Sabhahit, J.@mdashThis appeal is filed by the unsuccessful writ petitioners in W.P. No.46526/03 being aggrieved by the order dt. 15.12.2005, wherein the learned Single Judge of this Court has declined to grant the compensation of Rs.10 lakhs claimed by the petitioners as mother, wife and children of Sri P. Sriram and dismissed the Writ Petition.
2. The appellants herein are the mother, wife and children of P. Sriram. It is the case of the petitioners that on 10.2.2003 at about 7 p.m. Sri P. Sriram and his colleague Sri P.B. Rama Mohan Rao were going from East to West direction on 22nd Cross, 3rd Block, Jayanagar, Bangalore on their scooter bearing No. AP 9 R 6074. At that time the termite infected fully grown up silver oak tree standing on the foot path of 22nd cross suddenly fell on the said scooter due to which Sriram and the pillion rider sustained injuries and Sriram died on the way to hospital. Complaint has been lodged by the Doctor whose clinic is near the spot of accident. The falling of the trees attributable to the negligence on the part of the Corporation in not properly maintaining the trees and wherefore, the petitioners sought for compensation of Rs.10 lakhs from the respondent - Corporation averring that Sriram was aged about 36 years at the time of accident and his death, first petitioner is the mother, second petitioner is wife aged 27 years and children of Sriram aged 7 and 3 years respectively and they have lost sole bread earner of the family. Wherefore, they may be awarded compensation. It was contended by the learned counsel appearing for the petitioners that it is the statutory duty on the part of the Corporation to protect and maintain trees. No statement of objections was filed by the respondent in the Writ Petition. However, it was contended during the arguments that the tree did not fall due to termite infection and it was a pure case of accident and disputed question of fact cannot be gone into in the Writ Petition. Learned Single Judge held that it is a pure disputed question of fact which cannot be gone into in the Writ Petition and relied upon the decision of the Hon''ble Supreme Court in the case of Chairman, Grid Corporation of Orissa Ltd. (Gridco) vs. Smt. Sukamani Das & Another Reported in AIR 1999 SC 3412 and dismissed the Writ Petition as not maintainable. Being aggrieved by the said order of dismissal dt. 15.12.2005 this appeal is filed by the unsuccessful writ petitioners.
3. We have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent and scrutinised the material on record.
4. The material on record would clearly show the fact that P. Sriram was the son of the first petitioner, husband of the second petitioner and father of petitioner Nos. 3 and 4, was riding the scooter bearing No. AP 9 R 6074 on 10.2.2003 at about 7.00 P.M. near 22nd cross, 3rd Block. Jayanagar, Bangalore and the tree which was standing on the foot path fell on the scooter and the deceased Sriram sustained fatal injuries and on the way to the hospital he died and since the petitioners were dependant on the income of the deceased as Sriram was the only earning member in the family and the death was due to negligence on the part of the Corporation in not protecting and maintaining the tree. It is also averred that said tree was infected by termite. It is further averred that Dr.Suman Koushik of Amogha clinic near the spot of the accident, filed the complaint and the same has been registered in Crime No. 74 of 2003 for the offence punishable under Sec. 338 & 304A of IPC and under Sec. 272 & 437 of Forest Act against the officials of the respondent. In the complaint it is clearly stated that the tree was infected and though representation was given no steps have been taken by the Corporation to remove the said tree and to avoid any untoward incident. The said averments made in the Writ Petition are not controverted by filing statement of objections by the Corporation. Even in the Writ Appeal no effort has been made to file any counter to the appeal by seeking permission of the Court since they had not filed objection statement before the learned Single Judge. Wherefore, the averment made in the Writ Petition remains uncontroverted and question of deciding undisputed fact would not arise in this case as it is clear that the fact that P. Sriram was riding the scooter from east to west direction on 22nd Cross, 3rd Block. Jayanagar, Bangalore at 7.00 p.m. on 10.02.2003 and the tree which was standing on the foot path fell on him and he sustained grievous injuries and died on the way to the hospital, has not been controverted nor disputed. In view of the same it is clear that the fact that respondent has been entrusted with the obligation of protecting and maintaining the trees and the averment made in the complaint would also show that though representation had been given that the said tree was termite infected, no steps were taken by the Corporation. Wherefore, the above said uncontroverted facts would speak for itself and show that there is negligence on the part of the Corporation in protecting and maintaining the said tree and they were responsible for the untoward accident prima facie as they did not discharge their obligation.
5. In view of the above said facts, principles of res ipso facto is attracted as the facts speak for themselves as the tree which has to be maintained by the Corporation cannot fall on a rider of the scooter and the fact that the tree has fallen would itself indicate that it has not been properly protected and maintained. Therefore, onus would shift to the respondent-Corporation and Corporation should show that all care had been taken and specially in this case when it had been brought to the notice of the Corporation that the tree was termite infected and no steps have been taken and in the absence of any explanation by filing statement of objection by the respondent, it is clear that onus is not discharged.
6. Further, it is clear that the quantum of compensation to which claimants would be entitled to has to be decided by the competent Civil Court and having regard to the above said admitted facts of the case, the decision of the Hon''ble Supreme Court relied upon by the learned counsel appearing for the respondent in the case of Sdo Grid Corporation of Orissa Ltd. and Ors. vs. Timudu Oram is not helpful to the present case as in the said case the petitioner had approached the Civil Court and failed therein and thereafter, filed Writ Petition under Article 226 of Constitution of India and there was delay and latches for a period of ten years in preferring the Writ Petition after disposal of the Civil Suit and wherefore, in view of the said inordinate delay it was held that the petition was not maintainable. Wherefore, the finding of the learned Single Judge that there is disputed question of fact in the present case and no relief can be granted to the petitioner is not at all justified and cannot be sustained in view of the fact that Corporation is not justified in not filing statement of objection and averments made in the Writ Petition remains uncontroverted. Further, the question of determining compensation is pure question of fact which has to be decided by the competent Civil Court on the basis of the evidence that shall be recorded before it. We hold that the claimant would not be entitled to compensation of Rs.10 lakhs. However, it cannot be held that they are not entitled to any compensation in exercise of writ jurisdiction of this Court. Having regard to the above said uncontroverted facts, we pass the following:
ORDER
7. Writ Petition is allowed. The respondent shall pay compensation of Rs. one lakh to the appellants and it is open to the appellants to approach the Civil Court if they are not satisfied with the said amount of compensation awarded by this Court and if Civil Court awards compensation, the amount awarded in this Writ Appeal shall be deducted. The amount shall be paid within four months from today, failing which the amount shall carry interest at 9% p.a. from the date of Writ Petition till the date of payment. It is made clear that if a Civil Suit is filed, quantum of compensation be decided independently in the said suit without being influenced by any observations made in this appeal.
