Delhi District Court
Sh. Mahipal Singh vs The State (Govt. Of Nct Of Delhi) on 5 May, 2022
MAHIPAL SINGH v. THE STATE AND ANR.
IN THE COURT OF VIJAY KUMAR JHA,
ADDITIONAL DISTRICT JUDGE02, KARKARDOOMA COURTS(EAST), DELHI
Civil Suit No.209/2018
In the matter of:
1. Sh. Mahipal Singh
S/o Sh. Rudra Singh
R/o H. No.B288/21,
Gali No.1, Rajveer Colony,
Gharoli Extension,
Delhi - 110096.
2. Smt. Ram Murti
W/o Sh. Mahipal Singh
R/o H. No.B288/21,
Gali No.1, Rajveer Colony,
Gharoli Extension,
Delhi - 110096.
..........Plaintiffs
Versus
1. The State (Govt. of NCT of Delhi)
Through District Magistrate
District Magistrate office (East)
L.M. Bund, Shastri Nagar,
Delhi - 110031.
2. East Delhi Municipal Corporation
Through its Commissioner
419, Udyog Sadan,
Patparganj Industrial Area,
Delhi - 110092.
............Defendants
Date of Institution : 13.03.2018
Date of Arguments : 16.04.2022
Date of Judgment : 05.05.2022
Suit for compensation under Fatal Accident Act.
CS No.209/2018 PAGE NO. 1/ 25
MAHIPAL SINGH v. THE STATE AND ANR.
JUDGMENT
1. It is averred in the plaint that the plaintiffs are the parents of Shri Abhishek Gautam, aged about 20 years who expired on 01/09/2017 because of the negligence of the defendants.
2. It is the case of the plaintiffs that the son of the plaintiffs namely Abhishek Gautam was a student of the school of open learning, Delhi University and was pursuing his graduation and had a bright future. On 01/09/2017 the son of the plaintiffs Shri Abhishek Gautam along with his friend was going from his house from Gazipur Mandi and when they were passing through Hindon canal service road all of a sudden at about 2:30 p.m. the mountain of trash towering to the height of several storied building collapsed and the garbage from the mountain trash swept several persons into the nearby canal in which Shri Abhishek Gautam was one of them. The local residents rushed to rescue the drowning people but unfortunately the life of Shri Abhishek Gautam could not be saved. The dead body of Shri Abhishek Gautam was recovered from the canal and was taken to Lal Bahadur Shastri Hospital but the doctors declared him brought dead vide MLC no. 012652. The postmortem of Shri Abhishek Gautam was conducted at LBS Hospital on 02/09/2017 and as per the postmortem report the cause of death was opined by the doctor as "Asphyxia due to antemortem drowning".
3. It is further the case of the plaintiffs that the death of the son of the plaintiffs occurred due to sole negligence of the defendant no. 2 who had the permission to keep the height of the trash mountain only up to 20 metres but due to irresponsible and careless execution and dereliction of duties of the defendant no. 2, the height of the garbage CS No.209/2018 PAGE NO. 2/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
mountain reached to more than 50 metres which led to the death of other people including the son of the plaintiffs for which both the defendants were responsible. The defendant no. 2 was not vigilant about the maintenance of the trash mountain and the defendant no. 1 did not monitor the action of the defendant no. 2 properly.
4. It is further averred in the plaint that the son of the plaintiffs Shri Abhishek Gautam was not only studying but also doing a job with M/s. Aarr Services as an installation engineer and was also taking tuitions in the neighbourhood. Shri Abhishek Gautam was drawing a monthly salary of ₹12000/ besides other perks from the services with M/s. Aarr Services and also getting ₹5000/ per month from tuitions and thus was having the monthly income of around ₹20,000/ per month which Shri Abhishek Gautam was completely parting with the plaintiffs.
5. It is the grievance of the plaintiffs that due to the untimely death of Shri Abhishek Gautam the plaintiffs have lost their support in their old age and have suffered immense mental pain and agony, financial losses, consortium, loss of estate, etc. which are irreparable because of the negligence of the defendants. And FIR bearing no. 319/2017 P.S. Gazipur Delhi under Section 304A/337 of Indian Penal Code is stated to have been registered and is under investigation.
