Chob Singh vs Govt. Of Nct Of Delhi And Anr
2012 Latest Caselaw 2257 Del

 *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                  Judgment reserved on: 06.03.2012

 %                Judgment delivered on: 09.04.2012

 +                        W.P.(C) 13310/2009


        CHOB SINGH                                     ..... Petitioner
                          Through:     Mr. Sachin Sharma, Adv.

                          versus


        GOVT. OF NCT OF DELHI AND ANR               ..... Respondents
                       Through:   Mr. Amitabh Verma and Mr. Arvind
                                  Kr. Verma, Advs. for R-2.


        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

                             JUDGMENT

VIPIN SANGHI, J.

1. This writ petition has been filed by the petitioner namely, Chob

Singh under Article 226 of the constitution of India to claim

compensation of Rs. 10 Lakhs for the death of his only son, Nand

Kishore due to the alleged negligence of the respondents Govt. of NCT

of Delhi and Delhi Jal Board (DJB).

2. The petitioner is the father of an unfortunate boy who died on

14.04.2009 by falling into a sewer tank. The petitioner claims to be a

three wheeler auto driver. His family consisted of his wife (already

dead), daughter (mentally and physically handicapped) and Nand

Kishore (now deceased).

3. The case of the petitioner is that his son, Nand Kishore along

with his friend, Rahul went to deliver lunch to the maternal uncle of

Rahul, at one of the pumping stations of the respondent/DJB located at

sector 7, Dwarka. The sewage pumping station is a prohibited place

and the general public is not allowed to enter the premises without

permission since it is a risky and an unsafe place due to storage of

sewage in huge tanks/wells. On 14.04.2009 there was no guard posted

on the pumping station, and the 2 children had an unhindered entry to

the entire complex and went upto the danger zone where the huge

pumping machines and tanks were located.

4. Nand Kishore's friend, Rahul went inside the pumping room to

deliver lunch to his maternal uncle (Sh. Sanju) while the little Nand

Kishore, unmindful of the consequences, aged only eleven years

strayed towards one of the open uncovered tank which had stairs

leading to the bottom of the tank. Out of curiosity, he climbed down

the stairs and was overtaken by strong fumes thereby losing his

balance. He fell into the tank full of sewage. Rahul reached the tank,

searched for Nand Kishore and was unable to locate him. He thereby

informed his uncle who, in turn, called the police and the fire brigade.

After the operation of six hours, the dead body of Nand Kishore was

retrieved. The F.I.R. of the incident was recorded being F.I.R. no.

141/09 at Police Station Palam Village, New Delhi under section 304 of

I.P.C.

5. Respondent no. 2/DJB made a payment of Rs. 30,000 vide

cheque bearing no. 6067 dated 11.09.2009 as compensation to the

petitioner. The petitioner has filed an affidavit stating that his only son

was studying in MCD Primary Boys School, Mahavir Enclave II, ND-45 in

Class II. He states that he had high hopes from his son.

6. The petitioner submits that the precious life of his only son, who

was his only personal and emotional support died due to the sheer

negligence on part of the respondents and due to their acts of

omissions and commissions. The petitioner seeks adequate

compensation from the respondents.

7. Upon issuance of notice, respondent no. 2, Delhi Jal Board filed

their counter affidavit. The said respondent has not denied the

occurrence of the aforesaid incident, nor the registration of the F.I.R.

8. The respondents have also not denied that the death of the child,

Nand Kishore occurred due to falling into the sewage tank. It is not

their case that the death of Nand Kishore occurred due to some other

reason.

9. Respondent no. 2 has taken the stand that they have already

paid compensation of Rs. 30,000/- as stated by the petitioner and apart

from that Rs.50,000/- was given as compensation by the Delhi Kalyan

Samiti, Govt. of NCT of Delhi, Finance Department, respondent no.1,

and that there was no negligence on their part which caused the death

of the deceased.

10. Respondent no. 2 also contended that the sewage pumping

station at Sector 7 is surrounded by a boundary wall and it has only

one entrance, which was always manned by a security guard round the

clock. The guard allowed the children to enter, in order to enable them

to deliver food to Sanju. He left them at the pump house where the

maternal uncle was present and went back to the entrance.

Respondent no.2 stated that the boys went to attend nature's call

while Sanju was having food. It was then that the incident took place.

The matter was immediately brought to the notice of the police and

fire rescue team by the guard and immediately they commenced the

rescue operation.

11. Respondent no. 2 has also contended that the sump well inside

the premises of the pumping station, as well as the staircase was fully

covered and protected with the hand railing. The staircase with the

hand railing was provided for manually taking out the floating material.

The entire system was constructed in accordance with the consultant's

design.

12. The said pumping station of Delhi Jal Board was a restricted area

where the general public was not permitted. The area is a protected

one and no one is allowed to enter in the premises, except the

authorized persons. The children were allowed to enter the premises

for delivering food.

