Delhi District Court
Smt. Kela Devi vs Raj Kumar on 24 January, 2013
IN THE COURT OF MS. KIRAN BANSAL:
SENIOR CIVIL JUDGE-CUM-RC (EAST):
KKD COURTS: DELHI
Suit No:- 176/12
Unique Case Identification No: 02402C0696812007
IN THE MATTER OF :
1.Smt. Kela Devi
W/o Late Sh. Manoj Kumar
2. Master Dinesh (Minor)
S/o Late Sh. Manoj Kumar
3. Master Lokesh (Minor)
S/o Late Sh. Manoj Kumar
4. Master Rohit (Minor)
S/o Late Sh. Manoj Kumar
(Plaintiff no. 2 to 4 are
represented by their natural
guardian and mother i.e
plaintiff no. 1 Smt. Kela Devi)
All R/o A-11/199, Gali No. 11,
Rajbir Colony, Gharoli Extn.,
Delhi - 110096 .... Plaintiffs
Versus
Raj Kumar
S/o Sh. Inder Singh
R/o B-474, Gali No. 4,
Rajbir Colony, Gharoli Extn.,
Delhi - 110096 .....Defendant
a) Date of Institution of Suit : 17/10/2007
b) Date when arguments
concluded and case fixed
for Orders : 03/01/2013
c) Date of Order : 24/01/2013
d) Final Order : Suit Decreed
Suit for the Recovery of Rs. 2,00,000/- on account of damages - compensation in
respect of the fateful accident of the husband of the plaintiff no. 1 and father of
Kiran Bansal
Date: 24/01/2013 SCJCumRC:East, Delhi
Suit No. 176/12 Page 1/22
plaintiffs no. 2 to 4 namely Manoj Kumar by the negligent act of the defendant.
JUDGMENT
1. The present case is a claim for compensation by the family of the deceased, who expired due to coming in contact with high tension electric wires while whitewashing in the house of the defendant. The laws enacted by Parliament and State Legislatures provide for payment of compensation to the legal representatives of those killed in air, rail or motor accident. The legal representatives of a workman, who dies while on duty in a factory/industry/establishment also get certain amount of compensation. Even those who are killed in police action get compensation in the form of ex gratia announced by the political apparatus of the State. However, neither the law-makers nor those who have been entrusted with the duty of implementing the laws enacted for the welfare of the unorganised workers have put in place an appropriate mechanism for protection of such unorganised workers or daily wagers who are doing works, which are inherently hazardous and dangerous to life nor made provision for payment of reasonable compensation in the event of death of such casual labour. However, the courts cannot be insensitive to the safety and well-being of those who, on account of sheer poverty, work or are compelled to work, under most unfavourable conditions and regularly face the threat of being deprived of their life.
Since Independence, Parliament and the State Legislatures have enacted several laws for achieving the goals set out in the Preamble but their implementation has been extremely inadequate and tardy and the benefit of welfare measures enshrined in those legislations has not reached millions of poor, downtrodden and disadvantaged sections of the society and the efforts to bridge the gap between the haves and have-nots have not yielded the desired result. ( Ref: Union Of India vs Dhyan Singh & Ors RFA No.116/2007 decided on 12 October, 2012 by Hon'ble Mr. Justice J.R. Midha, Delhi High Court).
