http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: SUBHAGWANTI & OTHERS(With connected Appeals)

DATE OF JUDGMENT: 24/02/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K.

CITATION:  1966 AIR 1750            1966 SCR  (3) 649

ACT: Negligence-Clock  tower  belonging  to  Municipal  Committee falling Causing death of persons by-Whether doctrine of  res ipsa  loquitur  applies-Fatal  Accidents Act,  1885,  s.  1- Damages-Quantum-principles for determining.

HEADNOTE: Three  suits  for damages were filed by the  respondents  as heirs of three persons who died as a result of the  collapse of the Clock Tower in Chandni Chowk, Delhi, belonging to the appellant-Corporation,  formerly the Municipal Committee  of Delhi.   The  trial court held that it was the duty  of  the Municipal Committee to take proper care of buildings so that they  should not prove a source of danger to  persons  using the highway as a matter of right, and granted decrees of Rs. 25,000, Rs. 15,000 and 20,000 respectively to the plaintiffs in each of the three suits. On  appeal  to the High Court, although the decree  for  Rs. 25,000  in one of the suits was maintained, the  amounts  of Rs.  15,000  and Rs. 20,000 in the other  two  decrees  were reduced  to Rs. 7,200 and Rs. 9,000 respectively.  The  High Court  held that the principle of res ipsa loquitur  applied to  the  case  and considered that it was the  duty  of  the Municipal Committee to carry out periodical examination  for the  purpose of determining whether deterioration had  taken place  in  the  structure of the building  and  whether  any precaution  was  necessary  to strengthen  it.   Apart  from superficial  examination  from time to time,  there  was  no evidence  of an examination ever made with a view to  seeing if there were any latent defects making the building unsafe. In  the appeal to this Court, it was contended on behalf  of the appellant that the High Court was wrong in applying  the doctrine of res ipsa loquitur to this case and that the fall of  the clock tower was due to an inevitable accident  which could not have been prevented by the exercise of  reasonable care  or  caution; that since the defects which led  to  the collapse were latent, the appellant could not be held guilty of  negligence,  and that in any event the  damages  awarded were excessive. HELD : The High Court was right in applying the doctrine res ipsa  loquitur as in the circumstances of the case the  mere fact  that  there was a fall of the clock tower,  which  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

exclusively   under  the  ownership  and  control   of   the appellant, would justify raising an inference of  negligence so as to establish a prima facie case against the appellant. [652 F, H] There  is  a special obligation on the  owner  of  adjoining premises  for  the safety of the structures which  he  keeps besides   the  highway.   If  these  structures  fall   into disrepair  so as to be of potential danger to the  passersby or to be a nuisance, the owner is liable to anyone using the highway who is injured by reason of the disrepair.  In  such a  case  it  is no defence for the owner to  prove  that  he neither  knew  nor ought to have known of  the  danger.   In other  words, the owner is legally responsible  irrespective of  whether  the damage is caused by a patent  or  a  latent defect.. (653 E-G] 650 Wringe v. Cohen, [1940] 1 K.B. 229, Mint v. Good, [1951]  1. K.B.  517 and Walsh v. Holst and Co. Ltd. and Ors. [1958]  1 W.L.R. 800, referred to. The  High  Court  had  applied  the  correct  principles  in estimation of the damages in all the three appeals. Davies v. Powell Duffregn Associated Collieries Ltd.  [1942] A.  C.  601 and Nance v. British Columbia  Electric  Railway Company Ltd. [1951] A.C. 601, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.  1102-1104 of 1963. Appeals  from the judgments and decrees dated  November  27, 1959  of the Punjab High Court (Circuit Bench) at  Delhi  in Civil  Regular  First Appeals Nos. 69-D, 71-D  and  85-D  of 1963. Bishan  Narain, Sardar Bahadur and Arun B. Saharya, for  the appellant (in all the appeals). N.D. Bali and Din Dayal Sharma, for the respondents (in  ,C. As.  Nos. 1102 and 1103 of 1963). A.  G.  Ratnaparkhi,  for respondent (in C.A.  No.  1104  of 1963). The Judgment of the Court was delivered by Ramaswami, J. These appeals arise out of 3 suits for damages filed  by  the  heirs  of three  persons,  namely  Shri  Ram Parkash, Shrimati Panni Devi and Sant Gopi Chand who died as a  result  of  the  collapse of  the  Clock  Tower  situated opposite  the Town Hall in the main Bazar of  Chandi  Chowk, Delhi  belonging to the appellant-Corporation, formerly  the Municipal Committee of Delhi. Suit  No.  5 52 of 1952 was filed by the heirs of  Shri  Ram Parkash, suit No. 930 of 1951 was filed by the heirs of Smt. Panni  Devi and suit No. 20 of 1952 was filed by Kuldip  Raj whose father, Gopi Chand was killed by the fall of the Clock Tower.  All the suits were tried by the Court of Subordinate Judge,  1st Class, Delhi who disposed of all the suits by  a common  judgment dated July 9, 1953.  The Subordinate  Judge granted  a  decree  for  a sum of  Rs.  25,000  to  Shrimati Subhagwanti  and other heirs of Ram Parkash in suit No.  552 of 1952, a sum of Rs. 15,000 to the heirs of Shrimati  Panni Devi  in  suit No. 930 of 1951 and a sum of  Rs.  20,000  to Kuldip Raj in suit No. 20 of 1952.  It was held by the trial court  that  it was the duty of the Municipal  Committee  to take proper care of buildings, so that they should not prove a source of danger to persons using the highway as a  matter of  right.   The  trial  court  rejected  the  plea  of  the Municipal  Committee that in the case of latent  defects  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

