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2001 DIGILAW 568 (CAL)

BARUN KUMAR GOSWAMI v. STATE OF WEST BENGAL

2001-09-04

BARIN GHOSH

body2001
Barin Ghosh ( 1 ) THE Court: On 19th May, 2000 at about 9. 45 A. M. when the petitioner was crossing the junction of Lyons Range and Brabourne Road in front of Jail Gate, Writers' Buildings, in his Maruti car, having Registration No. WNF 4514, which was being driven by the Driver of the petitioner, Sri Paresh Nath Addy, and when the petitioner was seated in the rear seat, a street lamp post all on a suddent fell on the said car while the car was in motion. As a result thereof the roof of the said car got dented and the said lamp post struck the driver on the head, his right hand, his palm, his wrist and his fingers. The windscreen of the car was also destroyed. The driver of the petitioner was wounded and started bleeding from the head and other affected parts of his body. The car also came to a sudden halt and as a consequence the petitioner was thrown out of the rear seat but the front seat came in the way hitting the abdominal region of the petitioner and in consequence the petitioner suffered pain and agony. ( 2 ) THE driver of the petitioner was treated at S. S. K. M. Hospital and the petitioner was treated by his family physician. The car was taken to the Hare Street Police Station and a General Diary was lodged. By a letter dated 20th May, 2000 the petitioner protested against the said incident. In reply to the said letter by a letter dated 3rd July, 2000, the respondent No. 2, i. e. , the Calcutta Municipal Corporation, contended that the electric lamp post in question was not installed, nor the same was being maintained by the said respondent. The Police Authorities reacted to the said letter by a letter dated 16th August, 2000. The contents whereof are as follows:"sir, ref. Your letter No. PKD/genl-2470 dated 20. 5. 2000. On 19. 5. 2000 at about 09. 45 hrs. , near 5, N. S. Rd. Calcutta - 1, a standing light post all on a sudden fell on a Maruti car No. WNF-4514 being driven by driver Paresh Nath Addy occupied by the owner Advocate Sri Barun Kr. Goswami. Your letter No. PKD/genl-2470 dated 20. 5. 2000. On 19. 5. 2000 at about 09. 45 hrs. , near 5, N. S. Rd. Calcutta - 1, a standing light post all on a sudden fell on a Maruti car No. WNF-4514 being driven by driver Paresh Nath Addy occupied by the owner Advocate Sri Barun Kr. Goswami. As a result, the Maruti Car got damaged; the driver received injuries for which he was treated and discharged from S. S. K. M. Hospital and owner Advocate Sri Barun Kr. Goswami complained of abdominal and stomach pain. Hare St. P. S. enquired into the matter and diarised in G. D. vide section 6 G. D entry No. 2076 dt. 19. 5. 2000 but no MCR was drawn, as the incident does not attract the requirement of drawing up of an MCR under the above, I would like to inform you that matter has already been occurred in not counting in the part of investigation by the jurisdiction of PSTP; Lalbazar. 19. 5. 2000 but no MCR was drawn, as the incident does not attract the requirement of drawing up of an MCR under the above, I would like to inform you that matter has already been occurred in not counting in the part of investigation by the jurisdiction of PSTP; Lalbazar. " ( 3 ) IN the circumstances the petitioner filed the present writ petition on 31st August, 2000 praying for the following reliefs:-" (a) A writ of and/or in the nature of mandamus do issue commanding the respondents to show cause as to why the untoward incident took place on 19th May, 2000 as stated in the petition and what steps the said respondents have taken inter alia in respect of the same and/or to prevent similar incidents from occurring in future; (b) A writ of and/or in the nature of Mandamus do issue commanding the respondents to pay adequate compensation to the petitioner as this Hon'ble Court fit and proper; (c) A writ of and/or in the nature of certiorari do issue calling upon the respondents to produce all records relating to the installation and maintenance of street lamp post before this Hon'ble Court so that conscionable justice may be done upon considering the same; (d) Rule NISI in terms of prayer (a), (b) and (c) above; (e) Directing the respondent authorities to forthwith enquire into the incident of 19th May, 2000 and take appropriate steps in respect of the same; (f) Ad interim order in terms of prayer (e) hereinabove; (g) Costs of and/or incidental to this application be paid by the respondent authorities; (h) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper. " ( 4 ) THE respondent No. 2 has filed an affidavit-in-opposition and in that it has stated that the respondent No. 2 did not install the said electric lamp post and that the said electric lamp post belongs to CMDA and is being maintained by CMDA It was indicated that the number of the subject electric lamppost is Pole No. CMDA/103/12. In that view of the matter at the request of the petitioner, I directed CMDA to be