Delhi High Court
Shakuntala vs Govt Of Nct Of Delhi & Anr. on 1 July, 2009
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON:26.02.2009
PRONOUNCED ON: 01.07.2009
+ W.P. (C) 13771/2006
SHAKUNTALA ..... Petitioner
Through: Mr. M.M. Singh and Mr. Sunil Singh, Advocates.
versus
GOVT OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Sumeet Batra for Ms. Zubeda Begum,
Advocate, for Resp. No.1.
Mr. Alok Singh, for Mr. Sanjeev Sabharwal, Advocate,
for MCD.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HON'BLE MR. JUSTICE S.RAVINDRA BHAT
%
1. In this writ proceeding, under Article 226 of the Constitution of India, the petitioner
seeks directions to the Govt. of N.C.T. of Delhi (first respondent, hereafter "GNCTD") and
Municipal Corporation of Delhi (second respondent, hereafter "MCD") for the payment of
compensation of Rs. 10,00,000/-, alleging that negligence and dereliction of public duty on their
part resulted in untimely death of her husband, Sh. Sita Ram (hereafter "the deceased").
WP (C) 13771/2006 Page 1
2. The brief facts are that the deceased, a fruit vendor, carried on his trade from a roadside
"Redi/" "Thela" (hand-cart). On the fateful day the deceased was selling fruits when two
fighting bulls came by. In the ensuing melee he fell, was entangled between the fighting bulls
and was badly mauled. He was immediately shifted to the GTB Hospital where he remained
under treatment till 23.1.05, when he finally succumbed to his injuries and breathed his last.
The postmortem report revealed that the cause of death was
"shock due to cranio-cerebral injuries produced by blunt force impact. All injuries are and
possible by assault by bull".
3. The event was recorded by the police, in a First Information Report (FIR); in support, the
deceased's brother had been examined, and his statement recorded by the police. An inquest
was ordered by the authorities into the cause of death. After considering the materials, the
Final Inquest Report concluded that death of the deceased was due to injuries sustained in
course of a bullfight, in which he got inadvertently dragged.
4. The petitioner states that the untimely demise of her husband who was the sole earning
member, has left the family, consisting of herself (aged 39 years) and her five minor children
(two sons aged 17 and 12 years and three daughters aged between 13 to 16 years) and parents
of the deceased (aged 70 and 68 years), in grave financial distress and to fend for themselves. It
is stated that the deceased was earning around Rs. 5,000/- per month.
5. The petitioner alleges dereliction of duty on part of the respondents and states that the
MCD should have taken appropriate steps to ensure that stray bulls did not roam the public
streets. The petitioner urges having represented to the MCD on 16.6.2005 requesting
compensation and thereafter, to having approached several officials of the respondents, who
WP (C) 13771/2006 Page 2
assured her, support. These, it is contended were of no avail, as nothing was done to redress
her grievances. She urges that the deceased, an Indian Citizen, lost his life due to negligence of
the respondents, thus his fundamental right, guaranteed under Article 21, stood violated. The
respondents infracted in executing the public duty as a result of which, two bulls mangled the
deceased causing his untimely demise. This death has left the rest of the family to the mercy of
fate, and to fend for themselves, as he was the sole bread-winner of the family and as such
compensation should be awarded in their favour and against the respondents. The deceased
was 40 years of old at the time of his death and due to his premature demise not only the daily
household needs have suffered a setback but also his children' future has become an abyss, as
there is no means of funding their education.
6. The GNCTD, through Deputy Secretary (Home), in its counter affidavit states that as per
order dated 21.9.2006 of the GNCTD compensation can only be granted in specified cases
namely, bomb blasts, communal and other riots, terrorist attacks; Fire and Other Accidents
(caused by individual or natural calamities); Loss of Movable Property (in riots); Damage to
residential unit (In riots/fire/natural calamities/ [other than jhuggies]); Damage to jhuggies (in
case of fire/riots etc.). A copy of the order dated 21/9/2006 is annexed.
