Usha and Others v. Chandigarh Municipal Corporation Through Its Municipal Commissioner and Others

VINOD S. BHARDWAJ, J. (ORAL)

¶1The present writ petition has been filed for seeking issuance of a direction to the respondents to pay compensation of Rs.25 lakhs to the petitioners on account of death of Shri Naresh Kumar allegedly due to negligence on the part of the respondents.

¶2Learned counsel appearing on behalf of the petitioners contends that the petitioners are residents of city beautiful. On the fateful day of

11.07.2019, the petitioner no.1 lost her husband whereas petitioners No.2 to 7 not only lost their father but a guide, philosopher and mentor at an age of 53 years. He submits that said Naresh Kumar was engaged in the vocation of three wheeler auto driving in Chandigarh and was standing outside Government School, Sector-37, Chandigarh waiting for the students/children as he used to pick and drop off the children from their homes to Government School, Sector-37, Chandigarh. On 11.07.2019, between 1.30 Pm to 2.00 PM, when husband of petitioner No.1 and father of respondents No.2 to 7 was waiting for children in front of school in his three wheeler No. CH-04-K-9720, a tree fell down upon his auto, due to which he suffered injuries on his head. He was immediately taken to Government Multi Speciality Hospital, Sector-16, Chandigarh and as his condition was serious, he was referred to PGI, Hospital, Sector-12, Chandigarh but on reaching in the said hospital he was declared as 'brought dead.' She submits that Shri Naresh Kumar died due to untoward incident and without any negligence on his part and solely due to negligence of the respondents. Copy of PMR dated

12.07.2019; medical certificate of cause of death and statements of witnesses recorded by the police are attached with the petition. She submits that DDR No. 063 dated 11.07.2019 was also lodged by police regarding the incident. She further submits that Municipal Corporation, Chandigarh-respondent no.1 has numerous functions to perform under the Punjab Municipal Corporation Act, 1976 but they have failed to do their duties. In support of her case, she refers to Section 45 (d) of the Punjab Municipal Corporation Act, 1976, as per which the planting and care of trees on roadside and

elsewhere comes within the ambit and functions of the corporation but due to the poor maintenance by the respondents in the up keep of the city and lack of care, pruning and maintenance of trees, the incident in question has occurred. The petitioners are hence entitled for compensation for loss of life due to negligence on the part of the respondents in diligently performing their functions. 3 Learned counsel appearing for respondents, by referring to the written statements filed on behalf of respondents No.1-Municipal Corporation, Chandigarh, on behalf of respondent No.2 (the Chief Conservator of Forests) as well as the written statement filed on behalf of respondent N.3-Executive Engineer, Horticulture Department Division, U.T. Chandigarh, submits that in respect of the Eucalyptus trees located within the boundary wall of Government Model High School, Sector 37-C, Chandigarh, permission for removal of 10 such trees was granted in the year 2015. She submits that vide memo No. G-II/15/849 dated 18.11.2015 permission was also sought from respondent No.3 for removal of 10 such trees which was granted and dispatched vide serial No. 2834 dated

09.12.2015 in the dispatch register. She, by referring to the documents placed on record along with the written submissions, submits that it is evident that the respondents had got pruned and removed the trees that were found dangerous to public life and property. She submits that the trees existing at the school in question have been got pruned and removed as per their status and likelihood of creating danger to the life and property in the year 2015 and 2016 leaving no scope for any danger to life from the trees at

the site. She submits that there was no deficiency on the part of answering respondents in performance of its duties as alleged in the petition. She submits that a branch of eucalyptus tree, which is stated to have been fallen, at the best could be termed as an unexpected natural calamity or an Act of God which could not be foreseen by anyone and therefore, the answering respondents cannot be held responsible or liable for the same. She submits that the negligence alleged in the writ petition is not attributable to the respondents and they, in no manner, are liable for the unfortunate accident which led to the demise of Sh. Naresh Kumar and therefore, it is prayed that the present writ petition be dismissed. 4 I have heard learned counsel appearing on behalf of the respective parties and have gone through the documents appended along with the present petition. 5 The Apex Court in the matter of "Sanjay Gupta and others versus State of Uttar Pradesh and others" reported as (2022) 7 SCC 203 has observed as under:-

