Karnataka High Court
Smt P Lalithamma vs The Commissioner Bangalore City ... on 3 November, 2011
Equivalent citations: 2012 (1) AIR KAR R 839, (2012) 111 ALLINDCAS 737 (KAR), AIR 2012 (NOC) (SUPP) 651 (KAR.), (2012) 2 KANT LJ 696, (2012) 1 KCCR 232, (2013) 3 ACC 770, (2013) 3 ACJ 1456, (2012) 3 CURCC 225, AIR 2012 (NOC) (SUPP) 552 (KAR)
Bench: V.G.Sabhahit, S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT BANGALORE 7 DATED THIS THE 382 DAY OF NOVEMBER 301 . PRESENT THE HON'BLE MR. JUSTICE, V..G. SABHAHIT AND WRIT APPEAL Ne Le 22 ¢ OF 2006 (LB-RE S) BETWEEN Ll. SMT. PB. LAL ITHAMMA, es W /O. LATE VENKATA SUBB/ MIAH Ro. AGED AB OU r 58 YE: ARS, , : 2. SMT. P. "otra" os, W/G. LATE Po SRIRAM, AGED ABOUT 30, YEARS, « 3. MASTER P. SRINIVAS KARTHIK, S/O. LATE P. SRIRAM, AGED ABOUT LOYEARS, | |. SRINIVAS, S/O. LATE P. SRIRAM, "AGED. ABOU [6 YEARS, APPELLANTS 3 & 4 SINCE MINORS, > ARE REPRESENTED BY THEIR -- NATU RAL GUARDIAN AND MOTHER SMT. PL SANVITHA, > THE SECOND APPELLANT ABOVE NAMED. JUDGMENT
This appeal is filed by the unsuccessful. writ.
petitioners in W.P. No.46526/03 being aguricved. by the. order dt. 15.12.2005, wherein the learned Single Judge of this Court has declined to grant the compensation of Rs.10 lakhs claimed by the petitioners as mother, wife and children of Sri P. Sriram and dismissed the Writ Petition.
2.2 "The appellants herein "are the mother, wife and children of P.. Sriram, Tt is the case of the petitioners 'that or. 10.2:2003 at about 7 p.m. Sri P.
- Sriraut and his collevigue Sri P.B. Rama Mohan Rao were. going irom East to West direction on 227° Cross, Ore Bloc K Jayanagar. bangalore on their scooter bearing , "No. AP R 6074. At that time the termite infected fully os Brown "up silver oak tree Standing on the foot path of 224 eross suddenly fell on the said scooter due to which Sriram and the pillion rider sustained imiuries and Sriram died on the way to hospital. Complaint has. been lodged by the Doctor whose clinic is: near a 1e Sp sot ;
of accident. The falling of the trees attributable to the regligence on the part of the Cc ofporation im not: DTOE erly maintaining the trees. and | wherefore ne setitioners sought for compensation' of R61 10. 'i iakkhs from the respondent -- Corporation avertirig that S riram was aged about 36 yéars.at : the time' of accident and his death, first petiticner is th é mother, 'gecond petitioner is wife aged 27 years and children of Sriram aged 7 and years respectively and thiéy have lost sole bread earner "of . the family. " Wherefo re, they may be awarded compensation:. it was contended by the learned counsel | appearing for the © petitioners that it is the statutory auty | na the pail of the Corporation to protect and maintain "tree "No statement of objections was fled by the 'respondent in the Writ Petition. However, it was ae se ae contended during the arguments that the tree didnot fall due to termite infection and it was a pure case. ob, .
accident and disputed question offact cannot be gone.
into in the Writ Petition. Learned Single Judge held that it is a pure disputed question of fact which cannot be gone into in the Writ Petition aind relied. upon the decision of the Hon'ble Su preric Court im the case of CHAIRMAN, GRID. CORPORATION, OF. ORISSA LTD. (GRIDCO) ve. omy | SUKAMANI DAS Ri ANOTHER reported in AIR 1 999.80 3 412 aind-distnissed the Writ Petition as riot maintainable. Rei ag aggrieved by the said order of dismissal dt: 15.12.2005 this appeal is filed by the unsuccessful writ petitioners.
3. o. We have heard the learned counsel ", appearing for the appellants and the learned counsel ' appearing for the respondent and serulinised the
-ayaterial on record.