Kiran Bansal
Date: 24/01/2013 SCJCumRC:East, Delhi
Suit No. 176/12 Page 2/22
Brief facts of the present case are that Manoj Kumar, the husband of the plaintiff no. 1 and father of plaintiffs no. 2 to 4 died on 18.10.2006 due to electrocution at the residence of the defendant. It is further alleged that the deceased Manoj Kumar was doing the job of white washing to earn his bread and butter and on 11.10.2006 while he was doing the job of white washing at the house of the defendant, high tension wires were passing over the roof of the defendant and the distance of the roof and said high tension wires were not more than three feet and deceased requested the defendant that the roof level of the house of the defendant is very near to the high tension wire of the electricity and it was not possible to work on the roof but the defendant was adamant and asked the defendant to continue with the white washing. It is also stated that on 13.10.2006 while deceased was doing the job of white washing at the house of the defendant, deceased warned about any mishappening but defendant assured the deceased that nothing would be happen and insisted the deceased to work with an assurance that he would be responsible for any mishappening. Thereafter, deceased started the work and was caught by the electricity wires, sustained burn injuries and fell down on which he was taken to the hospital where on 18.10.2006 he expired. Plaintiff has further stated that deceased died due to electrocution for which defendant is fully responsible as he has illegally constructed his house by extending balcony/chajja of his house near high tension wires and even did not care despite the warning given by the deceased and insisted him to carry on his job and thereafter, deceased died, untimely and unfortunately, in the hospital and FIR under Sec. 304 A IPC was also lodged related to this accident. Plaintiff has, therefore, prayed for decree of Rs two lac as damages on account of pre-mature death of deceased Manoj Kumar due to wrongful act of the defendant.
2. Ld counsel for the defendant has filed WS and stated that plaintiff has not approached the courts with clean hands. According to the defendant, deceased committed suicide through high tension wires by standing himself on the peripheral Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 3/22 walls of the adjacent property. He has further stated that height of the high tension wire and roof of his house is more than 12-13 feet and the said wires can not even be touched through boundary wall of his house as the same are far away from the boundary wall of his house. Defendant has further stated that wire can not be touched even while standing on the floor or peripheral or boundary wall and a person doing the job of white washing will not stand on the floor to do the said job. He further stated that a person will stand on the ladder or would stand on his legs on the stairs. He has filed certain photographs to show this position. According to the defendant, photographs clearly show that deceased can not come to the contact of the high tension wires and it is possible only if a person intentionally stands on the legs through peripheral walls and touch the wires through his hands by taking his arms upwards. He has admitted that he had brought the deceased for doing white washing in his house. However, he has denied that the roof of his house is near to the high tension wires or that he was adamant or wanted the deceased to continue white washing. He has also denied other allegations made in the plaint. He stated that deceased was taken to the hospital by him but could not be saved despite best efforts of the doctors. He prayed for dismissal of the suit.
3. Replication was filed by the plaintiff denying the averments made by the defendant and reiterating her contents of the plaint. In the replication, it is also stated that deceased was leading a happy married life with his wife and children and had no reason to commit suicide.
In the replication, prayer has been made for decreetal of the suit.
4. Following issues were framed in this matter:
1. Whether the husband of plaintiff no. 1 expired due to negligence of the defendant? Onus on both parties.
2. If the answer to issue no. 1 is Yes then what is the quantum of damages and rate of interest to the plaintiffs are entitled? OPP
3. Relief.
Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 4/22
5. Plaintiff has examined herself as PW1, Sh. Titu as PW2, Sh. Naresh Kumar as PW3, Dr. Sanjeev Kumar as PW4, Sh. Ramdhan Singh as PW5, Sh. Manoj Kumar as PW6 and Sh. Sanjay Kumar as PW7 to prove her case. On the other hand, defendant has examined four witnesses, DW1 (the defendant himself) and DW2 to DW4 who are neighbours of the defendant.
Issue no. 1:-
The onus of proving this issue was upon both the parties. Plaintiff in her plaint has stated that deceased had warned about any mishappening but defendant had assured deceased that nothing would happen and he would be responsible for any mishappening, if happened. In her examination-in-chief also, she has stated the same but during her cross-examination she has admitted that her husband was not compelled by the defendant. She has also stated that she did not know defendant prior to accident and had never gone to the house of defendant. During her further cross-examination she has stated that her husband had narrated the entire incident to her at GTB hospital and told her that initially he had denied to white wash that portion (bathroom) but was compelled to do the same, as the wife of defendant had specifically told the deceased that no payments shall be made if he did not white wash the said bathroom and it was only under the compelling circumstances that he had started to move upward to white wash the said bathroom and before reaching there, in between, he was electrocuted in the stairs. From the facts above, it transpires that though the deceased was not compelled to do the white washing of the house as a whole while hiring him for the said purpose but was compelled to do the white washing of the bathroom portion.
