Delhi District Court
Kamal Prashad vs The Delhi Development Authority Ors on 1 November, 2023
IN THE COURT OF SH. RAKESH KUMAR SINGH
ADDITIONAL DISTRICT JUDGE -02, NORTH-WEST
ROHINI COURT: DELHI.
CS No: 76653/2016
Sh. Kamal Prashad
S/o Sh. Bhutto Prashad
R/o Jhuggi No. 131/32,
Ambedkar Camp, Haiderpur,
Police Station, Shalimar Bagh,
Delhi. ......Plaintiff
Versus
1. The Delhi Development Authority,
Through it's Vice Chairman - D.D.A.,
Vikas Sadan I.N.A., New Delhi.
2. M/s Vichitra Constructions Pvt. Ltd.,
Regd. Office :- A-1/31, Janak Puri,
New Delhi-110058.
Through it's Directors :- 1. Sh. R. P. Aggarwal,
2. Sh. R. N. Aggarwal, 3. Sh. R. A. Aggarwal.
3. Sh. Om Prakash S/o Sh. Pawan Kumar
R/o H. No. 360, Gali No. 6, Village : Hazipur,
Loni, Ghaziabad, U. P.
2nd Address :- Off. :- C/o M/s. Vichitra
Constructions Pvt. Ltd., A-1/31, Janak Puri,
New Delhi-110058. .......Defendants
Date of Institution : 02.07.2009
Date of arguments : 19.10.2023
Date of Decision : 01.11.2023
SUIT FOR DAMAGES
CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.1 of 9
JUDGMENT :-
1. A sewage system in any civilization has been a necessity and its proper maintenance & upkeep is a constant requirement moreso when we talk about a metro city like Delhi. There is an authority for ensuring the developmental activities and is referred to as Delhi Development Authority (DDA). As per necessity, the DDA wanted to have done some sewage work for the betterment of general public and therefore, as per usual practice, it awarded the work contract to a company namely, Vichitra Constructions. The company started the work during which it dug up some portions on a specific road. It is in such place that a person namely, Kamal Prasad fell down in the night of 12.06.2008 and got severe injuries, though he was saved. He wanted compensation for the injuries so sustained and therefore, came up with a suit. He was allowed to sue as pauper because he was found to be unable to pay the court fee.
2. The said Kamal Prasad made three defendants in the suit, namely, the DDA, Vichitra Construction and its supervisor Om Prakash. All appeared and contested the suit by filing WS. Replication was also filed by the plaintiff Kamal Prasad. The Ld. Predecessor on 06.10.2010 framed following issues:
1. Whether this court has no territorial jurisdiction to entertain the suit as alleged in preliminary objection no. 2 in the WS? OPD-2, 3
2. To what amount of damages, if any, the plaintiff is entitled from defendant ? OPP
3. Relief.
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3. The Ld. Predecessor allowed the parties to lead evidence wherein the plaintiff examined himself alongwith Sh. Pankaj, Sh. Sita Ram, Sh. Shiv Balak, ASI Jai Prakash, Sh. Rama Shankar Ram, Sh. V. K. Madan, HC Pradeep Kumar, Dr. Shipra Rampal, Dr. Neeraj Chaudhary, Dr. Ashish Goyal. DDA examined one witness namely Sh. V.K.Madan (who was also examined on behalf of plaintiff). Vichitra Constructions examined one witness namely, Sh R.A. Aggarwal. Both the sides have been heard. On perusal of the record, I proceed to dispose of the case through the present judgment.
4. So far as DDA is concerned, it has been made a party to the proceeding by the plaintiff on the premise that it was the DDA which had given the contract and it was it's duty and responsibility to supervise the functioning of the contractor. I am of the view that DDA was acting for the good of general public and was not acting for generating any profit. In such circumstances, if the DDA is to be made liable, there has to be an ascertained negligence instead of assumed negligence. The entire plaint of the plaintiff is premised on assumed intelligence. Even during the evidence, the plaintiff has not brought anything which can establish the negligence of DDA officials with certainty. There is no proof that any complaint was made to the DDA regarding any misadventure or any deficiency in the contract work. The DDA officials were no doubt required to cross-check the work of the contractor but the law does not say that they should do it on daily basis and during all the hours. Even this cannot be practically feasible. In the absence of clear proof regarding negligence of DDA, it cannot be made liable to any CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.3 of 9 tortious liability moreso when it was not doing the work for profit.
