Padma Verma vs Municipal Corporation Of Dlehi
2016 Latest Caselaw 2168 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 18th March, 2016

+                             W.P.(C) No.5769/2008

           PADMA VERMA                                       ..... Petitioners
                      Through:              Ms. Anusuya Salwan & Mr. Kunal
                                            Kohli, Advs.

                                     Versus

    MUNICIPAL CORPORATION OF DLEHI           ..... Respondent

Through: Ms. Mini Pushkarna, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition seeks mandamus to the respondent Municipal

Corporation of Delhi (MCD) to compensate the petitioner in the tune of

Rs.10,00,000/- for the injury suffered on being attacked by a bull while

walking on a street.

2. It is the case of the petitioner i) that she is a resident of New Friends

Colony (NFC), New Delhi and while walking in the local colony market

doing her routine chores on 13th May, 2008, a rampaging bull gored her

chest and threw her on the footpath; ii) that she sustained serious external

and internal injuries in the head resulting in loss of consciousness and

multiple epileptic fits on the road; iii) that she was taken to Sujan Mohindra

Hospital (SMH) at NFC, New Delhi in a semi conscious and profusely

bleeding state and was recommended to be immediately shifted to

Vidyasagar Institute of Mental Health & Neurosciences (VIMHANS); iv)

that she was found to have hemorrhage contusions in the right frontal and

left parietal regions besides fractures of the skull bone and multiple sites of

internal hemorrhage; v) that she remained admitted in VIMHANS from 13th

May, 2008 to 18th May, 2008 and thereafter shifted to her son‟s hospital

Prime Heart Vascular Institute at Mohali; vi) that she was teaching students

of Class XI and XII and retired as a Principal of a school but owing to her

injuries suffered loss of memory and finds it difficult to give tuitions to

students of Class XI and XII from which she was earlier earning Rs.15,000/-

per month; vii) that the aforesaid incident occurred on account of gross

negligence on the part of the respondent MCD in discharging its statutory

duties and for which the respondent MCD is liable to compensate her in the

sum of Rs.10,00,000/-; viii) that the Division Bench of this Court in W.P.(C)

No.3791/2000 and in W.P.(C) No.842/1997 had directed the MCD to take

effective steps for removing menace of stray cattle; ix) that the said

directions were reiterated in Common Cause Vs. Union of India (2007) 141

DLT 164 (DB); x) that had the respondent MCD complied with the

directions issued by this Court or with its obligation under Section 323 of

the Delhi Municipal Corporation Act, 1957 (MCD Act) to remove the cows

and buffalos and other animals from the streets, the petitioner would not

have suffered; xi) that this Court in Common Cause Vs. Union of India 102

(2003) DLT 259 (DB) has held that by not taking effective steps to prevent

cattle from taking to the streets, affects the fundamental rights of the

citizens; and xii) that the petitioner has been rendered incapable of earning

her livelihood.

3. Notice of the petition was issued. The respondent MCD in its counter

affidavit pleaded i) that the prayer in the writ petition for compensation is a

case of action in tort where negligence is first required to be established and

which can be done only by leading evidence which cannot be done in writ

jurisdiction; where disputed questions of fact are involved, a petition under

Article 226 is not the proper remedy; ii) that the factum of negligence and its

consequent effects are matter of proof which cannot be effectively

adjudicated in writ proceedings; iii) denying all pleas of negligence on the

part of the respondent MCD; iv) that the respondent MCD has complied

with the directions of this Court in the judgments cited by the petitioner and

routinely makes inspection and takes action to round up stray cattle;