7. It is further pointed out that in another Writ Petition (No. 14175/2005, titled Vikas Jain
v. Govt. of N.C.T. of Delhi) this Court had recorded, by order dated 30.8.2006, that the task of
ensuring Delhi free of cattle menace was with the MCD and the NDMC authorities and for the
purpose an amount of Rs. 4 crores was released by the Delhi Govt. to the MCD for purchase of
12 Hydraulic Trucks and for manpower for these trucks. It was urged that as substantial
WP (C) 13771/2006 Page 3
amounts were released for the purpose to the agency responsible, the responsibility to pay
damages lies with the authorities like MCD and NDMC.
8. The MCD through the Veterinary Officer, Shahadra North Zone, in its counter affidavit,
states that it has been carrying out the drive to catch stray bulls from time to time. In the year
2005 around 242 stray bulls were caught in the Shahadra North Zone with help of its skeletal
staff and infrastructure. A report of month-wise action for catching stray bulls is annexed to the
reply. It was further stated that it is the duty of the individual to exercise care and caution in
the normal course and if accidents, like in the present case, occur due to negligence on part of
the individual the same cannot be compensated. Further reliance is placed upon the statement
of the petitioner to say that they are self-contradictory as she had earlier stated that the
deceased was injured by the two fighting bulls and later, in her representation before the MCD
dated 16.6.2005, she stated that he was hit by one bull only. It is urged that no independent
witness was examined by the police to support the case that the deceased was indeed injured
during a stray bull fight.
9. The petitioner's counsel urged that there is no dispute regarding the facts of the case;
the petition is based on established facts emerging out of investigation carried out by the
Police. The Inquest report prepared by the police was further corroborated by the post-mortem
report of the GTB hospital. It was urged that as the overall governance of the city of Delhi
remains with the GNCTD, it cannot wash its hands of by transferring the onus to compensate on
the MCD. Counsel contended that the MCD is liable by virtue of statutory provisions, and the
directions of this Court.
WP (C) 13771/2006 Page 4
10. The petitioner places reliance on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 that
in case of violation of any fundamental rights compensation can be awarded under public law,
which is exclusive of the remedy available in private law for tortious negligence. It was
observed that,
"44. .... Grant of compensation in proceedings under Article 21 and 226 of the
Constitution of India for the established violation of the fundamental rights
guaranteed under Article 21, is an exercise of the Courts under the public law
jurisdiction for penalising the wrong doer and fixing the liability for the public
wrong on the State which failed in the discharge of its public duty to protect the
fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in
civil law limits the role of the courts too much, as the protector and custodian of
the indefeasible rights of the citizens. The courts have the obligation to satisfy
the social aspirations of the citizens because the courts and the law are for the
people and expected to respond to their aspirations. A Court of law cannot close
its consciousness and aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the victim-civil action for
damages is a long drawn and cumbersome judicial process. Monetary
compensation for redressal by the Court finding the infringement of the
indefeasible right to life of the citizen is, therefore, a useful and at times perhaps
the only effective remedy to apply balm to the wounds of the family members of
the deceased victim, who may have been the bread winner of the family.
46. In Nilabati Bahera's case (1993) 2 SCC 746, it was held:
"Adverting to the grant of relief to the heirs of a victim of custodial
death for the infraction or invasion of his rights guaranteed under
Article 21 of Constitution of India, it is not always enough to
relegate him to the ordinary remedy of a civil suit to claim
damages for the tortious act of the State as that remedy in private
law indeed is available to the aggrieved party. The citizen
complaining of the infringement of the indefeasible right under
Article 21 of the Constitution cannot be told that for the
established violation of the fundamental right to life, he cannot
get any relief under the public law by the courts exercising writ
jurisdiction. The primary source of the public law proceedings
stems from the prerogative writs and the courts have, therefore,
to evolve new tools to give relief in public law by moulding it
according to the situation with a view to preserve and protect the
WP (C) 13771/2006 Page 5
Rule of Law, while concluding his first Hamlyn Lecture in 1949
under the title "Freedom under the Law" Lord Denning in his own
style warned:
No one can suppose that the executive will never be guilty of the
sins that are common to all of us. You may be sure that they will
sometimes do things which they ought not to do: and will not do
things that they ought to do. But if and when wrongs are thereby
suffered by any of us what is the remedy? Our procedure for
securing our personal freedom is efficient, our procedure for
preventing the abuse of power is not. Just as the pick and shovel is
no longer suitable for the winning of coal, so also the procedure of
mandamus, certiorari, and actions on the case are not suitable for
the winning of freedom in the new age. They must be replaced by
new and up-to date machinery, by declarations, injunctions and
actions for negligence... This is not the task of parliament.... The
courts must do this. Of all the great tasks that lie ahead this is the
greatest. Properly exercised the new powers of the executive lead
to the welfare state; but abused they lead to a totalitarian state.
