Matlum Ahmed & Anr. vs Govt. Of Nct Of Delhi & Anr.
2012 Latest Caselaw 2301 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision:10th April, 2012

+                          W.P.(C) No. 11020-21/2006

MATLUM AHMED & ANR.                                       ..... Petitioners
                          Through: Mrs. Aruna Mehta & Mr. Sanjeev Mehta,
                                   Advs.

                                  Versus
GOVT. OF NCT OF DELHI & ANR.                              ..... Respondents
                          Through: Mr. R.S. Mathur, Adv. for Mr. Amitabh
                                   Marwah, Adv. for R-1
                                   Mr. Ajay Arora, Adv. with Mr. Kapil
                                   Dutta & Mr. Sarfraz Ahmed, Advs. for R-2
                                   Ms. Purnima Maheshwari, Adv. for R−3

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGEMENT

RAJIV SAHAI ENDLAW, J.

1. The two petitioners being husband and wife by this writ petition

inter alia claim compensation in the sum of `20,00,000/- from the

respondents Govt. of NCT of Delhi and the MCD for the death of their

minor son Mohd. Shahnawaz aged about eight years owing to the

negligence of the respondents. It is the case of the petitioners that their

said son died on 4th February, 2006 by falling in the uncovered sewer/drain

at the intersection of the lanes near the house of the petitioners.

Negligence is averred on the part of the respondent no. 2 MCD in not

covering the sewer/drain inspite of the same being situated in front of a

populated residential area inhabited also by children. It is claimed that the

petitioner No.1 being the father of the deceased runs a tailoring shop and

earns `6,000/- per month.

2. Notice of the petition was issued. On 23rd May, 2007, the counsel for

the respondent no. 2 MCD stated that the area in question had been handed

over to the Public Works Department (PWD) and thus MCD is not

concerned with the issue raised in this petition. The petitioners were

directed to implead PWD. Counter affidavits have been filed by the

respondent no.1 GNCTD and the respondent no.3 PWD. The counter

affidavit of respondent no.2 MCD is not on record though the petitioners

have filed a rejoinder to the said affidavit.

3. The respondent no. 1 GNCTD in its counter affidavit has stated that

the civic amenities in the area in which the incident occurred are being

maintained by the respondent no. 2 MCD and the allegations by the

petitioner averring negligence are also against the respondent no. 2 and the

respondent no. 1 is thus not liable. It is also pleaded that the First

Information Report was not lodged because of the statement of the

petitioner no. 1 on 4th February, 2006 to the effect that the petitioners did

not seek any police investigation. The respondent no. 3 PWD in its short

affidavit has pleaded that the place where the incident occurred does not

fall in the right of way and has thus denied any liability for the incident

and/or the claims by the petitioners.

4. From the rejoinder to the counter affidavit of the respondent no. 2

MCD it transpires that the MCD had filed a letter dated 17th March, 2005

whereby the said drain was handed over by the MCD to the PWD. The

petitioners in their rejoinder to the counter affidavit of respondent no. 1

have also reiterated that the respondents have violated public duty and that

the petitioners are illiterate and since the deceased was brought out of the

sewer/drain and was dead, police investigation was not sought.

5. The counsels for the respondents have been heard and the written

arguments along with judgments filed by the counsel for the petitioners

perused.

6. In view of the plethora of case law which has developed on the

subject, need is not felt to discuss the law in detail. Suffice it is to refer to

Ram Kishore Vs. MCD 2007 VII AD (Delhi) 441 and to Swarn Singh Vs.

Union of India MANU/DE/0791/2010 discussing the legal position in

detail.

7. I find the facts of the present case to be similar to those of Sh.

Kishan Lal Vs. Govt. of NCT of Delhi MANU/DE/8177/2007; that was

also a case of a child of seven years falling in an open manhole − in that

case till the date of the incident managed by Sulabh International. This

Court in that case held that the respondents MCD & Sulabh International

failed to demonstrate how death could have reasonably happened without

negligence on their part; on the basis of the opinion of the doctor that the

cause of death was asphyxia as a result of drowning and from the factum of

discovery of the body, by local residents, in the manhole near the lavatory

which the child had visited and from the factum that if the manhole was

covered the child would not have fallen in it, inference of negligence was

deduced; the plea of contributory negligence was negated. In the present

case also, the factum of the deceased having fallen and having been pulled

out from the sewer/drain is not disputed. Moreover, it is totally

inexplicable as to why the sewer/drain was left uncovered. Thus, a case of

negligence on the part of the respondent no.3 PWD is made out.

8. The next question is as to the quantum of compensation. The

counsel for the respondent No.1 MCD has urged that there is no evidence

of the age of the deceased in the present case and no proof of income of the

petitioner No.1. The statements recorded after the incident and the Inquest

Report made on the day of the incident disclose the age of the deceased to

be eight years. The parents of the deceased within a few hours of the

demise of their child cannot be held to have disclosed the age to be

anything else than it was.

9. This Court in Kishan Lal (supra) where the age of the deceased was

seven years and where the father of the deceased was shown to be earning

`4,000/- per month and where the incident occurred in 2005, awarded

compensation of `5,13,801/- with simple interest @ 6% per annum with

effect from the date of the petition till the date of payment. In the absence

of any proof of income of the father, this Court in Ram Kishore (supra)

had applied a formula of minimum wages. Applying the aforesaid

formula, the standard compensation for non pecuniary loss taken as

`50,000/- and adjusted according to inflation in 2006 would be `1,61,102/-

and the compensation for pecuniary loss of dependency also taken on the

basis of minimum wages could be `4,98,825/-. Accordingly, the

petitioners are found entitled to total compensation of `6,59,927/-.

10. The writ petition is accordingly allowed. The respondent no. 3

PWD is directed to pay compensation of `6,59,927/- with interest @ 6%

per annum from 1st August, 2007 when the petition was filed till the date of

payment.

11. Out of the aforesaid amount a sum of `1,00,000/- be released

immediately by cheques of equal amount of `50,000/- in the name of each

of the petitioners. The balance amount be forwarded in the form of a fixed

deposit with a nationalized bank in the joint names of the petitioners to the

Delhi Legal Services Authority (DLSA). The Secretary, DLSA is

requested to after interacting with the petitioners release the said amount

and / or make provision for release thereof after adjudging the requirement

of the petitioners and their other children if any.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 10, 2012 'M'