impleded as a respondent and accordingly CMDA was impleded. Thereupon CMDA was served with a copy of the writ petition and it also filed an affidavit-in-opposition. In that view of the matter at the request of the petitioner, I directed CMDA to be impleded as a respondent and accordingly CMDA was impleded. Thereupon CMDA was served with a copy of the writ petition and it also filed an affidavit-in-opposition. In that CMDA has stated, inter alia, as follows:"before dealing with the said petition, paragraph wise, I give below some of the salient features of the present case for being considered by this Hon'ble Court in its true perspective. (i)the said petition is thoroughly misconceived having based on a disputed question of fact and should therefore be liable to be dismissed. (ii)the unfortunate incident of alleged falling of a lamp post was caused by which proximate reason, could hardly be ascertained and there was no positive evidence of any lack of proper maintenance on the part of the respondent authority and in the absence of which, it would be very difficult to adjudicate the matter for fixing the liability for such an incident. (iii)the petitioner's own negligence and rash driving could also be a factor for such an unfortunate incident, which could not be gathered at a belated stage as in the present case. (iv)a dispute of this nature can hardly be decided by a writ Court, in the absence of proper evidence but for which no clear conclusion could be arrived at and as such the said petition is not maintainable and is accordingly liable to be dismissed. (v)the damage claimed in the said petition is also not maintainable in writ jurisdiction for which remedies lie elsewhere. (vi)the respondent authority with a view to illuminate some of the important roads, had undertaken a scheme for which purpose and after due completion of the same, the Calcutta Municipal Corporation was repeatedly approached for maintaining the lamp posts, but it declined to accept the maintenance part. As a result whereof the CMDA authority was forced to maintain the same with great difficulty, having no maintenance staff. Copies of correspondences with the CMC authority and the resolution of such scheme by the CMDA in this regard are collectively annexed hereto and marked with the letter 'a'. (vii)the CMC authority is under a mandatory legal obligation to maintain the street lights and all its accessories under section 387 of the Calcutta Municipal Corporation Act, 1980. Copies of correspondences with the CMC authority and the resolution of such scheme by the CMDA in this regard are collectively annexed hereto and marked with the letter 'a'. (vii)the CMC authority is under a mandatory legal obligation to maintain the street lights and all its accessories under section 387 of the Calcutta Municipal Corporation Act, 1980. (viii)the answering CMDA authority is not responsible for the alleged damage caused to the petitioner in any manner whatsoever. (ix)from an enquiry conducted by an authority entrusted by the answering CMDA authority it was gathered that the unfortunate incident of falling of lamp post in question was an act of god being a sequel of a sudden storm with high wind speed that occurred at about 9. 45 a. m. on the fateful day of 19th May, 2001. A xerox copy of the said enquiry report submitted by one Satellite Enterprise Pvt. Ltd. is annexed hereto and marked with the letter 'b'. (x)the said petition is also not maintainable at all in view of the claim for compensation which must have been adequately covered under an Insurance Policy but for which the vehicle would not have been permitted to be plied on road and as such there cannot be double compensation on one cause of action as wrongly contended or at all. (xi)the said petition is also liable to be dismissed for suppression of material fact as to whether a claim under the insurance policy was lodged or not. I further say that the CMC authority is legally responsible to maintain the street lights and all its accessories no matter whether it formally accepted the same from the answering CMDA authority which erected the lamp posts under its illumination scheme, or not. I say that the experience of the answering respondent authority is very sad as the respective civic authorities, are found to be reluctant in maintaining those lamp posts which have been erected by the answering respondent authority as part of its development programme to be handed over to those civic bodies for regular maintenance which fall under its part of its legal obligation. I further say that the answering respondent authority has come across a number of incidents in other areas like Kona Express Way where lamp posts erected by it have often been damaged by vehicular traffic and as such if it ultimately fell down, it could not have been due to any negligence on the part of the answering respondent authority. I say that the petitioner's right to get compensation is adequately covered under the insurance policy of the vehicle in question including the life of the driver and as such the petitioner's present petition for compensation for the alleged incident of damage to the vehicle cannot be entertained having based on a cause of action for which the claim must have been lodged with the concerned insurance policy. "annexure-B to the said affidavit is as follows :-"satellite Enterprises Pvt. Ltd. Ref. SE/cmda/ed viii/st LTG. 01-0-02 june 5, 2001 to the Executive Engineer, electrical Divn. VIII e and M Sector, CMDA maniktala Main Road, calcutta-700 054 dear Sir, sub. : report regarding an accident took place at Lyons Range on 19. 