Criminal Justice Society vs Union Of India & Ors.
2010 Latest Caselaw 3567 Del

*             HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment Reserved on : 28th July, 2010
%                                Judgment Pronounced on: 2nd August, 2010

+      WP(C) No.856/2010

       CRIMINAL JUSTICE SOCIETY                ..... Petitioner
                     Through: Mr. Raj Kamal, Adv.
           Versus

       UNION OF INDIA AND OTHERS                 ..... Respondents

Through: Ms. Sonia Sharma with Mr. Ruchir Mishra, Advs. for R-1.

Ms. Maninder Acharya, Adv. for R-2.

Mr. Mahesh Srivastava with Mr. Ashok Kumar Sharma, Advs. for R-4.

Mr. Shoib Haider, Adv. for Mr. N.

Waziri, standing counsel for R-6.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN

1. Whether reporters of the local papers be allowed to see the judgment?Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ

The seminal and centroidal issues that emanate for consideration in

this public interest litigation preferred under Article 226 of the Constitution

of India by Criminal Justice Society, is whether the wife of a septuagenarian

is entitled to compensation for his accidental death caused due to the fall in a

pit on the divider which was required to be covered by a barricade with

warning signs meant for pedestrians by the contractor, the respondent No.4

herein, engaged by the respondent No.2 - Municipal Corporation of Delhi

(for short „the MCD), and if the answer is in the affirmative, the further

aspect that has to be dwelled upon is what should be the appropriate

quantum, regard being had to the relevant factors like age of the deceased,

the negligence of an agent of a statutory authority and the shock suffered by

the helpless wife, who, we are obliged to presume, belonged to his living

spirit despite he being nearly four scores and his life was „a sort of splendid

torch‟ to her. The other pivotal issue that needs to be addressed to whether

pits can be allowed to remain in such a stage to become hazards and death

traps for the citizens and what remedial measures are required to be taken

without any pretence.

2. The facts that have been uncurtained are that on 28.8.2009 about 8.15

p.m one Trilok Nath Makan, aged about 77 years, a retired Additional

Private Secretary of the Union of India stepped out of his house to buy

groceries from the nearby shops. The area was dark because the power had

been turned off while the streetlights were being installed. It is put forth that

the pits on the Shivalik-Malviya Nagar stretch remained uncovered without

barricades and sans warning sign board in place as a consequence of which

the deceased fell into the pit. On 29.8.2009, the body of the deceased was

spotted by the cashier of a grocery store who informed the police and

thereafter his body was taken to All India Institute of Medical Sciences

where he was declared to have been brought dead. The residents of Shivalik

lodged a protest and the authorities had assured that the matter would be

carried to its logical end.

3. An enquiry was ordered at the MCD level and one Assistant Engineer

(Electrical) has been put under suspension for dereliction of duty. The

contractor, has been issued a show cause notice and a criminal case under

Section 304A of the Indian Penal Code has been registered. In this

backdrop, it is urged that the wife of the deceased is entitled to

compensation and further the MCD is obliged to follow the statutory

mandate of Delhi Municipal Corporation Act, 1957 (for short „the Act)

which envisages precautions during repair of the streets. The compensation

and damages which are claimed at Rs.1 crore and Rs.10 crores respectively.

4. A counter affidavit has been filed by the respondent No.1 stating, inter

alia, that the enquiry was conducted by the concerned Assistant Sub-

Inspector of Police who had found that an old man had fallen into a pit dug

up on the central verge / divider on Shivalik Road and when he was brought

to AIIMS, he was declared dead. An autopsy was carried out in which it

was found that the death was due to Asphyxia. It is also stated that as the pit

was opened from all sides and there was no barrier / physical barricade or

protector or warning. Regard being had to the facts and circumstances a

case under 304A IPC has been registered against the director of the

respondent No.4.

5. A return has been filed by the respondent no.2 - MCD contending

inter alia that the work, namely, „upgradation of street lighting on roads in

Delhi in preparation for the Common Wealth Games - 2010‟ was awarded

to respondent No.4, M/s Sweka Power-Tech Engineer Private Limited vide

agreement dated 8.6.2009. During the execution of the aforementioned

work by the said executive agency, some pits of size 750mm x 750mm x

1400mm of depth of 4.5 feet were dug on the Shivalik road stretch between

Aurbindo College to Malviya Nagar on the central verge of the road. As per

Item No.29 of the work order, the temporary barricading, reflective signs,

red colour lights, etc. were required to be provided by the executing agency.

The said barricading was to be kept till the completion of the work and was

not to be removed by the executing agency without the approval of the

Engineer-in-charge. The Assistant Engineer (Electrical) inspected the

Shivalik road on 20.8.2009 and found that some pits unbarricaded, without

any warning signs and reflective signs. The same was immediately brought

to the notice of the competent authority of the executing agency vide letter

dated 24.8.2009. Prior to four days of the incident, the executing agency

was warned about the impending danger arising out of unbarricaded pits.

