B.C. Misra, J.
(1) This suit relates to compensation for the death of one Suresh Chandra (hereinafter referred to as the deceased I who was the son of plaintiff No. 6 and husband of plaintiff No. 1 and father of plaintiffs Nos. 2 to 5 plaintiffs Nos. 1 to 6 claiming to be legal representatives of the deceased have instituted this suit for recovery of Rs 3 lakhs on account of the death of the deceased owing to the alleged negligence of defendant No. 1 or defendant No. 2 or defendant No 3.
(2) The facts of the case giving rise to the dispute are that there was an old neem tree existing outside 20, Alipur Road, Delhi, which is contended by the plaintiffs to be dry and dead tree and which his on evidence been found to have had a branch projecting over the road about eight feet long and eight inches in diameter. On 18th August, 1964, the incident in dispute occurred in the evening while the deceased was returning from his office on a scooter and pissed through Alipur Road on his way to his residence when the above-mentioned branch broke off from the tree and fell on his head which was crushed. The deceased was rushed to Irwin Hospital were be expired on the following morning at about Ii A.M. in spite of medical aid. Aggrieved by the said incident, the plaintiffs claim compensation and they first on 19th October, 1964 moved the Accidents Claims tribunal but their petition was dismissed on 23rd March, 1965 as not maintainable It may be noticed that during the course of said proceedings, a local Commissioner was appointed who submitted his report along with some photographs which he arranged to be taken and which have been placed on the file of this case. Later on the plaintiffs after serving the requisite notices on the defendants instituted the present suit on 5th August. 1966 on the allegations that the defendants were the owners of the aforesaid tree, the branch of which had been projecting over the highway and the defendants had been negligent in not removing the said tree at the proper time or removing the danger from the said tree to the passersby which has resulted in loss of life of the deceased. It was alleged in the plaint that the deceased was a youngman of 30 years of age and was a Graduate and belonged to a rich family of great longevity and he had at the time of his death been earning about Rs. 1,500.00per month and the plaintiffs claimed Rs. 3 lakhs as compensation on account of value of the dependency of the family on the deceased.
(3) In their written statement, the Municipal Corporation, defendant No. I, raised a number of legal pleas and on the merits of the case, it alleged that it was not the owner of the tree in question and that the same was not in a dangerous condition and that the defendant has no obligation to maintain the same and that there was no negligence on its part, but it was purely a case of accident or act of God which resulted in the death of the deceased. The Union of India and Delhi Administration (defendants Nos. I and 2) filed their joint written statement in which they urged that the plaint did not disclose any cause of action against them and they also stated that they were not the owners of the tree in question growing on the foot-path and they ware under no obligation to maintain the same and that there was no negligence on their part and the plaintiffs were not entitled to any compensation as the death of the deceased had not caused any pecuniary loss to the plaintiffs. Replications to the said written statements were filed on behalf of the plaintiffs and on the pleadings of the parties the following issues were framed :-
'1. Whether the suit is barred by section 477 of the Delhi Municipal Corporation Act, 1957 O.P.D. 1. 2. Whether the notice Exhibit P. I dated 14th April, 1966 is not in accordance with the requirements of section 478(1) of the aforesaid Act, O.P.D. 1. 3. Whether the suit is barred by limitation by reason of section 478(2) of the said Act or by Article 72 of the Limitation Ast, 1963 O.P.D. 1. 4. Whether the plaint does not disclose any cause of action 5. Whether M/s Jai Bharat Insurance Company Ltd., insurers of the scooter in question, are necessary parties to the suit O.P.D 1. If so, to what effect O.P.D. 1. 6. Whether plaintiffs 2 to 5 have not been properly represented by their mother-plaintiff No. 1? O.P.D. 1. 7. Are the plaintiffs legal heirs of the deceased Suresh Chander O.P.P. 8. Did Sniesh Chander die in the manner alleged by the plaintiffs OP.P. 9. Was the tree in question an old and dead tree O.P.P. 10. On proof of issue No, 9 were the defendants or any one of them under any legal obligation to maintain It If so, were they negligent in doing so O.P.P. 11. Which of the defendants is the owner of the tree in question O.P.P. 12. Are the plaintiffs entitled to any damages If so, in what amount and against whom OP.P.
