Delhi High Court
Union Of India vs Dhyan Singh & Ors. on 12 October, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA NO.116/2007 and CM Nos.2924-25/2007
% Date of decision : 12th October, 2012
UNION OF INDIA ..... Appellant
Through : Mr. R.V. Sinha, Mr. R.N.
Singh and Ms. Sangita Rai,
Advs.
versus
DHYAN SINGH & ORS. ..... Respondents
Through : Mr. P.K. Jha, Adv. for
Respondents No.1 to 7.
Mr. Anuj Aggarwal, Adv.
for Respondent No.8.
Mr. A.J. Bhambhani,
Amicus Curiae.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The Trial Court has passed a decree for `5,00,000/- in favour
of respondents No.1 to 7 and against the appellant which is under
challenge in this appeal.
2. On 11th September, 2001, four labourers hired by the
contractor of CPWD were cleaning the septic tank at the CRPF
Camp, Bawana. The labourers told the contractor that a foul smell
was coming out of the septic tank which may be fatal to their lives
but the contractor still ordered them to clean the tank whereupon
three labourers entered the septic tank and they fell unconscious
upon inhaling the poisonous gases in the tank. The fourth labourer,
Deepak raised an alaram whereupon Constable Ranbir Singh and
Head Constable Dayal Singh reached the spot and went inside the
septic tank to save the lives of the labourers. However, both of
them were affected by the poisonous gases inside the tank and they
fell unconscious. The fire brigade and the police were
requisitioned and they pulled out all the men out of the septic tank
in a critical condition and they were taken to Babu Jagjivan
Memoral Hospital. Head Constable Dayal Singh survived whereas
the remaining four persons including Constable Ranbir Singh were
declared dead.
3. Constable Ranbir Singh was survived by his widow, parents
and four minor children (respondents No.1 to 7) who filed a suit for
recovery against the appellant. Later on, CRPF, employer of the
deceased was impleaded as defendant No.2. Respondents No.1 to 7
were the plaintiffs, appellant was defendant No.1 and respondent
No.8 was defendant No.2 before the Trial Court.
4. The appellant contested the suit on various grounds inter alia
that the work of cleaning the septic tank was to be done by the
contractor between 10th July, 2001 to 9th August, 2001 and the
contractor started the work after the expiry of the said period
without seeking the extension from the department and, therefore,
the appellant was not responsible for the accident. It was further
pleaded that there was no negligence on the part of the appellant. It
was further pleaded that the contractor was held liable for the
accident in the preliminary enquiry report, Ex.PW-5/A by the
Deputy Welfare Commissioner and the appellant was not
responsible for the negligence of the contractor. It was further
pleaded that the legal representatives of the deceased were
receiving pension and, therefore, they were not entitled to any
compensation.
5. The following issues were framed by the Ld. Trial Court on
6th April, 2004:
"1. Whether claim in the suit of the plaintiff is bad
for mis-joinder of parties? OPD
2. Whether suit is barred u/s 80 CPC? OPD
3. Whether M/s. Naveen Enterprises had failed to
take necessary precaution and for that
defendants can be held and liable? OPP
4. Whether deceased Ranbir Singh was doing any
official duty at the relevant time or had
volunteered? Onus to proof on both the parties.
5. Whether plaintiffs are entitled to decree in the
sum of `5,00,000/- or any other amount and
from which of the defendants?
6. Relief."
6. The plaintiffs examined six witnesses at the trial. PW-1,
widow of the deceased and PW-3, father of the deceased deposed
that the deceased was 32 years and 6 months old at the time of the
accident and was working as a Constable with CRPF at a salary of
`5,000/- per month. They estimated their loss at `13,50,000/-.
The respondents No.1 to 7 issued a legal notice dated 28 th January,
2003 to the appellant demanding `12,00,000/- as compensation.
They proved the legal notice dated 28th January, 2003, postal
receipts, acknowledgement card and the pension book as Ex.PW-
1/A to PW-1/E. PW-2, Record Clerk from Babu Jagjivan Memoral
Hospital proved the postmortem report as Ex.PW-2/A. PW-4 from
Delhi Police proved FIR No.331/2001 as Ex.PW-4/A. PW-5 from
CPWD proved preliminary enquiry report of Deputy Welfare
Commissioner as Ex.PW-5/A. PW-6 from CRPF proved that the
deceased had put in 11 years, 5 months and 10 days of service and
had 25 years of remaining service. He deposed that the deceased
was drawing a basic salary of `3,350/- and dearness allowance of
`1,507/-. He further deposed that the deceased would have got
basic pay of `3,650/- if he had not died in the accident. He further
deposed that the family of the deceased was getting pension of
`2,863/- per month.
7. The appellant examined two witnesses in support of their
defence. DW-1, Executive Engineer of CPWD deposed that the
septic tank at CRPF Camp, Bawana was cleaned by CPWD
through Naveen Enterprises. He further deposed that the work was
scheduled to commence on 10th July, 2001 and to be completed by
9th August, 2001 and the accident occurred after the expiry of the
contract period on 11th September, 2001. He further deposed that
the contractor acted on his own without authorization beyond the
contract period. In cross-examination DW-1 admitted that he never
inspected the septic tank and the gas might have accumulated
therein.
8. DW-2, ex-Deputy Commander, CRPF deposed that a Board
of Enquiry was set up on 13th September, 2001 to determine the
cause of death of the deceased. He proved the report of the Board
of Enquiry dated 5th November, 2001 as Ex.DW-2/1. He deposed
that there was no negligence on the part of the CRPF since the
responsibility for maintaining and cleaning of the septic tank was
of the CPWD. The Board of Enquiry held that Constable Ranbir
Singh being a conscientious and disciplined member of the force
tried his best to save the life of the labourers of the contractor of
CPWD who fell into the septic tank. Constable Ranbir Singh
sacrificed his own life to save the life of his colleague Head
Constable Dayal Singh. The Board of Enquiry further held that the
force and the family members of Dayal Singh would always remain
indebted to Constable Ranbir Singh. The Board further held that
the present case to be an unprecedented and live example of
humanity and conscientiousness to the force and would be an
example for the members serving in the force. The Board further
recommended to honour the deceased with the Jeevan Raksha
Padak to be given by the President for his commendable act of
bravery. The relevant portion of the report of the Board of Enquiry
is reproduced hereunder:
"11. On hearing all the aforesaid proceedings
and conducting a thorough investigation, we come to
a conclusion that on hearing the news that Hawaldaar
/ Driver Dayal Singh was in the tank and nobody from
the present several Jawans were entering into the tank
for his help, Constable Ranbir Singh did not care
about his life and went inside the gutter tank in order
to extend him a help and save his life and with the
help of Hawaldaar/ Driver Dayal Singh, he took out
the labour from there. In the meantime, when
Hawaldaar / Driver Dayal Singh was becoming
unconscious, Constable Ranbir Singh tried to take him
out from the gutter and he again tried to pull him out
while catching hold of the „Daangri‟ (clothe) of the
Hawaldar / Driver Dayal Singh when his (Dayal
Singh) hand slipped out from the hands of Hawaldaar
Phool Kumar as a result of which he (Constable
Ranbir Singh) fell in the gutter facing his mouth
upward otherwise Hawaldaar / Driver Dayal Singh
would have fallen in the gutter in prostrate position
and the mud would have entered in his mouth, nose -
ear and the life of Hawaldaar / Driver Dayal Singh
could not be saved. Hawaldaar / Driver Dayal Singh
got a new life because of the saving efforts of
Constable Ranbir Singh. It would not be an
exaggeration to say that he had asked Constable
Anand Singh also to go out from the gutter
immediately because at that time he himself had
become semi-conscious. Till the time Constable
Ranbir Singh remained conscious and had not fallen
down in the gutter because of the effect of the
poisonous gases, he kept on doing the saving efforts
without keeping any intention to go out the gutter. As
a result whereof he gave new life to Hawaldaar /
Driver Dayal Singh and sacrificed his life. It is an
example for us and deserves to be followed. Only then
we can say that because of the presence of the persons
like brave Constable Ranbir Singh humanity prevails
in our planet. It is an unprecedented example for all of
us.
12. However, the three labours who had become
victims of the said accident were taken to Babu
Jagjivan Ram Hospital for further treatment and were
declared dead but till then they had not been taken out
from the gutter, every possible efforts had been made
to save their lives which is a live unprecedented
example of humanity.
