Kumari Alka vs Union Of India And Others
1993 Latest Caselaw 206 Del

ORDER

1. The present suit is filed by the plaintiff through her next friend and natural guardian, for recovery of Rs. 1,50,000/-as compensation and damages, on account of the injury received by her in an accident in the precincts of defendants I and 2 on August 11, 1980. Plaintiff at the time of the accident was a minor girl aged about 6 years. The suit was filed as an indigent person and this Court, vide order dated May 11, 1984, declared the plaintiff as an indigent person and the suit was registered accordingly.

2. The brief facts of the case are that the plaintiff is residing with her father and next friend Shri R. L. Suneja, who is employed with defendants I and 2, as Assistant Engineer, Equipment Planning, Eastern Court, New Delhi. The plaintiffs father was allotted a residential quarter No. 4, attached to Shakti Nagar Telephone Exchange, Delhi-7, and the plaintiff along with her father and other family members was residing in the said premises at the time of the accident. It is alleged in the plaint that the defendants had installed water pump in a room near the residential quarters of the Telephone Exchange building. The said water pump is installed for providing water to the residents of the Exchange and the equipment was fitted in a room an attendant was specifically retained to look after the pump, while the same was running. Defendant No. 3 at that time was the attendant of defendants 1 and 2.

3. On August 11, 1980, the plaintiff was playing in the compound with other children of the residential quarters of the Exchange in the evening. The said water pump room was lying open and the pump was running on electric motor, without any attendant to supervise the same. The defendant No. 3 was the Attendant at that relevant time was not present and he had left the room opened without putting the shutter down, while the water pump was running. The plaintiff being of tender age of 6 years, did not realise the nature and consequences of the danger and went in the room where the water pump was running. The moving wheels of the motor allured her and she put her hand on the belt of the pump. She, as a consequence, sustained multiple serious injuries on her body and total damage of the two fingers of her right hand. On hearing the noise and cries of the plaintiff, some people reached the spot and she was immediately removed to St. Stephens Hospital and was admitted there. The plaintiff was further advised operation and was given first aid. She was discharged from the said hospital on August 12,1980 and later was got admitted to Kalawati Hospital, New Delhi on August 14, 1980 and remained there till August 18, 1980. During the course of her stay in the hospital, she was operated upon and due to serious nature of injuries and total damage of her two fingers, the said two fingers were amputated under special medical advise. The plaintiff thus suffered great pain and agony due to injuries on her body, by which she totally lost two fingers of her right hand. The plaintiff has alleged in the plaint that the above said injuries were caused due to negligence of the defendants, in as much as defendants 1 and 2, were grossly negligent in exposing the children of the residential quarters of the Telephone Exchange to uncalled for hazards and dangers. The said defendants 1 & 2 and defendant No. 3, who was employed as watchman, were grossly negligent and failed to perform their duties by taking necessary precautions to avoid any mishap or accident. The parents, at all times, were under the impression that the children of the vicinity used to play in the area close to the room, where the water pump was installed and the attendant having been deputed there, there was no danger in respect of the safety of the children. The plaintiff accordingly has filed this suit against the defendants 1 and 2, who are vicariously liable for the wrongful and negligent act of defendant No. 3.

4, It is further alleged that the plaintiff was a minor girl of 6 years of age at the time of accident and she suffered permanent disability, in as much as her two fingers of right hand were completely lost. She cannot perform the job with her right hand and has suffered great mental pain and agony, as well as, physical pain and sufferings. The accident has further deteriorated her chance for leading a healthy and normal life, although she is an intelligent child and getting the education. The deformity has reduced her chances of special technical education and also of marrying her in a good family. The plaintiff has accordingly claimed a sum of Rs. 1,50,000/- for physical & mental pain and sufferings, which has already been undergone by her, permanent deformity, medical expenses, loss of study, loss of enjoyment of life and life expectancy, which is bound to be affected by this unfortunate accident.

5. The defendants filed their written statement and have admitted the factum of installation of electric pump in a room, within the compound of Telephone Exchange, Shakti Nagar, Delhi, to ensure water supply to the residents. It is further admitted that defendant No. 3 was an Assistant Pump Operator and was attendant of the three water pumps, installed within the compound at the relevant time. It was, however, denied that any accident had taken place in the pump room being operated by defendant No. 3. The plaintiff had no business to enter the pump room and the pump is not operated in open space. It is the duty of the parents to look after their children. The pump is operated electrically inside the room, whine is not the place of playing for children and nobody is supposed to go in the room.

