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2009 DIGILAW 176 (DEL)

MASTER DHEERU v. GOVT. OF NCT or DELHI

2009-02-09

S.RAVINDRA BHAT

body2009
JUDGMENT S. Ravindra Bhat, J.-In this writ proceeding, under Articles 226 of the Constitution of India the petitioner, Master Dheeru, through his father, seeks directions to the Govt. of N.C.T. of Delhi and others for the payment of compensation of Rs. 1 crore, alleging that he had sustained severe head injuries leading to a "total mental retardation" due to negligent acts of the said respondents. 2. The brief facts are that the petitioner, aged 9 yrs (at the time of filing the petition) sues the respondents through his father, an agriculturist, residing at Village Jargaon, P.O. Jakha, District Jalaun (U.P.). The petitioner contends to visiting Delhi for the purpose of securing admission in a school in Class VII and was staying with his aunt (Bua) and her husband at their residence in Government flats at Timarpur, Delhi since May, 1999. The Respondent No.5 had finalized a tender for the work of installing "Syntax" water tank after dismantling the pre-existing cemented water tank on the roof-top of each of the building of residential flats of Delhi Administration at Timarpur area. This contract was awarded in favour of the Respondent Nos. 2 and 3 who are brothers (hereafter collectively referred to as "the contractor"). 3. It is stated that on 25.5.1999 the contractors were carrying out the work of removing the debris after dismantling the cemented water tank on the roof of Flat No. B-128 at about 10.00 a.m. The debris, it is claimed were thrown carelessly and negligently, directly from the roof of the third floor to the ground by the contractors and their workers. The local residents had apparently requested them not to do so as such action was likely to result in serious injuries to those in the vicinity. It was suggested that the staircase could be used to carry out the job. The contractors assured the residents that debris would not be thrown; but they still did not keep their word, and continued their activity in the same reckless manner. No precautions, whatsoever were taken by the respondents to prevent any passerby from entering the area, where the work was being carried out. 4. The contractors assured the residents that debris would not be thrown; but they still did not keep their word, and continued their activity in the same reckless manner. No precautions, whatsoever were taken by the respondents to prevent any passerby from entering the area, where the work was being carried out. 4. At about 11.30 a.m. the petitioners aunt heard cries of children, and other persons, ran out of her house and found the petitioner lying on the ground, blood stained, with head injuries caused by heavy pieces of iron cover which had fallen, and had been thrown by the contractors and their workers, from the roof. The petitioners aunt immedii1teJy informed the Police as well as her husband and an the ad vice of respondent No.2, took the petitioner to Tirath Ram Hospital. The petitioners uncle reached the hospital direct}y and later got first information report (FIR) being No. 273/1999 registered under Section 337, I.P.C., which was later on converted to offences under Sections 338/34, I.P.C. The petitioner was operated upon at Tirath Ram Hospital where he remained upto 26.6.1999; he was then taken to L.N.J.P. hospital. Later he was taken to the All India Institute of Medical Sciences ("AIIMS") on 14.7.1999 due to severe head injuries. 5. The petitioners father is said to have spent about Rs. 1.5 lakh for his treatment, anti finding it difficult to bear any further expenses tried to get financial aid from the P.W.D. The petitioners uncle therefore approached the Chief Minister. The Chief Ministers office directed Sh. Rakesh Mohan, Secretary, P.W.D. to remit the balance payment of the bill dated 22.6.1999 amounting to Rs. 14,220/- and further arrange the payments till shifting of the patient to G.B. Pant Hospital, Delhi. The directions of the said letter were completely ignored by the department. According to the averments, the Tirath Ram hospital officials were exerting undue pressure on the petitioners father to get him discharged from the hospital, though his condition did not permit it. Thereafter, attempts were made to get the petitioner admitted to the AIIMS and G.B. Pant Hospital but there too the petitioners request was met with a cold response. A Public Interest Litigation petition dated 22.6.1999 was filed in the Supreme Court of India on behalf of the petitioner, but it not entertained. Ultimately, this Courts intervention was sought by WP No. 3761/1999 dated 28.6.1999. A Public Interest Litigation petition dated 22.6.1999 was filed in the Supreme Court of India on behalf of the petitioner, but it not entertained. Ultimately, this Courts intervention was sought by WP No. 3761/1999 dated 28.6.1999. By order dated 12.7.1999 of the Court the petitioner was finally admitted at AIIMS. It was further submitted that the petitioners father has to borrow money for meeting the cost of these litigations as well as for the treatment of the petitioner. 