Delhi District Court
Mr. Ram Kripal Yadav vs The Municipal Corporation Of Delhi on 19 April, 2022
IN THE COURT OF MS. MANJUSHA WADHWA,
ADDITIONAL DISTRICT JUDGE -2, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
CS No. 1803/16
CNR No.: DLSH01-002022-2016
1. Mr. Ram Kripal Yadav
S/o Sh. Ram Dhani Yadav
2. Smt. Neelam Yadav
W/o Sh. Ram Kripal Yadav
Both R/o L-32/40, Gali No. 40,
L-Block, Sadatpur Extension,
Pusta Area, Delhi-110094. .............Plaintiffs
Versus
1. The Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Delhi-110054.
2. The Public Works Department
Through its Secretary
Room No. 702, 7th Level, A-Wing,
Delhi Secretariat, New Delhi-110002. .........Defendants.
Date of Institution : 23.09.2011
Judgment reserved on : 11.04.2022
Judgment passed on : 19.04.2022
JUDGMENT
1. This is a suit for damages and compensation filed by the plaintiffs against the defendants.
CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 1/27
2. Succinctly put, facts of the case as per the plaint are that the plaintiffs are parents of Sh. Kaustubh Kumar Yadav (hereinafter referred to as the 'deceased') who died on 09.09.2010 as his motorcycle bearing registration no. DL 13S-F-5729 had fallen down due to deep hole on the fly over road in front of Shyam Lal College, Shahdara, Delhi. It is further averred that their son was having a valid driving license and insurance cover for his motorcycle. It is further averred that the Police were called on the spot after the accident and the Police had lodged accident information report no. 19110 as well as registered FIR no. 507 dated 09.09.2010 PS Shahdara. It is further averred that the Police had also recorded statement of eye witnesses from which it is inferred that the deceased was plying on his motorcycle from the side of Seema Puri towards ISBT, Shahdara through the Shahdara flyover and the motorcycle of the deceased had fallen down due to existence of hole (measuring 1.5 feet length, 1 feet breadth and 1 feet deep) on the road due to which the deceased had sustained severe injuries on his head, whereafter nearby shop keepers had helped the deceased to reach Guru Tegh Bahadur Hospital, where he was declared dead during treatment on the same day around 9.10 PM. It is further averred that on 09.09.2010, there was slight rain and holes were filled up with rain water, which caused the accident as the deceased was not able to see and avoid hole on the road.
3. The plaintiffs have further averred that the plaintiffs got sent a CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 2/27 legal notice dated 02.04.2011 under Section 80 of Code of Civil Procedure r/w Sections 450/477/478 of Municipal Corporation of Delhi Act, to the defendants for seeking compensation to the tune of Rs. 34.70 Lacs on account of untimely demise of their only son but the plaintiffs did not receive any response from the defendants. It is further averred that the plaintiffs had withdrawn MACT case no. 3 of 2011 on 08.07.2011, as the objections were raised regarding maintainability of said proceedings, with liberty to institute appropriate proceedings and accordingly, the present suit has been filed.
4. The plaintiffs have further averred that the defendants are legally under a duty towards general public to maintain the road in a good condition and in case of any damage to the road, it is duty of the defendants to keep the notice board to avoid any untoward incident. It is further averred that the defendants had neither cordoned off the portion of damaged road nor they had put any notice board, as a result of which, son of the plaintiffs met with an accident and lost his life.
5. The plaintiffs have further averred that they have lost their son due to negligent and casual approach of the defendants and thus, the defendants are liable to compensate the plaintiffs. The plaintiffs have claimed damages and compensation on account of death of their son as per details given in para 9 of the plaint as :-
a. Loss of income on account of death of CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 3/27 deceased (@ Rs. 8,000/- per month for next 20 years i.e. the life expectancy of plaintiffs) : Rs. 19,20,000/-
b. Loss on account of possibility of increase in income of the deceased for 20 years). : Rs. 10,00,000/-
C. Compensation on account of loss of companionship of the son. : Rs. 5,50,000/-
Total : Rs. 34,70,000/-
6. The plaintiffs have further averred that their son was intelligent having a very good academic qualification and thus he could have helped the plaintiffs, if he had not died in the accident. Hence, the plaintiffs have filed the present suit for recovery of an amount of Rs.
