Madras High Court
Madras High Court Advocates' ... vs Government Of Tamilnadu Rep. By Its ... on 8 March, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Madras High Court Advocates' Association through its Secretary Mr. P.K. Rajagopal has filed the above writ petition seeking to issue a writ of mandamus directing the respondents to pay a sum of Rs.10 lakhs or such other amount as determined by this Court as compensation to Mr. R.K. Venkatesh, Advocate and Member of the petitioner Association, who sustained severe injuries on account of brutal and illegal attack by the third respondent in collusion with rowdy elements on 24.06.2000,at Chennai.
2. The case of the petitioner is briefly stated hereunder:
Petitioner is an Association of Advocates registered under the provisions of Societies Registration Act. It is the largest representative body of the Advocates in South India, having a membership of around 4,500. It exists for the welfare of the Advocates throughout Tamilnadu in general and the City of Madras in particular. The Association has filed and successfully maintained legal action in respect of grievances of Advocates. The present writ petition pertains to the matter of illegal attack by the third respondent and others on the person and property of one R.K. Venkatesh, S/o. Radhakrishnan, Advocate, resident of No.5050/1, H. Block, 29th Street, Ponni Colony, Anna Nagar (West) Chennai 60 0040. The incident took place on 26.04.2000, at about 10.15 a.m. on E.V.R. Salai, Chennai near Traffic Office Bus Stop. The Advocate concerned was attacked brutally by the third respondent in collusion with rowdy elements led by Vijayan @ Mottai, who dragged the Advocate into a wordy quarrel and began the attack, the Advocate sustained severe injuries on the eye-brow, face, left shoulder and left leg. One tooth was dismembered and the left leg near the knee was fractured. When the Advocate concerned was being attacked, a few Advocates, who passed by that way tried to rescue him and they also were beaten and threatened. First Information Report was lodged by R.K. Venkatesh, while he was in the Emergency Ward of General Hospital, Chennai at about 13.00 Hours on the same day and a case under Sections 341, 323, 325 and 427 of the Indian Penal Code was registered by the G-1, Vepery Police in Crime No.1026 of 2000. Though the complaint discloses more offences, the police allowed the third respondent to get bail on the same evening. At the instance of the petitioner Association, the bail was cancelled and offence under Section 506(2) of the Indian Penal Code was directed to be added. The third respondent being a police officer on duty at the relevant point of time, in dereliction of duty and by abuse of power, joined hands with the criminal elements and attacked the Advocate concerned and he had been severely injured. The Advocate was initially hospitalised in Ward No.1 of General Hospital, and later admitted into Apollo Speciality Hospital, Nandanam, Chennai. He undergone a major surgery on his leg. He has been made to spend huge sum of money. The hospital bill and discharge summary are produced in the typed set of papers along with the medical opinion. The Advocate has undergone great pain and mental agony and he will never be able to walk normally and the injury is likely to affect his knee in the future. The law is well settled and public duty and constitutional obligation make it mandatory for the State to pay the victim of the attack the entire medical expenses and full compensation for pain, agony, disability (present and future) and loss of earnings. Having no other efficacious remedy, filed the present writ petition.
3. Pursuant to the notice of motion ordered by this Court on 03.05.2000, P.Kalimuthu, I.P.S., the then Commissioner of Police, Chennai City has filed a counter affidavit disputing various averments made by the petitioner. The writ petition is not maintainable in law, since the disputed questions of facts are involved. It is ascertained from the records that an unfortunate incident took place on 26.04.2000 in the morning at 10.15 a.m., when the traffic in and around Dhinathanthi office near Vepery was very heavy due to peak hour. The resultant tension had led to the incident in question. An F.I.R. was lodged by R.K. Venkatesh, while he was in the emergency ward of General Hospital, Chennai at about 13.00 Hrs., on the same day and a case under Sections 323, 325, 342 and 427 of the Indian Penal Code was registered by the G-1 Vepery Police in Crime No.1026/2000. Subsequently, on 28.04.2000, an offence under Section 506(2) I.P.C. was directed to be added by the order of this Court in Crl.O.P.No.7786 of 2000. Mottaithalayan alias Vijayan who was involved in altercation with R.K. Ventakesh was arrested by the Sub-Inspector of Police, Vepery at about 15.30 Hrs., on 28.04.2000 while, he was undergoing treatment in Stanley Hospital. Based on his statement, a case under Sections 324, 341, 354 and 506(2) I.P.C. Was registered against Advocate R.K. Venkatesh in Crl.No.1038 of 2000. Both the cases are under investigation. Only after the conclusion of the investigation and subsequent conviction by a court of law for the offences for which the persons have been prosecuted, the claim for damages can be considered. Unless the allegations and counter allegations are investigated and put to trial, the actual state of affairs cannot be stated as absolute certainty. The claim is totally premature. The petitioner has misconceived the remedy in filing the writ petition at the threshold of the investigation and trial.
