The main legal point established in the judgment is the application of the doctrine of res ipsa loquitur to establish negligence and the use of precedents from the Motor Vehicles Act to determine compensation.

INDERMEET KAUR, J.

1. The petitioner Narender Singh and Nirmal Kaur are the unfortunate parents of master Lakhvinder Singh. On 14.6.2007 Lakhvinder Singh aged 10 years while playing cricket along with other children in B-Block, Tilak Vihar (adjacent to a drain) fell into the drain and succumbed to his death. This drain passes through the area of Tilak Vihar. Children of the locality of Tilak Vihar used to play cricket in the park. This park had no fencing. There was also no cover over the drain and no safety bracket around it. This was well within the knowledge of respondent nos.2 and 3 (PWD and the Municipal Corporation) but no efforts were made to ensure that the boundary wall which was broken at various places around the drain is maintained.

2. On that fateful day while master Lakhvinder was playing cricket one boy hit the ball which fell near the slippery area; Lakhvinder went to retrieve the ball but the area being slippery he could not balance himself and slipped into the drain. Hue and cry was raised. Police party and the fire brigade reached the spot. Autopsy of the child was conducted. It was noted that the child had died due to asphyxia which was due to drowning in the drain.

3. Contention in this petition being that this incident has occurred due to the negligence of both respondent nos.2 and 3. Had they observed their duties and constructed a fencing around the drain this unfortunate happening could have been avoided. The falling of the child in to the drain occurred because of the callous attitude of respondent nos.2 and 3 which had led to his untimely death.

4. Additional submission being that Lakhvinder was an ingelligent child studying in the 5th class in the MCD Primary School, Tilak Vihar, New Delhi. The respondents being liable for this negligent act which had led to his death, the petitioners by way of this writ petition have sought compensation from the respondents. It is stated that the victim being a bright child would have most likely become a software engineer in the near future and would have earned Rs.80,000/- to Rs.1,00,000/- per month. Pecuniary as also non pecuniary damages have been claimed by the petitioners.

5. Learned counsel for the petitioner in support of her submissions has placed reliance upon a judgment of the Division Bench of this Court reported as 2011 (122) DRJ 428 Gopalpur victim Association Vs. Delhi Jal Board to support a submission that in similar circumstances where four children had fallen into an open manhole, because of the negligence of the Delhi Jal Board compensation had been awarded to the parents of the victims. For the purposes of calculation of compensation learned counsel for the petitioners has placed reliance upon a judgment of a Bench of this Court delivered in WP(C) No.5072-73/2005 Kishan Lal Vs. Govt. of NCT of Delhi decided on 03.7.2007; submission being that both the pecuniary and non pecuniary loss has to be taken into account in arriving at the amount of compensation to be payable to the petitioners. It is additionally pointed out that the question of contributory negligence should not weigh in the mind of the court while dealing with an incident where a child is involved as the degree of care to be expected from a child is entirely different from the degree of care that can be expected form a reasonable adult and a boy of aged 10 years cannot be held guilty of any contributory negligence as was so in the facts of this case.

6. Counter affidavit of respondent no.3 i.e. MCD is relevant. It is admitted that the unfortunate incident had taken place in the Storm Water drain known as Subhas Nagar drain which originates from Block No.12, Subhash nagar and ends at the Najafgarh Drain near Keshavpur Depot travelling via Rajouri Garden, Tilak nagar and Sant Nagar. Its total length is 5500 metres with an average width ranging from 3 metres to 8 metres and average depath is 2 to 4 metres. It is admitted that there is an open land behind the residential flats of B-Bl