Issues Nos. I to 5 have already been decided in favor of the plaintiffs and they do not survive for my determination. Issue No. 6 has not been pressed on behalf of the dependents before me. I will take up issues No. 7, 8 and then Ii before deciding.. issues Nos. 9 and 10. Issue No. 7. Nothing has been urged on behalf of the defendants in answer to issue No. 7. On the other hand, it has been established by the evidence of the plaintiffs' witnesses and Public Witness 13. Public Witness PW. 12 that the plaintiffs are legal representatives of the deceased Suresh Chandra. However, plaintiff No. 6 who is the mother of the deceased and who has her husband alive, was not dependant on the earnings of the deceased and she would not be entitled to any compensation for basic dependency or pecuniary loss arising out of the death of the deceased. I answer the issue accordingly. Issue No. 8. This issue has not been seriously challenged on behalf of the defendants There is no doubt that Suresh Chandra deceased was riding a scooter when he passed by the scene of occurrence and the branch of the tree in dispute broke off and fell on his head crushing the same The deceased was at once taken to the hospital where he expired on the following day. These facts are sufficiently established by the oral evidence of Public Witness 10 and Public Witness 12, the eye-witnesses of the occurrence. They are supported by the medical records of the hospital exhibits Public Witness 2/1 to P.W. 2/5 which have been proved by Public Witness 2 On the file, there is Ho rebuttal on behalf of the defendants. The issue is, thereforee, decided in favor of the plaintiffs, but this does not dispose of the liability of the defendants to pay compensation. Issue No. 11. It is in evidence of the defendants that the tree in question had been standing at the site for about 20 years past vide statement of DW. 3 Janak Raj and, thereforee, the tree was in existence in 1930 or earlier. At that time there was a local authority by name Notified Area Committee civil station which had jurisdiction over the said area and was governed by the provisions of the Punjab Municipal Act Iii of 1911, as applied to Delhi and under section 56(g) of the said Act read with section 3 (30) the said local authority was vested with control of all public streets and trees existing over them (except the lands owned by the Government) The Delhi Municipal Corporation Act 1958, by virtue of Section 516(d) of the said Act provided for transfer of properties of the notified Area Corn. Committee civil station to defendant No. 1. Hence defendant No. 1 is the owner of the said tree. Apart from the statutory provisions, there is oral evidence upon the subject. D. W. 1 Shri J. C. Sarma, Assistant Superintendent (Garden) has stated that only Mall Road was a national highway, and the Municipal Corporation of Delhi was supposed to look after and maintain the tree in question. He farther stated that the Civil Lines area 'vis transferred to the Corporation after it had come into existence sometimes in 1958 and that thereafter neither the Delhi Administration nor the C. P. W. D. had any connection with the maintenance of the tree. Similarly Madan Singh D. W. 2 stated that since the time he had joined the service of the Corporation in December, 1963, he had known that it was the duty of the defendant-corporation to maintain the trees but be added that ha did not know who was the owner of the tree in question, as they did not have any records to show their ownership. This witness, however, proceeded to state that after the incident in question, the branch in dispute had been collected by the staff of the Corporation and deposited in their godown on 19th August 1964 and an entry in respect of the wood of the branch in question had been made in the stock register of the defendant which, however, has not been produced in Court. The Collection of this wood of the branch in question and its deposit in the godowns and its appropriation by the defendant-corporation strongly established that defendant No. I was the owner of the tree in question. From the fact of the ownership of the tree, it follows that the defendant-corporation had a duty to keep the tree in good condition free from its being a source of danger to the passers by Apart from that, under section 43(9) of the Delhi Municipal Corporation Act a duty is cast upon the defendant -Corporation to maintain the trees. Learned counsel for the defendants urges that the said duty is directory and not mandatory, but whatever it is, it is sufficient to state that it was legal and legitimate on the part of the Corporation to incur expenditure on the maintenance of the tree or to remove the same and keep it safe from being a source of danger to the public at large. As a result it follows that the defendant-corporation which was the owner of the tree had a duty to maintain the same. Accordingly I answer issue No. 11 and hold that the Municipal Corporation, defendant No. 1 alone and not dependents Nos. 2 and 3, was the owner of the tree in question. Issue No, 9. The learned counsel for the plaintiffs has led evidence of the photographs (P. 3 to P.8) taken under the supervision of a Commissioner appointed by the Accident Claims Tribunal to establish the identity and condition of the tree in question from which the branch in dispute had broken off The learned counsel for defendants seriously contended that the photographs had been taken long after the incident and that they had correctly not depicted the tree in question. It is, however, significant to notice that the defendants have not produced either the photograph or any contemporary report or record made by their staff to show what was the tree involved in the incident. The incident occurred on the 18th August, 1961, and the branch in dispute was admittedly removed by defendant No I on 19th August, but the tree in question was, according .to the evidence of defend in ts, removed from the site long after. During this period the plaintiffs had instituted their claim before the Accident Claims tribunal on 19th October, 1964 and a commissioner appointed by the Tribunal had inspected