Delhi High Court
Parmeshwar vs Government Of Nct Of Delhi & Anr. on 30 August, 2013
Author: G. S. Sistani
$~05.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6396/2010
% Judgment dated 30.08.2013
PARMESHWAR ..... Petitioner
Through : Ms.Gayatri Verma and Ms.Neha Kapoor
Khanna, Advs.
versus
GOVERNMENT OF NCT OF DELHI & ANR. ..... Respondents
Through : Ms.Zubeda Begum and Ms.Sana
Ansari, Advs. for respondent no.1.
Ms.Saroj Bidawat, Adv. for respondent
no.2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. Rule. With the consent of counsel for the parties, present writ petition is
set down for final hearing and disposal.
2. Present petition has been filed by the petitioner under Articles 226 and
227 of the Constitution of India seeking a direction to the respondents to
compensate him for the loss of life of his son, who was 12 years of age, at
the time of his death and for the harassment suffered by him. The
petitioner also seeks a direction to the respondents to be diligent in
execution of their duties and responsibility and remove all stray/wild
animals from the residential colony of Madanpur Khadar in order to
ensure the safety of the residents.
3. The necessary facts, to be noticed for the disposal of this writ petition and
as stated by the petitioner, are that on 20.4.2010 the petitioner's son,
namely, Akash, was sitting on the stairs near his residence when two wild
undomesticated bulls appeared and began fighting. Seeing the bulls
fighting, the son of the petitioner got up to move towards his house in
order to be safe, however, he got entangled in the fight of the wild animals
and was grievously hurt. The petitioner rushed his son to Jai Prakash
Narayan Apex Trauma Centre, AIIMS, Raj Nagar, Delhi, where despite
best efforts of the doctors Akash succumbed to the grievous nature of
injuries, sustained by him, on 28.4.2010. In support of this averment, the
petitioner has relied upon the autopsy report of Akash which states that
the cause of death of Akash was "cerebral (brain) injury and its
complications caused less automateur blunt force and possible in case
coming in contact to bull fight". A copy of autopsy report along with
death certificate of the petitioner's son has been annexed to the writ
petition. The petitioner thereafter made a complaint to the Deputy
Commissioner, Lajpat Nagar, MCD, on 31.7.2010, which was duly
received by the concerned department on 2.8.2010. In the complaint it
was stated that the petitioner had lost his son at the young age of 12 years
due to the carelessness of the MCD and in case the MCD had carried out
its duty of removing the stray animals from the residential areas, the
petitioner's son would have been alive. It was also stated in the complaint
that close to the spot, where the unfortunate incident of the death of the
petitioner's son occurred, i.e. at a distance of 100 meters, a school is
situated where young children study in the morning as well as in the
evening sessions, making them easy targets for such incidents in future.
Despite the complaint, no action has been taken by the concerned
authorities till date and stray and dangerous animals, including wild bulls,
roam around freely including in the residential areas. Since no response to
the said complaint of the petitioner was received, the petitioner was forced
to file the present writ petition.
4. Learned counsel for the petitioner submits that the respondents have been
neglecting to perform their duties as presence of such animal is banned in
the residential areas. Reliance is placed by counsel for the petitioner on
the allotment letter dated 11.6.2001 issued by the DDA to the petitioner
pertaining to the allotment of temporary plot to the petitioner in lieu of
jhuggi of the petitioner. As per condition no.7 of the said allotment letter
the allotted persons were not permitted to keep on the plot or nearby,
animals like, cows, buffalos, pigs, etc., and, thus, the presence of such
animals on the residential land allotted to the petitioner and other persons
is unwarranted and if such animals are present it is the duty and the
responsibility of the civil authorities to remove them in order to ensure
safety of the residents of the locality. Counsel next contends that the cause
of the death of the petitioner's son is the direct consequence of the
carelessness of the respondents and had the respondents carried out their
task of rounding up and removing stray animals from residential colonies
diligently, the petitioner's son would not have lost his life. It is also
submitted that Akash was the only child of the petitioner, who was
pursuing academics, he would have had a bright future, he would have
been the sole bread winner of his family and supported his parents in their
old age had his life not been cut short due to the gross negligence
displayed by the civic authorities.