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¶48In D.K. Basu v. State of W.B. (1997) 1 SCC 416 it was held that the claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the

private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law. is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straitjacket formula can be evolved in that behalf. The relief to redress the wrong for

the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit. Dr Dhawan also relied upon the judgment reported as M.C. Mehta v. Union of India reported as (Shriram-Oleum Gas) (1987) 1 SCC 395, to contend that to justify the award of compensation, the requirement is that infringement must be gross, patent, incontrovertible and ex facie glaring. It is also his submission that the remedy of damages was an extra ordinary remedy where there was gross violation arising out of deliberate action or malicious action resulting in deprivation of personal liberty. It is submitted that the exemplary damages in public law were not to be confused with damages in private law for which private law remedies were available. The damages available for constitutional wrongs were by very nature exemplary and have a limited meaning and were not intended to be compensatory in nature. In support of his contentions, he refers to the judgments of the Supreme Court in Nilabati Behera v. State of Orissa and Indian Council for Enviro-Legal Action v. Union of India reported as

(1993) 2 SCC 746: (1996) 3 SCC 212. In Nilabati Behera v. State of Orissa (supra), it was held by the Supreme Court that it would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation

and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightway that award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this court as well as some other decisions before further discussion of this principle. The compensation is in the nature of "exemplary damages" awarded against the wrongdoer for the breach to its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.

¶49In Indian Council for Enviro-Legal Action v. Union of India, reported as (1996) 3 SCC 212 the Supreme Court had held that even if it is assumed that the Court cannot award damages against the respondents in proceedings under Article 32 of the Constitution of India that would not mean that the Court could not direct the Central Government to determine and recover the cost of remedial measures from the respondents. It was held that Section 3 of the Environment (Protection) Act, 1986

expressly empowered the Central Government to made all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment. The right to claim damages was left by institution of suits in appropriate civil courts and it was held that if such suits were filed in forma pauperis, the State of Rajasthan shall not oppose those applications for leave to sue in forma pauperis. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxx

¶14An appeal against the said order was partly allowed in MCD v. Uphaar Tragedy Victims Assn. reported as

(2011) 14 SCC 481 wherein this Court held as under: (SCC pp. 528-31 & 536. paras 60, 64, 67 & 76) "60. The contention of the licensee is what could be awarded as a public law remedy is only a nominal interim or palliative compensation and if any claimants (legal heirs of the deceased or any injured) wanted a higher compensation, they should file a suit for recovery thereof. It was contended that as what was awarded was an interim or palliative compensation, the High Court could not have assumed the monthly income of each adult who died as being not less than Rs 15,000 and then determining the compensation by applying the multiplier of 15 was improper. This gives rise to the following question: whether the income and multiplier method adopted to finally determine compensation can be arrived at while awarding tentative or palliative compensation by way of a public law remedy under Article 226 or 32 of the Constitution?

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¶64Therefore, what can be awarded as compensation by way of public law remedy need not only be a nominal palliative amount, but something more. 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 tortious liability.. xxxx xxxx xxxx xxxx xxxx xxxx xxxx

¶67Insofar as death cases are concerned the principle of determining compensation is streamlined by several decisions of this Court. (See for example Sarla Verma v. DTC reported as

(2009) 6 SCC 121 ) If three factors are available the compensation can be determined. The first is the age of the deceased, the second is the income of the deceased and the third is number of dependants (to determine the percentage of deduction for personal expenses). For convenience the third factor can also be excluded by adopting a standard deduction of one-third towards personal expenses. Therefore just two factors are required to be ascertained to determine the compensation in 59 individual cases. First is the annual income of the deceased, two-thirds of which becomes the annual loss of dependency; and second, the age of the deceased which will furnish the multiplier in terms of Sarla Verma. The annual loss of dependency multiplied by the multiplier will give the compensation. As this is a comparatively simple

exercise, we direct the Registrar General of the Delhi High Court to receive applications in regard to death cases, from the claimants (legal heirs of the deceased) who want a compensation in excess of what has been awarded, that is, Rs 10 lakhs/Rs

