Collector Kurnool, Kurnool District. … Defendant
This appeal coming on 28.12.2022 for final hearing before me in the presence of Sri D.Yella Reddy, Advocate for the appellants and of Learned Government Pleader, for the respondent, upon hearing on both sides, and upon perusing the material available on record, this
Court delivered the following :
J U D G M E N T
1. Unsuccessful plaintiffs in OS.No.593 of 2012 on the file of
Principal Senior Civil Judge, Kurnool has preferred the appeal against
Common Judgment in OS.No.527 of 2010 and OS.No.593 of 2012 dated 23.08.2018 passed by the Principal Senior Civil Judge, Kurnool, wherein and where under the suit filed by the plaintiffs in OS.No.593 of 2012 and the suit filed by the plaintiffs in OS.527 of 2010 dismissed without costs.
2.For the sake of convenience the names of the parties as referred in the main suit in OS.No.593 of 2012.
3.Originally, plaintiffs in OS.No.593 of 2012 has been filed a civil suit in OS.No.528 of 2010 on the file of Additional Senior Civil
Judge, Kurnool and as per the order of principal District Judge, Kurnool
dated 29.06.2012 the civil suit transferred to the Principal Senior Civil
Judge, Kurnool and numbered as OS.No.593 of 2012. The Civil suit in
OS.No.593 of 2012 clubbed with OS.No.528 of 2010 and the common
evidence recorded in OS.No.527 of 2010 and the common judgment
pronounced in both civil suits on 23.08.2018.
4.Brief averments made in plaint in OS.No.593 of 2012 as mentioned thus :
Plaintiff instituted a civil suit for claiming damages of
Rs.5,26,540/- with interest at the rate of 12% per annum from 02-10- 2009 till the date of realization and for costs of the suit.
5.Originally the suit filed against two defendants and the first defendant was deleted as per the orders in IA.No.100 of 2011 dated 08.06.2015.
6. Plaintiffs are joint owners of the house bearing
D.No.40/37L/12C, beside LIC office, River View Colony, Kurnool city.
On 02.10.2009 the floods water of Hundri and Tungabhadra rivers entered into Kurnool city to a height of over 20 to 30 feet and the water remained for two to three days. The tragedy of assaulting the city and citizens takes place as a result of failure of the duty on the part of the defendants and their subordinate officials only, but the occurrence is not an Act of God. The tragedy of entering the flood water into the buildings, houses and causing huge damage to the properties of owners of the houses and buildings due to negligence of the defendants and their subordinate officials only.
7.The plaintiffs believe that Central Water Commission had given intimation to the defendants much prior to 02.10.2009 about the flowing of flood water through the said rivers into the nearby villages and towns of the rivers including Kurnool city and they have given suitable instructions to be taken to prevent damages likely to be caused due to floods, but the defendants did not respond for the same and so due to the failure of the defendants and negligence in discharging their duties only, the floods water of Hundri and Tungabhadra rivers water entered into the Kurnool City, including to the houses of the plaintiffs which is situated at a distance of 200 yards from Hundri river on its Northern side. The water entered into the house of plaintiff to a height of 12 feet and remained there for two days, as a result of which the ground floor of the building including wooden doors, windows, shelves, electrical wirings, marble flooring, drainage system and two electric motors etc., were totally damaged. The four wheeler Maruthi Zen vehicle bearing
No.AP 21 P 7676 belongs to 1st plaintiff was totally submerged in the flood water. On a requisition, the qualified surveyor/loss assessor inspected the building of plaintiff and prepared a report dated 15.10.2009 assessing the loss/damages caused to the building of plaintiffs. As per the report, the total loss caused to the building of the plaintiff is of Rs.4,60,000/-. The car of the 1st plaintiff given for repairs in M.S.A. Motors, Kurnool and they charged of Rs.1,64,035/- for repairs, and out of that amount, the insurer of the car paid an amount of
Rs.97,495/- and the balance amount of Rs.66,540/- was paid by 1st plaintiff to M.S.A. Motors, Kurnool on 10.01.2020. The plaintiff got issued a legal notice to defendants by complying under Sec.80 of CPC and the notice served to the defendants, they did not respond in any manner. The defendant No.2 paid an amount of Rs.8,000/- to the owners of the damaged buildings including to the plaintiff immediately after the floods to meet their immediate necessities. Hence the suit.
