Delhi High Court
Municipal Corporation Of Delhi vs Gurbachan Kaur & Ors on 24 December, 2024
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ RFA 420/2011 & CM APPL. 9514/2013
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
TOWN HALL - CHANDNI CHOWK
DELHI-110007 ..... APPELLANT
(Through: Ms. Sunieta Ojha and Ms. Vasudha Priyansha, Advocates.)
Versus
1. SMT. GURBACHAN KAUR
W/O LATE SH. GURNAM SINGH
2. SMT. AMARJEET SINGH
WIDOW DAUGHTER OF LATE SH. GURNAM SINGH
3. SH. KARAN SINGH
S/O LATE SH. GURNAM SINGH
4. SH. DILBAGH SINGH
S/O LATE SH. GURNAM SINGH
5. MS. REKHA
D/O LATE SH. GURNAM SINGH
ALL RESIDENTS OF:
HOUSE NO. J671
SARDAR COLONY, SECTOR 16
ROHINI, DELHI 85 ..... RESPONDENTS
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Signing Date:26.12.2024 By:PURUSHAINDRA
16:33:15 1 KUMAR KAURAV
(Through: Mr. R. K. Nain, Adv and Chandan Prajapati, Advocates.)
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% Reserved on: 21.11.2024
Pronounced on: 24.12.2024
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JUDGMENT
The present appeal has been preferred against the judgment and
decree dated 29.03.2011, passed in Civil Suit No. 179/10, by the Court of
Additional District Judge (North), Tis Hazari Courts, Delhi, decreeing the
suit of the respondents/plaintiffs, filed under Section 1A of the Fatal
Accidents Act, 1855.
2. The undisputed facts manifest that on 03.06.2008, at approximately
5:30 PM, Sh. Gurnam Singh (hereinafter referred to as the deceased),
husband of respondent No.1/plaintiff No. 1, left his residence to visit the
Police Post, Sardar Colony, Sector-16, Rohini. While walking along the
roadside, approximately 100 meters from his residence, he encountered
some stray cattle. A cow, without any provocation, became aggressive and
attacked the deceased with its horns and hooves. As a result of the attack, he
sustained grievous injuries, including severe injuries to his head, face,
mouth, eyes and ribs.
3. The deceased was immediately taken to the Government Hospital,
Rohini, with the assistance of the bystanders. Despite medical intervention,
the deceased succumbed to his injuries on the morning of 04.06.2008. A
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postmortem examination was conducted at Babu Jagjivan Ram Memorial
Hospital on 05.06.2008 bearing Postmortem Report No. 547/2008.
Thereafter, a complaint bearing FIR No. 339/2008, was registered with
respect to the said incident at Police Station, Prashant Vihar, Delhi, for
offences punishable under Sections 289 and 327 of the Indian Penal Code,
1860.
4. Subsequently, the respondents/plaintiffs filed a suit seeking
compensation of ₹4,80,000/- along with an interest at 12% per annum from
the date of the incident until the realisation of payment. As per the plaint, the
deceased was a professional long-route truck driver earning a monthly
income of ₹10,000 and was the sole breadwinner of the family, providing
economic sustenance. Before the Trial Court, the respondents/plaintiffs
contended that the incident occurred due to the negligence of the local
municipal authorities, who failed to prevent stray cattle from roaming on
public roads. It was also their case that this negligence and failure of MCD
to abide by the statutory duty directly led to the fatal injuries sustained by
the deceased. According to them, the incident has caused them immense loss
of physical, economic, moral, and social support, and has exacerbated their
financial and emotional distress.
5. After hearing the parties, the Trial Court vide the impugned judgment
dated 29.03.2011, decreed the suit in favour of the respondents/plaintiffs
awarding them a sum of Rs 4,80,000/- as compensation to be shared equally
by all dependents.
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6. Aggrieved by the aforesaid, the appellant/defendant has knocked on
the doors of this Court by way of the present appeal.