After the incident occurred, a show cause notice was issued to the executing

agency calling upon it to show cause why the two fold action mentioned in

the agreement should not be taken against it for not having adhered to

condition No.29 of the schedule of the work. As set forth, an enquiry was

caused at the level of the Commissioner of the MCD and in the said enquiry

the executing agency was prima facie found guilty. It is also admitted that a

criminal case under Section 304A has been registered at Malviya Nagar

police station and, a director of the respondent No.4 has been arrested. It is

put forth that the no evidence has been found against the Electrical Engineer

of the MCD. It is contended that the disputed questions of facts are involved

and, therefore, the writ petition is not to be entertained.

6. A counter affidavit has filed by the respondent No.4 stating that the

respondent No.4 had entered into a labour contract with M/s S.G. National

Engineering Company in respect of providing labour for upgradation of

street lighting and it was the duty of the labour contractor to provide the

safety of its workforce, loss to third party, general public at whose premises

the work is performed. It is the duty of the labour contractor to ensure

barricading of all the open spaces with caution plates to avoid any kind of

mishappening. It is put forth that all the barricading material was supplied

by the respondent No.4 to the labour contractor and all safety measures were

taken by him but unfortunately the incident occurred. It is a stand of the

respondent No.4 that the incident occurred due to the negligence of the

deceased while crossing the road as that part of the segment was not meant

for crossing the road by the general public and the particular pit was

basically far away from the footpath and very near to the divider and,

therefore the deceased under normal circumstances would not have supposed

to reach there. In a sense the factum of accident is denied and further the

liability of the said respondent is disputed.

7. We have heard Mr. Raj Kamal, learned counsel for the petitioner, Ms.

Sonia Sharma, learned counsel for the respondent No.1, Ms. Manindra

Acharya, learned counsel for the respondent No.2, Mr. Mahesh Srivastava,

learned counsel for the respondent No.4 and Mr. N.Waziri, learned counsel

for the respondent No.6.

8. On a perusal of the aforesaid pleadings, it is clear as noon day, that a

77 year old man fell into an unbarricaded pit without reflective signs and

met his end. The counter affidavit filed by the MCD is crystal clear in that

regard. What has been stated in defence is that the MCD is not liable to pay

the compensation as it is the obligation of the respondent No.4, the

contractor, who was engaged for the work in question to compensate. It is

also the stand that action has been taken against the said contractor. The

stand of the respondent No.4 is that though the accident had occurred if

eventually if any liability is fixed it has to be made good by the sub-

contractor.

9. The question that emerges for consideration is whether the shifting of

the responsibility would deny the wife of the deceased whose cause has been

espoused by the society. In this context, we may refer to Section 324 of the

Act, which provides that the Commissioner shall, as far as is practicable,

during the construction or repair of any public street, or any municipal drain

or any premises vested in the Corporation caused the same to be fenced and

guarded; take proper precautions against accident by shoring up and

protecting and adjoining buildings and cause such bars, chains or posts to be

fixed across or in any street in which any such work of construction or repair

is under execution as are necessary in order to prevent the passage of

vehicles or animals and avert danger. It also stipulates that the

Commissioner shall cause such street, drain or premises to be sufficiently

lighted or guarded during night while under construction or repair. There is

also a stipulation that no person shall without the permission of the

Commissioner or other lawful authority remove any bar, chain, post or

shoring, timber, or remove or extinguish any light set up under this section.

Thus, the provision casts a responsibility on the Commissioner of the MCD.

10. As is evincible, the Corporation has admitted in its counter affidavit

that the respondent No.4 did not fix the barricades or any reflective sign. A

mercurial plea has been taken by the respondent No.4 that it was the

responsibility of the labour contractor engaged by him and expected

measures were taken.

11. The learned counsel for the MCD submitted that if any liability has to

be fixed the same has to be determined against the respondent No.4. There

is no scintilla of doubt that the MCD had entered into a contract. Condition

No.29 of the schedule of the work clearly stipulates that if there is any

violation of barricading, the owner has the power to deduct payment for non-

barricading of the pits and non-display of any warning sign including

reflective lights and blacklist the firm and debar it from undertaking any

work under MCD for a period of five years. True it is, the MCD has the

power to take action under the contract against the respondent No.4 but the

fact remains whether it can advance a plea that it has no liability to pay any

compensation to the wife of the deceased when the facts are clear. In this

regard, we may note a few citations in the field.

12. In Pushpabai Parshottam Udeshi and others Vs. M/s Ranjit Ginning

& Pressing Co. Pvt. Ltd. and another, AIR 1977 SC 1735, it has been held

that when an act is committed by a driver in the course of employment or

under the authority of the master, the liability would be that of the master.

