Municipal Board, Meerut v. Maha Kunwar — 1970 DIGILAW 176 (ALL)

JUDGMENT A.K. Kirty, J. - These two appeals have been filed against the decree passed in suit No. 7 of 1957, which was filed by Smt. Maha Kunwar, plaintiff-respondent in each of appeals, for recovery of Rs. 12,500/- as compensation. The Court below has passed a decree against the two defendants jointly and severally for the aforementioned sum-with pendente lite and future interest thereon at the rate of 6% per annum. The defendants have filed separate appeals. 2. The plaintiff is the widow of one Deputy Mal and the mother of Shail Kumar and the grand-mother of Adesh Kumar. Om Parkash appellant is the owner of house No. 117, Mohalla Dalampura in the city of Meerut, abutting a public street. The house was in a dilapidated and dangerous condition and the Municipal Board, Meerut had given notice to Om Prakash in July, 1953 and on 5th April 1954, under Section 263 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act). Om Prakash neither demolished the house, nor made necessary repair. The Municipal Board, Meerut also did not take any action under sub-section (2) of Section 263 of the Act. On 2nd March, 1955, at about 12.30 p.m. Deputy Mal, accompanied by Shail Kumar and Adesh Kumar was passing through the public street abutting the house when it collapsed causing fatal injuries to Shail Kumar and Adesh Kumar who died on the spot and to Deputy Mal, who subsequently died in the hospital where he was taken for medical treatment. Maha Kunwar filed suit No. 7 of 1957 claiming Rs. 12,500/- by way of compensation both from Om Parkash and the Municipal Board, Meerut on account of the death of her husband and her son Shail Kumar. 3. The suit was contested by both the defendants, who filed separate written statements. The pleadings of the parties give rise to the following issues, - 1. Whether the house of the defendant No. 2 was in a dangerous and ruinous stage at the time of accident as alleged by the plaintiff ? 2. Has the defendant No. 1 been grossly negligent in not getting the said house demolished ? 3. Has the defendant No. 2 been grossly negligent in not keeping the said house properly repaired and in good condition ? 4. Was the accident in question act of God as alleged by the defendant No. 1 ? 2. Has the defendant No. 1 been grossly negligent in not getting the said house demolished ? 3. Has the defendant No. 2 been grossly negligent in not keeping the said house properly repaired and in good condition ? 4. Was the accident in question act of God as alleged by the defendant No. 1 ? If so to what effect ? 5. To what amount of damages if any is the plaintiff entitled and from which of the defendants. Under issue No. 4, the trial Court's finding is that there was no reason whatsoever to call the accident which took place a vis major or an act of God. This finding has not been challenged in this Court. Issues 1 and 3 were considered together and the finding of the Court below thereon is that the house was in a dangerous and ruinous condition at the time of the accident as alleged by the plaintiff and that it had reached this condition on account of gross negligence on the part of defendant No. 2 in not causing necessary repairs to it and thereby keeping it in a safe and proper condition. The nuisance caused by the dangerous and ruinous condition of the house was, therefore, obviously the result of the wilful default and negligence of defendant No. 2. Under issue No. 2 the finding of the Court below is that a clear breach of the provisions of Section 263 of the Act was committed by the defendant No. 1 by its grossly negligent behaviour in not getting the house demolished and allowing it to remain in dangerous and ruinous condition. Under issue No. 5 the finding of the Court below is that both the defendants were jointly and severally liable to compensate the plaintiff. Damages on account of the death of Deputy Mal was assessed at Rs. 8,000/- and of Shail Kumar at Rs. 4,500/-. 4. In appeal No. 11 of 1960 filed by the Municipal Board, it was urged that the Board was not legally liable at all to pay any compensation to the plaintiff either jointly or severally. In support of his submission reliance was placed on Section 125 of the Act. In the other appeal it was urged that Om Prakash was not liable to pay any compensation, because in the circumstances of the case, no compensation legally was payable. In support of his submission reliance was placed on Section 125 of the Act. In the other appeal it was urged that Om Prakash was not liable to pay any compensation, because in the circumstances of the case, no compensation legally was payable. It was also urged that the house in question was in the occupation of tenants and that the liability, if at all, to make necessary repairs in the house was that of the tenants. In both the appeals, it was urged that Om Prakash was not liable to pay any compensation, because in the circumstances of the case, no compensation legally was payable. It was also urged that the house in question was in the occupation of tenants and that the liability, if at all, to make necessary repairs in the house was that of the tenants. In both the appeals, it was urged further that the quantum of damages awarded by the Court below was excessive and that no compensation at all was payable on account of the death of Shail Kumar, who at the relevant time was aged about 5 years. 