JUDGMENT
G.B. Patnaik, J.
1. Petitioner No. 1 is the widowed mother and petitioner Nos. 2 and 3 are the brother and sister of the deceased. They have approached this court praying that they may be paid compensation to the tune of Rs. 1,00,000/- on the ground that deceased Niranjan Sethi was working under a private transport firm and was earning Rs. 600/- per month and on the date of occurrence, while he was standing near the O.M.P. Crossing waiting for a bus to go to Paradeep, a branch of a nearby banian tree fell down and hit the head of the said Niranjan as a result of which he sustained bleeding injury. He was removed to the S.C.B. Medical College Hospital and in the hospital he died. It has been alleged that the tree in question was in a dangerous condition and the opposite parties had not taken reasonable care and had not given any warning to the pedestrians or any passengers waiting for the bus near the tree in question and by allowing such worn-out dangerous tree to be there on the road, opposite parties are liable to pay compensation since the deceased while standing underneath the tree sustained the injury and ultimately succumbed to the same.
2. Opposite party Nos. 1 and 2 have filed a counter-affidavit taking the stand that on 27.9.1988 the tree had been sold to opposite party No. 3 and, therefore, opposite party Nos. 1 and 2 cannot be held liable for allowing the tree to be there on 28.9.1988, when the accident occurred.
By amendment to the writ application, the opposite party No. 3 who was not originally a party to the writ application was made a party, but no counter-affidavit has been filed on behalf of opposite party No. 3. Mr. Mohanty appearing for the opposite party No. 3 does not dispute the position that the tree had been sold to opposite party No. 3 on 27.9.1988.
3. The question that arises for consideration is whether the opposite party Nos. 1 and 2 who are the owners of the road as well as the trees standing thereon are absolved of their responsibility and liability in the facts and circumstances of the present case, merely by selling the tree to somebody else one day prior to the occurrence? The answer must be in the negative. Opposite party Nos. 1 and 2 being the owners of the road as well as the trees standing on the road are duty-bound to take such reasonable care as a reasonable man ought to take, so that any person either while going on the road or waiting underneath any tree standing on the road does not sustain any injury on account of falling of the branch from the tree in question. The liability of opposite party Nos. 1 and 2, in fact, cannot be questioned in view of the decision of the Supreme Court in the case of Kumari v. State of Tamil Nadu 1992 ACJ 283 (SC). A Bench of this court in the case of Padma Behari Lal v. Orissa State Electricity Board 1992 ACJ 554 (Orissa), had also held the State Electricity Board liable and awarded compensation against the Board when a cyclist driving on the public road in the night came in contact with a live hanging wire which had been detached from the electric pole and succumbed to the injury in question. In the premises, as aforesaid, we have no hesitation to come to the conclusion that opposite party Nos. 1 and 2 are liable to pay compensation to the widowed mother of the deceased. The mother was 40 years old on the date of death of the deceased. Taking into account the earning of the deceased as mentioned in the writ application and the age of the mother on the date of the accident, we think an amount of Rs. 35,000/- (thirty-five thousand) would be the reasonable compensation. We accordingly direct the opposite party Nos. 1 and 2 to pay the said amount of compensation to petitioner No. 1 within a period of eight weeks from today failing which the amount will carry interest at the rate of 18 per cent per annum from the date of the order till payment.
The writ application is accordingly allowed. There will be no further order as to costs.