Delhi District Court
Ramesh Kumar vs . The Commissioner, Mcd & Others on 20 October, 2012
Ramesh Kumar Vs. The Commissioner, MCD & Others
IN THE COURT OF SH. VIRENDER KUMAR BANSAL:
ADDITIONAL DISTRICT JUDGE, CENTRALÂ8, DELHI.
CS No. 183/10
Ramesh Kumar
son of Sh.Karan Singh
r/o Garrage no.131,
Raj Nagar, Safdarjung Staff Quarters,
New Delhi.
... Plaintiff
Vs.
1.Municipal Corporation of Delhi
Town Hall, Chandni Chowk, Delhi
through its Commissioner.
2.B.S.E.S.Rajdhani Power Ltd.
DESS Bhawan, Nehru Place, New Delhi
(Previously Delhi Vidyut Board, Delhi)
through its Chairman/Manager.
3.Government of N.C.T.of Delhi.
New Secretriate, I.P.estate,
New Delhi Through Chief Secretary.
4.The Commissioner of Police
Delhi Police H.Q. I.P.Estate,
New Delhi.
...Defendants
Date of institution of the suit: 04.02.2004
Date of reserving judgment : 16.10.2012
Date of judgment : 20.10.2012
CS No. 183/10 Page 1 of 12
Ramesh Kumar Vs. The Commissioner, MCD & Others
JUDGMENT
1. Ramesh Kumar (hereinafter referred as plaintiff) filed the present suit for recovery of Rs.10,00,000/- as damages for the loss of life of his son Pramod Kunmar against MCD, Delhi, BSES Rajdhani Power Ltd., Delhi Development Authority, Government of NCT of Delhi and the Commissioner of Police, New Delhi(hereinafter referred as defendants). It is pertinent to mention here that lateron DDA was dropped from the array of parties vide order dt.18.10.06 and the suit continued against the remaining four defendants. The plaintiff filed the suit as indigent person and an application under Order 33 CPC was moved. His application to sue as indigent person was allowed vide order dt.09.05.06.
2. The plaintiff has alleged that he was father of Master Pramod Kumar. Pramod Kumar along with his classmates/friends had gone to DDA park, Safdarjung Enclave, New Delhi for playing. While playing the game of ball Master Pramod came into contact with iron wire fencing put up by the defendant no.2 around the electrical junction box installed inside the above said park. He was electrocuted and died on 2.7.2000. Plaintiff made a report of the tragic death of his son in Police Station Sarojini Nagar but no action was taken. Plaintiff wrote to the higher police station. With the intervention of higher police officials case FIR No.165/2000 was ultimately registered at the P.S. Sarojini Nagar under Sec.304A of IPC but no action even thereafter was taken by the police. It is alleged that defendant no.2 was negligent and careless in installing or putting up electrical appliances/gadgets in public parks CS No. 183/10 Page 2 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others which are meant to be used exclusively by the public for recreational purposes. Defendant no.1 was also not maintaining the park, though it was the duty and responsibility of the officers of defendant no.1, due to which the son of the plaintiff lost his life which was only 11 years of age. He was the elder son of the plaintiff and source of solace and strength. Due to the untimely death of his son, plaintiff has suffered misery, sorrow and grief and it is very difficult for him to recover from it. It is alleged that plaintiff earlier filed civil writ petition no.1036/01 which was disposed off vide order dt.7.10.02 as Ld.Judge was of the view that the matter shall require leading of evidence to establish liability of the defendants and therefore, can not be decided in writ petition. However, the Hon'ble Judge granted a sum of Rs.25,000/-on the plaintiff as ex-gratia payment from defendant no.1 which has been paid. Notice under Section 80 CPC was given to the defendant but no action was taken, hence the suit.
