Veena Devi v. Govt. of NCT of Delhi & Ors.

Delhi High Court · 20 Aug 2018 · 2018:DHC:5242

Vibhu Bakhru

W.P.(C) 10457/2016

2018:DHC:5242

constitutional petition_dismissed Significant

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The Delhi High Court dismissed a writ petition seeking compensation for a fatal accident caused by alleged municipal negligence, holding that such tort claims involving disputed facts must be pursued in civil courts, not under writ jurisdiction.

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W.P.(C) 10457/2016
HIGH COURT OF 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 O R D E R 20.08.2018
VIBHU BAKHRU, J

JUDGMENT

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 2018:DHC:5242 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

Veena Devi v. Govt. of NCT of Delhi & Ors.

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