05. 2000. Ref. : your letter No. 70/cmda/eandm/ed viii Dt. 04. 06. 01 the reason behind the accident on Pole No. 103/12 at Lyons Range is as follows: on 19-05-2000 at about 9. 45 A. M. consequent upon a sudden storm with heavy wind speed, the said pole was falling instantly and thereby the accident took place. Thanking you, we remain. Yours faithfully, for, Satellite enterprise pvt. Ltd. Sd/- Illegible, director. " ( 5 ) THE petitioner filed an affidavit-in-reply dealing with the affidavit-in-opposition of CMDA In that it was stated that 19th May, 2000 was a sunny bright day with clear sky and there was no storm or high speed wind on that date. It was stated that the petitioner's car was covered by a third party insurance and the same did not cover any claim due to any accident or damage to the car/owner/driver. ( 6 ) AT the hearing the learned counsel for CMDA produced before me copy of an insurance policy in respect of a car bearing Registration No. WNC-211, which had a third party insurance. ( 6 ) AT the hearing the learned counsel for CMDA produced before me copy of an insurance policy in respect of a car bearing Registration No. WNC-211, which had a third party insurance. The said policy contained, inter alia, three separate clauses, namely, IMT-17, IMT-18 and IMT-19 IMT-17 deals with legal liability to persons employed in connection with the operation and/or maintaining and/or loading and/or unloading of motor vehicles (goods carrying), whereas IMT-18 deals with legal liability to paid driver and/or conductor employed in connection with the operation of the passenger carrying commercial vehicle (for buses only ). These two clauses are not applicable in so far as the car of the petitioner is concerned. IMT 19 deals with legal liability to persons employed in connection with the operation of the motor vehicle for private car, motorcycle, taxi, auto rickshaw, tractor and other miscellaneous vehicles. IMT-19 is, therefore, applicable. The said clause is as follows:"imt-19-LEGAL Liability to Persons employed in connection with the operation of the Motor Vehicle (For Private Car, Motor Cycle, Taxi, Auto-rickshaw, Tractor and other Miscellaneous vehicles ). In consideration of the Payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the Insured against his legal liability under the Workmen's Compensation Act of 1923 and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855 or at Common law in respect of personal injury to paid driver whilst engaged in the service of the insured in such occupation in connection with the Motor Cycle and will in addition be responsible for all costs and expenses incurred with its written consent. The premium have been calculated and paid while taking Insurance of the Motor Cycle concerned at the rate of Rs. 15/- for driver. Provided always that -1)the Endorsement does not indemnify the Insured in respect of any liability in cases where the Insured holds or subsequently effects with any Insurance Company a Policy of Insurance in respect of liability as herein defined for his general employees. 2)the Insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations. 3)in the event of the Policy being cancelled at the request of the Insured no refund of the Premium paid in respect of this Endorsement will be allowed. 2)the Insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations. 3)in the event of the Policy being cancelled at the request of the Insured no refund of the Premium paid in respect of this Endorsement will be allowed. Subject otherwise to the terms, exceptions, conditions and limitations of this policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988. " ( 7 ) THE said clause covers the legal liability of the petitioner under the Workmen's Compensation Act, 1923, the Fatal Accidents Act, 1855 and at Common Law in respect of personal injury to paid driver while engaged in the service of the insured. This is, however, subject to the terms, exceptions, conditions and limitations of the policy, except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988. ( 8 ) THE Workmen's Compensation Act, 1923 deals with employer's liability for compensation for personal injury which result in the total or partial disablement of the workman, but in case of partial disablement the same must be for a period exceeding three days, and certain specified diseases. In the instant case there has not been any disablement of