3. Defendant no.1 filed the written statement taking the preliminary objections that present suit is not maintainable and he has also not mentioned as to what he calculated the alleged damages. Plaintiff has not come to the court with clean hands and suppressed the material facts. It is alleged that the panel board was closed properly and there was fencing to protect the panel board but the boy i.e.plaintiff's son intentionally opened the iron fencing with a wrong intention and in connivance of the plaintiff, he met with the electrocution. Therefore, the suit is liable to be dismissed. It is also alleged that suit is bad for non joinder/mis joinder of necessary parties. It is alleged that plaintiff has not served the required CS No. 183/10 Page 3 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others notice. In reply on merits, it is denied that the son of the plaintiff died while playing ball in the park, came into contact with iron wire fencing and died. All other averments have been denied. It is denied that defendant no.1 has any liability or was negligent in maintaining the panel board.
4. Replication to the written statement was filed by the plaintiff, wherein he denied the entire averments made in the written statement and reaffirmed the facts mentioned in the plaint.
5. Defendant no.2 filed separate written statement, alleging that the plaint is liable to be rejected under Order 7 Rule 11 CPC as no cause of action has arisen. It is alleged that according to the averments in the plaint Master Pramod got electrocutd due to leakage current in the panel Board of MCD horticulture department Pump House which is installd in a park opposite A-1/267, Safdarjung Enclave, New Delhi There was no negligence on the part of the answering defendant as the consumer i.e.MCD is responsible to take care and precaution for safe custody of equipment. The erstwhile DVB now BSES is in no way responsible for the said electrocution and they are not liable. It is also alleged that as per Rule 30 of Indian Electricity Rules, 1956 and the Act, it is the responsibility of the consumer i.e.MCD to take every precaution and care for the safe custody of equipment on his premises though belonging to the supplier i.e. BSES. Further in Sub-Rule 4 of Rule 30, it has been clearly mentioned that the consumer herein MCD is responsible and has to ensure that the installation under its control is maintained in safe condition. Herein the leakage current was in the panel of Pump Station installed in CS No. 183/10 Page 4 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others the park by the MCD Horticulture, therefore, the defendant is not responsible for the death of the child. In reply on merit all other averments are denied.
6. DDA also filed the written statement but as lateron DDA was deleted from the array of parties, hence it is not referred.
7. On behalf of the Commissioner of Police reply was filed. They admitted the factum of registration of FIR and that two accused persons namely Kamal Singh Mishra, MCD official and D.R.Madan were arrested and charge sheet has been filed which is pending trial. All other averments have been denied. Even otherwise no relief was claimed against them in the plaint. No reply was filed by Govt.of NCT of Delhi.
8. From the pleadings of parties, following issues were made out vide order dt.21.02.2007.
(i) Whether the plaintiff is entitled to recover the suit amount on account of damages as claimed for by him in the present suit? If so, then from which particular defendant.
(OPP)
(ii) Relief.
Thereafter, the case was fixed for plaintiff evidence.
9. Plaintiff filed his affidavit in evidence, wherein he supported his case and also proved the factum of death of his son and also the photographs of the junction box and the iron grill, after coming in contact with which his son died.
10. During cross examination on behalf of the BSES, the witness admitted that incident took place in park and MCD maintain this park but he denied the suggestion that DVB or BSES is not CS No. 183/10 Page 5 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others responsible. He also admitted that a pump station is installed in the park by the MCD Horticulture. There was some leakage in the pump station and due to leakage of electricity his son passed away.
11. During cross examination by MCD he stated that 20 to 25 children had gone to play with his son on the day which was a Sunday. He did not accompany the children. He denied the suggestion that DDA parks are only for walks etc and not for playing. He denied the suggestion that his son tried to open the panel board and tried to operate the tubewell, as a result of which the incident took place. He denied the suggestion that his son died due to his own negligence or that only BSES is responsible for that.
12. Plaintiff also proved the record of the criminal case by examining the Asst.Ahlmad from the court of Sh.S.P.S.Lalar, Ld.MM as PW-2.
13. Sh.Harish Kumar was examined as PW3. He supported the case of plaintiff. During cross examination, he stated that plaintiff has filed the present suit against bijliwala or MCD for their negligence. He also stated that he has no personal knowledge about this case.
14. Sh.Suber Khan was examined as PW-4. He was the IO of the case and get the postmortem conducted. He brought the certified copy of the postmortem report Ex.PW4/B. According to which Master Pramod died due to electrocution. His statement went unchallenged and uncontroverted.