6. Respondent No. 3s preliminary objection is that he does not fall within the definition of the term "State" as defined and provided under Article 12 of the Constitution of India. He further points out that the work discharged by the him, at the relevant time, was that of a private contractor and, as a result, the present writ petition is not maintainable; in any case a writ petition under Article 226 of the Constitution can be entertained only if the lis discloses a public law element involving disputes between a citizen/group of citizens on one hand and the State or other public body on the other. The dispute in this case, however, is between a citizen on one hand and not only against a Public Body on the other hand, but individuals having no semblance of public duty relationship with the petitioner. It was contended that judicial review, which is i available in regard to every executive or administrative action of the State or to other Statutory or Public bodies does not extend to private persons like the respondent. Therefore, the remedy of the petitioner lies under private and not public law. 7. The third respondent also urged that the petitioner has placed duplicate cash memo/duplicate bills alleging that payment with respect to these bills has been made by the father of the petitioner, which is not true as the payment for the same has been made by him (third respondent) and that he was in possession of the same, which had been placed on record. Further it is stated that the present writ petition raises disputed question of facts which ordinarily cannot be adjudicated by this Court in the present proceedings. It is alleged that the petition contains a number of false and incorrect statements and thus or these objections, the respondent sought for the dismissal of the present writ. 8. Further it is stated that the present writ petition raises disputed question of facts which ordinarily cannot be adjudicated by this Court in the present proceedings. It is alleged that the petition contains a number of false and incorrect statements and thus or these objections, the respondent sought for the dismissal of the present writ. 8. The third respondent, on the merits of the petition, urges that the petitioner should be put under strict proof of the allegations, that on account of injury sustained by him there is a "total mental retardation" or that there was any negligence on part of that respondent, or anyone acting on his behalf. The third respondent states that the compensation claimed, to the tune of Rs. 1,00,00,000/-, is without any basis. The respondent admits to assignment of the job of installing syntax water tank after dismantling the existing cemented water taker tank on the roof-top of each building of flat Delhi Administration at Timarpur, Delhi. He, however, denies that any debris were being thrown from the roof-top in a careless or negligent manner, either by him or by anyone on his behalf. He also states that he strictly adhered to all safety precautions prescribed under the general conditions of the contract for CPWD, which governed contractors. He contends that the debris were being carried down either through staircase in tokris (baskets) or were eased down in tokris with the aid of a rope, thus completely eliminating the possibility of any material falling on the ground floor. 9. The third respondent states that the work was being carried out by the workers under supervision of the second respondent thus there was no question of any material being thrown down. The material, which had fallen to the ground, had actually slipped from the hands of a worker while placing it on the roof, which is not surrounded by a parapet wall. The fall was totally accidental and not within normal course. The respondent immediately rushed the petitioner to the hospital for treatment. It was further stated in the reply that the expenditure on the petitioners medical treatment at Tirath Ram Hospital including medicines along with the expenditure for his diet and expenses of the attendant were borne by the third respondent. In support of this assertion, photocopies of the bills paid to hospital were annexed. It was further stated in the reply that the expenditure on the petitioners medical treatment at Tirath Ram Hospital including medicines along with the expenditure for his diet and expenses of the attendant were borne by the third respondent. In support of this assertion, photocopies of the bills paid to hospital were annexed. The respondent denies ever exerting pressure on the petitioners father to get him discharged from the Hospital, he denies interfering with the petitioners securing admission in any other hospital. 10. The third respondent filed a second counter affidavit registered contractor of Respondent No.5 for last more that, incident ever took place during his entire period of such work. K Power of Attorney executed in favour of respondent No.2 and on the third respondent claims to being at home due to illness on the relevant day. He immediately rushed to the hospital on receiving the news of the accident. It was further stated that the petitioner went running after parking the cycle in the garage and he may have fallen down as he was racing with his cousin to reach the home first and that there is no eyewitness of the accident. The third respondent alleges that there is no proof that the accident occurred, resulting in the petitioners injury, as claimed, due to his (third respondents) workers negligence. No blood stains were traced on the cover of the water storage tank, which had allegedly caused the injury. 11. The third respondent reiterated the averments, and disclaimed liability, during the hearing. His Counsel further alleged the petitioners condition was grossly exaggerated by the specialists report of the AIIMS. Mr. Dhingra, learned Counsel for the third respondent urged that the petitioner was undergoing education in the village, which was evident from the information received from one Sh. Ram Gopal, who paid a visit at the permanent residence of the petitioner on 24th and 25th of April, 2005. 