7. Ms. Suneita Ojha, learned counsel appearing for the
appellant/defendant avers that the impugned judgment is vitiated with legal
infirmities and errors of law resulting in a grave miscarriage of justice. She
further submits that there is no finding on record holding the MCD or its
officials negligent in performing the statutory duty vested with it. According
to her, the Trial Court failed to consider that the suit was liable to be
dismissed due to the non-joinder of necessary parties as the owner of the
stray cattle and area SHO was not made a party, neither there was any
evidence led with respect to the outcome of the FIR registered. Moreover,
learned counsel avers that there is no allegation or evidence placed before
the Trial Court to the effect that any complaint was made to the corporation
regarding the problem of stray cattle in the area of Sardar Colony, Rohini,
and that any negligence was shown by the corporation in taking action
against it. Furthermore, it is submitted by the learned counsel that before the
Trial Court, the appellant/defendant submitted a report on the impounding of
stray cattle by the MCD in 2008-09, showing that a total of 3116 stray cattle
were impounded from different parts of the Civil lines zone. Therefore,
according to the learned counsel, it is clear on the face of the record that the
appellant/defendant was not negligent in performing their statutory duty and
the Trial Court has gravely erred in opining otherwise.
8. More importantly, learned counsel for the appellant/defendant brings
this Court’s attention to the preamble of the Fatal Accidents Act, 1855,
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which states, inter alia that “whereas no action or suit is now maintainable
in any Court against a person who, by his wrongful act, neglect or default,
may have caused the death of another person, and it is often-times right and
expedient that the wrong-doer in such case should be answerable in
damages for the injury so caused by him.” She, then, contends that in
accordance with the aforesaid, the respondents/plaintiffs were burdened to
show that the incident in question took place due to the „wrongful act‟,
„neglect‟ or „default‟ of the appellant/defendant. It is also averred that the
appellant/defendant cannot be held liable in the absence of any specific
contentions made in this regard by the respondents/plaintiffs or any other
person. She places reliance on the decision of this Court in Common Cause
v. Union of India1, whereby, this Court has passed the directions qua
handling the stray cattle and the same has been duly complied with. The
decision of this Court in Padma Verma v. Municipal Corporation of Delhi2
is also relied upon by the appellant/defendant.
9. Per contra, Mr. R.K Nain, learned counsel appearing on behalf of the
respondents/plaintiffs, submits that the respondents/plaintiffs have lost their
sole breadwinner due to the negligence of the officials of the
appellant/defendant and the Trial Court has rightly decreed the suit in the
favour of them. Moreover, it is averred that the present case is squarely
covered by a decision passed by this Court in Shakuntala v. Govt. Of NCT
of Delhi and Anr3, whereby, the Court held that the concept of
1
W.P.(C) 3791/2009
2
2016 SCC OnLine Del 1717
3
2017 SCC OnLine Del 11776
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compensation under public law must be understood as being different from
the damages claimed under private law.
10. The learned counsel also avers that as per Section 298 of the Delhi
Municipal Corporation Act, 1957, all public streets in Delhi are vested with
the MCD, envisaging its responsibility to maintain the roads in a safe
condition including not allowing stray animals and cattle on these roads,
endangering the lives of citizens. He places reliance on the decision of this
Court in Madhu Kaur v. Govt NCT of Delhi & Anr 4, where, this Court
awarded compensation for the death of the petitioner’s son due to the
dilapidated condition of the road and falling into a pit. Therefore, learned
counsel submits that the impugned judgment does not suffer from any
material illegality and the Trial Court has rightly allowed the suit of the
respondents/plaintiffs seeking compensation.
11. I have heard learned counsel appearing for the parties and have
perused the record.
12. A bare perusal of the impugned judgment would indicate that the
Trial Court, on completion of pleadings, framed the following issues: –
“i) Whether the deceased /Gurnam Singh died due to attack by stray
cattle? OPP
ii) Whether the area falls within the jurisdiction of MCD and that they
are accountable for that? OPP
iii) Whether the plaintiffs/Lrs of deceased Gurnam Singh are entitled
to compensation. If so, as to what amount? OPP
iv) Relief”
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13. In order to prove the case, the respondents/plaintiffs produced five
witnesses namely, Smt. Gurbachan Kaur (plaintiff no. 1) as PW-1, Ms.
