DELHI DEVELOPMENT AUTHORITY Vs. BHAGWAN

JUDGEMENT

(1.) Vineet Pawar, a child aged 7 years and studying in class II died on 13.11.2004, when the iron gate installed in a park maintained by the appellant DDA fell on him. The parents of the child filed a writ petition alleging therein that their child had died on account of negligence on the part of the DDA. Their case was that had the appellant/DDA been vigilant and had the gate been properly fixed, their son would have been alive. The learned Single Judge, vide impugned order dated 18.7.2007 directed payment of compensation amounting to Rs.12,78,509/- to the petitioners/respondents along with interest on that amount with effect from 13.11.2004.

(2.) It is by now settled legal proposition that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution can award compensation in a case of loss or damage on account of failure to perform a public duty. In Nila-Bati Behera vs. State of Orissa, 1993 CrLJ 2899, the Apex Court held that award of compensation in proceedings under Article 32 and Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights. In D.K.Basu vs. P.A. Narayan, 1998 1 SCR 899 the Supreme Court awarded compensation amounting to Rs.2 lacs to the appellant for the death of his wife, who was returning by a local train from her office when she was criminally assaulted and robbed of her ornaments and wrist watch. When she pulled the alarm chain, the railway guard and the attendant did not stop the train. The wife of the appellant later succumbed to her injuries. The Apex Court, holding the railways guilty of breach of duty of taking reasonable care, awarded compensation to the appellant. In Darshan and Ors vs. UOI and Ors., 1999 49 DRJ 655, a Division Bench of this court found dereliction of duty on the part of the respondents in leaving the manhole uncovered, which resulted in untimely death of a person on account of his falling in the manhole and awarded compensation on account of breach of public duty by the instrumentality of the State.

(3.) It is an admitted position that the park where the gate in question was installed and where the child of the petitioners died on 13.11.2004 was under the care and management of DDA. Doctrine of res ipsa loquitur therefore clearly applies to an incident of this nature where the cause of accident is primarily within the knowledge of respondent. This maxim is stated as under in its classic form:- "Where the thing is to 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 case, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." With respect to the aforesaid maxim Supreme Court in Shyam Sunder and Ors. vs. The State of Rajasthan, 1974 AIR(SC) 890 inter alia observed as under:-