7.5 lakhs. Such applications should be filed within three months from today. He shall hold a summary inquiry and determine the compensation. Any amount awarded in excess of what is hereby awarded as compensation shall be borne exclusively by the theatre owner. To expedite the process the claimants concerned and the licensee with their respective counsel shall appear before the Registrar without further notice. For this purpose the claimants and the theatre owner may appear before the Registrar on 10-1-2012 and take further orders in the matter. The hearing and determination of compensation may be assigned to any Registrar or other Senior Judge nominated by the learned Chief Justice/Acting Chief Justice of the Delhi High Court. xxxx xxxx xxxx xxxx xxxx xxxx xxxx

¶16We find the precedents for payment of compensation in a writ petition under Article 32 of the Constitution fall under three categories of cases. First category is where the acts of commission or omission are attributed to the State or its officers such as Nilabati Behera (supra), Sube Singh (2006) 3 SCC 178 , Rudul Sah v. State of Bihar & Anr., (1983) 4 SCC 141 , Bhim Singh, MLA versus State of J.K & Others reported as (1985) 4 SCC 677 and D.K. Basu v. State of W.B., (1997) 1 SCC 416 .

¶17The second category of cases is where compensation has been awarded against a corporate entity which is engaged in an activity having the potential to affect the life and health of people such as M.C. Mehta wherein the Court held as under: "31. ....................... We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher .

¶18The third category comprises of the cases where the liability for payment of compensation has been apportioned between the State and the Organizers of the function. In Dabwali Fire Tragedy Victims Association v. Union of India & Ors., 2009 SCC OnLine P&H 10273 wherein in a fire accident, 446 persons died and many others received burn injuries. The High Court in a writ petition under Article 226 of the Constitution held that the school which organized the function and respondent No. 8, the owner of the venue, would be jointly and severally liable to pay 55% of the compensation, remaining liability was to be borne out by the State. xxxx xxxx xxxx xxxx xxxx xxx xxx xxx

¶22Keeping in view the judgments referred to by this Court in its order dated 31-7-2014 [Sanjay Gupta Vs. State of U.P. (2015) 5 SCC 283'] as also the judgments referred to above, we find that infringement of Article 21

may be an individual case such as by the State or its functionaries; or by the Organisers and the State; or by the Organisers themselves have been subject-matter of consideration before this Court in a writ petition under Article 32 or before the High Court under Article 226 such as Uphaar Tragedy or Dabwali Fire Tragedy. Similar arguments have not found favour with the Delhi High Court and in appeal by this Court. The view taken therein does not warrant any interference and we respectfully endorse the same. Xx xxx xxx xxx xxx xxx xxx xxx xxx

¶54In Shyam Sunder & Ors. v. State of Rajasthan,

(1974) 1 SCC 690 , this Court observed that the maxim res ipsa loquitur 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. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. It was observed as thus: "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 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. 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 defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.

¶10The maxim is stated in its classic form by Erle, C.J.: [Scott v. London & St. Katherine Docks,

(1865) 3 H&C 596, 601 ] "... where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin, nobody would have called it a principle [Ballard v. North British Railway Co., 1923 SC (HL) 43 ]. The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the

defendant. But though the parties' relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him, if the odds otherwise point to his negligence (see John G. Fleming, The Law of Torts, 4th Edn., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based as commonsense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway v. S. Wales Transport Co. Ltd. [(1950) 1 All ER 392, 399]

(HL).

¶11The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendants, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability."

¶55Further, this Court in Pushpabai Purshottam Udeshi & Others v. Ranjit Ginning & Pressing Co. Pvt. Ltd. & Anr., (1977) 2 SCC 745 held that where the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant, such hardship is sought to be avoided by applying the principle of res ipsa loquitur. It was observed thus:

"6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states: "The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused". In Halsbury's Laws of England, 3rd Edn., Vol. 28, at p. 77 para 79, the position is stated thus: "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 arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as; negligence `tells it own story' of negligence on the part of the defendant, the story so told being clear and

unambiguous". Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part."

