1. Whether there is any breach of duty on part of the Chennai Corporation? 1.1 Maintainability of the petition. 1.2.

The injury was not reasonably foreseeable. 2. Whether there is any negligence committed by the Corporation of Chennai? 2.1 Ingredients of negligence. 2.2 Role of Contributive negligence.

1. Whether there is any breach of duty on part of the Chennai Corporation? 1.1 Maintainability of the petition. Breach is invasion of a right or violation of a duty as defined in pg 56 of law dictionary of Osburn. Here there is no violation of any duty. There is no breach of duty on part of the Chennai Corporation. Moreover this petition is for compensation and it should be decided in a civil proceeding and not in a writ. Hence this writ petition is not maintainable. The Division Bench judgment passed in the case of Siya Ram v. Chairman, U.P. State Electricity Board (Civil Misc. Writ Petition No. 5353 of 1995, decided on 13.7.1998), has also been produced in support of the submission that the Division Bench dismissed the writ petition as not maintainable on the ground of exhaustion of alternative remedy available to the petitioner. Writ petition can be filed for the violation of fundamental rights and not to seek compensation which is jurisdiction of the civil courts. The petitioner has not exhausted his remedy available in the lower court and this petition lacks maintainability. Further in this case questions of fact like who called the fire department? and when did they call? and was there really any delay by the department? are all involved. In Chairman, Grid Corporation of Orissa Limited (GRIDCO) v. Smt. Sukamani Das the Supreme Court held that It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. And it also said that the High Court should have directed the writ petitioners to approach the Civil Court. Therefore it is humbly submitted that, the remedy available in the lower court was not exhausted and here question of facts must be discussed hence the writ petition is not maintainable.

1.2. The injury was not reasonably foreseeable. The petitioner has lost his daughter due to an inevitable accident and it is not due to breach of duty or negligence of the Corporation of Chennai. The expression inevitable accident has assumed a specific meaning in legal parlance and is understood for a long time to connote only those accidents which cannot be foreseen and consequently cannot be averted with care and skill. An inevitable accident is where something happened over which the defendant had no control and the effect of which could not have been avoided by the exercise of care and skill. Justice Shiv Dayal, in the case of Indian Trade And General Insurance Co. Ltd. vs Madhukar Govind Rao relied on Charlesworth on Negligence, 3rd Edn., pg 547 for definition of an inevitable accident as follows: It is an inevitable accident where a person in doing an act, which he may lawfully do, causes damage without either negligence or intention on his part. An inevitable accident in point of law is this: viz., that which the party charged with the offence could not possibly prevent by the exercise of care, caution, and maritime skill. Here the cause for loss has been an inevitable accident which could not be avoided in spite of best efforts from the respondent. The child has slipped through the gaping hole in the footpath of the bridge. No person would imagine in its wildest dreams to foresee a gap in the bridge and expect any loss or injury. Development of gap in the footpath cannot be reasonably foreseen. The bridge along with the footpath was built with concrete cement and no person would expect a gaping hole in the bridge, it is an act of god or vis major which could not be reasonably foreseen. Therefore it is humbly submitted that, the injury was not reasonably foreseeable and the respondent need not pay any compensation. 2. Whether there is any negligence committed by the Corporation of Chennai? 2.1 Ingredients of negligence. Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Is there any duty to take care of bridge by the Chennai Corporation? In the city of Chennai there is a separate corporate body to lay and maintain bridges. Bridges Department which

was functioning as a part of Public Works Department came into existence as a separate full fledged department from 10.2.1994. Bridges Department is involved in constructing vehicular bridges, culverts, foot-bridges etc., and the duty to take care and maintain the built bridges. So there is no duty to take care by the Chennai Corporation. When there isnt any duty to take care there cannot be any question of standard of care or damage due to breach. Therefore it is humbly submitted that, the Chennai Corporation has not violated its duty and was not negligent. 2.2 Role of Contributive negligence. Contributory negligence has been explained by the Apex Court in The Municipal Corporation of Greater Bombay v. Shri Laxman Iyer, as under: In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the others negligence. Whichever party could have avoided the consequence of the others negligence would be liable for the accident. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning Firstly the child was not alone and was walking with the father who is expected to act prudently and is responsible for the safety of the child. Secondly the petitioner could have avoided the fell of the child if he had acted prudently and been careful. Thirdly the petitioner had delayed in calling the fire department for rescue. if these had been avoided the incident would not have happened. The corporation cannot be held liable for negligence contributed by the petitioner. The gaping hole is visible and the incident took place in daylight, if he had taken due care and diligence the incident could be avoided. Moreover the death of the child has happened due to delay in calling the fire department. Hence the corporation is not liable to pay any compensation to the petitioner for the loss to which he had contributed. Achudam Pillai in his book on Law of Tort says that Contributive negligence is also breach of duty. One cannot claim for an item of harm one could have reasonably avoided or of expenditure which need not have incurred. He relies on Tremayne vs Hill. Therefore it is humbly submitted that, the petitioner has contributed to his loss and cannot claim for it.