the site and made a report Exhibit Public Witness 3/1 on 23rd January, 1965 and he had filed photographs Exhibits P. 3 to P. 8 which were shot by P. W. 4. The Assistant Superintendent D W. I, had been in service since November, 1959 as Assistant Superintendent (Garden) and was in charge of the place of the occurrence from April, 1962 to November, 1965 and visited the palace of incident on 19th August along with other staff but he admitted in cross-examination that he did not prepare any memorandum or any inspection note in connection with their visit nor did he made any report to his superior officer?. thereforee, there is no rebuttal on the file and I accept the photographs Exhibits P. 3 to P. 8 as the correct photographs of the tree in dispute. I have now to determine the question whether the tree in dispute was dry and dead and if so, what was its effect Its condition has been deposed by Public Witness 13. The photographs Exhibit P. 6 shows that the tree in question does not have any foliage or hark and the same is tilling towards the road on points 'Y' and 'Z'; the photograph indicates the point from which the branch broke oft. Exhibit P. 4 shows the condition of the tree from which the branch had broken off and Exhibit P. 3 indicates the correctness of absence of bark of the tree. The plaintiff has examined Public Witness 11. V. D. Gaur of A. S. College who had been Lecturer of that College in 1942 and be came the head of the department in 1957 and he claimed that he was the senior most teacher of Botany at Agra as well as in the University of Meerut He stated that by looking at the photographs. Exhibits P. 3 to P. 7, one of the trees had been prominently shown and he considered the same to be a dead tree. His reason for considering it to be a dead tree was that it did not hive any bark, foliage or buds. He further disclosed that at the point of the tree where the branch had broken off, there was no fringe and only in a dry wood there would not be found any fringe and. thereforee, the tree was dry and dead He also gave his opinion that the food material manufactured by the leaves is transmitted to the roots through the bark and if a tree does not have a bark, it would dry up and die In cross-examination, he admitted that a dead tree may not necessarily fall down at once and it may remain standing up to five years and he also stated that a living tree was not likely to tall down unless there were a storm of great intensity. This opinion of Public Witness Ii finds support not only from the: direct testimony of P. W. 13 but also from the statements of D. W. 5, Shri S- L. Jindal, Garden Superintendent of the defendant-Corporation since 1950. He admitted in cross-examination that alter examining the photographs Exhibits P. W. 3 to P. 8, he did not find any foliage in.Exhibits P. 4, P. 5 and P. 6. nor did he find any bark on the tree in question and he stated that in case the tree wag devoid of bark on all sides, as shown in the photographs, then this may be a dead tree The witness further gave his opinion in his examination in-chief that there possibility of a live tree having a dead branch and defined a dead tree as the one which had ceased functioning that is to say the process of good making by foliage was not there and a broad indication of it was that fie bark would be found missing from all sides of the tree. He also gave his opinion that any tree could be dangerous and over banging branches, which were about to fall, would be termed as dangerous or if the tree had titled or lost its balance or the roots might have come out and as a result of it crevices or cracks appear on the footpath adjoining the area. In the examination-in chief the witness denied the dangerous character of the tree in question, but in his cross-examination, as mentioned above, he has given enough material for me to conclude that the tree in question was dead and dry and dangerous. The other witness of the defendants examined as D. W. 4 was Daijit Singh, Deputy Commissioner, Horticulture and he only stated that from the photographs he was unable to give any opinion, but he admitted in cross-examination that Exhibit P. 4 did not show any leaves of the tree in question. The other witnesses of the defendants examined as D W. I, D. W. 2 and D. W. 3 do not throw any light on the subject. They were employees of the defendant Corporation concerned with the administration of the Garden Department and they were the persons who were actually responsible for keeping the tree in good and safe condition on behalf of the defendant Corporation. Their evidence is not only interested but also extremely vague and wholly unhelpful. They are the persons who were expected to carry out regular inspections and keep a record of them and maintain the trees In good condition or remove them it they were dead, but far from doing so they did not take the trouble to make any inspection or keep any contemporary record or inspection notes or have any photographs of the tree in question even after the occurrence of the incident in dispute and no documentary evidence of any kind in respect of the tree in question has been produced on behalf of the defendant-corporation. As a result, I hold that the tree in question was dry and dead and the same was tilting and dangerous and projection of its branch over the public road was a definite source of great danger to the passers by who were entitled to use the road. I answer issue No. 9 in the affirmative. Issue No 10 in discussing the issues referred to above, I have observed that defendant No. 1 was the owner of the tree in question and it had a legal duty to keep its properties free from danger to the passers by. The facts established on the record as well as the non-existence or non-production of any records by defendant No I, amply bear out the fact that defendant No. 1 had been grossly negligent In respect of maintaining the tree in question in good condition or removing it when it had become dead and dry and was a source of danger. Learned counsel for defendant No I strongly urged that no person had mad' any complaint to the Corporation about the dangerous condition of the tree