PW3 who is brother of the deceased has also deposed in his examination in chief that while his brother was white washing in the house of the defendant he was caught by the electricity wire which were passing over the roof of the defendant and was electrocuted and fell down. He has also stated that electricity wire which were passing over the roof of the defendant were very near to the roof and the same Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 5/22 may easily come in touch with anybody and this very fact was told to the defendant but he did not give any attention to the said fact and was adamant to carry with the whitewashing work and it was defendant who was solely responsible for untimely and unfortunate death of his brother. This witness has deposed about certain crucial aspects regarding the case in his examination-in-chief by way of his affidavit and was not cross-examined on these aspects by the ld. Counsel for the defendant. This witness during his cross-examination has stated that he is illiterate and does not know about the contents of his affidavit. Being illiterate he might not have been aware about the exact contents of the affidavit but he can certainly have been aware about the facts of the case and the facts related to incident in question. The affidavit is generally prepared by the Counsels for the parties and there is presumption that the same has been prepared on the basis of instructions received by the ld. Counsel. The witness has also verified the affidavit and stated that contents of the affidavit are true and correct to his knowledge and belief. No such question as to whether the affidavit was prepared on his instruction or not or as per the facts told by him to his counsel has been put to the witness PW3 during his cross-examination. If the affidavit has been prepared after he has narrated the facts to the counsel then even if he is not aware about the exact contents of the entire affidavit, his examination-in-chief cannot be discarded. The testimony of this witness as deposed by him in his examination-in-chief has remained uncontroverted and unchallanged. PW2 who is also relative as well as neighbour of plaintiff was also cross-examined on this aspect and when the same questions was put to him during his cross-examination he has stated that affidavit was prepared by his counsel on his instruction.
PW2 has also denied the suggestion that the deceased was alcoholic or had quarrel with his family on the point of expenses. However, this witness has admitted that he has not visited the site on the day of occurrence of incident He has also admitted that he has not called the police. This witness during his cross-
Kiran Bansal
Date: 24/01/2013 SCJCumRC:East, Delhi
Suit No. 176/12 Page 6/22
examination has not supported the version as stated by him in his examination-in- chief and has rather given contradictory statement and therefore, it is doubtful whether he was present on the day of occurrence of incident on the site or had accompanied the deceased to the hospital. Though, this witness has stated that at the time of incident the deceased was doing whitewash of the bathroom, however, he has admitted that he has not visited the site on the day of occurrence. It is doubtful whether he was aware of what exactly the deceased was doing at the time when he was electrocuted. The testimony of PW2 is somehow not reliable and therefore, discarded.
The defendant has also stepped into witness box and examined himself as DW1 and has stated that plaintiff has misstated the facts. He has stated that deceased has committed suicide by hanging on the high tension wires through the parapet wall of adjoining property. He has also stated that wire cannot be touched through the parapet boundary wall. He has also filed certain photographs to show this aspect. I have seen the photographs as well as CD. The CD also contains the photographs which have been placed on record and are marked as Mark A to H. Defendant has nowhere stated the date when he took the photographs The photographs certainly are not of the day of incident and have been taken thereafter. Even otherwise careful perusal of the photographs shows that wire are passing through the property of the defendant. The photographs marked A itself shows that wire are passing above the staircase of defendant and defendant is seen to be sitting in this photograph and in the photograph marked as mark B the defendant is standing but still the wire are quite near to his head. Photographs shows that defendant has not taken due care to maintain safe distance from the wire and had not constructed his property in a way so as to maintain safe distance from high tension wires which are almost above the roof of the defendant. In photograph marked G also one of the wire is passing in front of the person standing there and another wire is hanging lose over the wall and is going and coming nearby the Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 7/22 property. All these photographs have also been taken from the ground floor or staircase of the ground floor. No photograph of the first floor is taken, though in photograph marked E,F and G it can be seen that even first floor house is constructed.