OPINION
The Board of Enquiry under the Chairmanship of the
Presiding Officer on the basis of statements of the
witnesses present at the spot and the statements of the
Jawans who had done their duties and co-operated in
the rescue work in the sudden accident occurred in the
campus of CRPF, questionnaire and the documents
available as an evidence is of the following opinion:-
On 11.09.2001, Tuesday, at about 1:15 o‟clock in
the safety tank incident that suddenly occurred near
the Trance („samaadhi‟) of Peer Baba at the back of
CRPF campus, Hawaldar/Driver Dayal Singh,
No.920140037 and Ranbir Singh No.901191997 of 54
Battalion, being always a conscientious and
disciplined members of the force and considering
humanity above all in human life, tried their best to
save the lives of the laborers of the contractor of
CPWD who had fallen in the safety tank, while giving
an unprecedented example of their bravery and
efficiency and even without caring for their life. The
actions which they took in this regard are highly
commendable. It is glorious for the force that
Constable Ranbir Singh, No. 901191997, in order to
save the life of laborers and his colleague Hawaldar/
Driver Dayal Singh, sacrificed his own life and gave
new life to Hawaldar /Driver Dayal Singh. For this
brave act of Constable Ranbir Singh, our force and the
family members of Hawaldar/ Driver Dayal Singh
will always remain indebted. It has given an
unprecedented and live example of humanity and
conscientiousness to the force and it will be an
example for the members serving in this force.
Besides that, the board recommends for the following
actions:-
A. Immediate action be taken by the Battalion to
honour deceased Constable Ranbir Singh No.
901191997 of C/54 Batallion, C.R.P.F with
"Jeevan Raksha Padak" to be given by the
President for his commendable act of bravery.
B. Immediate action be taken in relation to clearing of
all dues i.e. Pension/ Gratuity/ G.P.F/G.I.S/ Risk
fund etc. of aforesaid Constable Ranbir Singh to
his legal heir wife Smt. Raj Rati Devi in
accordance with the rules of Govt. of India.
C. Immediate action be taken to appoint the wife or
children of deceased Constable Ranbir Singh as
per the rules and regulations of the Government of
India (if they fulfil) on compassionate grounds.
D. If the child of Constable Ranbir Singh is minor,
then a recommendation be made to appoint him, as
soon as he obtains the age of majority.
E. The covered identity card of Constable Ranbir
Singh be cancelled and action in this regard be
taken.
F. Immediate action be taken to return the balance
amount deposited by deceased Constable Ranbir
Singh in respect of Mess Advance and Rum
Advance after making Government recovery, if
any, to his wife.
G. The Board also recommends for providing
appropriate remuneration to Hawaldar/Driver
Dayal singh, No.820140037,54 Battallion, CRPF
for his effort in rescue work while giving an
example of bravery and conscientiousness above
all for which appropriate action be taken. The
classification of the kit of Constable Ranbir Singh
was made by the Board which is annexed at page
no. 35 according to which no dues are pending
against the official."
9. The onus of issue No.1 was on the appellant who failed to
prove the same and, therefore, the issue No.1 was decided against
the appellant. With respect to issue No.2, the Ld. Trial Court held
that the suit was not barred by Section 80 of the Code of Civil
Procedure because the plaintiffs had served the legal notice
Ex.PW-1/C on the appellant before filing the suit. The Ld. Trial
Court further held that the appellant made a false statement in the
written statement as well as evidence with respect to non-receipt of
the notice under Section 80 of the Code of Civil Procedure.
10. With respect to issue No.3, the Ld. Trial Court held that the
contractor failed to take necessary precautions in cleaning the
septic tank and, therefore, the appellant can be held liable because
the responsibility of cleaning of the septic tank was of CPWD.
There was nothing on record to show that the CPWD directed the
contractor not to carry on the work after the expiry of the period of
contract. The appellant has also not placed any record relating to
any action taken against the contractor. The Trial Court, therefore,
held the contractor be responsible for the accident. With respect to
issue No.4, the Ld. Trial Court held that the deceased was on the
official duty at the time of the accident. With respect to issue No.5,
the Ld. Trial Court awarded `5,00,000/- to the
plaintiffs/respondents No.1 to 7.
11. Ld. Counsel for the appellant has urged only one ground at
the time of hearing of this appeal that there was no negligence on
the part of the appellant and, the appellant cannot be held liable to
pay the compensation to the plaintiffs/respondents No.1 to 7. It is
further submitted that the appellant is not responsible for the acts
and omissions of the contractor whose termed had expired.
12. The plaintiffs/respondents No.1 to 7 are poor persons and
their counsel was unable to effectively assist this Court and,
therefore vide order dated 29th July, 2011, this Court appointed Mr.
A.J. Bhambhani as Amicus Curiae to assist this Court.
13. The Ld. Amicus Curiae has submitted that this case is
squarely covered by the judgment of the Supreme Court in Delhi
Jal Board v. National Campaign for Dignity and Rights of
Sewerage and Allied Workers, (2011) 8 SCC 568 in which the
Supreme Court held the Government liable to pay the
compensation in the event of death of any person in cleaning of
septic tanks. It is further submitted that four precious lives were
lost due to the failure of CPWD to maintain the septic tanks. It is
submitted that the doctrine of res ipsa loquitur is applicable to the
present case. It is submitted that respondents No.1 to 7 are entitled
to just compensation under the Fatal Accidents Act, which has to
be computed on the basis of the multiplier method. It is submitted
that the just compensation on the basis of multiplier method is
Rs.11,59,052/-. It is submitted that the plaintiffs/respondents No.1
to 7 had demanded compensation of Rs.12,00,000/- in the legal
notice Ex.PW-1/C. It is further submitted that plaintiffs
/respondents No.1 to 7 proved loss of `13,50,000/- before the Trial
Court although they restricted their claim to `5,00,000/- due to
poverty and legal advice received. It is submitted that just
compensation be awarded to respondents No.1 to 7 in exercise of
jurisdiction under Order XLI Rule 33 of the Code of Civil
Procedure.
14. This case is squarely covered by the judgments of the
Supreme Court in Delhi Jal Board v. National Campaign for
Dignity and Rights of Sewerage and Allied Workers, (2011) 8 SCC
568 and this Court in National Campaign for Dignity and Rights of
Sewerage and Allied Workers v. Delhi Jal Board, 155 (2008) DLT
136 in which the Government was held liable to pay the
compensation to the families of the sewage workers who died due
to the negligence of the contractor. The plea of the Government
that they are not liable for the negligence of the contractor was
rejected by the Courts.
15. In National Campaign for Dignity and Rights of Sewerage
and Allied Workers v. Delhi Jal Board (supra), the National
Campaign for Dignity and Rights of Sewerage and Allied Workers,
which is engaged in the welfare of sewage workers, filed a Writ
Petition to highlight the plight of sewage workers as the legal
representatives of the persons who work in the sewers laid or
maintained by the State and/or its agencies/instrumentalities on
their own or through the contractors and who get killed due to
negligence of the employer, do not have the means and resources
for seeking intervention of the judicial apparatus of the State. The
Division Bench of this Court requested Dr. S. Muralidhar, J. to find
out a workable solution to the problem relating to the deaths of the
sewer workers, their health and safety, the steps to prevent
recurrence of deaths/injuries of the sewer workers, to improve their
working conditions, the compensation to be paid for the deaths of
the workers and the steps to be taken to phase out manual work and
replace it with mechanized sewer cleaning. Dr. S. Muralidhar, J.
deliberated upon the matter and gave valuable suggestions which
were considered by the Division Bench. The Division Bench after
hearing all the parties held that the Government shall remain
responsible to pay the compensation for death of a worker due to
the negligence of the contractor. However, the Government can
recover the said compensation from the contractor. The Division
Bench directed the civic agencies to pay the compensation to the
families of the victims. The relevant portion of the judgment is
reproduced hereunder:-
"We accordingly request Hon‟ble Dr. Justice S.
Muralidhar, a Judge of this Court, to donate some of
his valuable time beyond Court hours in an attempt
to find out a workable solution to the problem in
consultation with all concerned including experts, if
any on the subject. The parties shall appear before
Dr. S. Muralidhar, J. on Saturday the 18th August,
2007 at 11.00 a.m. in His Lordships chamber."
3. Thereafter, fairly elaborate detailed hearings were
held by Dr. S. Muralidhar, J. on 18th August, 2007,
22nd September, 2007 and 1st December, 2007.
