Shiyramsharma Vs. Municipal Corporation of Delhi - Court Judgment

Excerpt:
torts--negligence--ingredients to be proved and duty of care of occupier of premises towards visitor--discussed.;plaintiff has claimed damages from the defendant (mcd) on the ground of negligence. the plaintiff's son aged about 7 years died by falling accidentally into an uncovered sewer as no proper arrangements were made by the employees of the defendant to cover the sewer with lids.;decreeing the suit, the court;in an action for negligence the plaintiff has to prove that the defendant was under a duty to take reasonable care towards the plaintiff to avoid the damage complained of and that there was a breach of duty on the part of the defendant. it is also a cardinal principal that an occupier of a premises has a duty of care to prevent physical harm to a visitor being caused by defects or dangers in his premises. the essential factors in determining the liability for tortious act of negligence is whether the damages are of such a kind as the reasonable man would have foreseen.;similarly, in the present case, although the existence of the conduit pipes by itself was not a dangerous thing for which any protection was required to be taken by the defendant but existence of manholes on the said conduit pipes required the defendant to see that the said manholes remain covered with such lids which could not easily be opened and if at any time the lid or the cover of the manhole was removed the defendant was legally bound to set the thing right by having the cover replaced on the manhole. the fact was known to the employees of the defendant that children living in the vicinity have been playing around the said conduit pipes and in case any manhole had been left uncovered, there was every possibility of accident taking place. the leaving of a manhole uncovered in such circumstances was a negligent act on the part of the employees of the defendant. - - (8) in an action for negliance the plaintiff has to prove that the defendant was under a duty to take reasonable care towards the plaintiff to avoid the damage complained of and that there was a breach of duty on the part of the defendant. an occupier is liable if he has the knowledge of the trespasser's presence or its likelihood in his premises and where an occupier himself creates a danger on his land he was bound to give consideration to the possibility of protecting potential trespassers if he knew of facts which showed a substantial chance that they might come that way and fail to see or realise the danger.p.k. bahri, j.(1) this is a suit for recovery of damages. it is averred in the plaint that sanjeev kumar, son of the plaintiff, aged about seven years, was playing near the water works sewer near aruna nagar, majnu ka tilla, delhi and had fallen into the open sewer of chandrawal water works no. 2 belonging to the defendant and had died in the said sewer. the dead body was recovered and handed over to the plaintiff after the post-mortem was conducted. it is pleaded that the death of the child had occurred due to gross negligence of the employees of the defendant inasmuch as they had kept uncovered the said sewer and had also not made any proper arrangement for the safety of the public by keeping the sewer covered with lid. it is pleaded that the average age of the family members of the plaintiff is about 60 years and the plaintiff's son would have started earning after attaining the age of 18 years and would have supported the plaintiff and other family members from the income which he would have earned for about 50 years @. rs. 1,000.00 per month and it is pleaded 'that rs. 2,25,000.00 would have been made available by the said child throughout the life for taking care of his parents. however, the plaintiff claims rs. 1,00,000.00 as damages and rs. 15,000.00 as interest.(2) suit is contested by the defendant-municipal corporation of delhi. it is controverter that the death of the child has occurred due to any negligence of the employees of the defendant. it is pleaded that there exist five masonry conduits in the stretch of approximately 2.8 kilometers which carry raw 392 water from- wazirabad' to chandawal water works and for purposes of security of the said condaits the staff is deputed round the clock and the child in question had fallen through a manhole in the said conduit and had died. it is pleaded that the lid of the said manhole was taken off by some contractor who had put a rubber hose pipe in the said condult through the manhole for taking water for construction purposes-.. it was also averred that the residents of nearby huts had been also at times found taking water unauthorisedly from the and conduit despite being warned by the security '-.staff of the municipal corporation of delhi. it is also pleaded that the suit is liable to be dismissed for want of notice required to be served under section 478 of the delhi municipal corporation act. in replication lit iis pleaded that a proper .notice under section 80 of the code of civil procedure has been served on the municipal corporation of delh' which meets with the requirements of notice required to be served under section 478 of the delhi municipal corporation act on merits, it is reiterated that the lid of the manhole was negligently removed and the child while playing in the said area accidentally 'fell in the conduit. following issues were framed: 1. whether' master sanjeev kumar aged 7 years died by falling into the open sewer of chandrawal water works no. 2 which belongs to the pendant 2. whether the death was caused due to the negligence of the defendant or its employees? 3. to what amount of the damages is the plaintiff' entitled? 4. relief.(3) no other issue was claimed by the parties which so recorded in the order dated february 28, 1986. issues no. 1 & 2 would be dealt with together.