SUSHIELA DEVI Vs. MUNICIPAL CORPORATION OF DELHI

JUDGEMENT

(1.) This suit relates to compensation for the death of one Suresh Chandra (hereinafter referred to as the deceased I who was the son of plaintiff No. 6 and husband of plaintiff No. 1 and father of plaintiffs Nos. 2 to 5 plaintiffs Nos. 1 to 6 claiming to be legal representatives of the deceased have instituted this suit for recovery of Rs 3 lakhs on account of the death of the deceased owing to the alleged negligence of defendant No. 1 or defendant No. 2 or defendant No 3.

(2.) The facts of the case giving rise to the dispute are that there was an old neem tree existing outside 20, Alipur Road, Delhi, which is contended by the plaintiffs to be dry and dead tree and which his on evidence been found to have had a branch projecting over the road about eight feet long and eight inches in diameter. On 18th August, 1964, the incident in dispute occurred in the evening while the deceased was returning from his office on a scooter and pissed through Alipur Road on his way to his residence when the above-mentioned branch broke off from the tree and fell on his head which was crushed. The deceased was rushed to Irwin Hospital were be expired on the following morning at aboat II A.M. in spite of medical aid. Aggrieved by the said incident, the plaintiffs claim compensation and they first on 19th October, 1964 moved the Accidents Claims tribunal but their petition was dismissed on 23rd March, 1965 as not maintainable It may be noticed that during the course of said proceedings, a local Commissioner was appointed who submitted his report along with some photographs which he arranged to be taken and which have been placed on the file of this case. Later on the plaintiffs after serving the requisite notices on the defendants instituted the present suit on 5th August. 1966 on the allegations that the defendants were the owners of the aforesaid tree, the branch of which had been projecting over the highway and the defendants had been negligent in not removing the said tree at the proper time or removing the danger from the said tree to the passersby which has resulted in loss of life of the deceased. It was alleged in the plaint that the deceased was a youngman of 30 years of age and was a Graduate and belonged to a rich family of great longevity and he had at the time of his death been earning about Rs. 1,500.00per month and the plaintiffs claimed Rs. 3 lakhs as compensation on account of value of the dependency of the family on the deceased.

(3.) In their written statement, the Municipal Corporation, defendant No. I, raised a number of legal pleas and on the merits of the case, it alleged that it was not the owner of the tree in question and that the same was not in a dangerous condition and that the defendant has no obligation to maintain the same and that there was no negligence on its part, but it was purely a case of accident or act of God which resulted in the death of the deceased. The Union of India and Delhi Administration (defendants Nos. I and 2) filed their joint written statement in which they urged that the plaint did not disclose any cause of action against them and they also stated that they were not the owners of the tree in question growing on the foot-path and they ware under no obligation to maintain the same and that there was no negligence on their part and the plaintiffs were not entitled to any compensation as the death of the deceased had not caused any pecuniary loss to the plaintiffs. Replications to the said written statements were filed on behalf of the plaintiffs and on the pleadings of the parties the following issues were framed :-