Topic: Municipal Corporation of Delhi v. Sushila Devi

Municipal Corporation of Delhi v. Sushila Devi
Bench: A.P.Misra, R.C.Lahoti - Date of Judgment: 07/05/1999

a person passing by the road died because of fall of branch of a tree standing on the road, on his head. The Municipal Corporation was held liable



On 18th    August,     1964, in the evening,    late Suresh Chander     and his brother Ramesh Chander were going on a scooter     from their office to their residence.    The deceased was driving the scooter and his brother was     riding     his pillion. When     they were passing against Sant Permanand Blind Relief Mission Building situated at 20, Alipur Road, a branch    of the neem tree standing there suddenly broke down and fell on the head of the deceased. His head was crushed. He was     rushed to Irvin Hospital where in spite of medical care and attendance, he died the next day at about 10    a.m. A piece of wood was found embedded into his brain for which a surgery had also to be performed on the deceased.

The deceased was survived by a widow, three minor sons and a minor daughter and his mother. All the six brought a suit for damages claiming Rs.3 lacs. A learned Single Judge sitting     on the Original side of the High Court held     the Municipal Corporation of Delhi liable for damages in torts and granted a decree of Rs.90,000/- by way of    compensation payable     to the widow and the children of the deceased.     Two Letters     Patent     Appeals were     preferred. The Municipal Corporation sought for the suit being dismissed while     the claimants sought for enhancement in the     amount     of compensation. The Division Bench dismissed the appeal filed by the Corporation but at the same time partly allowed     the appeal    preferred by the claimants enhancing the amount of compensation to Rs.1,44,000/- payable with interest calculated at the rate of 6 per cent per annum from the date of suit, i.e., 5.8.1966 till 17.9.1970 when the amount     was deposited by the Corporation in the Court for payment to the successful claimants.     The Division    Bench also allowed interest at the rate of 3 per cent per annum on Rs.90,000/- from the date     of deposit in the Court till the date of actual withdrawal of    the amount by     the claimants     and interest at the rate of 6 per cent per annum on Rs.54,000/- from 17.9.1970 till payment. The reasons for the award of additional interest calculated at the rate of 3 per cent per annum on Rs.90,000/- and the legality thereof we shall deal with separately.

Both the     parties have preferred further     appeals to this Court. However, after hearing the learned counsel for the parties, we have found only three contentions worth being dealt with and the same are noted and    disposed of hereinafter. The incident took place on 18.8.1964 in consequence whereof late Suresh Chander died on 19.8.1964. Suit for compensation was filed on 5.8.1966 after issuing a legal notice in April, 1966.    The learned counsel for     the Municipal Corporation     has    submitted that Municipal Corporation is an authority governed by the Delhi Municipal Corporation Act, 1957 (hereinafter the Act, for short)     and inasmuch as it was sought to be held liable for failure to perform its duty to take care resulting into an accident, it was necessary    for the claimants to have served a legal notice    of two     months' duration under sub-section (1) of Section     478 of the Act and the suit should have    been instituted within a period of six months from the date of accrual     of cause of action which having not been done,     the suit was barred by time.

Section 478 reads as under :-

"478. Notice to be given of suit - (1) No suit shall be instituted    against     the Corporation or    against any municipal authority or against any municipal     officer or other municipal employee or against any person acting under the order or direction of any municipal authority or     any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any    rule, regulation or bye-law    made thereunder until the expiration of two months after notice in writing has been left at the municipal officer and in the case of such officer employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and    unless    such notice states explicitly the     cause of action, the nature of the relief sought,     the amount of compensation claimed and the name and places    of residence of the intending plaintiff, and unless the plain contains a statement that such notice has been so left or delivered.

(2) No suit, such as is described in sub-section     (1) shall unless it is a suit for the recovery of immovable property or for a declaration of    title thereto,     be instituted after the expiry of six months from the date on which the cause of action arises.

(3) Nothing in    sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of    which the object would be defeated by     the giving    of the notice or the postponement of the institution of the suit."

A     bare reading    of Section 478 (1) shows that     its applicability is attracted to a suit filed `in respect of any act done or purporting to have been done' in pursuance of the Act or Rules, Regulations     or Bye-laws    made thereunder. The learned counsel for the     Corporation submitted that     an act includes an omission as     well.     The Court has found an omission on the part of the Municipal Corporation in discharging its duty     to take care     and therefore under sub-Section (2) the limitation for filing the suit was six months from the date of accrual of cause of action, i.e., 18th and 19th August, 1964.

