Sh.Ram Kishan vs Municipal Corporation Of Delhi & ...
2011 Latest Caselaw 7 Del

R-113
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 03.01.2011


+                  RSA No.155/2002

SH.RAM KISHAN                                     .....Appellant
                         Through:    Mr.Nishit Khush, Advocate.

                   Versus

MUNICIPAL CORPORATION OF DELHI & ANR. ....Respondents
                 Through: None.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

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


INDERMEET KAUR, J. (Oral)

CM No.416/2002 (exemption)

Allowed subject to just exceptions.

RSA No.155/2002

1. This appeal is directed against the judgment and decree

dated 20.3.2002 which had endorsed the finding of the trial judge

dated 12.1.1999 whereby the suit of the plaintiff Ram Kishan had

been dismissed.

2. The plaintiff had filed a suit in his capacity as an indigent

person which was for recovery of `95,000/- on account of

compensation for the death of his minor son Rajbir which as per

the averments in the plaint was due to the negligent act of the

defendants. It was contended that a live electric wire was lying

on the road near the Bhatta of Boharu in Zaffarpur and in spite of

requests the same was not repaired as a result of which the live

wire caught the son of the plaintiff resulting in his death on the

spot.

3. The written statement had contested the suit. It was not

denied that the minor son of the plaintiff had died because of

electrocution. It was admitted that the conductor was still alive

and needed immediate disconnection from the supply source; the

break-down staff had been directed to take immediate action but

they had been gone to Bharthal to attend to another complaint;

the Zonal staff could not be traced for disconnection of the supply;

the feeder from Najafgarh was switched off on telephonic

instructions. The defendant had however alleged that the

investigation of the conductor had revealed that an attempt had

been made for stealing of the conductor by the deceased or by

someone else. The earlier complaints made by the public on

31.5.1990, 16.9.1990 and 29.9.1990 regarding breakage of the

conductor of the tube-well had been attended to well in time. No

specific complaint regarding subject site was available.

4. The trial judge had framed the following four issues:

1. Whether the plaintiff is entitled for a decree of recovery of

`95,000/- as damages on account of death of Rajbir son of Ram

Kishan as claimed in the plaint? OPP

2. Whether the suit is barred by the provisions of Section 478 of

DMC Act? OPD

3. Whether the suit is barred by limitation? OPD

4. Relief.

5. The plaintiff did not lead evidence in spite of several

opportunities having been granted to him. The plaintiff evidence

was thereafter closed. The suit of the plaintiff was dismissed.

6. In appeal the judgment of the trial judge was endorsed. The

first appellate Court had dismissed the appeal primarily on the

ground of limitation as the appeal had been filed on 05.2.2002 i.e.

after the lapse of more than two years; finding no reasonable

ground for condoning the delay in filing the appeal, the appeal

stood dismissed. Result was that the judgment and decree of the

trial judge stood affirmed.

7. This is a second appeal. It was admitted but the record

shows that substantial question of law has not yet been framed.

On 26.11.2010 the respondent/department had sought time to

take instructions to work out the possibility of a settlement but on

a subsequent hearing it had been reported that it was not possible

to work out a settlement.

8. Counsel for the appellant has urged that although the

plaintiff/appellant had not led any evidence before the trial judge

on the issues which have been framed; yet the admission made by

the department in their written statement entitles the appellant to

relief; the admission being that the department had admitted that

the minor son of the plaintiff had in fact died because of

electrocution which was clearly because of the negligence of the

department. Learned counsel for the appellant has urged no

other ground to support his appeal.

9. This is the second appellate Court; it is not a third fact

finding court. Record shows that enough opportunities had been

granted to the plaintiff to lead evidence before the trial judge but

he chose not to do so. His suit was accordingly dismissed. The

appeal was also filed belatedly i.e. after lapse of more than two

years. The appellant was not prosecuting his case diligently. He

had to suffer the necessary consequences. The alleged

admissions made by the department in the written statement

which have been discussed supra do not entitle the plaintiff to a

decree of `95,000/-. It was for the plaintiff to have come into

witness box and show that his son had died because of the

negligent act of the department; contention of the department

was that the conductor was alive and although child had died

because of electrocution but this was at the time when an attempt

was being made by him to steal electricity; further the timings of

the death of the child were also not brought on record; the

department had also contended that no complaint had been

received by them qua this live wire; the other complaints on the

earlier three dates had been met with. In this back ground the

plaintiff/appellant is not entitled to any relief.

10. No substantial question of law has arisen. The appeal is

without any merit. It is dismissed.

INDERMEET KAUR, J.

JANUARY 03, 2011 nandan