12. It was argued that the third respondent could not be saddled with any liability, since the incident the nature of injury, the alleged negligence, were all disputed-questions of fact for deciding which writ proceedings under Article 226 of the Constitution are inappropriate. Counsel submitted that the Court should not be swayed by sympathy, since the extent of injury, and even the incident itself was based on assumptions. Counsel submitted that the Court should not be swayed by sympathy, since the extent of injury, and even the incident itself was based on assumptions. It was submitted that if indeed the petitioner had been subjected to disability, to the extent alleged by AIIMS experts, he would not have been able to qualify in the tenth and twelfth standard board examinations, which is precisely what he did. It was urged that though the Court can grant compensation against wrongful and tortuous actions of public authorities, this was not a case warranting such remedy, since the third respondent was, by no stretch of imagination a public official or agency, amenable to writ jurisdiction; his contract with the local government was not a public duty. Lastly, it was argued that to do justice to the petitioner, the Court should not do injustice to the third respondent, who is not guilty of any wrong-doing. 13. Respondent No.5, in its reply put forward the following preliminary objections; firstly, that the petition is misconceived and that the petitioner is trying to use the process of law to meet his ends; secondly, that the third respondent, who had contracted to carry out the maintenance work had taken all necessary safety measures and that its (fifth respondents) staff had inspected the site and found that all necessary steps were being taken. The fifth respondent denied any negligent activity by the third respondent and disclaimed its joint liability with Respondent Nos. 1-5. 14. On merits, the fifth respondent admitted the third respondent being its contractor, but denied that the contract was passed in favour of the second respondent also. It was pleaded that the second and third respondents were working under the authority of the fifth pendent and that the work was in progress at the time of the accident. It is admitted that the accident took place due to slip of C.I. tank cover. The respondents further stated that the dismantling material was being collected on the terrace. Since the roof was inaccessible, the dismantled C.I. tank cover was being taken down manually, with the help of a rope and pulley in the backside service lane, which was enclosed by proper barricading. It was further denied that the petitioners father bore all the expenditure incurred at Tirath Ram Hospital. The third respondent incurred an expenditure of Rs. Since the roof was inaccessible, the dismantled C.I. tank cover was being taken down manually, with the help of a rope and pulley in the backside service lane, which was enclosed by proper barricading. It was further denied that the petitioners father bore all the expenditure incurred at Tirath Ram Hospital. The third respondent incurred an expenditure of Rs. 48,403/-, which the fifth respondent had intimated to the b higher authorities. It was stated that the third respondent donated blood to the petitioner at the Tirath Ram Hospital. This showed that the third respondent tried his best to the maximum extent. It is averred that the fifth respondent has no power to incur any expenditure on humanitarian grounds; it is also not a part of agreement between the third and the fifth respondent. The fifth respondent alleges to paying to the amount of Rs. 60,000/- on account of treatment at the Tirath Ram Hospital. It was further stated that the Minister of Land and Building directed the fifth respondent to make a payment of Rs. 14,220/- to the Tirath Ram Hospital, but the same could not be paid as there was no such condition in the agreement. The fifth respondent alleges that the accident occurred due to mistake of worker, and was unintended. Therefore, the petitioners allegation about negligence is denied as ill-founded. 15. By order dated 19.9.2001, an interim compensation of Rs. 25,000/- was awarded to the petitioner and further by order dated 18.12.2001, cost of Rs. 5,000/ - was imposed upon the respondent for failure to comply with the order dated 19.9.2001. These amounts were finally promised to be paid, and were so paid, within three days of the passing of the order dated 12.2.2002, whereby the respondents were directed to draw a cheque for the said amounts in the name of the petitioner under the guardianship of Mr. Kishun Singh. 16. Learned Counsel for the petitioner urged that since the accident took place due to wrongful and negligent acts of the second and third respondents, who were doing the dismantling work under control and supervision of the fourth and fifth respondents, which are government bodies working under the first respondent, the said respondents are liable to pay compensation to the petitioner being jointly and severally liable. Reliance is placed on the decision reported as Smt. Darshan & Ors. v. Union of India, 79 (1999) DLT 432 (DB). Reliance is placed on the decision reported as Smt. Darshan & Ors. v. Union of India, 79 (1999) DLT 432 (DB). 17. During the hearing, the Court had appointed Ms. Anu Bagai as amicus curiae to assist in the proceedings. Learned amicus submitted that the committee of doctors of AIIMS, Department of Physical Medicine and Rehabilitation, who examined the petitioner, pursuant to an order of this Court, dated 13.9.2004 stated that: "D Opinion of the Medical Board As per the requirement of the Honble High Court, the opinion of the Medical Board on the queries raised is as follows- 1. It is hereby pointed out at the outset that the previous medical or X-ray films, etc. of the treatment of the patient were not produced before the Medical Board, despite clear instructions given in the order of the Honble High Court and our letter informing the patient to bring the same at the time of the examination by the Medical Board. 