None such must ever be allowed in this country."
----xx----xx----xx----
54. .... The award of compensation in the public law jurisdiction is also
without prejudice to any other action like civil suit for damages which is
lawfully available to the victim or the heirs of the deceased victim with
respect to the same matter for the tortious act committed by the
functionaries of the State. The quantum of compensation will, of course,
depend upon the peculiar facts of each case and no strait jacket formula
can be evolved in that behalf. The relief to redress the wrong for the
established invasion of the fundamental rights of the citizen, under the
public law jurisdiction is, thus, in addition to the traditional remedies and
not in derogation of them. The amount of compensation as awarded by
the Court and paid by the State to redress the wrong done, may in a given
case, be adjusted against any amount which may be awarded to the
claimant by way of damages in a civil suit."
(emphasis supplied)
11. The petitioner also relies on the Nilabati Behera case (supra), where it was held
that:
WP (C) 13771/2006 Page 6
"14. In this context, it is sufficient to say that the decision of this Court in
Kasturilal (AIR 1965 SC 1039) upholding the State's plea of sovereign
immunity for tortious acts of its servants is confined to the sphere of
liability in tort, which is distinct from the State's liability for contravention
of fundamental rights to which the doctrine of sovereign immunity has no
application in the constitutional scheme, and is no defence to the
constitutional remedy under Articles 32 and 226 of the Constitution which
enables award of compensation for contravention of fundamental rights,
when the only practicable mode of enforcement of the fundamental rights
can be the award of compensation. The decisions of this Court in Rudul
Sah [(1983) 4 SCC 141] and others in that line relate to award of
compensation for contravention of fundamental rights, in the
constitutional remedy under Articles 32 and 226 of the Constitution. On
the other hand, Kasturilal related to value of goods seized and not
returned to the owner due to the fault of Government servants, the claim
being of damages for the tort of conversion under the ordinary process,
and not a claim for compensation for violation of fundamental rights.
Kasturilal is, therefore, inapplicable in this context and distinguishable."
(emphasis supplied)
12. The petitioner contends that the respondents cannot be absolved of the liability to
compensate her loss by suggesting that onus of removing the stray cattle rested with the MCD,
the petitioner relied upon a decision of this Court, Darshan v. Union of India 2000 ACJ 578
wherein it was observed that,
"9. A Division Bench of this Court in Shyama Devi & Ors. Vs. National Capital
Territory of Delhi [78 (1999) DLT 827] also awarded compensation under Article
226 of the Constitution is a case where there was negligence in not defusing a
rocket, resulting in the death of a Constable.
Compensation had also been awarded by this Court as well as by the Apex Court
in writ jurisdiction in several cases of custodial deaths. Coming to instant case, it
is one of res ipsa loquitor, where the negligence of the instrumentalities of the
State and dereliction of duty is writ large on the record in leaving the manhole
uncovered. The dereliction of duty on their part in leaving a death trap on a
public road led to the untimely death of Skattar Singh. It deprived him of his
fundamental right under Article 21 of the Constitution of India. The scope and
ambit of Article 21 is wide and far reaching. It would, undoubtedly, cover a case
where the State or its instrumentality failed to discharge its duty of care cast
WP (C) 13771/2006 Page 7
upon it, resulting in deprivation of life or limb of a person. Accordingly, Article 21
of the Constitution is attracted and the petitioners are entitled to invoke Article
226 to claim monetary compensation as such a remedy is available in public law,
based on strict liability for breach of fundamental rights.
