The doctrine of res ipsa loquitur allows presumption of negligence when the circumstances indicate that an accident would not occur without it.

ORDER :

1. The writ petition has been filed for a direction to the respondents herein to pay a sum of Rs.25,00,000/- as compensation together with interest for the death of the petitioner's husband attributing negligence on all the respondents.

2. It is the case of the petitioner that the petitioner's husband who was aged about 74 years was an Auditor and they have two daughters. While being so, the fourth respondent, who is the Contractor of second respondent Corporation, was carrying out the excavation work to lay the 4th water scheme pipeline in the locality of Muthanampalayam area, Tiruppur District. During the course of said work, fourth respondent left out the excavation and concrete work with big iron rods in the Kovilvazhi Muthanampalayam Road, Tiruppur without warning signs or a board indicating the existence of a dangerous pit. There was no light exposing the pit nor the pit was illuminated to indicate its depth. When things stood as above, on 17.02.2023 at about 08.30 pm, when the petitioner's husband was returning to his home from his office in a two wheeler bearing Registration No.TN 42 K 9875, he fell down into the pit and got severely injured. It is further stated that the petitioner and her daughter on being informed about the accident, went to the spot and the petitioner's husband was immediately taken to the Government Hospital, Tiruppur, where the petitioner was informed that the petitioner's husband succumbed to the injuries. On the complaint lodged by the petitioner, an FIR in Cr.No.756 of 2023 was registered for offences under Sections 279 and 304(A) of IPC and the investigation is still pending.

3. The fourth respondent is a Contractor and the work was awarded to the fourth respondent by the second respondent. Therefore, the petitioner submitted a representation seeking compensation to the tune of Rs.15,00,000/- with accrued interest but the same was not considered by the respondents 2 and 4.

4. The learned Senior Advocate appearing for the 4th respondent adverting to the counter affidavit submitted that the writ petition itself is not maintainable since it involves a question of fact and the negligence on the part of the fourth respondent has to be proved before the Court by let in evidence. Further, the quantum of compensation cannot be arrived at by this Court and it can be decided only by let in evidence. Therefore, the writ petitioner without approaching the civil Court, has invoked the jurisdiction of the writ court under Article 226 of Constitution of India and therefore, the writ petition is not maintainable. It is further stated by the learned Senior Advocate that the investigation is still pending in Cr.No.756 of 2023 and therefore, the liability cannot be fastened on the fourth respondent. It is his further submission that the deceased was aged about 74 years and there is no document to show his yearly income. When there are two daughters, who are the legal heirs of deceased, the writ petition has been filed by the wife of the deceased alone and therefore, the writ petition is not maintainable for non-joinder of necessary parties.

5. The learned Standing counsel for the second respondent submitted that in order to execute the work, the fourth respondent was awarded the contract and also an agreement was executed between the second and fourth respondents. As per the clause 17.1 of the agreement the contract the Contractor shall indemnify and hold harmless the Employer, the Employer's Personnel, and their respective agents, against and from all claims, damages, losses and expenses (including legal fees and expenses) in respect of the bodily injury, sickness, disease or death of any person whatsoever arising out of or in the couse of or by reason of the contractor's design (if any), the execution and completion of the Works and the remedying of any defects, unless attributable to any negligence, wilful act or breach of the Contract by the Employer, the Employer's Personnel, or any of their respective