Delhi High Court

Rita Upadhyay & Ors vs Public Works Department & Ors on 8 September, 2015

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) No.5917/2013
     RITA UPADHYAY & ORS                        ..... Petitioners
                     Through: Mr. Rituraj Cahudhary, Adv.

                                   Versus

       PUBLIC WORKS DEPARTMENT & ORS             .... Respondents
                    Through: Ms. Priyadarshini Sreenivasa, Adv.
                               for R-1.
                               Mr. Bibhakar Misra, Adv. for NHAI.
                               Mr. Digvijay Rai, Adv. for SDMC.
                               Mr. Puneet Garg, Law Officer,
                               DMRC.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 08.09.2015

1. The petition seeks compensation of Rs.50,00,000/- from, (i) the

respondent No.1 Public Works Department (PWD) of the Government of

NCT of Delhi (GNCTD), (ii) respondent No.2 National Highway Authority

of India (NHAI), (iii) respondent No.3 Municipal Corporation of Delhi

(MCD) since succeeded by South Delhi Municipal Corporation (SDMC),

and (iv) respondent No.4 Delhi Metro Rail Corporation (DMRC), jointly

and severally for causing death by negligence of the husband of the

petitioner No.1 and the father of the petitioners No.2&3.

2. The petition was entertained and counter affidavits have been filed by

the respondent No.1 PWD, respondent No.2 NHAI and respondent No.4

DMRC. No counter affidavit has been filed by the respondent No.3 SDMC

inspite of repeated opportunities. The counsel for the respondent No.3

SDMC today seeks further time for filing counter affidavit but the petition

having remained pending for the last two years and counter affidavit having

not been filed inspite of repeated opportunities, the said request is declined

and the counsels have been heard.

3. It is the case of the petitioners, i) that the husband of the petitioner

No.1 and the father of the petitioners No.2 &3 viz. Sh. Laxmi Narayan

Upadhyay, on 8th March, 2010 at about 12:30 / 12:45 p.m. in the day time,

was riding the pillion of motorcycle being driven by one Sh. Sanjay and

going to Mehrauli via M.G. Road from Aya Nagar, New Delhi; ii) that when

they reached the Metro Pillar No.177 between Aya Nagar and Ghitorni,

suddenly a tree fell down on them with a great impact and both of them were

crushed underneath the same; iii) that while Sh. Laxmi Narayan Upadhyay

succumbed to his injuries on 10th March, 2010, Sh. Sanjay who was driving

the vehicle died after about a month from the said accident.

4. It transpires that the subject stretch of road, though on the fateful day

was under the management and control of respondent No.3 SDMC but prior

thereto from the year 2006 to 22nd February, 2010 was under the

management and control of respondent No.4 DMRC and from 16 th March,

2010 has been under the management and control of respondent No.2 NHAI.

The counsel for the respondent No.2 NHAI points out that NHAI remained

in control and management of the said stretch of road till September, 2013

when the control thereof has been handed over to the respondent No.1 PWD.

5. I have considered whether the present is a fit case for adjudication in

writ jurisdiction and I am of the opinion that it is not for the following

reasons:

(i) The writ remedy which is an extraordinary remedy, has been

permitted to be invoked for award of compensation for

negligence by the statutory authorities / bodies in performance

of their statutory duty / obligatory functions, where it is felt that

compensation is required to be paid urgently to obviate

hardship to the victim and /or to the dependents of the victim

who has / have suffered on account of such negligence. The

Supreme Court in S.S. Balu Vs. State of Kerala (2009) 2 SCC

479 held it to be well settled that delay defeats equity. On the

contrary, the petitioners herein have not filed this petition

immediately after the incident on 8th March, 2010 / 10th March,

2010 and not even within a short time thereafter. The writ

petition is found to have been presented to this Court for the

first time on 17th August, 2013 but was found to be defective

and was thereafter re-filed on 16th September, 2013 and 17th

September, 2013 and came up before this Court for the first

time only on 18th September, 2013. It thus cannot be said that

the situation demanded immediate payment of compensation

for providing relief to the victims of negligence if any of the

respondents/authorities. When the petitioners can wait for such

a long period of time to seek compensation, they could have

availed of the ordinary civil remedies.

(ii) As would be obvious from the above, the writ petition has been

filed beyond the period of three years from the date on which

the cause of action if any accrued to the petitioners. If an

ordinary civil proceedings had then been filed, perhaps it may

have been dismissed at the threshold as barred by limitation.

Writ jurisdiction cannot be ordinarily permitted to be utilized

for the purpose of pressing time barred claims. However, I

refrain from making any further observations on the aspect of

limitation inasmuch as it is deemed appropriate to nevertheless

give an opportunity to the petitioners to, if consider themselves

so entitled, agitate their claims before the Civil Courts.

(iii) Though an FIR is stated to have been lodged but there is no

investigation report of the police as yet. From the blurred

photographs placed by the petitioners on record, it appears that

the entire tree was uprooted from its roots. Ordinarily such

uprooting of a big tree would not be instantaneous and fall of

the tree would be known. It will have to be determined whether

the deceased was guilty of any contributory negligence or was

taking any risk in attempting to drive under a tilting tree.

(iv) The compensation, if any, will have to be apportioned amongst

the four respondents and at least between the respondent No.3

SDMC and the respondent No.4 DMRC. In this regard, it may

be noted that it is the stand of the respondent No.4 DMRC that

before handing management and control of the said stretch of

road, an inspection / survey of the road was carried out twice

and the road was taken over by the respondent No.3 SDMC

only after all the deficiencies were removed. Per contra, it is

the contention of the counsel for the respondent No.3 SDMC,

though no counter affidavit has been filed, that the roots of the

tree may have been weakened owing to the work done by the

respondent No.4 DMRC over the land and which may not have

been visible. All the said questions will have to be determined

by examination and cross examination of witnesses and cannot

be subject matter of adjudication in writ jurisdiction. The

contention of the counsel for the petitioners that damages may

jointly and severally be awarded against respondent No.3

SDMC and the respondent No.4 DMRC, cannot be accepted.

Without determining the extent of liability of each of the said

authorities, their responsibility and apportionment of damages

if any between them cannot be affected.

(v) The deceased was admittedly employed with the Air Force and

it would also have to be determined as to what compensation

package has been received by the petitioners from the Air Force

or from other agencies.

(vi) The Supreme Court, in M.S. Grewal Vs. Deep Chand Sood

(2001) 8 SCC 151 held that while dealing with a claim of

compensation in a writ petition, justice oriented approach has to

be adopted. Reference was made to M.C. Mehta Vs. Union of

India (1987) 1 SCC 395 laying down that in writ jurisdiction

compensation is awarded where, infringement is patent and

incontrovertible, the violation gross and its magnitude such as

to shock the conscience of the Court and it would be gravely

unjust to the persons whose rights violated, to require them to

go to the Civil Court for claiming compensation. In the entirety

of facts and circumstances noted above and applying the said

principles I do not find this to be a fit case for grant of

compensation in writ jurisdiction. It cannot be lost sight of that

this Court has to do justice to both the parties. Entertaining writ

petitions against State and its instrumentalities in matters of

compensation for negligence even where the same entail

disputed questions of facts would create a mistaken impression

of the same being easy targets, as observed by the Supreme

Court in Indian Medical Association Vs. V.P. Shantha (1995)

6 SCC 651 in context of claims of medical negligence.