5. Learned counsel for the petitioner has relied on Nilabati Behera (Smt.) v.
State of Orissa and Others, reported at (1993) 2 SCC 746, wherein the
Supreme Court has held that "the relief of monetary compensation, as
exemplary damages, in proceedings under Article 32 by this Court or
under Article 226 by the High Courts, for established infringement of the
ideafeasible right guaranteed under Article 21 of the Constitution is a
remedy available in public and is based on the strict liability for
contravention of the guaranteed basic and ideafeasible rights of the
citizen. .... The compensation is in the nature of 'exemplary damages'
awarded against the wrongdoer for the breach of its public law duty.....".
It was observed that the Courts not only have the power and jurisdiction
but also an obligation to grant relief in exercise of their jurisdiction under
Articles 32 and 226 of the Constitution to the victim or his/her heir whose
fundamental rights under Article 21 have been flagrantly infringed by the
State.
6. Reliance has further been placed by counsel for the petitioner in the case
of Shakuntala v. Govt of NCT and Anr., CWP No.13771/2006, wherein,
as in the present case, the victim died by being entangled in a bull fight
caused by the dereliction of duty of the MCD. In the said case the High
Court considered all the facts and the law and directions were given to the
MCD in a public interest litigation and thereafter granted relief of
Rs.10.00 lakhs to the petitioner vide judgment dated 1.7.2009. In the
appeal, being LPA No.348/2009, filed by the MCD against the judgment
dated 1.7.2009, a Division Bench of this Court vide order dated 25.8.2009
applied the multiplier method and reduced the amount to Rs.6.50 lakhs.
7. Reliance has also been placed by learned counsel for the petitioner on
Yogita v. Govt. of NCT of Delhi and Anr., CWP No.21139/2005, and
Chob Singh v. Govt. of NCT of Delhi and Anr., CWP No.13310/2009,
wherein the High Court had granted Rs.7,32,788/- and Rs.7,91,546.38 to
the petitioners, respectively, who had lost a family member due to sheer
neglect of the respondent authorities. In order to determine the amount of
compensation payable, the High Court relied upon the two-tier system
contained in the judgment rendered in the case of Kamla Devi v. Govt. Of
NCT of Delhi and Anr., reported at 2004 (76), DRJ 739.
8. Learned counsel for the petitioner submits that in case the multiplier
method, as in the Motor Vehicle Act, is relied upon to calculate the
compensation payable, the following amount would become due to the
petitioner:
(a) 15,000 p.a. x 15 (multiplier as per Para
1 of the IInd schedule)
Less 1/3rd as per Note = Rs.2,25,000/-
- 75,000/-
Rs.1,50,000/-
(b) Funeral expenses 2,000/-
(c) Medical expenses 15,000/-
(d) Exemplary damages as 5,00,000/-
per Nilabati Behera
(supra)
(a)+(b)+(c)+(d) Rs,7,57,000/-
9. Per contra, Ms.Bidawat, learned counsel for respondent no.2, has opposed
the present petition on the ground that the petition raises disputed
questions of fact which cannot be decided in these proceedings. Counsel
further submits that there is nothing on record which would establish that
the injury suffered by the son of the petitioner was on account of a bull
fighting. In support of her submission, learned counsel for respondent
no.2 has relied upon Shri Dharampal v. Delhi Transport Corporation,
CWP No.1108/2001, in which case a child died on account of
electrocution, however, the writ petition was dismissed. Counsel submits
that while deciding the abovestated case the learned Single Judge has
noticed various decisions including a decision rendered by the Apex
Court.
10. I have heard learned counsel for the parties and considered their rival
submissions. The only ground on which the present petition is opposed by
counsel for respondent no.2 is that the same raises disputed questions of
facts. As per the petition on 20.4.2010 the petitioner's son was sitting on
the stairs near his residence when two wild undomesticated bulls appeared
and began fighting. On seeing the bulls fighting, the son of the petitioner
got up to move towards his house, however, he got entangled in the fight
of the wild animals and was grievously hurt. Akash was rushed to Jai
Prakash Narayan Apex Trauma Centre, AIIMS, Raj Nagar, Delhi, where
despite the best efforts of the doctors he succumbed to grievous nature of
injuries, sustained by him, on 28.4.2010. The petitioner thereafter made a
complaint to the Deputy Commissioner, Lajpat Nagar, MCD, on
31.7.2010, which was duly received by the concerned department on
2.8.2010. Despite the complaint, no action has been taken by the
concerned authorities. The allegations made in the said complaint were
not refuted.