The contention has to be rejected forthwith.     The bundle    of facts constituting the cause of action which     has accrued     to the claimants are -the ownership and possession of the tree vesting in the Corporation, its maintenance by the Corporation, fall of the branch of the tree over     the deceased and the death consequent to the injury sustained. The causa proxima, i.e., the immediate cause of action is the fall of the branch of the tree over the head of     the deceased. The     fall of the branch of the tree cannot be attributed to any act done or purporting to have been    done in pursuance of the Act etc. by the Municipal     Corporation or any     officer or employee thereof.     The liability     has arisen    and has been sought to be enforced by the claimants under the law of torts. The finding recorded in the suit and in the Letters Patent Appeal is one of negligence on the part of the Municipal Corporation. To such an action Section     478 does not apply at all. The suit filed within a period    of two years from the date of accrual of cause of action    was governed by Article 82 of the Limitation    Act, 1963 and was well within limitation. The plaintiffs' action was founded in tort. The plaintiffs have not rested their case on any statutory duty on the part of the     Corporation and failure or negligence in performing such duty.

One of the findings recorded in the suit and upheld in the Letters Patent Appeal by the Division Bench is that the tree in question was a dead tree. It had no bark, foliage or buts. On behalf of the plaintiffs, a Botany Professor was examined as an expert witness who testified that a tree which had no    bark was dried up and dying. From     the testimony of the Garden Superintendent examined on behalf of the Corporation also it was found that the tree was dead, dried and dangerous. The Deputy Commissioner, Horticulture examined on behalf of the Corporation admitted that the tree looked    like a partly worn out tree. The Division Bench has upheld    the finding recorded by the learned Trial Judge that the Horticulture Department of the Corporation should    have carried     out periodical inspections of the trees and should have taken safety precaution to see that the road was safe for its users and such adjoining trees as were dried     and dead and/or had projecting branches which could prove to be dangerous to the passers-by were removed. This having     not been done, the Municipal Corporation has been negligent in discharging such duty as is owed to the road users by the adjoining property owners,     especially the Municipal Corporation.    The finding has been arrived at     on appreciation of evidence by the learned Trial Judge as also by the     Division Bench and we find ourselves in entire agreement with the said finding.

The law    is stated in Winfield and Jolowicz on    Tort (13th, 1989 ed., p.415) in these words :

"If damage is done owing to the collapse of     the projection on    the highway or by some other mischief traceable to it, the occupier of the premises on which it stood is liable if he knew of the defect or ought, on investigation, to have known of it. At any rate this is the rule with respect to     a thing that is naturally on     the premises e.g. a tree."

In Clerk     and Lindsell on Torts (16th, 1989 ed., at pages 546-547 para 10.122) the law on trees is summarised as follows :

"The fall of trees, branches and other forms of natural growth is governed by the rules of negligence.    When trees on land adjoining a public highway fall upon it,     the owner is liable if he knew or ought to have known that     the falling     tree was dangerous. He is not bound to call in an expert    to examine the trees, but he is bound to keep a look out and to take notice of such signs as would indicate to a prudent     landowner that there     was a     danger     of a    tree falling..........the land-owner was held liable when     the tree which fell had been dying for some years before and had become    a danger which should have been apparent to an ordinary landowner."

In Charlesworth & Percy on Negligence (8th, 1990 ed., at page 668) the law is stated in these terms :     .lm20

"........when a    tree, which had been dying for    some years and should have been known to be dangerous by an ordinary landowner, fell and caused damage, the owner     was held liable. (Brown V. Harrison (1947) W.N.191).

In Hale vs. Hants 1947 (2) All England Reports    628, which is a case of branches of a tree having struck     the windows of an omnibus and a piece of glass having struck the plaintiff in the eye, it was held that in the absence of any reason    to suspect danger from an overhanging tree or    some similar obstruction a driver who is driving close to     the kerb when his vehicle is struck by the branch of the tree is not making an     unreasonable use of the highway. It     was further     held that the county council should have known that trees grow and throw out their branches and therefore it was their obligation to see that the tree in its natural growth was curbed in such a way as not to hinder the reasonable use of the highway .

