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2021 DIGILAW 170 (MP)

Vijay Singh v. Municipal Corporation, Gwalior

2021-02-17

G.S.AHLUWALIA

body2021
1. This writ petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:- That directed to respondent authority to pay the compensation to the petitioner Rupees 8 Lacs on account of negligence and dereliction of public duty on the their part resulted in untimely death of Mother of petitioner by attack of stay of cow horns along with interest @ 18% per month. Any other relief which this hon'ble Court deems fit in the facts and circumstance of the case may also kindly be granted.'' 2. It is submitted by the counsel for the petitioner that he is the resident of Village Gram Mathuri Ka Pura, Post Chareta, PS Endore, Tahsil Gohad, District Bhind and his source of livelihood is the agricultural work. The petitioner was residing along with her 80-year old mother. It is submitted that on 21.7.2019 when the mother of the petitioner was going to Panchshil Nagar, Mela Ground, Gwalior along with her nephew, she was assaulted by one stray cow, as a result of which the mother of the petitioner suffered enormous injuries and ultimately, succumbed. It is submitted that it is the duty of the Municipal Corporation, Gwalior to control the stray cattle and as the respondent No.1 has failed to discharge its duty, therefore, the petitioner is entitled for compensation for the death of his mother and accordingly, a compensation to the tune of Rs.8,00,000/- has been sought by filing this petition with interest @ 18 per cent per month. 3. Per contra, the respondents have raised a preliminary objection with regard to the maintainability of this writ petition. When the petitioner was asked to argue on the question of maintainability of this writ petition, then he immediately submitted that the question of maintainability has already been considered and upheld by this Court while issuing notice, therefore, now, the question of maintainability of this writ petition cannot be raised by the respondents. 4. Considered the submissions made by the counsel for the petitioner. 5. This Court, by order dated 16.12.2020 while issuing notice, has observed as under :- “The issue with regard to maintainability of the present petition is kept open for consideration after notice is served”. 6. Thereafter, on 3.2.2021, none appeared for the petitioner and on that date also, the respondents raised an objection with regard to maintainability of this writ petition. 7. 6. Thereafter, on 3.2.2021, none appeared for the petitioner and on that date also, the respondents raised an objection with regard to maintainability of this writ petition. 7. It is really shocking that the counsel for the petitioner did not waste a single minute in making a statement which was just contrary to the order sheets of the Court. It is always expected from a counsel that he would assist the Court and would not indulge himself in making the false statements which are per se contrary to the record. 8. Be that whatever it may. 9. It is submitted by the counsel for the petitioner that the Delhi High Court in the case of Shakuntala v. Govt. of NCT of Delhi and Anr. by judgment dated 1.7.2019 passed in WP (C) No.13771/2006 has held that the tortious compensation can be awarded under Article 21 of the Constitution of India. 10. Heard the learned counsel for the petitioner. 11. The petitioner has filed a copy of Samagra ID according to which the father of the petitioner is still alive. However, this petition has not been filed on behalf of the husband of the deceased. Thus, it appears that the petition has been filed by the petitioner himself by projecting himself a sole legal heir of the deceased, whereas the deceased is survived by her husband also. Therefore, this petition is liable to be dismissed on the ground of non-joinder of all legal representatives. Furthermore, various disputed questions of fact are involved. The complaint under section 164 of CrPC was lodged by the petitioner in which he had stated that on 21.7.2019 his mother late Sujja Bai was going along with her nephew Amra Singh to Panchshil Nagar, Gole Ka Mandir, Mela Ground, Gwalior. When she disembarked the bus near the Mela Ground, then she was attacked by a cow as a result of which she sustained injuries and expired on 22.7.2019. It is not mentioned in the FIR that his mother was attacked by a stray cow. As per the MLC report, the mother of the petitioner was having four injuries on her body with abrasions of reddish brown in colour over left side of parietal region with duramater tense and congested and sub-arachnoid hemorrhage all over the cerebral surface of brain was found. As per the MLC report, the mother of the petitioner was having four injuries on her body with abrasions of reddish brown in colour over left side of parietal region with duramater tense and congested and sub-arachnoid hemorrhage all over the cerebral surface of brain was found. 12.In the postmortem report, it is nowhere mentioned that the injuries were sustained due to attack by a cow. In order to claim that the mother of the petitioner was attacked by a cow, there is no document except the copy of the complaint made by the petitioner under section 164 of CrPC. It is not the case of the petitioner that he was the eye-witness. On the contrary, his case is that the mother of the petitioner was going along with her nephew. The petitioner has not filed an affidavit of Amar Singh to substantiate the allegation that the mother of the petitioner was attacked by a stray cow. Furthermore, if the cow is owned by some private person, then he is also a necessary party. Thus, various disputed questions are involved. This Court while exercising the power under Article 226 of the Constitution of India cannot adjudicate the disputed questions of fact. This Court while exercising the power under Article 226 of the constitution of India can grant compensation only when the nature of accident is undisputed. 13.Accordingly, the respondents were right in objecting that looking to the disputed questions of fact which are involved in the present case as well as in absence of all the legal heirs of the deceased, this petition is not maintainable. Accordingly, this petition is dismissed with liberty to the petitioner that if so advised, then all the legal heirs of the deceased can file a properly constituted civil suit for adjudication of their claim. 14.With aforesaid observations, the petition is finally disposed of.