6. The plaintiff has filed replication to the written statement of the defendants, denying the allegations as made in the written statement and reiterating the averments as made in the plaint.

7. On the pleadings of the parties, the following issues were framed on August 22, 1984 :

1. Was the minor plaintiff involved in an accident on 11th August, 1980 in the Water Pump Room with the electric motor, near the residential quarter of Shakti Nagar, Telephone Exchange, as alleged in the plaint?

 2. Did  the plaintiff receive injuries    as mentioned in the plaint due to the negligence and carelessness of the defendants ? 
 

 3. Were the parents of the minor plaintiff guilty of any negligence for the alleged incident? OPD. 
 

 4. To what amount, if any, of damages is the minor plaintiff entitled to and from which of the defendants? 
 

 5. Relief.  
 

 8. In support of their case, the plaintiff as well as defendants have led their respective evidence. Reliance has also been placed on the documents on record. 1 have heard learned counsel for the parties and have also-gone through the record. 
 

 ISSUES NOS. 1 TO 3: 
 

9. Plaintiff has examined Ms. Neerupa Bhatia, P.W. 1, TGT (Social Studies) DAV Model School, Pitampura, Delhi. This witness has stated that she knew the plaintiff, who was studying in the 5th class and was promoted to 6th class, when the said witness was a school teacher of the plaintiff. She reiterated in her evidence that the plaintiff had met with an accident and was slow in writing because of injuries on her fingers, where she often developed pain and because of that, she had become weak and slow and had not been completing her class work. It was further stated that the plaintiff was selected for cultural programme, which interalia, included a Gidha dance but as she could not clap with her hands, she was excluded from the programme and this adversely affected her mind.

10. P.W. 2 is the statement of Dr. D. K. Mandal, Head of the Department of Orthopedic, Lady Harding Medical College, New Delhi. He deposed that the plaintiff was advised amputation of little and ring finger on August 14, 1980 and, as such, she was admitted to hospital. Amputation was carried out and the plaintiff was discharged from the hospital on August 18,1980. The injuries were traumatic resulting from a crush. It resulted in deformity of the hand. This witness further deposed that he first observed that gangrene was setting in and denied the suggestion that it had set in because of his negligence. The witness has proved the prescription which he wrote for the plaintiff as Exhibit P.W. 2/1.

11. Shri Nelson, in charge Medical Records Department, St. Stephen's hospital, Tis Hazari, Delhi, P.W. 3, has proved Exhibit P.W. 3/1, the certificate issued by the Dy. Medical Director and also Exhibits P.W. 3/2 and P.W. 3/ 3 issued by the hospital,

12. The father of the plaintiff Shri R. L. Suneja was examined as P.W. 5. He has also reiterated that he along with his family was living in quarter No. 4, Shakti Nagar Telephone Exchange, Delhi. The water is supplied to the flats with the help of a booster pump, which was installed by the Department of the defendants but the said booster pump was left unattended on the date of accident. Ordinarily, when the booster pump was running, a door and shutter were kept closed. The pump was running on August 11, 1980 at about 18.30 hours, and the door thereof was open and there was no attendant and there was no viremesh even around the belt of the booster pump. At the time of accident, the said witness was on duty in the Telephone Exchange and his wife had informed him about the accident, which the plaintiff had met. The witness reached the spot and found that the little and ring fingers of the right hand of the plaintiff were chopped of by the booster pump although they were not altogether detached and she was crying and bleeding profusely. The pump was running and door was open and that there was no attendant present at that time. There were blood spots and in the pump room. He has reiterated the injuries suffered by the plaintiff in the accident and the effect thereof. The plaintiff had been complaining all along that she could not study long hours due to pain in her right hand and her handwriting was also spoiled because of the amputation of the fingers as well as the other injuries. The plaintiff finds herself handicapped in day to day work and she cannot use so many items of daily necessity, such as holding of knife and using of scissors and cannot have full grip. The witness has further deposed that the children of all the residents in the flats used to play on the ground floor. He did not stop any children from playing there because door of the room, where the water pump was installed used to be kept closed and there used to be an attendant in respect of the same.