The defendant has also examined DW2, DW3 and DW4 who are neighbourers of the defendant. DW2 has stated in his examination-in-chief by way of affidavit that he is eye witness and that on the date of incident the deceased had come to his Kiryana shop and asked for Bidhi and alcohol smell was coming from his mouth. However, the MLC of deceased is being proved as Ex. PW6/A and the doctor has not reported any smell of alcohol in the MLC of deceased. The Doctor has stated that patient was disoriented and had burn injury. He has also recorded about vital statistics of deceased and there is no information regarding any alcohol smell from the deceased which shows that statement made by DW2 in his affidavit in examination-in-chief is not correct. The MLC prepared by the doctor is certainly more reliable then the statement of DW2 that deceased was smelling of alcohol.
The defendant has taken up the defense that the deceased has infact committed suicide. DW2 has also stated that deceased has told him at the time of buying bidi that he was troubled due to behaviour of his wife. However, had the deceased been in a state of mind that he wanted to commit suicide, he would not have gone to the shop of DW2 to buy bidi. The person who is in such depressing state of mind to have suicidal tendency would rather refrain from talking to any stranger in such situation. As far as statement of DW2 that deceased had replied that he has trouble due to his wife and has also stated that "Esee jindagi se accha hai mai kahi jakar mar jau", I do not think leads to any inference that deceased actually intended to commit suicide. Day to day confrontation between husband and wife is normal and there is nothing on record to suggest that deceased had any suicidal tendency or any matrimonial dispute. Moreover, he had reported to work as scheduled which also shows that he did not intend to commit any suicide. Had he Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 8/22 intended to commit suicide he would not have gone to residence of defendant for the work of white washing. His reporting to work as well as going to Kiryana shop and asking for bidi rather shows that he was in a fit state of mind.
DW3 who is also neighbour of defendant had stated that he is also an eye witness to the incident and he had heard noise on the roof of the defendant and on seeing up he saw that deceased was waiving hand in the air and thereafter, he fell down. This shows that waiving of hand was due to the fact that the deceased was already in the contact of the electric current and thereafter, due to receiving of electric shock he fell down. Statement of DW2 shows that when he had seen the deceased, the deceased was already in contact of electric current.
DW4 has also stated that he has seen the deceased raising hands upward and in the next moment he fell down. Nobody has seen the deceased touching the wire with his own hands. Statements of DW3 and DW4 also does not lead to any inference that deceased intended to commit suicide. As already observed the deceased was also not under the influence of alcohol on the day of the incident. It is also known well that while whitewashing you have to use ladder / stair / climb up the wall to do the work of whitewashing. The death of the deceased was not a normal death and in such circumstances doctrine of res ipsa loquitur is applicable.
In Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers, (2011) 8 SCC 568 it was held by the Hon'ble Supreme Court that the doctrine of res ipsa loquitur is applicable to the facts of the case where four precious lives were lost while cleaning of septic tanks due to the failure of CPWD to maintain the septic tanks . It was further observed that the State and its agencies or contractors are under constitutional obligation for the safety of such persons who undertake such hazardous jobs and cannot use the judicial process for frustrating the efforts of the dependants of the workers, who died due to the negligence of the contractor to whom the work of maintaining the sewage system Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 9/22 was outsourced.
In Shyam Sunder v. State of Rajasthan, (1974) 1 SCC 690, the Supreme Court discussed the doctrine of res ipsa loquitur. In para 10, the Hon'ble Supreme Court relied upon (Scott Vs. London & St. Katherine Docks, (1865) 3 H & C 596, 601) and observed as under:
.... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care."
In para 15, the Hon'ble Supreme Court held as follows:
"Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite over shadowed by its practical significance.