8.2nd defendant filed a detailed written statement and denied all the material allegations in the plaint and plaintiffs strictly proved the same.
The sum and substance of the case of defendants as mentioned thus :
9. The suit is not maintainable either in law or on facts of the case.
10.This defendant denies all the allegations mentioned in the plaint those which are specifically admitted herein and the rest are put to strict proof by the plaintiffs alone.
11.It is submitted that the allegations in para No.1 of the plaint that plaintiffs are the joint owners of the house bearing
D.No.40/37L/12C, beside L.I.C. Office, River View Colony, Kurnool city, and that on 02-10-2009 the floods water of Hundri and Tungabhadra
Rivers entered into Kurnool City, to a height of over 20 to 30 feet, and remained for two to three days and that the said tragedy of assaulting the city and citizens takes place as a result of failure of duty on the part of the defendants and their subordinate officials concerned only, but the occurrence is not an Act of God and that the said tragedy of entering of floods water into the buildings, houses and causing huge damage to the properties of the owners of the buildings, houses is due to negligence of defendants and their subordinate officials only are all false and these are invented only for the purpose of this suit.
12.It is further submitted that the allegations in para No.2 of the plaint that the plaintiffs believe that central water commission had given intimation to the defendants, much prior to 02-10-2009 about the flowing of flood water through the said rivers into the near by villages and towns of the rivers, including Kurnool city and they have given suitable instructions and guidelines to be taken to prevent the damages likely to be caused due to floods, but the defendants did not respond for the same, and so due to the failure of the defendants and negligence in discharging their duties only, the floods water of Hundri and
Tungabhadra rivers, entered into the Kurnool city, including to the said house of plaintiffs, which is situated at a distance of 200 yards from
Hundri river on its Northern side and that the water entered into the house of plaintiffs be a height of 12 feet and remained there for 2 days, due to which the ground floor of the building including wooden doors, windows shelves, electrical wiring, marble flooring, drainage system and two electric motors etc., were completely damaged and that the Maruthi
Zen AP 21 P 7676 belongs to plaintiff No.1 was totally submerged in the flood water and that on a requisition, the qualified surveyor/loss assessor inspected the building of the plaintiffs and given his report
dated 15-10-2009 assessing the loss/damages caused to the building of
plaintiffs and that the copy of the said report is filed herewith and that as per the said report, the total loss caused to the building of plaintiffs is
Rs.4,60,000/- and that as stated above the car of the plaintiff No.1 was damaged in the floods, and when the car was given for repairs, in M.S.A.
Motors, Kurnool, they charged Rs.1,64,035/- for repairs, and out of that the insurer of the car has paid only Rs.97,495/- and the balance amount of Rs.66,540/- was paid by plaintiff No.1 to the M.S.A. Motors, Kurnool, on 10-01-2010 and that the said copy of the Job card retail cash memo
dated 10-01-2010 given to the plaintiff No.1 by M.S.A. Motors, Kurnool
to the said effect is filed herewith are all false and these are created only for the purpose of this suit.
13.It is submitted that the allegations in para No.3 of the plaint that stating the said fact and claiming damages of Rs.5,26,540/- the plaintiffs got issued legal notices to the defendants by complying section 80 of CPC notice and thought it was served on the defendants they did not respond in any manner and even no reply was given for the same are not true and correct. It is true the defendant No.2 paid Rs.8,000/- to the owners of the damaged buildings including to the plaintiffs immediately after the floods to meet their immediate necessities.
