The main legal point established in the judgment is the liability for negligence on the part of the respondent no.3 PWD for leaving the sewer/drain uncovered, leading to the death of the minor, and the determination of compensation based on legal precedents and minimum wages formula.

RAJIV SAHAI ENDLAW, J.

1. The two petitioners being husband and wife by this writ petition inter alia claim compensation in the sum of `20,00,000/- from the respondents Govt. of NCT of Delhi and the MCD for the death of their minor son Mohd. Shahnawaz aged about eight years owing to the negligence of the respondents. It is the case of the petitioners that their said son died on 4th February, 2006 by falling in the uncovered sewer/drain at the intersection of the lanes near the house of the petitioners. Negligence is averred on the part of the respondent no. 2 MCD in not covering the sewer/drain inspite of the same being situated in front of a populated residential area inhabited also by children. It is claimed that the petitioner No.1 being the father of the deceased runs a tailoring shop and earns `6,000/- per month.

2. Notice of the petition was issued. On 23rd May, 2007, the counsel for the respondent no. 2 MCD stated that the area in question had been handed over to the Public Works Department (PWD) and thus MCD is not concerned with the issue raised in this petition. The petitioners were directed to implead PWD. Counter affidavits have been filed by the respondent no.1 GNCTD and the respondent no.3 PWD. The counter affidavit of respondent no.2 MCD is not on record though the petitioners have filed a rejoinder to the said affidavit.

3. The respondent no. 1 GNCTD in its counter affidavit has stated that the civic amenities in the area in which the incident occurred are being maintained by the respondent no. 2 MCD and the allegations by the petitioner averring negligence are also against the respondent no. 2 and the respondent no. 1 is thus not liable. It is also pleaded that the First Information Report was not lodged because of the statement of the petitioner no. 1 on 4th February, 2006 to the effect that the petitioners did not seek any police investigation. The respondent no. 3 PWD in its short affidavit has pleaded that the place where the incident occurred does not fall in the right of way and has thus denied any liability for the incident and/or the claims by the petitioners.

4. From the rejoinder to the counter affidavit of the respondent no. 2 MCD it transpires that the MCD had filed a letter dated 17th March, 2005 whereby the said drain was handed over by the MCD to the PWD. The petitioners in their rejoinder to the counter affidavit of respondent no. 1 have also reiterated that the respondents have violated public duty and that the petitioners are illiterate and since the deceased was brought out of the sewer/drain and was dead, police investigation was not sought.

5. The counsels for the respondents have been heard and the written arguments along with judgments filed by the counsel for the petitioners perused.

6. In view of the plethora of case law which has developed on the subject, need is not felt to discuss the law in detail. Suffice it is to refer to Ram Kishore Vs. MCD 2007 VII AD (Delhi) 441 and to Swarn Singh Vs. Union of India discussing the legal position in detail.

7. I find the facts of the present case to be similar to those of Sh. Kishan Lal Vs. Govt. of NCT of Delhi that was also a case of a child of seven years falling in an open manhole - in that case till the date of the incident managed by Sulabh International. This Court in that case held that the respondents MCD & Sulabh International failed to demonstrate how death could have reasonably happened without negligence on their part; on the basis of the opinion of the doctor that the cause of death was asphyxia as a result of drowning and from the factum of discovery of the body, by local residents, in the manhole near the lavatory which the child had visited and from the factum that if the manhole was covered the child would not have fallen in it, inference of negligence was deduced; the plea of contributory negligence was negated. In the present case also, the factum of the deceased having fallen and having been pulled out from the sewer/d