N.D.M.C. vs Shri Chander Kishore Aggarwal
2011 Latest Caselaw 2755 Del

*   IN THE HIGH COURT OF DELHI AT NEW
DELHI

%                          Judgment delivered on: 23.05.2011

+                          RSA No.17/2009

N.D.M.C.
                                                    ........Appellant
                      Through:   Mr. Ashutosh Lohia, Advocate
                                 for the appellant.
                      Versus

SHRI CHANDER KISHORE AGGARWAL
                                                 .......Respondent
                      Through:   Mr. R.S. Kela, Advocate for the
                 respondent.

       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)

This appeal has impugned the judgment and decree

dated 09.09.2008 which had endorsed the findings of the trial

judge dated 23.12.2006 whereby the suit filed by the plaintiff

Chander Kishore Aggarwal seeking recovery of Rs.1,00,000/-

had been decreed; the impugned judgment has modified the

rate of interest from @ 24% per annum to @ 10% per annum.

The plaintiff was a post graduate Teacher working with

a Senior Secondary School, Roop Nagar, Delhi. On

19.40.1986 while on his way to Jor Bagh, he was passing

through Amrita Shergill Marg, New Delhi on his two wheeler

scooter; he came across a speed breaker constructed by

defendant no. 3 (NDMC) in front of property no. 19, Amrita

Shergill Marg, New Delhi which was neither visible from a

distance nor was the same painted nor did it have any road

sign indicating its presence, in order to warn the

commuters/users of the road as to the existence of the said

speed breaker; on account of the presence of this speed

breaker the plaintiff met with an accident, this was

notwithstanding the fact that the plaintiff was travelling at a

very nominal speed. He lost control; fell down; became

unconscious; he was removed to the Emergency Ward of

Safdarjung Hospital. An FIR was also registered on the same

day. He stayed in Sir Ganga Ram Hospital from 20.4.86 to

6.5.85 from where he was removed to Sham Lal Nursing

Home, Ansari Road, Delhi where he remained admitted up to

11.05.1986. He incurred expenditure of Rs.25,000/- at Sir

Ganga Ram Hospital and Rs.2,000/- at Sham Lal Nursing

Home. On 29.9.87 he was again admitted at All India

Institute of Medical Sciences; he incurred expenditure of a

sum of Rs.2,000/- there and even as on the date of filing of the

suit he was incurring medical expenses @ Rs. 3,000/- per

month. All this was because of the negligent act of defendant

no. 3.

Defendant nos. 1 and 2 were ex-parte.

In the written statement, the defence of the defendant

no. 3 was that the act of the plaintiff himself was responsible

for causing the accident; he himself was rash and negligent.

It was not disputed by defendant no. 3 that speed breaker was

there but it had been installed as per the rules.

On the pleadings of the parties following issues were

framed:

(i) Whether the plaintiff is entitled to recover

Rs.1,00,000/- from the department? OPP;

(ii) Whether the present suit is barred under the

provisions of Section 110 of M.V. Act 1988? OPD

3;

(iii) Whether the suit is not maintainable for want of

statutory notice? OPD 3; (iv) Whether the suit is

barred by limitation under Punjab Municipal Act,

1911? OP Parties, and

(iv) Relief.

Oral and documentary evidence was led by the plaintiff.

To prove his case, plaintiff examined four witnesses which

included himself; he was examined as PW-1. FIR was proved

through the testimony of PW-3. Medical records from the

Safdarjung Hospital were proved through PW-4. PW-2 had

produced medical record from Sham Lal Nursing Home. The

service of the statutory notice was proved as Ex. PW1/1. No

evidence was led by the defendant. The trial judge had

decreed the suit of the plaintiff.

This judgment and decree was endorsed in first appeal.

The second appeal has been admitted and on 6.10.2010

following substantial question of law was formulated:

"Whether the doctrine of res ipsa loquitur was correctly

applied to the facts of the instant case, if not, its effect?"

On behalf of the appellant it has been urged that the

doctrine of res ipsa loquitur was not applicable; this has not

been appreciated in the correct perspective by the court

below. It is pointed out that the provisions of Section 110

read with Section 116 of the Motor Vehicles Act, 1988 are

clear; the Central Government may make rules for the

maintenance of motor vehicles which includes the provision

for speed breakers; signs board may also be affixed by the

State Government. It is pointed out that these provisions had

been adhered to and specifically stated by the defendant in

his Written Statement. The plaintiff himself was guilty of

negligence; he had not given details i.e. measurement of the

speed breaker by virtue of which he had suffered the

accident; the decree passed is liable to be set aside; findings

are based on material which does not support the case of the

plaintiff.

The plaintiff has refuted the arguments. It is pointed

out that findings of two courts below do not call for any

interference; the act of the defendants was clearly negligent;

he is liable to pay the damages.

Records show that the plaintiff had examined four

witnesses. PW-1 had on oath supported the averments made

in the plaint; service of notice on the respondent was proved

as Ex. PW1/1. There is no dispute to the receipt of the notice.

Documentary evidence led before the two courts below has

been scrutinized by this court as well. Documents Ex.PW1/9

and Ex. PW1/10 are the receipts of Sir Gamga Ram Hospital

dated 23.4.86 and 20.4.86 for the sum of Rs.1,000/- and Rs.

1,120/- respectively. These relate to CT Scan and X-rays

conducted on the plaintiff. Documents Ex. PW1/11 and Ex.

PW1/12 are the bills of the Sir Ganga Ram Hospital pertaining

to the 26 days stay there; thereafter receipts pertaining to

Sham Lal Nursing Home are also on record. The expenditure

incurred by the plaintiff i.e. bills pertaining to the purchase of

medicine have also been proved on record. The case of the

plaintiff was that speed breaker was not highlighted; there

was no signage indicating its presence giving a warning or

notice to the drivers that there is a speed breaker which if

had been given would not have resulted in the accident.

Admittedly no defence evidence has been led.

The defence of the appellant that the plaintiff had been

negligent in driving his vehicle which had led to the accident

is not substantiated; no evidence was led. Defendant no. 3 in

his Written Statement had in fact admitted that the speed

breaker on the Amrita Shergill road is within the jurisdiction

of NDMC; it was constructed as per the traffic police rules;

the submission of the defendant that road signs had been

affixed at the speed breaker has never been proved by the

defendant. No defence has been led on this score. An FIR of

even date i.e. of 19.4.1988 had also been proved. The act of

the negligence of defendant no. 3 had been noted even

therein. The plaintiff was entitled to the decree for the sum

of Rs. 1,00,000/- on account of actual expenditure incurred by

him as also for the reason that he had not been able to carry

on his work in an efficient manner in the future as well. The

details of the amount have been given in para 21; a total

amount of Rs. 1,00,000/- had been claimed which has been

accordingly decreed. There was no evidence to counter this

oral deposition of the plaintiff which coupled with the

documentary evidence entitled him to this relief.

The second appeal court is not a third fact finding court.

The doctrine of „res ipsa loquitor‟ has been rightly adverted

to. This maxim proposes two elements, (i) the accident

explains only one thing and that is that the accident could not

ordinarily occur unless the defendant had been negligent; and

(ii) that the cause of mischief was at the material time

exclusively under the control of management of the

defendant. This rule of evidence has not been rebutted by the

defendants, it was for him to have led evidence to prove that

there were proper road signs indicating the presence of the

speed breaker; no such evidence has been led.

Substantial question of law is answered in favour of the

respondent and against the appellant.

There is no merit in appeal. Dismissed.

(INDERMEET KAUR) JUDGE MAY 23, 2011 acm