2. In the opinion of the Medical Board, based on the information provided by the patient in the history and the relevant clinical examination done, the cause of the patients condition could be due to head injury. 3. It is less likely that the patient was suffering from cerebral palsy, as indicated in one of the certificates issued by the office of the Chief Medical Officer, Jalaun, at ORAI (photocopy of the certificate was enclosed along with the Honble High Courts Orders). 4. The disability is caused to the patient because of mental retardation, triplegia (weakness and of left upper limb and both lower limbs), nocturnal enuresis and speech difficulty (dysarthria). As per the Gazette of India notification on the calculation of permanent physical impairment, the patient has multiple impairments. The sum total of present impairments amounts to the level of 85% (eighty-five percent) in relation to his whole body. 5. The usual recovery period for the recovery of such patients has already elapsed (reportedly it is more than five years after injury) hence the patient is likely to remain in this condition for the rest of his life, in other words, the condition is permanent." The amicus also pointed out to the affidavit filed on behalf of the fifth respondent, at the behest of the Court, requiring it to outline the safety code, which its contractors had to adhere to. Pursuant to that order, the said respondent filed an affidavit, enclosing the CPWD Safety Code. The relevant provision of that Code reads as follows: "The contractor shall provide necessary fencing and lights to protect the public from accident and shall be bound to bear the expenses of defence of every suit, action or other proceedings at law that may be brought by any person for injury sustained owing to neglect of the above precautions and to pay any damages and cost which may be awarded in any such suit, action or proceedings to any such person or which may, with the consent of the contractor be paid to compensation any claim by any such person." 18. Learned Counsel also relied on the judgments reported as Shyama Devi & Ors. v. National Capital Territory of Delhi & Ors., 19991 AD (Cr.) Del. 549. It was held by the Court in that case that a heavy duty of care lay upon the State since an explosive device was kept in the Malkhana. As the device was not defused, the duty of care was clearly breached by the State and its concerned officials. The State was held liable for the, death ensuing due to the negligent handling of the explosives. Learned Counsel submitted that all the ingredients of the negligent act, i.e. lack of protective fencing, negligent handling of the material, which slipped, fell down and injured the petitioner, lack of any meaningful supervision, stood established. The lasting nature of the injury and permanent character of the disability too had been proved, on record. In these circumstances, it mattered little whether the second and third respondents were independent contractors, or employees or agents of the official respondents. As long as they worked, which they did, for the latter, the negligence in the course of that work, and liability due to resulting injury was clearly that of the official respondents, i.e. the fifth respondent. 19. Learned Counsel submitted that proceedings under Article 226 of the Constitution of India, enable the Courts, to reach out to injustice, and make appropriate orders, including directions to pay damages or compensation. In the circumstances of this case, the petitioner is entitled to compensation for the life-long suffering he would have to undergo, and the trauma he underwent, while the injury was inflicted on him, due to the wrongful acts of the respondents. In the circumstances of this case, the petitioner is entitled to compensation for the life-long suffering he would have to undergo, and the trauma he underwent, while the injury was inflicted on him, due to the wrongful acts of the respondents. She also relied on the judgments reported as Delhi Jal Board v. Raj Kumar & Ors., IV (2005) ACC 746=2005 VIII AD Del 533; Chand (Shri) & Anr. v. Chief Secretary & Ors., 112 (2004) DL T 37=11 (2004) ACC 580=2004 IV AD Del 29; Col. Dharamvir Kataria v. Union of India, 79 (1999) DLT 683=1 (1999) ACC 553= AIR 1999 Del 291 ; Sunil Manoj Mathew & Anr. v. BSES Rajdhani & Ors., 2006 I AD Del 698; Wilkinson v. REA, Ltd., 1941 (2) All E.R. 50; British Road Service Ltd. v. Arthur V. Crutchley & Co. Ltd., (Factor Guards Ltd., Third Parties), 1967 (2) All E.R. 785; and H & N Emanuel Ltd. v. Greater London Council & Anr., 1971 (2) All E.R. 835, in support of the petitioners contention that third party contractors acts of negligence cannot be disclaimed by the employer, who would be liable for damages, to the person injured by such acts. 20. Mr. Dhingra, learned Counsel for the contractor, refuting the claim, submitted that the petition involves trial of questions of fact, which the Court should desist from going into in writ proceedings. It was urged that the nature of injuries in question, whether they were aggravated by the petitioners disregard of the ongoing renovation of the water tank, despite the residents being informed about it, correctness of the medical experts assessment, are disputed questions of fact. Counsel also submitted that the petitioner was not disabled to the extent it was made out, and that he had in fact appeared in the Secondary School Board examinations, successfully. In these circumstances, the present proceedings are inappropriate to assess civil liability; in