6. As per the plaintiffs, the defendant no. 2 was only agency for taking measures to prevent the incident which happened on 01/09/2017 and the defendant no. 1 was also responsible as the defendant no. 1 failed to monitor the actions of the defendant no. 2 because of which the plaintiffs are entitled to get adequate and just compensation of ₹1,500,000/. The plaintiffs, however, avers having received the cheque CS No.209/2018 PAGE NO. 3/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
of ₹200,000/ from the defendant no. 1 and cheque of ₹100,000/from the defendant no. 2 but as per the plaintiffs the said amount is inadequate compensation for the loss of life of their son. The plaintiffs served the legal notice on the defendants and when no response was received by the plaintiffs, the plaintiffs have filed the subject suit for a decree of damages/compensation of ₹1,500,000/ along with pendente lite and future interest @ 12% per annum till realisation.
7. As per the record, the defendant no. 1 has been proceeded ex parte vide order dated 09/04/2019 and there is no written statement of defendant no. 1 on record. On behalf of the defendant no. 2 the written statement has been filed.
8. By way of preliminary objections, it is stated in the written statement of the defendant no. 2 that the suit as filed by the plaintiffs is not maintainable being without any cause of action against the defendant no. 2 as the plaintiffs has already received appropriate compensation; ₹100,000/ from the defendant no. 2 and ₹200,000/ from the defendant no. 1.
9. It is further stated that defendant no. 2 also offered contractual employment to the legal heirs in addition to monetary compensation which was already paid and the claim for further compensation by the plaintiffs is unjustified. It is also the defence of the defendant no. 2 that the onus is on the plaintiffs to prove that all safety instruments and guidance were followed by the deceased son of the plaintiffs and that there was no contributory negligence from the side of the deceased at the time of the incident as per the Fatal Accident Act, 1976.
10. By way of preliminary objection, it is the claim of the defendant no. 2 CS No.209/2018 PAGE NO. 4/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
that the trash mountain was maintained with the utmost care. The possible cause of the incident as explained by the defendant no. 2 is that due to continuous rainfall for 23 days and heavy downpour for almost 2 hours in the previous afternoon, percolated inside the dump through pores which resulted into higher moisture levels, accompanied by presence of high contents of polythene leading to lower water density. The impact of low density on the landfill stability was amplified by rain falls. The low density and high moisture contents reduced to the sheer strength by mobilising pore water pressure. In that situation the risk of slope failure increased significantly. That had 2 aspects;
i. It created a fault line underneath the dump due to fluidity created by saturation thereby reducing the interlayer fraction holding the two layers together.
ii. It blocked the natural pores stopping trapped landfill might the release gases. This blockage might have created increased pressure underneath and triggered slid of garbage dump above the fault line so created by first effect. Being a substantial quantum and sudden release of pressure, the heap caved in with a bang.
11.As per the defendant no. 2 because of the technical and scientific reason behind the side of the garbage the incident dated 01/09/2017 was natural/substantial for which no person was responsible.
12. By way of preliminary objection, it is further averred that the sliding of substantial heaps of garbage into the drain which was about a hundred metres away from the SLF site, caused a certain localised/order towards canal crossing over the road between Hindon Canal and escape canal, CS No.209/2018 PAGE NO. 5/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
smaller vehicles passing by at the time came in the way or splash and fell in the drain which resulted in the death of two persons due to drowning in the canal and in which one was the deceased Sh. Abhishek Gautam. With respect to the height of trash, it is averred by the defendant no. 2 that the defendant no. 2 was demanding alternate land from the landowning agency that is the DDA since last 20 years for setting up waste management facilities but no land had been made available to the defendant no. 2 despite various directions by Courts because of which the defendant no. 2 was forced to dump the waste at the site due to compelling circumstances.
13. On the merits, the defendant no. 2 has substantially admitted the facts of the case as averred by the plaintiffs in their plaint regarding the death of their son, in the circumstances in which the death occurred. However, the defendant no. 2 denied that the incident, in which the son of the plaintiffs died, happened due to the sole negligence of the defendant no.
