Delhi District Court
Angoori vs Kesari Singh on 2 May, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 476618/2015
CNR No. DLNE01-000585-2014
1. Angoori
W/o Late Chottey Lal
2. Seema
D/o Late Chottey Lal
3. Ajay
S/o Late Chottey Lal
4. Ajeet Singh
S/o Late Chottey Lal
5. Duli Chand
S/o Late Chottey Lal
All residents of House No. 134,
Gali No. 2, Village Tukhmir Pur, Delhi. .....Plaintiffs
Versus
Kesari Singh
S/o Sh. Shiv Prasad Singh
R/o F-4/13, Gali No. 04,
Dayalpur, Delhi. ..... Defendant
Date of Institution : 02.01.2015
Date of Reserving Judgment : 01.05.2023
Date of Judgment : 02.05.2023
CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 1 of 13
JUDGMENT
1. The present suit has been filed by the plaintiffs for compensation against the defendant.
2. Brief facts, as stated in the plaint are that the plaintiffs are peace loving and law abiding citizens of India. Plaintiff number 1 is the widow and the plaintiff number 2 to 5 are children of deceased Chottey Lal. It is stated that deceased Chottey Lal was working with Public Works Department as Chowkidar and was drawing salary of more than rupees 27,000/- per month. It is further stated that the defendant is running the business of selling marble, tiles, stones etc. and having godown at F-4/13 Gali No. 04, Dalyalpur, Delhi. It is further stated that, on 25.11.2023, when the husband of plaintiff number 1 was returning back to his home and reached near the godown of the defendant, the wall of the godown fell down and the husband of plaintiff number 1 died.
It is further stated that due to the stacking of heavy marble slabs by the defendant against the wall of godown in the standing position, the aforesaid accident occurred. It is further stated that a First Information Report bearing number 671/2013 under section 288/304/337 Indian Penal Code qua the accident was also got registered before the police station Khajoori Khas, Delhi. It is further stated that all the plaintiffs were dependent upon the deceased Chottey Lal as they were studying and the plaintiff number 1 was the housewife. It is further stated that defendant was contacted on several occasions to compensate the plaintiffs but he had avoided his responsibility/duty on one pretext or the other.
It is further stated that the aforesaid accident was caused due to the negligence on the part of the defendant as the wall of his godown CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 2 of 13 was old and in dilapidated condition. It is further stated that on 27.10.2014, plaintiff personally visited the place of the defendant for compensation, but, defendant flatly refused to pay any compensation and instead threatened the plaintiffs. It is further stated that at the time of getting the anticipatory bail in criminal case, defendant had paid an amount of rupees 1,00,000/- to the plaintiff number 1. It is further stated that on 31.10.2014, plaintiffs also served legal notice upon the defendant thereby claiming compensation of an amount of rupees 15,00,000/- but defendant had never paid the same. It is therefore requested that a decree of compensation be passed in favour of plaintiffs.
3. Defendant entered the contest by filing the written statement. Apart, from denying the allegations levelled in the plaint, it is stated by the defendant that the plaintiffs had not approached the Court with clean hands and the claim of plaintiffs is based upon the mere fact that a police officer had registered a false and baseless case against the present defendant vide First Information Report bearing number 671/2013 under sections 288/304/337 of the Indian Penal Code. It is further stated that the plaintiffs had also not filed appropriate Court fees and therefore this suit is liable to be rejected. Further, plaintiffs had not mentioned the exact amount of compensation which they had received from the department of deceased. It is stated that through this claim, plaintiffs are claiming the compensation even for major children and therefore, this suit is liable to be rejected for mis-joinder of parties as major children are not entitled for any compensation.
It is further stated that the plaintiffs were basically extorting the defendant without any fault of the latter. It is further stated that the defendant and his family members are the permanent residents of the property and they vigilantly took care qua the stability of the structure and CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 3 of 13 the adjoining accessories of their residential properties. It is further stated that the defendant also used the said gali from the last ten years regularly and there was never any probability of the damage of the property or the wall as alleged. It is further stated that there is a drain/naali made and maintained by the East Delhi Municipal Corporation existed just in front and adjoining to the defendant's house/wall. It is further stated that the drain was not properly maintained by the East Delhi Municipal Corporation for which several complaints had been raised by the defendant. Defendant was never allowed to make repairs to the said drain by the East Delhi Municipal Corporation.