By a catena of decisions, the law is well settled that if there is a tree standing on the defendant's land which is dried or dead and for that reason may fall and the defect is one which is either known or should have been known to     the defendant, then the defendant is liable for     any injury caused    by the     fall of the tree (see Brown Vs. Harrison (1947)    63 Law Times Reports 484; Quinn Vs. Scott (1965) 1 W.L.R.     1004,    Mackie Vs. Dumbartonshire County Council, (1927)    W.N. 247. The duty of the owner/occupier of     the premises by the side of the road whereon persons lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the premises.     The premises must be maintained in a    safe state of repair. The owner/occupier     cannot     escape     the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person    to keep the premises in safe repairs. In Municipal Corporation of Delhi Vs. Subhagwanti and Ors.     AIR 1966 SC 1750 a     clock tower which was 80 years old collapsed in Chandni     Chowk    Delhi causing    the death of a number of persons. Their Lordships held that the owner could not be permitted to take a defence that he neither knew nor ought to have known the danger. "The owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect," - said their Lordships. In our opinion the same principle is applicable to the owner of a    tree standing by the side of a road.     If the tree is dangerous in the sense that on account of any disease or being dead     the tree or its branch is likely to fall and thereby injure any passer-by then such tree or branch must be removed so as to avert the danger to life. It is pertinent to note that it is not     the defence of the Municipal Corporation that vis major or an act of God such as storm, tempest, lightning or extraordinary heavy rain had occurred causing the fall of the branch of the tree and hence the Corporation was     not liable.

In our opinion the High Court was right in holding the Municipal Corporation negligent in performing its duty under the common law and therefore liable in damages to     the plaintiffs for the injury caused to the deceased by fall of the branch of     the tree and the consequences flowing therefrom.

The deceased was aged 30.     He was employed in a family business wherefrom he was drawing a salary of     Rs.650     per month.    The learned Trial Judge deducted an amount of Rs.150 per month for expenses incurred on the self and assessed the dependency at    Rs.500 per month. The Division Bench found that apart from salary the    deceased was also getting commission on    sales.    The net income of the deceased     was arrived     at Rs.1,000/-     per month wherefrom    Rs.200    were deducted as expenses    on the self.    The dependency     was assessed at Rs.800 per month.     The learned Trial Judge as well as the Division Bench have adopted a multiplier of 15. Thus, the Division Bench has assessed the     quantum of compensation at Rs.1,44,000/- in supersession of Rs.90,000/- assessed by the learned Trial Judge.    Though, the learned counsel     for the Municipal Corporation has assailed     the assessment to be on higher side and the learned counsel for the claimants has submitted that keeping in view the better future    prospects of the deceased in the family business, coupled     with the youth of the deceased, the monthly income should    have been taken at Rs.1826/- but we    are of     the opinion     that the figure of compensation arrived at by     the Division Bench is a very reasonable figure and calls for no interference.    The multiplier     has also been correctly adopted. In the leading case of Susamma Thomas (1994) 2 SCC 176 this Court adopted a multiplier of 12 when the deceased was aged 39.    We do not find any fault with the figure of compensation having been arrived at Rs.1,44,000/-. The same is upheld.

The last point of controversy centres around the award of interest.    The suit having been decreed by the learned Trial Judge, the Division Bench directed the decretal amount to be    deposited by the Municipal Corporation in the Court which was done on 17.9.1970.    The amount so deposited     was available to be withdrawn by the claimants     subject to furnishing security to the satisfaction of the executing court.     The claimants could not furnish the security     and hence could not withdraw the amount. The Division Bench in the backdrop of such     facts directed     the amount to be deposited in fixed deposit so as to earn interest. However, the Registry omitted to comply with the order and therefore the amount continued to remain in deposit with the Court. The Division Bench observed that liability for default on the part of the Registry in carrying out the order of     the Court could not be fastened on the judgment-debtor Municipal Corporation. Still the Division Bench has directed 3 per cent per annum additional interest to be paid by     the Municipal Corporation to the claimants and thereby made an effort    at adjusting the equities. It cannot be lost sight of that partly the delay in release of the amount to     the claimants is attributable to their failure to furnish     the security as directed by the Division Bench. The claimants have been allowed interest on the decretal amount from     the date of the decree though the amount of compensation     was quantified only from the date of the passing of the decree. In such circumstances, the direction of the Division Bench in the matter of award of interest is also not liable to be interfered with on consideration of totality of     the circumstances.

For the    foregoing reasons both the appeals are    held liable to be dismissed.     Civil Appeal No.687/86 filed by the Municipal Corporation of Delhi is dismissed

with costs payable by the     appellant-Municipal Corporation to     the respondent-claimants. Civil Appeal No.4242/86 filed by the claimants is dismissed without     any order as to costs.