Although a number of issues have been highlighted
by the petitioner, the issues that have been
considered on priority basis include: (a) deaths of
the sewer workers, (b) their health and safety, (c) the
steps to prevent recurrence of deaths and injuries of
the sewer workers and to improve their working
conditions (d) the compensation if any paid for the
deaths of the workers in the course of their
employment, and (e) the steps to be taken to phase
out manual work and replace it with mechanized
sewer cleaning. By order dated 5th April, 2008,
which is in the form of a report, magnitude of the
problem has been noted with reference to the
affidavit dated 4th April, 2008 of Delhi Jal Board
(DJB) wherein it is mentioned that "the
infrastructure in the National Capital comprises a
network of 6150 kms long sewers. Out of this 150
kms is the length of trunk sewers, 1500 Kms is the
length of peripheral sewers and 4500 kms is the
length of internal sewers. The sewer network is
connected to 17 Sewage Treatment Plants, having a
composite capacity of 512.4 MGD. Besides, there
are 33 major Sewage Pumping Stations located at
various locations to pump the sewage wherever
required." It was noted that at present 3923
permanent workers are employed against 4171
sanctioned posts. In addition there are 1403 muster
roll workers. Apart from these workers, contract
labour is also engaged from time-to-time. It was
further noted that although guidelines on safety have
been issued by DJB in November, 2002, they are
being observed more in its breach and the DJB is not
serious about the implementation of its own safety
guidelines. It was further noted that so far as DJB is
concerned there have been a total of 36 deaths of
sewer workers since 2002 out of which 30 were
contract workers and 6 were in regular employment.
It was also noted that in spite of repeated directions,
DJB has failed to conduct inquiries into the deaths
and injuries of sewer workers. It was noted that
there are many aspects of the matter that will require
further monitoring to ensure that real changes are
brought about in the working conditions of sewer
workers. In particular the liability of the DJB and
the contractors under the CLRA and their liability to
pay compensation under the WC Act (as amended in
2002) will have to be examined. Even while a
workable scheme of remedial measures is
formulated, the reasons for the deaths of the sewer
workers and for the failure of the DBJ and its
contractors to comply with the 2002 guidelines must
be unearthed for which the DJB has to honour its
commitments to the Court with all seriousness.
4. Thereafter the matter was placed before the
Division Bench and by order dated 11th April, 2008,
the Court called upon the DJB and NDMC to file
status report setting out the requisite information
and, inter alia, stating: (a) the number of deaths that
have taken place from the year 2002 onwards; (b)
have any inquiries/investigations at any level been
conducted by the authorities into the cases of such
deaths; (c) if inquiries were conducted, was any
action taken either against the contractor who
employed the deceased workers or against any other
functionary of the local body under whom the
contractor was engaged; (d) if there any proposal for
improvement of the working conditions of the sewer
workers, if so what are those proposals and what
steps have been taken by the local bodies to
implement the recommendations, if any, made in
that regard; (e) in case there are no proposals, are the
local bodies willing to frame guidelines and take
measures to prevent such deaths in future and to
provide better working conditions to the workers
engaged for cleaning work; (f) if there any provision
for payment of compensation to the families of the
deceased workers and for those who suffer a
disability while working. If so what is the scheme
and have any payments under the same been made.
5. Pursuant to the above order, NDMC has filed
affidavit dated 8th May, 2008 wherein it has been
asserted that no NDMC employee/contractor‟s
labour has died during cleaning of sewer
lines/manholes since the year 2002 due to
negligence/non-adoption of safety measures.
However, it is conceded that 3 persons working
under the NDMC contractor died on 7th December,
2003 due to inhalation of toxic gases from the sewer
lines. It is stated that the above three persons entered
in the manholes without obtaining any
permission/approval from Engineer-in-Charge of the
site and without any safety precautions/measures
which are required before entering into a sewer line.
It is further stated that since it was a case of accident
and not negligence, no inquiry was conducted.
According to NDMC, there is scope for
improvement of the working conditions of the sewer
workers and following steps have been taken by
NDMC in this direction:
"(1) As far as possible cleaning of sewer
lines/manholes is done mechanically. Entry of
human beings is being restricted to the rarest of rare
cases only where mechanical cleaning is not
possible.
(2) In cases where manual cleaning is done, it is
ensured that all safety equipments are used and all
precautions are taken. Sewermen are not allowed to
remain in deep manholes for more than 5-10
minutes at a stretch. The concerned Junior
Engineer/Assistant Engineer remains present at site
during the entire cleaning operation.
(3) All safety appliances like air breathing
apparatus, full face cover safety mask, safety belts,
torch, safety goggles, safety helmets, safety belts,
gum boots, diving suits, air blowers and exhausts,
etc. are being extensively used.
(4) Free medical facilities are provided to all
employees for health checkup, treatment and
hospitalization, etc. in state of the art hospitals of
capital. A list of all such hospitals is given below:
(1) Max Balaji Hospital, Indraprastha
(2) .... .... .... .... .... .... ....
(3) .... .... .... .... .... .... ....
(4) .... .... .... .... .... .... ....
(26) Charak Palika Hospital, Moti Bagh
(5) All the sewermen are insured for Rs.1.00 lac
each with the National Insurance Company Ltd. for
which the premium is paid by NDMC. This is
besides the General Insurance Scheme which is
applicable to the Government employees as per
Central Govt. Rules.
(6) Accommodation is given to the sewermen as
per the availability / seniority. At every service
centre labour rest room has been provided. For the
education of their family members several NDMC
schools are functioning in NDMC area.
(7) Drinking water, bathing and washing facility is
provided at the stores/service centres. Recreational
club has been provided by NDMC for its employees.
(8) Training for use of appliances and other safety
equipments is given to the workers by the
department itself. Programme for training from other
agencies is being chalked out."
6. The DJB has filed status report dated 7th July,
2008 in which it is admitted that number of deaths
since 2002 is 36 and six of those workers were
employed by DBJ and 30 were contract workers.
The reasons for the deaths in most of the cases have
not been given. In the cases in which reasons have
been furnished, the cause of death has been
attributed to lack of safety equipments or
negligence. In none of these cases any disciplinary
action has been taken and apart from simple
warning, which has been issued in majority of cases,
no action has been taken against the concerned
official or contractor, responsible for the workers‟
safety. It is further stated in the status report that the
DJB has now made functional Safety and Disaster
Management Cell that will take care of issues
concerning the sewer workers. Instructions have
been issued to all concerned to incorporate a clause
in the contract agreement to reserve the right of DJB
to debar/blacklist a defaulting firm. The report
further states that the following proposals for
improvement of the working conditions have been
made:
"(i) Safety awareness programs.
(ii) Circulations of do‟s and don‟t‟s for sewer
workers.
(iii) Directions to procure and maintain safety
equipment.
(iv) Training in confined space entry and rescue
imparted to ten trainers
(v) Entered into an MOU with National disaster
management for providing consultancy services for
safety and disaster management."
According to DJB it has taken the following steps in
an attempt to shift from manual to mechanized
cleaning:
"(i) DJB has stopped using manual labour to clean
sewer line deeper than 5 ft. It has procured
additional jetting machines.
(ii) Major trunk/peripheral sewer is desilted by
super sucker machines. However, in an emergency,
deep sewer entry is allowed with proper safety
equipment and the presence of a junior engineer."
7. According to DJB it has also procured the
necessary equipments. It is then stated that DJB has
11 dispensaries, 25 private hospitals and 37
diagnostic centres empanelled with the DBJ to
provide care to the workers. It has a decentralised
arrangement for reimbursement when beyond
normal entitlement so relief in emergency cases is
immediate. The first aid boxes are made available
for workers and contractors are obliged to provide
medical facilities as per provision of the contractual
agreement and periodic health check ups are being
done. It is stated that model rules and safety codes,
which are in force, will be strictly implemented for
the workers cleaning the sewers. DJB has introduced
a basic safety awareness for the year 2007-2008 in
collaboration with National Institute of Disaster
Management for providing consultancy services for
safety and disaster management and the
establishment of emergency preparedness and
response teams. The guidelines issued by the NHRC
are being followed by the DJB. On the issue of
compensation, the DJB has stated that if a worker
dies, compassionate appointment is given wherever
possible. Workers facing injury are provided with
compensation as per the insurance policies taken. In
cases where there is death of a worker hired by
contractor, Workmen‟s Compensation Act provides
for payment of compensation. Although DJB has
agreed to provide names of the contract workers
working for the contractors, relevant details
regarding contractors and the workers working
under them have not been furnished.