5. So far as Om Prakash is concerned, he appears to have been made a party on the premise that there was some resolution of contractor to appoint this Om Prakash as supervisor. It would be interesting to note that on the one hand the plaintiff is disputing the authenticity of such resolution and on the other hand he is making Om Prakash as party because through such resolution Om Prakash was appointed as supervisor. I am of the opinion that plaintiff cannot blow hot and cold at the same time. Even if it was to be believed that Om Prakash was appointed as supervisor, he would still be an employee of the contractor and in such circumstances, the liability will be of the principal instead of the servant. It is entirely another thing as to how the contractor (employer) will deal with this Om Prakash even if it finds that the said Om Prakash is at fault in his duties assigned by the contractor. Any third person like plaintiff cannot claim liability against the employee. The responsibility will be of principal instead of the servant in respect of any third person. In such circumstances, this Om Prakash cannot be made liable so far as tortious liability is concerned.
6. In the present suit, I am of the opinion that only the contractor namely, Vichitra Constructions will be liable towards the plaintiff for tortious liability.
7. It appears that the contractor has not been able to dispute the incident itself. Plaintiff and his witnesses have remained firm on the fact that the incident did happen. There is nothing in their CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.4 of 9 cross-examination which can even remotely suggest that the incident did not happen. The entire focus of the contractor has been on the claim that there was proper safety precaution and it was the fault of plaintiff himself. The claim that incident was the fault of plaintiff, itself goes to show that the contractor is not disputing the occurrence of incident. Therefore, there is no further requirement for the plaintiff to prove the incident. Even during the arguments, the Ld. Counsel for the contractor was half-hearted in denying the incident and even he stated that the plaintiff should be awarded some nominal compensation which the contractor will be ready to pay.
8. The plaintiff and his witnesses have remained firm on the claim that there was no light and the concerned area was not protected. There is nothing in their cross-examination to suggest otherwise. I do not have any reason to disbelieve the version projected by the plaintiff and his witnesses.
9. We have to bear in mind that the contractor was not working for any public good. It was working to gain profit. A person who works for profit has to remain alive to the ground realities. A person who digs the road has to remain vigilant to the actual situation and possibility of any mishappening cannot be ruled out. In my opinion if a person works for profit and his work disturbs the public in any manner, he has to be made liable irrespective of his negligence. In such type of cases, we should follow the concept of absolute liability. When the contractor was digging the road, it was a well aware that the same may attract any type of incident because the road is a public place. It was for the contractor to ensure that not only sufficient precautions are CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.5 of 9 taken but also some person remains available at the site throughout to signal the general public not to come across the relevant area. Such type of duty cannot be avoided simply by saying that certain Supervisor or Watchman was appointed. The contractor may take action if its employees have not performed their duties appropriately but the contractor cannot avoid the liability towards any third person.
10. The Ld. Counsel for the contractor during oral arguments had tried to persuade this court by saying that the plaintiff was under the influence of liquor and that this was stated by the witness in the criminal case. Even an application appears to have been filed for placing on record a copy of deposition of such witness given before the criminal court. This copy is not signed nor even authenticated. I am unable to rely upon such copy. Even further, the witness namely Sh. Yogesh has not been examined in this case and therefore the said deposition cannot be utilized in the present case. Even otherwise, the contractor had not taken a defence that plaintiff was under influence of liquor. A civil suit has to be considered through the pleadings and evidence unlike criminal trial where there are no pleadings at the base.
11. In view of the aforesaid, I am of the opinion that the incident did occur and the plaintiff is entitled for compensation. So far as the actual amount of compensation is concerned, it seems that initially the claim of Rs. 18,00,000/- was made by the plaintiff without giving any details. The plaintiff had subsequently filed his own assessment affidavit indicating that he is entitled for Rs. 43,82,000/- by way of calculation adopted in CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.6 of 9 MACT cases. Pertinently, this assessment affidavit was filed well after the conclusion of evidence from both the sides.