34,70,000/- along with pendente lite and future interest @ 18% per annum.
7. Written statement has been filed on behalf of MCD/defendant no.1 wherein the defendant no.1 has mainly taken a preliminary objection that the suit is barred under Section 477/478 of DMC Act, 1957 for want of service of statutory notice. On merits, it is averred that the deceased was riding a motorcycle at a very high speed, without obeying the traffic rules and has met with alleged accident due to his own negligence. It is further averred that during rainy season, it CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 4/27 is duty of the riders to take necessary precaution while driving as chances of accident on road increases. It is further averred that without prejudice to rights of the defendant to not pay any damages, the damages claimed by the plaintiffs are on higher side as the plaint is not supported with copy of relevant documents i.e. income certificate, appointment letter of the deceased as well income certificate of the family. The defendant no.1 has denied that there was any failure on its part to maintain the road in front of Shyam Lal College, Shahdara, Delhi in good condition. It is further denied that the deceased died due to any negligence on the part of concerned officials of the defendant no.1. It is further averred that during rain, hole may develop on the road over night or in a short period, and therefore, it is expected of the rider to take precaution during such period. The defendant no.1 has denied rest of averments of the plaint and prayed for dismissal of the present suit.
8. The plaintiffs have filed replication to the written statement of defendant no.1 wherein they have reiterated contents of the plaint as true and correct and denied contrary averments made in the written statement.
9. Vide order dated 16.09.2015, following issues were framed by Hon'ble High court of Delhi where the suit was then pending as :-
1. Whether the suit is barred by the provisions of CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 5/27 Sections 477/478 of DMC Act, 1957 ? OPD-1
2. Whether the suit is hit by Sections 41(h) and 41(i) of the Specific Relief Act ? OPD-1
3. Whether the accident occurring resulting into the death of Mr. Kaustubh Kumar Yadav (son of the plaintiffs) was caused on 9th September, 2010 due to the failures and negligence of the defendants to maintain the road in front of Shyam Lal College? OPP
4. Whether the plaintiffs are entitled for the damages and compensation as prayed for and if yes, against which defendant? OPP
5. Whether the plaintiffs are entitled for any interest and if yes, at what rate and since when? OPP
6. Relief.
10. In order to prove the case, the plaintiff no.1 has examined him- self as PW-1 and has relied upon the following documents as :-
1. Driving license of the deceased as Ex. PW1/1;
2. Copy of registration certificate of vehicle no. DL13 SF 5729 as Ex. PW1/2;
3. Copy of insurance policy as Mark A;
4. ACCI accident claim System AIR No. 19110 as Ex. PW1/4 (colly);
5. Legal Notice as Ex. PW1/5(colly);
CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 6/27
6. Testimonials/Certificates of the deceased as Ex. PW1/6 (colly);
7. Certified copy of the MACT record as Ex.
PW1/7(colly).
11. The plaintiffs have also examined Sh. Raj Kumar, eye witness as PW-2; Sh. Rakesh Kumar, another eye witness as PW-3; Sh. Sudesh Gandhi, Incharge MACT Court Record Room, KKD Courts as PW-4; Sh. Naresh Kumar, record Keeper, GTB Hospital as PW-5; Sh. Jiten- der Kapoor, Director of Medas Healthcare as PW-6; Retired SI Raj Kumar as PW-7 and ASI Sudhakar as PW-8.
12. On the other side, defendant no.1 has examined Sh A.K.Yadav, Assistant Engineer, North EDMC Shahdara as D1W1. It is relevant to note herein that right of the defendant no. 2 to file written statement was closed on 13.02.2013 by the Hon'ble High Court of Delhi, where the suit was then pending. Thereafter, vide order dated 29.08.2019 passed by Ld. Predecessor of this Court, affidavit of D2W1 Sh. Ro- htash Kumar was taken off the record.
