Neelam & Ors v. Mcd

RAJIV SAHAI ENDLAW, J. AUGUST 06, 2015/bs (corrected & released on 21st October, 2015)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th August, 2015. + RFA No.624/2005 & CM No.2869/2011 (for directions) NEELAM & ORS. ..... Appellants Through: Mr. J.P. Tiwari, Adv. Versus MUNICIPAL CORPORATION OF DELHI & ORS. ...... Respondents Through: Mr. Vikram Nandrajog, Adv. for R-2. Mr. Rajmangal Kumar and Mr. S.K. Dubey, Advs. for R-3. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 28th May, 2003 of the Court of Ms. Asha Menon, Additional District Judge of dismissal of Suit No.50/1996 (instituted on 16th September, 1996) filed by the appellants for recovery of compensation of Rs.4,50,000/- for causing death by negligence of the husband of the appellant / plaintiff No.1 and the father of the appellants / plaintiffs No.2&3. 2. Notice of the appeal was issued. On 12th July, 2004 the appeal was dismissed for non-prosecution but on application for restoration being filed by the appellants restored to its original position. The application of the appellants for preferring this appeal as an indigent person was allowed on 23rd August, 2005. The Municipal Corporation of Delhi (MCD) (Delhi Electric Supply Undertaking (DESU)) against which the suit as well as the appeal were filed was during the pendency of the proceedings taken over by the Delhi Vidyut Board (DVB) and on privatisation of power supply in Delhi, DVB was also unbundled and accordingly North Delhi Power Limited (NDPL) and Delhi Power Company Limited (DPCL) have been impleaded as respondents No.2&3. The appeal, on 19th May, 2008 was admitted for hearing and ordered to be taken up as per its turn. The appeal, again on 27th October, 2009 was dismissed in default of appearance of the appellants; the application for restoration filed was also dismissed for non-prosecution. However, vide order dated 8th December, 2010, the appeal was restored to its original position and again listed for hearing as per its turn. Finding the matter to be old, it was directed to be listed in the category of "After Notice Miscellaneous Matters" on 9th July, 2015 and the counsels sent for and the appeal posted for hearing for today. 3. Counsels have been heard and the Trial Court record perused. 4. The appellants / plaintiffs had instituted the suit as indigent persons pleading: (i) that the husband of the appellant / plaintiff No.1 and the father of the appellants / plaintiffs No.2&3, was a driver by profession and on 2nd August, 1996, when he was 27 years old, while plying his Tempo near Police Station-Alipur, Delhi went into a field to ease himself; while coming back from the field, he came in touch with a live wire left naked due to negligence of the respondents MCD and Govt. of Delhi and was electrocuted and died on the spot; (ii) that First Information Report (FIR) No.29/1996 of Police Station-Alipur under Section 304-A of the I.P.C. was registered against DESU; (iii) that the deceased, besides leaving the three appellants / plaintiffs also left a baby daughter; (iv) that the death of the predecessor of the appellants / plaintiffs was on account of the negligence of the respondents. Accordingly, compensation of Rs.4,50,000/- was claimed. 5. A perusal of the Trial Court record shows, (a) that the appellants / plaintiffs, on enquiry were permitted to sue as indigent persons; (b) that DESU/DVB filed a written statement denying any negligence and pleading that "one conductor of HT line from Rishal T off got snapped due to sabotage i.e. breaking of stay wire" and denying the other contents of the plaint for want of knowledge; (c) that on the pleadings of the parties, on 13th August, 2001, the following issues were framed: "1. Whether the death of Ram Niwas occurred on account of the negligence of the DVB? OPP 2. Whether the plaintiff is entitled to compensation from the DVB and if so, to what amount? OPP 3. Whether the plaintiff is entitled to interest and if so,