5. Insofar as the question of the liability of the Municipal Board is concerned the submission was that the Municipal Board could utilise the funds of Board only for the purposes mentioned in the Act and that the Act does not provide for payment of any compensation of the nature claimed by the plaintiff in the suit. It was contended that Section 125 is the only section, which provides for payment of compensation from the Municipal Board funds. The said section reads as follows :- "125. Payment of compensation from municipal fund. The Board may make compensation out of the municipal fund to any person sustaining any damage by reason of the exercise of any of the powers vested in the Board, its officers or servants under this or any other enactment or vested in the State Government, the Prescribed Authority or the District Magistrate under Section 34 and shall make such compensation whether the person sustaining the damage was not himself in default in the matter in respect of which the powers was exercised." 6. It was also urged that the Act casts upon a municipality certain statutory duties, failure to perform which may give rise to a cause for a claim of compensation against the municipality, but sub-section (2) of Section 263 of the Act does not impose on the municipality any such statutory duty. This submission apparently has no force, Section 7 of the Act provides that it shall be the duty of every board to make reasonable provision within the municipality for amongst others, securing or removing dangerous buildings or places. Section 8 of the Act relates to the discretionary functions of Municipal Boards. Since under Section 7 it is the statutory duty of every Municipal Board to make reasonable provision for securing or removing dangerous buildings, it must be held that the Municipal Board in not taking step under sub-section (2) of Section 63 of the Act failed to perform its statutory duty and that the aforementioned submission made on its behalf is without force. The argument based on Section 125 of the Act, to my mind is also without force. The words "by reason of the exercise of any of the powers vested in the Board" in the said section embrace not positive or overt acts but also omission or failure to do certain acts, the doing of which is obligatory on the Board in the course of performance of its statutory duties under Section 7 of the Act. The definition of "act" under the U.P. General Clauses Act, 1904 is as follows :- "Section 4(2) :- "act" used with reference to an offence or a civil wrong shall include a series of acts, and words which refer to acts done extend also to illegal omissions". 7. In District Board, Allahabad v. Lala Behari Lal, AIR 1936 Allahabad 18, a full Bench of this Court relying on the observations made by the Judicial Committee in Reoti Mohan Das v. Yatindra Mohan Ghosh, AIR 1934 P.C. 96 held that under Section 4(2) of the U.P. General Clause Act the word "act" includes illegal omissions to act. In the aforesaid Privy Council case the distinction between doing of an act of an obligatory nature under a statute and the doing of an act of a discretionary or optional nature was pointed out. In the aforesaid Privy Council case the distinction between doing of an act of an obligatory nature under a statute and the doing of an act of a discretionary or optional nature was pointed out. In the circumstances of the instant case, as already observed under Section 7 of the Act it was an obligatory duty of the Municipal Board to make reasonable provision for securing or removing dangerous buildings. The Board having failed to perform its statutory duty must be held liable to pay damages resulting from its illegal omission to act. Section 125 of the Act, therefore is no bar to the plaintiffs claim. In support of the above submission reliance was placed by the learned counsel on the decisions of this Court in Rahim Bux v. Municipal Board, Bulandshahr, 1934 ALJ 101; District Board, Budaun v. Sri Niwas, 1942 ALJ 619 and Municipal Board, Kheri v. Ram Bharose, AIR 1961 Allahabad 430. In the first case the plaintiff had fallen down from a culvert over a drain connecting his house with a road and sustained injuries. The culvert was the private property of the owner of the house and was not maintained by the Municipal Board. In the second case it was held that neither under Section 91 nor under Section 98 of the District Boards Act 1922 was any obligation laid down upon the District Board to make repairs of the roads and therefore a passerby who met with an accident on account of neglect of the repair of the highway would have no cause of action against the Board. In the third case, the Municipal Board had granted a licence for the erection of a flour mill in contravention of the by-laws. The licensee erected a flour mill and as a consequence of its working damage was caused to the house of the defendant by vibrations. It was held that the damage caused the house was remote and not the distinct result of the unlawful act of the Board in granting the licence. In those circumstances, it was held that the Board was not liable. These cases evidently are neither relevant, nor can be accepted as authority for holding that in the instant case the Municipal Board, Meerut was not liable. 8. In those circumstances, it was held that the Board was not liable. These cases evidently are neither relevant, nor can be accepted as authority for holding that in the instant case the Municipal Board, Meerut was not liable. 