15. Sh.Virender was also examined as PW-4, he was witness to the incident and he stated that that boys were playing cricket. During the play the ball was hit towards the electric junction box. Pramod went to take the ball and he came into contact with wire surrounding the box and was electrocuted. During cross CS No. 183/10 Page 6 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others examination by BSES he stated that "in my opinion that corporation as well as DVB both are liable for the death of the child". But nothing material came on record and denied the suggestion that he has not witness the incident.
16. Sh.Mahesh was summoned from Forensic Department, Safdarjung Hospital. He brought the record of the postmortem of Master Pramod and proved the same as Ex.PW5/1. He stated that he has no personal knowledge about the same.
17. Sh.S.S.Rawat, Medical Rcord Technician from Safdarjung Hospital was examined as PW6. He proved the MLC of the deceased.
18. Head Constable Ranvir Singh was examined as PW-7. He proved the copy of FIR.
19. Dr.Gaurav Vinod Jain, Associate Professor, Department of Forensic Medicine and Toxicology was examined as PW-8. He conducted the postmortem on the dead body and proved the report as Ex.PW4/B and proved his opinion that cause of death was "shock due to electrocution".
20. Sh.L.Baxla, Asst.Ahlmad from the court of Sh.Sandeep Garg, Ld.MM was examined as PW-9 and proved the record of the case FIR no.465/2000 and the statements. Thereafter, the plaintiff closed the evidence.
21. MCD examined Sh.Veer Singh as D1W1, who gave his evidence on affidavit proved on record as Ex.D1W1/A. He stated that there was no connivance of defendant no.1 and 2 and no notice was given and that the junction box was properly protected.
22. During cross examination, he stated that "it is correct that I was not part of any team of MCD which visited the spot after the CS No. 183/10 Page 7 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others incident". I was not having any knowledge of the arrangement/fencing made in the park where the incident has taken place.
23. BSES examined Sh.Phool Singh as DW2, who filed its affidavit stating that the child was allegedly electrocuted due to leakage of current in the panel board installed by the MCD Horticulture Department Pumping Station installed in park Opposite A-1/267, Safdarjung Enclave, New Delhi and it is the duty of MCD to keep the equipment installed at site at its premises in safe condition and not to allow any one to come into contact over the panel and the BSES RPL is no where responsible.
24. During cross examination, he stated that he does not have the personal knowledge of the same but depose only on the basis of record available. He admitted that the service line and the meter is installed by BSES existing panel board is installed by the MCD. He denied the suggestion that defendant is also liable. Thereafter, defendant no.2 also closed his evidence and the case was fixed for final arguments.
25. I have heard the Ld.counsel for plaintiff, Ld.counsel for defendants and perused the record. My issue wise findings are as follows.
26. Issue no.1:Whether the plaintiff is entitled to recover the suit amount on account of damages as claimed for by him in the present suit? If so, then from which particular defendant. Ld.counsel for plaintiff submitted that according to the evidence the son of the plaintiff Master Pramod aged about 8 years died due to electrocution. The postmartum report is proved as Ex.PW4/B by examining Dr.Gaurav Vinod Jain. In the postmartum report, it is CS No. 183/10 Page 8 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others specifically mentioned that the cause of death is electrocution. Ld.counsel submitted that in this regard testimony of Virender examined as PW-4 is very important. He was sitting in the DDA park at that time and he deposed that children were playing in the park with the ball. The ball went towards the electrical junction box. Master Pramod went to the junction box to pick up the ball and when he reached near it he was electrocuted. According to him he came in contact with the iron wire surrounding the junction box and he was electrocuted. Ld.counsel submitted that the testimony of Virender Singh has also not been breached or dented by the defence. A specific suggestion was given to Virender that DVB now known as BSES was not at fault but witness has specifically stated that Corporation and DVB both were liable for the death of child. Ld.counsel submitted that infact from junction box the electricity goes to the pump. The defence was that the child opened the junction box to operate the water pump and while doing so he was electrocuted. But no such defence is put to PW-4 and according to PW-4 the moment the child came in contact with iron wire fencing placed around the junction box he was electrocuted which clearly shows that there was leakage of electricity run from the junction box in the iron wire fencing surrounding the junction box. This was due to the negligent act and carelessness on the part of MCD as well as BSES in not taking care of the electric installations in the park which is frequented by the general public and is used by the children for playing. Ld.counsel submitted that due to the negligent act of MCD one valuable life has been lost and the plaintiff has lost his son due to which he has suffered mental CS No. 183/10 Page 9 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others agony and the vacuum in his entire life for all times to come which is created due to the loss of the son. Ld.counsel submitted that this loss can not be compensated in any manner what so ever not by the money but it will be only to compensate some of his miseries and the plaintiff for that reason valued the sum at Rs.10,00,000/-. It is prayed that the suit of the plaintiff be decreed.
