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PETITIONER: THE MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: SMT.  SUSHILA DEVI & ORS.

DATE OF JUDGMENT:       07/05/1999

BENCH: A.P.Misra, R.C.Lahoti

JUDGMENT:

R.C.  LAHOTI,J.

     On  18th  August,  1964, in the evening,  late  Suresh Chander  and  his  brother Ramesh Chander were  going  on  a scooter  from their office to their residence.  The deceased was  driving  the  scooter and his brother  was  riding  his pillion.   When  they  were passing against  Sant  Permanand Blind Relief Mission Building situated at 20, Alipur Road, a branch  of the neem tree standing there suddenly broke  down and fell on the head of the deceased.  His head was crushed. He  was  rushed to Irvin Hospital where in spite of  medical care  and attendance, he died the next day at about 10  a.m. A  piece of wood was found embedded into his brain for which a surgery had also to be performed on the deceased.

     The deceased was survived by a widow, three minor sons and  a minor daughter and his mother.  All the six brought a suit for damages claiming Rs.3 lacs.  A learned Single Judge sitting  on  the  Original side of the High Court  held  the Municipal  Corporation of Delhi liable for damages in  torts and  granted a decree of Rs.90,000/- by way of  compensation payable  to the widow and the children of the deceased.  Two Letters  Patent  Appeals  were   preferred.   The  Municipal Corporation  sought  for the suit being dismissed while  the claimants   sought   for  enhancement  in  the   amount   of compensation.  The Division Bench dismissed the appeal filed by  the Corporation but at the same time partly allowed  the appeal  preferred  by the claimants enhancing the amount  of compensation   to   Rs.1,44,000/-   payable  with   interest calculated at the rate of 6 per cent per annum from the date of  suit, i.e., 5.8.1966 till 17.9.1970 when the amount  was deposited by the Corporation in the Court for payment to the successful  claimants.   The  Division  Bench  also  allowed interest  at the rate of 3 per cent per annum on Rs.90,000/- from  the  date  of deposit in the Court till  the  date  of actual  withdrawal  of  the  amount  by  the  claimants  and interest  at the rate of 6 per cent per annum on Rs.54,000/- from  17.9.1970 till payment.  The reasons for the award  of additional interest calculated at the rate of 3 per cent per annum  on Rs.90,000/- and the legality thereof we shall deal with separately.

     Both  the  parties have preferred further  appeals  to

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this  Court.  However, after hearing the learned counsel for the  parties,  we  have found only three  contentions  worth being  dealt  with  and the same are noted and  disposed  of hereinafter.   The  incident  took  place  on  18.8.1964  in consequence  whereof late Suresh Chander died on  19.8.1964. Suit  for compensation was filed on 5.8.1966 after issuing a legal  notice  in April, 1966.  The learned counsel for  the Municipal   Corporation   has   submitted   that   Municipal Corporation  is an authority governed by the Delhi Municipal Corporation  Act, 1957 (hereinafter the Act, for short)  and inasmuch  as it was sought to be held liable for failure  to perform its duty to take care resulting into an accident, it was  necessary  for  the claimants to have  served  a  legal notice  of  two  months’ duration under sub-section  (1)  of Section  478  of  the  Act and the  suit  should  have  been instituted  within  a period of six months from the date  of accrual  of cause of action which having not been done,  the suit was barred by time.

     Section 478 reads as under :-

     "478.   Notice to be given of suit - (1) No suit shall be  instituted  against  the   Corporation  or  against  any municipal  authority  or  against any municipal  officer  or other  municipal employee or against any person acting under the  order  or direction of any municipal authority  or  any municipal officer or other municipal employee, in respect of any  act done, or purporting to have been done, in pursuance of  this  Act  or  any  rule,  regulation  or  bye-law  made thereunder  until the expiration of two months after  notice in writing has been left at the municipal officer and in the case  of  such officer employee or person, unless notice  in writing has also been delivered to him or left at his office or  place  of  residence,  and  unless  such  notice  states explicitly  the  cause of action, the nature of  the  relief sought,  the amount of compensation claimed and the name and places  of residence of the intending plaintiff, and  unless the  plain contains a statement that such notice has been so left or delivered.

     (2)  No suit, such as is described in sub-section  (1) shall  unless  it  is a suit for the recovery  of  immovable property  or  for  a  declaration   of  title  thereto,   be instituted  after the expiry of six months from the date  on which the cause of action arises.

     (3)  Nothing  in  sub-section (1) shall be  deemed  to apply  to  a  suit in which the only relief  claimed  is  an injunction  of  which  the object would be defeated  by  the giving  of the notice or the postponement of the institution of the suit."

     A  bare  reading  of Section 478 (1)  shows  that  its applicability  is  attracted to a suit filed ‘in respect  of any  act done or purporting to have been done’ in  pursuance of   the  Act  or  Rules,   Regulations  or  Bye-laws   made thereunder.   The  learned  counsel   for  the   Corporation submitted  that  an act includes an omission as  well.   The Court  has  found an omission on the part of  the  Municipal Corporation  in  discharging  its  duty  to  take  care  and

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therefore  under  sub-Section (2) the limitation for  filing the suit was six months from the date of accrual of cause of action, i.e., 18th and 19th August, 1964.