2. As per the defendant no. 2, the incident on 01/09/2017 in which the plaintiffs' son died was a natural incident and the reason for the same was stated by the defendant no. 2 in the preliminary objections and therefore there is no liability of the defendant no. 2/EDMC to pay any kind of compensation to the plaintiffs.
14.After the completion of the pleadings vide order dated 15/05/2019 following issues were framed for the trial: i. Whether the plaintiffs is entitled to recover the suit amount as prayed for? OPP ii. if issue no. 1 is proved in the affirmative, whether the plaintiff is entitled for interest thereof, if so at what rate and CS No.209/2018 PAGE NO. 6/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
period? OPP iii. Whether the suit is without any cause of action? OPD iv. Whether the suit is liable to be dismissed on account of the reasons mentioned para 3 and 4 of the preliminary objections of the written statement? OPD v. Relief.
15.To prove the case for the claim of compensation against the defendants, the plaintiff no 1 has examined himself as PW1. The examinationin chief is by way of affidavit in which the deposition of facts exactly similar to the facts as averred by the plaintiffs in the plaint is exhibited as Ex.PW1/1. PW1 has relied upon and proved the following documents: i. Copy of Aadhar card of deceased is Ex.PW1/A(OSR). ii. Copy of driving license of the deceased is Ex.PW1/B(OSR). iii. Copy of Educational Certificates of deceased is Ex.PW1/C(OSR) iv. Copy of FIR No. 319/2017, MarkA.
v. Copy of postmortem Report, MarkB.
vi. Copy of Dead Body handing over memo, Mark C.
vii. Copy of Death Certificate of deceased Ex.PW1/D(OSR).
viii. Copy of Identity card of deceased issued by his employer is
Ex.PW1/E(OSR).
ix. Copy of Identity card of deceased issued by Delhi University, Ex.PW1/F(OSR) x. Copy of photographs of rescue operation of deceased, Ex.PW1/G(OSR).
xi. Copy of cheques issued by the defendant No. 1&2, MarkD & mark E respectively.
xii. Legal notice U/S 80 CPC with postal receipt Ex.PW1/H. xiii. Copy of Aadhar card of deponent is Ex.PW1/I(OSR).
16.Shri S. Lal, HOD/specialist GR I, Department of Forensic Medicine, CS No.209/2018 PAGE NO. 7/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
LBS Hospital Delhi has been examined as PW2. PW2 on 02/09/2017 had conducted the postmortem on the dead body of Abhishek the son of the plaintiffs and the postmortem report has been exhibited as Ex. PW 2/A.
17.On behalf of the defendant no. 2, Shri Chandan Singh, Assistant Engineer (SLF) EDMC has been examined as DW1. The examination inchief of DW1 is the replica of the written statement filed on behalf of the defendant no. 2; EDMC and has been exhibited as Ex. DW1/A. The defendant no. 2 has not relied upon any documents in support of their defence.
18. I have heard the arguments and perused the record. Issue wise opinion of the Court is hereby returned as under.
Issue No. 1: Whether the plaintiffs is entitled to recover the suit amount as prayed for? OPP
19. If the death of the son of the plaintiffs Sh. Abhishek Gautam is caused because of the negligence of the defendants, then under the law of torts and the provisions of Fatal Accidents Act, the plaintiffs shall be entitled to recover compensation against the defendants.
20. The facts which are not in dispute are that the son of the plaintiffs Sh.
Abhishek Gautam aged about 20 years died on 01/09/2017. The cause of death i.e., the mountain of trash/garbage collected at Gazipur landfill after several days of heavy rains collapsed because of which several persons who were present on the road nearby were swept into the canal and the deceased Sh. Abhishek Gautam was one of them who died by drowning. The Gazipur landfill/trash mountain is/was maintained by the defendant no. 2.
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21. 'Negligence' ordinarily means failure to do statutory duty or otherwise giving rise to in damage. Winfield has defined 'negligence' as under :
'Negligence' as a tort is the breach of a legal duty to take care which results the State or an individual, undesired by the defendant, to the plaintiffs. Thus its ingredients are
(a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty;
(b) breach of that duty;
(c) consequential damage to B."