11. In the case of Shri Dharampal (supra), which is sought to be relied upon
by learned counsel for respondent no.2, the wife of the petitioner had died
on account of electrocution. She had gone to the terrace of her house to
dry the clothes on an iron wire which was tied to sewer pipes on the
terrace floor. The iron wire was live and the wife of the petitioner got
electrocuted and died. The case of the petitioner in the aforesaid matter
was that since the electricity wires were old and in a dilapidated condition
the short circuit occurred and despite requests the wires were not changed
by the concerned authorities; and, thus, the civic authorities were
negligent in performing their duties. The stand taken by The Delhi Vidyut
Board, contesting respondent no.2, in the aforesaid writ petition, reads as
under:
"5. Delhi Vidyut Board, respondent no.2 also contested the petition
on the ground that it raises disputed facts as to on account of whose
negligence, the wife of the petitioner was electrocuted. The said
respondent contended that a senior mistri had immediately reached
there and had disconnected the electric line. It was also pleaded that
on investigation by the police authorities no fault was found and no
action was initiated against respondent no.2. The said respondent
also refuted its liability on the ground that an electric inspector had
also visited the site and as per his report, the death was due to the
defect in the internal wiring of the flat and there was no fault on the
part of Delhi Vidyut Board. Relying on the facts stated in the first
information report it was pleaded that the allegations were made
only against respondent no.1 and not against respondent no.2. It
was also contended that to claim damages and compensation one
has to prove the case in a suit and not to claim compensation under
Article 226 of the Constitution of India.
6. The allegations of the respondents were refuted by the petitioner
in his rejoinder. It was contended that the colony is very old as it
was constructed in 1954 and the electric lines were damaged which
are not replaced despite repeated reminders and request to the
respondents. The petitioner pleaded that the liability of the
respondents is joint and several and the averments made in the
petition were reiterated.
12. The aforesaid decision, in my view, is not applicable to the facts of the
present case for the reason that in this case it is clearly established that the
petitioner's son has suffered injuries on account of a bull fight, which has
resulted in his death.
13. A DD Entry No.35 was made by ASI Balraj Singh, recorded under
Section 174 Cr.P.C., after visiting the site, wherein he clearly stated that
on enquiry it was found that Akash son of Parmeshwar Prahlad got
injured due to the fight of two bulls. DD No.35 reads as under:
"DD.No.35 Dated 28/4/2010 P.S. Jaitpur N.Delhi
A.S.I. Balraj Singh Return and
Information
U/s 174 Cr.P.C.
Time registered is 3 PM that I ASI along with my colleague
constable Harinder number 2079 S.E came back to the police
station after doing inspection of case report number 16 B in daily
diary. It is registered that I ASI after receiving DD No.33 A dated
20.4.2010 I ASI along with my colleague reached at trauma centre
where MLC of injured Akash son of Parmeshwar Prahlad resident
of A 2/1250 Madanpur Kahadar JJ. Colony was received in which
doctor wrote on MLC unfit for statement. That I ASI along with my
colleague came back to the place of incidence where enquiry was
done and after doing the enquiry it was found that Akash son of
Parmeshwar Prahlad got injured due to the fight of two bull. That
the statement of his father and brother and other neighbours were
obtained. Injured is getting treatment in trauma centre. That today
on 28.4.2010 DD.No.10A was entered by me ASI. That I ASI after
entering the DD.No.10 A dated 28.4.2010 reached trauma centre
AIIMS where at mortuary the TIP post mortem of dead body of
deceased Akash son of Parmeshwar Prahlad resident of A 2/1250 JJ
colony Madanpur New Delhi was done. After that I ASI, has
handed over the dead body of the deceased Akash son of
parmeshwar in the good condition after post mortem to his father
Parmeshwar and his elder brother Yogesh and Dasharam son of
Gyasi Ram resident of A 2/1532 JJ Colony Madanpur Khadar New
Delhi and proceedings under Section 174 Cr.P.C. were initiated.
Whole situation is stated to SHO and report is registered after
giving information by ASI himself."
14. I have also perused the copy of the post-mortem report, which has been
placed on record. Relevant portion of the same reads as under:
"Cerebral (brain) injury and its complications caused less
automateur blunt force and possible in case coming in contact to
bull fight."
