Radhey Shyam & Anr. vs North Delhi Municipal ...
2018 Latest Caselaw 6594 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 31st October, 2018
+      W.P.(C) 5437/2012
       RADHEY SHYAM & ANR.                             ..... Petitioners
                        Through:       Mr.Mohit Ramdeo, Advocate
                         versus
       NORTH DELHI MUNICIPAL
       CORPORATION AND ORS                    ..... Respondents
                    Through: Ms.Renu Gupta, Standing Counsel for
                             NDMC/R-1.
                             Mr.Ashish Verma, Advocate for
                             respondent No.2/BSES
                             Mr.Parvinder Chauhan, Standing
                             Counsel for DUSIB.
                             Mr. Navneet Kumar, Mr. Vikas
                             Bhadana, Advocates for R-4.
       CORAM:

       HON'BLE MR. JUSTICE J.R. MIDHA

                            JUDGMENT (ORAL)

1. The petitioners are seeking compensation for death of his son, Amit Kumar by electrocution in a public park on 12th July, 2010.

2. On 12th July, 2010, Master Amit Kumar aged about 13 years was playing in Shiv Park at Punjabi Basti, Baljeet Nagar, Anand Parbat near his residence when he received electric shock from the metallic fencing erected around high mast pole which resulted in his death. The police registered F.I.R. No.47/2010 under Section 304A/337 IPC at P.S. Anand Parbat in which charge sheet has been filed against Mr. Sanjeev Sharma, JE (Electric), Karol Bagh Zone, MCD.

3. The Electrical Inspector conducted an inspection of the site on 16 th August, 2010 and submitted his report dated 20th September, 2010 to the police. According to the report, the accident occurred because the joints in the electric supply leads were found naked and they had not been found insulated with any insulating material/tape and the metallic frame of the high mast light pole and fencing erected around the pole had not been earthed. The relevant portion of the report of the Electrical Inspector is reproduced hereunder:

"Subject : Accident case of Master Amit & Master Naveen occurred on 12/07/2010 at Shiv Mandir Park, Punjabi Basti, Baljeet Nagar, New Delhi.

Reference: Case F.I.R. No.47/10 dated 12/07/2010 u/s 304A/337 IPC, Police Station - Anand Parbat, New Delhi Sir, With reference to your letter no.1081/R-SHO, P.S. Anand Parbat, Delhi dated 09/08/2010 received in this office on 12/08/2010, the undersigned was directed to inspect the place of accident. On 16/08/2010, the place of accident was inspected by the undersigned in the presence of Sh. Dharm Pal, Sub-Inspector, Police Station - Anand Parbat, New Delhi.

During the course of investigation, it was reported that on 12/07/2010, Master Amit & Master Naveen while playing in Shiv Mandir Park, Punjabi Basti, Baljeet Nagar, New Delhi, received electric shock from the metallic fencing erected around the high mast light pole, which proved fatal for Master Amit whereas Master Naveen survived.

At the time of inspection on 16/08/2010, a high mast light pole fitted with four nos. Halogen lamps of 250 watt each was found installed at Shiv Mandir Park, Punjabi Basti, Baljeet Nagar, New Delhi. A metallic fencing was also found erected around the said high mast light police. The electric supply connected to the said high mast light was of 2X4 sq. mm. Cable & it has been extended by connecting another cable of 2X25 sq.mm.size. On physical examination of the said electric supply leads, it was observed that there were naked joints

thereby exposing the live conductor. From the above, it is revealed that the exposed naked portion of the conductor might have come in contract with the metallic body of the said high mast light pole and thus making the said pole as well as the metallic fencing which was in contact with this pole, electrically charged. It was also observed that the metallic body of the said pole and metallic fencing had not been earthed.

At the time of inspection, the following provisions of the Indian Electricity Rules, 1956 had not been found complied with:-

1. Adequate precautions had not been taken to ensure that no live parts are so exposed as to cause danger, in contravention of the provisions of the Rule 50(1) (f)O of the said rules in the following respect:

a) The joints in the electric supply leads were found naked and they had not been found insulated with any insulating material/tape.

b) The metallic framed of the high mast light pole and the fencing erected around the said pole had not been earthed in contravention of the provisions of the rule 51(1)(b) of the said rules."

(Emphasis Supplied)

4. Respondent no.1, North Delhi Municipal Corporation filed the counter affidavit dated 11th December, 2012 in which respondent no.1 admitted having installed the high mast pole. Respondent no.1 pleaded that the wires in the park were maintained by respondent no.2, BSES. Respondent no.1 further pleaded that the alleged accident might have taken place due to the accumulation of rain water in the park and leakage in earthing of the main lines maintained by respondent no.2. Respondent no.1 further pleaded that the petitioners were negligent in not stopping their child from going to park.