The Hon'ble Supreme Court further held as under:
"Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance ." In Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, the Hon'ble Supreme Court held that the rule of res ipsa loquitur in reality belongs to the law of torts and Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 10/22 observed "19... where negligence is in issue, the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the accident must be within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred..." In Kerala State Electricity Board v. Kamalakshy Amma, 1987 ACJ 251, a person died by accidently coming into contact with the live wire which snapped out of the cup joint on electric post. The legal representatives of the victim instituted a suit against Kerala State Electricity Board for damages on account of his death alleging that Board was negligent in maintaining the electric line under their management. The Division Bench of the Hon'ble Kerala High Court applied the rule of res ipsa loquitur and upheld the compensation awarded by the Trial Court. The Court held as under:-
"9. When the plaintiffs succeeded in proving that a pedestrian (in this case, the deceased) was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. The maxim res ipsa loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. S. 114 of the Evidence Act gives a wide discretion to the courts to draw presumptions of fact based on different situations and circumstances. This is in a way, a recognition of the principle embodied in the maxim res ipsa loquitur. Winfield in his famous Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 11/22 treatise on Tort, after referring to the decisions which founded the above doctrine, has mentioned the two requirements to attract the above principle. They are,
(i) that the "thing" causing the damage be under the control of the defendant or his servants and
(ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. This principle which was often found to be a helping guide in the evaluation of evidence in English decisions has been recognised in India also".
In State of Gujarat v. Purnimaben , MANU/GJ/0340/2000, the Division Bench of the Gujarat High Court explained the rule of res ipsa loquitur as under:-
"18. In the realm of tort negligence, at times, it becomes difficult to establish the nexus, with the result or the consequence or the cause thereof by leading direct evidence. In order to mitigate such a contingency, a very interesting concept and philosophy of doctrine of 'res ipsa loquitur' has been evolved in English Law and we have also followed in tort negligence. Rule of 'res ipsa loquitur', in reality, belongs to law of tort. Where negligence is in issue, peculiar circumstances constituting the event or accident in a particular case might themselves proclaim in concordant, clear, consistent and unambiguous basis the negligence of somebody as a cause of the event or the accident. The primary facts, constituted from the record would give a rise to such a concept if cause of accident is unknown and no reasonable explanation as to its cause is coming forth from the opposite party. In such a fact situation, the maxim of 'res ipsa loquitur' comes into play.
19. It is, therefore, necessary to invoke such a doctrine in examining, determining and adjudicating upon the claim of compensation founded upon the tort negligence. The event or the accident must be a kind which would not happen in ordinary course of event or nature or thing if those who have the management and control of the thing has exercised due, appropriate and reasonable standard of care and caution. Further, the events are caused, the accident must be within Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 12/22 the control of the defendant or the adversary. The reason for second requirement is that where the defendant or the adversary has the control of the thing which caused the injury, he was in a better position than the plaintiff to explain as to how the incident or the accident has occurred. Moreover, 'res ipsa loquitur' must not be speaking negligence but pin it on the defendant. In our country, the rules of evidence are governed by the Evidence Act, 1872, under which the general rule is with the burden of proving negligence as to the cause of the accident is on the party who propounds it. In order to lighten this burden, there are certain provisions and the doctrines, namely,
1) permissive presumption, (2) presumption of fact, (3) rebuttable presumption of law (4) irrebuttable presumption of law.
20. Presumptions of fact are inferences on fact patterns drawn from the experience and experiments. It is, therefore, the discretion of the Court to draw an inference about the existence on certain factual situation, if primary facts brought out on record warrants such presumption. In fact, doctrine of 'res ipsa loquitur' could only create an aid in evaluation and analysis and assessment of evidence on record.
When such a doctrine is applied properly to the facts, the burden of proof, initially, rests with the victims of the tort or their heirs or legal representatives is lightened or reduced as the Court would be able to presume certain things and therefore, it will be for the defendant or the adversary to explain or rebut such a presumption. No doubt, this doctrine could be invoked where direct evidence is not obtainable. ..."