8. In the written submissions filed on behalf of the
petitioner on 22nd July, 2008, it has been brought on
record that a daily wage worker by the name of
Amit, working for contractor employed by NDMC,
died due to inhalation of toxic gases on 20th July,
2008. It is stated that Amit was accompanied by
another daily wage worker, Rajpal, who fainted due
to the inhalation of gases and was removed from the
sewer. Rajpal has, however, survived. Further
according to the petitioner, on 5th May, 2008, two
contract workers working under contractors
employed by the DJB died due to inhalation of gases
in the sewer. Their names are Chintu and Pintu
(Papu/Hassan Ahmed). They were working in a
sewer line situated at Dabri."
16. The interim directions of the Division Bench of this Court
are reproduced hereunder:-
"(a) The medical examination and medical treatment
will be given free of charge to sewer workers and
the treatment will continue for all such workers
found to be suffering from an occupational disease,
ailment or accident until the workman is cured or
until death.
(b) The services of the sewer workers are not to be
terminated, either by the respondents or the
contractors engaged by them, during the period of
illness and they shall be treated as if on duty and
will be paid their wages.
(c) Compensation shall be paid by the
respondents and recoverable from the
contractors, if permissible in law, to all the
workmen suffering from any occupational disease,
ailment or accident in accordance with the
provisions of the Workmen‟s Compensation Act,
1923.
(d) The respondents shall pay on the death of any
worker, including any contract worker, an
immediate ex gratia solatium of Rs. One lac with
liberty to recover the same from contractors, if
permissible in law.
(e) The respondents shall pay/insure payment of all
statutory dues such as Provident Fund, Gratuity and
Bonus to all the sewer workers, including contract
workers, as applicable in law.
(f) The respondents shall provide as soon as
possible modern protective equipments to all the
sewer workers in consultation with the petitioner
organisation.
(g) The respondents shall provide soap and oil to
all the workmen according to the present quota, but
on monthly basis and not at the end of the year.
(h) The respondents shall provide restrooms and
canteens, in accordance with the DJB model rules,
including therein first-aid facilities, safe drinking
water, washing facilities, latrines and urinals,
shelters, creches and canteens as set out in the model
rules. There are to be provided at what is known as
„stores‟ which are the places where the workers
assemble to give their attendance and from where
they depart to their respective work sites.
(i) The respondents shall provide all workman,
including contract workmen, with an accident-card-
cum-wage-slip as set out in Clause 8 of the
C.P.W.D./PWD (DA)/Delhi Jal Board Contractors
Labour Regulations (for short "Labour
Regulations").
(j) The respondents shall provide all workers,
including contract workers, employment cards as set
out in Clause 9 of the Labour Regulations and, on
termination of services provide the contract workers
and others with a service certificate as set out in
Clause 10 of the Labour Regulations.
(k) The respondents shall authenticate by signing
the payment of wages register for contract workers
in terms of Clause 5 of the Labour Regulations.
(l) The respondents shall submit to this Court and
to the petitioner within four weeks from today the
full list of contract workers and contractors engaged
for work relating to the sewers together with the
wages paid to such workmen and the number of
years of employment of the workers.
(m) The DJB is directed to ensure that the ex gratia
payment in case of deaths of sewer workers has been
paid to the families of deceased workmen and in
case such compensation is not paid, release the same
within a period of eight weeks.
(n) NDMC is directed to pay ex gratia payment of
Rs. One lac each in respect of the accident of 7th
December, 2003 where three persons working under
the NDMC contractors died, with liberty to recover
the same from the contractor, if permissible in law.
(o) The DJB and NDMC are directed to hold an
inquiry into deaths of sewer workers referred to in
paragraphs 15 and 16 of the written submissions of
the petitioner dated 22nd July, 2008 and submit a
report to this Court within a period of eight weeks. If
it is found that the contract workers in question were
working under the contractors employed by
NDMC/DJB, ex gratia compensation of Rs. One lac
shall be released forthwith to the families of the
victims subject to right of recovery from contractors
in accordance with law.
(p) The respondents shall place on record a map
showing the areas within the NCT, (1) where no
sewage facilities are available, (2) where modern
machinery cannot enter due to narrow lanes or
otherwise, (3) the areas serviced by modern
machinery, and (4) critical area where frequent
deaths, accidents and blockages occur. It shall be
done within three months from today.
(q) Lastly, the respondents are directed to place on
record the proposals and plans to phase out manual
work and replace it with mechanized sewer cleaning,
as envisaged by DJB as well as NDMC, which shall
be done within three months."
(Emphasis supplied)
17. Vide order dated 21st April, 2009, the Division Bench of this
Court directed the civic bodies to pay compensation of `1,71,000/-
to the families of each of the victim through Delhi Legal Services
Authority. Delhi Jal Board challenged this order before the
Supreme Court. Vide judgment reported as Delhi Jal Board v.
National Campaign for Dignity and Rights of Sewerage and Allied
Worker (supra), the Supreme Court dismissed the appeal and
enhanced the compensation from `1,71,000/- to `5,00,000/- to be
paid by the civil agencies. The Supreme Court held that the State
and its agencies/instrumentalities cannot absolve themselves of the
responsibility to put in place effective mechanism for ensuring
safety of the workers employed for maintain and cleaning the
sewage system. The Supreme Court further held that human being
employed for doing work in the sewers cannot be treated as
mechanical robots, who may not be affected by poisonous gases in
the manholes. The State and its agencies or contractors are under
constitutional obligation for the safety of such persons who
undertake such hazardous jobs and cannot use the judicial process
for frustrating the efforts of the dependants of the workers, who
died due to the negligence of the contractor to whom the work of
maintaining the sewage system was outsourced. The relevant
findings of the Supreme Court are as under:-
"1...This appeal filed by Delhi Jal Board for setting
aside an interlocutory order passed by the Division
Bench of the Delhi High Court whereby it has been
directed to deposit Rs 79,000 with the Delhi High
Court Legal Services Committee in addition to Rs
1.71 lakhs already paid to the families of the
deceased worker, namely, Rajan is one of the several
thousand cases filed by the State and/or its
agencies/instrumentalities to challenge the orders
passed by the High Courts for ensuring that the goal
of justice set out in the Preamble to the Constitution
of India is fulfilled, at least in some measure, for the
disadvantaged sections of the society who have been
deprived of the fundamental rights to equality, life
and liberty for last more than 6 decades. The appeal
is also illustrative of how the State apparatus is
insensitive to the safety and well-being of those who
are, on account of sheer poverty, compelled to work
under most unfavourable conditions and regularly
face the threat of being deprived of their life.
2. The laws enacted by Parliament and State
Legislatures provide for payment of compensation
to the legal representatives of those killed in air, rail
or motor accident. The legal representatives of a
workman, who dies while on duty in a
factory/industry/establishment get a certain amount
of compensation. Even those who are killed in
police action get compensation in the form of ex
gratia announced by the political apparatus of the
State. However, neither the law-makers nor those
who have been entrusted with the duty of
implementing the laws enacted for the welfare of the
unorganised workers have put in place an
appropriate mechanism for protection of persons
employed by or through the contractors to whom
services meant to benefit the public at large are
outsourced by the State and/or its
agencies/instrumentalities like the appellant for
doing works, which are inherently hazardous and
dangerous to life nor made provision for payment of
reasonable compensation in the event of death.
3. Since the legal representatives of the persons who
work in the sewers laid or maintained by the State
and/or its agencies/instrumentalities on their own or
through the contractors and who get killed due to
negligence of the employer do not have the means
and resources for seeking intervention of the judicial
apparatus of the State, the National Campaign for
Dignity and Rights of Sewerage and Allied
Workers, which is engaged in the welfare of sewage
workers filed Writ Petition No. 5232 of 2007 in the
Delhi High Court to highlight the plight of sewage
workers many of whom died on account of
contemptuous apathy shown by the public
authorities and contractors engaged by them and
even private individuals/enterprises in the matter of
providing safety equipments to those who are
required to work under extremely odd conditions.
* * *
25. In the last 63 years, Parliament and the State
Legislatures have enacted several laws for achieving
the goals set out in the Preamble but their
implementation has been extremely inadequate and
tardy and the benefit of welfare measures enshrined
in those legislations has not reached millions of
poor, downtrodden and disadvantaged sections of
the society and the efforts to bridge the gap between
the haves and have-nots have not yielded the desired
result. The most unfortunate part of the scenario is
that whenever one of the three constituents of the
State i.e. judiciary, has issued directions for ensuring
that the right to equality, life and liberty no longer
remains illusory for those who suffer from the
handicaps of poverty, illiteracy and ignorance and
directions are given for implementation of the laws
enacted by the legislature for the benefit of the have-
nots, a theoretical debate is started by raising the
bogey of judicial activism or judicial overreach and
the orders issued for the benefit of the weaker
sections of the society are invariably subjected to
challenge in the higher courts. In a large number of
cases, the sole object of this litigative exercise is to
tire out those who genuinely espouse the cause of
the weak and poor.