Amarjit Kaur as PW-2, Sh. S.N Bhardwaj as PW-3, Dr. Kuldeep Singh as
PW-4, and Sh. H.C. Satpal as PW-5. The respondents/plaintiffs also
produced and relied upon copies of the postmortem report, MLC, and the
FIR. On the other hand, the appellant/defendant examined one witness
namely, Sh. Jagvir Singh, Veterinary Officer as DW-1 while relying upon
the report showing the number of impounded cattle in the year 2008.
14. The Trial Court while adjudicating upon the contention that whether
the deceased died due to an attack by stray cattle, held that the
respondents/plaintiffs have successfully substantiated their case that the
deceased had died due to a fatal attack by stray cattle. While arriving at the
aforenoted conclusion, the Trial Court mainly relied upon the evidence
adduced through the testimonies of PW1 and PW2 which were further
corroborated by PW3, who confirmed the postmortem report exhibited as
Ex.PW3/1, reflecting that the injuries described by PW1 and PW2 were
consistent with the facts. Additionally, PW4, Dr. Kuldeep Singh, who
examined the victim on the date of the incident, shed light on the nature of
the injuries in document Mark X-1, which confirmed that the deceased was
attacked by a cow.
15. Therefore, the Trial Court did not find any reason to disbelieve the
version of the respondents/plaintiffs that the deceased was fatally trampled
by a cow, and the aforesaid factum proved a negligent omission of the
appellant/defendant. The Trial Court was of the opinion that the alleged4
2009 SCC OnLine Del 1842
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inconsistencies in the cross-examination of PW1 and PW2, as highlighted
by the learned counsel for the MCD, were insufficient to undermine or
disbelieve the case set up by the respondents/plaintiffs. The relevant extract
of the impugned judgment is reproduced herein, as under: –
“13. The plaintiffs have substantiated the case that the deceased
Gurnam Singh died due to assault by the stray cattle which can be
inferred from the evidence led by the plaintiffs in the shape of testimony
of PW1 and PW2. Their testimony further gets substantiated when PW3
proves the postmortem report Ex.PW3/1 where nature of injuries reflect
that what has been deposed by PW1 and PW2 is feasible. This fact
further gets strengthened through the testimony of PW4 Dr. Kuldeep
Singh who had examined the victim on the date of incident i.e. 3.6.2008
and has elaborated the nature of injuries sustained by the deceased in
Mark X-1. The document mark X-1, which was prepared almost
immediately after the incident proves that the deceased was hit by cow.
At that point of time nobody knew that such a situation would arise that
victim would not survive or claim would be filed against the MCD.
Thus, there is no reason to disbelieve the version given qua the cause of
injury to the deceased was badly trampled by the cow and as a result of
shock arising from such injuries, victim lost his life. Ld. Counsel for the
MCD has emphasized that there are holes in the cross examination of
PW1 and PW2, which renders the case of the plaintiffs unbelievable
and untrustworthy is not enough to dislodge the fact that the deceased
died due to the assault by the stray cattle. Thus, the plaintiffs are able
to drive home their case so far as the issue no.1 is concerned and
accordingly, the same is decided in favour of the plaintiffs and against
the defendant.”
16. Furthermore, the Trial Court also observed that the
appellant/defendant did not aver that the location of the accident was outside
its jurisdiction and was under other civic bodies. The Court was of the
opinion that the location of the incident fell within the jurisdiction of the
appellant/defendant as was also confirmed through the affidavit of Dr.
Jagvir Singh, Veterinary Officer of the MCD, who got deposed as DW1.
The affidavit by DW1 and the reports presented by the appellant/defendant
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of impounding of stray cattle led the Trial Court to conclude that the
accident site fell under the MCD’s Rohini Zone, thereby indicating the
existence of the duty to ensure that the stray cattle are deterred from
roaming on public streets.
17. On the issue of the quantum of compensation, the Trial Court has
delved into the following discussion while awarding Rs. 4,80,000/- : –
“15. The plaintiffs have brought on record that they are part of family
of the deceased Gurnam Singh and were dependent upon him. The
MCD has not attempted to dislodge this fact. What has been contended
on behalf of the MCD is that the plaintiffs are not able to tell the exact
date of birth/ age of the deceased as different dates are coming in
different documents. This in itself is not going to make any difference
for the simple reason that it is the death of individual which is in
controversy and it has been proved on record on behalf of the plaintiff
that indeed Gurnam Singh died on account of assault by a stray cow.