22. The sole witness examined on behalf of the defendant no. 2; Shri Chandan Singh, DW1 in para no. 5 of his examination in chief that is Ex. DW1/A has deposed, "I say that the trash mountain is maintained with utmost care". From what DW1 has deposed from it can be safely assumed to have been proved that the trash mountain at Gazipur was under the care, control and supervision of the defendant no. 2.
23. In para no. 5 of Ex. DW1/A the witness Shri Chander Singh, DW1 has given the probable cause of the incident in which the son of the plaintiffs Sh. Abhishek Gautam expired and in para 6 of Ex. DW1/A it has further been deposed that, "I say that technical and scientific reason behind the slid of garbage has been explained in above mentioned para which caused incident and in view of the same it clearly reflects that unfortunate incident dated 01.09.2017 was natural/ circumstantial and no person is responsible for the same".
24. The defendant no. 2 with the deposition of DW1 is trying to avoid the CS No.209/2018 PAGE NO. 9/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
liability with respect to the death of Sh. Abhishek Gautam on the ground that whatever happened with the garbage/trash mountain happened because of natural circumstances that it was an Act of God for which no person including the defendant no. 2 was responsible and therefore if any loss/damages occurred to the plaintiffs the defendants are not liable to pay any compensation.
25. At this stage, before proceeding further certain facts as elicited in the crossexamination of DW1 can be taken note of. In the cross examination of DW1 conducted on 18/02/2022 DW1 deposed, "It is correct that it is the sole duty of EDMC to look after and supervise the Ghazipur landfill site. The permission to stock the garbage at the said site was up to 2025 mtr. At the time when the incident happened, the height of the garbage mountain/heap was up to 6065 mtr. It is correct that the garbage was being stocked at the said site in violation of the permission". The defendant no. 2 could have collected the garbage on the landfill only up to 2025 meters whereas admittedly the height of the garbage was about 6065 meters whatever may be the explanation for it, it cannot be denied that if the permission was given to the defendant no. 2 to collect the garbage up to 2025 meters there must have been some reason for it and the logical reason appears to be that above that height to which the permission was granted to collect the garbage it would be dangerous.
26. Assuming what DW1 volunteered, "It was being done in compelling circumstances as ODA had not provided any alternative site for dis posal of the garbage for setting up waste management facilities despite many directions from different courts of law for the last 24 years" is CS No.209/2018 PAGE NO. 10/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
true it only reflects the administrative apathy and making the concerned officials/department liable for any untoward incident which could occur because of the fact of leading the garbage collected on the Gazipur land fill to a height which is not permissible and dangerous as well which the incident in which the son of the plaintiffs lost her life has proved it.
27. If any damages were caused to an individual because of the tort of neg ligence, the defendant would have many defences to avoid the liability and the natural reasons/the Act of God was one of them. Even assuming that the incident dated 01/09/2017 at the Gazipur landfill occurred be cause of incessant rain for 24 days or natural/circumstantial reasons for which no person was responsible then also keeping into consideration the height of the mountain/heap of garbage, it was not the natural use of the land of the Gazipur landfill and potentially dangerous which have been proved by the subsequent event in the loss of the life of the son of the plaintiffs Sh. Abhishek Gautam.
28.The English Courts in order to avoid the injustice caused because of the recognised exceptions to the tort of negligence developed the Rule of strict liability in the judgment of John Rylands and Jehu Horrocks v. Thomas Fletcher; 1868 LR (3) 330. The rule of strict liability developed by English Courts in Rylands v. Fletcher was judicial development of the liability in keeping with growth of society and necessity to safeguard the interest of a common man against hazardous activities carried on by others on their own premises even though innocently. By conservative standard, it could not be termed as negligence as damage arose not by violation of duty. Yet the law was expanded to achieve the objective of protecting the common man not by CS No.209/2018 PAGE NO. 11/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
narrowing the horizon of legal injury but by widening it. The Rule of strict liability states that if there is a nonnatural use of the land by a person and if that causes mischief or harm to anyone then the person who is making the nonnatural use of the land would be held liable for such harm in terms of payment of compensation/damages.