13. P. W. 6, Shri R. S. Vasisht and P. W. 7 Shri Ravinder Kumar Gupta, Junior Engineers, Telephone Exchange, Karol Bagh, New Delhi have stated in their evidence that the pump was located on the ground floor near to the residential quarters. There was no protection or covering on the belt and the door of the pump room was also open. There was no attendant present either. Ordinarily, the room used to be closed when the pump was working. These witnesses have corroborated the factum of accident and the injuries caused to the plaintiff.

14. Defendants have examined D. W. 1 Shri Ishwar Singh, who is also defendant No. 3 in the present suit. It may be relevant to produce the following part of his testimony :

"The children of the residents used to play down stairs on the ground floor although I used to tell them not to do so. I even used to carry the children to their parents and complain them about their playing at the ground floor. When I was a daily-wager and I had made such a complaint I was threatened that my services would he got terminated if I said anything to their children. After about 3/4 months of the alleged occurrence that my Jr. Engineer had enquired of me if any accident had taken place on the pump and I had told him in the negative and it was on that day for the first time that I learnt about the accident. I did not find anything unusual on the site or subsequently."

15. D. W. 2 is Shri Baij Nath, Junior Engineer, Postal Electrical Division, Naraina. He has stated that there were standing instructions to the Pump Operators that, as and when, they move to a particular place, the doors shall be closed or the shutters dropped down. He used to do daily inspection on schedule in respect of this pump. The children of the residents in the Telephone Exchange Quarter Water enclosure used to play on the ground floor and now and then they would enter even the electric sub station including the pump rooms and this witness had been informing the parents of those children to instruct their wards not to trespass-into either the. Electric Sub-station or the pump rooms but nobody paid any heed to his instructions.

16. The counsel for the plaintiff has contended that the injuries and deformity, which have been caused on the plaintiff, have been due to the rash and negligent act of the defendants and they are liable to pay compensation in respect of this negligent and reckless act in not keeping guard on the water pump, while it was operating. The injuries, which have been sustained by the plaintiff were caused by the accident which took place on 11th August, 1980 in the water pump room and included the total loss of two fingers of the right hand as they had to be amputated. The side effects are that no work which requires full grip can be undertaken by the plaintiff, as she cannot form a proper grip. The finger's movement is affected and the plaintiff is not able to play with the right hand or to learn music, such as playing piano etc. She takes much time to write and she develops pain in the right hand while writing. She is further unable to collect things with her hand and her study and personality have been grossly affected and reduced her chance of happy and healthy life. There is a deterioration in the chance of her being married in a good family and to lead a normal life.

17. The evidence on record clearly establishes that the plaintiff was involved in an accident on 11th August, 1980 in the water pump room in the precincts of defendants 1 and 2 and she received injuries as a result of this accident. Issue No. 1 is decided accordingly.

18. I will now proceed to deal with the question of negligence.

19. The English Law of torts has laid down various propositions in respect of the duty to children, as well as to infant trespassers and infant licensees. It is established that when a occupier habitually and knowingly acquiesces in the trespasses of children, these children cease to be trespassers and become licensees and the occupier owes to them a certain duty of care and protection accordingly. Reference is made to Law of torts by Salmond & Heuston (1987 edition) pages 311-312 and the following passage may be reproduced in this regard :

"Infant Licensees.

When an occupier habitually and knowingly acquiesces in the trespasses of children. These children cease to be trespassers and become licensees, and the occupier owes to them a certain duty of care and protection accordingly. In Cooke v. Midland Great Western Railway of Ireland the plaintiff was a child between four and five years of age who was injured while playing with his companions on a turntable on the defendant company's railway premises. The turntable was kept unlocked and was close to a public road. The company's employees knew that children were in the habit of entering on the premises from the road for the purpose of playing with the turntable but no precautions were taken by the company, either to exclude the children or to lock the turntable, so as to prevent it from being an instrument of mischief. It was held by the House of Lords that there was evidence for a jury of negligence on the part of the railway company -- not on the ground that there is any duty of care towards trespassing children, but on the ground that the habitual acquiescence of the company was sufficient evidence to entitle the jury to find that the plaintiff was not a trespasser, but was on the railway premises with the leave and license of the company."