16. The age may have, rather has, relevance so far as the earning
capacity and potential of the deceased is concerned, but then it is not
unusual in this country that people carry loads on their heads
irrespective of their age, of course forced by their circumstances.
Similarly, it cannot be ruled out that the deceased was responsible to
feed his family inasmuch as it has been brought on record that his
younger son aged 23 years is incapable of doing anything on account
of burn injuries sustained during the anti Sikh riots in 1984. One of his
daughters is unmarried and isa student and another son is working as a
cleaner and is being paid meager salary. The status of minimum wages
in this country is also not a secret especially in the private and
unorganized sector. Another daughter of the deceased, namely,
Amarjeet Kaur is a widow and is residing with her parents who too was
dependent on the deceased, alongwith her two kids. There is no cross
examination on the aspect of dependency thus, this can be taken as
correct being stated on oath and reflected strongly by the
circumstances.
16. It has been further contended on behalf of the defendant that no
evidence has been brought on record about the amount earned by the
deceased Gurnam Singh and for that matter whether he was working or
not? The contention of the counsel for the
appellant/defendant/defendant/ MCD is correct to the extent that there
is no evidence on record with regard to the employment of the deceasedSignature Not Verified Signature Not Verified
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or what salary, if any, being earned by him. This in itself is not enough
to wholly discard the utility of a man. It is the case of the plaintiffs that
deceased was working as truck driver on long routes. It is again a
matter of common knowledge that in unorganized sector, there is no
letter of appointment, there is no salary slip or no other proof which
may establish a direct connection. The people are engaged by reference
on word of mouth and terms are usually settled orally. The plaintiffs
apparently belong to a poor strata of the society and also appear to be
not much educated except for the youngest daughter stated to be a
college student. In these circumstances, it would be expecting too much
from them to keep meticulous record of the deceased as to where he
was working, for whom he was driving so or and so forth. However,
this again cannot be ruled out that he was an individual and had his
own existence, life and utility, if not to the society, to his family was
certainly there. The family of the deceased has been indeed deprived of
so many aspects of anormal life on account of the negligence on the
part of the MCD in not getting hold of stray cattle. Even if it is
presumed that he was not earning a handsome salary, he must be
earning something to feed the family which might have been the only
source for the dependents of the deceased. In a civil case the
possibilities and probabilities are to be considered also there is a
possibility rather strong one supporting the case of the plaintiffs. The
kind of evidence required in a civil case is there on record. These all
factors, put together, persuade me to hold that the dependents of the
deceased Gurnam Singh are indeed entitled for compensation.
17 What amount should be paid to the plaintiffs is the next question
for consideration? The plaintiffs have demanded a sum of Rs.4.80,000/-
and have worked out the amount on the basis of minimum wages at the
rate of Rs.40571- per month which comes to Rs.48,684/- per year and
has apparently applied the formula applicable in motor accident cases.
However, the same it seems cannot be applied here. Nevertheless it can
be very well presumed that deceased must be getting more than the
maximum wages, for long route drivers are paid handsomely and
besides salary certain day to day expenses are also being paid to them
which also result in to some savings. Thus, in any case, the deceased
might earning somewhere approx. Rs.7000/- which brings his annual
income to the tune of Rs.84,000/ -. He would have been able to earn
this money for about 5 to 10 years depending on his physical ability.
Thus, the annual income can be multiplied by 7 working years and
additional increase could be added into that at the rate of 2-3% per
annum. As such, an approximate calculation can be had by multiplying
the annual income(Rs.84,000/-) by number of years i.e. 7, which comes
to Rs.5,88,000/- (Rs.84,000×7) and annual income can roughly be
calculated by adding 2% of the annual income of Rs.84,000/- whichSignature Not Verified Signature Not Verified
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comes to Rs.11,760/-(84,000×2/100 = 11760) and can be added in one
go to the annual income, which comes to Rs.5,99,760/ -. The family of
the deceased is also entitled to receive compensation on account of loss
of protection, security, love and affection, guidance, care which can
roughly be worked out to the tune of Rs.1,50,000/- and the amount so
calculated arrives to Rs.7,49,760/ -.However, the plaintiffs have since
restricted their claim to Rs.4,80,000/-,therefore, the same atleast can be
granted. Accordingly the suit filed on behalf of the plaintiffs stands
decreed and a sum of Rs.4,80,000/- is awarded to the plaintiffs as
compensation which shall be shared by the dependents equally. Decree
be drawn accordingly.”