particulars in that regard are filed as Annexure R-2 and Annexure R-3 to the

counter affidavit; v) denying that the petitioner was injured by bull injury or

from the negligence of the respondent MCD; vi) that on learning on 14th

May, 2008 of the incident from newspaper, an urgent letter was issued

directing the Milch Tax Inspectors to intensify the stray cattle raid in the

area of Bharat Nagar, Tamoor Pur, Khizrabad and Zakir Nagar from where

the stray cattle come to the area of NFC; vii) no complaint had been received

from any of the residents of the area prior to 13th May, 2008 of stray bull

roaming the NFC market; log book of the different complaints received from

time to time is filed as Annexure R-5 to the counter affidavit; viii) had any

such complaint been received by the respondent MCD, it would have taken

appropriate action; ix) that the respondent MCD faces heavy resistance in

performing its duties and taking action against illegal dairies and rounding

up of stray cattle; x) several FIRs have been lodged by the staff of

respondent MCD in this regard; rounding up of cattle being a low priority

for the police has to be conducted without police protection or with

inadequate police protection; xi) that it requires determination by recording

of evidence, what injuries were suffered by the petitioner and which of those

were attributable to bull attack and what is the extent of the petitioner‟s own

negligence; and, xii) denying that the writ petition is maintainable.

4. The petitioner has filed a rejoinder inter alia stating, that stray cattle

are a normal feature in NFC as they come from four villages surrounding the

said colony; that had the respondent MCD been doing its duty, there would

be no stray cattle; the threats to respondent MCD employees in taking action

for removal of stray cattle and the FIRs if any lodged by them have no

relevance and citing judgment dated 1st July, 2009 of this Court in W.P.(C)

No.13771/2006 titled Shakuntla Vs. Vs. Government of NCT of Delhi in

which compensation for injury from bull attack was awarded.

5. Though the petition was ordered to be heard in the category of "After

Notice Miscellaneous Matters" but was adjourned from time to time. On

16th March, 2010, the counsel for the petitioner sought time to file an

additional affidavit and which was allowed. The petitioner in the additional

affidavit has stated that she spent an amount to the tune of Rs.60,000/- for

treatment, both at SMH and later on at VIMHANS; an amount of

Rs.25,000/- on account of consultation charges of the Neurologist and

General Physician; however she is unable to produce the receipts of the

consultation charges and the bills for the medicines prescribed by the

doctors; that she retired as a Principal of a premier school (name of which is

not disclosed) and was earning Rs.15,000/- per month.

6. The counsel for the petitioner was heard on 1st July, 2015 when on my

observing that considering the facts of the case, writ remedy did not appear

to be the appropriate remedy and that the petitioner should file a suit and for

which this Court would extend the limitation by excluding the time spent in

pursuing this petition, the counsel for the petitioner sought adjournment to

take instructions; however on 6th July, 2015, the counsel for the petitioner

stated that the petitioner wants to sail or sink with this petition only;

accordingly, further arguments were heard and judgment reserved.

7. The counsel for the petitioner has relied upon:

(i) Judgment dated 30th August, 2013 in W.P.(C) No.6396/2010

titled Parmeshwar Vs. Government of NCT of Delhi;

(ii) Order dated 25th August, 2009 in LPA No.348/2009 titled

Municipal Corporation of Delhi Vs. Shakuntala;

(iii) Ram Kishore Vs. Municipal Corporation of Delhi 2007 VII

AD (Delhi) 441;

(iv) Varinder Prasad Vs. BSES Rajdhani Power Ltd. 2012 II AD

(Delhi) 959;

(v) Gopalpur Victim Association Vs. Delhi Jal Board 2011 (122)

DRJ 428 (DB);

(vi) Suni Manoj Mathew Vs. BSES Rajdhani 126 (2006) DLT

570;

(vii) Municipal Corporation of Delhi Vs. Sushila Devi (1999) 4

SCC 317;

(viii) Master Dheeru Vs. Government of NCT of Delhi 160 (2009)

DLT 759;

(ix) Judgment dated 2nd July, 2013 in W.P.(C) No.5024/2007 titled

Subramanium Vs. Delhi Metro Rail Corporation;

           (x)          Sushil Ansal Vs. State (2014) 6 SCC 173;


           (xi)         M.S. Grewal Vs. Deep Chand Sood (2001) 8 SCC 151.

on the aspect of maintainability of a writ petition claiming

compensation and on:

(a) General Manager Kerala State Road Transport

Corporation, Trivandrum Vs. Susamma Thomas (1994)

2 SCC 176; and,

(b) Kamla Devi Vs. Govt. of NCT of Delhi 2004 (76) DRJ

on the aspect of computation of compensation in writ

jurisdiction.