14.It is submitted that the Kurnool District, falls under scarce rainfall zone (VI) with a rainfall of 500 MMS to 750 MMS. The normal rainfall of the District is 670 MMS. Out of which nearly 68% (450 mms) is being received from south-west monsoon and 22% (149 mms) will be received during North-East monsoon period. Huge floods occurred to
Tungabhadra, Hundri, Vakkeravagu and Suddavagu from 1st October, 2009 onwards due to heavy rains in catchment areas and combined flow of these rivers and also heavy rains in Karnataka State the Tungabhadra dam over flood as well as the Almatti dam and Narayanapur dam gates were completely opened, which are situated on Krishna river. For that the Jurala project gates were also opened due to heavy floods on upper dams for that the back water from Srisailam Dam resulted in flooding of 195 villages and Kurnool city where water reached upto 20 feet in some low lying areas adjacent to the river banks. Out of 195 villages, 58 villages were submerged and 137 villages marooned. In the said villages and Kurnool town 72,833 houses were fully damaged, 74,655 houses were severely damaged and 63,300/- houses were inundated. As per the norms of the Government a relief of Rs.8,000/- for fully damaged houses (owner and occupant), Rs.7,000/- for severely damaged house (owner and occupant), Rs.5,000/- for fully damaged houses (only owner),
Rs.4,000/- for severely damaged houses (only owner) and Rs.2,000/- for petty shops were distributed. The essential commodities i.e. Rice @ 20 kgs., Kerosene Oil 5 lts. have been supplied to the each affected family on free of cost for 2 months in addition to supply of 2 lts. Palm oil and 1 kg sugar for each family for one month. N.G.O’s have also taken part in distribution of utensils, clothes and essential commodities. Thus, from all corners necessary relief was provided to the victims.
15.It is submitted on 30-09-2009 the Government has alerted on floods to Tungabhadra river for taking precautionary measures. The 1st defendant alerted all the Revenue Divisional Officers, Tahsildars, police, irrigation, RWS, Fire Department and other connected departments immediately by way of fax/telephone and instructions were given to all the village functionaries to stay in the head quarters to alert the people. On 01-10-2009 message was received by this defendant that
Tungabhadra at Mantralayam is likely to cross previous record by mid concerned authorities. On 01-10-2009 at 5-45 p.m. the 1st defendant received fax message from C.W.C. informing 5.00 lakh cusecs of water would be discharged from Manthralayam in between 6-00 A.M. to 9.00
A.M. on 02-10-2009. Immediately the 1st defendant forwarded the said message to all the concerned departments for making necessary action.
The irrigation department officials monitored the situation around the clock on 01-10-2009. On 02-10-2009 the T.B.Dam authorities released 1,90,000 cusecs of water, on 02-10-2009 the Tungabhadra river level increased hour by hour i.e. 6,67,620 cusecs at 6-00 A.M. and 7,14,000/- cusecs at 9-00 A.M. As the inflows increased in huge quantities and crossed 9,00,000 cusecs after 9-00 A.M. on 02-10-2009. The control room at gauge points collapsed as such after 9-30 A.M. the inflows were not measurable. Heavy rain fall more than 22 cms in and around
Yemmiganur and Adoni areas caused for severe in flows. Hagari river in flows also added to the heavy rains occurred heavy damages to the 130 year old Sunkesula barrage and K.C.Canal. As stated supra the above incidents caused heavy floods and inundation of so many areas in the
District particularly in Kurnool City. Due to heavy rain fall in catchments and surrounding areas of Kurnool city, the Hundri river over flowed in Kurnool city. Immediately this defendant under took rescue operations to save the lives of the people who were on the top of their houses, with the help of Army, Navy, Air Force, NDRF and other departments. Seven helicopters and 448 boat were pressed into service to save the flood affected people around the District. As there was timely action by the 1st defendant the deaths and loss of property were minimized. The Government have prepared 2,70,000 food packets and 4,00,000 were packets were dropped by air using seven helicopters. The authorities entrusted enumeration team with the work of assessing the loss of property of the flood victims, did not bring about the loss occurred to the plaintiffs.
16.It is submitted that the level of the Srisailam Reservoir at 6.00 A.M. on 02-10-2009 was 881.10 ft. At this level the capacity of the reservoir was 241.4550 TMC against full reservoir level of 885.00 ft. with capacity of 263.6345 TMC. There was heavy flood in the river
Tungabhadra that lead to the inundation of the Kurnool town. The elevation of the Kurnool is higher than the full reservoir level and maximum water level of 885.00 ft. and 892 ft. respectively of the
Srisailam dam. The Srisailam reservoir level was brought down to a level of 881.10 ft at 6.00 A.M. on 02-10-2009 from a level of 884.40 ft. at 6.00
A.M. on 30-09-2009 by letting out the excess flood water by operation of the R.C. gates of Srisailam Dam for 7.00 P.M. on 30-09-2009 onwards.