18. At this stage, this Court takes note of various decisions passed by the
Courts regarding compensation for death caused by negligence of statutory
authorities.
19. This Court in Shakuntala Devi, which is also relied upon by the
respondents, held that the duty of care in ensuring that stray cattle or bulls
are kept away from public roads is vested in the MCD. In the aforenoted
case, the Court was dealing with a similar incident, wherein, a roadside fruit
vendor was mauled by bulls. The findings rendered by this Court in the
aforementioned decision read as under: –
“21. The respondents‟ principal argument in this proceeding is that
there is no discernable duty of care in ensuring that stray cattle or bulls
are kept away from roads and streets, and that those plying their trades
have to take care of themselves against any such hazards.22. It would
be necessary to see whether there is any obligation cast upon the
authorities, in this regard, under the relevant enactments. Undersection
298 of the Delhi Municipal Corporation Act, 1957 and Section 202 of
the New Delhi Municipal Council Act, 1994 (hereafter the Act) all the
public streets within Delhi or New Delhi are vested in the Municipal
Corporation of Delhi or the New Delhi Municipal Council, as the case
may be. These streets are under the control of the MCD and the
NDMC, which are also responsible for their maintenance and
regulation. The MCD, which is primarily asked to account for its action
here, is also empowered to regulate public streets; it has the right to
invoke eminent domain, for the purpose of road development,
expansion, etc. Sections 42 of the Act lists out that the ObligatorySignature Not Verified Signature Not Verified
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Functions of the Corporation, the ones in relation to Public Streets are-
(n) the construction, maintenance, alteration and improvements of
public streets, bridges, culverts, causeways and the like;
(0) the lighting, watering and cleansing of public streets and other
public places;
(p) the removal of obstructions and projections in or upon streets
bridges and other public places;
(q) the naming and numbering of streets and premises;”
23. In Common Cause (Regd Society) V. Union of India (UOI), &Govt.
of NCT of Delhi, MCD and NDMC and Ram Pratap Yadav v.MCD
(decided on 03.11.2000) a decision of this Court, the court was
concerned with the precise duty of the MCD to maintain public roads
and streets and ensure that they are free of stray cattle, for the safety of
road users (which would include pedestrians, those plying vehicles and
vendors on footpaths, etc.) it was observed that-
“14. The menace of stray cattle is hazardous and causes traffic
snarls. It affects the safety of human beings on the road. It has the
potential to cause accidents. Besides, it depicts a very dismal
picture of the capital. It is also very cruel on the bovine animals
as they are let loose on the roads because the owners do not want
to feed them. These animals have to fend for themselves. They eat
whatever comes in their way including garbage and plastic bags.
This affects their health and causes extreme trauma to them. We
also find that Gosadans, by and large, have not been able to
fulfill the purpose for which they were established. The fact that
the animals which were made over to Gosadans have
disappeared speaks volumes about their working. The capital city
of Delhi should be a show window for the world. The stray cattle
on the roads gives a wrong signal. „Cattle and other animals
which are let loose on the roads by their owners and also
responsible for filth, squalor and outbreak of diseases.”
20. At this stage, to thoroughly understand the legal position of suits
instituted under the Fatal Accidents Act, 1855, pertinent observations of the
Supreme Court in the case of Shyam Sunder v State of Rajasthan5 need to
be considered. In the said case, the controversy was qua the recovery of
damages under the Fatal Accidents Act, 1855, where the deceased, a
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storekeeper for the PWD, died after jumping from a truck that caught fire
due to frequent radiator overheating. The widow of the deceased filed a civil
suit against the State of Rajasthan for damages, alleging that the driver‟s
negligence in operating an unroadworthy truck, caused her husband’s death.
The Trial Court found the act of the driver in putting the truck on the road,
when it was not roadworthy, as negligent and the State was held vicariously
liable for the act of its employee. The State appealed in the High Court
where it was held that the plaintiff was not successful in proving negligence
and the mere fact that the truck caught fire was not enough evidence to
prove negligence.