13. During the course of admission/denial of documents, defendant no.2 has filed affidavit of admission/denial of documents whereby ad- mitting legal notice as Ex. P-1.
14. Heard and perused the record. The issuewise finding is given in CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 7/27 the succeeding paragraphs.
Issue no.1 Whether the suit is barred by the provisions of Sections 477/478 of DMC Act, 1957 ? OPD-1
15. Onus to prove issue no.1 was upon the defendant no.1. The defendant no.1 has stated in the written statement that the suit is barred under Section 477/478 of DMC Act, 1957 for want of service of statutory notice and as such suit is liable to be dismissed.
16. It is case of the plaintiffs that the plaintiffs had sent legal notice dated 02.04.2011 under Section 80 of CPC r/w Section 450/477/478 of DMC Act Ex. PW1/5 to the defendants through registered post for seeking compensation of Rs. 34.70 Lacs on account of untimely demise of their son.
17. Perusal of said legal notice Ex. PW1/5 shows that it had been sent to defendant no.1/MCD and defendant no.2/PWD. The defendant no.2 has also admitted the receipt of said legal notice during the course of admission/denial of documents as Ex. P-1. The legal notice is also accompanied with postal receipts and AD Card, which bears the postal stamp of defendant no.1. The said AD card duly proves that the defendant no.1 has been served with statutory notice. Pertinently, the defendant no.1 has not led any evidence to show that AD card does not bear its stamp. In view thereof, there is no merit in CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 8/27 the contention of defendant no.1 that suit filed by the plaintiffs is not maintainable for want of service of statutory notice. This issue is decided accordingly against defendant no.1 and in favour of the plaintiffs.
Issue no.2 Whether is suit is hit by Sections 41(h) and 41(i) of the Specific Relief Act ? OPD-1.
18. Onus to prove issue no.2 was on the defendant no.1. The defendant no.1 has taken a preliminary objection in the written statement that the plaintiffs have suppressed the material facts from the Court, and as such, they are not entitled to any relief, whatsoever, in view of Section 41(h) and 41(i) of the Specific Relief Act. Before proceeding further, it is necessary to peruse section 41(h) and (i) of the Specific Relief Act, which are reproduced hereinunder as :-
"41. Injunction when refused.- An injunction cannot be granted -
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;"
19. The defendant no.1 has not stated in the written statement CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 9/27 about the facts which were suppressed by the plaintiffs in the plaint. Simple bald averment in the written statement is not suffice in the eyes of law. The defendant no.1 has not mentioned about the proceedings, which could be invoked by the plaintiffs for claiming the relief prayed for in the present suit. The defendant no.1 has also not pleaded about the conduct of the plaintiffs so as to disentitle them to the assistance of the Court. In the absence of any pleadings to that effect, the defendant no.1 has failed to prove that suit is barred under Section 41(h) or 41(i) of the Specific Relief Act. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no.1.
Issue no.3 Whether the accident occurring resulting into the death of Mr. Kaustubh Kumar Yadav (son of the plaintiffs) was caused on 9th September, 2010 due to the failures and negligence of the defendants to maintain the road in front of Shyam Lal College? OPP
20. Onus to prove this issue was upon the plaintiffs. It was for the plaintiffs to prove that their son had met with an accident on 09.09.2010 due to negligence of the defendants in maintaining the road in front of Shyam Lal College.
21. Ld. Counsel for the plaintiffs submitted that the accident happened as the motorcycle of their son had fallen due to deep hole existing on the road, as a result of which, he sustained severe head CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 10/27 injuries and died on the same day in GTB Hospital. On the other side, Ld. Counsel for defendant no.1 submitted that son of the plaintiffs was driving his bike at a very high speed and without obeying the traffic rules, as such, he met with accident due to his own negligence. He submitted that the deceased was not wearing a helmet at the time of accident and was also not having valid driving license, which resulted into dismissal of claim petition before the MACT.
