Delhi District Court
Smt. Bimla Devi vs Sh. Uttam Singh on 13 February, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
New No. 13389/16
In re:
1.Smt. Bimla Devi
W/o Shri Jasbir Singh
2. Sh. Jasbir Singh,
S/o Late Jaidev Singh
Presently residing at
K-156, Gali No. 4, Old Rangpuri Road,
Mahipal Pur, New Delhi-110 037 ......... Plaintiffs
Versus
Sh. Uttam Singh,
S/o Late Narain Singh,
R/o Flat No. 1338 A, Pocket B-1,
Vasant Kunj,
New Delhi-110 070
Also At
C/o M/s Malika,
48/4, Near Priya Cinema, Basant Lok,
Vasant Vihar,
New Delhi- 110 057 .......Defendant
SUIT FOR DAMAGES OF RS. 18,25,000/- (RUPEES EIGHTEEN
LAKHS TWENTY FIVE THOUSAND ONLY) ALONG WITH
PENDENTLITE INTEREST @ 12% P.A.
Date of institution of present suit : 13.12.2006
Date of receiving in this court : 19.08.2016
Date of reserving order : 27.01.2017
Date of Judgment : 13.02.2017
JUDGMENT
1. Brief facts of the case are that both plaintiffs are permanent CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 1 of 21 residents of Delhi and before 11/12.07.2005, plaintiffs were residing at L- 10, Red Light Chowk, Mahipal Pur Extension, New Delhi with their family members and thereafter are residing in a rented premises at K-156, Gali No. 4, Old Rangpuri Road, Mahipal Pur, New Delhi-37. It has been further mentioned that plaintiff no. 2 and the defendant are cousin and have inherited their respective plots from their ancestors and plot No. L-11, which is adjoining to the house of the plaintiffs is owned and possessed by the defendant and plot no. L-10 which is owned and possessed by the plaintiffs is about 300 sq. yards and was having covered/constructed area of about 1575 sq. feet at the time of incident. It has been further mentioned that without complying with the rules and regulations and without caring and following the safety measures while constructing the basement, defendant started digging of his plot No. L-11 for the purpose of basement and also of other floors and defendant dug the back side of the above said plot, about approximately 9/10 feet deep, very close/adjacent to the common wall of the plaintiffs. It has also been mentioned that plaintiffs advised the defendant to be more careful and cautious for the purposes of carrying out /ferrying away the dugged soil, the way was created from the road till the back yard of the vacant plot, resulting in the lowering down of the front portion of the plot to the level of the road and because of that, there was every possibility of accumulation of the rainy water in the dugged area of the vacant plot i.e. at the back side of the vacant plot as well as of the constructed portion of the plaintiffs. It has been further mentioned that defendant assured to the plaintiffs that he would take necessary precautions and said plaintiffs should not worry about safety to their persons and property because of this reason.
2. It has been further mentioned that on 11.07.2005, plaintiff no. 2, his young brother Sh. Vinod Kumar and Sh. Jagdish, uncle of plaintiff CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 2 of 21 no. 1 visited the site and they noticed that the defendant has not taken any precaution and even some soil was being dugged and carried out by the workers of the defendant from the pit of the backside area and plaintiff no. 2 protested for the same and they reminded to the defendant, the commitment made by him and also his concern to the person and property of the plaintiffs and their family members and cautioned him that his irresponsible behavior of the defendant may prejudice the safety and security of the plaintiffs and their family members and defendant was advised to take precautionary measures i.e. fixing of pillars and the construction of the wall near and adjacent to the building of the plaintiffs in order to avoid any mis-happening and on this defendant assured them that he would not dig the pit further and he would construct the pillars and the wall first near to the building/common wall of the plaintiffs and he would deploy the necessary manpower on the plot to rule out the possibility of entering/seepage of the rainy water in the dugged portion of his plot. It has also been mentioned that he discussed the issue with the contractor and also with the architect and they said that there is no chance of any damage to the property of the plaintiffs and that he was taking proper safety measures in this regard and he further committed that defendant would not dig further the backyard portion of his plot near to the building of the plaintiffs unless the pillars and wall was constructed by him first.
