Judgment:
RAJIV SAHAI ENDLAW, J:
1. The two petitioners being husband and wife, by this writ petition inter alia claim compensation in the sum of Rs.15,00,000/- from the respondents MCD and the Police for the death of their minor son Mohd. Asif aged about nine years owing to the negligence of the respondents. It is the case of the petitioners that their said son died on 4th January, 2007 by falling in an open manhole in a vacant plot meant for Sulabh Shauchalaya situated near Nissariya Masjid Jhuggi, D-Block, New Seema Puri, Delhi, near the house of the petitioners. Negligence is averred on the part of the MCD in not covering the manhole inspite of the same being situated in front of a populated residential area inhabited also by children. It is claimed that the deceased was studying in Class-V in a Madarsa and the petitioner No.1 being the father of the deceased works as a mason earning Rs.6,000/- to Rs.7,000/- per month. Notice of the petition was issued. Since the petitioners had themselves not placed before this Court any document to establish the age of the deceased or that he was studying in a School, while issuing notice, it was recorded that the consequences thereof will be examined at the time of final decision.
2. Counter affidavits have been filed by the respondents MCD and the Police. The respondent No.1 MCD in its counter affidavit while not disputing the incident and the death has contended that earlier the toilet block where the manhole is situated was maintained and managed by Sulabh International; however, the same was handed over to the MCD on 20th July, 2006 in a non functional and locked condition; that at the time of the incident there was no toilet block in existence and only a septic tank with two manholes and a boundary wall with a locked iron gate to prevent use thereof; it is further contended that a board was also displayed at the site proclaiming “not for use”. It is contended that the deceased appeared to have trespassed on to the said plot having the manhole and since the deceased himself was wrongfully on the property, no negligence can be attributed to the respondent No.1 MCD.
3. Though the petitioners in their petition had contended that it was the Police who with the help of the Fire Brigade pulled out the deceased from the manhole, the Police in its counter affidavit though admitted the incident but has denied so. The respondent No.2 Police also pleads having immediately reached the site upon receiving the information and upon being told that the deceased had been taken by his father to the hospital, having registered an FIR of offence under Section 304-A of the IPC and of having conducted the postmortem and having proceeded in accordance with law.
4. This Court vide order dated 10th March, 2010 requisitioned the file of FIR No.8/2007 of P.S. Seema Puri pending of the Court of Mr. Lalit Kumar, Metropolitan Magistrate, Karkardooma District Court, Delhi which has been received. The counsels for the respondents have been heard and the written arguments along with judgments filed by the counsel for the petitioners perused.
5. In view of the plethora of case law which has developed on the subject, need is not felt to discuss the law in detail. Suffice it is to refer to Ram Kishore Vs. MCD 2007 VII AD (Delhi) 441 and to Swarn Singh Vs. Union of India MANU/DE/0791/2010 discussing the legal position in detail.
6. I find the facts of the present case to be similar to those of Sh. Kishan Lal Vs. Govt. of NCT of Delhi MANU/DE/8177/2007; that was also a case of a child of seven years falling in an open manhole - in that case, till the date of the incident, managed by Sulabh International. This Court in that case held that the respondents MCD and Sulabh International failed to demonstrate how death could have reasonably happened without negligence on their part; on the basis of the opinion of the doctor that the cause of death was asphyxia as a result of drowning and from the factum of discovery of the body, by local residents, in the manhole near the lavatory which the child had visited and from the factum that if the manhole was covered the child would not have been found in it, inference of negligence was deduced; the plea of contributory negligence was negated. A perusal of the file of the Court of the Metropolitan Magistrate requisitioned in this Court shows that the postmortem report in the present case also records the cause of death as asphyxia due to ante mortem drowning. No external ante mortem injury was found on the body. The factum of the deceased having fallen and having been pulled out from the manhole is not disputed.
7. As far as the plea of the respondent No.1 MCD of the deceased having trespassed on the plot with the open manhole is concerned, I find on the file of the Court of the Metropolitan Magistrate requisitioned in this court photographs of the site which though show the plot as bounded by a wall but without any gate. Thus, the possibility of children playing on the said plot which was admittedly in disuse as a toilet, ought to have been in the comprehension of the respondent No.1 MCD. Moreover, it is totally inexplicable as to why the plot and / or manholes were left uncovered. Thus, a case of negligence on the part of the respondent MCD is made out.
8. The next question is as to the quantum of compensation. The counsel for the respondent No.1 MCD has urged that there is no evidence of the age of the deceased in the present case and no proof of income of the petitioner No.1. However, in the contemporaneous documents of the date of the incident including the postmortem report, the age of the deceased is noted as eight years. Though no test for age appears to have been done but the doctors conducting the postmortem have not noted adversely with respect to the age of the deceased as they would have done had there been any inconsistency in the age disclosed and the examination conducted by them. Moreover, the parents of the deceased within a few hours of the demise of their child cannot be held to have disclosed the age to be anything else than it was.
9. This Court in Kishan Lal (supra) where the age of the deceased was seven years and where the father of the deceased was shown to be earning Rs.4,000/- per month and where the incident occurred in 2005, awarded compensation of Rs.5,13,801/- with simple interest @ 6% per annum with effect from the date of the petition till the date of payment. In the absence of any proof of income of the father, this Court in Ram Kishore (supra) had applied a formula of minimum wages. Applying the aforesaid formula, the standard compensation for non pecuniary loss taken as Rs.50,000/- and adjusted according to inflation in 2007 would be Rs.1,71,933/- and the compensation for pecuniary loss of dependency also taken on the basis of minimum wages could be Rs.5,25,690/-. Accordingly, the petitioners are found entitled to total compensation of Rs. 6,97,623/-.
10. The writ petition is accordingly allowed. The respondent No.1 MCD is directed to pay compensation of Rs.6,97,623/- with interest @ 6% per annum from 1st August, 2007 when the petition was filed till the date of payment.
11. Out of the aforesaid amount a sum of Rs.1,00,000/- be released immediately by cheques of equal amount of Rs.50,000/- in the name of each of the petitioners. The balance amount be forwarded in the form of a fixed deposit with a nationalized bank in the joint names of the petitioners to the Delhi Legal Services Authority (DLSA). The Secretary, DLSA is requested to after interacting with the petitioners release the said amount and / or make provision for release thereof after adjudging the requirement of the petitioners and their other children if any.
12. The file of the Metropolitan Magistrate requisitioned in this Court be returned forthwith.
No order as to costs.