22. In order to determine the issue of negligence, it is relevant to peruse testimonies of witnesses, relevant portion of which is discussed hereinafter.
23. During cross-examination, PW-1 Sh. Ram Kripal Yadav testified that he was present at his house on the day of incident and his son was wearing helmet during the accident. He deposed that the Police had recovered a helmet from the site of accident. He could not recall whether the fact regarding recovery of helmet has been mentioned in the Police record/report. He testified that he has not filed any report regarding recovery of helmet from the place of incident. He denied the suggestion that he did not file any report because no helmet was recovered from the site of incident. He denied the suggestion that his son was not wearing any helmet at the time of accident. He admitted that he cannot tell about wearing of helmet by the deceased at the time of accident because he was not present there at the relevant time, nor he was accompanying him. He denied CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 11/27 knowledge whether Insurance Company had taken a plea that the offending vehicle was being plied at a high speed contrary to speed limit. He denied the suggestion that the accident had occurred due to high speed and slip of vehicle. He denied the suggestion that he is not aware about reason of accident as he was not present there at the relevant time. He denied the suggestion that he withdrew the MACT case as Insurance Company took a plea that there was violation of terms and conditions of Insurance Policy.
24. PW-1 further testified that IO had recorded statement of two shop keepers in his presence whose names, he does not remember. He further testified that on the day of accident, the offending vehicle was coming from the side of Shahdara to ISBT, whereas the IO has shown in the site plan that the offending vehicle was coming from ISBT to Shahdara. He admitted that IO had made a wrong site plan of the accident in MACT case. He admitted that no pit is shown in the site plan filed by him, which is Ex. PW1/D-1. He admitted that right direction has been shown in Ex. PW1/D-1. He denied the suggestion that he had withdrawn the MACT case because no pit/damage has been shown by the IO in the site plan Ex. PW1/D-1.
25. The plaintiffs have also examined Sh.Raj Kumar as PW-2, who deposed that on 09.09.2010, he was present in his shop situated at 863/4 GT Road, Shahdara, Delhi and at about 5.00 p.m., he saw that a bike make Passion coming from Shahdara flyover got stuck into a pit CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 12/27 in the middle of the road, consequent thereupon, the bike fell down and head of the bike rider struck on the road, resulting into oozing out of blood from his head. He further testified that public gathered at the spot, who informed the Police and the boy was taken to GTB Hospital. He further deposed that the Police thereafter came to his shop and recorded his statement Ex. PW2/A regarding the aforesaid incident. He testified that he has complained number of times to the MCD regarding pit on the road but they did not do anything in this regard. He testified that other accidents also occurred due to that pit on the road.
26. During cross-examination by Ld. Counsel for defendant no.2, PW-2 testified that he gave statement to the Police in the evening at about 6.00/6.30 p.m. He testified that he was on duty at the time of accident and came out of the shop immediately thereafter. He testified that no complaint in writing was made to MCD or to any other authority by him or by any person known to him regarding any pit/ hole on the road. He testified that he does not have any documentary proof regarding any accident prior to 09.09.2010. He denied the suggestion that he was not present at the spot at the time of incident or that his statement was recorded by the Police at the instance of plaintiff no.1.
27. During cross-examination by Ld. Counsel for defendant no.1, PW-2 deposed that he was doing work of salesmanship in the CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 13/27 shop at the time of accident. He testified that he was sitting at the counter of the shop at the time of accident and the said counter is at the gate of shop. He testified that there was no customer at the the time of accident. He testified that owner of the shop was also present at the shop but he did not give any statement to the Police regarding the accident. He volunteered that owner was inside the shop and owner was not in a position to see the accident. He testified that distance between place of accident and his shop is around 60-70 feet. He testified that he has not seen vehicle coming down from the flyover and had seen the vehicle when it fell down before the shop. He denied the suggestion that the place where the vehicle fell down was not in a visible range from his shop. He admitted that he has seen the injured after he fell down from his bike. He testified that when he saw the injured, the helmet was lying on the road. He denied knowledge whether the police officials seized any helmet from the spot or not. He testified that he gave statement to the police at his shop after about one hour of the accident. He volunteered that police officials recorded his two statements, one was recorded on the day of accident and another statement was recorded next day after the accident.