12. The entire premise of the plaintiff is that he was earning Rs. 10,000/- per month earlier. Perusal of the evidence shows that no proof has been produced by the plaintiff to support his claim that either he was working as a driver or that he was earning Rs. 10,000/- per month. Apparently, he was a casual worker who had to remain without work for some days in every month (even this casual work is a bare claim of the plaintiff without any supporting proof). In the cross-examination, he accepted that he was not permanently employed anywhere for the last 7-8 years prior to the incident. He has not provided as to what was the daily wages. He has not even provided any detail of the person who had employed him on the day of incident. There is nothing to establish any clear income of the plaintiff. Though, there is no proof of daily wages established by the plaintiff, I am of the opinion that in the year 2008 a person in the position of plaintiff might have earned Rs. 200/- per day. A lump sum monthly income of Rs. 5000/- can be accepted, as the plaintiff would have remained without work for some days every month.
13. Though, the plaintiff has stated his disability to be 30% but the doctor issuing the disability certificate has refused to comment on whether the disability pertains to working capacity or not. In such circumstances, it cannot be accepted that with such disability, the plaintiff was completely rendered unable to work for his livelihood.
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14. For a 15 years period from the suit till the decision, the amount will come to around Rs. 9,00,000/-. No doubt, during this period the earning capacity might have increased but the same should not be considered as it was not an actual happening. Further a converse situation may also be possible that in real life the earning capacity of plaintiff might have diminished. However, the inflation for the said period shall be taken care of while providing for interest. So far as future life expectancy is concerned, the plaintiff himself has given life expectancy of 65 years. He was at the age of 43 years at the time of incident. We have already passed 15 years from the said incident. However, the defendant cannot be burdened with any liability to care for the plaintiff for entire life. Not only, there was no total disability but also if the plaintiff is compensated, he can utilize the amount to look after his life. A suit for tortious liability cannot be converted into a money recovery mechanism. Even the calculation based on the MACT criteria cannot be fully applied in such cases. I am of the opinion that Rs. 9,00,000/- would be sufficient to meet the ends of justice. The issue no. 2 is decided accordingly in favour of the plaintiff and against the defendant no. 2 i.e. Contractor company.
14. So far as issue of jurisdiction is concerned, the Ld. Predecessor appears to have framed the said issue on the objection raised by the contractor on the premise that none of the defendants is resident of the area under jurisdiction of this court. It however appears that the incident site falls within the jurisdiction of this court and therefore, cause of action has arisen within the jurisdiction attracting Section-20(c) of CPC. The CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.8 of 9 Issue No.-1 is decided against the defendants and in favour of the plaintiff.
15. In view of the aforesaid discussion, it is held that the plaintiff shall be entitled for Rs. 9,00,000/- (Rupees Nine Lacs) as compensation from the contractor company namely M/s Vichitra Constructions Pvt. Ltd. This amount shall carry an interest of 6% from the date of decree till the realization. So far as interest for period starting from the date of incident till the decision of the case is concerned, a lump sum interest of Rs. 2,00,000/- is allowed in favour of the plaintiff which shall not carry any further interest. No costs. Decree sheet be prepared accordingly.
16. Since, the suit was filed by the plaintiff as indigent person, the court fee for the amount of Rs. 9,00,000/- is to be calculated in terms of Order 33 Rule 10 CPC. The Reader of this court has calculated the amount and has provided the figure of court fee at Rs. 11,128/-. This Court Fee shall be recoverable by the Government from the defendant no. 2 i.e. M/s Vichitra Constructions Pvt. Ltd. in accordance with law. A copy of decree shall be forwarded to the concerned Collector for appropriate action.
Announced in the Open Court
on 1st of November, 2023. Digitally signed by
RAKESH RAKESH KUMAR
KUMAR SINGH
Date: 2023.10.17
SINGH 08:24:23 +0530
(RAKESH KUMAR SINGH)
Additional District Judge-2 (North-West)
Rohini Courts: Delhi
CS DJ No. 76653/2016 Kamla Prasad vs. DDA & Ors. Page no.9 of 9