Issue 1. Is the suit filed by the plaintiff is maintainable as per Order XXXII Rule 1 and 2 of The Code of Civil Procedure, 1908?
NO, the suit filed by the plaintiff is not maintainable, as this case is filed be Deepika but she cannot sue the authorities, as per the provisions of Order XXXII Rule1, at the time of filing of suit, she has not attained the age of majority as per Sec.3 of Indian Majority Act, 1875. Therefore, this suit is to be taken off as per Order XXXII rule 2 of the Code of Civil Procedure, 1908.
Order XXXII Rule 1:-
Monor to sue be next friend:- Every suit by a monor shall be instituted in the name by a person who in such suit be called the next friend of the minor.
Order XXXII Rule 2:-
Where suit is instituted without next friend, plaint to be taken off the file:-
(1) Where a suit is instituted be or on behalf of a minor without a next friend, the defendant may apply tohave the plaint taken off the file, with cost to be paid be the pleader or other person be whom it was presented.
(2) Notice of such application shall be given to such person, and the court, after hearing his objections (any) mau make such order in the matter as it thinks fit.
In Smt. Sarla v. Sh. Ram Singh:- The Delhi District Court considered that “The suit on behalf of the minors plaintiff cannot be instituted without appointing their guardians u/o XXXII rule 1 CPC and therefore, suit is not properly instituted as far as the then minor plaintiff no. 2 and 3 are concerned. Suit therefore is instituted only by plaintiff no. 1 for herself and not being the then minor plaintiff no. 2 and 3. This issue therefore is decided accordingly.” And no relief was granted to the monors and in courts finding given on the issue no. 3 and 4, plaintiff is not entitled to any relief. The suit is dismissed however no order as to costs.
The Madras High Court in:-
Abdul Azeez v. Pathumma Bi
Order 32, Rule 1, C. P. C. lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. There arc no exceptions to this general rule of procedure contained in the Code itself. There is no definition of a minor in the Code nor in the General Clauses Act. The Indian Majority Act, IX of 1875 provides that every person domiciled in British India shall be deemed to nave attained his majority when he shall have completed his age of eighteen years and not before.
Therefore, Deepika has to file a suit be her next friend as per Order XXXII rule1.
Issue 2. Whether the injuries caused to the plaintiff was due to the carelessness and negligence of her parents?
Yes, the injuries caused to plaintiff was due to the carelessness and negligence of her parents. It is the duty of the parents to look after their children. The pump is operated electrically inside the room, which is not the place of playing for children and nobody is supposed to go in the room. Therefore, the parents were guilty of negligence for the alleged incident.
Negligence is the breach of a duty caused be the omission to do something which a reasonable man, guided be those considerations which ordinarily refgulate the conduct of the human affairs would do, or doing something which a prudent and reasonable amn would not do. Actionable negligence consists in th neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, be which neglect the plaintiff has suffered injury to his person or property.
There are # constituents of Negligence:-
1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of duty.
2. Breach of the said duty
3. Consequential damage
Taking into consideration al the above constituents, it cannot be said that the injuries have been caused due to the negligence and carelessness of the defendants. The plaintiff had no business to enter into the pump room as the pupm is not perated in open space. It is the duty of the parents to look after the children. The pump is operated electrically inside the room, which is not the place of playing for children and nobody is supposed to go in the room. A parents is liable for their children’s negligent act if the parents knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians and others with custody and control of a child may also be liable under these circumstances. Hence the negligence in this case is on part of plaintiff and not on the defendant.
The Delhi High Court in :-
Modh. Quamuddin & Ors. V. Union of India
In this present case, the petitioners are parents of children – Najruddin, aged about 11 yeares, Sajruddin, aged about 10 years, Saddam, aged about 14 years; and Arun, aged about 11 years – who were run over by a train and have filed the present petition seeking compensation for the loss of lives of their respective children. It was held that the parents of the deceased children were well aware of the risks involved in playing near the railway tracks and despite that, they allowed their children to paly near the railway tracks. The respondent had ensured that the tracks are not at the ground level and had thus taken the necessary safety measure to ensure that the tracks are not accessible in the normal course. The railway authorities have been advertising extensively cautioning the public of the hazards of trespassing on the railway tracks. The tracks also do not present a hidden trap. In the circumstances, it is difficult to apportion any blame on the railway authorities for the tragic incident.