28. PW-3 Sh. Rakesh Kumar testified that on 09.09.2010 at about 5.00/5.15 p.m., he was at his shop and a boy was coming on a bike and his bike got stuck in a pit/hole due to which he fell down on the road. He further testified that on seeing the accident, he along CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 14/27 with Raj Kumar and some other public persons ran towards the spot and the said injured boy was taken to GTB Hospital in an auto. He testified that the Police recorded his statement which is Ex. PW3/A.
29. During cross-examination by Ld. Counsel for defendant no.2, PW-3 testified that at the time of accident, he was inside the counter of the shop where he was working at the relevant time as a sales boy and name of the said shop is Chawla Refrigeration. He testified that his shop is at a distance of about 500 feet from Shahdara Fly Over, western side. He testified that his statement was recorded on 09.09.2010 by the Police. He testified that head of boy involved in the accident was struck against the footfath on the left side of the flyover and injured boy fell at a distance of about 600 feet from western end of the Flyover. He denied the suggestion that he was not present at the spot at the time of incident or that his statement was recorded by the Police at the instance of plaintiff no.1 and his son in law.
30. During cross-examination by Ld. Counsel for defendant no.1, PW-3 deposed that he has not seen the vehicle coming down from the flyover. He volunteered that since he was inside the shop, he was not in a position to see the vehicle. He admitted that he is also not in a position to tell speed of the vehicle in question. He volunteered that traffic was not heavy. He admitted that he has not seen the vehicle in question when the accident occurred. He testified CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 15/27 that distance between his shop and the spot where the deceased fell down is approximately 600 feet. He denied the suggestion that he has mentioned in his statement to the Police that the vehicle had slipped prior to its falling down in the pit. He testified that vehicle in question fell down around 8-10 feet from the pit. He testified that injured was wearing a helmet at the time of accident. He testified that after accident, the helmet fell down on the road and belt of the helmet was unfastened due to accident. He admitted that he has not seen the injured when he fell down from the bike and has seen him after the accident. He denied the suggestion that no such accident took place due to any pit on the road.
31. The conjoint reading of testimonies of PW-1 Sh. R.K.Yadav, PW-2 Sh. Raj Kumar and PW-3 Sh. Rakesh Kumar shows that there was a pit on the road and the motorcycle of the deceased while passing through the said road got stuck in a pit, as a result of which, he fell down and sustained head injuries, which proved fatal. The testimony of PW-2 (eye witness) is material inasmuch as he categorically deposed that he has seen the incident. His testimony remained coherent even after being subjected to the test of cross- examination.
32. Ld. Counsel for the MCD/defendant no.1 pointed out that place of incident was not in the visible range from the shop where PW-2 was working, however, PW-2 has denied the said suggestion.
CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 16/27 There is no reason to disbelieve the testimony of PW-2 as PW-2 was working in a shop which was situated at a place where the incident happened. The contention of Ld. Counsel for defendant no.1 that PW- 2 is an interested witness is also not worthy of any merit as PW-2 is admittedly not having any relation with the deceased.
33. Though PW-3 has not seen the vehicle coming down from the flyover, he has seen the injured after the accident and the helmet lying near the spot. Further contention of Ld. Counsel for the defendant no. 1/ MCD that the deceased was not wearing helmet at the time of accident has been negated by the testimonies of PW-2 and PW-3 inasmuch as both the witnesses had seen the helmet lying on the road near the place of incident.
