SHARAFAT KHAN Vs. NORTHERN RAILWAY

JUDGEMENT

(1.) This appeal impugns the order dtd. 29/10/2018 dismissing their writ petition (W.P.(C) bearing no.2507/2014) in which they had claimed damages and compensation for the drowning of their 12 year old son, in a water filled ditch dug-up by R-2 for work being carried out for R-1. The appellants had claimed Rs. 15,00,000.00 on the methodology adopted for award of compensation in motor-vehicular accidents claims. The appellants pleaded that they were residing at Jhuggi no.107, Street No.9, Chanderpuri, Kailash Nagar, Delhi110031 and Faizan (hereinafter referred to as "the deceased") was one of their children. There was a vacant land in between Pilli Mitti Railway line and Metro line (hereinafter referred to as "the site") which was used by the children of the locality as a playground.

(2.) 1 The respondent no.1 engaged the respondent no.2 to dig up a rainy well at the site. The appellants also came to know through concerned J.E., Railway, Shakur Basti, Rohtak Road, Delhi that the construction of the well was assigned to the respondent no.2. The digging work was continued for many days and the entire area had become slippery due to filling up of water in the pit/trench. The officials of the respondents did not take due precautions while digging up the said well/pit/trench. In particular respondent no.2 neither deputed any safety guard nor secured the place by a fence to ward-off an innocent person or animal from straying towards it and/or suffering any harm or injury. Children of the locality used to play on the said land. The deceased child while playing in the said area fell into the water-filled pit/trench, on 11/5/2013 and died. A FIR (bearing no.187/2013) was registered at P.S. Gandhi Nagar under Sec. 290/304A IPC wherein the respondent no.2 was implicated. The incident had happened due to negligence on part of the officials of the respondents. The appellants prayed that the respondents be directed to pay Rs. 15,00,000.00 along with 12% interest from the date of filing of the petition till its realization.

(3.) R-1 contends that it had allotted a contract (bearing no. 74-W/13/96/WA/SSB dtd. 24/2/2011) to respondent no. 2 for construction of a rainy well, where the alleged incident had taken place. FIR bearing no.187/2013 pertaining to the incident was registered under Sec. 290/304A IPC at P.S. Gandhi Nagar. Respondent no.2 was implicated and arrested. R-1 denies any negligence and liability. It says that the appellants have already received a compensation of Rs. 3,10,000.00 under an agreement with R-2. The writ petition is not maintainable.