the driver of the petitioner. The Fatal Accidents Act, 1855 deals with compensation to families for loss occasioned by death. We are not concerned with death in the instant case. The Motor Vehicles Act, 1988 also deals with death and permanent disablement and requires that to cover the risk thereof the motor vehicle owner is required to take coverage of insurance. We are not concerned with any risks covered by the Motor Vehicles Act, 1988. At common Law, however, the driver of the petitioner can recover damages for the injuries said to have been suffered by him. In such event, if the liability is that of the petitioner, the same is covered by the insurance policy, but having regard to the fact that the insurance policy is a contract of indemnity, the Insurance Company, being the promissor under the said contract of indemnity has similar rights as that of a surety as declared by section 141 of the Contract Act and accordingly is entitled to recover all damages paid or to be paid for the injuries sustained by the driver of the petitioner as determined in Common Law from the petitioner himself. In addition to that the policy of insurance itself stipulates the same. The relevant clause in the instant case is as follows:"nothing is this policy or any Endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the Motor Vehicles Act. But the Insured shall repay to the Company all sums paid by the company which the company would not have been liable to pay but for the said provisions. " ( 9 ) THEREFORE, even if the Insurance Company is made to pay any sum for the injury sustained by the driver of petitioner, the petitioner is still obliged to make good the same to the Insurance Company. He would, therefore, have a right to recover the same from the wrong doer. However, in the instant case it is not the case of the petitioner that the driver of the petitioner did lodge a claim or took recourse to Common Law against the petitioner has been made to pay anything on that account. The object of dealing with the subject clauses is to show only that by reason of the car being insured, the liability, if any, of the petitioner to his driver for the incident in question do not stand extinguished. ( 10 ) THE case, it cannot be disputed, is that of negligence. It has been claimed and contended by CMDA that it was an accident. Such a contention is not a defence to the claim but is merely a denial of negligence. The real defence, as appears, is the defence limited to negation of liability on the ground "act of God". This defence is founded on the defence to the strict liability rule propounded by Blackburn, J. in Rylands v. Fletcher, reported in (1866) LR 1 Ex. 265. The relevant portion of the judgment is as follows:"the question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? 265. The relevant portion of the judgment is as follows:"the question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours: but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no morewe think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient. ( 11 ) IN Nichols v. Marsland, reported in (1876)2 Ex. D. 1. , the defence of "act of God" was applied. In that case the defendant was in possession of certain artificial pools formed by damming a natural stream. An extra-ordinary rainfall, which was greater and more violent than any rainfall within the memory of the witnesses, broke down embankments and the rush of escaping water caused damage to the plaintiff. It was held that the defendant ought not to be liable for an extraordinary act of nature, which the defendant could not reasonably anticipated. This judgment was considered by the House of Lords in Greenock Corporation v. Caledonian Railway Co. , reported in (1917) A. C. 556. It was held that the defendant ought not to be liable for an extraordinary act of nature, which the defendant could not reasonably anticipated. This judgment was considered by the House of Lords in Greenock Corporation v. Caledonian Railway Co. , reported in (1917) A. C. 556. The House of Lords in that judgment was considering a case where the Corporation constructed a concrete padding pond for children in the bed of the stream and to do so had to alter the course of stream and obstruct the natural flow of the water. Owing to a rainfall of extraordinary violence the stream overflowed at the pond and a great volume of water, which would normally have been carried off by the stream, poured down a public street into the town and damaged the property of the plaintiffs. The House of Lords held that the rainfall was not an act of God and that the Corporations were liable. In order to consider what was an act of God, the House of Lords noted the observations of Lord Cockburn expressed in Samuel v. Edinburgh and Glasgow Ry. Co. , reported in (1850) 13 D. 312, to the effect, "i think he is bound to provide against the ordinary operations of nature, but not against her miracles. " the House of Lords then opined as follows:"in my opinion the appellants have entirely failed