10. From the foregoing, it is clear that the present writ petition for grant of
compensation in the case of breach of public duty by instrumentality of the State,
resulting in deprivation of life, would be maintainable under Article 21 of the
Constitution of India."
13. The MCD urges that there is no general duty cast upon it, to ensure that roads and
public spaces are kept free of stray bulls or cattle. It is contended, in reiteration of its counter
affidavit, that having regard to the peculiar conditions in India, those who ply their wares and
engage in hawking and other such commerce, on the public streets are deemed to be aware of
the likely hazard and probable harm which would befall them, in the event of wayward cattle or
other animals attacking them. It is contended that in the absence of a clear duty, and its
demonstrable breach, by the public authority, the court should not award damages in exercise
of public law jurisdiction.
14. It was also urged, in addition, that apart from lack of any discernable public duty, cast
on MCD, the factual disputes arising in this case are incapable of decision in writ proceedings,
as a proper trial would unravel the true circumstances. Here, the mere assertion by the
petitioner that her husband died due to aggression and fighting of two bulls is insufficient to
cast liability on the breach of duty principle.
15. The above narrative discloses that the petitioner's claim is for the breach of the duty of
care, which she claims, the respondents owed to her deceased husband. The latter, on the
WP (C) 13771/2006 Page 8
other hand, deny any such duty and also assert that the questions sought to be agitated in this
case are best left for determination by the courts in civil proceedings.
16. The relief of compensation under public law, for injuries caused on account of negligent
action, or inaction or indifference of public functionaries or for the violation of fundamental
rights is a part of the evolving public law jurisprudence in India. The High Courts' and the
Supreme Court's powers, under Article 226 and Article 32 respectively, to mould the relief so as
to compensate the victim has been affirmed by the Supreme Court on numerous occasions
including Common Cause, A Registered Society V. Union of India, (1999) 6 SCC 667, Chairman
Railway Board V. Chandrima Das, (2000) 2 SCC 465, Delhi Domestic Working Women's Forum V.
Union of India, (1995) 1 SCC 14, D.K. Basu V. State of W.B, (1997) 1 SCC 416, Postsangbam
Ningol Thokchom (Smt) And Another, Appellants; V. General Officer Commanding 1997 (7) SCC
725; Rudul Shah V. State of Bihar, (1983) 4 SCC 141. The concept of compensation under public
law must be understood as being different from the concept of damages under private law.
Compensation under public law must not be merely seen as the monetary equivalent for
compensating towards the injury caused, but also understood in the context of the failure of
the State or state agency, to protect the valuable rights of the citizens, particularly of the
marginalized and the disempowered. In the decision reported as State of A.P. v. Challa
Ramakrishna Reddy & Ors 2000 (5) SCC 712, the Supreme Court emphasized that the nature of
the proceedings - through writ petitions or through other civil jurisdictions, would not make
any difference, in applying the principles for award of damages in case of violation of a public
law right or entitlement, of a citizen, or where he complains of violation of fundamental rights.
WP (C) 13771/2006 Page 9
17. It has been established now, for nearly three decades, that the right to life enshrined in
Article 21 is not a right to mere vegetative ("animal") existence, but to a life with dignity and a
decent standard of living. The injury, suffered due to the state's or its agencies' neglect in the
performance, or the wrongful performance of its duties, is as actionable in public law, as in tort.
In this background the failure of the State to prevent the occurrence of negligent acts by its
employees, or those who are accountable to it, within premises under its control, or in respect
of zones of activities falling within their jurisdiction strikes at the root of the right to life,
guaranteed under Article 21 of the Constitution of India.
18. In Chandrima Das (supra) the Supreme Court mentioned about obligation of the States
to ensure that women are not victims of violence, including rape and held that this right is
consistent with the right to life under Article 21, of all who are protected by our Constitution. In
that case, the aggrieved was a victim of rape committed upon her in a railway compartment.
The court brushed aside the Central Government's disclaimer of liability, and declared that the
right of the victim under Article 21 had been violated. It awarded Rs. 10 lakhs as public law
damages. It is noteworthy to see that the court did not see who was the real perpetrator, or
what duty he owed to the Government; it was held sufficient that the wrong occurred in a
railway coach, which was under the control of the railway authorities.