any case, a petition under Article 226 of the Constitution of India cannot be maintained against second and third respondent. Maintainability of proceedings under Article 226 of the Constitution of India 21. The concept of compensation under public law, for injuries caused due to the negligence inaction or indifference of public functionaries or for the violation of fundamental rights is not a novelty in Indian jurisprudence. Maintainability of proceedings under Article 226 of the Constitution of India 21. The concept of compensation under public law, for injuries caused due to the negligence inaction or indifference of public functionaries or for the violation of fundamental rights is not a novelty in Indian jurisprudence. The power of the High Courts and the Supreme Court under Article 226 and Article 32 respectively, to mould the relief so as to compensate the victim has been affirmed by the Supreme Court on numerous occasions including Common Cause, A Registered Society v. Union of India, VI (1999) SLT 442=1 (2000) CCR 5 (SC)= (1999) 6 SCC 667 , Chairman, Railway Board v. Chandrima Das, 1(2000) SLT 508=1 (2000) CLT 292 (SC)= (2000) 2 SCC 465 , Delhi Domestic Working Womens Forum v. Union of India, (1995) 1 SCC 14 , D.K. Basu v. State of W.B., (1997) 1 SCC 416 , Rudul Shah v. State of Bihar, (1983) 4 SCC 141 . The concept of compensation under public law must be understood as being different from the concept of damages under private law. Compensation under public law must not be merely seen as the moneyed equivalent of the injury caused, but must be understood in the context of the failure of the State to protect the valuable rights of the citizens, more so in the case of the marginalized and the oppressed. 22. It has long been established that the right to life enshrined in Article 21 is not a right to mere vegetative ("animal") existence, but to a life with dignity and a decent standard of living. The injury, which an individual or citizen incurs as a result of the State or its agencies neglect to perform its duties, is as actionable in public law, as in tort. In this background the failure of the State to prevent the occurrence of negligent acts by its employees, or those who are accountable to it, within promises under its control, strikes at the very root of the right guaranteed under Article 21 of the Constitution of India. 23. In Chal1drinza Das (supra) the Supreme Court mentioned about obligation of the States to ensure that women are not victims of violence, including rape and held that this right is consistent with the right to life under Article 21, of all who are protected by our Constitution. 23. In Chal1drinza Das (supra) the Supreme Court mentioned about obligation of the States to ensure that women are not victims of violence, including rape and held that this right is consistent with the right to life under Article 21, of all who are protected by our Constitution. In that case, the aggrieved was a victim of rape committed upon her in a railway compartment. The Court brushed aside the Central Governments disclaimer of liability, and declared that the right of the victim under Article 21 had been violated. It awarded Rs. 10 lakh as public law damages. It is noteworthy to see that the Court did not see who was the real perpetrator, or what duty he owed to the Government; it was held sufficient that the wrong occurred in a railway coach, which was under the control of the railway authorities. 24. It would also be useful to notice the observations of the Supreme Court, in Nilabati Behera v. State of Orissa, II (1993) CCR 107 (SC)= (1993) 2 SCC 746 , at page 762: "a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle, which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers." As far as the argument of the respondents to the efficacy of the writ remedy, under Article 226 of the Constitution of India is concerned, the Supreme Court held, in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553 , that merely because one party to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the disputants to a suit. The Court observed that in an appropriate case, the Court has the jurisdiction to entertain a writ petition involving disputed questions of fact, since there is no absolute bar for entertaining such cases. Analysis of facts 25. From the preceding factual narrative, it can be seen that the petitioner, though not living in Delhi, had come visiting, in order to pursue his studies; he wanted to secure admission in some school here. At that time, he was staying with his aunt (Bua), in the quarters of the Government of NCT of Delhi. There is no dispute that work relating to removal of cemented tanks, located on the roof of those quarters was being undertaken; the second and third respondent were given the contract, for that purpose. On the fateful day, i.e. 25th September, 1999, when the third respondents workers were dismantling the cement tank, material fell down. The petitioner was passing by; he received head injuries, leading to bleeding. 26. There is no dispute that the petitioner also was admitted to the Tirath Ram Hospital; and remained there for a month; he was operated ~here a first information report, alleging commission of the offence under Section 338 (causing grievous hurt due to grave and negligent act was lodged. The first, fourth and fifth respondents in their affidavit disclosed that the contractor, according to their guidelines was duty-bound to take safety precautions. The report of medical experts, who examined the petitioner under directions of this Court, reveals that his head injury has resulted in 85% disability, which is of permanent nature. The experts even characterized the condition as "medical retardation". Both the sets of respondents, i.e. the contractor and the official respondents, are disclaiming any responsibility. 