could not be held liable and the Municipal Committee, as the owner  of the buildings abutting on the highway, was  liable in negligence if it did not take proper care to maintain the buildings in a safe condition.  It was submitted against 651 the  Municipal Committee before the trial court that,  apart from superficial examination of the Clock Tower from time to time by the Municipal Engineer, no examination was ever made with  a  view  to seeing if there were  any  latent  defects making  it  unsafe.  Aggrieved by the decree  of  the  trial court,  the  Municipal Committee filed appeals in  the  High Court in all the three suits.  On November 27, 1959 the High Court disposed of all the appeals by a common judgment.  The decree  for  Rs.  25,000  in  suit  No.  552  of  1952   was maintained, the amount of Rs. 15,000 awarded in suit No. 930 of  1951 in favour of Munshi Lal and others was  reduced  to Rs. 7,200, and the amount of Rs. 20,000 awarded in suit  No. 20  of 1952 was reduced to Rs. 9,000.  The High  Court  held that the principle of res ipsa loquitur applied to the case. The  High  Court  considered that it was  the  duty  of  the Municipal Committee to carry out periodical examination  for the  purpose of determining whether deterioration had  taken place  in  the  structure and  whether  any  precaution  was necessary to strengthen the building.  The High Court mainly relied  on  the evidence of Shri B. S. Puri,  Retired  Chief Engineer, P.W.D., Government of India who was invited by the Municipal  Committee  to inspect the Clock Tower  after  its collapse and who was produced by them as their witness.  The facts   disclosed   in  his  statement  and  that   of   Mr. Chakravarty,  the Municipal Engineer were that the  building was  80 years old and the life of the structure of  the  top storey,  having regard to the type of mortar used, could  be only 40 to 45 years and the middle storey could be saved for another   10   years.   The  High  Court  also   took   into consideration  the statement of Mr. Puri to the effect  that the  collapse  of the Clock Tower was due to thrust  of  the arches on the top portion.  Mr. Puri was of the opinion that if an expert had examined this building specifically for the purpose he might have found out that it was likely to  fall. The  witness  further disclosed that when he  inspected  the building after the collapse and took the mortar in his hands he found that it had deteriorated to such an extent that  it was reduced to powder without any cementing properties. These  appeals are brought by the Municipal  Corporation  of Delhi  against the decree of the High Court  dated  November 27, 1959 in First Appeals No. 69-D of 1953, No. 71-D of 1953 and No. 85-D of 1953. The  main  question  presented for  determination  in  these appeals  is whether the appellant was negligent  in  looking after and maintaining the Clock Tower and was liable to  pay damages  for  the death of the persons  resulting  from  its fall.   It was contended, in the first place, by Mr.  Bishen Narain  on behalf of the appellant that the High  Court  was wrong in applying the doctrine of res ipsa loquitur to  this case.   It was argued that the fall of the Clock  Tower  was due  to  an inevitable accident which could  not  have  been prevented 652 by the exercise of reasonable care or caution.  It was  also submitted  that there was nothing in the appearance  of  the Clock  Tower which should have put the appellant  on  notice with regard to the probability of danger.  We are unable  to accept the argument of the appellant as correct.  It is true that  the  normal rule is that it is for  the  plaintiff  to prove  negligence and not for the defendant to disprove  it.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

