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Are writ remedies available only to poor litigants? A peep into a recent Delhi HC judgment in a cattle attack compensation case

If you are attacked by a bull while walking on a street, what are the chances of your making a successful claim for compensation from the municipal authorities, who have a responsibility to keep stray cattle away from the public streets?

The Delhi high court came across an interesting case recently which was decided in favour of the Municipal Corporation of Delhi (MCD).

The petitioner, Padma Verma, aged 77, sought a write of mandamus to the MCD to compensate her Rs 10 lakh for the injury suffered by her after having been attacked by a bull while walking on a street.

On 13 May 2008, a rampaging bull gored her chest and threw her on the footpath, as a result of which she sustained serious external and internal injuries in the head resulting in loss of consciousness and multiple epileptic fits on the road. She suffered hemorrhage contusions in the right frontal and left parietal regions besides fractures of the skull bone and multiple sites of internal hemorrhage.

She claimed to have retired as a principal of a school, but owing to her injuries, she suffered loss of memory and found it difficult to give tuitions to students of Class XI and XII, from which she was earlier earning Rs 15000 per month.

She relied on the Delhi high court’s previous judgment in Common Cause v Union of India (2003) in which a division bench had held that not taking effective steps to prevent cattle from taking to the streets affects the fundamental rights of the citizens; and that as a result of this incident, she has been rendered incapable of earning her livelihood.

The MCD argued before the court that her claim for compensation was a case of action in tort where negligence is first required to be established and which can be done only by leading evidence. This cannot be done in writ jurisdiction, the MCD contended, as disputed questions of fact are involved.

Justice Rajiv Sahai Endlaw, who heard this case, suggested to the petitioner’s counsel that she should file a suit rather than a writ petition. But as the petitioner did not agree, he heard further arguments.

Justice Endlaw, while dismissing her petition, noted the following flaws:

- She neither complained to the MCD , nor filed an FIR with the police about the incident.

- The medical reports did not show any injury to her chest, as claimed.

- Though she claimed to be suffering from epilepsy, her discharge summary from the hospital, where she was admitted for treatment after the incident, did not record it.

- Documents produced by the petitioner did not reveal fractures of her skull, chest injury and epilepsy.

- Compensation can be awarded in writ jurisdiction, if negligence has been found in the investigation pursuant to FIR of the incident, and injury is not disputed. Here, there is nothing of the sort.

Res ipsa loquitur

The petitioner’s counsel invoked this principle, to show that there is a presumption of negligence on the part of the MCD, and as the principle literally means, ‘the things speaks for itself’, and there is nothing to prove.

When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. Therefore, the plaintiff has to prove the accident, and nothing more. Instead of the plaintiff proving negligence, the defendant is required to disprove it.

Justice Endlaw, however, disagreed that this principle could be applied to the facts of this case. The only thing undisputed is the newspaper report about the incident, which itself is based on the version of the petitioner’s husband.

As the MCD disputed that version, Justice Endlaw refused to accept it as gospel truth.

Thus the petitioner’s failure to register an FIR with the police, or make a complaint with the MCD, soon after the incident, was a fatal flaw in her case.

The Judge observed:

The cattle, just like humans cannot be kept confined to four walls and for their wellbeing required movement and was thus required to be let loose and when let loose did not confine itself to the boundaries of the village but naturally strayed into the nearby modern colonies.

He added:

When we are concerned with not an obligatory but a discretionary function of the Corporation pitted against the duties performed by the petitioner as a citizen, it cannot be said that the principle of res ipsa loquitur can be invoked.

Justice Endlaw also justified denial of writ jurisdiction to the petitioner, because she belongs to the affluent class, saying writ remedy in such cases was extended mostly to litigants from weaker sections. “She cannot claim to be one who would have been denied access to justice if she had filed the suit”, he observed.

Justice Endlaw also alluded that the petitioner perhaps avoided the suit remedy to avoid appearing in the witness box and answer unpleasant questions about the nature of her injuries she suffered and about her epilepsy.

Justice Endlaw’s reasons for denial of writ remedy to the petitioner are debatable.

Photo by Ken Teegardin.[Download PDF]

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