3. It has also been mentioned that on the intervening night of 11-12th July, 2005, there was heavy rain in the area and defendant did not take any steps to prevent the entry of the rainy water in the back portion of his plot and there was nobody from his side to take any emergency steps to avoid/prevent happening of untoward incident and due to this water gathered/accumulated on road and because of this gross negligence and careless attitude of the defendant, the rainy water at CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 3 of 21 about 1.30 am of the said night slipped in the dugged portion of the plot of the defendant through the path/way which was created for ferrying/carrying away the dugged material and because of this the pit could not sustain the weight of the soil/dugged material which was accumulated near the pit and the water which got accumulated in the pit, also sipped into the wall of the plaintiff which caused severe damage to the wall of the plaintiffs and because of this the wall could not sustain the weight of the roof of the building and the back side area of the plaintiffs fell down. It has been further mentioned that because of seepage of the water in the boundary wall and foundation of the house of the plaintiffs in the back side area, in the midnight, some big cracks developed in the wall and because of that there was stumbling in the building of the plaintiffs and this was firstly noticed/felt by the plaintiff no. 1 in the midnight and feeling danger to the person and property, she started raising alarm to wake up the family members and in this process she sent the children outside the rooms and thereafter she asked plaintiff no. 2 to wake up and rush out of the bed room. It has been further mentioned that while coming out of the room, when the plaintiff no. 1 noticed that the roof of the bed room is falling down/crumbling she gave a push to the plaintiff no. 2 and suddenly a beam of the master bed room fallen down on the heads of the plaintiffs and because of this plaintiff no. 2 sustained minor injuries and plaintiff no. 1 sustained severe injury to the spinal cord and in the head.
4. It was further mentioned that eldest son of the plaintiffs namely Master Alok when found that his parents have sustained injuries, he ran straight to Lal Batti Cowk shouting for help and called local police/PCR and also sought help from neighbours, all of whom came to rescue the plaintiffs and thereafter plaintiffs were taken to Indian Spinal Injuries Centre, Vasant Kunj, Delhi by the younger brother of plaintiff no. 2 and by the PCR van and both of them were admitted in the above said CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 4 of 21 hospital and local police of PS Vasant Kunj registered an FIR bearing no. 416/05 dated 12.07.2005 against the defendant and the police had filed the chargesheet against the defendant in the court of Ms. Vrinda Kumari, the then MM, New Delhi. It has been further mentioned that plaintiff no. 2 got himself discharged from the hospital on 13.07.2005 as there was no one in his family to arrange the blood, medicines and finance/money for the operation and post operative care/treatment of his wife who was seriously injured and was to be operated on 14.07.2005. It has been further mentioned that after examining the body of the plaintiff no. 1 and after noticing the injuries, doctors finally diagnosed fracture dislocation C-7-T1 with quardiparesis with blader and bowel involvement. It has been further mentioned that plaintiff no. 1 was operated upon by the doctors and she remained in hospital for a period from 12.07.2005 to 02.11.2005 and thereafter she was discharged from the above said hospital with advise that she must visit the hospital for follow-up check up/treatment.
5. It has been further mentioned that from the time of her discharge, the plaintiff no. 1 is bed ridden and she is unable even to stand on her legs and she always remains bed ridden. It has been further mentioned that some parts of body of plaintiff no. 1 has no sensation. It has been further mentioned that due to carelessness, rashness and criminal negligence of the defendant, plaintiff had suffered the expenses of Rs. 18,25,500/- towards medical expense, loss/damage caused to the house, mental agony, suffering, loss of love and affection, physical pain, house rent @ 6000/- per month from July, 2005 till Oct, 2006. It has been further mentioned that plaintiff no. 1 is permanently bed ridden and has become practically handicapped as he is dependent even for her daily routine course/activities on the attendant/on her family members and because of this plaintiff no. 2 is unable to concentrate/carry out his CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 5 of 21 business of building material supplier as he has to remain present in the home to look-after and attend his bed ridden wife. It has been further mentioned that plaintiff issued a legal notice of demand dated 12.01.2006 through their counsel on the last known and correct address of the defendant but said notice was returned undelivered, thereafter, plaintiffs sent again legal notice dated 27.01.2006 at the residential house of the defendant but the same was also returned with the remarks "Baar Baar Jane Vah Soochna Dene Par Bhi Prapat Karta Nahin Milta, Ataha Vapis. And the said notice sent by the courier at the residential address of defendant by post returned with the remarks "Liya Nahi". Notice was also sent to the business address of the defendant but same was served. It has been further submitted that defendant sent a false and frivolous counter reply dated 08.02.2006. It has been further mentioned that after the above said incident, on the persuasion of the friends and common relatives some meeting took place for compromise in the matter but no fruitful purpose served. Hence the present suit.