It is further stated that on 25.11.2013, hardly 6-7 foot height wall attached to the defendant's property got damaged due to the seepage from that drain. It is further stated that there is no link between the fall of the defendant's wall and the death of Chottey Lal. It is further stated that the deceased Chottey Lal illogically and unreasonably rushed towards and himself collided into the illegally parked auto bearing number DL 1LQ 6032 in the street itself and sustained injuries. It is further stated that the death of the deceased can never be linked to the defendant, but, to the auto owner or East Delhi Municipal Corporation and Delhi Police. It is further stated that at the time of getting anticipatory bail in bail application bearing number 2272/2013 vide order dated 03.12.2013, passed by the Hon'ble High Court of Delhi, though, defendant had paid an amount of rupees 1,00,000/- to the plaintiff but the same was paid without prejudice to the rights and contentions of the defendant. Accordingly, it is requested that suit of the plaintiffs be dismissed being devoid of merits.
4. Despite opportunities having being granted to the plaintiffs, no replication was filed.
CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 4 of 13
5. On the basis of pleadings, the following issues were framed:-
(I) Whether the plaintiffs have concealed the material facts and if so its consequences? OPD (2) Whether the suit is bad for misjoinder of parties? OPD (3) Whether the plaintiffs have not filed the proper Court fees? OPD (4) Whether the plaintiffs are entitled to the decree of compensation of Rs. 15,00,000/- as claimed in the prayer clause of the plaint? OPP (5) Relief.
6. Thereafter, plaintiffs have led their piece of evidence. Plaintiff number 1 Smt. Angoori got examined herself as PW1.She tendered her evidence by way of affidavit which is Ex.PW1/A and relied upon the documents i.e. copy of election card of petitioner number 1 inadvertently exhibited as Ex.PW1/A (OSR), copy of election card of plaintiff number 2, 4 and 5 as Ex.PW1/B (OSR) to Ex.PW1/D (OSR), copy of First Information Report bearing number 671/2013 as Ex.PW1/E, copy of postmortem report of deceased Chottey Lal as Ex.PW1/F, death certificate of deceased Chottey Lal as Ex.PW1/G (OSR0, legal notice dated 31.10.2014 as Ex.PW1/H, postal receipts as Ex.PW1/I and Ex.PW1/J. PW1 was cross examined at length by Ld. Counsel for defendant. During the course of her cross examination, she had stated that she is an illiterate lady. During the further course of cross examination, she had specifically denied the suggestion put to her by Ld. Counsel for defendant that she had deliberately not filed any relevant documents qua the service or income proof/benefits received by her on behalf of her husband.
Plaintiff number 3 and son of plaintiff number 1, Sh. Ajay had CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 5 of 13 also got examined himself as PW2. He tendered his evidence by way of affidavit which is Ex.PW2/1 and relied upon the document i.e. photocopy of his election I card as Mark A. Apart from reiterating the facts mentioned in the plaint, it is stated by him that he alongwith his mother had contacted the defendant on various occasions for compensating their loss but the defendant avoided them on one pretext or the other. It is also stated that plaintiff number 1 is the housewife and plaintiff number 4 and 5 are pursuing their graduation and all including plaintiff number 2 and PW2 were dependent upon the deceased. He was also cross-examined at length by Ld. Counsel for defendant.
Plaintiff number 4 and son of plaintiff number 1, Sh. Ajeet Singh had also examined himself as PW3. He tendered his evidence by way of affidavit which is Ex.PW3/A and relied upon the document i.e. copy of his election identity card as Ex.PW3/1. PW-3 has reiterated the same facts as are mentioned in plaint and also facts deposed by PW-1 in her affidavit. PW3 was cross examined by Ld. Counsel for defendant. During the course of his cross examination, it is specifically denied by him that the property bearing number F-4/13, Gali No. 4, Dayal Pur, Delhi-94 was not a godown.
Plaintiff number 5 and son of plaintiff number 1, Sh. Duli Chand had also got examined himself as PW4. He tendered his evidence by way of affidavit which is Ex.PW4/A and relied upon the document i.e. copy of his election ID card as Ex.PW4/1. He deposed on the same lines as are deposed by PW2 and PW3. The witness was cross examined by Ld. Counsel for defendant. During the course of cross examination, PW4 has stated that though the incident did not take place in his presence but he heard a loud noise and instantly reached on the spot as the spot was only 200-300 meters away from his residence.