Hence the Srisailam Reservoir back water has no relation with the inundation of the plaintiffs property.
17.It is further submitted that the construction of the Srisailam dam was completed in the year 1984 and from then onwards the R.C.
gates of the dam were being operated as and when necessity as per the guidelines of the CWC, Government of India, duly following the instructions of higher officials of the department from time to time. The
Chief Engineer along with other concerned officials of the project camped at the project site and constantly monitored the operation of the R.C.
gates as per the directions of the higher officials at Government level.
Hence the question of dereliction of the duties does not arise.
18. It is submitted that the CWC had not communicated the flood message in respect of Mantralayam to the Srisailam Project authorities. Hence the I & CAD Department officials of Srisailam Project are in no way concerned with the levels of river Tungabhadra at
Mantralayam.
19.It is submitted that the CWC, Lower Tungabhadra Division,
Kurnool, authorities had communicated the forecast No.66, dated 30-09- 2009 in respect of the inflows into the Srisailam Reservoir only. There is no mention about the Tungabhadra river levels at Mantralayam. The forecast statements showing the details of the flood warnings issued by the CWC date wise for the periods from 23-09-2009 to 30-09-2009 together with the inflows are well as outflows with corresponding levels/capacities of the N.S.R.S. Srisailam Project reservoir.
20.It is submitted that as per the CWC flood forecast No.66
dated 30-09-2009, there will be an inflow of 1,05,960/- cusecs (probable)
1,16,556 (peak) from 18.00 hrs. on 30-09-2009 to 06.00 hrs. on 01-10- 2009 and the trend was increasing. The water level in the Srisailam
Reservoir was at 884.40 ft. (capacity 260.3097 TMC) at 6.00 A.M. on 30- 09-2009 against the FRL of 885.00 ft. (Capacity 263.6345 TMC) and the inflows (instant from upstream reservoirs/dams) into the Srisailam
Reservoir are 1,56,392 cusecs at 3.00 P.M. on 30-09-2009 as per the information obtained from upstream dams/reservoirs namely
Priyadarshini Jurala Project and Sunkesula Barrages over phone.
Keeping in view these inflows as well as the said forecast of CWC, the gates of the Srisailam Dam were opened at 7.00 P.M. on 30-09-2009 and discharged a quantum of 1,82,094 cusecs i.e. through Spillway 1,11,384 cusecs, Power Houses (both RF & LF) 64,210 cusecs, and Potireddypadu
Head Regulator 6,500 cusecs i.e. to say that the outflows from Srisailam
Reservoir are more than the inflows i.e. 1,56,392 cusecs. Hence the contention of the plaintiffs in stating that the “outflows from the
Srisailam Reservoir are 70,701 cusecs (at 3.00 P.M. on 30-09-2009 only through the two power houses and Potireddypadu Head Regulator) which is not in commensurate with the inflows and with the result the inundation of Kurnool took place” is not correct.
21.It is submitted that the gates of the Srisailam Dam were opened at 7.00 P.M. on 30-09-2009 and discharged a quantum of 1,82,094 cusecs i.e. through Spillway 1,11,384 cusecs, Power Houses (both RF & LF) 64,210 cusecs, and Potireddypadu Head Regulator 6,500 cusecs as per the instructions of the higher officials of the department.
Hence the contention of the plaintiffs in stating that the 2nd defendant i.e.
Superintending Engineer Dam maintenance Circle, N.S.R.S., Srisailam
Project failed to regulate the water inflows and outflows particularly at
Srisailam Dam by lifting the gates by 30-09-2009 and thereby caused inundation of Kurnool town and other villages on 02-09-2009 is not correct.
22.It is submitted that the full reservoir level of the Srisailam
Dam is 885.00 ft. (capacity 263.6345 TMC) and the Maximum water level is 892.00 ft. The lands that get submersion under the Srisailam
Reservoir were already acquired by the Government of Andhra Pradesh by paying compensation etc. to the land loosers. At the FRL level of 885 ft. the question of submersion of Kurnool town does not arise.