13. In State Bank of India Vs. Smt. Shyama Devi, AIR 1978 SC 1263,

the Apex Court held that an employer is not liable for the act of the servant

if the cause of the loss or damages arises without his actual fault or privity

and without the fault or neglect of his agents or servants in the course of

their employment. Emphasis has been led on liability of a master for wrongs

done by the servant if it is in the course of his employment.

14. In State of Maharashtra and others Vs. Kanchanmala Vijaysing

Shirke and others, AIR 1995 SC 2499, where clerk in a Government

Department was driving a vehicle under the authority of driver at the time of

accident and the vehicle was used in connection with the affairs of State and

for official purpose, it was held by the Lordships under the circumstances

the State cannot escape its vicarious liability to pay compensation to the

heirs of the victim.

15. In Machindranath Kernath Kasar Vs. D.S. Mylarappa & Ors., AIR

2008 SC 2545 their Lordships referred to the decision in Sitaram Motilal

Kalal Vs. Santanuprasad Jaishanker Bhatt, AIR 1966 SC 1697 wherein it

has been held that law is well settled that a master is vicariously liable for

the acts of his servant acting in the course of his employment. Unless the act

is done in the course of employment, the servant‟s act does not make the

employer liable.

16. In the case at hand the MCD admittedly has entered into a contract.

There is a stipulation in the contract enabling the owner to take steps against

the contract. Section 29 of the Act casts responsibility on the Commissioner

what steps to be taken when there is construction or repair of any public

street. Cumulatively understood, the liability of the MCD cannot be denied.

The liability in our considered opinion would come within the domain of in

public law remedy which covers grant of compensation when right to life

under Article 21 of the Constitution of India is jeopardized.

17. In this regard, we may fruitfully refer to Nilabati Behera Vs. State of

Orissa (1993) 2 SCC 746 wherein it has been held thus:

"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 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, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."

18. Dr.A.S. Anand J., (as his Lordship then was), in his concurring

opinion, expressed thus:

"...Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law."

19. In Sube Singh v. State of Haryana , AIR 2006 SC 1117, a three-judge

Bench of the Apex Court, after referring to its earlier decisions, has opined

as follows:

"It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 of Code of Civil Procedure."

20. The aforesaid citations also cover the vicarious liability of a principal

in respect of the act of the agent on certain conditions. In the case at hand,

the MCD is the principal and the executing agency is the agent. Reading the

statutory provisions in conjunction with the terms and conditions of the

contract, the inescapable conclusion is that the MCD is primarily liable to

make good the loss and thereafter, it may proceed to realise the amount after

causation of enquiry from any of its officers and if found responsible, take

such action for recovery from the respondent No.4 with which it had the

privity of contract.

21. Presently to the quantum of compensation, the deceased retired from

the services as an Additional Secretary. He was less than four scores. His

children, as set forth, have pre-deceased him. The wife is the lone survivor.

The society as pro-bono-publico has taken up the cause. The plight and

misery of the wife can be well imagined. In old age the husband and wife

become each other‟s companion and friend. Very rarely a person can feel

comfortable with loneliness. The dreariness of winter of loneliness corrodes

the marrows of life. The silence of loneliness can be quite killing. Every

human being desires to belong. One ordinarily always intends to open

oneself and that is the greatest function of companionship. It should be borne

in mind from the innermost core, as one grows older, one seeks company.

That adds to meaning of life. The memory of one may sometimes be a

source of existence but it can never substitute the cherished companionship.

The marital bliss matures into a total sweet dependence and respectable

friendship. It is worth noting that the husband was able to go to the market

and purchase the grocery. That would indicate his state of mind and the

activity he was capable of undertaking. In a way, he was sustaining his wife.

By the unfortunate accident his life spark got extinguished. The wife has

become a loner and loneliness is the breeding place for melancholia. The

agony and anguish is understandable. Regard being had to these aspects, we

determine the compensation at Rs.5 lacs to be initially paid by the MCD to

the wife of the deceased and thereafter proceed to enquire about the

responsibility of any officer involved in the work and take appropriate action

against the respondent No.4 within the realm of privity of contract between

the two. The amount shall be paid by way of a bank draft drawn on a

nationalised bank within a period of four weeks.

22. The other issue that also has been raised deserves to be dealt with.

The MCD cannot afford to enter into contract of this nature and leave the

citizens to their fate. It has the statutory obligation and, therefore, a sacred

duty to see that such kinds of accidents are not caused due to negligence of a

contractor. Hence, we direct the Commissioner MCD to constitute a task

force which would be responsible to see that the contractors carry out the

safety measures to the optimum level, so that no hazard is caused to any

person and it would be easy on the part of the MCD to fix the responsibility

on its task force rather than entering into an unnecessary labyrinth.

23. Resultantly, the writ petition is allowed in part. There shall be no

order as to costs.

CHIEF JUSTICE

MANMOHAN, J.

AUGUST 2, 2010 dk