6. Upon service of summons defendant filed written statement and thereby raising preliminary objection that plaintiffs have not come to the court with clean hands; that suit has not been properly verified in accordance with law; that plaintiff has no cause of action particularly in backdrop of the facts set out in para 21 of the plaint; that it may be noticed that the cause of action possible may have accrued to plaintiffs on the day the rear portion of the plaintiffs' property collapsed on account of excessive rain but suit is barred by limitation; that suit suffers from mis- joinder of plaintiffs. On merits, it has been admitted that plaintiffs were living in property bearing no. L-10, Red Light Chowk, Mahipal Pur Extn. It has been further admitted that to the extent that plaintiff no. 2 and defendant are cousins and in their capacity came to inherit the stated two plots of their ancestors. It has been further admitted that plot no. L-11, CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 6 of 21 Red Light Chowk, Mahipal Pur Extension is owned by defendant but denied that plot no. L-10, Red Light Chowk, Mahipal Pur Extension can be said to be owned by the plaintiffs. It has been further pleaded that the plots in question were being used for MICA mining for considerable period of time and the sub-soil constituted of mud and mica slurry was not stable enough to sustain a construction without it being rested on deep embedded pillars and beams and the plaintiff with the knowledge that the soil was not suitable for construction of a dwelling unit, proceeded to construct the same which remained unstable and awkwardly resting on insecure foundations. It is further submitted that portion of the house collapsed which collapse could be attributed to various other reasons set out particularly the condition of the sub-soil and soundness of the foundations due to which some injuries were caused. It has been further submitted that defendant had advanced a loan of Rs. 70,000/- to the plaintiffs and rendered all possible help to the plaintiff not for the reason of their having sustained injury due to the negligence on the part of the defendant. Defendant denied having undertaken any construction or digging or any negligence on his part. Rest of the contents of the plaint was denied by the defendant.
7. Plaintiff filed replication thereby denying the averments made in the written statement and reiterated the contents of the plaint. Rest of the contents of the written statement was denied by the plaintiff.
8. On the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 13.09.2007:
1. Whether the suit is bad for misjoinder of plaintiff no.2 as no cause of action arose in favour of plaintiff no.2? OPD.
2. Whether the plaintiffs suffered expenses/damages/losses on CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 7 of 21 account of carelessness, rashness and criminal negligence of the defendant by virtue of digging out of the backyard portion of the plot of defendant which led to collapse of backside area of the plaintiffs and injury to the plaintiff? OPP.
3. Whether the plaintiffs suffered the loss to the extent of the amount claimed in the suit? OPP.
4. Whether the collapse of the portion of the property of the plaintiff was on account of excessive rains and beyond the control of the defendant? If so, its effect? OPD.
5. Relief.
9. In order to prove plaintiffs' case, plaintiffs examined as many as seven witnesses. Plaintiff No. 2 examined himself as PW-1 and he relied upon documents i.e. copy of FIR Ex. PW-1/1 (mark A), copy of CD Ex. PW-1/A, print photographs Ex- PW-1/B1 to Ex. PW-1/B5 and the negatives of the same Ex. PW-1/B1 to Ex. PW-1/B5, medical papers/documents showing the treatment of his wife and medical expenses Ex. PW-1/C1 to Ex. PW-1/C75 (colly), estimate of the construction cost given by the Architect M/s Srijan Architects Ex. PW- 1/D(Colly.), certificate issued by landlord showing the receipt of the monthly rent Ex. PW-1/E, legal notice Ex. PW-1/F, registered postal receipts Ex. PW-1/G1, Ex. PW-1/G2, courier receipts Ex. PW-1/H1 and Ex. PW-1/H2, legal notice Ex. PW-1/2, registered postal receipts Ex. PW- 1/3 and Ex. PW-1/3A, courier receipts Ex. PW-1/4 and PW-1/5, notice sent by registered AD post at residential address ex. PW-1/I, notice sent by courier at residential address Ex. PW-1/J and notice sent by registered post at the business address of defendant Ex. PW-1/K(now de-exhibited and same be read as Ex. PW-1/4 and Ex. PW-1/5), notice sent by courier at the business/official address Ex. PW-1/6, counter reply dated 08.02.2016 to legal notice Ex. PW-1/7, postal cover Ex. PW-1/8. PW-1 CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 8 of 21 cross examined by Ld. Counsel for defendant.