* * *
38. In view of the principles laid down in the
aforesaid judgments, we do not have the slightest
hesitation to reject the argument that by issuing the
directions, the High Court has assumed the
legislative power of the State. What the High Court
has done is nothing except to ensure that those
employed/engaged for doing work which is
inherently hazardous and dangerous to life are
provided with life-saving equipments and the
employer takes care of their safety and health.
39. The State and its agencies/instrumentalities
cannot absolve themselves of the responsibility to
put in place effective mechanism for ensuring safety
of the workers employed for maintaining and
cleaning the sewage system. The human beings who
are employed for doing the work in the sewers
cannot be treated as mechanical robots, who may not
be affected by poisonous gases in the manholes. The
State and its agencies/instrumentalities or the
contractors engaged by them are under a
constitutional obligation to ensure the safety of the
persons who are asked to undertake hazardous jobs.
The argument of choice and contractual freedom is
not available to the appellant and the like for
contesting the issues raised by Respondent 1.
Re: Question 3
40. We shall now consider whether the High Court
was justified in issuing interim directions for
payment of compensation to the families of the
victims. At the outset, we deprecate the attitude of a
public authority like the appellant, which has used
the judicial process for frustrating the effort made by
Respondent 1 for getting compensation to the
workers, who died due to negligence of the
contractor to whom the work of maintaining sewage
system was outsourced. We also express our dismay
that the High Court has thought it proper to direct
payment of a paltry amount of Rs 1.5 to 2.25 lakhs
to the families of the victims.
* * *
50. In view of the law laid down in the
aforementioned judgments, the appellant's challenge
to the interim directions given by the High Court for
payment of compensation to the families of the
workers deserves to be rejected. However, that is not
the end of the matter. We feel that the High Court
should have taken cue from the judgment in Railway
Board v. Chandrima Das [(2000) 2 SCC 465] and
awarded compensation which could be treated as
reasonable. Though, it is not possible to draw any
parallel between the trauma suffered by a victim of
rape and the family of a person who dies due to the
negligence of others, but the High Court could have
taken note of the fact that this Court had approved
the award of compensation of Rs 10 lakhs in 1998 to
the victim of rape as also increase in the cost of
living and done well to award compensation of at
least Rs 5 lakhs to the families of those who died
due to negligence of the public authority like the
appellant which did not take effective measures for
ensuring safety of the sewage workers.
51. We may have remitted the case to the High
Court for passing appropriate order for payment of
enhanced compensation but keeping in view the fact
that further delay would add to the miseries of the
family of the victim, we deem it proper to exercise
power under Article 142 of the Constitution and
direct the appellant to pay a sum of Rs 3.29 lakhs to
the family of the victim through the Delhi High
Court State Legal Services Committee. This would
be in addition to Rs 1.71 lakhs already paid by the
contractor.
52. In the result, the appeal is dismissed subject to
the aforesaid direction regarding the amount of
compensation to be paid by the appellant. It is
needless to say that the appellant shall be entitled to
recover the additional amount from the contractor.
Respondent 1 shall also be entitled to file
appropriate application before the High Court for
payment of enhanced compensation to the families
of other victims and we have no doubt that the High
Court will entertain such request.
53. With a view to obviate further delay in
implementation of the directions contained in the
first order passed by the High Court on 20-8-2008,
we direct the appellant to ensure compliance with
clauses (a), (b), (d), (e), (f), (g), (i), (k), (m) and (n)
within a period of two months from today and
submit a report to the High Court. The appellant
shall also ensure that these directions are complied
with by the contractors engaged by it for execution
of work relating to laying and maintenance of sewer
system within the area of its jurisdiction. A report to
this effect be also submitted to the High Court
within two months. Additionally, we direct that in
future the appellant shall ensure that the directions
already given by the High Court and which may be
given hereafter are made part of all agreements
which may be executed with contractors/private
enterprises for doing work relating to sewage
system.
54. The directions contained in the preceding
paragraph do not imply that the appellant and other
agencies/instrumentalities of the State like New
Delhi Municipal Council, Municipal Corporation of
Delhi, Delhi State Industrial Development
Corporation are not required to comply with the
directions given by the High Court. Rather, they too
shall have to submit similar reports."
18. This case is also covered by the principles of res ipsa
loquitur. In Shyam Sunder v. State of Rajasthan, [1974] 1 SCC
690, the Supreme Court discussed the doctrine of res ipsa loquitur.
In para 10, the Supreme Court observed as under:
"The maxim is stated in its classic form by Erle,
C.J. [See: Scott Vs. London & St. Katherine
Docks (1865) 3 H & C 596, 601]:
.... where the thing is shown to be under the
management of the defendant or his servants,
and the accident is such as in the ordinary
course of things does not happen if those who
have the management use proper care, it affords
reasonable evidence in the absence of
explanation by the defendants, that the accident
arose from want of care."
In para 15, the Supreme Court held as follows:
"Res ipsa loquitur is an immensely important
vehicle for importing strict liability into
negligence cases. In practice, there are many
cases where res ipsa loquitur is properly
invoked in which the defendant is unable to
show affirmatively either that he took all
reasonable precautions to avoid injury or
that the particular cause of the injury was
not associated with negligence on his part.
Industrial and traffic accidents and injuries
caused by defective merchandise are so
frequently of this type that the theoretical
limitations of the maxim are quite over
shadowed by its practical significance. [See:
Millner: "Negligence in Modern Law" 92]."
(Emphasis supplied)
In para 16, the Supreme Court further held as under:
"Over the years, the general trend in the
application of the maxim has undoubtedly
become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards
and expanding knowledge of the mechanical
devices of our age, less hesitation is felt in
concluding that the miscarriage of a familiar
activity is so unusual that it is most probably the
result of some fault on the part of whoever is
responsible for its safe performance [See: John
G. Fleming. The Law of Torts, 4th Ed. p. 260]."
19. In Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, the
Supreme Court held that the rule of res ipsa loquitur in reality
belongs to the law of torts. Where negligence is in issue, the
peculiar circumstances constituting the event or accident, in a
particular case, may themselves proclaim in concordant, clear and
unambiguous voices the negligence of somebody as the cause of
the event or accident. The Supreme Court held as under:
"19... The peculiar circumstances constituting
the event or accident, in a particular case, may
themselves proclaim in concordant, clear and
unambiguous voices the negligence of somebody as
the cause of event or accident. It is to such cases
that the maxim res ipsa loquitur may apply, if the
cause of the accident is unknown and no
reasonable explanation as to the cause is coming
forth from the defendant. The event or accident
must be of a kind which does not happen in the
ordinary course of things if those who have the
management and control use due care. Further
the event which caused the accident must be
within the defendant's control. The reason for this
second requirement is that where the defendant has
control of the thing which caused the injury, he is in
a better position than the plaintiff to explain how the
accident occurred..."
(Emphasis supplied)
20. In Kerala State Electricity Board v. Kamalakshy Amma,
1987 ACJ 251, a person died by accidently coming into contact
with the live wire which snapped out of the cup joint on electric
post. The legal representatives of the victim instituted a suit
against Kerala State Electricity Board (KSEB) for damages on
account of his death alleging that KSEB was negligent in
maintaining the electric line under their management. The
Division Bench of the Kerala High Court applied the rule of res
ipsa loquitur and upheld the compensation awarded by the Trial
Court. The Court held as under:-
"9. When the plaintiffs succeeded in proving that a
pedestrian (in this case, the deceased) was
electrocuted from a live wire hanging down from an
electric post, there is a presumption of fact that there
was lack of proper care on the part of those in the
management or control of the power supply system at
the particular place. The maxim res ipsa loquitur is a
principle which aids the court in deciding as to the
stage at which the onus shifts from one side to the
other. S. 114 of the Evidence Act gives a wide
discretion to the courts to draw presumptions of fact
based on different situations and circumstances. This
is in a way, a recognition of the principle embodied in
the maxim res ipsa loquitur. The leading case on the
subject is Scott v. London and St. Katherine Docks
Co. (1865) 3 H & C 596. Erle C.J. in the said case has
stated that, "where the thing is shown to be under the
management of the defendant or his servants and the
accident is such as in the ordinary course of things
does not happen if those who have the management
use proper care, it affords reasonable evidence, in the
absence of explanation by the defendants, that the
accident arose from want of care''. Evershad M. R. in
Moore v. R. Fox & Sons (1956) 1 OB 596 affirmed
and followed the principle laid down in Scott's case.