Therefore, It was held that, the parents of the deceased children were negligent and hence, they were responsible for the incident. Accordingly, the petition was dismissed. No order as to costs.
Issue 3. Whether the plaintiff trespassed in the area of the dependent?
Yes, the plaintiff entered into the water pump area without the permission of the defendant. It shows that plaintiff was the guilty of trespass.
Meaning of Tory:- tort comes form Latin ward “Torum”, which means “To Twist”. Thus Tort is a conduct which is not straight of lawful; but on other hand; Twisted/Crooked or Unlawful.
In this case, there is also unlawful points exists. That is the point of Trespass which is also applied here, as per the facts of the case. As the girl went into the room without the permission of the authorites, where this water pump was installed.
Meaning of Trespass:- Trespass is direct interference in the person’s possession or land with the lawful justification. It also includes the interference with some material or Tangible objects also. It is a civil wrong which comes under the law of Torts.
Issue 4. Whether the plaintiff is entitled to get any compensation from the defendant?
No, the plaintiff is not entitled to get any compensation from the defendant as, the defendant did his work in due care and there is no negligence on the part of the defendant for this incidence.
As the defendant had installed the water pump with due care, as first of all, he maintained a proper room for this. Then, and attendant was also specifically appointed to look after the pump. And this pump was installed for providing the water facility to the residents of the quarters. Thus, defendant worked for the welfare of residents of that quarters. This shows that, the defendant did his work with due care and there is no negligence on the part of the defendant for this incidence. Therefore, the plaintiff is not entitled to get any compensation from the defendant.
The Andhra High Court in:-
Mirza Mahboob Ali Baig Aslam v. Union Of India
"If the Children were trespassers, the land-owner was not entitled intentionally to injure them, or to put dangerous traps for them intending to injure them, but was under no liability if, in trespassing, they injured themselves on objects legitimately on his land in the course of his business. Against those he was under no obligation to guard trespassers."
In Robert Addie & Sons (Collieries) Ltd. V. Dumbreck:-
A four year old child was killed be a horizontal iron wheel of a haulage system belonging to a colliery company. The Court held that the child was a trespasser and there was no legal duty cast upon the colliery company to afford any protection to him. The claim for compensation was rejected.
In British Railways Board v. Herrington:- Achild aged about eight years was injured by a live electrified wire of a railway line. The court considered the earlier decision.
Issue 5. Is the value of compensation is properly calculated?
In the present suit, the plaintiff is silent regarding the amount of compensation claimed be her and also the calculation of the compensation. This shows that if plaintiff now afterwards tells anything about the compensation, those will be tentative calculations. Therefore the plaintiff cannot entitled any amount of compensation on the basis of this tentative calculations.
The Supreme Court of India in:-
Raj Kumar v. Ajay Kumar & Anr.
In this case, it is said that The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb.
There are many precedent laid down be The Hon’ble Supreme Court and respective High Courts on how to calculate the compensation. According to those precendets every suit for compensation is a unique suit which depends upon the various factor mentioned below:
1. The earning of the individual claiming compensation.
2. The medical expenses occurred due to the accident.
3. The loss of income during the period of medical treatment.
4. The future earning of the individual.
5. The age of the individual claiming compensation.
Thus, this shows that the valuation must be done by doctors, not be plaintiff himself. If plaintiff done this without the doctors consultation, then this valuation is tentative. And in this case, the plaintiff even does not tell anything about the compensation and assessment of compensation. Therefore the plaintiff cannot entitled any amount of compensation on the basis of this tentative calculations.
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