10. PW-2 is summoned witness namely Head Constable Yogender Dutt, PS Vasant Kunj, New Delhi who brought the summoned record i.e. FIR bearing no. 416/05 dated 12.07.2005 for the offence U/s 288/337IPC and the copy of the same is Ex. PW-2/A (OSR). He was also cross examined by Ld. Counsel for defendant. PW-3 is Sh. Rakesh Kumar, Senior Tech EMR of Indian Spinal Injury Centre, Sector-C, Vasant Kumar, New Delhi who was authorised by Medical Superintendent concerned Dr. P. H. Mishra to attend court proceeding of this case and authority letter in this regard is Ex. PW-3/1 and he proved and verified the signature of Dr. P. H. Mishra as he has seen him signing the documents during the course of his official duty and proved the medical records of Smt. Bimla Devi. He was also cross examined at length by Ld. Counsel for defendant.
11. Plaintiff also examined Sh. Vinod Kumar as PW-4 as public witness and he was also cross examined by Ld. Counsel for defendant. PW-5 Sh. Amit Sangwan was also examined by plaintiff and who proved the document Ex. PW-1/E which was issued by him i.e. monthly rental receipt and he was also cross examined by defendant's counsel. Plaintiff examined Sh. Jagdish Chandas as PW-6. Plaintiff also examined Sh. S. S. Rawat, Medical Record Technician, Safdarjung Hospital as PW-7 who brought the summoned record pertaining to disability certificate No. 2- 21/07-MR/297 dated 05.10.2007 in respect of Bimla Devi and same is Ex. PW-7/A (OSR).
12. Plaintiffs examined plaintiff no. 1 namely Bimla Devi as PW-8 at her residence through Local Commissioner. PW-1 relied upon documents i.e. copy of CD broadcast by Total T. V. Ex. PW-1/A, CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 9 of 21 photographs and negatives already Ex. PW-1/B1 to B5, medical papers/documents showing the treatment and her medical expenses already Ex. PW-1/C1 to C-75, estimate of cost of construction given by Architect M/s Srijan Architects already Ex. PW-1/D (Colly.), certificate issued by landlord showing the receipt of the monthly rent already Ex. PW-1/E, legal notice already exhibited as Ex. PW-1/F, registered postal receipts Ex. PW-1/G1 to PW-1/G-2, courier receipts already Ex. PW-1/H1 and PW-1/H2, legal notice already Ex. PW-1/2, registered postal receipts already Ex. PW-1/3 and PW-1/3A, DTDC courier receipts already Ex. PW-1/4 and PW-1/5, legal notice sent by registered AD at residential address already Ex. PW-1/4, notice sent by courier at residential address already Ex. PW-1/5, notice sent by registered post at the business address already Ex. PW-1/K, notice sent by courier at business/office address already Ex. PW-1/6, reply dated 08.02.2006 already Ex. PW-1/7, postal cover already Ex. PW-1/8, copy of FIR already Ex. PW-2/A and medical board constituted by the Safdarjung Hospital has declared 100% handicapped vide certificate no. 2-21/07MR/297 dated 05.10.2007. She was cross examined by Ld. Counsel for defendant.
13. Defendant though examined himself as DW-1 but practically did not lead any evidence in his examination in chief except for exhibiting chage sheet Ex. DW1/A (colly) i.e. certified copies of chargesheet filed in FIR No. 416/2005 PS Vasant Kunj including documents filed by the investigating officer. He was cross examined by Ld. Counsel for plaintiff.