Winfield in his famous treatise on Tort, after referring
to the decisions which founded the above doctrine, has
mentioned the two requirements to attract the
above principle. They are, (i) that the "thing"
causing the damage be under the control of the
defendant or his servants and (ii) that the accident
must be such as would not in the ordinary course
of things have happened without negligence. This
principle which was often found to be a helping guide
in the evaluation of evidence in English decisions has
been recognised in India also. The Supreme Court in
Syed Akbar v. State of Karnataka
MANU/SC/0275/1979 : AIR 1979 SC 1848 has
discussed the applicability of the maxim res ipsa
loquitur in civil as also criminal cases, in the light of
the provisions of the Evidence Act..."
(Emphasis supplied)
21. In State of Gujarat v. Purnimaben, MANU/GJ/0340/2000,
the Division Bench of the Gujarat High Court explained the rule
of res ipsa loquitur as under:-
"18. In the realm of tort negligence, at times, it
becomes difficult to establish the nexus, with the
result or the consequence or the cause thereof by
leading direct evidence. In order to mitigate such a
contingency, a very interesting concept and
philosophy of doctrine of 'res ipsa loquitur' has been
evolved in English Law and we have also followed in
tort negligence. Rule of 'res ipsa loquitur', in reality,
belongs to law of tort. Where negligence is in issue,
peculiar circumstances constituting the event or
accident in a particular case might themselves
proclaim in concordant, clear, consistent and
unambiguous basis the negligence of somebody as a
cause of the event or the accident. The primary facts,
constituted from the record would give a rise to such a
concept if cause of accident is unknown and no
reasonable explanation as to its cause is coming forth
from the opposite party. In such a fact situation, the
maxim of 'res ipsa loquitur' comes into play.
19. It is, therefore, necessary to invoke such a doctrine
in examining, determining and adjudicating upon the
claim of compensation founded upon the tort
negligence. The event or the accident must be a
kind which would not happen in ordinary course of
event or nature or thing if those who have the
management and control of the thing has exercised
due, appropriate and reasonable standard of care
and caution. Further, the events are caused, the
accident must be within the control of the
defendant or the adversary. The reason for second
requirement is that where the defendant or the
adversary has the control of the thing which caused
the injury, he was in a better position than the plaintiff
to explain as to how the incident or the accident has
occurred. Moreover, 'res ipsa loquitur' must not be
speaking negligence but pin it on the defendant. In our
country, the rules of evidence are governed by the
Evidence Act, 1872, under which the general rule is
with the burden of proving negligence as to the cause
of the accident is on the party who propounds it. In
order to lighten this burden, there are certain
provisions and the doctrines, namely,
(1) permissive presumption,
(2) presumption of fact,
(3) rebuttable presumption of law
(4) irrebuttable presumption of law.
20. Presumptions of fact are inferences on fact
patterns drawn from the experience and experiments.
It is, therefore, the discretion of the Court to draw an
inference about the existence on certain factual
situation, if primary facts brought out on record
warrants such presumption. In fact, doctrine of 'res
ipsa loquitur' could only create an aid in evaluation
and analysis and assessment of evidence on record.
When such a doctrine is applied properly to the
facts, the burden of proof, initially, rests with the
victims of the tort or their heirs or legal
representatives is lightened or reduced as the
Court would be able to presume certain things and
therefore, it will be for the defendant or the
adversary to explain or rebut such a presumption.
No doubt, this doctrine could be invoked where direct
evidence is not obtainable. ..."
* * *
"23. The rule that it is for the plaintiff to prove
negligence and not the defendant to disprove it, in
some cases, is one of the considerable hardship to the
plaintiff because, it may be that the true cause of the
accident lies solely within the knowledge of the
defendant who caused it. The plaintiff can prove the
accident, but he cannot prove how it happened so as to
show its genesis or origin in the negligence of the
defendant. This hardship is avoided to a considerable
extent by the principle of 'res ipsa loquitur'. To sum
up, the effect of the doctrine of 'res ipsa loquitur'
depends on the cogency of the inference to be drawn,
and will vary from case to case, if for instance, a
vehicle mounts to pavement, this is evidence of
negligence, but reasonable men may differ about the
inference to be drawn from it, so that a verdict of no
negligence would not be upset although a withdrawal
from the jury would be - yet something may fall from
the defendant's window in such circumstances that
only an inference of negligence can be drawn,
whereupon a verdict of no negligence might be set
aside.
24. Truly and plainly speaking, the effect of doctrine
of 'res ipsa loquitur' is to shift the onus to the
defendant in the sense that the doctrine continues
to operate unless the defendant calls credible
evidence which explains how the accident or
mishap may have occurred without negligence, and
it seems that the operation of the rule is not displaced
merely by expert evidence showing, theoretically,
possible ways in which the accident might have
happened without the defendant's negligence. The
doctrine of 'res ipsa loquitur', therefore, plays a very
significant role in the law of tort and it is not the relic
of the past, but the living force of the day in
determining the tortuous liability."
(Emphasis supplied)
22. The principle of res ipsa loquitur laid down in the aforesaid
four judgments is summarized as under:
i. Res ipsa loquitur means that the accident speaks
for itself. In such cases, it is sufficient for the plaintiff
to prove the accident and nothing more.
ii. Where the thing is shown to be under the
management of the defendant or his servants, and the
accident is such as in the ordinary course of things
does not happen if those who have the management
use proper care, it affords reasonable evidence in the
absence of explanation by the defendants, that the
accident arose from want of care.
iii. There are two requirements to attract res ipsa
loquitur, (i) that the "thing" causing the damage be
under the control of the defendant and (ii) that the
accident must be such as would not in the ordinary
course of things have happened without negligence.
iv. Res ipsa loquitur is an exception to the
normal rule that mere happening of an accident is no
evidence of negligence on the part of the driver.
This maxim means the mere proof of accident raises
the presumption of negligence unless rebutted by the
wrongdoer.
v. 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. This hardship is to be avoided
by applying the principle of 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.
vi. The effect of doctrine of 'res ipsa loquitur' is
to shift the onus to the defendant in the sense that
the doctrine continues to operate unless the
defendant calls credible evidence which explains
how the accident or mishap may have occurred
without negligence, and it seems that the operation
of the rule is not displaced merely by expert
evidence showing, theoretically, possible ways in
which the accident might have happened without the
defendant's negligence. The doctrine of 'res ipsa
loquitur', therefore, plays a very significant role in
the law of tort and it is not the relic of the past, but
the living force of the day in determining the
tortuous liability.
vii. The principal function of the maxim is to
prevent injustice which would result if a plaintiff were
invariably compelled to prove the precise cause of the
accident and the defendant responsible for it, even
when the facts bearing in the matter are at the outset
unknown to him and often within the knowledge of
the defendant.
viii. The doctrine of res ipsa loquitur has been
applied by the Courts in the following cases:-
Where victim was sleeping on a cot placed in
front of his house by the side of the road when
the offending vehicle dashed against the cot and
injured the claimant.
Where a bus had dashed against a tree, causing
death of a passenger.
Where a vehicle negotiating a sharp "U" turn
dashed against a tree, moved away to a distance
of 150 feet from the road and then overturned.
Where a vehicle went-off the road, hit against the
tree and rolled down killing a passenger.
Where a truck dashed against the victim standing
by roadside.
Where a truck came at breakneck speed without
blowing horn and dashed against a 9 years old
boy, who was walking on the extreme left side of
the road, from behind resulting in instantaneous
death."
23. This case is squarely covered by the aforesaid judgments.
Following the aforesaid judgments, it is held that since the sewage
tank was under the management of the appellant, the accident in
the ordinary course of events would not have happened if the
appellant had properly maintained it. The deceased has not in any
manner contributed to the accident. DW-1 in cross-examination
admitted that he never inspected the septic tank. In the
circumstances, it is held that the accident occurred due to the
negligence of the appellant as well as its contractor and the
appellant is liable to pay the compensation to the legal
representatives of the deceased, Constable Ranbir Singh.