21. In Shyam Sunder, the Supreme Court has explicated the principle of
res ipsa loquitur by stating that the maxim is resorted to when an accident is
shown to have occurred and the cause of the accident is primarily within the
knowledge of the defendant. It was also held that the cause of the accident
being unknown does not prevent the plaintiff from recovering the damages
if proper inference could be drawn from the known circumstances that it
was caused by the negligence of the defendant. The fact of the accident may,
sometimes, constitute evidence of negligence and then only the maxim res
ipsa loquitur gets attracted.
22. The Supreme Court in paragraphs No. 9, 15, 16 and 20 has held as
under:-
“9. The main point for consideration in this appeal is, whether the fact
that the truck caught fire is evidence of negligence on the part of the
driver in the course of his employment. The maxim res ipsa loquitur is5
1974 1 SCC 690Signature Not Verified Signature Not Verified
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resorted to when an accident is shown to have occurred and the cause
of the accident is primarily within the knowledge of the
appellant/defendant/defendant. The mere fact that the cause of the
accident is unknown does not prevent the plaintiff from recovering the
damages, if the proper inference to be drawn from the circumstances
which are known is that it was caused by the negligence of the
appellant/defendant/defendant. The fact of the accident may,
sometimes, constitute evidence of negligence and then the maxim res
ipsa loquitur applies.
……
15.Res ipsa loquitur is an immensely important vehicle for importing
strict liability into negligence cases. In practice, there are many cases
where res ipsa loquitur is properly invoked in which the
appellant/defendant/defendant is unable to show affirmatively either
that he took all reasonable precautions to avoid injury or that the
particular cause of the injury was not associated with negligence on his
part. Industrial and traffic accidents and injuries caused by defective
merchandise are so frequently of this type that the theoretical
limitations of the maxim are quite overshadowed by its practical
significance [ Millner: “Negligence in Modern Law”, 92] .
16. Over the years, the general trend in the application of the maxim
has undoubtedly become more sympathetic to plaintiffs. Concomitant
with the rise in safety standards and expanding knowledge of the
mechanical devices of our age, less hesitation is felt in concluding that
the miscarriage of a familiar activity is so unusual that it is most
probably the result of some fault on the part of whoever is responsible
for its safe performance (see John G. Fleming, The Law of Torts, 4th
Edn., p.260).
…..
20. It was, however, argued on behalf of the respondent that the State
was engaged in performing a function appertaining to its character as
sovereign as the driver was acting in the course of his employment in
connection with famine relief work and therefore, even if the driver was
negligent, the State would not be liable for damages. Reliance was
placed on the ruling of this Court in Kasturilal Ralia Ram Jain v. State
of Uttar Pradesh [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2
SCJ 318] where this Court said that the liability of the State for a tort
committed by its servant in the course of his employment would depend
upon the question whether the employment was of the category which
could claim the special characteristic of sovereign power. We do not
pause to consider the question whether the immunity of the State forSignature Not Verified Signature Not Verified
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injuries on its citizens committed in the exercise of what are called
sovereign functions has any moral justification today. Its historic and
jurisprudential support lies in the oft-quoted words of Blackstone: [
Blackstone, Commentaries (10th Edn. 1887)]
“The king can do no wrong … The king, moreover, is not only
incapable of doing wrong, but even of thinking wrong; he can
never mean to do an improper thing; in him is no folly or
weakness.”
In modern times, the chief proponent of the sovereign immunity
doctrine has been Mr Justice Holmes who, in 1907, declared for a
unanimous Supreme Court [Kawananakoa v. Polyblank, 205 US 349,
353.] :
“A sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical
ground that there can be no legal right as against the authority
that makes the law on which the right depends.”
Today, hardly anyone agrees that the stated ground for exempting the
sovereign from suit is either logical or practical. We do not also think it
necessary to consider whether there is any rational dividing line
between the so-called sovereign and proprietory or commercial
functions for determining the liability of the State.”