8. Insofar the appeal of Om Prakash is concerned, the Court below has held that the notices issued by the Municipal Board under Section 263 of the Act in July, 1953 and April, 1954 were served on the agent of the owner of the house and that Om Prakash was aware of the same. It has not been argued before me that Om Prakash made necessary repairs in the house so as to make it safe. It is, therefore, clear that knowingly he held let the house continue to remain in a dangerous condition. He admitted in his deposition that he had inherited this house from his grand father in 1928. Evidently, therefore, the house was quite old and it appears that Om Prakash was only interested in realising as much rent from the house as possible without spending any money over its repairs. It has not been shown that under the contract of tenancy with the tenants the latter had undertaken to carry out necessary repairs in the house. Sub-section (f) of Section 108 of the Transfer of Property Act, on which reliance was sought to be placed on behalf of Om Prakash, can be of no help to him. If the tenants did not exercise their discretionary rights under Section 108(f) of the Transfer of Property Act, it would not mean that the owner of the house was absolved from making repairs which he otherwise was legally bound to do. 9. From the foregoing discussions it is established that both the defendants as held by the Court below were jointly and severally liable for damages on account of the accident caused by the collapse of the house. The question which remains for consideration is whether the damages awarded by the Court below are excessive and whether on account of Shail Kumar's death plaintiff was legally entitled to receive any compensation. 10. At the time when the accident took place the plaintiff husband Deputy Mal was aged about 55 years. Shail Kumar was aged about 5 years. The plaintiff's husband was running a grocery (Parchoon) shop from which he had an income of about Rs. 200/- per month. 10. At the time when the accident took place the plaintiff husband Deputy Mal was aged about 55 years. Shail Kumar was aged about 5 years. The plaintiff's husband was running a grocery (Parchoon) shop from which he had an income of about Rs. 200/- per month. She was being maintained by her husband and she did not herself have to earn her own livelihood by working at some other place. If her husband had not died as a result of the accident he might have been reasonably expected to live upto the age of 70 years or so as held by the Court below, having regard to the fact that at the time when Deputy Mal died his father aged 86 years and his mother aged 75 years were both alive. It could be reasonably held that Deputy Mal must have been spending Rs. 40/- to 50/- per month over his wife. The sudden death of Deputy Mal caused by the accident, therefore, can be considered as depriving the plaintiff of a sum of Rs. 40/- to Rs. 50/- every month for about 15 years or so. On that basis the sum of Rs. 8,000/- awarded by the Court below cannot be said to be excessive at all. Insofar as the compensation awarded on account of the death of Shail Kumar is concerned, the sum of Rs. 4,500/- does appear to be highly speculative and also excessive in circumstances of the case. The plaintiff Maha Kunwar stated that Shail Kumar at the time of his death was aged 4 years or 5 years. In order to render any financial assistance to his parents Shail Kumar would have to grow up first. Having regard to the community to which he belonged and the circumstances of his family it is unlikely that he would have been able to earn any such amount even after attaining majority for several years as would enable him to spare any sizable or definite sum for supporting his parents. In the ordinary course, soon after attaining majority he would have been got married and then would have to support his own family consisting of his wife and such children as might have been born. The plaintiff, therefore, could not reasonably look forward to payment of any regular or definite sum for her own support and maintenance from her son Shail Kumar. The plaintiff, therefore, could not reasonably look forward to payment of any regular or definite sum for her own support and maintenance from her son Shail Kumar. The plaintiff admitted in her deposition that her other sons, who are alive, were not supporting her. In the circumstances whether Shail Kumar would have supported or maintained her after attaining majority is a matter of speculation and doubt. He might have given occasional financial help to his mother, but it cannot be reasonably held that the plaintiff as a result of the death of Shail Kumar has suffered any such definite pecuniary loss, which might be assessed at Rs. 4,500/-. In the circumstances, I am of opinion that the amount of damages of Rs. 4,500/- awarded as damages on account of Shail Kumar's death should be reduced to Rs. 2,000/- only. 11. During the course of the hearing of the appeals I was inclined to take the view that instead of a lump sum being awarded to the plaintiff respondent as compensation a provision ought to be made in the decree for payment of a sum of Rs. 50/- to her every month by the appellants. On behalf of the respondent it was urged that from reported decisions of cases on the subject it would appear that no such decree as would amount to a decree for payment of maintenance has ever been passed. Merely because a decree of the nature, mentioned above, has never been passed it would not necessarily mean that no such decree can appropriately be passed under the law. In view of the fact, however, that almost 15 years have lapsed since the cause of action accrued to the plaintiff and that she cannot reasonably be expected to live now for more than ten years or so. I do not think that it will serve any useful purpose by passing a decree requiring the appellants to pay to the respondent a fixed sum every month. The expediency or advisability of passing such a decree and the question whether such a decree can or cannot be passed under the law may, however, be considered in an appropriate case when occasion therefore arise in future. 12. Both the appeals are partly allowed and the decree of the Court below is modified to this extent only that in place of Rs. 12,500/- the suit is decreed for Rs. 12. Both the appeals are partly allowed and the decree of the Court below is modified to this extent only that in place of Rs. 12,500/- the suit is decreed for Rs. 10,000/- only with pendente lite and future interest at the rate of 6% per annum. One set of costs is awarded to the respondent of which half shall be paid by the Municipal Board, Meerut and half by Om Prakash.