Punjab-Haryana High Court
Ravinder Lal Chaudhri vs Municipal Corporation on 21 May, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.19861 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
*****
CWP No.19861 of 2011
DATE OF DECISION : 21.05.2013
Ravinder Lal Chaudhri ...Petitioner
Versus
Municipal Corporation, Chandigarh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present : Mr. Vinod Chaudhri, Advocate,
for the petitioner.
Mr. Sanjiv Ghai, Advocate,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The claim in this petition is for a direction to the Municipal Corporation, Chandigarh, to pay a sum of Rs.3 lacs as compensation for grievous injury and mental agony suffered by the petitioner on account of fall in an open gutter left uncovered by the U.T. Administration on a day of torrential rain.
The petitioner is a retired Deputy Inspector General from the Border Security Force and is a senior citizen settled in Chandigarh. On 23.08.2008, the petitioner accompanied by his wife went to the market of Sector-34, Chandigarh, and it was raining heavily at the time. On alighting from his car he had taken barely a few steps when he fell into an open gutter, which was covered with rain water with no manhole. In this accident, the petitioner pleads that he suffered a fracture of his leg. His wife, who was two steps behind, raised the alarm on which a crowd gathered. The petitioner was pulled out from the gutter in a semi-conscious state bleeding and bruised. He says that it was his in para-military force training that saved him otherwise a greater tragedy may have befallen.
The incident was reported in the media on the next day. The clippings CWP No.19861 of 2011 -2- of which are attached with the petition. For the negligence of the Corporation in not maintaining the gutter cover, the petitioner filed Complaint Case No.1097 of 2008 before the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh, which was decided on 03.02.2009. The complaint was allowed, a finding of negligence was fastened on the Municipal Corporation, Chandigarh in not providing manhole cover over the gutter which was found to be a source of danger to man. The opposite parties were directed to pay a sum of Rs.1 lac to the complainant within 30 days, failing which interest would run @ 12% per annum. Litigation cost of Rs.5,000/- was also awarded. Liberty was granted to the Municipal Corporation, Chandigarh, to recover the amount from the official/officials, whose duty it was to maintain the gutter in a proper way and which they had failed to maintain, but after fixing responsibility.
Against the order of the District Forum, an appeal was preferred before the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh. The respondent-Municipal Corporation argued in appeal on its objections that the complainant was not a consumer of services within the meaning described in the Consumer Protection Act, 1986. It was alleged that the Municipal Corporation, Chandigarh, performs obligatory functions under Section 44 of the Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994, regarding construction, maintenance and cleaning of drains and drainage works and public latrines, urinals and similar conveniences within its territory. Maintenance of the drainage and sewerage system is a statutory function discharged by the Municipal Corporation, Chandigarh rendered free of cost without consideration. There was no proof of payment of sewerage cess by the complainant. Payment of tax imposed by the Government for public purpose should not be accepted as consideration for providing services as there is no provision of payment of voluntary tax, cess etc. and, therefore, the consumer did not fall within the term "Consumer". It was alleged by the Municipal Corporation, Chandigarh, that this was a case of vis major on account of incessant rain falling for 4-5 days at a stretch resulting in accumulation of rain water on the road. It CWP No.19861 of 2011 -3- was also argued before the State Commission that loss was not quantified nor was a complaint made either before the Municipal Corporation, Chandigarh nor the matter was complained of on the criminal side. The State Commission relied upon various authorities including numerous decisions rendered in Lucknow Development Authority Vs. M.K.Gupta, III(1993) CPJ 7(SC) and the decision of the Supreme Court in Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009 (3) CPC 217 to reach the conclusion that the appeal of the Municipal Corporation, Chandigarh, deserves to be allowed and the complainant's cross appeal for enhancement of compensation deserves to be dismissed on the ground that the complainant could not be said to be a consumer qua the opposite parties. The State Commission though expressing sympathy with the complainant for the injuries suffered but at the same time felt bound by the provisions of the Act, which unfortunately do not cover such an accident for which remedy has been provided under the law of torts before the Civil Court. Consequently, the order of the District Forum was set aside in appeal vide order dated 05.04.2010. While dismissing the appeal, the State Commission allowed benefit of Section 14 of the Limitation Act, 1963 by excluding the period spent pursuing remedy before the Consumer Fora, which would not be counted towards the period of limitation for filing the case.