15. I have also perused the short affidavit, which has been filed by the MCD,
wherein no specific denial with regard to the incident has been made by
the MCD. Along with the short affidavit the MCD has also filed an action
taken report on removal of stray cattle and bulls from the area of JJ
Colony, Madanpur Khadar, and its surrounding. The short affidavit of the
MCD reads as under:
" I, Dr.C.B. Singh, Veterinary Officer, Central Zone, MCD,
New Delhi, aged about 43 years, do hereby solemnly affirm and
state as under:
1. That I am Veterinary Officer, Central Zone, in the Municipal
Corporation of Delhi dealing with the aforesaid matter and well
conversant with the facts and circumstances of the present case,
and as such competent to depose the present affidavit.
2. That the answering respondent denies the facts as mentioned by
the petitioner in the present petition. It is pertinent to mention
here that the answering respondent is carrying its duties as
entrusted to it.
3. That as per the records of the answering respondent 49 Stray
Cattle / Bull Removal Actions have been undertaken with /
without police force in the Central Zone. It is further submitted
that 163 Stray Cattle including 25 Bulls have been caught /
removed by the answering respondent with rigorous efforts from
the JJ Colony Madanpur Khadar and it sadjoining areas since
1.01.2010. It is pertinent to mention here that the after each
Stray Cattle / Bull Removal Action the local police is informed
and requested to take strict surveillance on the same so that
Stray Cattle may not harm the citizen.
4. That it is pertinent to mention here that during the action as
mentioned hereinabove, some of the illegal dairy owners
interfered / interrupted, looted the seized animals, pelted stones
on the Stray Cattle catching Vehicles and subsequently FIRs
have also been registered against them.
5. That the Stray Cattle / Bull Removal Action is an ongoing
process, however, the Starry Cattle / Bull Removal Staff of
Veterinary Services Department, Central Zone has been directed
to removal all the Stray Cattle / Bull from JJ Colony Madanpur
Khadar and its adjoining areas.
6. That the Stray Cattle / Bull Removal Action are being
continuously undertaken by the answering respondent and still
working with the best possible effort to eradicate Stray Cattle /
Bull from the area in question. It is pertinent to mention here
that the Stray Cattle / Bull are sent to Gosadans after micro -
chipping / tagging at Timarpur Cattle Pond.
7. That the answering respondent MCD has no policy of
compensation in the cases such as the present case. Moreover
answering respondent is already overburdened and not in a
position to pay compensation in the present case."
16. A careful reading of the short affidavit filed by the MCD would show that
there is no factual denial of the incident, which took place in the colony
on 20.4.2010.
17. I have also perused the status report, which has been filed by the Police.
The status report reads as under:
" I have the honour to submit that a DD No.33A dated
02/03/10 through Telephone from Trauma Centre AIIMS Hospital,
was received at PS. Jaitpur which was entrusted to ASI Balraj
Singh for enquiry. The content of DD entry was that one Akash S/o
Prahlad R/o H. No.A-2/1250, Madanpur Khaddar, J.J. Colony age
12 years was got admitted in AIIMS Hospital by his father who
suffered with injuries due to fallen down in front of his house. The
IO went to the Hospital and collected MLC No.206361 of Akash
and recorded the statement of his father Prahlad @ Parmeshwar. As
per his statement, the two bulls were fighting in the Gali and the
children of locality were seeing the bull's fighting. All of a sudden
the bulls started running after one another. Mr.Akash suffered the
injuries due to bull's hit. On 28/04/10 Akash succumb to injuries.
The inquest u/s 174 Cr.P.C. was carried out by ASI Balraj Singh.
Enquiry revealed that Akash sustained injuries due to bull's hit. The
plots of the said J.J. Colony were allotted by DDA. The matter of
compensation belongs to civic agencies of Govt. of NCT of Delhi."
18. A perusal of the short affidavit filed by the MCD, wherein only a vague
denial has been made with regard to the incident; the status report filed by
Delhi Police; the observations made by the doctor in the post-mortem
report; and the observations made by ASI Balraj Singh, leaves no room
for doubt that the death of the petitioner's son was caused on account of a
bull fight and, thus, the submission of the counsel for the respondent is
without any force and is liable to be rejected.
19. Accordingly, present petition is allowed. Applying the multiplier method
as per Motor Vehicle Act The petitioner shall be entitled for a sum of
Rs.7.57 lakhs, in terms of above calculations, which shall be payable by
respondent no.2 within three months of receipt of the order. In addition,
respondent no.2 shall also pay costs of Rs.10,000/- to the petitioner.
G.S.SISTANI, J
AUGUST 30, 2013
msr