14. Testimony of respective witnesses have been appreciated while recording issue wise findings in order to avoid repetition
15. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 10 of 21 respective Counsel for parties, issue wise findings as under:-
Issue No. 1: Whether the suit is bad for misjoinder of plaintiff no.2 as no cause of action arose in favour of plaintiff no.2? OPD.
16. Onus to prove this issue is upon the defendant. However, mere perusal of plaint shows that the damages which has been claimed in the plaint pertains to damages on account of injury, mental agony, physical pain, loss of love and affection, damaged cause to the house and house rent. Plaintiff no. 2 is also a victim as plaintiff no. 1, who is wife of plaintiff no. 2 sustained such injuries which has reduced her to the vegetable state below her neck. In these circumstances, it is the plaintiff no. 2, who is also suffering loss of love and affection of his wife beside playing her role in his family. Apart from this, damages are also in respect of house rent which is necessarily being paid by the plaintiff no. 2 for living in rented accommodation following damage and destruction of the house which plaintiff no.2 with his family was living in and therefore, in these circumstances, it cannot be said that suit is bad for misjoinder of plaintiff no. 2 as no cause of action has arisen in favour of plaintiff no. 2. It is made clear that having cause of action does not mean success in the suit. Cause of action is described as bundle of facts which if traversed is required to be proved by leading cogent evidence. Having cause of action and disclosing cause of action are two different concepts. A plaint which does not disclose cause of action may be rejected for want of cause of action but a plaint disclosing cause of action or plaint having cause of action may or may not succeed after the trial for various different reasons. Therefore, holding that plaintiff no. 2 has cause of action here does not be taken to mean that plaintiff has proved his case. It is only on the basis of averment made in the plaint, it is hereby held that plaintiff no. 2 too has cause of action against the defendant.
CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 11 of 21 Accordingly issue no. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE No. 2: Whether the plaintiffs suffered expenses/ damages/ losses on account of carelessness, rashness and criminal negligence of the defendant by virtue of digging out of the backyard portion of the plot of defendant which led to collapse of backside area of the plaintiffs and injury to the plaintiff? OPP.
17. Onus to prove this issue is upon the plaintiff. Before appreciating the evidence led on behalf of plaintiffs, it is pertinent to note here that it has not been disputed that plaintiff no. 1 had suffered permanent disability to the extent of 100% immovability and it has not been disputed that such injury was caused to the plaintiff no. 1 on account of the fall of the roof and wall of the house she was living in. It has also not been disputed that such incident took place on the night of 11-12/.07.2005. It was also not disputed that house of the plaintiff collapsed due to seepage of water or accumulation of water near the wall of the house of the plaintiff.
18. It is the case of the plaintiffs that the roof and wall of the house of the plaintiff gave way on account of seepage of water due to accumulation of water in the pit that was dug by the defendant near the back wall of the house of the plaintiffs for the purpose of raising construction whereas the case of the defendant is that roof and wall of the house of the plaintiff gave way due to heavy rain. In the written statement, defendant has pleaded that the plot in question (both of the plaintiffs and defendant) were being used for mica mining for considerable period of time and the sub soil constituted of mud and mica slurry was not stable enough to sustain a construction without it being rested on deep embedded pillars and beams. It has been further pleaded CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 12 of 21 by the defendant that plaintiff with the knowledge that the soil was not suitable for construction of a dwelling unit proceeded to construct the same which remained unstable and awkwardly resting on secure foundation. As per defendant the construction came to exist on a seemingly land fill and no expert opinion about the type of soil underneath was obtained and in a land fill of this nature it is highly possible that the land sinks underneath the construction thereby endangering superstructure which fault seems to have been aggravated on account of excessive rain on account of seepage of rain water from all sides of house including dilapidated nallas in the vicinity of the constructed house. It has been contended that even if it is assumed without admitting that some depression existed in the adjacent plot of defendant the said depression could not be the only contributory to the seepage of water underneath the house of the plaintiffs. It has been further pleaded that the collapse did not take place on account of the defendant but was on account of act of God without in any way suggesting any act of omission and commission on the part of defendant who did not undertake any construction activity as on 11-12/07/2005.