ES SSO 1 ony 4, The material on record would clearly show'.
the tact that P. Sriram was the. son ; of the "first ; petilioner, husband of the second petitioner and fattier of petitioner Nos. 3 and A, "was riding _the® scooter bearing No. APO R 6074 on ] 0:2.2008 ai about 7.00 P.M. near 22"° crass, 3p Block, Jayanagar. Bangalore and the tree which was standing on the foot path fell on the scooter and. the deceased Sriram sustained fatal injuries and on t he 'way. "to the hospital he died and since the petitioners were' dependant on the income of the deceased as 'Srirant was the only earning member in the family a nd the death was due to negligence on the part, : 7 the. Corporation im not protecting and maintaining fire tree. It is also averred that said tree "owas infected by termite. Ht is further averred that : Dr Suman Koushik of Amogha clinic near the spot of _ tne accident, fled the complaint and the same has been we registered in Crime No. 74 of 20083 for the oleae punishable under Sec. 338 & 304 (A) of IPC and under oe sec, 272 & 437 of Forest Act against the officials oF the respondent. In the complaint it is c jearly stat ed that the tree was infected and though re pres station was given mo steps have been take 7 by the Cor pol ation to remove the said tree and "te davon any untoward incident. The said averments made in tre Wril Petition are not controvertéd by filing siatement of objections by the Corporation. Even inthe Ww Ht Ap peal no effort has been made io file any counter to the appeal by seeking permission of 'the. Court since they had not filed "ebj ection' statement "before the learned Single Judge. Wherefore : "the. averment made in the Writ Petition remains uncontroverted and question of deciding : "cuindis sputed fact would not arise in this case as it is
- clea tat the fact that P. Sriram was riding the scooter trom east to west direction on 22°94 Cross, 3r¢ Block, .
Javanagar, Bangalore at 7.00 p.m. on 10.02.2008 and the tree which was standing on the foot path fell oi him: _ and he sustained grievous injuries. and die d on the way to the hospital, has not been controverted nor disputed: , in view of the same it is clear tHat the | fact' that respondent has been entrusted. with. the ébligation of protecting and maintail ni ng ihe trees and the averment made in the complain' would. also show that though representation had' been. given that the said tree was termite - infected, "no "steps : "Were taken by the Corporation. Wherefore, the above said uncontroverted facts would : speak. for itself and show thal there is "gh epligence on t he part of the Corporation in protecting nag the said tree and they were responsible for the u LuTLoWw ard accident prima facie as they did not _ discharge. their obligation.
5. In view of the above said facts, principles ef res ipso facto is_ attracted "as. the facts speak for. - themselves as the tree which has to be sinintained "by | | - the Corporation cannot fall on a 'rider of ine scooter 3 and . the fact that the tree has fallen 5 w ould: rset indicate that it has not been properly protected. and maintained. Therefore, onus would ; shift "the _Tespondent-
: Corporation @ and | Corpraton 3 shout show that ali care | : had been teken and. specially in 'this cake when it had : -
| "been brought i to the notice of the Corporation that the | : tree was termite infected and TO steps have been taken | "and in ine | "abecine nee. | ot any explanation by altiig : 2 statement of of objection by the respondent, it is clear that - oe "onus i is not discharged.
F urther, i te is. clear that the quantum ae S having regard to the above said admitted facts of the case, the decision of the Horn'ble Supreme Court 3 lied upon by the learned counsel. appearing : for" the. respondent in the case of SDO. GRID CORPORATION OF ORISSA LTD. AND ORS. TIM! UDU ORAL va isnot helpful to the present..case | = the said. aise the petitioner had approached the. Civil Court anid failed therein and ¢ hereafter. 'filed' W cit. Petition uo nder Article 226 of Constitution "of hidia and _ there was delay and latches for a period of teh years in preferring the Writ Petition after disposal 0 7 ihe Civil Suit and wherefore, in view of the Said inordinate delay it was held that the "petition was not maintainable. Wherefore, the finding of the earned Single Judge that there is disputed question oF fact in the presen yi case and no relief can be granted : te the petitioner is not at all justified and cannot be Sugtamed in view of the fact that Corporation is not justified in not filing statement of objection and a zi mS ca Sue B aia) ote NalTEs band averments made in the Writ Petition ee uncontroverted. Further, the question of caning _ compensation is pure question of fact which Ras to be decided by the competent Civil 1 Court or the: iets of th e evidence that shall be rec orded' be fore ie We » hold-that the claimant would not. be entitled to compensation of Rs.10 lakhs. However, it ¢ Gar: aot be held that they are rot entitled to any. compensation .in exercise of writ jurisdiction of thi Ss Court: . Having regard to the above said unecontroverted facts, , We pass 'the foll lowing:
"ORDER » Writ Petition is allowed. The respondent shall pay compensation of Rs.one lakh to the appellants and it is oper..to the appellants to approach the Civil Court if they ares not satisied with the said amount of © "com npe misalion awarded by this Court and if Civil Court 7 awards compensation. the amoumt awarded in this Writ within four months from today, failing whicte: "the - amount shall carry interest at 9% p.a. from | the da oF Writ Petition till the date of payment. 'it is made clear that if a Civil Suit is fled, qu ani bum of compensai ion be decided independently.in the~saiid suit wi out being influenced by any observaticns made in.this appeal.