It is not disputed that the order of the State Commission in both the appeals has attained finality. The petitioner did not file further appeal before the National Commission at New Delhi. The complainant also did not file any civil suit as suggested by the State Commission.
In the above background, the present writ petition has been filed claiming compensation of Rs.3 lacs from the respondent Corporation.
On notice of motion being issued, the Municipal Corporation, Chandigarh, has filed a reply and has taken the several defenses it took before the Consumer Fora as broadly outlined above. It has been pointed out that matters involving negligence are best resolved before the Civil Court under the law of Torts CWP No.19861 of 2011 -4- on principles of tortious liability determined on the basis of evidence. It has also been pointed out that the instant petition was filed after 1 ½ years of the dismissal of the appeal. It is also pointed out that the petitioner did not file a First Information Report of the alleged incident or sought an entry in the DDR of the area police station. No evidence in the shape of medical record or any kind of independent eye witness account was placed on record before the Consumer Fora to prove the incident. Therefore, the case involved disputed questions of facts, which cannot be resolved in writ jurisdiction and the petitioner may be relegated to the Civil Court to avail his remedy under the Law of Torts on proof of negligence as suggested by the State Commission in its order. It is urged that the State Commission had stretched its jurisdiction in excluding the period spent before the Consumer Fora from the period of limitation prescribed for bringing suit. The liberty granted to prefer civil suit as suggested was not followed or availed of and this writ petition has been brought pressing general principles of law without any factual foundation. The incident itself is a seriously disputed question of fact incapable of resolution in summary writ proceedings.
Though this Court has no reason to disbelieve the story of the petitioner but at the same time while expressing sympathy it would remain helpless in the jurisdiction invoked under Article 226 of the Constitution without their being any fundamental building blocks to support the case for grant of damages by way of proof of injury, extent of it or loss suffered etc. by way of evidence established on record.
I have heard Mr. Vinod Chaudhri, learned counsel for the petitioner and Mr. Sanjiv Ghai, for the respondent Municipal Corporation, Chandigarh at length to understand the rival claims for delivering judgment in the case.
Mr. Chaudhri relies on a Division Bench decision of the Delhi High Court in Criminal Justice Society Vs. Union of India and others, 2012 ACJ, 342. In this case, a 77 year old man stepped out of his house to buy groceries and fell in a pit dug on the divider of a public road. The dead body was found on the following CWP No.19861 of 2011 -5- day. Death was caused due to asphyxia as determined in the autopsy report. The area where the accident occurred was dark because power supply had been turned off for installing street lights. The pit remained uncovered without barricades or any warning signboard. The Criminal Justice Society took up the cause of the widow of the deceased before the High Court for claiming compensation for her. The Court determined compensation payable at Rs.5 lacs. In that case there was an inquest. Criminal proceedings were registered under Section 304A IPC against the contractor. The Assistant Engineer (Electrical), found responsible for maintenance, was placed under suspension. There was sufficient evidence on record in that case to justify award of compensation in writ proceedings. However, in the present case there is lack of it.
Mr. Chaudhri has also relied upon another decision of the learned Single Judge of the Delhi High Court in Dheeru Vs. Government of NCT of Delhi and others, 2010 ACJ, 2593. In this case, compensation of Rs.10 lac plus cost of Rs.30,000/- was awarded by the learned Single Judge for head injury resulting in mental retardation of a boy, who suffered injury at the hands of the workers of a contractor found negligent in dismantling cement tanks and replacing them with plastic ones. The Court held that the Government department which owned the flats are vicariously liable for the acts of their contractor.