19. Both the plaintiffs have filed their respective affidavits and have deposed in their respective examination-in-chief that defendant firstly dug the backside of his plot about approximately 09-10 feet deep very close/adjacent to the wall of the house of the plaintiffs. Plaintiffs and other members of his family, relative and neighbours had requested defendant for taking proper safety measures and had also advised to first dig a pit of about 04-05 feet then construct wall by fixing pillars and thereafter repeat the same so that no damage is caused to the person and property but the said advised was not acted upon. It was further deposed by them that the front side of the plot of defendant was two feet higher than the road level and as a result of which rain water used to be CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 13 of 21 accumulated on the street and were never flowing down to the backside. However, when defendant starting raising construction a ferry way was created from the road till the backyard of the vacant plot of defendant resulting into the lowering of front alleviation of the plot of the defendant and therefore the rain water which used to be accumulated on the street found way to trickle down to the back of the plot of the defendant and accumulation of rain water started taking place in the dug area of vacant plot near the house of the plaintiff. Defendant had assured them that he would not dig the pit further and would construct the pillars and the walls first near to plaintiff's common wall and would deploy necessary man power on the plot to rule out the possibility of entering of the accumulation of the rainy water in the dug portion of his plot where the chances of accumulation of water and causing of damage to the person and property was maximum. In cross examination, plaintiff no. 1 as PW-8 have deposed that her husband, her Dever Vinod Kumar, one Jagdish and other had complaint to the defendant on 10.07.2005 about taking precaution in respect of the construction. No suggestion was given to her that no construction or digging was undertaken by the defendant near the wall of the house of the plaintiffs.
20. In cross examination, plaintiff no. 2 as PW-1 had specifically deposed that walls forming part of the western side of his property gave way and resultantly fell down due to accumulation of water due to heavy rain in the intervening night of 11-12/07.2005. He further deposed that foundation of his house was made of cement and stone and was constructed by his father in the year 1985. He denied the suggest that defendant did not carry out any digging operation in the vicinity of his house in order to cause any damage to his property.
21. Defendant though has examined himself as DW-1 but in his CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 14 of 21 examination in chief he did not depose anything except tendering certified copies of the charge sheet filed in FIR No. 416/05 PS Vasant Kunj lodged pursuant to collapse of the house of the plaintiffs. Along with the charge sheet document filed by the Investigation Officer was also filed and were collectively exhibited as Ex. DW-1/A. In cross examination he admitted that his plot and that of the plaintiffs are adjacent with common wall. He showed his ignorance about the material used by the plaintiff in the construction of house of plaintiff. He admitted that he had started construction of his house and got pillars constructed. He also admitted that for the purpose of constructing the pillar a pit was dig out and had also dug out certain land for the purpose of construction of pillars and thereupon pillars were constructed by him. He also admitted that he had constructed three pillars one near to the house of the plaintiffs, another in the next corner and the third one was near the house of Chaudhary Bhim Singh. He also admitted that he had removed the dirt from the backside of his plot. He also admitted that there was a lower ground floor in his house and he had constructed his house in the year 2005 and it took him six months time in completing the construction. He also admitted that wall of the rear portion of the plaintiffs house had fallen down and he volunteered that same fell due to accumulation of water. He could not tell the measurement of the pit which was dug up for the construction of pillars.
22. As noted there is no dispute that plaintiff No.1 was injured due fall of roof and wall of her house on her. It is also not in dispute that roof and wall of the house of the plaintiff gave way due to accumulation of water. It was also admitted by defendant that water logging near the back wall of the house of the plaintiff was the root cause of fall of roof and wall of the plaintiff's house. It has also been admitted by the defendant during his cross examination that he had got dug up pits for raising pillars and one of them was near to the wall of the house of the plaintiffs. In these CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 15 of 21 circumstance it was for the defendant to show to the court what precaution he had taken to prevent any mishap during construction particularly when defendant had undertaken work of digging in the month of July which is the monsoon month in Delhi and rain was expected any day. Defendant instead of deposing anything in his defence had only filed copy of charge sheet Ex DW1/A of FIR No. 416/05 lodged after the incident. The evidentiary effect of charge sheet in the present case is limited only to the effect that a charge sheet was filed and this court will not take into consideration the report perse in favour of either party without examining named person therein on whose account report was prepared.