8. Per contra, the counsel for the respondent MCD has relied on:

(i) Dharampal Vs. Delhi Transport Corporation 2008 (101) DRJ

197;

(ii) Rajkot Municipal Corporation Vs. Manjulben Jayantilal

Nakum (1997) 9 SCC 552;

(iii) Union of India Vs. Sunil Kumar Ghosh (1984) 4 SCC 246;

(iv) Syad Akbar Vs. State of Karnataka (1980) 1 SCC 30;

(v) Chairman, Grid Corporation of Orissa Ltd. Vs. Smt.

Sukamani Das (1997) 7 SCC 298;

(vi) Orissa Agro Industries Corporation Ltd. Vs. Bharati

Industries (2005) 12 SCC 725; and,

(vii) D.L.F. Housing Construction (P) Ltd. Vs. Delhi Municipal

Corporation (1976) 3 SCC 160.

to contend that the claim as in the present petition cannot be

adjudicated in writ jurisdiction.

9. Peculiarly, not only there is no complaint by the petitioner or anyone

else on behalf of the petitioner to the respondent MCD with respect to the

said incident but also there is no FIR to the police of the said incident.

Resultantly, there has been no verification by any agency of the incident.

10. The petitioner, along with the petition has filed photocopy of

discharge summary dated 18th May, 2008 drawn up by VIMHANS bearing

name of the petitioner, her age as 77 years and date of admission as 13th

May, 2008 and diagnosis of head injury, SAH with Multiple Heamorrhagic

Contusions in right frontal and left parietal regions and Hypertension. The

same records that the petitioner is a known case of hypertension, on

medication for the past 10 years and came to Casualty with alleged history

of fall on the ground after being hit by a bull near her residence; that she was

managed first in ICU and then shifted to a ward and that her condition

improved. It does not show of any fractures and does not record that the

petitioner was unconscious at any time; it merely states that the petitioner

had two episodes of vomiting with no history of loss of consciousness. The

petitioner also filed prescription of Dr. S.K. Poddar of SMH recording that

at the time of reaching that hospital, the petitioner was bleeding from nose

and responding to command. The only other document filed with the petition

is the extract of Times of India newspaper of 14th May, 2008 reporting the

incident as told by the husband of the petitioner. Not only so, while the

petitioner in the petition claimed to have suffered injury on her chest and the

newspaper reports also are of the bull having inserted "its horns into her

flesh", the medical reports do not show any injury to the chest.

11. The petitioner along with her additional affidavit has only filed

photocopies of purchase bills of medicine such as Lasix and Cineraria which

are generally prescribed for hypertension of which the petitioner as per the

documents filed by her has been a patient and are not supportive of the case

of the petitioner in this petition.

12. Though none of the medical papers referred to show the petitioner

having been a patient of epilepsy but the petitioner in her petition in para 2

has stated "The petitioner was walking through the market when a

rampaging bull gored of her chest and threw her on the footpath and walked

over her. The petitioner sustained serious external and internal injuries in the

head resulting in loss of consciousness and multiple epileptic fits on the

road" indicating that the petitioner is a patient of epilepsy also. Ordinarily

the medical papers filed by the petitioner as the discharge summary ought to

have, while recording the history of the patient, mentioned epilepsy.

However it cannot be forgotten that the son of the petitioner is a doctor

himself running his own nursing home at Mohali and to which the petitioner

claims to have been taken to straight upon discharge from VIMHANS. It

can safely be assumed that the son of the petitioner was present when the

discharge summary was prepared on 18th May, 2008. This petition is dated

1st August, 2008 and it can also be reasonably assumed that the decision for

filing the petition would have been taken by the time the petitioner was got

discharged from VIMHANS and taken to her son‟s nursing home at Mohali.

It is quite possible that knowing of the adverse impact it may have on the

claim, the medical history of petitioner of epilepsy, from which the

petitioner in the petition has admitted to be suffering from, was not got

recorded in the said discharge summary.

