Orissa High Court
Union Of India And Others vs Jaladhar Jena on 30 January, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
AFR W.A. NO. 1677 OF 2022
In the matter of an appeal under Clause 10 of the
Letters Patent of Patna High Court read with Article 4 of
the Orissa High Court Order, 1948 and Chapter-III,
Rule-6 of the Orissa High Court Rules, 1948.
---------------
Union of India and others ..... Appellants
-Versus-
Jaladhar Jena ..... Respondent
For appellants : Mr. Chandrakanta Pradhan,
Senior Panel Counsel, Govt.
of India.
For respondents : M/s S.K. Dash, A.K. Otta,
S. Das, A. Sahoo,
P. Harichandan and
P. Das, Advocates.
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing and Judgment : 30.01.2024 DR. B.R. SARANGI, ACJ. The Union of India-appellants have filed this writ appeal challenging the order dated 18.10.2022 passed in W.P.(C) No. 16845 of 2012 under Annexure-1, by which the learned Single Judge // 2 // awarded compensation of Rs.10.00 lakhs due to premature death of a child, who was prosecuting his studies at Jawahar Navodaya Vidyalaya, Konark, in an untoward incident occurred while he was playing cricket due to hitting of a cricket bat.
2. The factual matrix of the case, in brief, is that the son of the writ petitioner (respondent herein), namely, Jayaram Jena, a student of Class-XII of Jawahar Navodaya Vidyalaya, Konark was playing cricket with his classmates on 02.11.2011. While he was playing as a fielder and standing in front of the batsman, bat slipped from hands of boy, namely, Sriram Pidikaka while batting a ball. As a result, son of the respondent sustained injuries and immediately taken to the nearest Konark PHC by the House Master, Staff Nurse and Teachers of the Vidyalaya. Consequentially, doctor started treatment and since the condition of the injured was stable, doctor prescribed medicine for five days after stitching the injury. But the condition of the injured aggravated in the night and on further approach the doctor of the PHC referred the // 3 // injured to Capital Hospital, Bhubaneswar. As the parents and relatives of the injured were not there, the injured was taken to Bhubaneswar by the House Master, Staff Nurse and Teachers to admit him in Capital Hospital, Bhubaneswar. But instead of admitting him in Capital Hospital, Bhubaneswar, as advised by the doctor, he was admitted in Sparsh Hospital, Bhubaneswar at 4.45 AM on 03.11.2011 and thereafter immediately he was taken to ICU. The cousin brother of the respondent and other relatives staying at Bhubaneswar came to hospital at 5.10 AM. The doctor declared Jayaram dead at 5.55 AM. Then, the body was taken to Capital Hospital for postmortem and thereafter taken to his native place Kantigadia. Thereafter, three staff members of the Vidyalaya accompanied the body and attended the funeral and, as such, the respondent was requested to receive ex-gratia amount of Rs.50,000/-, as per norms and regulations of Navodaya Vidyalaya Samiti, but he did not receive the same. Thereafter, the respondent approached this Court by filing W.P.(C) No. 16845 of 2012 seeking direction to the // 4 // present appellants to pay him compensation for their sheer negligence in providing reasonable care and proper attention to the students in play ground and failure to provide timely or immediate treatment as per advice of the doctor. As such, he has also produced a "treatment status" report as Annexure-3 to the writ petition, wherein it was mentioned that doctor had referred for C.T. scan, but the same was not done. Had this been done in due time, then the important life of Jayaram (deceased) would have been saved. The present appellants filed their counter affidavit and also additional affidavit to meet the questions of the Court. After hearing the parties, the learned Single Judge of this Court, vide judgment dated 18.10.2022 (which was subsequently modified vide order dated 26.10.2022), disposed of the said writ petition, which is the subject- matter of challenge in the present writ appeal.
3. Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India for the appellants vehemently contended that it is a sorry state of affairs that a child has lost his life very prematurely and, as such, the loss // 5 // of the parents cannot be compensated by any amount of compensation. But fact remains, the learned Single Judge has not applied its mind on the negligence part of the authority for payment of compensation amount and instead of relegating the respondent to approach the appropriate civil forum for establishment of negligence, has award compensation of Rs.10.00 lakh, which is much higher. Therefore, he seeks interference of this Court.
4. Mr. P. Das, learned counsel appearing for the respondent vehemently contended that with high hope and trust, the parents have allowed the children to prosecute the studies at Jawahar Navodaya Vidyalaya, Konark. While the deceased son of the respondent was prosecuting his study, on 02.11.2011 he was playing cricket with his friends. But due to hit of cricket bat, he sustained internal injury. Thereafter, he was carried to PHC, Konark and the doctors instructed for CT scan. The same having not been done, the condition of the child deteriorated and immediately he was shifted to Sparsh Hospital, Bhubaneswar, where he succumbed to // 6 // death. Therefore, the loss which has been sustained by the parents cannot be compensated. But fact remains, had the authority took a little care promptly, the child of the respondent would have survived. As such, the award of compensation of Rs.10.00 lakhs made by the learned Single Judge is much lesser, as the parents of the child had many dreams and that have collapsed within a fraction of second because of the untoward incident. It is contended that the respondent is entitled to get more compensation than what has been awarded by the learned Single Judge. Consequentially, dismissal of the writ appeal is sought for.