19. It would also be useful to notice the observations of the Supreme Court, in Nilabati
Behera v. State of Orissa, (1993) 2 SCC 746, at page 762:
"a claim in public law for compensation' for contravention of human rights
and fundamental freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for enforcement and protection of such
rights, and such a claim based on strict liability made by resorting to a
WP (C) 13771/2006 Page 10
constitutional remedy provided for the enforcement of a fundamental right is
'distinct from, and in addition to, the remedy in private law for damages for the
tort' resulting from the contravention of the fundamental right. The defence of
sovereign immunity being inapplicable, and alien to the concept of guarantee of
fundamental rights, there can be no question of such a defence being available in
the constitutional remedy. It is this principle, which justifies award of monetary
compensation for contravention of fundamental rights guaranteed by the
Constitution, when that is the only practicable mode of redress available for the
contravention made by the State or its servants in the purported exercise of their
powers"
20. As far as the respondents' argument regarding the efficacy of the writ remedy, under
Article 226 of the Constitution of India is concerned, the Supreme Court held, in ABL
International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553, that merely
because one party to the litigation raises a dispute in regard to the facts of the case, the court
entertaining such petition under Article 226 of the Constitution is not always bound to relegate
the disputants to a suit. The court observed that in an appropriate case, the court has the
jurisdiction to entertain a writ petition involving disputed questions of fact, since there is no
absolute bar for entertaining such cases.
Duty of care
21. The respondents' principal argument in this proceeding is that there is no discernable
duty of care in ensuring that stray cattle or bulls are kept away from roads and streets, and that
those plying their trades have to take care of themselves against any such hazards.
22. It would be necessary to see whether there is any obligation cast upon the authorities,
in this regard, under the relevant enactments. Under section 298 of the Delhi Municipal
Corporation Act, 1957 and Section 202 of the New Delhi Municipal Council Act, 1994 (hereafter
WP (C) 13771/2006 Page 11
the Act) all the public streets within Delhi or New Delhi are vested in the Municipal Corporation
of Delhi or the New Delhi Municipal Council, as the case may be. These streets are under the
control of the MCD and the NDMC, which are also responsible for their maintenance and
regulation. The MCD, which is primarily asked to account for its action here, is also empowered
to regulate public streets; it has the right to invoke eminent domain, for the purpose of road
development, expansion, etc. Sections 42 of the Act lists out that the Obligatory Functions of
the Corporation, the ones in relation to Public Streets are-
"(n) the construction, maintenance, alteration and improvements of public
streets, bridges, culverts, causeways and the like;
(o) the lighting, watering and cleansing of public streets and other public places;
(p) the removal of obstructions and projections in or upon streets bridges and
other public places;
(q) the naming and numbering of streets and premises;"
23. In Common Cause (Regd Society) v. Union of India (UOI), & Govt. of NCT of Delhi, MCD
and NDMC and Ram Pratap Yadav v. MCD (decided on 03.11.2000) a decision of this Court, the
court was concerned with the precise duty of the MCD to maintain public roads and streets and
ensure that they are free of stray cattle, for the safety of road users (which would include
pedestrians, those plying vehicles and vendors on footpaths, etc.) it was observed that-
"14. The menace of stray cattle is hazardous and causes traffic snarls. It affects
the safety of human beings on the road. It has the potential to cause accidents.
Besides, it depicts a very dismal picture of the capital. It is also very cruel on the
bovine animals as they are let loose on the roads because the owners do not
want to feed them. These animals have to fend for themselves. They eat
whatever comes in their way including garbage and plastic bags. This affects
their health and causes extreme trauma to them. We also find that Gosadans, by
and large, have not been able to fulfill the purpose for which they were
established. The fact that the animals which were made over to Gosadans have
disappeared speaks volumes about their working. The capital city of Delhi should
be a show window for the world. The stray cattle on the roads gives a wrong
WP (C) 13771/2006 Page 12
signal. Cattle and other animals which are let loose on the roads by their owners
and also responsible for filth, squalor and outbreak of diseases.