23. Negligence in simple word is understood as "breach of duty of reasonable care". The law of torts exists for the purpose of preventing man from hurting one another whether in respect of their property, their person, their reputation or anything which is theirs. Law of tort can also be said to have been founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. In a society where numerous human being co-exist for the proper development of all everyone carries a duty upon himself to conduct himself in the manner that no harm or injury is caused to the other. Meaning thereby that everyone carries the duty of reasonable care and breach of which makes the breacher liable for action. In this context it has to be seen if defendant was negligent enough to be liable for damages towards plaintiffs.
24. Defendant in his written statement himself has pleaded that the plot in question (both of the plaintiffs and defendant) were being used for mica mining for considerable period of time and the sub soil constituted of mud and mica slurry was not stable enough to sustain a CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 16 of 21 construction without it being rested on deep embedded pillars and beams. In these circumstance defendant had more duty of care to ensure that pit dug up for raising pillars nearby the wall of the house of the plaintiff does not cause any damage to the property of plaintiff and nearby. He was required to ensure all safety and precautionary measure to prevent any mishap. Surprisingly defendant despite admitting that he had undertaken construction activity did not lead a single evidence to the effect of safety measure deployed by him to prevent mishap. Since no evidence has been led by defendant regarding the safety measure undertaken by him to prevent mishap, the only conclusion that can be drawn is that defendant was negligent in undertaking digging up pit near the wall of the house of plaintiff. Following the injury to plaintiff No.1 and following the falling of house of plaintiffs, plaintiffs had to spent money on treatment, alternative accommodation and for nursing the bed ridden plaintiff No.1.
In view of the above discussion, issue No. 2 is decided in favour of plaintiff and against the defendant.
ISSUE No. 3 :- Whether the plaintiffs suffered the loss to the extent of the amount claimed in the suit? OPP
25. Onus to prove this issue is upon the plaintiff. Plaintiff has claimed a sum of Rs.6,29,500/- on medical expenses out of which Rs.6,19,500/- was spent on the medical expenses towards the treatment of plaintiff no. 1. A sum of Rs.8,05,000/- towards the loss/damage caused to the house. A sum of Rs.1,50,000/- towards mental agony, suffering, loss of love and affection. A sum of Rs.1,00,000/- towards physical pain and Rs.96,000/- towards the house rent w.e.f. July 2005 to October 2006 at the rate of Rs.6,000/- per month.
26. Both plaintiffs have exhibited the medical bills Ex.PW1/C1 to CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 17 of 21 Ex. PW1/C75 and have also exhibited certificate from landlord as Ex. PW1/E. Both the plaintiffs were not cross-examined on the quantum of expenses incurred by the plaintiffs on the treatment of the plaintiffs particularly on plaintiff no. 1. Plaintiffs also examined one witness from Indian Spinal Injuries Centre who had brought the bills raised for medical treatment of plaintiff no. 1 and the same was already exhibited as Ex. PW1/C-14 which was for a sum of Rs.5,49,721.36 on which a discount of Rs.99,721.36. He had also brought another bill for IP No. 12084 for a sum of Rs.93869.28 and the bill was already exhibited as Ex. PW1/C-15. He also proved the discharge summary Ex. PW1/C-6. In cross-examination he was cross examined only on the point of his personal knowledge. No suggestion was given that he was not from the Indian Spinal Injuries Centre or that the record brought by him are not correct or that plaintiff no. 1 was not treated or that no such medical expenses were incurred. In fact it is the case of the defendant also that he had deposited a sum of Rs.70,000/- in the Indian Spinal Injuries Centre, for the treatment of plaintiff no. 1.
27. In the background of this evidence when there is no dispute that plaintiff no. 1 was injured badly due to collapsing of her house due to accumulation of water in the pit got dug by defendant for raising pillar and when there is no dispute that plaintiff no. 1 has become 100% permanently disable so that there is complete immovability below the neck. The medical claim of the plaintiff no. 1 to the extent of Rs.6,19,000/- do not appear to be unreasonable. In fact same stands proved also. Since plaintiff no. 1 has been made permanently disabled by 100% an attendant is required to look after her even for her basic requirements. Plaintiff has claimed that a nurse has been employed who was looking after the need of plaintiff no. 1. However, plaintiffs have not placed on record any document showing payment of salary to the attendant but CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 18 of 21 keeping in mind the condition of plaintiff no. 1, she is entitled to be reimbursed to the salary of the nurse at the government approved rate at least for a period of one year from the date of discharge of the plaintiff from the hospital.