in question and they never knew about it. This would disclose a callous attitude on the part of the defendant which owned the tree and in order to perform its legal duty, stood in need of a complaint from the members of the public Instead of itself carrying out regular careful inspection which would have revealed the source of danger. In a matter like this, culpable negligence is to be atributed to the defendant and the doctrine of rest ipsa loquitur would apply and the learned counsel for the plaintiff has relied upon the said doctrine to the effect that it was the mandatory duty of the defendants to make proper inspections of the property and to take ail legitimate steps to keep the same in good condition and save the passersby. The doctrine was considered and applied by the Supreme Court in the case known as Clock Tower case to which defendant No. 1 was a party which is reported as Municipal Corporation of Delhi v. Subhagwanti in which their lordships observed as follows :-
'THE legal position is that 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 disrepairs so as to be of potential danger to the passers by or to be a nuisance, the owner is liable to any one using the highway, who is injured by reason of the disrepairs In such a case it is no defense 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 '
Their lordships of the Supreme Court also quoted with approval the following passage from Wringe v Cohen :-
'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, In Reg. v. Bradford Navigation Co, lord Blackburn (then Blankburn J.) Laid it down as a general principle of law that persons who manage their property so as to be a public nuisance are indicatable. In Attorney-General v. Tod Heatley, 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 Rajpier v. London Tramways Co., and the nuisance proved it is no defense on my part to say and to prove that I have taken all reasonable care to prevent it.'
The same rule of law is also laid down in Halsbury Laws of England 2nd Edition Vol. -23. at page 671 :-
'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 fact 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's negligence 'tells its own story' of negligence on the part of the defendants the story so told being clear and unambiguous. To these cases the maxim rest ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeeded in his defense, must be overcome by contrary evidence, the burden on the defendant being to show the act complained of Court reasonably happen without negligence on his part.'
The case before the Supreme Court related to a building structure like clock tower, but with regard to case of injury being Caused by the branch of a tree, learned counsel for the plaintiffs has relied upon another judgment reported as Halea v Hant, where the Court of Appeal held that it was legitimate for a driver of bus to use the whole breadth of the high way and the projection of the branches of the tree over the road did nut put the driver to any notice that he should not drive as such and in case an accident should occur as a result of the collision between the two vehicles moving on the highway, the highway authority was liable to pay damages for the same. The learned counsel for the defendants has invited my attention to two authorizes reported as 1968 Del LT 580 and 1989 Bom 127 in my opinion the said authorities do not assist the defendants in the controversy before me. The first case was of an axle of bus which broke down suddenly and the Court held that there was latent defect in the axle which could not be discovered by use of any diligence on its part and it absolved the bus driver of all his responsibility. The Court was not called upon to discuss the doctrine of rest ipsa loquitur which was considered by the Supreme Court. Tie second Case of the High Court of Bombay turned on the question of negligence on the part of the corporation in performing its duties authorised by the statute on its own facts and circumstances but the said question does not arise in the instant suit and the cited authorities aie, thereforee, of no assistance. As a resuit I hold that defendant No. 1 was grossly negligent in performing its duty and it was under a legal obligation to maintain the tree in dispute free from danger to the passers by which it failed to do and defendant No. 1 is, thereforee, liable to pay damages to the plaintiffs- Issue No. 12 The question of quantum of damages has engaged my auxious and careful consideration The Supreme Court in the above-mentioned case determined the wages of the deceased and multiplied the same by a multiplier of 15 years and awarded the same. The principles are also discussed in Buckley v. John Allen & Fora where in the case of the death of a man of 35 years, the Court awarded compensation by applying a multiplier of 15 years and assessed the basic dependency of the family after deducting the amount which was being spent by the deceased on himself. Learned counsel for the plaintiffs has relied on Mayne and Mc Gregor on Damages, 12th Edition, paragraphs 812 and 821. In paragraph 813, the leamed author laid down the proposition as follows :- -
'THECourts have evolved a particular method for calculating the value of the .dependency, or the amount of pecuniary benefit that the dependant could reasonably expect to have received. The basis is the amount of pecuniary benefit that the deceased would have conferred upon the defendant in the future. This may be calculated by taking the annual figure of the dependency, whether stemming from money or goods provided or services rendered, and multiplying it by the number of years that the dependency might reasonably be expected to last. This latter figure is generally referred to as the muitiolier. The resulting amount must then be scaled down by reason of two considerations. First that a lurnp sum is being given instead of the various sums over the year, and second that contingencies might have arisen to cut off the benefit prematurely. The method adopted by the courts to scale down the starting figure is to take the figure intact of present annual dependency and reduce only the multiplier.'