23. The Supreme Court in Municipal Corpn. of Delhi v. Subhagwanti, 6
also discussed the provisions of the Fatal Accidents Act while adjudicating
whether the High Court incorrectly applied the doctrine of res ipsa loquitur
in the first appeal. The Court held that though the plaintiff generally has the
onus of proving negligence, an exception exists when the incident occurred
under the defendant’s control, and such an event wouldn’t normally occur
without negligence, either by commission or omission. The pertinent
observations made by the Supreme Court read as under: –
“4. The main question presented for determination in these appeals is
whether the appellant was negligent in looking after and maintaining6
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the Clock Tower and was liable to pay damages for the death of the
persons resulting from its fall. It was contended, in the first place, by
Mr Bishen Narain on behalf of the appellant that the High Court was
wrong in applying the doctrine of res ipsa loquitur to this case. It was
argued that the fall of the Clock Tower was due to an inevitable
accident which could not have been prevented by the exercise of
reasonable care or caution. It was also submitted that there was
nothing in the appearance of the Clock Tower which should have put
the appellant on notice with regard to the probability of danger. We are
unable to accept the argument of the appellant as correct. It is true that
the normal rule is that it is for the plaintiff to prove negligence and not
for the defendant to disprove it. But there is an exception to this rule
which applies where the circumstances surrounding the thing which
causes the damage are at the material time exclusively under the
control or management of the defendant or his servant and the
happening is such as does not occur in the ordinary course of things
without negligence on the defendant’s part. The principle has been
clearly stated in Halsbury’s Laws of England, 2nd Edn., Vol. 23, at p.
671 as follows:
“An exception to the general rule that the burden of proof of the
alleged negligence is in the first instance on the plaintiff occurs
wherever the facts already established are such that the proper and
natural inference immediately arising from them is that the injury
complained of was caused by the defendant’s negligence, or where the
event charged as negligence tells its own story of negligence on the
part of the defendant, the story so told being clear and unambiguous.
To these cases the maxim res ipsa loquitur applies. Where the doctrine
applies, a presumption of fault is raised against the defendant, which, if
he is to succeed in his defence, must be overcome by contrary evidence,
the burden on the defendant being to show how the act complained of
could reasonably happen without negligence on his part.”
In our opinion, the doctrine of res ipsa loquitur applies in the
circumstances of the present case. It has been found that the Clock
Tower was exclusively under the ownership and control of the
appellant or its servants. It has also been found by the High Court that
the Clock Tower was 80 years old and the normal life of the structure
of the top storey of the building, having regard to the kind of mortar
used, could be only 40 or 45 years. There is also evidence of the Chief
Engineer that the collapse was due to thrust of the arches on the top
portion and the mortar was deteriorated to such an extent that it was
reduced to powder without any cementing properties. It is also not the
case of the appellant that there was any earthquake or storm or any
other natural event which was unforeseen and which could have been
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the cause of the fall of the Clock Tower. In these circumstances, the
mere fact that there was fall of the Clock Tower tells its own story in
raising an inference of negligence so as to establish a prima facie case
against the appellant.
***
7. Section 1 of the Fatal Accidents Act, 1855 (Act 13 of 1855) reads:
“Whenever the death of a person shall be caused by wrongful act,
neglect or default, and the act, neglect or default is such as would (if
death had not ensued) have entitled the party injured to maintain an
action and recover damages in respect thereof, the party who would
have been liable if death had not ensued shall be liable to an action or
suit for damages, notwithstanding the death of the person injured, and
although the death shall have been caused under such circumstances as
amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband,
parent and child, if any of the person whose death shall have been so
caused, and shall be brought by and in the name of the executor,
administrator or representative of the person deceased; and in every
such action the court may give such damages as it may think
proportioned to the loss resulting from such death to the parties
respectively, for whom and for whose benefit such action shall be
brought; and the amount so recovered, after deducting all costs and
expenses, including the costs not recovered from the defendant, shall be
divided amongst the before mentioned parties, or any of them, in such
shares as the Court by its judgment or decree shall direct.”