to establish any defence of this ground. It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders' works followed by heavy rain. " ( 12 ) THEREFORE, the moment anyone interferes with nature, he must interfere with the same in such a manner so that despite such interference no one suffers by reason of the extraordinary violence of the nature. " ( 12 ) THEREFORE, the moment anyone interferes with nature, he must interfere with the same in such a manner so that despite such interference no one suffers by reason of the extraordinary violence of the nature. Such a defence can only be available if the damage is due to a miracle, totally not foreseeable. ( 13 ) IN the matter of interference with air the same consequence applies. In Cushing v. Peter Walker and Son (Warrington and Burton), Ltd. , reported in (1941)2 All E. R. , Hallett, J. recorded a concession to the effect as follows:"counsel for the plaintiff submits, and counsel for the defendants concedes, that, before wind can amount to an act of God, so that the defendants escape liability for the action of the wind, the wind must not merely be exceptionally strong, but must be of such exceptional strength that no one could be reasonably expected to anticipate or provide against it. "hallett, J. then observed:"i do not think that it is necessary to examine such authorities as there may be, but, having regard to what has been decided in respect to other natural phenomena, such as, for instance, an exceptionally high tide, or an exceptional downfall of rain, I think that counsel for the defendants was correct in making that concession. " ( 14 ) IN the instant case the contention is not even extraordinary violence of the nature, far less miracle of the nature. The contention is simply heavy wind speed. A person who interferes with the natural flow of air by erecting a lamppost, it is his duty to take precautions against strong storm and heavy wind speed. If he does not do that, in law, he is negligent. ( 15 ) A person, who is negligent, is bound to compensate the person who has suffered injury by reason of such negligence. What shall be the quantum of such compensation? There is no dispute in the instant case that by reason of the fall of the lamppost in question, the car of the petitioner got damaged, he suffered physical pain and the petitioner's driver suffered body injury. The petitioner's driver is not before me. Accordingly, there is no scope for assessing what compensation the driver of the petitioner is entitled to. The petitioner's driver is not before me. Accordingly, there is no scope for assessing what compensation the driver of the petitioner is entitled to. The petitioner, however, is present before me and there is no dispute that his car got damaged and he suffered pain for the negligence on the part of CMDA In cases of this nature efforts must always be made to award compensation for the actual loss suffered. In the instant case there is no contention in relation to the actual loss suffered. That alone does not preclude the Court from awarding damages. The Court can always award nominal damages by way of recognition of the existence of the legal right of the petitioner of being freely able to move along the municipal roads without exposing his property or his person to damage by any action of any one either that of the Municipality or a person entrusted by the municipality to carry out any work on its behalf, which rights has been violated in the instant case by the Corporation and the CMDA ( 16 ) IT is true that section 387 of the Calcutta Municipal Corporation Act, 1980 obliges the Corporation to take measures for lighting public streets and also to maintain the poles erected therefor and although section 567 of the said Act specifically empowers the Corporation to pay compensation to any person who sustains damage by reason of exercise of any power under the Act by the Municipal authority or any officer or other employee of the Corporation, I think the liability of payment of nominal damage, in the instant case, vests not only upon the Corporation but also upon the CMDA, as the CMDA, in the instant case, acted as an independent authority to discharge a statutory obligation of the Corporation. In other words, in order to discharge the statutory obligation of the Corporation it engaged C. M. D. A. to erect the lamppost in question and left the same in its care and custody and thereby has broken its own duty of keeping the lamp post out of the danger of the petitioner and CMDA having actually erected and maintained the lamp post in question is also liable for that matter. ( 17 ) SUCH nominal damage I assess at Rs. ( 17 ) SUCH nominal damage I assess at Rs. 1000/- to be paid each by the CMDA and Calcutta Municipal Corporation to the petitioner not by way of compensation for the actual loss suffered by the petitioner but merely by way of recognition of the existence of the legal right vested in the petitioner, as discussed above, which has been violated by the Calcutta Municipal