Plaintiff number 2 and daughter of plaintiff number 1 had also CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 6 of 13 got examined herself as PW5. She tendered her evidence by way of affidavit which is Ex.PW5/A and also relied upon the document i.e. copy of her election I Card as Ex.PW5/1. PW-5 also deposed on the same lines as of other plaintiff's witnesses.
Thereafter, defendant led his piece of evidence. Defendant himself stepped into the witness box as DW1.He tendered his evidence by way of affidavit which is Ex.DW1/A and upon the documents i.e. copy of notice dated 22.09.2014 as Mark A, CD showing family misbehaving etc. as Mark B, copy of Income Tax Slip as Mark C and four original photographs as Mark D. DW1 was cross examined at length by Ld. Counsel for plaintiffs. During the course of his cross-examination, DW1 specifically denied that heavy stones were lying on/against the wall which fell down. DW1 had also submitted that he was threatened by the plaintiffs for compensation.
7. I have heard the arguments advanced on behalf of both the parties and perused the case file carefully. Written submissions filed on behalf of both parties also perused carefully.
In the written submissions filed on behalf of plaintiffs, apart from reiterating the contents of the plaint, it is stated by the plaintiffs in their written submissions that on 25.11.2023, while, returning to his house, the husband of plaintiff number 1 died by falling of the wall of defendant's godown leaving behind the plaintiff number 1 and other plaintiffs as legal heirs. It is stated that the incident was caused by the negligence of defendant as the wall was in dilapidated condition. It is also stated by the plaintiffs that all the relevant documents had already been exhibited by the plaintiffs in their defence while the defendant had failed to lead any evidence on his behalf. Thereafter, testimony of PW1 was discussed in which once again the contents of the plaint are reiterated. It is further CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 7 of 13 stated in the written submissions that defendant during the course of his evidence as DW1 had himself admitted that he is running a business of marble and is having a godown on the property in question and he had also clarified the height of the wall in question. It is also stated that the defendant had also admitted that the wall in question fell because of it's dilapidated condition.
Defendant has also filed written submissions in which it is stated by defendant that despite asking of Learned Predecessor on various dates, the plaintiffs failed to clarify the actual benefits amount they had received from the Public Works Department on the death of Chottey Lal. It is also stated that most of the plaintiffs were major at the time of death of Chottey Lal and they cannot be said to be financially affected by the death of Chottey Lal. It is further stated that the plaintiffs had already received an approximate amount of rupees 10 lakhs from Public Works Department alongwith the other service benefits. It is further stated that the wall of the house had collapsed due to the non-maintenance of drain in the street by Municipal Authority. It is further stated that Chottey Lal had expired due to his own negligence and not because of fault of defendant as alleged by the plaintiffs. It is further stated by the plaintiffs that the plaintiffs had tried to pressurize the defendant as plaintiffs were old residents of that area.
8. After recording the gist of evidence led by both the parties and discussing their written submissions in detail, let me record the findings on each issue.
Regarding, issue number 3 that is whether the plaintiffs have not filed the proper court fees? Onus of proving of which was upon the defendant. Vide order dated 16.02.2015, it was treated as preliminary issue. On 28.02.2015 as the plaintiffs had filed the deficient Court fees, Learned Predecessor Court accepted the same so, this issue is considered CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 8 of 13 to be disposed by Learned Predecessor Court itself.
Now, coming to issue number 4 that is whether the plaintiffs are entitled to the decree of compensation of rupees 15,00,000/- as claimed in the prayer clause? Onus of proving of which is on the plaintiffs itself, is taken up, firstly, as having some bearing upon all the other issues. Universally, it is an acceptable position that burden of proof regarding any issue lies upon a party which agitates it. As per Section 101 of the Indian Evidence Act 1872, as well burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Indian Evidence Act, 1872 is also in consonance with abovesaid section and stated that burden of proof lies on that person who would fail if no evidence was given at either side. Of course, the legal burden is the burden of proof which remains constant throughout a trial. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Thus, it is for the plaintiffs to prove the alleged negligence on part of the defendant.
Further, before proceeding the tortious liability and especially the aspect of negligence in the law of torts needs to be elaborated. In "Blacks Law Dictionary" (6th Edn.) at page 1489, 'tort' is defined as violation of duty imposed by general law or otherwise upon all persons occupying the relation to each other involved in a given transaction. There must always be a violation of some duty owed to plaintiff and generally such a duty must arise by operation of law and not by mere agreement of the parties. With respect to negligence in the context of tort liability, it is basically described as failure to use such care as reasonable, prudent and careful person would use, under similar circumstances. Also, it is the doing of some act which a person of ordinary prudence would not have CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 9 of 13 done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Basically, tortious liability arises from breach of duty primarily fixed by the law, such duty is towards persons generally and its breach is redressable by an action for unliquidated damages as mentioned by Sir Percy Winfield's in his "Province of the Law of Torts."