lord Wright in Davies v. Powell Duffryn Collieries dealing with the case of the death of a workiag husband observed as follows :-
'THEstarting point is the amount of wages which the deceased was earning the as certainment of which to some extent may depend on 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 ther like matters of speculation and doubt'
As a result, I have to determine the basic salary of the deceased, taking into consideration the fact of his earning at the time of his death and reduce the same by the amount spent by him on himself and then multiply it by a multiplier in view of his expected age, after taking; into consideration the facts that the family would be getting a lump sum. the widow has inherited shares worth Rs. 7,500.00 in the company where the deceased was employed and three of his children are sons who are likely to earn their livelihood on attaining the age of 21 years when they would most probably become settled in life and independent. Applying the said principles I find from the evidence of P. W 8 and P. W. 13 and Exhibit P. 17 that at the time of the death, the deceased who was a graduate was getting a salary of Rs. 650.00 per month and I deduct from it a sum of Rs. 150.00 per month on account of expenditure on the person of the deceased and arrive at Rs. 500.00 per month as the value of the dependencey to the family. Learned counsel for the plaintiffs has contended that the deceased was also getting a commission or sales in addition to his monthly salary and he has relied upon the income-tax return Exhibit P 17 and the evidence of the witnesses on the subject. I, am however, not inclined to accept the said evidence for taking into consideration the amount of commission. The income-tax return Exhibit P. 17 had been filed after the death of the deceased by the legal representatives and it has not been shown that the deceased had been obtaining any commission from the employer company (managed by the relations of the deceased) or in pursuance of any industrial award or contract of service and further the amount of commission on the allegations of the plaintiffs was likely to vary with the sales and so could be nil or very large figure and the same, thereforee, cannot be taken into consideration in determining the basic dependency of the deceased to the family and I exclude the same from consideration So far as the multipier is concerned, the deceased who had been born on 28th August, 1935, and was at the time of his death about 30 years of age, was normally expected to live for another 25 years. I would, thereforee, fix the multiplier at 15 and multiplying the game to the salary of Rs 5(1'.00 per month or Rs. 6,000.00 per annum would award Rs. 90,000.00as compensation. This amount received in lump sum was likely to yield a substantial income at the rate of 6 or 6 l/2 per cent per annum by investment even in the nationalised Banks. The amount awarded is, thereforee just and sufficient The deceased has left behind him three sons and one daughter now respectively of the age of 12, 9, 5 1/2 and 5 1/2 years, besides the widow who is about 35 years of age, The sons are likely to be settled in life and start independent earnings' on attaining the age of 21 years and the daughter is likely to be married in another family at the age of 18 years and the widow is normally expected to live for another 20 years and the chances of her remarriage must be consideration to be remote. If I had to apportion the amount of compensation I would award Rs 9,000.00 to the eldest son, Rs. 12,000.00 to the second son Rs 15,500/ to the third son and Rs. 12,000.00 to the daughter for her maintenance and Rs. 13,000/ for the marriage and Rs. 28,500.00 to the widow as compensation for the dependency making a total of Rs. 90,000.00. However, I refrain from apportioning compensation amongst the plaintiffs and I award a sum of Rs. 91,000.00 as compensation to the plaintiffs Nos. I to 5 jointly and severally against defendant No. 1. Accordingly I pass a decree for payment of Rs. 90,000.00 in favor of plaintiffs Nos. I to 5 against the Delhi Municipal Corporation defendant No. 1. The defendant is allowed two moths time to pay the decretal amount and if it does not do so, it will be liable to pay interest on the said amount of 6 per cent per annum from the date of the decree till realisation. The Municipal Corporation, defendant No. 1 will pay proportionate costs to the plaintiffs and will also be liable to pay costs of defendants Nos. 2 and 3.