27. The respondents do not deny the incident; it is not even denied that the concrete slab fell from the roof-top; however the contractor tries to allege contributory negligence of the petitioner. They also allege that the roof did not have a parapet wall both sets of respondents allege that all precautions were taken and that the injury was the result of an accident. They also allege that the roof did not have a parapet wall both sets of respondents allege that all precautions were taken and that the injury was the result of an accident. In cases where a plaintiff claims damages, the normal rule is that he is under a duty to prove the circumstances which entitle him to a decree. However, if in a given case, it can be shown that the plaintiff is the victim of an accident, the precise causes are unknown to him, and can be better explained by the defendant, the maxim res ipsa loquitur would apply. This rule was explained in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. (P) Ltd., (1977) 2 SCC 745 : "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 this case, the accident, injury and petitioners hospitalization, his examination by AIIMS, admission that the material slipped accidentally are conceded or uncontroverted facts. As to who was really responsible the contractor or the State agencies (whose lack of adequate supervision, failure in putting up a parapet wall which might have prevented the fall of debris are all within the knowledge of the respondents. As to who was really responsible the contractor or the State agencies (whose lack of adequate supervision, failure in putting up a parapet wall which might have prevented the fall of debris are all within the knowledge of the respondents. The repair works were in the premises owned and maintained by the fifth respondent it contracted with respondents 1 and 2 to get them done. In view of these circumstances, this is a fit case where the rule of res ipsa loquitor should apply, and is accordingly invoked by the Court. Duty of care 28. The official respondents, from whom the petitioner primarily claims compensation in these public law proceedings, disclaim liability, on the ground that the acts of the third respondent cannot result in their liability. In this context, the petitioner had relied on several judgments. It would be necessary to consider the nature of duty of the official respondents. Here, there cannot be any denial that the first and fourth respondents owned the premises where I accident occurred. They also are under a duty to keep them under good repair it was in the course of such act, in replacing a water tank that the accident occurred. The question whether the said official respondents can say that sir the acts were being done by a third party contractor, they are not liable. 29. Delhi Jal Boards case (supra) involved a petitioner, who while riding a scooter drove over a manhole, that was three inches below the regular road surface and met with an accident. The Court held the Jal Board liable and observed that when power is given to do some act, it is often coupled with duty to do that act properly. Therefore, the principle of strict liability applicable against the State also. The Court further held that in cases where principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendants may not have been at any fault. Chand (Shri) & Anr. was a case where the petitioners son suffered a tragic death when a concrete slab from the water tank fell on his head at the UTSC complex, PWD (E) Delhi. Chand (Shri) & Anr. was a case where the petitioners son suffered a tragic death when a concrete slab from the water tank fell on his head at the UTSC complex, PWD (E) Delhi. The Court held, that it was undoubtedly the duty the respondents (Chief Secretary, NCTD and Chief Engineer, PWD zor NCTD) to maintain the water tank and other amenities in the building in manner so as not to endanger the lives of the passers by or those using said facilities. The Court held the respondents guilty of negligence and awarded compensation. In Col. Dharamvir Kataria the petitioners wife died due to fall in the pit of the lift. The lifts were installed by MI s. Bharat Bijlee Limited under the supervision of CPWD. Contract for the operation and day-care of the lifts was awarded to MI s. A.G. Enterprises. The CPWD office notings revealed that for a lift operator with knowledge of the lift mechanism and an attendant was to be provided, which was not done. As to who should pay compensation the Court held: "... in the first instance, the compensation shall be paid by the first respondent-Union of India as its functionary, the third respondent (Director General of Works), was negligent in discharge of its duty which resulted in the breach of the right of Mrs. Mangla Kataria to life guaranteed by Article 21 of the Constitution. It will, however, be open to the Union of India and the third respondent to proportionately recover the amount for the fourth and fifth respondents (M/s. Bharat Bijlee Limited and M/s. A.G. Enterprises) as they were equally guilty of culpable negligence." 