13. It thus follows that not only is the case as made out by the petitioner

in the petition, of having suffered fractures of the skull, and chest injury not

borne out from the documents filed along with the petition but the possibility

of the fall of the petitioner being attributable to epilepsy also cannot be ruled

out.

14. I find the petitioner to have not come to the Court making clean breast

of state of affairs from another factum also. The petitioner in the petition

claimed to have retired as the Principal of a school and that "she had been

teaching students of class XI and XII and was leading a very active life".

However as aforesaid she did not disclose the school from which she had

retired as the Principal. In the additional affidavit also it was merely stated

that the school from which the petitioner has retired was a "premier school"

of Delhi. However as per the newspaper report filed by the petitioner she

retired as a Principal of "Salwan Montessori School". A teacher and

Principal of a Salwan Montessori School could not have been teaching

students of Class XI and XII.

15. It is for the aforesaid reasons/doubts/inconsistencies and air around

which can be cleared only in cross-examination of petitioner that I felt that

the facts of the case are not such in which relief can be granted to petitioner

in writ jurisdiction. The cases of negligence on the part of civic agencies

causing injury, in which the courts have generally been granting

compensation in writ jurisdiction are generally those in which the negligence

has been found in the investigation pursuant to FIR of the incident and

injury is not disputed. Here there is nothing of the sort.

16. The counsel for the petitioner, in answer to the queries as to how the

claim as in the present petition could be subject matter of writ proceedings,

also invoked the principle of res ipsa loquitur. Attention was invited to the

note dated 14th May, 2008 of the Veterinary Services Department of the

respondent MCD on the basis of the report in the newspapers directing the

intensification of stray cattle raids in the area. It was argued that it is thus

borne out that the respondent MCD was satisfied of the correctness of the

news report. It was further argued that else the liability of the respondent

MCD to remove stray cattle from the street is borne out from the earlier

judgments of this Court. It was contended that there is thus a duty on the

part of the respondent MCD to care and which it has failed to provide. It

was further contended that the injury to the petitioner from such failure or

negligence of the respondent MCD is borne out from the discharge

summary; there is thus nothing further to prove.

17. I am however, for the reasons recorded above, unable to agree. The

only version before the Court is of the petitioner and which is denied by the

respondent MCD. The only thing undisputed is the newspaper report but

which as aforesaid is based on the version of the husband of the petitioner

and once the respondent MCD is disputing that version, I cannot accept what

is reported as gospel truth. As far as the internal note of respondent MCD is

concerned, the same merely proves the respondent MCD‟s reaction to the

newspaper report, as a good and responsive civic agency should have. There

is however nothing therein to show the respondent MCD to have

independently satisfied itself of the correctness of newspaper report. The

respondent MCD therefrom cannot be estopped from challenging the

correctness of newspaper report. Similarly, the prescription of SMH and

discharge summary of VIMHANS are also based on the version given by

petitioner/her family to the doctors and at best show injury as mentioned

therein having been suffered by the petitioner. However how much of that

injury is attributable to negligence and duty to care of respondent MCD, can

be proved only in evidence.

18. Section 42 of the MCD Act lists the obligatory functions of the

Corporation; removal of stray cattle from the public streets does not find

mention therein. No specific mention thereof is found in Section 43 listing

the discretionary functions of the Corporation also but the same would be

covered by the residuary Clause (za) thereof providing that "subject to any

general or special order of the government, from time to time, the

Corporation may provide either wholly or in part for all or any of the

following matters viz. (za) any measure not hereinbefore specifically

mentioned, likely to promote public safety, health, convenience or general

welfare." Section 323, of which mention is made in the petition, prohibits

tethering i.e. tying with a rope or chain to restrict movement of any animal

in public street and empowers the Corporation to impound and deal

therewith under the provisions of Cattle-Trespass Act, 1871. Section 418

empowers a Corporation to impound and remove any horses, cattle or other

quadruped animals or birds kept in any premises in contravention of the

provisions of Section 417 or have been abandoned and roaming or tethered

on any street or public place by seizing them and removing them to a place

as may be appointed by the government.