(4) plaintiff through public witness 1 si om dutt. who brought the daily diary register of police station civil lines of the relevant period proved on record the dd report, copy of which is ex. public witness 1/1 and the report of the investigating officer, copy of which is ex. public witness 1/2. which disclose that at about 6 pm a report was received with the police control room that one child had fallen in the sewer of chandrawal water works 393 no. 2. even the witnesses examined by the defendant had admitted that a child had fallen in the said conduit through a manhole and had died. plaintiff also examined public witness 4 mahant shatru. ghan dass, who claimed himself to be a sarpanch of the village majnu ka tila, who deposed that he and one are devi public witness 6, resident of the same village, who is a social worker, were going towards timarpur and had seen the children playing near the said conduit pipes and a noise was raised by the children at about 5.30 pm that plaintiff's son had fallen in the manhole of the said conduit. they have been subjected to cross-examination in detail but nothing came out from their cross-examination to show that in fact, these persons had not witnessed the falling of the child in the said conduit. even otherwise this fact is not disputed before me now in arguments stage that the plaintiff child. sanjiv kumar aged about seven years had fallen in the manhole of the said conduct and had died. the death certificate of the child has been proved from the statement of public witness 3 and the same is ex. pw 3/1. the date of birth was proved through the statement of pw2, who brought the record of the school where the said child was studying at the relevant time. so, i hold that the plaintiff's young child had died on account of falling through a manhole in the conduit belonging to the defenda,nt, which carries raw water from wazirabad to chandrawal water works no. 2.(5) the, short question which then arises for decision is whether the defendant can be held to be negligent in maintaining the said conduits am', on account of the said negligence the death of this child had occurred. it is stated by the plaintiff's said two witnesses and also by the plaintiff that the children of the said locality have been often playing near the said conduits without any hindrance from anyone and there was no fencing put by the corporation around those conduits. it is pertinent to metion that in the written statement no plea has been taken that there was put any fencing by the corporation around that area which could put the public to some warning that it is dangerous turn the public or particularly the children to come to that area.(6) however, in the rebuttal the defendant had examined dwi rangal ram, security officer. dw2 c.l. goel. assistant engineer (construction), dw3 a.s'. narang executive enegineer, water supply and sewage disposal undertaking and dw4 dhiraj singh. chowkidar. they had filed their affidavits as part of their examination-in-chief while they were 394 cross-examined in court. what has come out from their affidavits is that barbed fencing wire had been in existence around the .said area and certain boards had been pvt up warning the public from entering the said area. as already mentioned by me above, there was no plea taken in the written statement that any barbed wire fencing had been in existence around the said area so the defendant cannot be allowed to set up a new case in evidence. it has also come out from their statements in cross-examination that after the aforesaid incident, now walls have been constructed around that area so that people may not come into the said area. it appears that the municipal corporation of delhi had put up two chowkidars who remain on duty for 8 hours at a time and they had noticed that the lid of the manhole stood lilted and had been the people gathered after the child had fallen in the said manhole. however, it has come out that the manhole cover was made of r.c.c. and was weighing about 60 kgs and presumably no child could have been able to lift the said cover from the manhole. it is pertinent to mention that if the chowkidars of the defendant 'had noticed the said cover of the manhole being lifted on their routine patrolling then there is no reason why the chowkidars had not put back the cover on the manhole so that no accident could occur. it has come out from e their statements that children have been found playing near those conduits on earlier occasions also. the learned counsel for the plaintiff has contended that it was the duty of 'the employees of the defendant to have kept the manhole covered with proper lids at all times as the employees of the defendant knew that the children have been coming and playing in that area and as the cover of the manhole was removed by some unknown person the chowkidars of the said area were grossly negligent in not taking steps for putting the cover on the manhole and because of this negligence on their part the plaintiffs son had fallen in the manhole and had died.(7) the learned counsel for the defendant, en the other hand, l'as contended that the plaintiffs son has no business to be available in that area and thus, was a tresspasser and the corporation owed no duty towards the said child and the corporation had taken all possible steps to thwart any efforts of any person to meddle with the said conduits and could not have expected any child to play over the conduit and fall in the manhole.(8) in an action for negliance the plaintiff has to prove that the defendant was under a duty to take reasonable care towards the plaintiff to avoid the damage complained of and that there was a breach of duty on the part of the defendant. it is also a cardinal principle that an occupier of a premises has a duty of care to prevent physician harm to a visitor being caused by defects or dangers in his premises. the essential factor in determining the liability for fortious act of negligence is whether the damages are of such a kind as the reasonable man would have foreseen, in law of t arts by ramaswamy iyer, 8th edition, page 360, the learned author has mentioned that what iis obvious to an adult will not be so to a child. besides, the measure of protection due to children is not determined by the nature or appearance of the danger but also by the chances of their access to it and the steps reasonably necessary to prevent entry into the premises the author at page 362 has again observed that while