This section is in substance a reproduction of the English Fatal
Accidents Acts, 9 and 10 Vict. Chapter 93, known as the Lord
Campbell’s Acts. The scope of the corresponding provisions of the
English Fatal Accidents Acts has been discussed by the House of Lords
in Davies v. Powell Duffryn Associated Collieries Ltd. [(1942) AC 601]
At p. 617 of the Report Lord Wright has stated the legal position as
follows:
“It is a hard matter of pounds, shillings and pence, subject to the
element of reasonable future probabilities. The starting point is the
amount of wages which the deceased was earning, the ascertainment of
which to some extent may depend upon the regularity of his
employment. Then there is an estimate of how much was required or
expended for his own personal and living expenses. The balance will
give a datum or basic figure which will generally be turned into a lump
sum by taking a certain number of years’ purchase. That sum, however,Signature Not Verified Signature Not Verified
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has to be taxed down by having due regard to uncertainties, for
instance, that the widow might have again married and thus ceased to
be dependent, and other like matters of speculation and doubt.”
24. In addition to the aforesaid decisions, the statutes governing the
appellant/defendant, in particular Section 42 of the DMC Act, envisage the
duty to ensure the safe condition of roads. Moreover, under Section 418, the
duty of impounding certain animals is vested in the appellant/defendant if
and when found abandoned, roaming, or tethered on any street or public
place.
25. More importantly, the legislative intent behind the enactment of the
Fatal Accidents Act in Britain and subsequently during the colonial period
in India was to make an exception to the principle as exemplified in maxim
actio personalis moritur cum persona, i.e., a personal action dies with a
person. The aforenoted statute was envisaged to make a statutory exemption
to extend the benefit of a substantive right and its redressal by way of
damages to identified legal representatives of the deceased who died due to
wrongful act, neglect, or default of another person.
26. Furthermore, the death of the victim due to an actionable wrongful
act of another is amenable to the law of torts even de hors the Fatal
Accidents Act. The jurisprudence of torts in independent India has departed
from the strict interpretation of the right of remedy dying with the death of
the person. It is instead woven in the fabric of the Indian values of welfare
State and the social obligation of the State to provide immediate relief to the
people affected by natural disasters/calamities and/or from the failure of
public authorities to abide by the duty of care vested in it.
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27. In light of the aforesaid legal position exposited by the Courts and the
pertinent statutes, the Trial Court has rightly held that the mere existence of
a duty of care and the factum of death would establish negligence on the
part of the appellant/defendant.
28. A perusal of the copy of the post-mortem report exhibited as PW3/1
explicates that as per medical opinion the cause of death has been opined to
be “cerebral damage as a result of blunt force impact” and all injuries are
observed to be “antemortem in nature and possible in manner as alleged”
by the respondents/plaintiffs. The copy of MLC exhibited as mark X-1 also
indicates that the deceased was taken to the hospital with an alleged history
of being hit by a cow as per the patient‟s attendants. The inference drawn
from the aforenoted evidence connotes that the death was, indeed, a result of
a fatal cow attack. Thus, the factum of death is sufficiently proved by the
material placed on record.
29. Therefore, the claim of the appellant/defendant that no specific
findings have been rendered by the Court indicating that the
appellant/defendant was in default or was negligent, falls short in light of the
categorical finding rendered by the Trial Court that respondents/plaintiffs
were able to evidently establish the factum of death due to a fatal attack by
stray cattle with adequate testimonies and documentary evidence, including
the postmortem report, medical records, and eyewitness testimonies.
30. The Trial Court also rightly opined that the appellant/defendant,
despite contesting the facts, failed to disprove the existence of statutory duty
and obligation on the corporation to maintain public safety by controlling
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stray animals and restraining them from roaming on public streets. More
importantly, the Trial Court unerringly inferred that the reports of
impounding of stray cattle in the year 2008, adduced by the
appellant/defendant, further, corroborated the imputation of negligence on
their part, indicating an indisputable duty in ensuring stray cattle are
dissuaded from roaming on public street.
31. Thus, the Trial Court appropriately applied the legal principles of tort,
negligence, and dependency in determining liability and awarding
compensation, ensuring that the respondents/plaintiffs were granted
adequate redressal to ameliorate the loss of financial support and the
emotional toll suffered due to the untimely death of a breadwinner.
32. Therefore, the impugned judgment and findings rendered by the Trial
Court do not suffer from any material illegality or perversity.
33. Accordingly, the instant appeal stands dismissed along with the
pending application.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
DECEMBER 24, 2024/mjo
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