Municipal Corporation of Delhi v.

Subhagwanti
Equivalent citations: 1966 AIR 1750, 1966 SCR (3) 649 - Bench: Ramaswami, V., Subbarao,
K. - Citation: 1966 AIR 1750 1966 SCR (3) 649 - Date Of Judgment: 24/02/1966
a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a
number of persons. The structure was 80 years old whereas its normal life was 40-45 years.
The Municipal Corporation of Dellhi having the control of the structure failed to take care
and was therefore, liable.

ACT:
Negligence-Clock tower belonging to Municipal Committee falling Causing death of
persons by-Whether doctrine of res ipsa loquitur applies-Fatal Accidents Act, 1885, s.
1- Damages-Quantum-principles for determining.
HEADNOTE:
Three suits for damages were filed by the respondents as heirs of three persons who died as
a result of the collapse of the Clock Tower in Chandni Chowk, Delhi, belonging to the
appellant-Corporation, formerly the Municipal Committee of Delhi. The trial court held
that it was the duty of the Municipal Committee to take proper care of buildings so that they
should not prove a source of danger to persons using the highway as a matter of right, and
granted decrees of Rs. 25,000, Rs. 15,000 and 20,000 respectively to the plaintiffs in each
of the three suits.
On appeal to the High Court, although the decree for Rs. 25,000 in one of the suits was
maintained, the amounts of Rs. 15,000 and Rs. 20,000 in the other two decrees were
reduced to Rs. 7,200 and Rs. 9,000 respectively. The High Court held that the principle
of res ipsa loquitur applied to the case and considered that it was the duty of the
Municipal Committee to carry out periodical examination for the purpose of determining
whether deterioration had taken place in the structure of the building and whether
any precaution was necessary to strengthen it. Apart from superficial examination
from time to time, there was no evidence of an examination ever made with a view to
seeing if there were any latent defects making the building unsafe. In the appeal to this
Court, it was contended on behalf of the appellant that the High Court was wrong in
applying the doctrine of res ipsa loquitur to this case and that the fall of the clock tower
was due to an inevitable accident which could not have been prevented by the exercise of
reasonable care or caution; that since the defects which led to the collapse were latent,
the appellant could not be held guilty of negligence, and that in any event the damages
awarded were excessive.
HELD: The High Court was right in applying the doctrine res ipsa loquitur as in the
circumstances of the case the mere fact that there was a fall of the clock tower, which
was exclusively under the ownership and control of the appellant, would justify raising an
inference of negligence so as to establish a prima facie case against the appellant. [652 F,
H]
There is a special obligation on the owner of adjoining premises for the safety of the
structures which he keeps besides the highway. If these structures fall into
disrepair so as to be of potential danger to the passersby or to be a nuisance, the owner is
liable to anyone using the highway who is injured by reason of the disrepair. In such a
case it is no defence for the owner to prove that he neither knew nor ought to have
known of the danger. In other words, the owner is legally responsible irrespective of
whether the damage is caused by a patent or a latent defect.. (653 E-G]
650
Wringe v. Cohen, [1940] 1 K.B. 229, Mint v. Good, [1951] 1. K.B. 517 and Walsh v. Holst
and Co. Ltd. and Ors. [1958] 1 W.L.R. 800, referred to.
The High Court had applied the correct principles in estimation of the damages in all the
three appeals. Davies v. Powell Duffregn Associated Collieries Ltd. [1942] A. C. 601 and
Nance v. British Columbia Electric Railway Company Ltd. [1951] A.C. 601, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1102-1104 of 1963.
Appeals from the judgments and decrees dated November 27, 1959 of the Punjab
High Court (Circuit Bench) at Delhi in Civil Regular First Appeals Nos. 69-D, 71-D and 85-
D of 1963.
Bishan Narain, Sardar Bahadur and Arun B. Saharya, for the appellant (in all the
appeals).
N.D. Bali and Din Dayal Sharma, for the respondents (in ,C. As. Nos. 1102 and 1103 of
1963).
A. G. Ratnaparkhi, for respondent (in C.A. No. 1104 of 1963).
The Judgment of the Court was delivered by
Ramaswami, J. These appeals arise out of 3 suits for damages filed by the heirs of three
persons, namely Shri Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died
as a result of the collapse of the Clock Tower situated opposite the Town Hall in the main
Bazar of Chandi Chowk, Delhi belonging to the appellant-Corporation, formerly the
Municipal Committee of Delhi.