4. The Secretary to the petitioner Association has filed a reply affidavit denying all the averments made in the counter affidavit.
5. The third respondent has not chosen to file counter affidavit disputing various averments made by the petitioner.
6. Heard the learned counsel for petitioner as well as learned Government Advocate for respondents 1 and 2.
7. Though the second respondent has raised an objection regarding maintainability of this writ petition by the Association, there is no dispute that the person involved and who sustained injury at the hands of the third respondent as well as rowdy element as a Member of the Association. As a matter of fact, the very same Association has filed and maintained the legal action in respect of serious injuries caused to one Mr. R. Shanmugasundarm, another member of the Association. (The said decision is reported in 1995 W.L.R. 441). In the light of the fact that this Court has awarded compensation to the victim Mr. R. Shanmugasundaram, at the instance of the very same Association, I hold that the present writ petition is maintainable.
8. Regarding merits, it is the specific case of the petitioner that, on 26.04.2000 when R.K. Venkatesh, Advocate - Member of the petitioner Association proceeding to the Court on E.V.R. Salai, at about 10.15 a.m. near Traffic Office Bus Stand (Dhinathanthi Bus Stop), he was attacked brutally by the third respondent in collusion with one rowdy element by name Vijayan @ Mottaiyan, dragged the Advocate into a wordy quarrel and began the attack, wherein the Advocate sustained severe injuries on the eye-brow, left leg and leg shoulder. It is also specifically stated that one tooth was dismembered and the left leg near the knee was fractured. The injured Advocate was initially taken to Emergency Ward of the Government Hospital, Chennai, wherein the First Information Report was lodged at about 13.00 Hrs., and a case under Sections 323, 325,341 and 427 of I.P.C. was registered by the G-1 Vepery Police in Crime No.1026 of 2000. It is not disputed that, subsequently on 28.04.2000, an offence under Sections 506(2) of I.P.C. was directed to be added by order of this Court in Crl.O.P.No.668 of 2000. Based on the complaint of Vijayan @ Mottaiyan a case under Sections 324, 341, 506(2) was registered against R. Venkatesh, Advocate in Crl.O.P.No.1038 of 2000. It is further seen that, in Crl.O.P.No.21834 of 2000 and by order dated 11.01.2001, this Court directed the C.B.C.I.D. to investigate the matter. There is no dispute that both the matters are now pending for trial.
9. Mr. P.K. Rajagopal, Secretary to the petitioner Association has brought to my notice the photograph showing the grievous injuries sustained by R.K. Venkatesh. It also shows that because of the inhuman act of the third respondent and the rowdy element, he lost one upper tooth. X-ray issued by Apollo Hospital dated 28.04.2000 has also produced before me, in the typed set of papers. It is also relevant to note the opinion of Dr. A.V. Govindarajan, F.R.C.S. Consultant Orthopaedics Surgeon, Apollo Speciality Hospital. His report is as follows:
" This is to certify that Mr. Venktaesh, 37/M was admitted to our hospital (Hosp.No.29773) with all alleged history of assault on 26.4.2000 with complaints of bleeding wound on the right eye brow, and closed injury of his left knee. After investigations, he was diagnosed to have a communited fracture of the left lateral tibial plateau and underwent open reduction and internal fixation of the same on 27.4.2000. He will at present require hospital stay for a period of one week and will have to walk with support of crutches for a period of 6 weeks. The nature of the above mentioned injury is grievous. As it involves the left knee articular surface, it may result in early osteoarthritis for which he may need further surgical treatment in the form of total knee replacement.
Sd/-
xxxxxxxx Dr.AB.Govindaraj, FRCS Consultant Orthopedic Surgeon."
10. Discharge summary dated 01.05.2000 shows the following particulars.
" DATE OF ADMISSION : 26.04.2000 DATE OF SURGERY : 27.04.2000 DATE OF DISCHARGE : 01.05.2000 CONSULTANTS : DR.A.B. GOVINDRAJ, FRCS, ORTHOPAEDIC SURGEON.
DR.N.K. RAO
CONSULTANT ACCIDENT & EMERGENCY
DIAGNOSIS : 1. COMMINUTED FRACTURE LATERAL
PLATEAU LEFT TIBIA
2. LEFT ANKLE MEDIAL LIGAMENT STRAIN.
3. LACERATION RIGHT EYEBROW WITH
4. LEFT FIRST INCISOR TOOTH BREAKAG
5. MULTIPLE CONTUSIONS
6. OVER BACK AND LEFT THIGH AND LEFT LEG.
7. LOCK JAW
8. BLOOD CLOT WITH SCH-LE.
SURGERY :OPEN REDUCTION AND PERCUTANEOUS SCREW FIXATION OF LEFT LATERAL TIBIAL PLATEAU FRACTURE UNDER GA."