34. The question now arises for consideration is whether the accident occurred due to failure and negligence of the defendants to maintain road in front of Shyam Lal College. The contention of MCD/ defendant no. 1 is that the road was slippery on that particular day and the deceased was riding the motorcycle at a high speed without obeying the traffic rules, which caused the accident. In this regard, suffice is to say that there is nothing on record to point out that the deceased was riding the motorcycle against the traffic rules. Simply because the day of incident was a rainy day, it cannot be assumed that the deceased has not taken necessary precaution while driving the motorcycle. Indeed, PW-2 has categorically deposed that CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 17/27 the bike got stuck into the pit in the middle of the road and fell down.
35. It is also submission of Ld. Counsel for the defendant no.1/MCD that the deceased was not having driving license and for the said reason he has withdrawn the MACT case. It is relevant to note herein that the plaintiffs have filed record of MACT Case bearing no. 03/11 as Ex.PW-1/7 (Colly), perusal of which shows that insurance company (ICICI Lombard GIC Limited) had filed an application under Order VII Rule 11 read with Section 151 CPC wherein, it took a objection that as per Motor Vehicle Act, only third party or legal heirs of third party can claim compensation in case of death, whereas, deceased was owner of the vehicle involved in the accident and not a third party. Thereafter, vide order dated 08.07.2011 passed by Ld. PO MACT, the claim petition was withdrawn with permission to file the same before the appropriate forum. Further, the petitioners have filed driving licence of the deceased and the same is Ex. PW-1/1. The said driving licence on the face of it is valid for motorcycle, LMV (NT) till 16.06.2024 which covers the date of the incident. Nothing has been put to PW-1 that the said driving licence is forged and fabricated document. Pertinently, there is no denial to the fact that there was a pit on the road which was having length of approx. 1.5 feet, breadth of 1 feet and height of 1 feet. As per testimony of PW-2 Sh. Raj Kumar, vehicle in question was plying on flyover GT Road Shahdara from Seema Puri towards ISBT. The explanation given by defendant no. 1/MCD that the pit may develop on the road over night or in a short CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 18/27 period during rains is not plausible. If the roads are maintained properly, there is hardly any probability of pit developing all of a sudden on a rainy day. No sufficient explanation has been given by the defendant no. 1/MCD as to why the pit was existing on the road.
36. The Hon'ble Apex Court in the judgment reported as 1966, AIR 1750, Municipal Corporation of Delhi Vs. Subhagwanti & Ors has observed as:-
"The main question presented for determination in these appeals is whether the appellant was negligent in looking after and maintaining the Clock Tower and was liable to pay damages for the death of the persons resulting from its fall. It was contended, in the first place, by Mr. Bishen Narain on behalf of the appellant that the High Court was wrong in applying the doctrine of res ipsa loquitur to this case. It was argued that the fall of the Clock Tower was due to an inevitable accident which could not have been prevented by the exercise of reasonable care or caution. It was also submitted that there was nothing in the appearance of the Clock Tower which should have put the appellant on notice with regard to the probability of danger. We are unable to accept the argument of the appellant as correct. It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 19/27 defendant's part. The principle has been clearly stated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part." In our opinion, the doctrine of res ipsa loquitur applies in the circumstances of the present case."
37. Adverting to the facts of the present case, the doctrine of res ipsa loquitur applies inasmuch as the accident could have been avoided if the road in question was maintained properly and no pit was existing therein. Had there been no pit on the road, the chances of the deceased meeting with accident were negligible as the fact cannot be overlooked that vehicle of the deceased did not strike with any other vehicle. The defendant no. 1/MCD has not given satisfactory explanation regarding existence of pit on the road. There is also no evidence in support of the case of defendants itself that there was CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 20/27 heavy rain on that particular day and pit had developed overnight. Indeed, owing to non-maintenance of road in question properly, the existing pit on the road is nothing but a negligent act on the part of the authority responsible for maintaining the road in question.