It was further pleaded that the electrical power supply cabins were in control of respondent no.2 and the alleged accident took place due to the negligence of respondent no.2.

5. Respondent no.2, BSES has filed the counter affidavit. According to respondent no.2, BSES is only providing the electricity to NDMC for street

light and high mast poles and LV mains and the maintenance of service lines and semi-high mast poles in the park are maintained by NDMC. It is pleaded that the park is maintained by NDMC and not by respondent no.2.

6. Respondent no.2 has placed on record the copy of the minutes of meeting dated 28th June, 2016 under the chairmanship of the Deputy Chief Minister according to which the semi-high mast lights and park lights are maintained by Municipal Corporations of Delhi. Respondent No.2 has also placed on record the copy of the bill for the concerned period raised by BSES for the consumption of electricity which was paid by the municipal corporation. It is submitted that no maintenances charges are charged or paid by the municipal corporation.

7. Respondent no.1 filed an affidavit dated 5th April, 2018 in which it is pleaded that NDMC was neither the owner nor the custodian of the park/ pole and was not responsible for the maintenance of the pole on the date of the accident i.e. 12th July, 2010. According to the affidavit, Slum and JJ Department of the MCD was converted to Delhi Urban Shelter Improvement Board (DUSIB) w.e.f. 1st July, 2010 and DUSIB was responsible for the maintenance of the pole on the date of the accident.

8. Vide order dated 20th April, 2018, Delhi Urban Shelter Improvement Board (DUSIB) was impleaded as Respondent No.5. DUSIB filed the reply to the affidavit dated 5th April, 2018 filed by Respondent no.1 according to which the land underneath the said park and the adjoining land belongs to the DDA upon which the aforesaid big JJ Cluster namely Punjab Basti, Baljeet Nagar has come up. The pole in the park in question was installed by General Wing of Municipal Corporation without any consent, concurrence, permission or any intimation to the then Slum and JJ Wing. According to

DUSIB, it came into being w.e.f. 1st July, 2010 and thus, on 12th July, 2010, Slum and JJ Wing was not responsible for the said park though the DUSIB Act was made enforceable w.e.f. 1st July, 2010 but, the assets of the Slum and JJ Department of the MCD were taken over by DUSIB vide notification dated 30th August, 2010 only. Thus, as on 12th July, 2010 i.e. on the date of an unfortunate incident, the Slum and JJ Wing of the respondent No.1 was very much in existence and DUSIB cannot be made responsible for the said accident. According to respondent No.5, respondent No.1 is solely and exclusively liable to compensate the petitioners.

9. Respondent No.1 filed an affidavit dated 10th August, 2018 replying to the response filed by respondent No.5 according to which NDMC does not maintain high mast lights, semi-high mast lights and park lights of PWD, DDA, I&FC, DSIIDC, DUSIB etc. It is further stated that the content of DUSIB's website itself admits that providing civic amenities in its area is the role of DUSIB. NDMC claimed that the Horticulture Department is the owner and custodian department of any particular park in respective government agencies area, whether it is EDMC, NDMC, SDMC, DDA, PWD or any other government department. DUSIB cannot disown the responsibility because assets as well as the liabilities have been transferred to DUSIB by virtue of DUSIB Act, w.e.f. 01st July, 2010 and DUSIB became the owner of the park. However, since the Horticulture Department of DUSIB was the custodian of the pole, the pole was to be maintained by the Electrical Department of DUSIB on the date of occurrence of the accident by virtue of the DUSIB Act. At the time of an accident i.e. on 12th July, 2010, the responsibility of maintaining the pole as well as ownership was of DUSIB and M/s BSES Yamuna Power Ltd. was responsible for

electricity supply.

10. The petitioners filed rejoinder against the counter affidavit filed by Respondent No.1 pleading that respondent No.1 was responsible for maintaining the park in question and was liable to pay compensation to the petitioners.

11. This Court is of the prima facie view that primary liability to pay the compensation in the first instance to the petitioners is of respondent No.1 and respondent No.1 is at liberty to initiate appropriate legal proceedings against the other authorities in accordance with law. Vide order dated 09 th February, 2018, this Court directed the matter to be considered by the Commissioner, North Delhi Municipal Corporation.

12. The respondent No.1 has filed an affidavit dated 10th October, 2018 in which North Delhi Municipal Corporation has agreed to pay the compensation to the petitioners without prejudice to its rights and contentions with liberty to recover the same from Delhi Urban Shelter Improvement Board, BSES Yamuna Power Limited and/or any other authority in accordance with the law.