______xxx______xxx______
16. It appears that the State and its agencies are impervious to the menace of
stray cattle. They have not taken any effective steps to prevent the cattle and the
bovine animals from taking to the roads. This has affected the quality of life of
the citizens. The inaction of the state and its agencies impinges upon the
fundamental right of the citizens under Article 21 of the Constitution. Under
Article 48 of the Constitution, the State inter alias is required to protect and
safeguard the forests and wild life. The State by neglecting to perform its duty in
preventing the menace of stray cattle is avoiding implementation of Article 48 of
the Constitution. It is the duty of the State to keep in view the directive principles
of the State policy which are fundamental in the governance of the country and
to apply those principles in making the laws. No effective law has been made to
prevent the owners of bovine animals including cattle and cows from being let
loose. In the facts and circumstances, therefore, it has become necessary to give
directions to the State to control and prevent the menace of stray cattle.
17. Accordingly, we direct and observe as follows:-
...................
3. The MCD and the NDMC shall employ sufficient number of vehicles to ferry the
impounded cattle.
4. The MCD, the NDMC and the police department should work together to stop
the menace of stray cattle.
5. Co-ordination Committees shall be constituted in each of the Police Districts.
Each committee shall consist of the Deputy Commissioner, MCD of the
area/Secretary, NDMC, and the Deputy Commissioner of Police of the concerned
District. The two-member Committee shall be responsible for eradicating the
menace of stray cattle.
.....
7. Cattle and bovine animals located in Delhi shall have a tag number tied around
their necks. The tag number must be indicative of the owner to whom the animal
belongs so that there is no difficulty in tracing the owner.
8. Prosecutions should be launched under Section 98 of the Delhi Police Act, 1978,
and Section 289 of the Indian Penal Code, 1860 against the owners of any cattle
and bovine animals which are found on the streets and roads.
9. The MCD and the NDMC should employ sufficient number of persons to catch
stray cattle and bovine animals. Once they are caught they shall be impounded
and may be released only on payment of fine of at least Rs. 1,000/- each. The
vehicles which are used for carrying impounded cattle and bovine animals ought
to be fitted with ramp in order to obviate the chance of injury to them. The
transit and handling of cattle and bovine animals after being impounded shall be
in consonance with the provisions of the Prevention of Cruelty to Animals Act,
1960.
WP (C) 13771/2006 Page 13
.....
18. The roads of Delhi should be made free of stray cattle and bovine animals by
1st February, 2003. No cattle or bovine animals shall be permitted on the roads
after the aforesaid date. The responsibility to comply with the order will be that
of the aforesaid Committee in their respective areas."
24. In a decision of the Rajasthan High Court Sanjay Phophaliya v. State of Rajasthan and
Ors. AIR 1998 Raj 96 placing reliance on L.K. Koolwal v. State of Rajasthan AIR 1988 Raj 2 it was
observed that-
"it is primary, mandatory and obligatory duly of Municipality to keep city clean
and to remove insanitation, nuisance etc. The Municipality cannot take plea
whether funds or staff is available or not."
It was further observed that-
"9. It is a serious matter when the dogs and other animals suffering from rabies
bite animals and persons. The duty becomes more onerous on the respondents
with regard to the dogs and such animals. The staff cannot say that its duty is
complete if action is taken only on complaints. They must not sit in the office but
should continuously take round of the city. If any inaction is found on the part of
the staff, the respondents are bound to take disciplinary action against such
staff. If still any accident happens, then the injured person or relative of the
deceased person would be competent to invoke the provisions of Section 188 of
IPC against such a negligent staff. It is expected that the roads of Jodhpur be
cleaned from these stray animals within a period of four months from today. The
respondents would be free to get work through contractors."