27. Ld.counsel for BSES submitted that BSES has no liability as the junction box was installed in MCD park and as per the electric rules it is the duty and responsibility of the consumer to ensure that the installation are maintained in safe condition. It is also the duty of the consumer to take precaution for safety of the equipments installed in his premises though belonging to the supplier. Ld.counsel submitted that as the installation was in the care and custody of the MCD, therefore, it is the sole responsibility of MCD to pay the damages and there is liability of BSES in this regard.
28. Ld.counsel for MCD submitted that the installation was of BSES. The MCD has installed the wire fencing surrounding the junction box to protect it and to keep it safe but in the junction box itself there was leakage of electricity it was the sole responsibility of BSES to maintain the junction box as MCD can not maintain the junction box, therefore, resulting in the tragic death of Master Pramod. Ld.counsel submitted that MCD has nothing to do with this incident except that the incident took place in the park maintained by the MCD. It is prayed that suit against defendant no. 1 be dismissed.
29. After hearing the arguments and going through the record, I found that there is no denial from the fact that plaintiff's son died due to CS No. 183/10 Page 10 of 12 Ramesh Kumar Vs. The Commissioner, MCD & Others electrocution in the park maintained by MCD from the junction box of BSES. But now both the authorities are in a denial mode and does not want to own the responsibility. The fact is that the junction box is of BSES and it is the duty and responsibility of BSES to keep it safe and operational. It is also the responsibility of BSES to check that there is no leakage of electricity from the junction box and the duty and responsibility of MCD is to protect it by putting iron fencing or any other type of fencing, so that no person cancome in contact with or can reach to the junction box but both the authorities failed in discharging their duty. Neither the BSES was maintaining the junction box properly nor the MCD has taken care to put protection around the junction box. Only a wire fencing was put around the junction box, it was touching junction box resulting that the electricity leakage which was there in the junction box also travelled in the wire fencing and the boy when came in contact with iron fencing was electrocuted.
30. Under the circumstances in my opinion, the authority can not escape their liability. No doubt that no amount can compensate the loss suffered by the plaintiff due to untimely death of his son but his claim is only of Rs.10,00,000/- which in my opinion is not on the higher side. Nothing on record brough by the defendant to show that plaintiff is not entitled to this amount. On the other hand plaintiff has very well established that due to the mental agony, stress and the loss of love and affection he has suffered a lot and will continue to suffer the vaccum created during his life time. The issue is accordingly decided in favour of the plaintiff and against the defendant.
CS No. 183/10 Page 11 of 12Ramesh Kumar Vs. The Commissioner, MCD & Others
31. Relief.
Keeping in view the above discussions and the decision on the issue no.1, the suit of the plaintiff is decreed for a sum of Rs. 10,00,000/- (Rupees ten lac only) with 9% interest from the date of institution till its realization against the defendant no.1 and 2. The liability of the defendants will be joint and several. The suit of the plaintiff is decreed with cost. Decree sheet be prepared accordingly. Plaintiff filed this suit as pauper, therefore, the first lien on the decreetal amount will be of the court fee. File be consigned to Record Room.
Announced in open court On 20.10.2012 VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE-08 CENTRAL, DELHI CS No. 183/10 Page 12 of 12