Mr. K. Kannan, J (Oral). - I. Cause for litigation:

1. The petition is filed at the instance of the husband, son and daughter of one Sarita who was working as a Senior lecturer in New Senior Secondary School, Ludhiana but met with an unfortunate death by a fall into an open manhole on a public road in Ludhiana City. The incident had happened on 18.4.1999 when she was reported to be coming from the side of milk plant in Ludhiana and when she was walking near the canal bridge opposite Gurudwara Nanaksar Sahib. She fell into a sewerage manhole which was not covered with the lid. The contention was that the sewerage main line was not visible as the same had been covered with grass and leaves. The body was recovered after search for over 69 hours on 21.4.1999. The complaint had been registered with the police under DDR No.8 dated 19.4.1999 at 10.30 A.M., the following day and after the body was recovered and post-mortem was done, the doctor had certified that the death had occasioned on account of ‘asphyxia’ as a result of drowning which was sufficient to cause death in the ordinary course of nature.

II. Response from State functionaries

2. The incident of death due to the accident by fall in the open sewerage pit is admitted. The petition contains a prayer to register a complaint for culpable homicide and for a direction to State to take essential steps to stop the recurrence of the tragedy. The State has gone on an affidavit from the Principal Secretary to the Government Sh. N. K. Arora that all the Municipal Corporations, Nagar Councils and Nagar Panchayats had been issued directions that all the open manholes would be duly inspected and closed so that no harm could be caused to any member of public. Government of Punjab is also said to have issued instructions to all the Local bodies to check the manholes in the respective jurisdiction regularly and take immediate steps to replace any broken covers and to provide new ones where ever there were missing. The Commissioner Municipal Corporation has reported that subsequent to the incident on 29.8.2000, the lids of missing manholes were replaced immediately and since the incident, there was no further scope for such untoward incident and that every effort was being taken that there was no repetition of such an incident. Punjab Water Supply and Sewerage Board has also filed a reply through its Managing Director stating that after the completion and commencement of the Sewerage at Ludhiana in the year 1993, it had been handed over to the Municipal Corporation and there had been no error in the construction of the sewerage lines. The contention is that it was the responsibility of the local body to maintain the sewerage lines for all safety to public and that the fifth respondent-Board is not responsible.

III. Basis of liability Both at common law & compulsion under statute

3. If there had been an open manhole and a death had resulted, it was evidently on account of the negligent maintenance of the Municipal Corporation that the death must have come about. It simply answers res ipsa loquitur situation that requires no further probe on finding who is culpable. Learned counsel for the State argues that the petitioner himself was guilty of contributory negligence. I reject the plea as untenable for an open manhole is indeed a death trap and the State ought to own responsibility for the consequences of not properly taking care to ensure that no untoward incident could take place by an unwary member of the public falling into the hole in an unguarded moment. Roads are meant for use by the public and if an user comes to harm, the State shall be directly responsible for the consequences of such harm.

4. A person dying by injuries by fall of trees has been dealt with by the Supreme Court in Municipal Corporation of Delhi Vs. Sushila Devi, (1999) 1 SCC 317. In the context of duty to maintain a road by the Municipal authority free from danger, the Supreme Court said in S. Velayndha Char