The main legal point established in the judgment is the liability of the MCD for negligence leading to the death of the minor and the determination of compensation based on legal principles and case law.

Rajiv Sahai Endlaw, J.

1. The two petitioners being husband and wife, by this writ petition inter alia claim compensation in the sum of Rs. 15,00,000/- from the respondents MCD and the Police for the death of their minor son Mohd. Asif aged about nine years owing to the negligence of the respondents. It is the case of the petitioners that their said son died on 4th January, 2007 by falling in an open manhole in a vacant plot meant for Sulabh Shauchalaya situated near Nissariya Masjid Jhuggi, D-Block, New Seema Puri, Delhi, near the house of the petitioners. Negligence is averred on the part of the MCD in not covering the manhole inspite of the same being situated in front of a populated residential area inhabited also by children. It is claimed that the deceased was studying in Class-V in a Madarsa and the petitioner No. 1 being the father of the deceased works as a mason earning Rs. 6,000/- to Rs. 7,000/- per month. Notice of the petition was issued. Since the petitioners had themselves not placed before this Court any document to establish the age of the deceased or that he was studying in a School, while issuing notice, it was recorded that the consequences thereof will be examined at the time of final decision.

2. Counter affidavits have been filed by the respondents MCD and the Police. The respondent No. 1 MCD in its counter affidavit while not disputing the incident and the death has contended that earlier the toilet block where the manhole is situated was maintained and managed by Sulabh International; however, the same was handed over to the MCD on 20th July, 2006 in a non functional and locked condition; that at the time of the incident there was no toilet block in existence and only a septic tank with two manholes and a boundary wall with a locked iron gate to prevent use thereof; it is further contended that a board was also displayed at the site proclaiming “not for use”. It is contended that the deceased appeared to have trespassed on to the said plot having the manhole and since the deceased himself was wrongfully on the property, no negligence can be attributed to the respondent No. 1 MCD.

3. Though the petitioners in their petition had contended that it was the Police who with the help of the Fire Brigade pulled out the deceased from the manhole, the Police in its counter affidavit though admitted the incident but has denied so. The respondent No. 2 Police also pleads having immediately reached the site upon receiving the information and upon being told that the deceased had been taken by his father to the hospital, having registered an FIR of offence under Section 304-A of the IPC and of having conducted the postmortem and having proceeded in accordance with law.

4. This Court vide order dated 10th March, 2010 requisitioned the file of FIR No. 8/2007 of P.S. Seema Puri pending of the Court of Mr. Lalit Kumar, Metropolitan Magistrate, Karkardooma District Court, Delhi which has been received. The counsels for the respondents have been heard and the written arguments along with judgments filed by the counsel for the petitioners perused.

5. 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 v. MCD 2007 VII AD (Delhi) 441 and to Swarn Singh v. Union of India MANU/DE/0791/2010 discussing the legal position in detail.

6. I find the facts of the present case to be similar to those of Sh. Kishan Lal v. Govt. of NCT of Delhi MANU/DE/8177/2007; 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,