"23. The rule that it is for the plaintiff to prove negligence and not the defendant to disprove it, in some cases, is one of the considerable hardship to the plaintiff because, it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its genesis or origin in the Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 13/22 negligence of the defendant. This hardship is avoided to a considerable extent by the principle of 'res ipsa loquitur'. To sum up, the effect of the doctrine of 'res ipsa loquitur' depends on the cogency of the inference to be drawn, and will vary from case to case, if for instance, a vehicle mounts to pavement, this is evidence of negligence, but reasonable men may differ about the inference to be drawn from it, so that a verdict of no negligence would not be upset although a withdrawal from the jury would be - yet something may fall from the defendant's window in such circumstances that only an inference of negligence can be drawn, whereupon a verdict of no negligence might be set aside".
Negligence is, usually, accompanied by inadvertence, but it is not the same thing, and this coincidence is not invariable. Carelessness as to possible consequences very often results in a failure to bring those consequences to mind, like that, inadvertence. Commonly, therefore, the careless person not only does not intend the consequence but does not even advert to it; its possibility or probability does not occur to his mind. But it is not always so, for there is such a thing as wilful, like that, conscious and advertent negligence. The wrong doer may not desire or intend the consequence but may yet be perfectly conscious of the risk of it. He does not intentionally cause the harm but he intentionally and consciously exposes others to the risk of it. It has been, therefore, described as 'an attitude of mental indifference to obvious risks'. (Ref State of Gujarat v. Purnimaben, MANU/GJ/0340/2000) Ordinary meaning of negligence in the law of torts is a high degree of carelessness. It is the doing of something which in fact involves a grave risk to others, whether the doer realises or not. Obviously, therefore, the test is objective and not subjective, as it is in criminal law.
The tort negligence and inadvertenceness has been succinctly, explained and expounded in Donoghue v. Stevenson, (1932) A.C.562 (HL) where negligence is treated, where there is a duty to take care, as a specific tort in itself, and not simply Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 14/22 as an element in some more complex relationship or in some specialised breach of duty. Actions do not lie for a state of mind. Negligence is conduct, not a state of mind - conduct which involves an unreasonably great risk of causing damage. There is no necessary element of "fault" in the sense of moral blameworthiness involved in a finding that a defendant has been negligent. It is negligence in the objective sense.
. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." Thus, in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owning.
Truly and plainly speaking, the effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability."
The principle of res ipsa loquitur laid down in the aforesaid four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks for itself. In such cases, it is sufficient for the plaintiff to prove the accident and nothing more. ii. Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 15/22 happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care.
iii. There are two requirements to attract res ipsa loquitur, (i) that the "thing" causing the damage be under the control of the defendant and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. iv. Res ipsa loquitur is an exception to the normal rule that mere happening of an accident is no evidence of negligence on the part of the driver. This maxim means the mere proof of accident raises the presumption of negligence unless rebutted by the wrongdoer.
v. In some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident, but cannot prove how it happened to establish negligence. This hardship is to be avoided by applying the principle of res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. vi. The effect of doctrine of 'res ipsa loquitur' is to shift the onus to the defendant in the sense that the doctrine continues to operate unless the defendant calls credible evidence which explains how the accident or mishap may have occurred without negligence, and it seems that the operation of the rule is not displaced merely by expert evidence showing, theoretically, possible ways in which the accident might have happened without the defendant's negligence. The doctrine of 'res ipsa loquitur', therefore, plays a very significant role in the law of tort and it is not the relic of the past, but the living force of the day in determining the tortuous liability. vii. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 16/22 the outset unknown to him and often within the knowledge of the defendant.
In the present case the deceased has died an unnatural death and the incident occurred at the residence of the defendant. I have already observed that the defendant has not been able to establish the defense that deceased has committed suicide. Deceased was also not under the influence of alcohol at the time of incident and no other reasonable explanation has come on behalf of defendant as how the incident has happened. Therefore, applying the principle of 'res ipsa loquitur' it is held that it is the defendant only who is responsible for the untimely death of the deceased Manoj Kumar and it was only due to negligence of defendant that the deceased has expired. Issue is thus decided in favour of plaintiff and against the defendant.