24. The next question which arises for consideration is as to the
amount of compensation to which the legal representatives of the
deceased are entitled.
25. The plaintiffs/respondents No.1 to 7 are entitled to just
compensation under Sections 1A and 2 of the Fatal Accidents Act,
1885 which has to be computed according to the multiplier method.
Reference may be made to Gobald Motor Service Ltd. v.
Veluswami, 1962 (1) SCR 929, Dr. Laxman Balkrishna Joshi v.
Dr. Trimbak Bapu Godbole, AIR 1969 SC 128, Ishwar Devi Malik.
v. Union of India, ILR (1968) 1 Delhi 59, Lachman Singh v.
Gurmit Kaur, I (1984) ACC 489 (SB), Lachman Singh v. Gurmit
Kaur, AIR 1979 P&H 50, Bir Singh v. Hashi Rashi Banerjee, AIR
1956 Cal. 555. The multiplier method has been accepted as legally
sound method for determining compensation in death cases by the
Supreme Court in Lata Wadhwa v. State of Bihar, (2001) 8 SCC
1997; Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy, AIR 2012 SC 100 and Delhi High Court in
Jaipur Golden Gas Victims Association v. Union of India, 164
(2009) DLT 346; Nagrik Sangarsh Samiti v. Union of India,
MANU/DE/0965/2010; Ram Kishore v. MCD, 2007 (97) DRJ 445;
Ashok Sharma v. Union of India, 2009 ACJ 1063.
26. In Lata Wadhwa v. State of Bihar (supra), a fire broke out in
a factory in which sixty people died and one hundred and thirteen
got injured. The Supreme Court awarded compensation to the
victims on the basis of the multiplier method.
27. In Association of Victims of Uphaar Tragedy & Ors. v. UOI,
104 (2003) DLT 234 (DB), the Division Bench of this Court
applied the multiplier method and the Second Schedule of the
Motor Vehicles Act, 1988 to compute the compensation payable to
the victims of the Uphaar Tragedy. The Division Bench held that
the victims of the fire incident belonged to reasonably well-placed
families and presumed that the average income of the victims
above age of 20 years to be not less than `15,000/- per month, 1/3rd
was deducted towards the personal expenses and the multiplier of
15 was applied to compute the compensation as `18,00,000/-.
With respect to the children, the Division Bench awarded
compensation of `15,00,000/-. The Division Bench also awarded
interest @ 9% per annum. The Municipal Corporation of Delhi
challenged the aforesaid judgment of the Division Bench before the
Supreme Court. The Supreme Court in Municipal Corporation of
Delhi v. Association of Victims of Uphaar Tragedy (supra) reduced
the compensation from `18 lakhs to `10 lakhs in respect of victims
aged more than 20 years and from `15 lakhs to `7.5 lakhs in
respect of the victims aged less than 20 years. The findings of the
Supreme Court are reproduced hereunder :-
"38. ... It can be by way of making monetary
amounts for the wrong done or by way of exemplary
damages, exclusive of any amount recoverable in a
civil action based on tortuous liability. But in such a
case it is improper to assume admittedly without any
basis, that every person who visits a cinema theatre
and purchases a balcony ticket should be of a high
income group person. In the year 1997, Rs. 15,000
per month was rather a high income. The movie was
a new movie with patriotic undertones. It is known
that zealous movie goers, even from low income
groups, would not mind purchasing a balcony ticket
to enjoy the film on the first day itself. To make a
sweeping assumption that every person who
purchased a balcony class ticket in 1997 should have
had a monthly income of Rs. 15,000 and on that
basis apply high multiplier of 15 to determine the
compensation at a uniform rate of Rs. 18 lakhs in the
case of persons above the age of 20 years and Rs. 15
lakhs for persons below that age, as a public law
remedy, may not be proper. While awarding
compensation to a large group of persons, by way of
public law remedy, it will be unsafe to use a high
income as the determinative factor. The reliance
upon Neelabati Behera (AIR 1993 SC 1960 : 1993
AIR SCW 2366) in this behalf is of no assistance as
that case related to a single individual and there was
specific evidence available in regard to the income.
Therefore, the proper course would be to award a
uniform amount keeping in view the principles
relating to award of compensation in public law
remedy cases reserving liberty to the legal heirs of
deceased victims to claim additional amount
wherever they were not satisfied with the amount
awarded. Taking note of the facts and
circumstances, the amount of compensation awarded
in public law remedy cases, and the need to provide
a deterrent, we are of the view that award of Rs. 10
lakhs in the case of persons aged above 20 years and
Rs. 7.5 lakhs in regard to those who were 20 years
or below as on the date of the incident, would be
appropriate. We do not propose to disturb the award
of Rs. 1 lakh each in the case of injured. The amount
awarded as compensation will carry interest at the
rate of 9% per annum from the date of writ petition
as ordered by the High Court, reserve liberty to the
victims or the LRs. of the victims as the case may be
to seek higher remedy wherever they are not
satisfied with the compensation. Any increase shall
be borne by the Licensee (theatre owner)
exclusively.
39. Normally we would have let the matter rest
there. But having regard to the special facts and
circumstances of the case we propose to proceed a
step further to do complete justice. The calamity
resulted in the death of 59 persons and injury to 103
persons. The matter related to a ghastly fire incident
of 1997. The victims association has been fighting
the cause of victims for more than 14 years. If at this
stage, we require the victims to individually
approach the civil court and claim compensation, it
will cause hardship, apart from involving huge
delay, as the matter will be fought in a hierarchy of
courts. The incident is not disputed. The names and
identity of the 59 persons who died and 103 persons
who were injured are available and is not disputed.
Insofar as death cases are concerned the principle of
determining compensation is streamlined by several
decisions of this Court. (See for example Sarla
Verma v. Delhi Transport Corporation (2009) 6
SCC 121:(AIR 2009 SC 3104:2009 AIR SCW 4992).
If three factors are available the compensation can
be determined. The first is the age of the deceased,
the second is the income of the deceased and the
third is number of dependants (to determine the
percentage of deduction for personal expenses). For
convenience the third factor can also be excluded by
adopting a standard deduction of one-third towards
personal expenses. Therefore, just two factors are
required to be ascertained to determine the
compensation in 59 individual cases. First is the
annual income of the deceased, two-third of which
becomes the annual loss of dependency the age of
the deceased which will furnish the multiplier in
terms of Sarla Verma. The annual loss of
dependency multiplied by the multiplier will give
the compensation."
"Conclusions
46. In view of the foregoing, we dispose of the
appeals as follows:
xxx
(v) CA No. 6748 of 2004 is allowed in part and the
judgment of the High Court is modified as under:
(a) The compensation awarded by the High Court in
the case of death is reduced from Rs. 18 lacs to Rs.
10 lacs (in the case of those aged more than 20
years) and Rs. 15 lacs to Rs. 7.5 lacs (in the case of
those aged 20 years and less). The said sum is
payable to legal representatives of the deceased to be
determined by a brief and summary enquiry by the
Registrar General (or nominee of learned Chief
Justice/Acting Chief Justice of the Delhi High
Court).
(b) The compensation of Rs. One lakh awarded by
the High Court in the case of each of the 103 injured
persons is affirmed.
(c) The interest awarded from the date of the writ
petition on the aforesaid sums at the rate of 9% per
annum is affirmed.
(d) If the legal representatives of any deceased
victim are not satisfied with the compensation
awarded, they are permitted to file an application for
compensation with supporting documentary proof
(to show the age and the income), before the
Registrar General, Delhi High Court. If such an
application if filed within three months, it shall not
be rejected on the ground of delay. The Registrar
General or such other Member of Higher Judiciary
nominated by the learned Chief Justice/Acting Chief
Justice of the High Court shall decide those
applications in accordance with paras above and
place the matter before the Division Bench of the
Delhi High Court for consequential formal orders
determining the final compensation payable to
them."
(Emphasis Supplied)
28. In Jaipur Golden Gas Victims Association v. Union of India
(supra), the Division Bench of this Court awarded compensation to
the victims of Jaipur Golden Fire Tragedy by applying the
multiplier method.
29. In Ashok Sharma v. Union of India (supra), six children lost
their lives by drowning during an annual training camp of NCC on
account of negligence on the part of respondents. The
compensation was awarded by applying the multiplier method.