25. In Milkmen Colony Vikas Samiti v. State of Rajasthan and Ors. and Shri Ghanchi
Mahasabha, Jodhpur v. Rajasthan Chapter of Indian Association of Lawyers and Ors. AIR 2007
SC 1048 the Supreme Court directed the Municipal Corporation of Jodhpur to remove
unattended stray animals, such as, stray cattle, bulls, dogs, pigs etc. from the city of Jodhpur as
expeditiously as possible and in any event on or before 30th April, 2007. Further, in a string of
decisions by various High Courts it was observed that keeping the public streets free from the
WP (C) 13771/2006 Page 14
menace of stray animals is the primary duty of the municipal bodies. In the light of these
decisions, it is held that the duty to maintain streets and public roads free of stray cattle is that
of the MCD. This duty is owed to all members of the public, and is an absolute obligation.
26. In this case, the injuries on the deceased, recorded in the post mortem report, and the
statement taken down by the police in the course of investigation, corroborate the findings in
the inquest proceedings, that death occurred due to the injuries inflicted by the fighting
animals. The statement recorded by the police, testifies the details regarding the events. In
these circumstances, there is no "disputed question" as it were, that requires resolution
through civil court proceedings. The court is of opinion that in addition, the duty of care being
statutorily cast on the MCD, this is an instance where the maxim res ipsa loquitor would apply.
This rule was explained in Pushpabai Purshottam Udeshi V. Ranjit Ginning & Pressing Co. (P)
Ltd., (1977) 2 SCC 745:
"The normal rule is that it is for the plaintiff to prove negligence but as 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 on the part of the defendant. This hardship is
sought to be avoided by applying the principle of res ipsa loquitur. The general
purport of the words 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. It will then
be for the defendant to establish that the accident happened due to some other
cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306
states: "The maxim res ipsa loquitur applies whenever it is so improbable that
such an accident would have happened without the negligence of the defendant
that a reasonable jury could find without further evidence that it was so caused".
In this case, the petitioner has been able to establish the essential facts that pertained to the
death of her husband; these are the circumstances where the two fighting bulls went near him,
WP (C) 13771/2006 Page 15
how in the ensuing tangle, he was grievously injured; the postmortem and inquest report
corroborate these. The circumstances have been outlined in the FIR and the statement
recorded in those proceedings. If the MCD disputes these facts, it has to displace them and not
merely say that the petitioner has to establish the very same facts, through the same evidence
in a civil suit. The facts shown by the petitioner are sufficient to shift the onus, through the res
ipsa loquitor maxim, upon the MCD, to reveal why it cannot be held responsible. No such facts
or evidence has been shown to the court, to disclaim liability.
27. In Delhi Jal Board v. Raj Kumar & Ors. 2005 VIII AD Del 533; the petitioner, who while
riding a scooter drove over a manhole, that was three inches below the regular road surface
and met with an accident. The Court held the Jal Board liable and observed that when power is
given to do some act, it is often coupled with the duty to do that act properly. Therefore, the
principle of strict liability is applicable against the State also. The court further held that in cases
where the principle of strict liability applies, the defendant has to pay damages for injury
caused to the plaintiff, even though the defendants may not have been at any fault. In Chand
(Shri) & Anr. v. Chief Secretary & Ors. 2004 IV AD Del 29; the petitioner's son suffered a tragic
death when a concrete slab from the water tank fell on his head at the UTSC complex, PWD (E)
Delhi. The Court held that it was undoubtedly the duty of the respondents (Chief Secretary,
NCTD and Chief Engineer, PWD zone, NCTD) to maintain the water tank and other amenities in
the building in a manner so as not to endanger the lives of the passersby or those using such
facilities. The court held the respondents guilty of negligence and awarded compensation.
28. In Col. Dharamvir Kataria v. Union of India AIR 1999 Del 291 the petitioner's wife died
due to fall in the pit of a lift. The lifts were installed by M/s. Bharat Bijlee Limited under the
WP (C) 13771/2006 Page 16
supervision of CPWD. The contract for the operation and care of the lifts was awarded to M/s.
A.G. Enterprises. That the CPWD office records revealed that a lift operator with knowledge of
the lift mechanism and an attendant was to be provided, which was not done. As to who should
pay compensation the Court held:
"... in the first instance, the compensation shall be paid by the first respondent -
Union of India as its functionary, the third respondent (Director General of
Works), was negligent in discharge of its duty which resulted in the breach of the
right of Mrs. Mangla Kataria to life guaranteed by Article 21 of the Constitution.
