Delhi High Court
Veena Devi vs Govt. Of Nct Of Delhi & Ors on 20 August, 2018
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10457/2016
VEENA DEVI ..... Petitioner
Through: Mr. S.C. Sagar & Mr. Chana Ravi,
Advocates.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through: Ms. Urvi Mohan, Advocate for
Mr. Sanjoy Ghose, ASC for R-1, 6 & 7.
Ms. Arti Bansal, Advocate for R- 2 to 5.
SI Brijesh Kumar, PS Lodhi Colony.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 20.08.2018
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, claiming
compensation on account of the fatal accident met by her son.
2. The petitioner states that on 02.07.2012, her son (Hanish Maurya)
was returning home from his office at about 9.00 p.m. She claims that on
his way back from office, her son met with a fatal accident on the stretch
of the road underneath the flyover at Jangpura. It is stated that he was
riding a motorcycle, which skidded on the debri/malba that was dumped
on the road. Mr Hanish Maurya was taken to Jai Prakash Narayan Apex
Trauma Centre, All India Institute of Medical Sciences, Raj Nagar, New
Delhi; however, he succumbed to his injuries on 03.07.2012.
3. The petitioner claims that respondent nos. 2 to 5 (SDMC and its
engineers and its officers) are responsible for her son's fatal accident as
the same was caused due to negligent acts of the concerned officers, who
had dumped the malba/dabri at the site and/or failed to remove the same.
The petitioner further claims that there was no street light at the site and
therefore the malba/debri dumped on the road was not visible.
4. SDMC disputes that any of its officers were negligent or that the
fatal accident was caused for reasons attributable to them. In the counter
affidavit filed on behalf of SDMC, it is affirmed that its officers are very
vigilant and regularly inspect the site in question. It is claimed that the
malba or debris had been thrown on the side of the road by unknown
persons and the matter was also reported to P.S. Lodhi Colony. SDMC
claims that unknown persons used to dump malba at night and despite the
requests made by SDMC, the police officials were unable to prevent the
same.
5. The status report filed by SHO, P.S. Lodhi Colony before this Court
indicates that a local inquiry was made to ascertain the whereabouts of the
person who had dumped the malba on the road but no clue was found. An
FIR was filed with regard to the incident and it is averred in the petition
that a charge sheet under Section 173 of CrPC has been framed against
respondent nos. 4 and 5.
6. It is, at once, clear that the controversy involves disputed questions
of fact. The petitioner's case is one in tort and it is necessary for the
petitioner to establish negligence in order to secure any compensation. In
this view, it would not be apposite to entertain the said claim in the
proceedings under Article 226 of the Constitution of India. This is clearly
not a case of res ipsa loquitur where the respondents have no defence
whatsoever and the admitted facts clearly establish negligence on their
part.
7. In Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors
v. Sukamani Das (Smt.) and Another : (1999) 7 SCC 298, the Supreme
Court had observed as under:-
"6. In our opinion, the High Court committed an error in
entertaining the writ petitions even though they were not
fit cases for exercising power under Article 226 of the
Constitution. The High Court went wrong in proceeding on
the basis that as the deaths had taken place because of
electrocution as a result of the deceased coming into
contact with snapped live wires of the electric transmission
lines of the appellants, that "admittedly prima facie
amounted to negligence on the part of the appellants". The
High Court failed to appreciate that all these cases were
actions in tort and negligence was required to be
established firstly by the claimants. Mere fact that the wire
of the electric transmission line belonging to the appellant
No. 1 had snapped and the deceased had come into contact
with it and had died was not by itself sufficient for
awarding compensation. It also required to be examined
whether the wire had snapped as a result of any negligence
of the appellants and under which circumstances the
deceased had come into contact with the wire. In view of
the specific defences raised by the appellants in each of
these cases they deserved an opportunity to prove that
proper care and precautions were taken in maintaining the
transmission lines and yet the wires had snapped because
of circumstances beyond their control or unauthorised
intervention of third parties or that the deceased had not
died in the manner stated by the petitioner. These questions
could not have been decided properly on the basis of
affidavits only. It is the settled legal position that where
disputed questions of facts are involved a petition under
Article 226 of the Constitution is not a proper remedy. The
High Court has not and could not have held that the
disputes in these cases were raised for the sake of raising
them and that there was no substance therein. The High
Court should have directed the writ petitioners to approach
the Civil Court as it was done in OJC No. 5229 of 1995. "
8. Although, the above decision relates to a case of electrocution, the
principle laid out in the aforesaid decision would be equally applicable in
the facts of the present case as well. The petition is, accordingly,
dismissed leaving it open for the petitioner to avail all such remedies as
available in law.
VIBHU BAKHRU, J
AUGUST 20, 2018
pkv