19. As far as the reliance by the petitioner on the judgments of this Court

in Common Cause (supra) etc is concerned, the same was directed against

the Union of India and Government of NCT of Delhi and found the inaction

of the „State‟ in preventing the cattle and bovine animals from taking to the

roads to be impinging upon the fundamental rights of the citizens under

Article 21 of the Constitution of India and invoked Article 48-A requiring

the State to protect and improve and safeguard the forests and wildlife. The

judgment itself notices that no effective law had been made to prevent the

owners of bovine animals including cattle and cow from being let loose and

directions were issued not only to the New Delhi Municipal Council

(NDMC) or the MCD but also to the Government of NCT of Delhi.

20. The matter cannot be viewed divorced from reality. Traditionally,

Indians have always kept cattle, specially cows in their houses. The same

was considered sacred and religious. The city of Delhi developed as a capital

of the country and in planning thereof several pockets of villages

interspersed the planned areas. The said villagers for long remained from

being urbanized and the municipal laws did not extend to them. Thus cattle

continued to be kept in houses in these villages in the midst of or abutting

modern developed colonies of the city. The cattle, just like humans cannot

be kept confined to four walls and for their wellbeing required movement

and was thus required to be let loose and when let loose did not confine

itself to the boundaries of the village but naturally strayed into the nearby

modern colonies. It is only much later that decision for developing a dairy

colony at Ghogha at the outskirts of Delhi was taken and the colony

developed but which has taken several years and has met with severe

resistance from the citizens who still desire to keep a cow in their house if

possible. Instances of cows continued to be reared in Lutyens Bungalows

are also not uncommon.

21. The petitioner is a resident of one of such posh colonies of NFC. The

said colony also has in its neighbourhood such villages of Khizabad and

Bharat Nagar etc. and where at least till the time of the incident, with which

this petition is concerned, cows and bulls continued to be reared. Had the

residents of the said colony including the petitioner been active and made

complaints of stray cattle, and the respondent MCD had not taken any

action, certainly, the respondent MCD would have been at fault; but not only

were no complaints made earlier but even after the incident no such

complaint has been made. Had the petitioner lodged an FIR, the owner of

the bull who is stated to have injured the petitioner would have been traced

and action could have been taken against him. The petitioner, it appears did

not want to annoy her neighbours whose bull is stated to have injured her.

When we are concerned with not an obligatory but a discretionary function

of the Corporation pitted against the duties performed by the petitioner as a

citizen, it cannot be said that the principle of res ipsa loquitur can be

invoked. The Constitution of India to which rights of the citizens were

traced in Common Cause supra besides vesting such rights, in Article 51A

also imposes certain duties in citizens and one of which duties is to protect

and improve the natural environment and to have compassion for living

creatures. The petitioner appears to have been guided more by compassion

for the living creatures and in my opinion cannot be granted the relief

claimed in writ jurisdiction.

22. There is another aspect of the matter.

23. Though undoubtedly this Court has in writ jurisdiction granted relief

of damages for negligence against state agencies but the trend thereof started

where the injured was belonged to a status of society which for economic or

other reasons had no access to justice and relegating whom to the remedy of

a suit would have resulted in denial of access of justice. Subsequently,

reliefs were granted also in some cases where the injured was again found to

be belonging to a strata of society the injury where to would have turned

grave if immediate relief was not granted. The petitioner herein does not

belong to such strata of society. She is a resident of a premier colony of

Delhi and belongs to the educated class and who appears to be financially

well off. She cannot claim to be one who would have been denied access to

justice if had filed the suit. However, the petitioner here is found to be

wanting to receive compensation by avoiding to appear in the witness box

and answer some unpleasant questions including as to the nature of injuries

suffered by her and about her epilepsy. The petitioner inspite of being given

an opportunity to avail the remedy of suit has refused the same. Such a

petitioner in my humble view cannot be held entitled to the relief. Merely by

citing judgments de hors the facts, relief cannot be granted.

24. The petitioner is thus not found entitled to the relief.

25. The petition is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J MARCH 18, 2016 „gsr‟..