13. The questions which arise for consideration are : Whether the

present writ petition to claim compensation is maintainable ; (ii) If so,

whether the death of the child Nand Kishore occurred due to the

negligence of one or the other, or both of the respondent nos.1 and 2,

and if yes; (iii) What compensation is the petitioner entitled to, if any?

14. The incident in question has not been disputed by the

respondents, nor is the factum of death of Nand Kishore due to falling

into the sewage well in dispute. The occurrence of the said instance

has been recorded in the F.I.R. and has not been denied by the

respondents. Respondent no. 2 has contended that there was a guard

at the main entry. However the said guard failed to perform his duty by

permitting two minor children to enter the prohibited area.

15. There can be no dispute or denying the fact that the respondents

owed a duty of care to the general public, so that no action or inaction

of theirs causes harm to the general public at large. Further there can

be no dispute that the tanks should have been maintained as well as

covered and locked, so that no person could enter into the wall, where

Nand Kishore met the accident. The duty of the respondent DJBs guard

did not end by leaving the two children with Sanju. He should have, in

the first instance, not permitted the childrens entry. Even if they were

permitted to enter the compound, it was his responsibility to ensure

that they did not loiter inside or go into dangerous areas. The said

area posed a high risk to any stranger, much more to children, who

may go into areas where poisonous gas was being produced. The

principle of strict liability will be applicable in the present case and the

Delhi Jal Board is liable to pay compensation.

16. In MCD V. Suhagwanti, AIR 1966 SC 1750, the Supreme Court

applied the strict liability principle in awarding compensation to the

victim. The Court applied the maxim Res Ipsa Loquitor as the mere fact

that the clock tower fell, told its own story in raising the inference of

negligence so as to establish a prima facie case against the

Corporation.

17. This court in the recent judgment of Santu Ram & Anr. v.

State & Ors, W.P.(C) 768/2009 decided on 07.02.2012 had dealt with

the similar issue. In that case, the place where the poles were kept was

a public place and anybody could have access to that place without

any hindrance. It was held that it was the duty of the respondent BSES

to ensure that their actions or omissions do not cause harm or injury to

any other person who may come into contact with that poles stacked

in an open public place. The respondents were found to be negligent in

keeping the cemented poles in an open public area, where the general

public had access, without any warning or taking proper safety

measures. So, the principle of strict liability was applied in that case

and the BSES was held liable to pay compensation to the petitioners

for the ultimate breach of their only son's most valuable fundamental

right to life, guaranteed under Article 21 of the Constitution of India.

18. In Darshan & Others V. Union of India & Others, 2000 ACJ

578, the deceased had died of drowning after falling into an open

manhole. The Division Bench of this court held as follows -

"Coming to instant case. It is one of res ipsa loquiter, where the negligence of the instrumentalities of the State and dereliction of duty is writ large on the Red Fort in leaving the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a public road led to untimely death of Skatter 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 upon it, resulting in derivation 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."

19. In the case of Varinder Prasad v. BSES Rajdhani Power Ltd.

and Others, W.P.(C.) No. 8924/2007 decided on 18.01.2012, the High

Court took into account the earlier decision of this Court in Ram

Kishore V. MCD, 2007(97) DRJ 445, to hold that a writ petition to

claim compensation is maintainable under Article 226 of the

Constitution of India, in case there is violation of fundamental rights. In

Varinder Prasad (supra) an unfortunate boy died in an accident when

the shed of the house collapsed on him.

20. The Supreme Court in Pushpabhai Purshottam Udeshi & Ors.

v. M/s Ranjit Ginning & Pressing Co. (P) Ltd. & Anr., (1977) 2

SCC 745 has explained the doctrine of Res Ipsa Loquitor in the

following words:

"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 Ed.) 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".

21. In Halsbury's Laws of England, 3rd Ed., Vol. 28, at page 77, the

position is stated thus: "An exception to the general rule that the

burden of proof of the alleged negligence is in the first instance on the

plaintiff occurs wherever the facts already established are such that

the proper and natural inference arising from them is that the injury

complained of was caused by the defendant's negligence, or where the

event charged as negligence 'tells its own story' of negligence on the

part of the defendant, the story so told being clear and unambiguous".

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.

22. The mere fact that the entry was allowed was sheer negligence

on the part of the respondents. As aforesaid, the respondents owed a

duty of care to the said children by not permitting their entry into the

compound as the same was a prohibited area. The said area posed a

high risk to any stranger - much more to small children, who may go

into areas where poisonous gases were being produced and present.

23. I, therefore, hold that the maxim Res Ipsa Loquitor is clearly

attracted in the present case and the incident in question itself

establishes the negligence on the part of the respondents. The

petitioners are, therefore, entitled to grant of compensation in these

proceedings for breach of the most basic fundamental right of Nand

Kishore under Article 21 of the Constitution of India.