38. In view of the foregoing discussions, this court is of considered opinion that the deceased met with an accident on account of pit on the road as a result of which he fell down from the motor cycle and sustained injuries which proved fatal. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 4 Whether the plaintiffs are entitled for the damages and compensation as prayed for and if yes, against which defendant? OPP and Issue no. 5 Whether the plaintiffs are entitled for any interest and if yes, at what rate and since when? OPP
39. Issue no. 4 & 5 are taken up together as they are interlinked. Onus to prove the aforesaid issues was upon the plaintiff. It is the case of the plaintiffs that the deceased was their only son and earning member of the family. It is also their case that the petitioners have three daughters out of which two daughters have already been married and the third daughter was to be married by the assistance of the deceased only. It is also their case that the deceased had completed CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 21/27 B.A Honours, B.Lib, DIET and O-level computer course, and was working with M/s Midas Health Care Delhi as office assistant at a monthly salary of Rs. 8,000/-. It is also their case that deceased was having a very good prospects in life and was supposed to earn an increment of 10% per year in his life.
40. In order to prove the income of the deceased, plaintiffs have examined Sh. Jitender Kapoor, Director of Midas Healthcare, Shrestha Vihar Market, Delhi as PW-6, who deposed that Kaustubh Kumar was working in his company and was getting around Rs. 8,000/- per month. During cross examination by Ld. Counsel for defendant no.2, he denied the suggestion that Kaustubh Kumar was not working in his company. He further denied the suggestion that he cannot produce the service record of Kaustubh Kumar.
41. Pertinently, PW-1 also deposed during cross-examination by defendant no. 2 that his deceased son was earning Rs. 8,000/- per month at the time of incident. He testified that he does not have any document in support thereof except certificate dated 02.08.2010 issued by Midas Healthcare. He testified his deceased son was working for his pocket money only. He further testified that his deceased son was studying M.Sc in Uptel. He further testified that he was dependent upon his son. He further testified that he was getting pension from Central Bureau of Investigation. During cross-examination by Ld. Counsel for defendant no. 1, PW-1 testified that he has retired from CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 22/27 CBI on 30.08.2009 as head constable. He further testified that he was getting pension of around Rs. 6000/- per month, again said, it was Rs. 4,067/- per month after deductions. He admitted that house where he is residing is a self-acquired property. He further admitted that he was bearing education expenses of the deceased son who was studying at the time of accident. He further admitted that he was not dependent upon the deceased son at the time of accident. He further testified that his 3rd daughter also got married. He further admitted that at the time of retirement, he got provident fund and other retirement benefits and he is getting pension from his employer.
42. It is relevant to note herein that PW-1 has filed certificates of the deceased as Ex.PW-1/6 (Colly), which includes the graduation degree and provisional certificate of Bachelor Degree in Library and Information Science. It is evident from the educational qualification of the deceased coupled with testimony of PW-6, the deceased was earning Rs. 8,000/- per month.
43. The petitioners have claimed a sum of Rs. 34,70,000/- towards damages and compensation on account of death of their son. To assess damages payable to the parents of the deceased, this Court is applying the multiplier method as prevalent in awarding compensation under Motor Vehicle Act, 1988. The reliance is placed upon the judgment of Hon'ble Apex court reported as (1996) 4 SCC 362 in UP State Road Transport Corporation vs Trilok Chandra, wherein it has CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 23/27 been held that there should be no departure from the multiplier method on the ground that payment being made is just compensation. It has been held that multiplier method must be accepted method for determining and ensuring payment of just compensation as it is the method which brings uniformity and certainity to awards made all over the country.
44. Having considered the ratio of aforesaid judgment, this Court is assessing the damages by applying the multiplier method. The Hon'ble Apex Court in the judgment reported as 2009(6) SCC 121 "Sarla Verma Vs. DTC", has laid down the multiplier to be applied with reference to the age of the deceased. As per the driving license and the secondary school certificate of the deceased, the date of birth of deceased was 20.02.1984. Meaning thereby, the deceased was aged about 26 years on the day of incident i.e. 09.09.2010. The multiplier of 17 is applicable for the age group of 26-30 years in terms of judgment of Sarla Verma vs. DTC (supra).