Suit No. 5 52 of 1952 was filed by the heirs of Shri Ram Parkash, suit No. 930 of 1951
was filed by the heirs of Smt. Panni Devi and suit No. 20 of 1952 was filed by Kuldip Raj
whose father, Gopi Chand was killed by the fall of the Clock Tower. All the suits were tried
by the Court of Subordinate Judge, 1st Class, and Delhi who disposed of all the suits by a
common judgment dated July 9, 1953. The Subordinate Judge granted a decree for a
sum of Rs. 25,000 to Shrimati Subhagwanti and other heirs of Ram Parkash in suit No.
552 of 1952, a sum of Rs. 15,000 to the heirs of Shrimati Panni Devi in suit No. 930 of
1951 and a sum of Rs. 20,000 to Kuldip Raj in suit No. 20 of 1952. It was held by the trial
court that it was the duty of the Municipal Committee to take proper care of buildings, so
that they should not prove a source of danger to persons using the highway as a matter of
right. The trial court rejected the plea of the Municipal Committee that in the case of
latent defects it could not be held liable and the Municipal Committee, as the owner of
the buildings abutting on the highway, was liable in negligence if it did not take proper care
to maintain the buildings in a safe condition. It was submitted against 651
the Municipal Committee before the trial court that, apart from superficial examination of
the Clock Tower from time to time by the Municipal Engineer, no examination was ever
made with a view to seeing if there were any latent defects making it unsafe.
Aggrieved by the decree of the trial court, the Municipal Committee filed appeals in the
High Court in all the three suits. On November 27, 1959 the High Court disposed of all the
appeals by a common judgment. The decree for Rs. 25,000 in suit No. 552 of 1952
was maintained, the amount of Rs. 15,000 awarded in suit No. 930 of 1951 in favour of
Munshi Lal and others was reduced to Rs. 7,200, and the amount of Rs. 20,000 awarded
in suit No. 20 of 1952 was reduced to Rs. 9,000. The High Court held that the
principle of res ipsa loquitur applied to the case. The High Court considered that it was the
duty of the Municipal Committee to carry out periodical examination for the purpose of
determining whether deterioration had taken place in the structure and whether any
precaution was necessary to strengthen the building. The High Court mainly relied on
the evidence of Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who
was invited by the Municipal Committee to inspect the Clock Tower after its collapse and
who was produced by them as their witness. The facts disclosed in his statement
and that of Mr. Chakravarty, the Municipal Engineer were that the building was 80 years
old and the life of the structure of the top storey, having regard to the type of mortar
used, could be only 40 to 45 years and the middle storey could be saved for another 10
years. The High Court also took into consideration the statement of Mr. Puri to the
effect that the collapse of the Clock Tower was due to thrust of the arches on the top
portion. Mr. Puri was of the opinion that if an expert had examined this building specifically
for the purpose he might have found out that it was likely to fall. The witness further
disclosed that when he inspected the building after the collapse and took the mortar in
his hands he found that it had deteriorated to such an extent that it was reduced to powder
without any cementing properties. These appeals are brought by the Municipal Corporation
of Delhi against the decree of the High Court dated November 27, 1959 in First Appeals No.
69-D of 1953, No. 71-D of 1953 and No. 85-D of 1953.
The main question presented for determination in these appeals is whether the appellant
was negligent in looking after and maintaining the Clock Tower and was liable to pay
damages for the death of the persons resulting from its fall. It was contended, in
the first place, by Mr. Bishen Narain on behalf of the appellant that the High Court was
wrong in applying the doctrine of res ipsa loquitur to this case. It was argued that the
fall of the Clock Tower was due to an inevitable accident which could not have been
prevented
652
by the exercise of reasonable care or caution. It was also submitted that there was
nothing in the appearance of the Clock Tower which should have put the appellant on
notice with regard to the probability of danger. We are unable to accept the argument of the
appellant as correct. It is true that the normal rule is that it is for the plaintiff to prove
negligence and not for the defendant to disprove it. But there is an exception to this rule
which applies where the circumstances surrounding the thing which causes the
damage are at the material time exclusively under the control or management of
the defendant or his servant and the happening is such as does not occur in the
ordinary course of things without negligence on the defendant's part. The principle has been
clearly stated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows: "An
exception to the general rule that the burden of proof of the alleged negligence is in the first
instance on the plaintiff occurs wherever the facts already established are such that
the proper and natural inference immediately arising from them is that the injury
complained of was caused by the defendant'snegligence, or where the event charged
as negligence tells its own story' of negligence on the part of the defendant, the story so
told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies.