23.It is also submitted that after completion of the Srisailam
Dam construction in the year 1984, so far the Srisailam Reservoir attained the full reservoir level of 885.00 ft. for 15 times during the span of two and half decades from 1984 to 2009. But not even a single time the submergence of Kurnool town occurred due to non-operation of the
Dam gates when the reservoir was at FRL during flood seasons. If at all any submergence of Kurnool town occurs, the same may be due to some other reasons which are beyond the control of the officers of the
Irrigation Department at Srisailam Project, but not due to non operation of the Dam gates at Srisailam to let out the flood waters. The operation of the gates of the Srisailam Dam largely depends upon the inflows/outflows into the Srisailam Reservoir from upstream reservoirs as well as Central Water Commission forecast bulletins issued from time to time.
24.It is submitted that as per the CWC flood forecast message
No.66 dated 30.09.2009 at 10.32 hours the inflows into the Srisaialm reservoir are assessed to be as 1,05,960 cusecs (probable) and peak 1,16,556 cusecs (peak) from 18.00 hours on 30-09-2009 to 6.00 hours on 01-10-2009 and trend is increasing. At this point of time, the
Srisailam reservoir level at 6.00 A.M. on 30-09-2009 is 884./40 ft. only against the full reservoir level of 885 ft. and the gates of the Srisailam
Dam were opened at 7.00 P.M. on 30-09-2009 and discharged a quantum of 1,82,094 cusecs i.e. through Spillway 1,11,384 cusecs,
Power Houses (both RF & LF) 64,210 cusecs, and Potireddypadu Head
Regulator 6,500 cusecs i.e. to say that the outflows from Srisaialm reservoir are more than the inflows i.e. 1,56,392 cusecs. Hence the contention of the plaintiffs in stating that “the said information is wrong” and “the defendants did not ensure to release the water at least with in commensurate with the inflow” is not correct. In fact the discharge is more than the CWC forecasted inflow (flood warning message into the
Srisailam reservoir).
25.It is submitted that it is not out of place to mention here that the Government of Andhra Pradesh constituted Dam Safety Review Panel for N.S.R.S. Srisailam Project headed by Sri M.Venkat Rao, Chief
Engineer (Retied) as Chairman, vide G.O.Ms.No.119, dated 10-06-2008 and this committee inspected the Srisailam Dam on 02-11-2009 to examine the post flood dam status due to the floods occurred in
September/October, 2009. The committee in its report opined under sub heading reservoir operation “that the occurrence of the flood of such high intensity recorded as 25,50,000/- cusecs at the dam site was without the precedent (as per the records maintained at Dam). The sudden surge in the inflows was as a result of record rainfall in the un-intercepted catchment area downstream of Tungabhadra dam and Jurala projects but upstream of the Srisailam dam. As the run off on account of the heavy rainfall was in the area not covered by the CWC’s gauging stations, the magnitude of the inflows received at the Srisailm dam could not be anticipated well in advance. As a result, pre depletion of the Srisailam reservoir was not possible to such an extent that the upstream water levels could be limited to the designed level of +892.0 ft. However, it is seen that the reservoir level was brought down from +884.90 ft. at 19.00 hours on 30-09-2009 to a level of +880.60 ft. by 23.00 hours on 01.10.2009 depleting to an extent of 27.289 TMC”.
26.It is submitted that from 30-10-2009 onwards on received the warning entire government machinery including police, Revenue
Irrigation, RWS, FIR, Medical & Health, etc. were alerted by the quickest possible communication. On 30-09-2009 itself the instructions were given by the 1st defendant to all the village functionaries to stay at head quarters and to alert the people. About 500 boats were procured and placed at various places at Kurnool and Nandyal. On 1st and 2nd
October, 2009 arrangements were made to announce through police mobile teams, etc. and mounted autos to alert people and evacuate them.
450 men, 106 boats of N.D.R.F. were engaged at Kurnool for rescue operations. All these steps were taken by the 1st defendant in advance to prevent the situation from the worst condition. The A.P.S.R.T.C. buses were pressed into service to deploy the flood affected people to safer places. As stated supra this defendant took all precautionary measures to save lives and property of the people.