30. The compensation in death cases according to the multiplier
method is based on the pecuniary loss caused to the dependants by
the death of the victim of the road accident. The dependency of the
dependants is determined by taking the annual earning of the
deceased at the time of the accident. Thereafter, effect is given to
the future prospects of the deceased. After the income of the
deceased is established, the deduction is made towards the personal
expenses of the deceased which he would have spent on himself. If
the deceased was unmarried, normally 50% of the income is
deducted towards his personal expenses. If the deceased was
married and leaves behind two to three dependents, 1/3rd deduction
is made; if the deceased has left behind four to six family members,
deduction of 1/4th of his income is made and where the number of
dependent family members exceeds six, the deduction of 1/5th of
the income is made. The remaining amount of income after
deduction of personal expenses is taken to be the loss of
dependency to the family members which is multiplied by 12 to
determine the annual loss of dependency. The annual loss of
dependency of the dependants of the deceased is multiplied by the
multiplier according to the age of the deceased or claimant
whichever is higher. A table of multiplier is given in Schedule-II
of the Motor Vehicle Act, 1988 but there was some error in the said
table which has been corrected by the Supreme Court in the
judgment of Sarla Verma v. DTC, 2009 ACJ 1298. The summary
of principles laid down by the Supreme Court in Sarla Verma v.
DTC (supra) is as under:-
Multiplier
Age of the deceased Multiplier approved
(in years) by the Supreme Court
Upto 15
Deduction for Personal and Living Expenses
Deceased - unmarried
(i) Deduction towards personal : 1/2 (50%)
expenses.
(ii) Deduction where the family of the : 1/3rd (33.33%)
bachelor is large and dependent on
the income of the deceased.
Deceased - married
(i) 2 to 3 dependent : 1/3rd deduction towards
family members. personal expenses.
(ii) 4 to 6 dependent : 1/4th deduction towards
family members. personal expenses.
(iii) More than 6 family : 1/5th deduction towards
members personal expenses.
(iv) Subject to the : Father, brother and sisters
evidence to the will not be considered as
contrary. dependents.
Future Prospects
(i). Permanent job : Actual salary - tax +
below 40 years of age 50% towards future
prospects.
(ii). Permanent job : Actual salary - tax +
between 40 - 50 years 30% towards future
prospects.
(iii). More than 50 years with: Actual salary only.
permanent job. No addition for future
prospects.
(iv). Deceased employed at a : Only actual income
fixed salary (without to be taken.
provision for annual No addition.
increments)
Non-Pecuniary Damages
(i). Compensation for loss of : `5,000/- to `10,000/-
estate
(ii). Compensation for loss of : `5,000/- to `10,000/-
consortium
(iii). Compensation for pain and : Nil
sufferings and hardship
(iv). Funeral expenses, cost of : Actual
transportation of body and
medical expenses
31. The deceased was aged 32 years at the time of the accident
and was working as a Constable with CRPF. His salary at the time
of the death was `4,857/- per month (Basic Pay of `3,350 +
Dearness Allowance of `1,507). 50% has to be added towards
future prospects and 1/5th has to be deducted towards his personal
expenses and the appropriate multiplier at the age of 32 is 16.
Taking the income of the deceased as `4,857/-, adding 50%
towards future prospects, deducting 1/5th towards personal
expenses and applying the multiplier of 16, the loss of dependency
is computed to be `11,19,052/-. `10,000/- is awarded towards loss
of consortium, `10,000/- towards loss of love and affection,
`10,000/- towards loss of estate and `10,000/- towards funeral
expenses. The respondents are entitled to total compensation of
`11,59,052/-.
32. Learned counsel for the appellant submits that the
plaintiffs/respondents No.1 to 7 have not filed any cross-objections
and, therefore, the compensation cannot be enhanced. The
argument of the learned counsel for the appellant is misconceived
and contrary to law. It is well settled that under Order XLI Rule 33
of the Code of Civil Procedure, the Appellate court has power to
enhance the compensation even in the absence of cross-objections.
Reference in this regard can be made to the recent judgment of this
Court in National Insurance Co. Ltd. v. Komal,
MANU/DE/2870/2012 in which this Court enhanced compensation
in the absence of cross-objections following the catena of the
judgments of the Supreme Court and various High Courts in
Pannalal v. State of Bombay, AIR 1963 SC 1516, Rameshwar
Prasad v. M/s Shyam Beharilal Jagannath, (1964) 3 SCR 549,
Nirmal Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874,
Giani Ram v. Ramjilal, AIR 1969 SC 1144, Harihar Prasad Singh
v. Balmiki Prasad Singh, AIR 1975 SC 733, Mahant Dhangir v.
Madan Mohan, AIR 1988 SC 54, State of Punjab v. Bakshish
Singh, AIR 1999 SC 2626, Nagappa v. Gurudayal Singh, (2003) 2
SCC 274, Oriental Fire And General Insurance Co. Ltd. v.
Amarsing Pratapsing Sikliker, (1999) 3 MLJ 147 and
Prakramchand v. Chuttan, AIR 1991 MP 280.
33. In the present case, the plaintiffs/respondents No.1 to 7 are
entitled to just compensation of `11,59,052/- according to
multiplier method. The plaintiffs have in fact taken a specific plea
before the Trial Court and also proved in evidence that they have
suffered loss to the tune of `13,50,000/-. However, due to poverty
and legal advice received by them, they restricted the claim to
`5,00,000/-. This Court agrees with the submission of the Ld.
Amicus Curiae that it is the duty of the Court to compute just
compensation in accordance with law. This is a fit case where this
Court should exercise jurisdiction under Order XLI Rule 33 of the
Code of Civil Procedure to do complete justice to the
plaintiffs/respondents No.1 to 7.
34. The learned counsel for respondents No.1 to 7 submits that
respondent No.8 has not provided compassionate appointment to
the widow/children of the deceased. It is submitted that on the
basis of the report, Ex.DW2/1, the Commandant had recommended
that Jeevan Raksha Padak be awarded to the deceased, Ranbir
Singh. The Commandant also recommended that the widow or the
children may be given compassionate appointment and if any child
was a minor, he may be considered for the job on attaining
majority. The learned counsel for respondent No.8 submits that the
widow or children have not applied for the compassionate job. The
learned counsel for respondents No.1 to 7 submits that the
wife/children had in fact applied for the job. Be that as it may, the
learned counsel for respondent No.8 submits that if any application
is submitted even now, the same shall be considered in accordance
with the rules. The statement of learned counsel for respondent
No.8 is taken on record. The widow/children may apply for
compassionate appointment to respondent No.8 which shall be
considered in accordance with the rules.
35. In the facts and circumstances of this case, the appeal is
dismissed with costs. However, in exercise of jurisdiction under
Order XLI Rule 33 of the Code of Civil Procedure, the decree is
enhanced from `5,00,000/- to `11,59,052/-. The Trial Court has
awarded interest @ 18% which is on a higher side. The Trial Court
has awarded interest after the expiry of 30 days of the judgment.
However, no interest has been awarded from the date of filing of
the suit. This Court is of the view that the plaintiffs/respondents
No.1 to 7 are entitled to the interest @ 9% per annum from the date
of filing of the suit i.e 5th April, 2003 upto the date of payment.
The interest @ 9% per annum is awarded on `11,59,052/- from the
date of filing of the suit i.e. 5th April, 2003 till the date of payment.
36. The plaintiffs/respondents No.1 to 7 shall pay additional
Court fees of `19,771.56 on the enhanced decretal amount before
the decree is drawn up. The additional Court-fees is awarded to the
plaintiffs/respondents No.1 to 7 as costs to be paid by the appellant.
37. The appellant has deposited the decretal amount in terms of
the decree passed by the Trial Court with this Court in terms of the
order dated 26th February, 2007. The balance decretal amount in
terms of this judgment be deposited by the appellant with UCO
Bank, Delhi High Court Branch by means of a cheque drawn in the
name of UCO Bank A/c Raj Rati within 30 days.
38. The order for disbursement of the decretal amount shall be
passed after hearing the plaintiffs/respondents No.1 to 7.
39. List for directions on 7th December, 2012. The
plaintiffs/respondents No.1 to 7 are directed to remain present on
the said date. Court notice be issued to the respondents No.1 to 7
as well as their counsel.
40. Before parting with this case, this Court would like to record
the appreciation for the valuable assistance provided by the Ld.
Amicus Curiae. Mr. A.J. Bhambhani not only provided valuable
assistance on the question of law but also inspected the entire
record of this Court. The Ld. Amicus Curiae has discharged his
obligation towards the profession in an exemplary manner.
J.R. MIDHA, J
OCTOBER 12, 2012
dk