Issue no. 2:-
The plaintiff has claimed damages to the tune of Rs. 200,000/- and has paid court fee on the said amount.
The question which arises for consideration is as to the amount of compensation to which the legal representatives of the deceased are entitled. In my opinion, the plaintiffs are entitled to just compensation under Sections 1A and 2 of the Fatal Accidents Act, 1885 which has to be computed according to the multiplier method. Reference may be made to Gobald Motor Service Ltd. v. Veluswami,1962 (1) SCR 929, Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, Ishwar Devi Malik. v. Union of India, ILR (1968) 1 Delhi 59, Lachman Singh v. Gurmit Kaur, I (1984) ACC 489 (SB), Lachman Singh v. Gurmit Kaur, AIR 1979 P&H 50, Bir Singh v. Hashi Rashi Banerjee, AIR 1956 Cal. 555. The multiplier method has been accepted as legally sound method for determining compensation in death cases by the Supreme Court in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 1997; Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100 and Delhi High Court in Jaipur Golden Gas Victims Association v. Union of India, 164 (2009) DLT 346; Nagrik Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 17/22 Sangarsh Samiti v. Union of India, MANU/DE/0965/2010; Ram Kishore v. MCD, 2007 (97) DRJ 445; Ashok Sharma v. Union of India, 2009 ACJ 1063. In Lata Wadhwa's case (supra), a fire broke out in a factory in which sixty people died and one hundred and thirteen got injured. The Supreme Court awarded compensation to the victims on the basis of the multiplier method. In Association of Victims of Uphaar Tragedy & Ors. v. UOI, 104 (2003) DLT 234 (DB), the Hon'ble HC applied the multiplier method and the Second Schedule of the Motor Vehicles Act, 1988 to compute the comensation payable to the victims of the Uphaar Tragedy. The Hon'ble High Court also awarded interest @ 9% per annum. The Municipal Corporation of Delhi challenged the aforesaid judgment of the Division Bench before the Supreme Court. The Hon'ble Supreme Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy (supra) however, reduced the compensation from `18 lakhs to `10 lakhs in respect of victims aged more than 20 years and from `15 lakhs to `7.5 lakhs in respect of the victims aged less than 20 years.
In Sarla Verma v. Delhi Transport Corporation AIR 2009 SC 3104 it was observed that if three factors are available, the compensation can be determined. The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses). For convenience the third factor can also be excluded by adopting a standard deduction of one-third towards personal expenses. Therefore, just two factors are required to be ascertained to determine the compensation in 59 individual cases. First is the annual income of the deceased, two-third of which becomes the annual loss of dependency, the age of the deceased which will furnish the multiplier in terms of Sarla Verma. The annual loss of dependency multiplied by the multiplier will give the compensation."
In Jaipur Golden Gas Victims Association v. Union of India (supra), the Hon'ble Delhi High Court awarded compensation to the victims of Jaipur Golden Fire Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 18/22 Tragedy by applying the multiplier method.
In Ashok Sharma's case, six children lost their lives by drowning during an annual training camp of NCC on account of negligence on the part of respondents. The compensation was awarded by applying the multiplier method. The compensation in death cases according to the multiplier method is based on the pecuniary loss caused to the dependants by the death of the victim of the road accident. The dependency of the dependants is determined by taking the annual earning of the deceased at the time of the accident. Thereafter, effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made. The remaining amount of income after deduction of personal expenses is taken to be the loss of dependency to the family members which is multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency of the dependants of the deceased is multiplied by the multiplier according to the age of the deceased or claimant whichever is higher. A table of multiplier is given in Schedule-II of the Motor Vehicle Act, 1988 but there was some error in the said table which has been corrected by the Supreme Court in the judgment of Sarla Verma v. DTC, 2009 ACJ 1298. The summary of principles laid down by the Supreme Court in Sarla Verma v. DTC (supra) is as under:-
*Multiplier Age of the deceased Multiplier approved (in years) by the Supreme Court Age Multiplier 15-20 18 Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 19/22 21-25 18 26-30 17 31-35 16 36-40 15 41-45 14 46-50 13 51-55 11 56-60 09 61-65 07 Above 65 05 * Deduction for Personal and Living Expenses Deceased - unmarried
(i) Deduction towards personal expenses : 1/2 (50%).