     The  contention  has  to be rejected  forthwith.   The bundle  of facts constituting the cause of action which  has accrued  to the claimants are -the ownership and  possession of  the tree vesting in the Corporation, its maintenance  by the  Corporation,  fall of the branch of the tree  over  the deceased  and the death consequent to the injury  sustained. The  causa  proxima, i.e., the immediate cause of action  is the  fall  of  the branch of the tree over the head  of  the deceased.   The  fall  of the branch of the tree  cannot  be attributed  to any act done or purporting to have been  done in  pursuance of the Act etc.  by the Municipal  Corporation or  any  officer  or employee thereof.   The  liability  has arisen  and has been sought to be enforced by the  claimants under  the  law of torts.  The finding recorded in the  suit and in the Letters Patent Appeal is one of negligence on the part  of  the  Municipal  Corporation.  To  such  an  action Section  478 does not apply at all.  The suit filed within a period  of  two years from the date of accrual of  cause  of action  was  governed by Article 82 of the  Limitation  Act, 1963 and was well within limitation.  The plaintiffs’ action was  founded in tort.  The plaintiffs have not rested  their case  on  any statutory duty on the part of the  Corporation and failure or negligence in performing such duty.

     One of the findings recorded in the suit and upheld in the  Letters Patent Appeal by the Division Bench is that the tree  in question was a dead tree.  It had no bark,  foliage or  buts.   On behalf of the plaintiffs, a Botany  Professor was  examined as an expert witness who testified that a tree which  had  no  bark  was  dried up  and  dying.   From  the testimony of the Garden Superintendent examined on behalf of the  Corporation  also it was found that the tree was  dead, dried  and dangerous.  The Deputy Commissioner, Horticulture examined on behalf of the Corporation admitted that the tree looked  like a partly worn out tree.  The Division Bench has upheld  the finding recorded by the learned Trial Judge that the  Horticulture Department of the Corporation should  have carried  out periodical inspections of the trees and  should have  taken safety precaution to see that the road was  safe for  its  users and such adjoining trees as were  dried  and dead  and/or had projecting branches which could prove to be dangerous  to the passers-by were removed.  This having  not been  done, the Municipal Corporation has been negligent  in discharging  such  duty as is owed to the road users by  the adjoining   property   owners,   especially  the   Municipal Corporation.    The   finding  has   been  arrived   at   on appreciation  of evidence by the learned Trial Judge as also by  the  Division  Bench  and we find  ourselves  in  entire agreement with the said finding.

     The  law  is stated in Winfield and Jolowicz  on  Tort (13th, 1989 ed., p.415) in these words :

     "If  damage  is  done  owing to the  collapse  of  the projection  on  the  highway  or   by  some  other  mischief traceable  to  it, the occupier of the premises on which  it stood  is  liable  if  he knew of the defect  or  ought,  on investigation, to have known of it.  At any rate this is the rule  with  respect  to  a thing that is  naturally  on  the premises e.g.  a tree."

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     In  Clerk  and Lindsell on Torts (16th, 1989  ed.,  at pages 546-547 para 10.122) the law on trees is summarised as follows :

     "The  fall  of  trees,  branches and  other  forms  of natural growth is governed by the rules of negligence.  When trees  on land adjoining a public highway fall upon it,  the owner  is liable if he knew or ought to have known that  the falling  tree was dangerous.  He is not bound to call in  an expert  to examine the trees, but he is bound to keep a look out  and to take notice of such signs as would indicate to a prudent  landowner  that  there  was  a  danger  of  a  tree falling..........the  land-owner  was held liable  when  the tree which fell had been dying for some years before and had become  a  danger  which  should have been  apparent  to  an ordinary landowner."

     In  Charlesworth & Percy on Negligence (8th, 1990 ed., at page 668) the law is stated in these terms :  .lm20

     "........when  a  tree, which had been dying for  some years  and  should  have been known to be  dangerous  by  an ordinary  landowner,  fell and caused damage, the owner  was held liable.  (Brown V.  Harrison (1947) W.N.191).

     In  Hale vs.  Hants 1947 (2) All England Reports  628, which  is  a  case of branches of a tree having  struck  the windows of an omnibus and a piece of glass having struck the plaintiff in the eye, it was held that in the absence of any reason  to  suspect danger from an overhanging tree or  some similar  obstruction  a driver who is driving close  to  the kerb when his vehicle is struck by the branch of the tree is not  making  an  unreasonable use of the  highway.   It  was further  held that the county council should have known that trees grow and throw out their branches and therefore it was their  obligation to see that the tree in its natural growth was curbed in such a way as not to hinder the reasonable use of the highway .