The following passage at page 313 may also be relevant to a large extent:

"Traps" and "allurements"

(i) Children naturally less careful than adults. The Occupiers' Liability Act, S. 2(3) provides that in assessing the common duty of care an occupier must be prepared for children to be less careful than adults. This probably does no more than re-enact the common law. So a small child was able to claim when he fell through a gap in some railings which would not have been dangerous to an adult. Many dangers which would be open and obvious to the adult may be concealed and secret traps for the child. "In the case of an infant, there are moral as well as physical traps. There may accordingly be a duty towards infants not merely not to dig pitfalls for them, but not to lead them into temptation." Although an occupier is not bound to make his premises as safe as a nursery, most of the articles on which children come to grief are not such as are commonly found in nurseries, and this is to be borne in mind in considering whether they amount to a trap. "While it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult."

20. In Excelsior Wire Rope Company Limited v. Callan, 1930 LR 404, the House of Lords held on the facts of that case that "it being well known to the company that when the machine was going to start it was extremely likely that children would be near the sheave, the duty owed by the company when they set the machine in motion was to see that no child was in such a position as to be exposed to danger by the occasional use to which the machine was put, and that they had failed in that duty. The immediate danger being apparent, it was not material whether the children were or were not trespassers."

21. The facts in Gough v. National Coal Board (1954) 1 QB 191 are of some relevance in the present context. The facts of the case are that:

"the defendants operated a colliery tramway which ran over their land through a mining village with houses on both sides. It was unfenced and unguarded, and unattended journeys of slow-moving trucks passed up and down the track at frequent intervals, being worked by an engine at the top of an incline. For many years the public had been tacitly permitted to cross the track, and children played near it, and sometimes rode on the trucks, though that practice was not tolerated by the defendants, who knew of it.

The infant plaintiff, aged six and a half years, rode on a truck and was severely injured while trying to jump off. He brought an action, by his father, alleging negligence against the defendants. At the hearing he admitted that he knew that he was not supposed to play on the trucks and that his father would punish him if he did so. The trial judge found that the infant was a licensee over the whole of the land. He held that the tramway was an allurement which the defendants were under a duty to protect; and that the infant's knowledge that he was doing wrong made no difference because he was too young to appreciate the real danger; and he gave judgment for the plaintiffs."

The Appeal Court endorsed the findings and the following passages are of some significance:

"In the judgment of Finnemore, J. there are three important passages which seem to me to contain the essence of the whole matter, and with those passages I most respectfully agree.

The first is this : "From time immemorial boys have always been anxious to get rides..... and it has always been a very real allurement to them. Now that means that if this moving tramway was an allurement to boys, and particularly to this little boy of six-and-a half, a danger which he would not properly appreciate, and which would tempt him to use it in a way that was likely to be dangerous to him, it was the duty of the defendants to do something about it. One thing they might have done -- I dare say that they will do it in future -- would be to stop anybody, whether children or adults, going over this line at all, whether by fencing it or by putting up notices, or having someone on duty from time to time to stop it, or in some other way; I do not know. But they must do something to see that the children whom they allow to go near to, and on to, their tramway line, are protected against this dangerous allurement of a slow-moving tramway of trucks."

The second passage is this, on the duty of the occupier of land : What he must not do to a licensee is to put a trap on his land, and a trap, for the purpose of a child, means something which is dangerous but very tempting and attractive, which is likely to lead him into danger while on the land which he has entered, at all events, with the tacit permission, if not the express permission, of the owner; and I think that if the child was, as I find he was in this case, a licensee over the whole of that land through which the tram track ran, he did not cease to be a licensee when he succumbed to the very temptation against which he ought to have been protected; that is, the moving of the tramway."

The final passage is : "Having considered all these matters, I am of the opinion that the law as argued by Mr. Edmund Davies is the right law, that if a child is a licensee on the land the allurement which is on the land must be protected in some way, and the boy does not become, for the purposes of this doctrine, a trespasser as soon as he meddles with the very machine against which he ought in fact to be protected. Nor do I think that it makes any difference that the boy hat! been told by his father that he should not ride on those trucks, and that he would get into trouble at home if he was found doing it. Forbidden fruit is not less tempting than when permissible; in fact it is often more tempting; and a boy of six-and-a half, although he knew that he had been told by his father not to ride on the trucks, was not, in my opinion, of a sufficient age to appreciate the real-danger of what he was doing, and I think that he was extremely like to succumb to the temptation which, so to speak, was flaunted in front of him by this slow-moving tramway over the property which he was in fact allowed to use, together with other children and other people, by the defendants."