29. The essentials of the Rule of strict liability to apply is that first, there must be a dangerous thing in or upon the land that might cause some mischief or harm to someone if escape. In the case in hand, the collection of garbage in the shape of a mountain/heap beyond the permissible limit of 2025 meters was inherently dangerous situation which had the potential to do the damage which was in fact done. Second, there must be an escape of that dangerous thing out of the land/premises in control of the defendant. In the case in hand on 01/09/2017, the garbage mount at the Gazipur landfill collapsed because of which the son of the plaintiffs was swept away in the canal and died because of drowning.
30. The Rule of strict liability is also subject to certain defences and one of the defences is the act of God that is vis major and as going by the defence of the defendant the reason for the collapse of the garbage mountain/heap was the incessant rain for 24 days that is the accident was caused by the act of God. At this stage, the observation of Hon'ble Supreme Court in M.C. Mehta v. Union of India, 1987 (1) SCC 395 is very apposite. In M.C. Mehta (supra) judgment it was observed: "We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are CS No.209/2018 PAGE NO. 12/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
injured. Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined. The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to nonnatural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury's Laws of England, vol. 45. para 1305. Considerable case law has developed in England as to what is natural and what is non natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider those decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry as part of the developmental programme, this rule, evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in the context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law had to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the CS No.209/2018 PAGE NO. 13/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence and we cannot countenance an argument that merely because the law in England does not recognise the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule laid down in Rylands v. Fletcher as developed in England recognises certain limitations and exceptions, we in India must hold back our hands and not venture to evolve a new principle of liability since English courts have not done so. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all CS No.209/2018 PAGE NO. 14/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate visàvis the tortious principle of strict liability under the rule in Rylands v. Fletcher."
31. The Hon'ble Supreme Court in Association of Victims of Uphaar Tragedy v. Union of India; 2003(68) DRJ 128, quoted with approval of the observation of the Hon'ble Supreme Court in M.C. Mehta (supra) judgment.
10. As per the principle of strict liability involved in the judgment M.C. Mehta (supra) where an enterprise is engaged in a hazardous or inher ently dangerous activity and harm results to anyone on account of an ac cident in the operation of such hazardous or inherently dangerous activ ity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the ac cident and such liability is not subject to any of the exceptions which operate visàvis the tortious principle of strict liability under the rule in Rylands v. Fletcher.
10.On the principle of strict liability, the defendant no. 2 is liable to com pensate the parents of the deceased victim Shri Abhishek Gautam. The defendant no. 2 cannot escape from the liability on the basis of the prin CS No.209/2018 PAGE NO. 15/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
ciple of strict liability even if the unfortunate incident caving in of the garbage mountain of Gazipur landfill on 01/09/2017 occurred because of natural/circumstantial reasons because of incessant rain for which no human agency was responsible.
32. After fixing the liability of the defendant no. 2 to pay the compensation for the death of Sh. Abhishek Gautam now the next question which arises is as to how much compensation is to be granted to the plaintiffs.
33. On behalf of the plaintiffs, nothing has been proved with respect to the income of the deceased Sh. Abhishek Gautam. The Court agrees with the submissions of the counsel for the plaintiffs that even in the case the plaintiffs have not proved regarding the fact that the deceased was working and getting any salary, the Court can apply the criteria of minimum wages of an unskilled worker and multiplier method. The Hon'ble Delhi High Court in Suraj Verma v. Delhi Development Authority; 2015(32) R.C.R.(Civil) 529, has observed:
"13. The plaintiff is entitled to just compensation under Sections 1A and 2 of the Fatal Accidents Act, 1885 which has to be computed according to the multiplier method. Reference may be made to Gobald Motor Service Ltd. v. Veluswami, 1962 (1) SCR 929, Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, Ishwar Devi Malik. v. Union of India, ILR (1968) 1 Delhi 59, Lachman Singh v. Gurmit Kaur, AIR 1979 P&H 50, Bir Singh v. Hashi Rashi Banerjee, AIR 1956 Calcutta 555. The multiplier method has been accepted as legally sound method for determining compensation in death cases by the Supreme Court in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197; Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100 and Delhi High Court in Jaipur Golden Gas Victims Association v. Union of India, 164 (2009) DLT 346; Nagrik Sangarsh Samiti v. Union of India, ILR (2010) 4 Delhi 293; Ram Kishore v. MCD, 2007 (97) DRJ 445; Ashok Sharma v. Union of India, 2009 ACJ CS No.209/2018 PAGE NO. 16/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
1063.