(ii) Deduction where the family of the : 1/3rd (33.33%)
(bachelor is) large and dependent on
the income of the deceased.
Deceased - married
(i) 2 to 3 dependent/ family members : 1/3rd deduction towards
personal expenses.
(ii) 4 to 6 dependent/ family members : 1/4th deduction towards
personal expenses.
(iii) More than 6 family members : 1/5th deduction towards
personal expenses.
In the present case also the plaintiffs are entitled to just compensation according to Multiplier Method. Age of deceased according to postmartom report Ex. PW5/A and MLC Ex. PW6/A is 40 years. The plaintiff has stated that deceased was asked to do white wash @ Rs. 250/- per day and this aspect has not been denied by the defendant. No question has been put to PW1 during her cross-examination to contradict this fact that the date on which deceased was engaged he was not earning Rs. 250/- per day. Even in WS, reply to para. 4 of the plaint where it is Kiran Bansal Date: 24/01/2013 SCJCumRC:East, Delhi Suit No. 176/12 Page 20/22 stated that he was asked to do work by the defendant @ Rs. 250/- per day, this averment is not specifically denied. Therefore, it is taken that deceased was able to earn Rs. 250 per day and thus would be earning an amount of Rs. 250X25 working days = Rs. 6250/- per month. He was casual worker and thus would be earning approx. Rs. 6250/- per month in the year 2006, when he has expired. His annual income in the year 2006 would be around (6250 X 12 months = Rs. 75,000/-). The deceased had four dependent and therefore, 1/4th of his income is deducted towards the personal expenses i.e Rs. 18,750/-. Thus, 75,000-18750 = 56,250/- would be annual loss of dependency to the family which is to be multiplied by 15. The family would also be entitle to some amount due to loss of consortium , compensation for suffering, hardship and towards cost of funeral and medical expenses etc and if compensation as per Fatat Accident Act, as discussed above, has to be granted then plaintiffs would be entitled to approx. compensation of Rs.
8,43,750 + cost of funeral etc. However, as the plaintiffs have restricted their claim to only an amount of Rs. 200,000/-, the present court being civil court cannot grant relief beyond prayer and therefore, it is held that plaintiff shall be entitled to an amount of Rs. 200,000/- as damages. It is further directed that the plaintiffs have been entitled to 12% simple interest on the said amount from the date of filing of the suit till its realization. RELIEF As such, in my considered opinion, suit filed by plaintiffs deserves to be decreed for a sum of Rs. 200,000/- as damages in favour of the plaintiffs and against the defendant. It is also directed that defendant shall pay simple interest @ 12% p.a on the said amount from the date of filing of the suit till its realization. Cost of the suit is also awarded to the plaintiffs as per law. Decree sheet be prepared. File be consigned to record room.
Pronounced in the open court. (Kiran Bansal)
on 24/01/2013 SCJ/East/KKD/Delhi
Kiran Bansal
Date: 24/01/2013 SCJCumRC:East, Delhi
Suit No. 176/12 Page 21/22
Suit No.176/12
24/01/2013
Present: None
Vide my separate detailed order of even date suit filed by the plaintiffs deserves to be decreed for a sum of Rs.200,000/- as damages in favour of the plaintiffs and against the defendant. It is also directed that defendant shall pay simple interest @ 12% p.a. on the said amount from the date of filing of the suit till its realization. Cost of the suit is also awarded to the plaintiffs as per law. Decree sheet be prepared. File be consigned to record room.
(Kiran Bansal)
SCJ-cum-RC 9East) 24.01.2013
Kiran Bansal
Date: 24/01/2013 SCJCumRC:East, Delhi
Suit No. 176/12 Page 22/22