27.There is no cause of action to file the alleged suit and the alleged cause of action is not true and correct. The suit is bad for non- joinder of necessary parties and liable to be dismissed. Though there is no notice under Sec.80 CPC was served on the defendants which is mandatory. The suit is not valued properly and the particulars of claims mentioned in the plaint is not true and correct. The 1st defendant is deleted as per the orders made in IA.No.100/2011, dated 08-06-2011 by this Hon’ble Court. It is therefore prayed that the Hon’ble Court may be pleased to dismiss the suit with exemplary costs, in the interests of justice.
28.On the strength of the above pleadings the following issues are framed for settlement of trial.
1) Whether there was any negligence on the part of the officials of the defendants in taking precautions on 02.10.2009 before flood ?
2) Whether the plaintiffs are entitled for suit claim as prayed for in the plaint ?
3) To what relief ?
29.The trial Court has framed the following single issue to support the case of the both parties and it is relevant to resolve the lis in between the both parties :
1) Whether the gross negligence is not maintaining particular level of water in the Srisailam dam by the defendants that has resulted in damage to the properties of the plaintiffs in this case and the plaintiffs in OS.No.593 of 2012 causing loss of livelihood could be said to be an Act of God ?
30.1st plaintiff C.Nagendra Nath in OS.No.527 of 2010 examined as PW.1. 1st plaintiff M.L.Srinivasa Reddy in OS.No.593 of 2012 is examined as PW.2. Plaintiffs are also examined PW.3 K.Vijaya Sudhakar who is a Civil Engineer and qualified Municipal Licensed Engineer and who inspected building of the plaintiff and prepared estimated damages caused to the plaintiff building and Ex.A29 got marked in his evidence.
Plaintiffs are also examined PW.4 S.Md.Haneef who is a practicing
Advocate, Kurnool. PW.4 stated in his affidavit that on 02.10.2009 the
Kurnool town was inundated in floods and the entire old town of Kurnool from Prakash Nagar to Jammichettu, Osmania college i.e. in between the rivers of Hundri and Tungabhadra was submerged in flood water. His house was also submerged in the floods. He also stated that most of the
Advocates houses which are located in between the rivers of
Tungabhadra and Hundri and on the other side of these two rivers suffered huge loss because of the floods. He visited the house-cum-office of the plaintiffs and estimated the loss at approximately for
Rs.6,00,000/-. The plaintiff also examined PW.5 G.Nagaraju who is book seller of Law books and journals and stated in his chief affidavit that he used to supply the Law journals like APLJ, ALD Law books both Civil and Criminal to PW.1. The value of the library of the PW.1 of
Rs.6,00,000/- on the date of the tragic incident.
31. On the other hand, one T.V.Ramesh Babu, the then
Tahsildar, Kurnool examined as DW.1. DW.1 filed his chief affidavit in lieu of his chief examination and reiterated contents of written statement. Ex.B1 is authorization letter given by the District Collector,
Kurnool dated 31.05.2008 alone got marked in his evidence.
32.On the basis of oral and documentary of evidence on record, the trial Court answered the point No.1 negative to the case of the plaintiff and the trial Court came to the conclusion that there was no negligence on the part of the defendants and the damage was caused only due to Act of God and no one is responsible for the damages of the house hold articles of the plaintiff. Eventually, both the suits were dismissed without costs.
33.Feeling aggrieved, unsuccessful plaintiffs in OS.No.593 of 2012 has preferred the appeal against the common judgment and decreed
dated 23.08.2018 passed by the Principal Senior Civil Judge, Kurnool.
34.The appellants raised the following grounds in the grounds of appeal.
The trial Court failed to see that as per the evidence of PW.1
and PW.2 coupled with the documents marked on behalf of the
plaintiffs (in OS.No.527 of 2010 on the file of the Principal Senior
Civil Judge, Kurnool with which this is clubbed) due to sole
negligence of defendant/Government concerned authorities only,
the flood water caused due to heavy water released from the dams,
as the upper dam gates of Sunkesula and Tungabhadra were not
lifted within the same time the Srisailam Low Level Dam gates
were not lifted and so, its back water also contributed along with
flood water for inundation of Kurnool city including plaintiffs
house and due to that only, entire Kurnool city was inundated
which is not the Act of God at all. But, due to sole negligence of
respondent concerned authorities.