30. In Chitra Chary (Smt.) & Ors. v. DDA & Ors., III (2004) ACC 866=2005 (1) AD Del 29, Delhi Development Authority had awarded the work of construction to a private contractor. The work required trenches to be dug. The terms of contract required the contractor to take certain precautions, which were not adhered to. Due to this negligence petitioner No. ls husband fell into the trench and later on died. It was held: "facts as noted aforesaid reflect the general cynical irrelevance towards safety norms to be followed as one notices everyday whenever Municipal agencies carry out construction work either by themselves or through a contractor. The facts evidence that usual mood of complacency seen each day. It was held: "facts as noted aforesaid reflect the general cynical irrelevance towards safety norms to be followed as one notices everyday whenever Municipal agencies carry out construction work either by themselves or through a contractor. The facts evidence that usual mood of complacency seen each day. What is listed as a safety measure is observed more in breach and less in compliance. This Court has witnessed construction of flyovers in Delhi, digging of roads for sewer, repair work, etc., safety norms are found not being adhered to. It is the bounden duty of Municipal agencies to ruthlessly require adherence to the safety norms in their minutest detail and in their exacting requirements. Evidence on record conclusively establishes breaches of putting barricades for the safety of passers by." It was also held that: "any activity under authority of the State has to be reckoned as that of the State as itself. The State has to be held vicariously liable". In Sunil Manoj Mathew & Anr. v. BSES Rajdhani & Ors., 2006 (I) AD Del 698, a person died in a fatal accident caused due to a metal ladder used for repairing street lighting rolling down from the pavement to the main road resulting in a collision with the motor-cycle of the deceased. It was held by the Court that: "... In any event it is not denied by BSES that the ladder was being used for repairing street lighting. This responsibility or duty is entirely that of BSES. The fact that the BSES had contracted this duty and responsibility to Shri Mudrax Parashar will not absolve it of its to liability. If the liability is not direct, it is certainly vicarious in nature..... Public and Civic Authorities have on a rampant and ubiquitous scale adopted a cavalier and careless attitude in fulfilling their functions, totally oblivious of the hazards and dangers that are caused to the public by their negligent functioning." 31. If the liability is not direct, it is certainly vicarious in nature..... Public and Civic Authorities have on a rampant and ubiquitous scale adopted a cavalier and careless attitude in fulfilling their functions, totally oblivious of the hazards and dangers that are caused to the public by their negligent functioning." 31. Long ago, describing the duty of care owed by an employer of a contractor, to members of the public, it was explained, in Penny v. Wimbledon Urban District Council, 1899 2 Q.B. 72 that: "when a person employs a contractor to do in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public an obligation is thrown upon the persons who orders the work to be done to see that the necessary precautions are taken and that, if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor." In Wilkinson, the Court was dealing with a fact situation whereby the plaintiff was injured by reason of his falling into an open hatch of a ship. The ship was in dry dock at the time of the accident and the contractors engaged by the owners were engaged in putting coal in a bunker through a hatch. It was held that: "...the defendant (that is the occupier) is not absolved by the fact of the coal merchant being employed, and of the injury being the consequence of his immediate act. Unquestionably, no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the course of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of work he or his servants commit some casual act and in the course of work he or his servants commit same casual act of wrong or negligence, the employer is not answerable. To this effect are many authorities, which were referred to in the argument. That rule is, however, inapplicable to cases, in which the act which occasions the injury is one which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned. To this effect are many authorities, which were referred to in the argument. That rule is, however, inapplicable to cases, in which the act which occasions the injury is one which the contractor is entrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned. Now, in the present case, the defendant employed the coal merchant to open the trap in order to put in the coals and he trusted him to guard it whilst open, and to close it when the coals were all put in. The act of opening it was the act of the employer, though done through the agency of the coal merchant and the defendant having thereby caused danger, was bound to take reasonable means to prevent mischief. The performance of this duty he omitted; and the fact of his having entrusted it to a person who also neglected it furnishes no excuse, either in good sense or law." In the decision H & N Emanuel Ltd. (supra) the London County Council (LCC), the predecessors in title of Greater London Council (GLC) owned site on which two prefabricated bungalows had been erected. GLC asked the Ministry of Housing to remove the bungalows. Ministry of works engaged an independent contractor to do the same. The contract between the Ministry of Works and the independent contractor provided that no rubbish was to be burnt on the site. The contractors men in breach of this term started a fire or the site, sparks from which were blown over to the neighbouring premises belonging to the plaintiff. The plaintiff sued GLC for the damage caused. The Court, holding the LCC liable, held that: "the liability of the occupier can be said to be a strict liability in this sense that he is liable for the negligence not only of his servants but also of independent contractors and, indeed, of anyone except a stranger...." "...the contractors men were not