Delhi High Court
East Delhi Municipal Corporation vs Sattar Sheikh & Ors on 22 February, 2013
Author: V.K. Jain
Bench: Chief Justice, V.K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 103/2013
EAST DELHI MUNICIPAL CORPORATION
..... Appellant
Through : Mr. Anshu J.Dhingra, Adv.
versus
SATTAR SHEIKH & ORS ..... Respondents
Through : Mr. V.C.Jha and Ms.Sonia Sharma,
Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V.K. JAIN
ORDER
% 22.02.2013 CM 3141/2013(exemption) Allowed, subject to all just exceptions.
The application stands disposed of.
CM 3142/2013(delay in filing the appeal) For the reasons stated in the application, the delay in filing the appeal is condoned.
The application stands disposed of.
CM 3143/2013(delay in re-filing the appeal) For the reasons stated in the application, the delay in re-filing the appeal is condoned.
LPA 103/2013 Page 1 of 10
The application stands disposed of.
LPA 103/2013 On 4th January, 2007, late Master Md. Asif entered the toilet block on Road No.7, D-Block, J.J.Cluster, New Seema Puri, which at that time was not in use, fell into a manhole which had not been covered and died. An FIR under Section 304A of IPC in this regard was registered by the Police. The aforesaid toilet block was under the management and control of the appellant MCD though, according to the appellant, it was not in use at the relevant time, the same having been handed over to it by an NGO, Sulabh International, in locked condition, in July, 2006. The parents of the unfortunate child filed a writ petition seeking compensation amounting to Rs.15 lakhs and certain other directions. The learned Single Judge while impugned order dated 10th April, 2012, directed payment of compensation amounting to Rs.6,97,623/- to the parents of child along with the interest on the said amount at the rate of 6% per annum with effect from 1 st August, 2007, when the writ petition was filed, till the date of payment.
2. It is not in dispute that the manhole in which the unfortunate child fell on 4th January, 2007 had been constructed provided in the toilet block which was under the management and control of the appellant - MCD. Even if the LPA 103/2013 Page 2 of 10 aforesaid toilet block was not in use, that would be of no consequence, once it is shown that the management, control and maintenance of the said toilet block was the responsibility of the appellant. Since the manhole in question was under the care and management of the appellant, the doctrine of res ipsa loquitur applies to the case as the cause of the incident is primarily within the knowledge of the appellant.
3. Similar issues came to be considered by us in LPA 1187/2007 titled as Delhi Development Authority versus Bhagwan & Ors., decided on 17th January, 2013 and LPA 60/2013 titled as North Delhi Municipal Corporation versus Rakesh & Others, decided on 1st February, 2013 and the following view taken by us is relevant for the purpose of the present appeal :-
"3....This maxim is stated as under in its classic form:-
"Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper case, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
With respect to the aforesaid maxim Supreme Court in LPA 103/2013 Page 3 of 10 Shyam Sunder and Ors. vs. The State of Rajasthan AIR 1974 SC 890 inter alia observed as under:-
"The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant....
The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway v. S. Wales Transport [1950]1 AER 392)....
The plaintiff merely proves a result, not any particular act or omission producing the result. If the result in the circumstances, in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability....
Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual LPA 103/2013 Page 4 of 10 that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts, 4th ed., p.260)."
In the case before Supreme Court, the engine of a truck caught fire on the way and the deceased, in order to prevent himself, jumped out of the truck and died. It was a driver of the defendant who was driving at that time. Holding the defendant liable to pay damages, Supreme Court held as under:-
"It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident. In these circumstances, we think that the maxim res ipsa loquitur is attracted."
4. Since the aforesaid toilet block was situated in a residential locality, which is bound to be inhabited by the children of tender age, the appellant could not have left the manhole in the said toilet block uncovered. If the manhole is left uncovered, there is always a possibility of a child of tender age falling in the open manhole. The appellant being the authority responsible for management, upkeep and maintenance of the toilet block LPA 103/2013 Page 5 of 10 including the manhole provided therein, should have anticipated that if the manhole is left uncovered, in a residential area, there was always a possibility of a child, who, on account is tender age is not in a position to care himself falling in the uncovered manhole, sustaining serious injuries and even losing his life on account of such injuries. We, therefore, find no merit in the contention that no negligence to the appellant can be attributed on account of the aforesaid manhole having been left uncovered.