The trial Court failed to see that as the respondent has
constructed the dams, respondent/Government is expected to
monitor the flow of water from the dams promptly and strictly in
anticipation of rain fall and flow of water which could have done
by the concerned officials easily. So, for not doing so, amounts to
gross negligence of defendant only.
The trial Court erred in dismissing the suit by coming
to the conclusion that, “It is a Act of God” though the evidence
clearly shows that it is not a “Act of God” but due to negligence of
the respondent/Government concerned only.
The trial Court failed to see that, an event which is
beyond the control of any human agency and such acts happens
exclusively due to natural reasons and can’t be prevented even
while exercising caution and foresight only called as Act of God
and the facts of the case in hand does not disclose that it will
come within the purview of said principal. But, it was occurred
due to sole negligence of defendant concerned only.
The trial Court failed to see that, unless heavy water was
released at a time from the upper dam (Sunkesula Dam) and
simultaneously proportionate water was not released from the
lower dam (Srisailam Dam), water would not have entered and
inundated the Kurnool city due to rain fall water only. So,
applying the principle of res ipsa loquitur, the trial Court ought to
have decreed the suit by giving a finding that the damage caused
to the property of the plaintiffs due to negligence of the defendant
only.
The trial failed to consider the principle laid down in
the rulings cited by the plaintiffs without giving any reason for not
applying the said rulings to the facts of the case, though the
rulings clearly applies to the facts of the case in hand.
The trial Court failed to see that the defendant have
not discharged their burden by examining the concerned officials
to show that they have taken necessary precaution and measures
to monitor the flow of water from the dams and that there was no
negligence on their part for causing the damage to the property of
the plaintiff.
The trial Court erred in coming to the conclusion, the
principle laid down in Rylands Vs.Fletcher are not applicable to
the facts of the case in hand though it applies squarely to the facts
of this case.
35.In view of the urged grounds, the appellant prayed the Court to allow the appeal by setting aside the Common Judgment and Decree
dated 23.08.2018 passed by the Principal Senior Civil Judge, Kurnool.
36.I have heard arguments of learned counsel for the appellants and learned Assistant Government Pleader for the respondent.
37.Upon considering the contention of the both counsels the following points arises for consideration of the appeal.
1. Whether any gross negligence upon the Government officials for causing the damage to the properties of the plaintiffs in
OS.593/2012 as on 2.10.2009 at Kurnool ?
2. Whether the judgment of the trial Court needs any interference ?
38.INRE POINT No.1 :
It is not a dispute that there was a heavy rain on 02.10.2009 at Kurnool town and in view of the heavy rains the flood water entered into the houses of the plaintiff, District Court building and other advocate houses and general public in Kurnool. It is also not a dispute that several persons at Kurnool faced difficulties and there was a damage to the house hold articles of the several persons at Kurnool due to the floods.
39.Learned counsel for the appellant strenuously contended that the concerned Government officials not lifted the gates of Sunkesula and Tungabhadra as a result of which, the damage caused to the public.
The counsel further contended that due to the negligence of the
Government officials only the damage caused to the plaintiff, but it is not
Act of God. The Government Officials are expected to monitor the flow of water from the dams promptly and strictly in anticipation of rain fall and flow of water which could have done by the concerned officials only, The trial Court erroneously dismissed the suit on the ground that the incident taken place on Act of God. The trial Court failed to observed that the heavy water released from time to time from the upper dam i.e.
Sunkesula dam and simultaneously the water is not released from lower dam i.e., Srisailam dam and if the authorities exercised duties the water would not enter into Kurnool city and the trial Court failed to consider the evidence on record in prospective manner and dismissed the suit.
40.Per contra, learned Government pleader would contended that the trial Court has consider the evidence on record meticulously and observed that there is no negligence on the part of the defendants for damage of the plaintiffs articles and car and it is purely the Act of God.
The Government pleader supported the observations of the trial Court.
41.During the trial, Exs.A1 to A28 documents marked in the evidence of PW.1. Exs.A29 to 34 documents got marked in the evidence of PW.2.