It will, however, be open to the Union of India and the third respondent to
proportionately recover the amount for the fourth and fifth respondents (M/s.
Bharat Bijlee Limited and M/s. A.G. Enterprises) as they were equally guilty of
culpable negligence"
29. In Chitra Chary (Smt.) & Ors. v. DDA & Ors. 2005 (1) AD Del 29 Delhi Development
Authority had awarded the work of construction to a private contractor. The work required
trenches to be dug. The terms of contract required the contractor to take certain precautions,
which were not adhered to. Due to this negligence the first petitioner's husband fell into the
trench and later on died. It was held:
"facts as noted aforesaid reflect the general cynical irrelevance towards safety
norms to be followed as one notices everyday whenever municipal agencies carry
out construction work either by themselves or through a contractor. The facts
evidence that usual mood of complacency seen each day. What is listed as a
safety measure is observed more in breach and less in compliance. This court has
witnessed construction of flyovers in Delhi, digging of roads for sewer, repair
work, etc., safety norms are found not being adhered to. It is the bounded duty of
municipal agencies to ruthlessly require adherence to the safety norms in their
minutest detail and in their exacting requirements. Evidence on record
conclusively establishes breaches of putting barricades for the safety of passers
by".
It was also held that:
"any activity under authority of the State has to be reckoned as that of the State as
itself. The State has to be held vicariously liable".
WP (C) 13771/2006 Page 17
In Sunil Manoj Mathew & Anr. v. BSES Rajdhani & Ors. 2006 (I) AD Del 698 a person died in a
fatal accident caused due to a metal ladder used for repairing street lighting rolling down from
the pavement to the main road resulting in a collision with the motorcycle of the deceased. It
was held by the court that:
"... In any event it is not denied by BSES that the ladder was being used for
repairing street lighting. This responsibility or duty is entirely that of BSES. The
fact that the BSES had contracted this duty and responsibility to Shri Mudrax
Parashar will not absolve it of its to liability. If the liability is not direct, it is
certainly vicarious in nature..... Public and civic Authorities have on a rampant
and ubiquitous scale adopted a cavalier and careless attitude in fulfilling their
functions, totally oblivious of the hazards and dangers that are caused to the
public by their negligence functioning"
30. The next question is what should be the appropriate amount payable to the petitioner
as compensation. There is no guidance in statue law, in such cases. There is an element of
inappropriateness in borrowing from statutes, as for instance, the Motor Vehicles Act, or the
Workmens' Compensation Act, etc. for assessment of damages. Yet, the court has to take into
consider various factors. Here, the deceased was 40 years when the accident occurred. He is
survived by the petitioner, his widow and five children, of whom three are minors, and
dependant parents. The accident was the consequence of neglect of the MCD which did not
ensure proper supervision of the area, to avoid the menace of stray cattle, that could have
prevented the kind of accident which actually took place. Considering these facts, it is held that
the MCD is liable to pay compensation to the petitioner. In the facts of this case, the court
directs the said respondent, i.e. MCD to pay Rs. 10,00,000/- (Rupees ten lakhs only). The said
amount shall be disbursed, and kept in the Registry of this court; it shall be kept in an interest
bearing fixed deposit in a nationalized bank, and renewed from time to time, for a maximum of
WP (C) 13771/2006 Page 18
three years. The Registrar shall periodically disburse the said interest to the petitioner. The
petitioner shall be present every second Monday of March, June, September of each year to
receive the proceeds of the fixed deposit. If for some reason, any amounts are required, the
petitioner may apply to the court. On maturity, the amounts shall be disbursed to the
petitioner.
31. The writ petition is allowed in terms of the above directions; the MCD shall deposit the
above sum of Rs. 10,00,000/- with the Registry of the Court, within four weeks. It shall also pay
costs, quantified at Rs. 25,000/- to the petitioner; the same shall be paid to the petitioner
directly within four weeks.
S. RAVINDRA BHAT
(JUDGE)
July 01, 2009
WP (C) 13771/2006 Page 19