Again, negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes duty of care. Duty of care is, therefore, crucial to understand nature and scope of the tort of negligence. Forseability of damage, sufficiently proximate relationship between the parties and alongwith both the above requirements one more thing must also be seen that it is just and reasonable to impose such a duty of care. Regarding compensation it should be attributed to the willful conduct of the defendant his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts. The negligence lies in failure to take such steps as a reasonable, prudent man would have taken in the given circumstances. Negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes duty of care. Important question to be determined in such cases is whether the defendant has been negligent. The careless breach of duty will vary from case to case and it should not be unduly extended or confined or limited to all situations. The tort of negligence usually requires some form of careless conduct which is usually, although not necessarily, the product of inadvertence. Reliance is placed upon Raj Kot Municipal Corporation vs. Manjulben Jayatilal Nakum decided on 17th January, 1997 by Hon'ble Supreme Court of India and Smt. Krishna Devi and Ors. vs. Haryana State Electricity Board AIR 2002 Delhi 113.
CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 10 of 13 Now, applying the aforesaid principles on the facts of this case, it cannot be said the defendant had acted negligently whatever duty was cast upon the defendant under the law was discharged by the defendant. To be more specific, here the question is whether the precautions against a particular risk taken by the defendant fall below the standard that a reasonable man would have undertaken. All carelessness cannot be termed and caused under tortious liability. The Liability of defendant depends on not only careless behaviour of defendant but also causation of damage and forseability of that kind of damage to the plaintiffs. Most important of all it is to be seen that whether the injury which was suffered by the plaintiffs was reasonably forseable by the defendant. Plaintiffs have failed to prove/establish the link in terms of above between defendant's negligence and cause of accident/falling of wall. There is no exact or precise reason available/unearthed that how and why all of a sudden wall in question fell down. It was incumbent upon the plaintiffs to establish by proof that Late Chottey Lal death could be attributed to some negligent act or by some negligent omission on the part of the defendant. If that is not proved plaintiffs cannot be successful in establishing their claims of compensation.
Also, in the absence of direct proof, the circumstances which are established are equally not consistent with the allegation of the plaintiffs as plaintiffs are bound to establish the affirmative of proposition. Evidence would have been led by plaintiffs especially on the aspect that negligent conduct of accused and cause of the accident are directly linked within the ambit of 'careless breach of duty','proximity' and 'forseability'. If a case such as this is left in the position that nothing has been proved to render probable any one of two or more theories of the accident, then the plaintiff has failed to discharge the burden of proof incumbent upon him/her. The party seeking to recover compensation must make out that the CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 11 of 13 party whom he complains was in the wrong. The burden of proof is clearly upon plaintiffs and he must show that the loss is to be attributed to the negligence of defendant. Reliance is also placed upon Governor General of India in Council v Bibi Saliman AIR 1949 Patna 388 and Lord Wensleydale in Morgan v Sim (1857)11 MOOPC 307, 312.
With regard to the issue number 1 that is whether the plaintiffs have concealed the material facts and if so, its consequences? Onus of proving of which is upon the defendant. Defendant has failed to lead any evidence in that regard and neither any oral/written submissions made by the defendant. Further, there is no material on record as well to support this contention. Accordingly, this issue is decided not in favour of the defendant.
With regard to issue number 2 that is whether the suit is bad for mis-joinder of parties? Onus of proving of which is upon the defendant. In view of the findings already recorded qua the issues number 1 and especially issue number 4, it is not necessary to deal with the issue. However, it may be mentioned that Learned Counsel for defendant has not produced any evidence on record supporting this issue. Therefore, this issue is also not decided in the favour of the defendant.
9. Accordingly, in the view overall circumstances and also in light of foregoing discussion, the suit of the plaintiffs is liable to be dismissed. Plaintiffs cannot be granted any relief. This suit is accordingly dismissed.
10. Parties to bear their own costs.
11. Decree sheet be prepared accordingly, CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 12 of 13
12. File be consigned to Record Room after due compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 02nd May, 2023 CS No. 476618/2015 Angoori & Ors. Vs. Kesari Singh . Page No. 13 of 13