14. In Lata Wadhwa v. State of Bihar (supra), a fire broke out in a factory in which sixty people died and one hundred and thirteen got injured. The Supreme Court awarded compensation to the victims on the basis of the multiplier method.
15. In Jaipur Golden Gas Victims Association v. Union of India (supra), the Division Bench of this Court awarded compensation to the victims of Jaipur Golden Fire Tragedy by applying the multiplier method.
16. In Ashok Sharma v. Union of India (supra), six children lost their lives by drowning during an annual training camp of NCC on account of negligence on the part of respondents. The compensation was awarded by applying the multiplier method.
17. The compensation in death cases according to the multiplier method is based on the pecuniary loss caused to the dependents by the death of the victim of the road accident. The dependency of the dependents is determined by taking the annual earnings of the deceased at the time of the accident. Thereafter, the effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made. The remaining amount of income after deduction of personal expenses is taken to be the loss of dependency to the family members which is multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency of the dependants of the deceased is multiplied by the multiplier according to the age of the deceased or claimant whichever is higher. A table of multiplier is given in ScheduleII of the Motor Vehicle Act, 1988 but there was some error in the said table which has been corrected by the Supreme Court in the judgment of Sarla Verma v. DTC, 2009 ACJ 1298."
34. In Urmila Devi v. MCD; 2017 AAC 184, where there was no proof of income of the deceased who has died after falling into sewer because of CS No.209/2018 PAGE NO. 17/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
the negligence of the MCD/respondents, the Hon'ble Delhi High Court for the award of compensation has considered the minimum wages notified by the Government National Capital Territory of Delhi (Labour Department) and the multiplier method. This Court also has no reason not to follow the criteria of minimum wages and multiplier method in the present case.
35. As per notification no. F. No. Addl.LC/Lab/MW/2016/466 dated 31/05/2017 of Government National Capital Territory of Delhi (Labour Department) minimum wages for an unskilled worker per month after adding dearness allowances was ₹16,468/ and the entitlement of the plaintiffs to the compensations shall be as per the caluculations given below:
1. Age of deceased at the time of accident 19+ years
2. Dependent 2 (father, mother)
3. Source of income To be considered on minimum wages
4. Future prospects 50% (being below age of 40 years)
5. Monthly income + future prspects Rs.16,468 + 8234 = 24702/-
6. Monthly income after 50% deduction Rs.12,351/-
(deceased being unmarried)
7. Net annual income after deduction Rs.12,351/- x 12= Rs.
1,48,212/-
8. Multiplier to be applied 189. Compensation on conventional heads:-
a) Loss filial consortium Rs.40,000/- each +(10% CS No.209/2018 PAGE NO. 18/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
increase in every three years as per pranay Sethi's judgment) i.e. Rs.48,000/-
each = Rs.96,000/-
b) Loss of Estate Rs.15,000/-+(10% increase
in every three years as per
pranay Sethi's judgment) i.e.
Rs.18,000/-
c) Funeral Expenses Rs.15,000 + (10% increase in
every three years as per
pranay Sethi's judgment) i.e.