42.At the time of arguments, the contentions of the appellant
Counsel is that as per Ex.A16, A17 and A18 documents clearly go to show that there was a heavy rainfall warning and flood warning received by the District Collector and Superintendent of Police, Kurnool and if the
Government officials take the responsibility and reasonable care by keeping the level of the water in Srisailam dam, the damage would not have been taken place. The damage caused only due to the negligence on the part of the defendants and as such, the plaintiff is entitled to claim the damages as prayed for in the suit.
43.At this juncture, it is relevant to refer the admissions made by PW.2 in his cross examination.
“It is true the rivers Krishna, Tungabhadra and Hundri were
passing through Kurnool District. Tungabhadra is flows from
Karnataka to Kurnool as its first entry in A.P. Krishna rivern is
flows from Maharastra, karnataka to united Andhra Pradesh.
There are dams on Krishna River Almatti, Narayanapur and Jurala
and Srisailam. There are dams on Tungabhadra river at Hospet
and Sunkesula. Tungabhadra river and Hundri river will join at
Joharapuram. Tungabhadra will merge at Sangameswaram with
Krishna river and 5 other rivers. There is project at Gajuladinne
at Hundri river. The source of water in the above referred rivers is
a rain. The distance between my house and to Hundri river is
about 250 to 300 yards. I have no idea about the distance between
my house and Joharapuram village where Tungabhadra and
Hundri combines. It is true my house is in low level to the main
road at Mourya-Inn. It is true that on 02.10.2009 the Sunkesula
dam crust gates were broken and side walls were also gave a
breach. The witness added because of storage of water beyond its
capacity. The capacity of the dam is 1.5 TMC. I have no idea what
was the water released from Tungabhadra in TMCs. I have no idea
about the heavy rains on 30.09.2009 to 02.10.2009, but there are
heavy rains in Kurnool District and neighbouring Karnataka
(Thugabhadra catchment area). There were heavy rains in the
catchment area of Hundri and I do not know the heavy rainfall of
Krishna river catchment area.”
44.The evidence of PW.2 it is very clear that there was a heavy rainfall between 30.09.2009 02.10.2009. It is also admitted that there was a warning in the news channel that floods will be from Hundri river.
Admittedly, the house of the plaintiff is low level to the main road at
Mourya-Inn. The main contention of plaintiffs’ Counsel that there was warning from Central Water Commission, the Andhra Pradesh
Government has not any precautionary steps to avoid floods and particularly the Government has not lifted the doors of the dam to release the water from dam and the said fact was denied by the defendants in the written statement as well as DW.1 evidence. DW.1 evidence shows that due to the heavy rainfall, the authorities could not control the rain water and the Kurnool town. The evidence of PW.2 further clear that he has not obtained any information from
Tungabhadra dam or Almatty dam with regard to outflow. PW.2 clearly admitted in his evidence that the warning of heavy rain as displayed in the TV noted by him. The plaintiffs have not taken any a precautions to prevent the car due to the heavy rain. The trial Court rightly applied the rule of strict liability as laid down in the case of RYLANDS –Vs-
FLETCHER. There is no tenable point the cross examination of DW.1 to establish the fact that there is a negligence on the part of the government official for causing of the damage to the plaintiffs house hold articles and car. Having carefully gone through the entire evidence on record, without any hesitation, I hold that there was no negligence on the part of the Government officials on the date of tragic incident i.e. on 02.10.2009 and no one can prevent and protect the heavy rainfall and floods at
Kurnool town on that day. The damage caused only due to Act of God.
Thus, the point is answered negative to the case of the plaintiffs.
45. INRE POINT No.2 :
In view of the answers in point No.1, I hold that the
Judgment of the trial Court brooks no interference. Accordingly, point is answered.
In the result, appeal is dismissed by confirming the common judgment and decree in OS.No.527 of 2010 and OS.No.593 of 2012,
dated 23.08.2018, passed by the Principal Senior Civil Judge, Kurnool.
In the circumstances of the case, each party shall bear their own costs.
Typed to my dictation by the Typist on computer device directly, corrected and pronounced by me in open Court, this the 28 th day of December, 2022.
PRINCIPAL DISTRICT JUDGE,
KURNOOL.
APPENDIX OF EVIDENCE
-NIL-
PRINCIPAL DISTRICT JUDGE,
KURNOOL.
Copy to The Principal Senior Civil Judge, Kurnool.