Where the doctrine applies, a presumption of fault is raised against the defendant, which, if
he is to succeed in his defence, must be overcome by contrary evidence, the burden on
the defendant being to show how the act complained of could reasonably happen without
negligence on his part." In our opinion, the doctrine of res ipsa loquitur applies in the
circumstances of the present case. It has been found that the Clock Tower was
exclusively under the ownership and control of the appellant or its servants. It has also
been found by the High Court that the Clock Tower was 80 years old and the normal life of
the structure of the top storey of the building, having regard to the kind of mortar used,
could be only 40 or 45 years. There is also evidence of the Chief Engineer that the collapse
was due to thrust of the arches on the top portion and the mortar was deteriorated to
such an extent that it was reduced to powder without any cementing properties. It is
also not the case of the appellant that there was any earthquake or storm or any
other natural event which was unforeseen and which could have been the cause of the fall
of the Clock Tower. In these circumstances, the mere fact that there was fall of the
Clock Tower tells its own story in raising an inference of negligence so as to establish a
prima facie case against the appellant.
653
We shall proceed to consider the main question involved in this case namely, whether the
appellant, as owner of the Clock Tower abutting on the highway, is bound to maintain it
in proper state of repairs so as not to cause any injury to any member of the public using
the highway and whether the appellant is liable whether the defect is patent or latent. On
behalf of the 'appellant Mr. Bishen Narain put forward the argument that there were no
superficial signs on the structure, which might have given a warning to the appellant that
the Clock Tower was likely to fall. It is contended that since the defects which led to the
collapse of the Clock Tower were latent the appellant could not be held guilty of
negligence. It is admitted, in this case, that the Clock Tower was built about 80
years ago and the evidence of the Chief Engineer is that the safe time-limit of existence
of the building which collapsed was 40 or 45 years. In view of the fact that the building
had passed its normal age at which the mortar could be expected to deteriorate it
was the duty of the appellant to carry out careful and periodical inspection for the
purpose of determining whether, in fact, deterioration had taken placed whether any
precautions were necessary to strengthen the building. The finding of the High Court is
that there is no evidence worth the name to show that any such inspections were carried
out on behalf of the appellant,and, in fact, if any inspections were carried out, they were of
casual and perfunctory nature. The legal position is that there is a special obligation on
the owner of adjoing premises for the safety of the structures which he keeps besides the
highway. If these structures fall into disrepair so as to be of potential danger to the passers-
by or to be a nuisance, the owner is liable to anyone using the highway who is injured by
reason of the disrepair. In such a case it is no defence for the owner to prove that he
neither knew nor ought to have known of the danger. In other words, the owner is legally
responsible irrespective of whether the damage is caused by a patent or a latent defect.
In Wringe v. Cohen (1) the plaintiff was the owner of a lock-up shop in Proctor Place,
Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant
had let his premises to a tenant who had occupied them for about two years. It
appears that the gable end of the defendant's house collapsed owing to a storm, and
fell through the roof of the plaintiff's shop. There was evidence that the wall at the gable
end of the defendant's house had, owing to want of repair, become a nuisance, i.e., a
danger to passers by and adjoining owners. It was held by the Court of Appeals that
the defendant was liable for negligence and that if owing to want of repairs premises on a
highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining
owner suffers damage by the collapse the occupier or the owner if he has undertaken the
duty of repair, is answerable (1) [1940] 1 K.B. 229.
llSup. Cl/66--10
654
Whether he knew or ought to have known of the danger or not. At page 233 of the Report
Atkinson, J. states: " By common law it is an indictable offence for an occupier of premises
on a highway to permit them to get into a dangerous condition owing to non-repair. It
was not and is not necessary in an indictment to aver knowledge or means of knowledge:
see Reg. v. Watson [(1703) 2 Ld. Raym. 856]. In Reg. v. Bradford Navigation Co. [(1865) 6
B. & S. 631, 651] Lord Blackburn (then Blackburn J.) laid it down as a general principle of
law that persons who manage their property so as to be a public nuisance are indictable.