24. The Courts have evolved a two-tier compensation mechanism in

such cases. It has two components, i.e. the conventional sum, and

pecuniary compensation. The Court in Kamala Devi V. Govt. of NCT

of Delhi, 2004 (76) DRJ 739, held as follows:-

"5. The compensation to be awarded by the Courts, based on international norms and previous decisions of the Supreme Court, comprises of two parts:

(a) standard compensation" or the so-called "conventional amount" (or sum) for non-pecuniary losses such as loss of consortium, loss of parent, pain and suffering and loss of amenities; and

(b) Compensation for pecuniary loss of dependency".

6. The "standard compensation" or the " conventional amount" has to be raised from time to time to counter inflation and the consequent erosion of the value of the Rupee. Keeping this in mind , incase of death, the standard compensation in 1996 is worked out at Rs. 97,700/-. This needs to be updated for subsequent years; on the basis of Consumer Price Index for Industrial Workers (CPI-IW) brought out by the Labour Bureau, Government of India.

7. Compensation of pecuniary loss of dependency is to be computed on the basis of loss of earnings for which the multiplier method is to be employed. The table given in Schedule II of the MV Act, 1988 cannot be relied upon, however, the appropriate multiplier can be taken there from. The multiplicand is the yearly income of the deceased less the amount he would have spent upon himself. This is calculated by dividing the family into units- 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each adult member. This becomes the multiplicand and is multiplied by the appropriate multiplier to arrive at the figure for compensation of pecuniary loss of dependency.

8. The total amount paid under 6 and 7 above is to be awarded by the Court along with simple interest thereon calculated on the basis of the inflation rate based on the Consumer Prices as disclosed by the Government of India for the period commencing from the date of death of the deceased till the date of payment by the State.

9. The amount paid by the State as indicated above would be liable to be adjusted against any amount which may be awarded to the worked out a pattern, and they keep it in line with the changes in the value of money."

25. The standard compensation has to be awarded by taking the

base amount as Rs.50,000/- in 1989, as mentioned in Kamla Devi

(supra). The said amount would require to be adjusted for April 2009,

when Nand Kishore's death occurred, based on the Consumer Price

Index for industrial workers (CPI-1W), published by Labour Bureau,

Govt. of India. With the base year as 1982 when the index is to be

taken as 100, the average CPI (IW) for the month of April 2009 works

out to 695. Thus the standard compensation, as per inflation corrected

value, comes out to (50,000 x 695/171) Rs.2,03,216.38. Thus the

standard compensation to which the petitioners are entitled is

Rs.2,03,216.38.

26. As far as the peculiarly compensation is concerned, as already

explained in Kamla Devi (supra) , the income of the parents can be

taken as a standard measure for arriving at the expected annual

income of the children. In this case, the petitioner is a three wheeler

auto driver. Unfortunately, in this case the petitioner has not placed,

on record any income proof of his earnings. It is only stated by him

that he is an auto driver. In such a situation, to minimize the element

of guess work it would be appropriate if the minimum wages are taken

as the basis for determining the expected income. The minimum

wages multiplied by a factor of 1.5 would enable in arriving at a

reasonable estimate of income. The minimum wages for skilled

workers notified by the office of the Labour Commissioner, government

of NCT for the year 14.04.2009 was Rs.4,358/- per month. If the same

is multiplied by a factor of 1.5, it becomes Rs.6,537/- per month.

27. It can safely be assumed that Nand Kishore as an adult would

have earned at least as much as his father if not more. Therefore the

multiplicand would be the expected annual income less required by

himself. Since the expected income would only arise when Nand

Kishore grew up to be an adult, it would be safe to assume that his

personal expenditure would be higher. The contribution to the

household would have not exceeded half of the income. Accordingly,

the figure of Rs.6,537/- ought to be divided by 2 to provide a monthly

figure of Rs.3,268.50 and an annual figure of Rs.39,222/-. This

multiplicand is to be multiplied by the multiplier of 15, in terms of

second schedule of Motor Vehicles Act, 1988. This comes to be a

figure of Rs.5,88,330/-. Taking the above calculation into account, the

total compensation to which the petitioners are entitled works out to

be Rs.2,03,216.38 + Rs.5,88,330/- = Rs.7,91,546.38. The petitioner

has disclosed that he has already received Rs.80,000/- till date towards

compensation. Therefore, the compensation amount payable on the

date of filing of the petition works out to Rs.7,11,546.38. This amount

shall carry simple interest @ 6% p.a. from the date of filing this petition

till the date of payment. The amount should be paid to the petitioner

within three months.

28. It appears that the liability is primarily of the respondent

no.2 DJB, as it was the pumping station of DJB where the accident took

place due to the negligence of the officials of DJB. The compensation

should, therefore, in the first instance be paid by DJB. However, I am

not required to go into this issue of fixing the inter se liability between

the two respondents in these proceedings. Therefore, it shall be open

to the Delhi Jal Board to pursue its claim against respondent no.1 in

appropriate proceedings.

This writ petition is allowed in the aforesaid terms.

(VIPIN SANGHI) JUDGE

APRIL 09, 2012 as