13. Next question arises as to the quantum of compensation to be awarded to the petitioners for the death of their son.

14. In Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100 the Supreme Court awarded compensation of Rs.7,50,000/- to the victims below 20 years and Rs.10 lakh to victims above 20 years of age by applying the multiplier method. The relevant portion of the Supreme Court judgment is as under:

"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) 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."

15. In UPSRTC v. R.K. Sachdeva, 2016 SCC OnLine Del 6468 this Court, applying Uphaar Tragedy case, enhanced the compensation in respect of a 18 year old child from Rs.3,42,000/- to Rs.10 lakh considering that Uphaar Tragedy took place in the year 1997 whereas the accident in question took place on 04th May, 2003.

16. Chiranji Lal v. DDA, 2017 SCC OnLine Del 9674 relates to the death of a minor child aged 11 years due to the falling of an iron gate of a DDA park on him. Vide order dated 21st July, 2016, this Court constituted a Committee presided by Mr. Sanjay Jain, learned ASG to consider formulating a policy guidelines for payment of a fixed ex-gratia compensation in such cases. The Committee appointed by this Court recommended the payment of compensation of Rs.10 lakh in death cases and Rs.5 lakh in case of permanent disability in pursuant to which DDA approved the payment of ex-gratia compensation of Rs.10 lakh to the petitioners on no fault liability and the said amount has been disbursed to the parents of the deceased.

17. Sohan Lal v. Government of NCT of Delhi, 2017 SCC OnLine Del 12027 relates to the death of a 6 year old child and injury to a 4 year old child playing in the street by electrocution. This Court awarded compensation of Rs.10 lakh in respect of the death of a 6 year old child and Rs.1,50,000/- to the injured child.

18. In the recent judgment of Court On its Own Motion v. Govt. of NCT of Delhi, 2018 SCC OnLine Del 10283, the Division Bench of this Court presided over by Gita Mittal, Acting Chief Justice awarded compensation of

Rs.10,00,000/- in respect of death of 11 year old boy who died due to falling in a water harvesting pit. The Division Bench referred to and relied upon the Supreme Court judgment in Uphaar Tragedy (supra), R.K. Sachdeva (supra), Chiranji Lal (supra), Sohan Lal (supra).

19. Following the aforesaid judgments, compensation of Rs.10,00,000/- along with interest @ 7.5% per annum from the date of filing of this writ petition up to the realization is awarded to the petitioners against the respondent No.1. Respondent No.1 is held primary liable to pay the compensation in the first instance to the petitioners. The writ petition is allowed in the above terms.

20. Respondent No.1 is directed to deposit the aforesaid amount with the Registrar General of this Court within six weeks from today. In the event of non-deposit of compensation within six weeks, the officer of respondent No.1 responsible for non-deposit shall remain present before this Court on the next date of hearing.

21. After depositing the compensation amount, respondent No.1 would be at liberty to initiate appropriate legal proceedings against DUSIB, BSES Yamuna Power Ltd and/or any other agency, in accordance with law. If any such proceedings are initiated by respondent No.1, the contentions of respondent No.1 raised in this petition as well as those of DUSIB and BSES shall be considered by the concerned Court and the findings of this Court holding respondent No.1 liable in the first instance shall not be an impediment to their adjudication.

22. List for disbursement of the compensation amount on 14th December, 2018. at 2.30 P.M.

23. The petitioners, Radhey Shyam and his wife, Shrimata Devi undertake

that upon deposit of the entire compensation amount by respondent No.1, they shall give no objection to the quashing of FIR No. 47/2010, P.S. Anand Parbat under Section 304A/337 IPC.

24. The petitioners are directed to remain present in Court on the next date of hearing along with the passbook of his savings bank account near the place of his residence as well as PAN card and Aadhaar card. The concerned bank of petitioners is directed not to issue any cheque book or debit card to petitioners and if the same have already been issued, the bank is directed to cancel the same and make an endorsement on his passbook to this effect. Petitioners shall produce the copy of this order to his concerned bank, whereupon the bank shall make an endorsement on the passbook of petitioners that no cheque book and/or debit card shall be issued to petitioners without the permission of this Court. However, the concerned bank shall permit petitioners to withdraw money from his savings bank account by means of a withdrawal form. Petitioners shall produce the original passbook of their individual savings bank account with the necessary endorsement on the next date of hearing.

25. This Court appreciates the assistance rendered by the learned counsels for the parties in this matter.

26. Pending applications are disposed of.

27. Copy of this judgment be given dasti to counsels for the parties under signatures of the Court Master.

OCTOBER 31, 2018                                         J.R.MIDHA, J.
ds/dk