     By a catena of decisions, the law is well settled that if there is a tree standing on the defendant’s land which is dried or dead and for that reason may fall and the defect is one  which is either known or should have been known to  the defendant,  then  the  defendant is liable  for  any  injury caused  by  the  fall of the tree (see Brown  Vs.   Harrison (1947)  63 Law Times Reports 484;  Quinn Vs.  Scott (1965) 1 W.L.R.   1004,  Mackie Vs.  Dumbartonshire  County  Council, (1927)  W.N.   247.  The duty of the owner/occupier  of  the premises  by  the side of the road whereon persons  lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the  premises.   The premises must be maintained in  a  safe state  of  repair.   The owner/occupier  cannot  escape  the liability  for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person  to keep the premises in safe repairs.  In  Municipal Corporation  of Delhi Vs.  Subhagwanti and Ors.  AIR 1966 SC 1750  a  clock  tower which was 80 years  old  collapsed  in Chandni  Chowk  Delhi  causing  the death  of  a  number  of persons.   Their Lordships held that the owner could not  be permitted  to take a defence that he neither knew nor  ought to have known the danger.  "The owner is legally responsible irrespective  of whether the damage is caused by a patent or

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a  latent  defect," - said their Lordships.  In our  opinion the  same  principle  is applicable to the owner of  a  tree standing by the side of a road.  If the tree is dangerous in the  sense that on account of any disease or being dead  the tree  or its branch is likely to fall and thereby injure any passer-by  then such tree or branch must be removed so as to avert  the danger to life.  It is pertinent to note that  it is  not  the defence of the Municipal Corporation  that  vis major  or an act of God such as storm, tempest, lightning or extraordinary  heavy  rain had occurred causing the fall  of the  branch  of the tree and hence the Corporation  was  not liable.

     In our opinion the High Court was right in holding the Municipal Corporation negligent in performing its duty under the  common  law  and  therefore liable in  damages  to  the plaintiffs  for the injury caused to the deceased by fall of the  branch  of  the  tree   and  the  consequences  flowing therefrom.

     The deceased was aged 30.  He was employed in a family business  wherefrom  he was drawing a salary of  Rs.650  per month.  The learned Trial Judge deducted an amount of Rs.150 per month for expenses incurred on the self and assessed the dependency  at  Rs.500 per month.  The Division Bench  found that  apart  from  salary  the  deceased  was  also  getting commission  on  sales.  The net income of the  deceased  was arrived  at  Rs.1,000/-  per  month  wherefrom  Rs.200  were deducted  as  expenses  on  the self.   The  dependency  was assessed  at  Rs.800 per month.  The learned Trial Judge  as well  as the Division Bench have adopted a multiplier of 15. Thus,  the  Division  Bench  has  assessed  the  quantum  of compensation at Rs.1,44,000/- in supersession of Rs.90,000/- assessed  by  the learned Trial Judge.  Though, the  learned counsel  for  the  Municipal Corporation  has  assailed  the assessment  to be on higher side and the learned counsel for the  claimants has submitted that keeping in view the better future  prospects  of the deceased in the  family  business, coupled  with the youth of the deceased, the monthly  income should  have  been  taken  at Rs.1826/- but we  are  of  the opinion  that  the figure of compensation arrived at by  the Division  Bench is a very reasonable figure and calls for no interference.   The  multiplier  has   also  been  correctly adopted.  In the leading case of Susamma Thomas (1994) 2 SCC 176  this Court adopted a multiplier of 12 when the deceased was  aged  39.  We do not find any fault with the figure  of compensation having been arrived at Rs.1,44,000/-.  The same is upheld.

     The last point of controversy centres around the award of  interest.   The suit having been decreed by the  learned Trial Judge, the Division Bench directed the decretal amount to  be  deposited by the Municipal Corporation in the  Court which  was  done on 17.9.1970.  The amount so deposited  was available  to  be  withdrawn  by the  claimants  subject  to furnishing  security  to the satisfaction of  the  executing court.   The  claimants could not furnish the  security  and hence  could not withdraw the amount.  The Division Bench in the  backdrop  of  such  facts directed  the  amount  to  be deposited in fixed deposit so as to earn interest.  However, the  Registry omitted to comply with the order and therefore the  amount  continued to remain in deposit with the  Court. The  Division  Bench observed that liability for default  on the  part  of the Registry in carrying out the order of  the Court could not be fastened on the judgment-debtor Municipal

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Corporation.   Still  the Division Bench has directed 3  per cent  per  annum  additional  interest to  be  paid  by  the Municipal  Corporation to the claimants and thereby made  an effort  at adjusting the equities.  It cannot be lost  sight of  that  partly the delay in release of the amount  to  the claimants  is  attributable to their failure to furnish  the security  as directed by the Division Bench.  The  claimants have  been allowed interest on the decretal amount from  the date  of  the decree though the amount of  compensation  was quantified  only from the date of the passing of the decree. In  such circumstances, the direction of the Division  Bench in  the matter of award of interest is also not liable to be interfered   with  on  consideration  of  totality  of   the circumstances.

     For  the  foregoing reasons both the appeals are  held liable to be dismissed.  Civil Appeal No.687/86 filed by the Municipal Corporation of Delhi is dismissed

     with   costs   payable  by   the   appellant-Municipal Corporation  to  the   respondent-claimants.   Civil  Appeal No.4242/86  filed by the claimants is dismissed without  any order as to costs.