5. As regards jurisdiction of a writ court, to award compensation in such matters, the following view taken by us in Bhagwan and others (supra) and Rakesh & Others, (supra) and is relevant:
2. It is by now settled legal proposition that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution can award compensation in a case of loss or damage on account of failure to perform a public duty. In Nila-
Bati Behera vs. State of Orissa 1993 Crl. Law Journal 2899, the Apex Court held that award of compensation in proceedings under Article 32 and Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights. In D.K.Basu vs. P.A. Narayan 1998 1 SCR 899 the Supreme Court awarded compensation amounting to Rs.2 lacs to the appellant for the death of his wife, who was returning by a local train from her office when she was criminally assaulted and robbed of her ornaments and wrist watch. When she pulled the alarm chain, the railway guard and the attendant did not stop the train. The wife of the appellant later succumbed to her injuries. The Apex Court, holding the railways guilty of breach of duty of taking LPA 103/2013 Page 6 of 10 reasonable care, awarded compensation to the appellant. In Darshan and Ors vs. UOI and Ors. 1999 (49) DRJ 655, a Division Bench of this court found dereliction of duty on the part of the respondents in leaving the manhole uncovered, which resulted in untimely death of a person on account of his falling in the manhole and awarded compensation on account of breach of public duty by the instrumentality of the State.
Therefore, in the case before us, if a dereliction of duty or negligence on the part of the appellant or its officials is found, grant of compensation in exercise of the writ jurisdiction cannot be faulted."
6. As regards quantum of compensation, the following view was taken by us in Bhagwan and others (supra) and Rakesh & Others, (supra):-
"10.........In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. (1995) 1 SCC 551, Supreme Court held that while fixing the amount of compensation payable to a victim of an accident, the damage have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate to concepts pecuniary damages may include expenses incurred by the claimant: (i) Medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on LPA 103/2013 Page 7 of 10 account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stressing life.
Similar view was taken in Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 where the court in respect of an accident which took place in the year 1989, awarded non-pecuniary damages amounting to Rs.50,000/-."
As observed by the Supreme Court in Lata Wadhwa (supra), in case of death of an infant, there may have been no pecuniary benefit derived by the appellant during the child's life time, but this will not necessarily bar the parents' claim and prospective loss provided that they establish a reasonable expectation of pecuniary benefit, if the child had lived.
The method of calculating compensation for pecuniary loss of dependency of the parents of the child necessarily entails examination of his potential earning capacity had he lived to adulthood. There is no formula prescribed for computing the income of an infant, in a case of this nature, for the purpose of assessing the loss of dependency to his parents. Undisputedly, as far as possible, the Court should try to apply a basis, which is objective, fair and rational, even for computing the likely income of a LPA 103/2013 Page 8 of 10 child, on his reaching adulthood. We also feel that in case of this nature, the capacity to pay compensation, also cannot be said to be an irrelevant consideration."
7. In the case before us, the learned Single Judge taking the base amount of Rs.50,000/-, which was the figure adopted by the Supreme Court in Lata Wadhwa , for awarding non-pecuniary damages, to a child, in an incident of the year 1989, arrived at an amount of Rs.1,71,933/- after adjustment on account of inflation between 1989 and 2007. The learned counsel for the appellant could not show to us that on adjustment as per costs inflation index, the amount of Rs.50,000/- in the year 1989 would not rise to Rs.1,71,933 /- in the year 2007. Therefore, no fault can be found with the amount of non-pecuniary awarded by the learned Single Judge.
As regards the pecuniary damages on account of loss of dependency, the learned Single Judge applied minimum wages as the criterion and arrived at a figure of Rs.5,25,690/-. As held by us in Rakesh & Others (supra), the application of minimum wages, which is an objective, fair and reasonable guidance, to determine the income a child would earn on his becoming an adult for the purpose of determining the non-pecuniary LPA 103/2013 Page 9 of 10 damages, cannot be said to be arbitrary or unreasonable. No better formula to assess the likely income of a child, in a case of this nature, has been brought to our notice. As far as the income specified in the Schedule to Motor Vehicles Act, 1988 is concerned, that does not statutorily apply in such a case. Moreover, the said Schedule came to be notified in the year 1994, whereas this incident took place in the year 2007, and there has been phenomenal increase in the cost of living, during these 13 years. We, therefore, see no reason to interfere with the formula adopted by the learned Single Judge in this case.
8. For the reasons stated hereinabove, we find no merit in the appeal and the same is hereby dismissed.
The appellant is given two weeks from today to pay the entire amount of compensation of Rs.6,97,623/- together with interest at the rate of 6% per annum from 1st August, 2007 when the petition was filed till the date of payment, as ordered by the learned Single Judge.
CHIEF JUSTICE V.K. JAIN, J FEBRUARY 22, 2013 'sn' LPA 103/2013 Page 10 of 10