28. Next is the claim towards the house rent which plaintiffs have to pay because of shifting on rented accommodation. Plaintiff has placed on record the certificate of the landlord to prove payment of rent and have also examined the said landlord; no contrary suggestion was given that plaintiffs have not shifted to rented accommodation nor given suggestion that plaintiff very much continued in their said collapsed house. Plaintiffs have claimed the rent at the rate of Rs.6,000/- w.e.f. July, 2005 to October, 2006 which do not appear to be unreasonable as the house in which the plaintiffs were living were not in habitable condition following the fall and plaintiffs must have shifted to other accommodation till the time their house re-constructed. Defendant has not led any evidence that plaintiff got his house re-constructed immediately or did not shift to any other accommodation.
29. Next claim of the plaintiff is with respect to the damage caused to the house of the plaintiff. Plaintiff has claimed a sum of Rs.8,50,000/- and has placed on record a estimated cost of construction Ex. PW1/D (colly.) prepared by architect M/s Srijan Architect. However, plaintiff has not examined the said architect nor has placed on record any bills regarding the actual cost of construction or actual extent of damage to the house of the plaintiff. However, perusal of the photographs of the crumbled house of the plaintiff Ex. Pw1/B (colly.) does reflect the extent of damage and which suggest that reconstruction had to be undertaken after removing the entire construction. Therefore in the light of this fact demand of Rs.8.5 lakhs towards the cost of construction cannot be said to be on CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 19 of 21 higher side or exaggerated.
30. Next claim of the plaintiff is the physical pain and mental agony/loss of affection for which plaintiff has claimed a sum of Rs.1,00,000/- and Rs.1,50,000/- respectively. The mental agony, physical pain, loss of affection cannot be measured in terms of money. Pain of plaintiff no. 2 who was hardly 32 years old when she unfortunately became permanently disabled cannot be measured and, therefore, awarding a sum of Rs.2,50,000/- for physical pain, mental agony and loss of affection is nothing but only a solace. Accordingly plaintiff no. 2 is entitled to the said amount as well.
In view of the above discussion, issue no. 3 is decided accordingly in favour of the plaintiff and against the defendant.
ISSUE No. 4 :- Whether the collapse of the portion of the property of the plaintiff was on account of excessive rains and beyond the control of the defendant? If so, its effect? OPD.
31. Onus to prove this issue is upon the defendant. Defendant practically did not lead any evidence. Though in cross examination of plaintiff's witness defendant was able to evince from them an admission to the effect that there was an excessive rain. But to bring home the point of excessive rain defendant was required to prove that rain was unparalleled in recent past/history or was such that it was not expected in Delhi or something of unique nature. Defendant has not bothered to examine any official from meteorological department to prove that downpour recorded on that fateful night was so high that it has broken the record of past history or was never witnessed in the recent past or was of nature which was not expected in the area. Nothing of the sort which could characterize the rain on the fateful night as being qualified as Act of CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 20 of 21 God has come on record to absolve the defendant of his liability or duty of care and protection. Since no evidence was led by the defendant in respect of issue under consideration, therefore defendant has failed to discharge the onus upon it.
Accordingly, issue No. 4 is decided against the defendant and in favour of plaintiffs.
RELIEF In view of the findings recorded on all issues, suit of the plaintiff is decreed and a decree for recovery of Rs. 18,25,000/- (Eighteen Lakh Twenty Five Thousand only) is hereby passed in favour of plaintiff and against the defendant. Although, plaintiff has claimed interest @ 12% per annum however, interest of justice will be served if plaintiff is awarded simple interest @ 6% per annum. Accordingly, plaintiff is entitled for simple interest @ 6% per annum on the aforesaid amount from the date of filing of the suit till its realisation.
Parties to bear their own cost of litigation.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 21 pages) Delhi / 13.02.2017
CS No. 13389/16 Bimla Devi & Anr. v. Uttam Singh. Page No. 21 of 21