In Attorney- General v. Tod Heatley [(1897) 1 Ch. 560] it was clearly laid down that
there is an absolute duty to prevent premises becoming a nuisance. 'If I were sued for a
nuisance, 'said Lindley L. J. in Rapier v. London Tramways Co. [(1893) 2 Ch. 588, 599],
'and the nuisance is proved, it is no defence on my part to say and to prove that I have
taken all reasonable care to prevent it.'"
The ratio of this decision was applied by the Court of Appeals a subsequent case in Mint
v. Good (1) and also in Walsh v. Holst and Co. Ltd. and Ors. (2) In our opinion, the same
principle is applicable in Indian law. Applying the principle to the present case it is
manifest that the appellant is guilty of negligence because of the potential danger of
the Clock Tower maintained by it having not been subjected to a careful and systematic
inspection which it was the duty of the appellant to carry out. The last question is regarding
the quantum of damages which requires separate consideration in each case. Section I of
the Fatal Accidents Act, 1855 (Act XIII of 1855) reads:
" Whenever the death of a person shall be caused by wrongful act, neglect or default, and
the act, neglect or default is such as would (if death had not ensued) have entitled the
party injured to maintain an action and recover damages in respect thereof, the party
who would have been liable if death had not ensued shall be liable to an action or suit for
damages, notwithstanding the death of the person injured, and although the death shall
have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if
any of the person whose death shall have been so caused, and shall be brought by and in
the name of the executor, administrator or representative of the person deceased; and in
every such action the court (1) (19511 1 K.B. 517.
(2) [1958] 1 W.L.R. 800
655
may give such damages as it may think proportioned to the loss resulting from such
death to the parties respectively, for whom and for whose benefit such action shall be
brought; and the amount so recovered, after deducting all costs and expenses, including
the costs. not recovered from the defendant, shall be divided amongst the before
mentioned parties, or any of them, in such shares as the Court by its judgment or decree
shall direct."
This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict.
Ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding provisions
of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies
v. Powell Duffryn Associated Collieries Ltd. (1) At page 617 of the Report Lord Wright
has stated the legal position as follows: "It is a hard matter of pounds, shillings and pence,
subject to the element of reasonable future probabilities. The starting point is the
amount of wages which the deceased was earning, the ascertainment of which to some
extent may depend upon the regularity of his employment. Then there is an estimate of
how much was required or expended for his own personal and living expenses. The balance
will give a datum or basic figure which will generally be turned into a lump sum by
taking a certain number of years' purchase. That sum, however, has to be taxed down by
having due regard to uncertainties, for instance, that the widow might have again married
and thus ceased to be dependent, and other like matters of speculation and doubt."
The same principle has been reiterated by Viscount Simon in Nance v. British Columbia
Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc. there is
evidence that Ram Parkash deceased was 30 years old at the time of the accident, his
widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years
old. The evidence adduced regarding the income of Ram Parkash and the amount of loss
caused to his widow and children was not satisfactory but the High Court considered
that the widow and children must have been receiving at least a monthly sum of Rs. 150 for
their subsistence and for the education of the children from the deceased Ram Parkash. The
income was capitalised for a period of 15 years and the amount of Rs. 27,000 which
was arrived at was more than what the trial court had awarded. The High Court accordingly
saw no reason for reducing the amount of damages awarded by the trial court. In the
case of Tek Chand and his four children, the High Court has estimated that the pecuni-
(1) [1942] A.C. 601.
(2) [1951] A.C. 601.
656
ary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if a period of
15 years is taken for the purpose of calculating the total sum, the amount will come
to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the
pecuniary loss at the rate of Rs. 50 pm. and the amount of damages calculated for a
period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied
the correct principle in estimation of the damages in all the three appeals and learned
Counsel has been unable to show that the judgment of the High Court on this aspect of
the case is vitiated for any reason. For the reasons expressed, we hold that there is no
merit in these appeals which are accordingly dismissed with costs. Appeals dismissed.
Contact Lawyers in India: http://www.legalserviceindia.com/lawyer …
s_home.htm