Rs.18,000/-
Rs.1,48,212/- x 18 = Rs.26,67,816/- + Rs.27,99,816/-
(18,000/- + 18,000/- + 96,000/-)
36. Applying the minimum wages and the multiplier method the amount which comes is much higher than the suit amount of ₹1,500,000/ which has been claimed by the plaintiffs along with the interest @ 12% per annum. However, the argument of the counsel for the plaintiffs is that the plaintiffs filed the suit for just compensation under the Fatal Accident Act against the defendants. The plaintiffs claimed only the suit amount because at the time when the suit was filed the plaintiffs had lost his young son and had not enough money to pay the Court fee. In para 20 of the plaint, the plaintiffs have pleaded that plaintiffs undertake to pay any amount of Court fee if quantum of compensation exceeds to the claimed amount. The counsel for the plaintiffs has relied upon the judgment of the Hon'ble Supreme Court in Ramla v. National Insurance Company Limited 2019(2) SCC 192 wherein it has been observed, "There is no restriction that the Court cannot award compensation exceeding the claimed amount... A "just compensation"
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is one which is reasonable on the basis of evidence produced on record. Further, there is no need for a new cause of action to claim an enhanced amount. The Courts are dutybound to award just compensation".
37. It is well settled that the ratio of any decision must be understood in the background facts of that case. Even a single material fact, if different, makes the ratio for a particular decision inapplicable. For the applicability of ratios, similarity in the material facts is very paramount. The Hon'ble Supreme Court in ICICI Bank Ltd v. Municipal Corporation of Greater Bombay; 2005 AIR (SC) 3315, has in para 8 of the jdugment observed, ".The ratio of the judgment or the principle upon which the question before the Court is decided is alone binding as a precedent. The decision of the Supreme Court upon a question of law is considered to be a binding precedent, and this must be ascertained and determined by analyzing all the material facts and issues involved in the case". The Hon'ble Supreme Court in Union of India and others v. Dhanwanti Devi and others, (1996) 6 SCC 44, has held, "10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents......"
38. The Ramla (supra) judgment was pertaining to the case of accidental death under Motor Vehicles Act. The Hon'ble High Court in the said judgment was referring to the powers of the tribunal or Court under CS No.209/2018 PAGE NO. 20/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
Section 168 of the Motor Vehicles Act (see paragraph no. 6 of the said judgment) and no ratio decidendi for general application was laid down in the said judgment which is applicable in the facts and circumstances of the case which is before this Court. Further, as per Section 110 (2A) of Motor Vehicles Act, Code of Civil Procedure is applicable only few of the matters which has been provided under the said sections and not for the entire trial of the suit for the claim of the cases falling under the Motor Vehicles Act. As per Section 169 of Motor Vehicles Act, Code of Civil Procedure is applicable for the purposes of enforcement of the award of the Claims Tribunal in the same manner as exercisable by the Civil Court for the purposes of execution of a decree as if the award passed by the Claims Tribunal were a decree for the payment of money passed by a civil Court. However, as far as this Court is concerned for the trial of the subject suit entire Code of Civil Procedure is applicable including Order 2 Rule 2 which provides for the suit to include the whole claim. Because of Order 2 Rule 2 of CPC the quantum of compensation could not have been greater than as claimed by the plaintiffs in the suit and as a general principle the civil Court has the jurisdiction to grant only such relief which is claimed and proved by the plaintiffs. If the plaintiff is entitled to a greater relief than claimed in the suit then in view of Order 2 Rule 2 of CPC neither the plaintiffs can sue regarding it afterwards nor the Court that is the civil Court which is bound to try the suit as per the provisions of CPC either grant of relief which has not been prayed or grant the monetary relief greater in the sum as claimed. Under the residuary prayer i.e., "Pass any other order/relief/direction as this Hon'ble Court deems fit and proper in the facts and circumstances of this case, in the interest of justice", only CS No.209/2018 PAGE NO. 21/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
such Order/relief/direction etc. can be passed by the Court which would make the substantive relief meaningful and cannot grant such relief which is over and above as prayed for by the plaintiffs.