the occupier is not under the same duty of care which lie owes to a visiter, he owes a trespasser a duty to take such steps as common sense or common humanity would dictate to exclude or to warn, or otherwise, within reasonable and practicable limits, to reduce or avert danger. an occupier is liable if he has the knowledge of the trespasser's presence or its likelihood in his premises and where an occupier himself creates a danger on his land he was bound to give consideration to the possibility of protecting potential trespassers if he knew of facts which showed a substantial chance that they might come that way and fail to see or realise the danger. it was also opined that the duty to a child trespasser is not different in principle from that to an adult tresspasser. but what is a danger to the one may not be so to the other and the occupier may be bound to take greater precautions to avoid dangers to straying children than in the case of adults. the learned author at page 365 observed that it may be observed from 'the above summary of the case law that the liability of an occupier to a trespasser cannot be fitted into any legal formula or pattern but depends on the application of the test of due care to different sets of facts.(9) the supreme court in cherubin gregory vs . state of bihar. : [1964]4scr199 , also has laid down that a trespasser is not an outlaw, a caput lupinem. the mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the 396 trespasser. it was further laid down that it was no doubt, true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as setting a trap or a naked live wire of high voltage with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespasser. in a recent case of house of lords in british railway board v. herrington, (1972) all er 749 the position of a child trespasser was examined and explained. in the said case a boy aged six years went with two brothers to play in a field which was national trust property open to the public and frequented by children. through the field ran a path which led to an electrified railway track owned by the british railways board. shortly before reaching the line of a four foot high chain link fence, which had been erected to border the railway track, the path turned to the right and led to a footbridge over the track. where the path turned to the right, however, there was a further short stretch of trodden path which continued straight up to the fence. at the point where the trodden path reached it, the fence had become detached from one of the supporting posts and pressed down to within ten inches of the ground. the evidence showed that the fence had been in that condition for some time and that people had been using the gap to take a short cut across the railway line. there was also evidence that employees of the board had reported some seven weeks before the accident, children had been seen on the stretch of railway line but no action had been taken by the board in consequence of the report. after playing in the field for some time with his brothers, the plaintiff wandered off, crossed the gap in the fence and walked on to the railway line where he was severely injected by the electrified rail. in a claim for damages, the defense taken was that railway was not liable to the child for being a trespasser on the railway track and railway did not owe any duty of care nor railway had shown any reckless disregard for his presence on the track. after examining the case law exhaustively and various authoritative books on the subject the court held that although as a general rule a person who trespassed on the land of another did so at his own risk and the occupier of the land did not owe him the common duty of care owed to persons lawfully on the land, it did not follow that an occupier was never in any circumstances under a duty to take steps to protect e. trespasser from potential danger nor was the occupier's duty limited to refraining from acting with the deliberate intention of doing harm to the trespasser actually on the land or with reckless disregard of his presence there. it was further held that where an occupier knew that there were trespassers on his land or knew of circumstances that made it likely that trespassers would come on to his land and also knew of physical facts in relation to the state of his land or some activity carried out on the land which would constitute a serious danger to persons on the land who were unaware of those facts, the occupier was under a duty to take reasonable steps to enable the trespasser to avoid the danger. that duty would only arise in circumstances where the likelihood of the trespasser being exposed to the danger was such that, by the standard of common sense and common humanity, the occupier could be said to be culpable in failing to lake reasonable steps to avoid the danger. the railway board was held to be culpable in the said case.(10) similarly, in the present case there was no fencing around the conduit pipes and the fact was known to the employees of the defendant that young children have been coming and placing around those conduct pipes and that there existed manholes on these pipes which normally were expected to be covered with lids, yet a particular manhole on that conduit pipe remained uncovered which resulted in plaintiff's son falling in that manhole which caused his death. so, it is evident that employees of the defendant were grossly negligent in keeping that manhole uncovered at the relevant time. mere fact that the corporation had taken steps to put security guards around the said area. the same does not absolve the defendant of its liability for the negligence of those security guards.(11) the learned counsel for the defendant has cited vijay shanker vs . union of india. .