Corporation and CMDA both. ( 18 ) IT was urged that having regard to the facts of this case I should award exemplary as well as aggravated damages. In Rookes v. Barnard and Ors. , reported in (1964) AC 1129, the House of Lords has held that exemplary damages can be awarded in cases (i) of oppressive, arbitrary or unconstitutional acts by Government servants; (ii) where the defendant's conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; and (iii) where expressly authorized by statute. This pronouncement of the House of Lords was held to be good law by the House of Lords in Cassell and Co. Ltd. v. Broome, reported in (1972) AC 1027. In the instant case the act of the Corporation or of CMDA is neither oppressive, nor arbitrary, nor the same can be said to be unconstitutional. Similarly the conduct of the Corporation or of CMDA, in the instant case, has not been calculated to make profit more than compensation payable. There is no express authority of statute to award exemplary or aggravated damage. ( 19 ) THE question, however, is whether even the said nominal damages can be awarded in this proceedings initiated under Article 226 of the Constitution of India. In this connection the learned counsel appearing for the parties relied on a judgment of the Supreme Court in Tamil Nadu Electricity Board v. Sumathi and Ors. , reported in (2000)4 SCC 543 . In that case two questions were raised. The first one was whether the High Court under Article 226 of the Constitution can award compensation for death caused due to electrocution on account of improper maintenance of electric wires or equipment by the Tamil Nadu Electricity Board. , reported in (2000)4 SCC 543 . In that case two questions were raised. The first one was whether the High Court under Article 226 of the Constitution can award compensation for death caused due to electrocution on account of improper maintenance of electric wires or equipment by the Tamil Nadu Electricity Board. The second question was whether the High Court while exercising jurisdiction under Article 226 of the Constitution can appoint an arbitrator under the Arbitration and Conciliation Act, 1996 to decide the quantum of compensation and then make the award of the arbitrator rule of the Court. While answering the first question the Supreme Court took note of its own judgment in Chairman, Grid Corpn. of Orissa Ltd. v. Sukamani Das reported in (1999)7 SCC 298 , where it was held that the case was in fact an action in tort and negligence was required to be established firstly by the claimant and that it is a settle legal position that where disputed questions of facts were involved a petition under Article 226 of the Constitution was not the proper remedy. The Supreme Court also noted its own judgment in Shakuntala Devi v. Delhi Electric Supply Undertaking, reported in (1995)2 SCC 369 , where it was decided to give compensation to the wife of a man who got electrocuted by a live wire of electricity. It also noted its own judgment in Chairman, Railway Board v. Chandrima Das, reported in (2000)2 SCC 465 where the contention that the victim should approach the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, was not accepted. After summarizing the law on the subject the Court held,"in view of the clear proposition of law laid by this Court in Sukamani Das case when a disputed question of fact arises and there is clear denial of any tortuous liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortuous liability recourse must he had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. However, it cannot be understood as laying a law that in every case of tortuous liability recourse must he had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. " ( 20 ) IN the instant case to the extent I have kept myself confined there is no disputed question of fact at all. By reason of erection of lamp post in the manner, which was unwarranted or by not maintaining the same in a manner as was warranted, not only right to the life of the petitioner was interfered with but his life was put into danger; it is by reason of miracle that the petitioner and his driver were saved. ( 21 ) IT is true that the incident in question is a stray incident and accordingly I have confined myself only to that incident and the resultant affectation of the petitioner. In the event similar such incidents do occur in number, I do not think the Court would be hesitant in exercising its extraordinary power for eradicating such hazards by directing removal of the lights, for what would be the need of the light if the same brings darkness for a large section of the society. ( 22 ) IN the premises the writ petition is allowed to the extent that the CMDA as well as the Calcutta Municipal Corporation shall pay to the petitioner a sum of Rs. 1000/- each as nominal damage. Stay prayed for as refused. Let signed xerox-copy of this judgment, if applied for, be handed over to the learned advocates for the parties on the usual undertaking. Petition allowed in part.