strangers. They were present on the site with the leave and with the knowledge of LCC.." "... the LCC were occupiers and might in the ordinary way, of course, have owed some sort of duty to a neighbour; but here this work was all being done by the Ministry of Works, and you cannot call them independent contractors, and so on. They were present on the site with the leave and with the knowledge of LCC.." "... the LCC were occupiers and might in the ordinary way, of course, have owed some sort of duty to a neighbour; but here this work was all being done by the Ministry of Works, and you cannot call them independent contractors, and so on. Now it seems to me that if an occupier owes a duty, he cannot by handing over the performance of the work on his and to somebody else refrain from any sort or kind of supervision, say: Well I have delegated my responsibility to the Ministry. I think the LCC and consequently the GLC are liable for what was in effect the negligence of the Ministry of Works in failing to supervise the activities of the contractor. The Ministry of Works was on the site with leave and licence and indeed at the request of the LCC and the LCC cannot escape liability for their act or omission..." 32. In the earlier part of this judgment, it was emphasized that the primary duty of care lay with the official respondents, i.e. the first, fourth and fifth respondent. The Govt. of NCT owned the premises; the water tank was being replaced by it. The contractor too was engaged by the Govt. of NCT of Delhi. There was no privity of contract between the petitioner and the contractors; yet the latters actions led to the injury. The circumstances by which the injury occurred clearly entitle the Court to also invoke the principle of res ipsa loquitur, requiring the respondents to explain why they should not be saddled with liability, since the detailed facts pertaining to the incident, were within their peculiar knowledge. Those facts, which they can be in possession of, relating to the incident, are not also forthcoming. Therefore, applying the principle of vicarious liability, for acts of the contractor, it is held that the first, fourth and fifth respondents are liable to pay compensation. 33. That brings the Court to the question of appropriate compensation. The medical experts report, inter alia, recorded that: "...... The sum total of present impairments amounts to the level of 85% (eighty-five percent) in relation to his whole body. 33. That brings the Court to the question of appropriate compensation. The medical experts report, inter alia, recorded that: "...... The sum total of present impairments amounts to the level of 85% (eighty-five percent) in relation to his whole body. The usual recovery period for the recovery of such patients has already elapsed (reportedly it is more than five years after injury) hence the patient is likely to remain in this condition for the rest of his life; in other words, the condition is permanent." This Court had directed payment of interim compensation of Rs. 25,000/ -. The question is what should be the appropriate amount payable to the petitioner as compensation. 34. In such cases, there is no statute law; there is an element of inappropriateness in borrowing from other statutes for assessment of damages. How~ ever, the Court has to take into consideration various factors. Here, the petitioner was not even ten years when the accident occurred. He underwent medical treatment; according to the doctors, the extent of injury is described as 85% disability. The accident, is attributable to the acts of the first, fourth and fifth respondent, who did not ensure proper supervision of the area, to avoid it. That these respondents had an internal arrangement with the second and third respondents, to disclaim any liability/does not absolve them from the duty of care, and the liability arising from injuries neglect of that duty of care. 35. Considering that the petitioner cannot lead a normal life, and would have to be cared specially throughout his life, and his chances for education and employment are vastly diminished, it is held that the first, fourth and fifth respondent are liable to pay compensation to the petitioner. In the facts of this case, the Court directs the said three respondents to pay Rs. 10,00,000/- (Rupees ten lakh only). The said amount shall be disbursed, and kept in the Registry of this Court; it shall be kept in an interest bearing fixed deposit in a nationalized bank, and renewed from time-to-time. The Registrar shall periodically disburse the said interest to the petitioner, through his father, every quarter. The petitioner or his father, shall be present every second Tuesday of March, June, September and to receive the proceeds of the fixed deposit. The Registrar shall periodically disburse the said interest to the petitioner, through his father, every quarter. The petitioner or his father, shall be present every second Tuesday of March, June, September and to receive the proceeds of the fixed deposit. If for some reason, the amounts are required, the petitioner may apply to the Court It is further directed that the first respondent shall take steps to ensure the petitioners medical needs, for the rest of his life are attended to in addition, he shall be entitled to the benefits admissible under the persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participations) Act, 1995. 36. The Court records its appreciation to the services rendered by the amicus, Ms. Bagai. For the above reasons, the petition is allowed; the Respondent Nos. 1,4 and 5 shall bear the costs of the writ petition, quantified at Rs. 30,000/-, which shall be paid to the petitioner, within four weeks. Petition allowed.