The duty of care owed to trespassing children and the application of the doctrine of res ipsa loquitur in determining negligence.

1. These petitions relate to two separate tragic incidents, which resulted in six minor children - two children in one incident and four in another – losing their lives by drowning in open drains. The parents of the deceased children have filed the present petitions, inter alia, alleging that the contesting respondent (Govt. of NCT, Irrigation and Flood Control Department) have been negligent in performing their duty and seeking compensation for their loss.

2. On 17.05.2007, Amit aged about 11 years; Jitender aged about 12 years; Surjit aged about 11 years; and Firoz aged about 13 years, all students of a Government School, in Uttam Nagar were playing on the left bank of an open drain near Nangli Vihar Extension, New Delhi. According to the petitioners, two children slipped on the slope of the drain and slid into it. Two other children endeavored to rescue them but their efforts were in vain. They also drowned in the process. Two other children, who were standing on the banks, screamed for help. The hue and cry led people from the surrounding area to rush to the site and extricate the bodies from the drain. Apparently, several persons witnessed this incident and have given their statements. The statements also indicate that the police authorities took possession of the bodies of the four children as well as their bicycles.

3. The drain in question (i.e. the drain in which the children drowned) is a supplementary drain and runs parallel to the main drain – Najafgarh Nallah.

4. The parents of the deceased children claim a compensation for a sum of Rs.20,00,000/- for loss of each child. During the course of the arguments, the learned counsel for the petitioners has restricted the said claim to a sum of Rs.7,04,344/- for each child along with interest @7.5% per annum from the date of petition till its realisation.

5. In another incident, which happened less than two months thereafter, Gaurav and Guddu, two boys aged 12 and 11 years respectively, were playing with a football on a piece of land adjacent to an open drain at Chander Vihar. Both these children were students of Government Boys Sr. Sec. School, Uttam Nagar. According to the petitioners, Gaurav felt the need to urinate and therefore went near the drain to ease himself. It is asserted that it had rained the previous evening and this had made the embankment of the drain slippery; Gaurav slipped and slid into the drain. Guddu heard the distress cry and attempted to rescue Gaurav. This endevour failed and in the process Guddu also slipped into the drain. Both the children drowned. The incident was reported to the police post Nihal Vihar PS Nangloi and a DD entry No.39 dated 10.07.2007 was made. In the post mortem report, the doctors opined that the cause of death is asphyxia by inhalation of fumes due to obstruction to air passage.

6. The above incident occurred at about 4 P.M. on 09.07.2007 at a distance of about 200 meters from Vikaspuri Bridge opposite Chander Vihar, New Delhi. This was within a few miles from the site of the tragic incident involving the four children. The drain in question (i.e the drain in which Guddu and Gaurav drowned) is also a supplementary drain, which runs parallel to the main drain - Najafgarh Nallah.

7. The report submitted by the Executive Engineer of the contesting respondent on 16.04.2010 in compliance with an order passed by this Court indicates that there is a thirty-four meter wide strip of land on the left bank of the supplementary drain at the place where the above incident involving Gaurav and Guddu had occurred. A nine feet high wall has been built 3.5 meters from the edge of the slope on the left embankment of the supplementary drain. At the material time, when the incident occurred, this wall was not in existence and was built thereafter. However, a wall existed at a distance of about 28.3 meters from the edge of the slope; parts of that wall still exist at the site.

8. The parents of Gaurav and Guddu (petitioners in W.P.(