I think that those three passages from the judgment of Finnemore, J. contain the essence of this matter so far as this particular case is concerned, and that the judge stated the law correctly. The questions of fact were carefully considered by him after seeing the witnesses, and, in particular, the infant plaintiff himself, and he has stated this findings clearly. I see no ground on which his judgment can be effectively assailed, and I am of the opinion that this appeal should be dismissed."

22. In British Railways Board v. Herrington (1972) AC 877, a trespassing child, aged six, fell upon a live electric rail belonging to the defendants and suffered serious burns. The defendants had allowed the fence along side the line to remain in a dilapidated condition, and they knew that children were in the habit of straying through a gap. The plaintiff brought an action claiming damages for negligence and the Judge held that the defendants were negligent in allowing the fence to fall and remain in disrepair and were liable to the plaintiff since the emergence to a child trespasser from the meadow on to the line was reasonably foreseeable. The Court of Appeal further held that the defendants acted in reckless disregard of the plaintiffs safety and that their agent had behaved recklessly in the circumstances. The House of Lords unanimously affirmed the decision, but expressly absolved the defendants of recklessness, which meant that liability could only rest on negligence.

23. In George Tharakan v. Kochappi Narayanan, Mr. Justice V. R. Krishna Iyer, as his Lordship then was, has dealt with the concept of negligence so far as it related to the children. The relevant paragraph reads as under (at pages 160 & 161):

"The scene is in a notoriously crowded city-Cochin, The streets are narrow, the road corrugated and punctuated by pits and potholes with invalid vehicles lying in a long slumber unattended. Shops and dwelling houses close to the road margin throw out people on to the road there being no sidewalks. Straying animals, in their sluggish course, clog the way unconcerned by possible danger. Schools dot the city and children flow into the streets like monsoon rushes in undefined channels and care-free abandon. Most of these factors make driving without hurting others difficult unless a higher degree of care is brought into play by the man at the wheel and he reckons With children and adults showing up by surprise. And children are children, not circumspect elders and no prudent man expects a child to be an adult. The law speaks of a prudent man -- not a mythical man. The sensible driver is sensitive to these usual circumstances of Kerala roads particularly those uneven surfaces notionally set apart for a confused miscellany of moving objects to use. While the responsibility of Government and local bodies in maintaining the city roads leaves much to be desired, the driver has to take the conditions as they are and use his car cautiously. Indeed, what is ordinarily unexpected elsewhere is to be expected in the actual situation in Cochin city. I may even say that the warning to the motorists on the road sides "expect the unexpected" is a crude but common sense rendering of the extent of duty the law expects of the prudent driver. In the natural course he should, and shall I say would, expect children to come on to the streets without much of forethought about possible accidents. In this city there are so many children about -- they cannot be bottled up-trekking along to the school and from the school at all times of the day. Our streets are lined with residential houses, particularly of the poor, and children are sent usually to make small purchases. You cannot dismiss accidents involving them by calling the parents irresponsible. Any prudent driver knows that these children are not sophisticated enough or trained in children's traffic parks to avoid fast moving vehicle. A judicial verdict, particularly in the field of negligence, depends not on theoretical concepts and ideal conditions but on things of actual life. In this view, I must hold that the foresight and skill expected of a motorist in the difficult conditions often found in a city like Cochin is of a high order and children turning up indifferent to risks ought to be within his range of attention and expectation. ".

24, Reference may be made to the Division Bench judgment of our own High Court in Sushila Devi v. Municipal Corporation of Delhi 1985 ACJ 255, where a suit for damages was filed for death of a person using the road by sudden fall of overhanging branch of tree. The branch of tree, standing on the road side, suddenly fell on scooterist, who was driving the scooter on highway resulting in his death.

The tree was a dead tree having no bark or leaf age and fell down on a calm evening when there was no storm or strong winds. The Division Bench held that the Corporation failed to produce any adequate explanation, as to the cause of accident and was, therefore, negligent in performing its duty, as it was under legal obligation to maintain the tree and cut it down when found that it posed a danger to passers-by.