But  there is an exception to this rule which applies  where the  circumstances  surrounding the thing which  causes  the damage  are  at  the material  time  exclusively  under  the control  or management of the defendant or his  servant  and the  happening  is such as does not occur  in  the  ordinary course of things without negligence on the defendant’s part. The principle has been clearly stated in Halsbury’s Laws  of England, 2nd Edn., Vol. 23, at p. 671 as follows: "An  exception to the general rule that the burden of  proof of  the alleged negligence is in the first instance  on  the plaintiff occurs wherever the facts already established  are such  that  the  proper and  natural  inference  immediately arising  from  them  is that the injury  complained  of  was caused  by  the defendant’snegligence, or  where  the  event charged as negligence tells its own story’ of negligence  on the part of the defendant, the story so told being clear and unambiguous.   To  these cases the maxim res  ipsa  loquitur applies.  Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to  succeed in  his defence, must be overcome by contrary evidence,  the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part." In our opinion, the doctrine of res ipsa loquitur applies in the  circumstances of the present case.  It has  been  found that the Clock Tower was exclusively under the ownership and control of the appellant or its servants.  It has also  been found  by the High Court that the Clock Tower was  80  years old  and the normal life of the structure of the top  storey of  the building, having regard to the kind of mortar  used, could be only 40 or 45 years.  There is also evidence of the Chief  Engineer that the collapse was due to thrust  of  the arches on the top portion and the mortar was deteriorated to such  an  extent that it was reduced to powder  without  any cementing  properties.   It  is also not  the  case  of  the appellant  that  there was any earthquake or  storm  or  any other  natural  event which was unforeseen and  which  could have  been  the cause of the fall of the  Clock  Tower.   In these  circumstances, the mere fact that there was  fall  of the Clock Tower tells its own story in raising an  inference of negligence so as to establish a prima facie case  against the appellant. 653 We  shall proceed to consider the main question involved  in this  case  namely, whether the appellant, as owner  of  the Clock Tower abutting on the highway, is bound to maintain it in proper state of repairs so as not to cause any injury  to any  member of the public using the highway and whether  the appellant is liable whether the defect is patent or  latent. On  behalf of the ’appellant Mr. Bishen Narain  put  forward the  argument  that there were no superficial signs  on  the structure, which might have given a warning to the appellant that  the Clock Tower was likely to fall.  It  is  contended that  since  the defects which led to the  collapse  of  the Clock  Tower  were latent the appellant could  not  be  held guilty  of negligence.  It is admitted, in this  case,  that the  Clock  Tower  was  built about 80  years  ago  and  the evidence  of the Chief Engineer is that the safe  time-limit of  existence of the building which collapsed was 40  or  45 years.  In view of the fact that the building had passed its normal  age  at  which  the  mortar  could  be  expected  to deteriorate  it was the duty of the appellant to  carry  out careful  and  periodical  inspection  for  the  purpose   of determining whether, in fact, deterioration had taken placed whether  any  precautions were necessary to  strengthen  the building.  The finding of the High Court is that there is no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

evidence  worth the name to show that any  such  inspections were carried out on behalf of the appellant,and, in fact, if any  inspections were carried out, they were of  casual  and perfunctory  nature.  The legal position is that there is  a special obligation on the owner of adjoing premises for  the safety of the structures which he keeps besides the highway. If  these  structures  fall into disrepair so as  to  be  of potential danger to the passers-by or to be a nuisance,  the owner  is liable to anyone using the highway who is  injured by reason of the disrepair.  In such a case it is no defence for  the  owner to prove that he neither knew nor  ought  to have  known  of the danger.  In other words,  the  owner  is legally  responsible irrespective of whether the  damage  is caused  by a patent or a latent defect.  In Wringe v.  Cohen (1) the plaintiff was the owner of a lock-up shop in Proctor Place,  Sheffield, and the defendant Cohen was the owner  of the adjoining house.  The defendant had let his premises  to a  tenant  who had occupied them for about  two  years.   It appears  that  the  gable  end  of  the  defendant’s   house collapsed owing to a storm, and fell through the roof of the plaintiff’s  shop.  There was evidence that the wall at  the gable  end  of the defendant’s house had, owing to  want  of repair, become a nuisance, i.e., a danger to passers by  and adjoining owners.  It was held by the Court of Appeals  that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous  and, therefore, a nuisance and a passer-by or an adjoining  owner suffers damage by the collapse the occupier or the owner  if he has undertaken the duty of repair, is answerable (1) [1940] 1 K.B. 229. llSup.  Cl/66--10 654 whether he knew or ought to have known of the danger or not. At page 233 of the Report Atkinson, J. states: " By common law it is an indictable offence for an  occupier of  premises  on  a highway to permit them  to  get  into  a dangerous condition owing to non-repair.  It was not and  is not necessary in an indictment to aver knowledge or means of knowledge: see Reg. v. Watson [(1703) 2 Ld.  Raym. 856].  In Reg. v. Bradford Navigation Co. [(1865) 6 B. & S. 631,  651] Lord Blackburn (then Blackburn J.) laid it down as a general principle  of law that persons who manage their property  so as  to  be a public nuisance are indictable.   In  Attorney- General  v.  Tod Heatley [(1897) 1 Ch. 560] it  was  clearly laid down that there is an absolute duty to prevent premises becoming a nuisance.  ’If I were sued for a nuisance,  ’said Lindley L. J. in Rapier v. London Tramways Co. [(1893) 2 Ch. 588, 599], ’and the nuisance is proved, it is no defence  on my part to say and to prove that I have taken all reasonable care to prevent it.’" The  ratio  of  this decision was applied by  the  Court  of Appeals  a subsequent case in Mint v. Good (1) and  also  in Walsh v. Holst and Co. Ltd. and Ors. (2) In our opinion, the same  principle is applicable in Indian law.   Applying  the principle  to  the  present case it  is  manifest  that  the appellant  is guilty of negligence because of the  potential danger  of the Clock Tower maintained by it having not  been subjected  to a careful and systematic inspection  which  it was the duty of the appellant to carry out. The last question is regarding the quantum of damages  which requires separate consideration in each case. Section  I  of the Fatal Accidents Act, 1855  (Act  XIII  of 1855) reads: " Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