(3) in this case a child aged 2-1/2 years had come on railway track and was injured by a running train. a contention was raised that as there were residential houses located in the vicinity. the local railway ought to have put some fencing around the railway track. the damages were claimed on two grounds that as the residential houses had come up in the vicinity of the railway track and the fact was known to the railway authorities that children are likely to cross the said railway track although there was no footpath running. close to the railway track, the railway authorities ought to have put up the fencing so that the residents including the children of the houses located in the vicinity should not be 398 able to come on the railway track to face the possibility of suffering any accident by any running train on the said railway track and secondly, it was urged that railway train is a dangerous thing which was being brought on the railway track near the said residential houses, the railway authorities ought to have put some warning and taken steps that no unwary child meets with an accident by a running train. both these pleas were rejected by the high court. it was held that the railway did not owe any legal duty to put up any fencing around the railway track and the railway train by itself is not a dangerous thing for which any responsibility was cast on the railway authorities to take any steps so that no accident took place by running of the railway train on the said railway track.(12) this case would not apply to the facts of the present case because an owner or occupier of land or premises owes no obligation or duty to a trespasser but he must not set up a trap for him or cause willful injury to him.(13) i may refer to harris v. birkenhead corporation & another (1975) 1 all er 341 in the said case a for damages was brought as a child had entered a deserted house in occupation of the local authority and had suffered injuries. in fact it was found that the local authority, which was deemed to be in possession of a particular house, had allowed the house to become ruinous on account of activities of vandals and the local authority had not taken any steps for securing the said house so that the children or occupiers living in the vicinity may not enter the said house. it was also known to the authority that children have been entering the said house but still no steps were taken to secure the house in order to bar the entries of the trespasser including the children. a child had entered the said house and had received injuries as he had fallen out of a window which was in a derelict condition. the court held the local authority guilty of negligence and awarded damages and it was laid down that as an occupier the local authority was liable for breach of duty to the infant plaintiff since it knew that if such property was left unoccupied it was liable to be vandalised and put in a dangerous condition and having been put on notice that the house was likely to be empty in the near future, it was in a position to take the steps which a reasonable and humane occupier would have taken, to secure the house in order to prevent the risk of a child trespasser going into it.(14) similarly, in the present case, although the existence of the conduit pipes by itself was not a dangerous thing for which any protection was required to be taken by the defendant but existence of manholes on 'the said conduit pipes required the defendant to see that the said manholes remain covered with such lids which could not easily be opened and if at any time the lid or the cover of the manhole was removed the defendant was legally bound to set the thing right by having the cover replaced on the manhole. the fact was known to the employees of the defendant that children living in the vicinity have been placing around the said conduit pipes and in case any manhole had been left uncovered, there was every possibility of accident taking place. the leaving manhole uncovered in such circumstances was a negligent act on the part of the employees of the defendant.(15) in the written statement the plea taken was that one cotractor, who was given some contract of construction nearabout, was found taking water from a manhole after removing the cover. although this fact has not been proved in evidence, yet if this fact had come to the notice of the security guards it was incumbent upon the security guards to have immediately taken steps to cover the said manhole. it appears that the manhole was left uncovered for some period during which the child of the plaintiff while playing along with other children had fallen in that manhole and met his and. so. hold in the present case that the municipal corporation of delhi by leaving the said manhole uncovered had brought about a trap to the unway children resulting in death of the plaintiff's son and i hold that the death was due to negligence of the employees of the defendant. issues are decided in favor of the plaintiff issue no. 3(16) as far as damages are concerned, the plaintiff has claimed rs. 1,00,000.00 as damages. plaintiff has deposed about the average life span of family members and has stated that his son on becoming major would have earned at least rs. 1000.00 per month and would have supported the plaintiff and plaintiff's wife in their old age. the claim of rs. 1.00,000' in the circumstances as damages is quite reasonable. the supreme court in c. k. subramonia iyer and others. vs . kunhikuttan nair & others, : [1970]2scr688 ., has laid down that there cam be no exact uniform rule for measuring 400 the- value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. the life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor .since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. in assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable and as a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. in addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. so, i hold that the plaintiff is entitled to have damages of rs, 1,00.000. plaintiff had served a notice but has not proved on record that any notice had been served claiming interest on the damages for the period prior to the filing of the suit. so. this issue is decided accordingly in favor of the defendant relief(17) suit is liable to be decreed for rs. 1.00.000/ as damages(18) 1. hence, decree the suit for recovery of rs. 1.00.000.00 with proportionate costs in favor of the plaintiff and against the defendant with interest @ 9% per annum from the date of the suit till realasation.