6 It is thus evident from a perusal of the above that a writ Court may award compensation to a person aggrieved and against the wrongdoer, on account of breach of its public duty, in addition to the independent right of the aggrieved party to claim compensation under the private law in a civil action based on tort, by way of a suit instituted before a Court of competent jurisdiction. The award of compensation in the public law jurisdiction is thus without prejudice to any other action like suit for damages etc. which may be lawfully available to the victim or the heirs of the deceased qua the same matter. The quantum of compensation however would depend upon the peculiar facts of each case and no straight jacket formula can be evolved in that behalf. 7 This Court, further held, in the matter of "Jagir Singh and others Versus State of Haryana and others" bearing CWP-2648 of 2014 decided on 19.10.2015 that writ Court has the power and discretion to assess a fair and proper compensation, even in the absence of proper and impeccable pleadings or evidence. Further, this Court in the matter of "Purshotam Parkash and others versus Dakshin Haryana Bijli Vitran Nigam Ltd. and another" bearing CWP-15780 of 2016 decided on

03.09.2019 held that even though the principles laid down in claim cases

under the Motor Vehicles Act are not to be strictly applied to compute quantum of compensation in electrocution cases, however, the same may be a guiding factor for awarding compensation. 8 After noticing the above facts, I am of the view that a writ Court may, in a given circumstance, award compensation to a person aggrieved, where a person has suffered injuries/loss of life as a result of a danger occasioned on account of negligence on the part of the respondents. The element of compensation is granted against the breach of public duty and is without prejudice to the rights of a person aggrieved to seek his remedies in a private law action against the violator before a Court of competent jurisdiction. Even though, the principles of Motor Vehicles Act are not applicable per se, however, they may be regarded as guiding principles by a Court of competent jurisdiction to ascertain the compensation payable to a person aggrieved. 9 A disputed question of fact would however emerge in the present case as to whether the death in question was caused because of fault of the deceased or the same is attributable to the default on the part the respondents. Even in an eventuality of contributory negligence, the petitioners would nonetheless be entitled to some compensation. The respondents have failed to establish that the trees had been got pruned properly and branches likely to cause danger to the life and property had been removed, thus contributing in the occurrence due to a prima facie lapse. 10 Without going into the merits of the controversy involved in the

present case or recording any definite finding as to which party was at lapse or as to whether it was a case of contributory negligence, lest it may prejudice the case of the respective parties, the present case is being disposed of at this stage as it raises disputed questions of facts which cannot be ascertained in writ jurisdiction. 11 However, in order to meet the financial hardship of the petitioners and noticing that the tree did fell upon the deceased Naresh Kumar and led to his untimely demise and the same surely reflected some degree of lapse or error in judgment by the respondent, an interim compensation of Rs.4,00,000/- (Rupees Four lakhs Only) is awarded to the petitioners. They may, if so advised, approach the Court of competent jurisdiction for seeking just and appropriate compensation as per law. The Court of competent jurisdiction may thereupon determine the element of compensation on the basis of evidence led by the respective parties, and be guided by such principles including the guidelines/parameters prescribed under the Motors Vehicles Act, 1988 as it may deem fit and proper. 12 The interim compensation shall be disbursed to the petitioners within a period of two months of the date of receipt of certified copy of this order failing which the petitioners shall be entitled to interest @ 6% per annum on the interim compensation from the date of filing of the petition. The respondent-Department shall however be entitled to seek a set-off of principal out of the interim compensation ordered above from the amount finally awarded but there shall be no recovery in case the compensation assessed by the Court is less than the interim compensation ordered above.

13 Needless to mention that the period during which the present petition has remained pending before this Court and till such time when the certified copy of the order is received by the petitioner shall be excluded while computing the limitation for institution of such proceedings. 14 The present petition is accordingly disposed of with liberties as aforesaid.

(VINOD S. BHARDWAJ) November 04, 2024 JUDGE

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-22695-2019. Date of decision: 04.11.2024. USHA AND OTHERS ......Petitioners VERSUS CHANDIGARH MUNICIPAL CORPORATION THROUGH ITS MUNICIPAL COMMISSIONER AND OTHERS .......Respondents CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ 00000 Present: - Ms. Ekta Thakur, Advocate for the petitioners. Ms. Shubreet Kaur, Advocate, for the respondents. *****