COURSE IN THE HOSPITAL:
Patient admitted on 26.04.2000 and assessed regarding the severity of injuries and fitness for surgery. He was taken up for surgery on 27.04.2000 when under image intensifer control, fracture was manipulated. A lateral cortical window made, the depressed lateral condyle elevated and supported by G bone graft + 2 perutaneous cancellous screws. Posterior fragment held with another screw passed anteroposteriorly. Patient recovered well with routine postoperative measures. Patient developed pain in the left ankle on 2nd postoperative day which was investigated with radiograph and CT scan which were both normal. He was mobilized non weight bearing on the left lower limb with axillary crutches.
ADVICE:
1. To continue walking non weight hearing on the left lower limb with walking frame, crutches for 6 weeks.
2. Tab. Voveran 50 mg. 1 tab. Twice daily (after food) for 3 days.
3. Tab. Zinetac 150 mg. 1 tab. Twice daily for 3 days.
4. Cap. Becosules Z 1 cap. Once daily for 15 days.
5. To take proper care of dressing and wound area.
6. To continue active knee mobilization and static quadriceps exercise.
7. To review with Dr.AB. Govindaraj on 06.05.2000.
8. Review on 30.07.2000.
9. To report if necessary. "
All the above details show that Mr. R.K. Venkatesh sustained grievous injuries and undergone pain and sufferings, mental agony etc., The petitioner has also produced Apollo Pharmacy Bills, Unique Home Health Care Limited, Tamilnadu Orthotics and Prosthetics Centre, Dr. A.B. Govindarajan- Surgeon Bill, Apollo Hospital bill, out patient counter bill, Apollo hospital Enterprises Ltd., Bill etc., All the above documents find place in the additional typed set of papers.
11. In a matter like this, when a citizen suffered serious injuries at the hands of the Police, the affected person is entitled reasonable compensation from the State Government. In appropriate case, this Court by exercising jurisdiction under Article 226 of the Constitution of India can award reasonable compensation to the victims. This Court as well as the Supreme Court granted monetary relief to the victims for deprivation of their fundamental rights in proceeding through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under civil law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so, the courts take into account not only the interest of the applicant and the respondent, but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly, particularly where the fundamental rights of a citizen under Article 21 is concerned. ( Vide: 1. Nilabati Behera vs. State of Orissa ); 2. Rudul Sah vs. State of Bihar ; 3. D.K. Basu vs. State of West Bengal ( 1997 91) S.C.C. 416 ); and 4. Chairman, Railway Board vs. Chandrima Das . These decisions clearly show that in appropriate cases this Court can award monetary compensation to the victims even in writ petition filed under Article 226 of the Constitution. The materials placed as well as the earlier order of this Court in Crl.O.P.No.21834 of 2000 dated 11.01.2001 prima facie show that because of the inhuman act of the third respondent and the rowdy element, Advocate R.K. Venkatesh sustained grievous injuries, undergone pain and sufferings, mental agony and often experiencing severe pain in knee, accordingly, I hold that he is entitled reasonable compensation from the State for the wrongful act of their officer.
12. Now, coming to the quantum of compensation, the petitioner has prayed for Rs.10 lakhs as compensation. Undoubtedly, the said claim is on the higher side. The injured Advocate - R.K. Venkatesh was aged about 37 years at the time of incident. I have already referred to the nature of injuries, period of treatment and the opinion of the Doctors. The additional typed set contains various medical bills and expenses spent for his treatment. ( As per bills / vouchers, he spent Rs.52,309/-). It is true that, as on date he is practicing in this Court with difficulty in walking. However, Mr.P.K. Rajagopal, Secretary of the petitioner Association contends that merely because he is able to practice that too with stain, the action of the respondents cannot be condoned. It is also stated that R.K. Venktatesh is not able to do the same type of work, what he was doing prior to the incident.
13. Taking note of all the above aspects, I am of the view that ends of justice would be met by directing the first respondent Government of Tamilnadu to pay a sum of Rs.3 lakhs as compensation. It is stated that Rs.50,000.00 had already been paid as interim compensation, the balance amount shall be paid by way of cheque or pay order or demand draft in favour of Mr. R.K. Venkatesh through Mr. P.K. Rajagopal, Secretary of Advocates Association, within a period of two months from the date of receipt of copy of this order. The writ petition is allowed in part. No costs. Consequently, connected WPMP., is closed.