In the same strain, Mr. Chaudhri would rely on another Single Bench judgment in Chob Singh Vs. Government of NCT of Delhi and another, 2012 ACJ 2617, to invoke the principle of negligence through the doctrine of res ipsa loquitur. In this case, an 11 year old boy went along with his friend to deliver lunch to his uncle in a sewer pumping station, which was a prohibited area and the general public was not allowed to enter the precincts without permission. Since there was no guard, the boys slipped in into the danger zone. As one of the two boys, who had strayed out of the pumping room while waiting for his friend to deliver lunch to his uncle went out of curiosity and strayed on to a landing above the open sewer tank. There were strong CWP No.19861 of 2011 -6- noxious fumes rising from the tank below and on losing balance the boy accidentally fell into the tank full of sewage and died. His dead body had to be retrieved from the tank. The Court held that once the two boys entered into prohibited area without being stopped by the guard then there would be deemed permission of lawful entry into premises with a concomitant responsibility in the owner to ensure that the two boys did not loiter in dangerous premises. In the circumstances the Court awarded compensation of Rs.9 lacs and odd. In another Single Bench judgment of the Delhi High Court in Shakuntala Vs. Government of N.C.T. of Delhi and another, 210 ACJ, 1 the Court was concerned with a case of death caused by stray bulls fighting on a public street in Delhi. A fruit seller received cranio cerebral injury while being caught in a fight between two raging bulls resulting in his death. The Court held that the Delhi Municipal Corporation owes a duty of care and would remain vicariously liable if it allows cattle to enter public streets. The Court awarded Rs.10 lacs in damages and imposed costs of Rs.25,000/- in favour of the petitioner. In all these cases, there were sufficient evidence of proof of injury or death for the Court to award compensation in writ proceedings.
There can be no doubt that even in the presence of disputed questions of fact, the writ Court is not precluded from exercising jurisdiction in an appropriate case. The Municipal Corporation, Chandigarh, would remain under strict vicarious liability for its actions and inaction with respect to discharge of a statutory duty and performance of obligations yet there must be a certain minimal degree of proof or admission of incident to the police or municipal authorities or the Chandigarh Administration or non-denial or evasive rebuttal of disputed questions in pleadings by the opposite party itself, but when the complaint is bereft of the basic building blocks of verifiable facts as to the injury caused or the causal connection between the said legal responsibility and nature of injury suffered, then to the mind of this Court it would be safer and qualitatively better that such controverted facts are first left to be established through documentary and oral evidence led through witnesses tested by CWP No.19861 of 2011 -7- cross examination before the Civil Court. The quality of Civil Court determination based on evidence is far more wholesome than in affidavit writ jurisdiction.
In the absence of direct evidence on record, or admission of both the accident and injury at the spot claimed, it would neither be possible nor safe to agree with Mr. Chaudhri that compensation can be awarded in this case on account of injuries and mental trauma suffered by the petitioner when the incident itself has been denied by the Municipal Corporation, Chandigarh. Therefore, neither the application of the principles of strict liability flowing from statutory obligation to maintain manhole covers in good repair nor tortious liability can be fastened on the respondents at present, since the application of both the principles at least require some rudimentary evidence to be established on record.
In the aforesaid background there appears to be lack of merit in this writ petition and the same deserves to be dismissed. The case law cited is distinguishable on facts and therefore cannot be relied on to grant compensation in this case by any flight of imagination.
Ordered accordingly.
However, looking to the fact that the State Commission had excluded time spent pursuing wrong remedy before the Consumer Fora towards limitation for bringing suit, this Court on the prayer of the petitioner would give the same protection afforded by Section 14 of the Limitation Act, 1963 for the period spent prosecuting this writ petition with due diligence and the protection to my mind ought to be extended ex debito justitiae in the event a civil suit is brought by the petitioner before the competent civil court exercising jurisdiction. In case such an action is brought, the civil court would remain uninfluenced by anything said in this order and would proceed to decide the case on merits.
21.05.2013 (RAJIV NARAIN RAINA) adhikari JUDGE