such  as would (if death had not ensued) have  entitled  the party  injured to maintain an action and recover damages  in respect  thereof,  the party who would have been  liable  if death  had not ensued shall be liable to an action  or  suit for  damages,  notwithstanding  the  death  of  the   person injured, and although the death shall have been caused under such  circumstances  as  amount in law to  felony  or  other crime. Every  such action or suit shall be for the benefit  of  the wife, husband, parent and child, if any of the person  whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the court (1) (19511 1 K.B. 517. (2) [1958] 1 W.L.R. 800 655 may  give such damages as it may think proportioned  to  the loss resulting from such death to the parties  respectively, for whom and for whose benefit such action shall be brought; and  the amount so recovered, after deducting all costs  and expenses,  including  the  costs.  not  recovered  from  the defendant,  shall  be divided amongst the  before  mentioned parties, or any of them, in such shares as the Court by  its judgment or decree shall direct." This  section is in substance a reproduction of the  English Fatal  Accidents Acts, 9 and 10 Vict.  Ch. 93, known as  the Lord  Campbell’s  Acts.   The  scope  of  the  corresponding provisions  of  the English Fatal Accidents  Acts  has  been discussed by the House of Lords in Davies v. Powell  Duffryn Associated  Collieries  Ltd. (1) At page 617 of  the  Report Lord Wright has stated the legal position as follows: "It is a hard matter of pounds, shillings and pence, subject to  the  element of reasonable  future  probabilities.   The starting point is the amount of wages which the deceased was earning,  the  ascertainment  of which to  some  extent  may depend upon the regularity of his employment.  Then there is an estimate of how much was required or expended for his own personal and living expenses.  The balance will give a datum or  basic figure which will generally be turned into a  lump sum  by  taking a certain number of years’  purchase.   That sum,  however, has to be taxed down by having due regard  to uncertainties, for instance, that the widow might have again married  and  thus ceased to be dependent,  and  other  like matters of speculation and doubt." The same principle has been reiterated by Viscount Simon  in Nance v. British Columbia Electric Railway Company Ltd.  (2) In  the present case of Subhagwanti etc. there  is  evidence that  Ram Parkash deceased was 30 years old at the  time  of the accident, his widow Subhagwanti being aged about 28  and his  son 14 and daughters 12 and 2 years old.  The  evidence adduced  regarding the income of Ram Parkash and the  amount of   loss  caused  to  his  widow  and  children   was   not satisfactory  but the High Court considered that  the  widow and children must have been receiving at least a monthly sum of  Rs. 150 for their subsistence and for the  education  of the children from the deceased Ram Parkash.  The income  was capitalised  for a period of 15 years and the amount of  Rs. 27,000  which  was arrived at was more than what  the  trial court had awarded.  The High Court accordingly saw no reason for  reducing  the amount of damages awarded  by  the  trial court.  In the case of Tek Chand and his four children,  the High Court has estimated that the pecuni- (1) [1942] A.C. 601. (2) [1951] A.C. 601. 656

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

ary loss caused by the death of his wife should be taken  to be Rs. 40 p.m. and if a period of 15 years is taken for  the purpose  of calculating the total sum, the amount will  come to  Rs. 7,200.  Lastly, in the case of Kuldip Raj, the  High Court  has calculated the pecuniary loss at the rate of  Rs. 50 pm. and the amount of damages calculated for a period  of 15 years would come to Rs. 9,000.  In our opinion, the  High Court has applied the correct principle in estimation of the damages  in  all the three appeals and learned  Counsel  has been  unable to show that the judgment of the High Court  on this aspect of the case is vitiated for any reason. For the reasons expressed, we hold that there is no merit in these appeals which are accordingly dismissed with costs. Appeals dismissed. 657