25. The facts of the present case would indicate that the defendants have failed to produce any adequate explanation, as to the cause of accident except to plead that they had deputed an attendant there to put the shutter down and to close the room and also had warned the parents of the children to take sufficient care so that the children did not stray into the room, where the water pump was operated. The doctrine of res ipsa loquitur would seem to apply. The facts obviously speak of the negligence of the defendants and the unfortunate accident occurred as a result of lack of good management, which would normally demand that the door and shutter of the room was kept closed while the motor was in operation. The explanation that the children used to trespass into the premises and the defendants are not liable does not hold good. A trespassing child of a tender age of 6 years would not be knowing the implication and gravity of putting her hand in a running motor and it was for the defendants to give ample protection in this regard. "The premises were unfenced, unguarded and unattended and the plaintiff was too young to appreciate the real danger of interfering with a working motor and her age was not sufficient to appreciate the "real" danger of what she was doing. Therefore, the plea of negligence on the part of the respondents cannot be dismissed by calling the parents irresponsible."

26. The doctrine of res ipsa loquitur is explained in a very illustrative passage in Clerk & Lindsell on torts (Sixteenth Edition) pages 568-569, which reads as follows:

"Doctrine of res ipsa loquitur. The onus of proof, which lies on a many alleging negligence is, as pointed out, that he should establish his case by a preponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other's part: "res ipsa loquitur is a principle which helps him to do so." In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle C.J.:

"There must be reasonable evidence of negligence. But 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."

It is no more than a rule of evidence and states no principle of law. "This convenient and succinct formula," said Morris L.J., "possesses no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin," It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. The court hears only the plaintiffs side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary for res ipsa loquitur to be specifically pleaded."

Reference may be made to another passage from the same book at page 723 which reads as follows:

"Liability to children. An occupier must be prepared for children to be less careful than adults. Something which would not be a danger to an adult may very well be one to a child; and a warning sufficient for an adult may be insufficient for a child. In Maloney v. Lambeth London Borough Council an occupier was held liable to a four year old boy who fell through the bars of a balustrade. If a person the size of the plaintiff lost his balance he was liable to go through the gap. The staircase did not comply with the occupier's duty of care to a child of that age. But in Ward v. Hertfordshire C.C. it was held there was no liability to a child aged eight who fell against a long standing brick and flint wall in a school's playground. The wall was not inherently dangerous and the presence of a supervisor would not have prevented the accident."

27. The Hon'ble Supreme Court in Pushpabai Parshottam Udeshi v. M/s Ranjit Ginning and Pressing Co. Pvt. Ltd., has held that where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. The accident is such as in ordinary course of things does not happen, if those, who had the management, used proper care.

28. It has only been contended that the defendants cannot be held liable as the parents of the children were warned off and to keep them in proper control so that they do not stray into the room containing these appliances. It is, however, established that the defendants were grossly negligent in (not) closing the shutter of the room, where the pump was being operated or to place any watchman at the time of the accident so that the children do not stray into the premises. The evidence has further established that the children were in the habit of playing in and around the place where the accident took place and the defendants were aware of that. There is no doubt about the accepted proposition with regard to liability to children. An occupier must be prepared for children to be less careful than adult. There may be something which would not pose a danger to an adult but that may very well pose a danger to a child and a warning sufficient for an adult may be insufficient for a child.

29. The present case is fully covered by the doctrine of res ipsa loquitur as the facts speak for the negligence of the defendants.

30. For the aforesaid reasons, I hold that the plaintiff was injured as a result of negligence of the defendants in maintaining the water pump, which was being operated by electric motor and they have failed to produce any adequate explanation in this regard.

31. The plaintiff is, therefore, entitled to damages for the negligence of the defendants in not supervising the room, where the electric pump was operating and where the plaintiff, a girl of tender age of 6 years, strayed and got the injuries and lost two fingers of her right hand. There is no doubt that this has affected her future prospects in life. The prospect of her having a complex and pursuing her career is jeopardised to some extent. There may also be some effect upon the personality and prospects of her marriage. The defendants have behaved in a very casual and callous manner. The unfortunate accident took place as far back as on August 11,1980. The father of the plaintiff wrote a communication to the General Manager, Delhi Telephones, New Delhi, requesting to pay the expenses incurred by him on the treatment of the plaintiff, who had suffered a permanent disability due to loss of two fingers of her right hand and for a compensation of Rs. 50,000/-. The reaction of the defendants can be assessed from the letter dated December 26, 1980, addressed to the Area Manager (West), 13, Community Centre, Naraina, New Delhi. The defendants reiterated in this letter that the officials, who were allotted the residential accommodation in the Exchange premises had moral responsibility to instruct their children not to enter into the service block and also to remain away from Electrical/Machine equipments. The compensation for such Miss happening was denied on the ground that such accidents are purely due to negligence of parents/ children,