45. Further, as per judgment of Hon'ble Apex Court in National Insurance Company Ltd. v. Pranay Sethi [SLP (C) No.25590 of 2014] pronounced on 31.10.2017, if the deceased is self-employed or on a fixed salary, he is entitled to get addition of 40 % of actual salary drawn by him as future prospects.
46. In the instant case, the deceased was on fixed salary of CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 24/27 Rs.8,000/- per month, he is thus entitled to 40% of actual salary towards future prospects. Since the deceased was a bachelor, deduction towards personal and living expenses would be one-half in terms of judgment of Sarla Verma vs. DTC (supra). The deceased was thus having income of Rs. 96,000/- per annum (Rs. 8,000/- per month x 12). After deduction of 50% towards personal expenses & applying the multiplier of 17 as per Sarla Verma vs. DTC (supra) and adding 40% towards future prospects as per judgment of National Insurance Co. Ltd. vs. Praney Sethi and Ors. (supra), the loss of dependency is calculated to Rs.11,39,400/- [Rs.96,000/- -1/2 of Rs.96,000/- =Rs.48,000/- X 17 =Rs.8,13,000/- + Rs, 3,26,400/- (40% of Rs. 8,13,000/-)].
47. In addition to loss of dependency, the plaintiffs are also entitled to compensation under non-pecuniary heads. As per judgment of Hon'ble Apex Court in the case titled as "Satinder Kaur @ Satwinder Kaur and Ors. Vs. United India Insurance Co. Ltd." (Civil Appeal No. 2706 of 2020) decided on 20.06.2020, plaintiffs are entitled to Rs.40,000/- each towards loss of consortium, Rs.15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses. Thus, a total sum of Rs.1,10,000/- (40,000/- X 2+ Rs.15,000/- + Rs.15,000/-) is granted under this head.
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48. In view of the above, plaintiffs are entitled to damages and compensation of Rs. 12,49,400/- (Rupees Twelve Lacs Forty Nine Thousand Four Hundred only).
49. The question which arises for consideration is as to which of the defendants i.e. MCD/ defendant no.1 or PWD/defendant no.2 is liable to pay the compensation amount. To find out the same, it is necessary to ponder upon the question as to which of the authority was legally obliged to maintain the said road. The defendant no. 1/MCD has filed a written statement wherein it has not denied that it was responsible for maintaining the road in question.
50. During cross examination of PW-1 by Ld. Counsel for defendant no. 2, PW-1 Ram Kripal admitted that as per handing/taking over note dated 14.03.2012 along with sketch of road Ex.PW-1/D3 (Colly), place of accident was not maintained by the defendant no. 2 at the time of accident. He further deposed that although PWD had given him the information through its reply Ex. PW-1/D2 that the road where the accident took place was not within its jurisdiction, he could not confirm the same, and so, he impleaded PWD as defendant no. 2. Be that as it may, defendant no. 1/MCD has not made any averment that it was not responsible for maintaining the road in question. Thus, it is defendant no. 1/MCD which is liable to pay compensation.
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51. The plaintiffs have also claimed pendente lite and future interest @ 18% per annum. Keeping in view the declining bank rate of interest, it is in the fitness of things to award the damages & compensation along with pendente lite and future simple interest @ 6% per annum. Issue nos. 4 & 5 are decided accordingly.
Relief:-
52. In view of findings on aforesaid issues, the suit is decreed in favour of the plaintiffs and against the defendant no.1 for a sum of Rs. Rs. 12,49,400/- along with pendente lite and future simple interest @ 6% per annum. Cost of the suit is also awarded in favour of the plaintiffs and against the defendant no.1. Decree sheet be prepared accordingly.
53. File be consigned to record room.
(Manjusha Wadhwa) Addl. District Judge-2, Shahdara, Karkardooma Courts, Delhi:19.04.2022 (Announced in the open Court on 19.04.2022) CS no. 1803/16 R.K. Yadav etc. vs. MCD etc. Page no. 27/27