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1999(5) Supreme 35
Supreme Court of India
(From Delhi High Court)
A.P. Misra & R.C. Lahoti, JJ.
The Municipal Corporation of Delhi -Appellant
versus
Smt. Sushila Devi & Ors. -Respondents
Civil Appeal No. 687 of 1986
With
Civil Appeal No. 4242 of 1986
Decided on 7-5-1999
Counsel for the Parties :
For the Appellant : Ranjit Kumar and Ms. Binu Tamta, Advocates.
For the Respondents : Raju Ramachandran, Sr. Advocate, Ms. Bina Gupta, Advocate.
Held : 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 a 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. (Paras 5 & 6)
(ii) Torts-Damage for negligence - Municipal Corporation-Branch of tree standing on road side broke down and fell on head of scooterist causing his death-Corporation should have carried out periodical inspection of trees and should have taken safety precautions to see that road was safe for its users-Municipal Corporation negligent in discharging its duty-Liable to pay damages to victim.
Held : 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. (Para 7)
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. (Para 12)
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 them 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. 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. (Paras 12 & 13)
(iii) Torts-Damages for negligence - Quantum of damage -Branch of tree standing on road side fell on scooterist causing his death-Deceased aged about 30 years-His net income Rs. 1000/- per month-Dependency assessed at Rs. 800/- per month-Adopting multiplier of 15 damage of Rs. 1,44,000/- awarded - Municipal Corporation s plea damage awarded was on higher side-Plaintiff’s appeal damage on lower side-Pleas untenable-Damage awarded proper. (Para 14)
Key Points: - Section 478 of the Delhi Municipal Corporation Act does not apply to suits filed for acts of negligence under the law of torts (!) [1000038120005]. - A Municipal Corporation has a duty to conduct periodical inspections of roadside trees and take safety precautions to ensure roads are safe for users (!) [1000038120006]. - If a tree on the Corporation's land is dead or dried and poses a danger, and this defect was known or should have been known, the Corporation is liable for injuries caused by its fall [1000038120011]. - The immediate cause of action for the suit was the fall of the tree branch, which cannot be attributed to any act done in pursuance of the Act, making the liability arise under tort law [1000038120005]. - The Municipal Corporation was found negligent in discharging its duty to road users by failing to remove a dead and dangerous tree branch [1000038120006]. - The law is well-settled that an owner is liable for injuries caused by a falling tree if the defect was known or ought to have been known [1000038120011]. - The Municipal Corporation's defense that the fall was due to vis major or an act of God was not raised [1000038120011]. - The quantum of damages awarded was Rs. 1,44,000/- based on the deceased's income, dependency, and a multiplier of 15 [1000038120013]. - The suit was filed within the two-year limitation period prescribed by Article 82 of the Limitation Act, 1963, as it was founded in tort [1000038120005]. - The Municipal Corporation was held liable to pay damages for the injury caused by the fall of the tree branch due to its negligence [1000038120012].
Judgment
R.C. Lahoti, J.-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.
2. 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.
3. 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.
4. 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.
5. 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 stat
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