32. The blame is entirely put on the parents and the children, and the plea for compensation was denied on flimsy and superficial grounds. The position of law, as has been summarised above, is quite clear as to the responsibility of the occupier towards the children and there is no question of any moral responsibility on the part of the parents to instruct their children in a particular manner to avoid such accidents which responsibility they even otherwise discharge. The defendants have themselves failed in their duty to provide sufficient staff, and the ground that the presence of one pump operator at all times was not possible has no force as, this is their responsibility to make necessary arrangements, so that unfortunate incidents do not take place. The defendants were quite aware that the children used to play in the precincts as it has come in evidence that defendant No. 3 had often warned the parents of the children. In any case, it cannot be held that the children were mere trespassers and the accident had occurred due to the negligence of the parents. The argument is far fetched and cannot be sustained.

33. Issues Nos. 2 to 3 are decided in favor of the plaintiff and against the defendants.

34. The plaintiff has claimed a compensation of Rs. 1,50,000/-, as well as, pendente lite and future interest at the rate of 12 per cent per annum from the date of filing of suit till realisation. The plaintiff has suffered permanent deformity by losing her two fingers of right hand and there is no doubt that her activity in life will always be jeopardised to some extent. There is no fixed doctrine in fixing the quantum of damages in such a situation. The Court does not look for precedent and has to weigh all the circumstances surrounding a particular case. The only point, which has to be kept in view, is that the sum awarded to the plaintiff is not out of all proportions and the same should be fair and equitable on the facts and circumstances of that case. The Division Bench of this Court in Delhi Transport Corporation v. Kumari Lalita, AIR 1982 Delhi 558 stated in law in the following passage (at page 566):

"There is no doctrine of precedent in fixing the quantum of damages in a motor vehicle accident. The Court does not look for precedents, but for a general guide to the current range of damages. It looks, for assistance in a difficult problem, not for an inflexible pattern which would confine the Courts within fixed limits. In general, too, it does not look at particular cases, but at the general level of recent assessments in cases which are fairly close to the case under consideration. It may happen, of course, that a certain case offers a particularly good illustration. It is true that each case has to be weighed upon its own individual merits, since no two cases are exactly alike. But awards in comparable cases do enable the Court to seek guidance, not by referring to a particular case and treating it as a precedent, but by looking at the general level of damages in the same type of case, or cases which offer some means of comparison by analogy. The notion of a "range" of figures is important. The sum awarded to one plaintiff should not be out of all proportion to the sum awarded to another in respect of similar physical injuries. It has been said that fairness between one plaintiff and another requires some degree of uniformity."

The plaintiff herein was a tender girl of six years, when the accident took place and there is no doubt that she has suffered physical injuries, as well as, faced mental agony for all these years and her movement and activity in life is affected. The claim for damages, as claimed in the plaint, cannot, therefore, be held to be unreasonable or arbitrary.

35. The damages have to include for pain and suffering loss of amenities of life and also includes damages on account of disfigurement, especially in the cases of young women, where prospects of her marriage are impaired and for discomfort and inconvenience. Reference may be made in this context to the judgment of the High Court of Andhra Pradesh in K. Sapana v. B. Appa Rao, 1988 ACJ 113. There is no doubt that the plaintiff has not claimed damages by dividing them into separate heads but on overall consideration and facts and circumstances of the present case, the claim for Rs. 1,50,000/- does not fall in the category of exaggerated claim. The same is accordingly upheld.

36. Defendant No. 3 was working as an attendant at the time, the accident took place. The same was caused due to his negligence in the course of employment. The law is settled that master is vicariously liable for the acts of his servant acting in the course of his employment.

37. Accordingly, I pass a decree in the sum of Rs. 1,50,000/- with costs in favor of the plaintiff and against the defendants, who shall be jointly and severally liable. Plaintiff shall also be entitled to pendente lite and future interest at the rate of 12 per cent per annum from the date of filing of the suit till realisation. The Court-fees shall be paid by the plaintiff on the decretal amount, from the amount recovered from the defendants.

38. Order accordingly.