39. The counsel for the plaintiffs has also relied upon the observation of the Hon'ble Supreme Court in Jabbar v. Maharashtra State Road Transport Corporation; 2020(1) R.C.R.(Civil) 308 that, "This Court in large number of cases has laid down that it is permissible to grant compensation of any amount in excess to that one which has been claimed". This was also a judgment in Motor Vehicles Act case and the observation of the Hon'ble Supreme Court has to be understood in its context. The ratio of Jabbar (supra) case is not that a civil Court has the jurisdiction to grant compensation exceeding as claimed by the plaintiffs according to the entitlement. The reliance placed upon by the counsel for the plaintiffs on aforesaid judgment for the contention that this Court has the jurisdiction to grant compensation exceeding as claimed by the plaintiffs is misplaced. The score is in consonance with the submissions of the counsel for the defendant that both the judgments referred to by the counsel for the plaintiffs related to MACT cases and that the present suit is not covered under the ambit of MACT.
40. In the light of discussion herein above the issue under discussion is decided in favour of the plaintiffs and against the defendants. The plaintiffs shall be entitled to recover the suit amount that is ₹1,000,000/against both the defendants jointly and severally.
Issue No.2: If issue no. 1 is proved in affirmative, Whether the plaintiffs is entitled for interest thereof, if so at what rate and period? OPP
41. The plaintiffs have claimed the pendentelite and future interest @ 12% CS No.209/2018 PAGE NO. 22/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
per annum till realisation of the suit amount. The rate of interest as claimed by the plaintiffs is on the higher side. Accordingly pendentelite and future simple interest @ 9% per annum is awarded to the plaintiffs against the defendants till the realisation of the decorative amount. Issue is decided accordingly.
Issue No. 3: Whether the suit is without any cause of action? OPD
42. In the light of discussion on issue no. 1 it cannot be said that suit filed by the plaintiffs is without any cause of action. From the perusal of the written statement it appears that the issue under discussion was framed as it was the averment of the defendant no. 2/EDMC that the suit of the plaintiffs is without cause of action as the plaintiffs already received appropriate compensation. The plaintiffs are stated to have received ₹100,000/ from defendant no. 2/EDMC and ₹200,000/ from Government of Delhi; in total ₹300,000/. Life and limbs are not so cheap, even if the plaintiffs have received compensation of ₹300,000/ it cannot be said that the suit filed by the plaintiffs is without any cause of action.
Issue No.4: Whether the suit is liable to be dismissed on account of the reasons mentioned para 3 and 4 of the preliminary objections of the written statement? OPD
43. Under the principle of strict liability the defendants could have avoided the liability towards the plaintiffs for the negligent death of the son of the plaintiffs on the basis of Act of God on account of the reasons for CS No.209/2018 PAGE NO. 23/ 25 MAHIPAL SINGH v. THE STATE AND ANR.
the accident being mentioned in paragraphs 3 and 4 of the written statement by way of preliminary objections, however, as already discussed while discussing issue no. 1 the liability of the defendants would be absolute liability not subject to any of the exceptions to which the principle of strict liability was amenable to. Accordingly the issue under discussion is decided in favour of plaintiffs and against the defendants.
Relief.
44. In view of the opinion of the Court on the issues framed as the death of the son of the plaintiffs on the balance of probability appears to have been caused because of the negligent conduct of the defendant in maintaining the landfill from which on 01/09/2017 mountain of garbage collapsed causing the death of the son of the plaintiffs. The liability of the defendants towards the plaintiffs being strict liability therefore the plaintiffs are entitled to the suit amount of ₹1,500,000/ as compensation against both the defendants jointly and severally. Accordingly, suit of the plaintiffs is hereby decreed with costs for a sum of ₹1,500,000/ against both the defendants jointly and severally along with pendentelite and future simple interest @ 9% per annum from the date of filing of the subject suit till the realisation of the decretal amount. Under Section 35 of CPC the plaintiffs shall also be entitled to litigation expenses against the defendants which is hereby quantified @ ₹5000/ against the defendants, jointly and severally.
45. Decree sheet be drawn in terms of the judgment. File be consigned to record room after necessary compliance.
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Digitally signed VIJAY by VIJAY
46. Suit is decreed with costs. KUMAR JHA
KUMAR Date:
2022.05.09
JHA 15:44:14 +0530
Announced in the open Court (VIJAY KUMAR JHA)
on 5th May, 2022. Addl. District Judge02(East) Karkardooma Courts, Delhi.
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