5. This Court heard Mr. C. Pradhan, learned Senior Panel Counsel, Govt. of India for the appellants and Mr. P. Das, learned counsel appearing for the respondent in hybrid mode. Pleadings having been exchanged between the parties, with the consent of learned counsel for the parties the writ appeal is being disposed of finally at the stage of admission.
6. Having heard learned counsel for the parties and after going through the records, this Court finds // 7 // that son of the respondent was prosecuting his study in Jawahar Navodaya Vidyalaya, Konark. While he was in school and playing cricket, he sustained injury as a cricket bat hit him. Even though he sustained injury, he was carried to the local hospital after one and half hours. After preliminary treatment, doctor advised for CT scan, but the same was not done. Thereafter, he was shifted to Sparsh Hospital, Bhubaneswar and when the pain persisted, the son of the respondent succumbed to death. Had the authority taken prompt steps for CT scan on the injured child, then possibly some measures would have been taken for his survival. Therefore, there is no dispute before us that the child of the respondent was prosecuting his study at Jawahar Navodaya Vidyalaya, Konark and that he was carried to the local hospital after one and half hours of the incident. There is also no dispute before us that though CT scan was advised, the same was done much later and by that time the health condition deteriorated and ultimately the child had succumbed to death. Thereby, the cumulative effect of steps taken clearly indicate that the // 8 // authorities were not vigilant about the health of the child. More emphasis has been laid on the allegation of negligence. Once the authorities are not vigilant for the students, who are prosecuting their studies in their residential school and in their campus, that would tantamount to their negligence. Therefore, there is no need for establishment of negligence on the part of the respondent. As it appears, the learned Single Judge has placed reliance on various judgments of this Court in paragraph-3 of the judgment, which reads as under:-
"3. He relies on judgment dated 11th August, 2022 by the first Division Bench of this Court in Writ Petition (Civil) no.7584 of 2014 (Madhav Soren v. State of Odisha and others) and order dated 10th May, 2022 of this Bench in W.P.(C) no.20443 of 2012 (Sanjay Kumar Mohanty and another v. State of Odisha and others), wherein order dated 30th September, 2021 also made by the first Division Bench of this Court in W.P.(C) no.24882 of 2012, (Jambeswar Naik and another v. State of Odisha and others) was relied upon. All the cases were regarding death of school children, where compensation awarded was Rs.10 lakhs."
7. Whether the respondent is entitled to compensation or not and under what circumstances compensation can be awarded, this Court has already // 9 // considered the same in Bibhuti Charan Mohanty v. State of Odisha and others (W.P.(C) No. 21267 of 2016 disposed of on 13.12.2023), wherein the following decisions have been referred to:-
7.1. In Fair v. London and North Western Rly.
Co., (1869) 21 LT 326, the Court of Queen's Bench held that the necessity that the damages should be full and adequate. In Ruston v. National Coal Board, (1953) 1 AII ER 314, Singleton, L.J. said;
"Every member of this court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as there can be compensation for an injury, and to help the parties and others to arrive at a fair and just figure."
7.2. In Phillips v. South Western Railway Co., (1874) 4 QBD 406, Field, J. held as follows:
"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered."
// 10 // 7.3. In Livingstone v. Rawyards Coal Co., (1880) 5 AC 25, Lord Blackburn has observed as follow:
"Where any injury is to be compensated by damages, in settling the sum of money to be given ... you should as nearly as possible get at that sum of money which will put the person who has been injured...in the same position as he would have been in if he had not sustained the wrong."
7.4. In H. West & Son Ltd. v. Shephard, 1958- 65 ACJ 504 (HL, England), Lord Morris in his memorable speech pointed out this aspect in the following words:
"Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But the money cannot renew a physical frame that has been battered and shattered. All the Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards."
7.5. In Wards v. James, (1965) 1 AII ER 563, speaking for the Court of Appeal in England, Lord // 11 // Denning, while dealing with the question of awarding compensation for personal injury, laid down the following three basic principles:-
"Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases, otherwise, there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the pubic good."
7.6. In Perry v. Cleaver, 1969 ACJ 363 (HL, England), Lord Morris of Borth-y-Gest said:-
"To compensate in money for pain and for physical consequences is invariably difficult but ... no other process can be devised than that of making a monetary assessment."
7.7. In Admiralty Comrs v. S.S. Valeria, (1922) 2 AC 242, Viscount Dunedin has observed thus:
// 12 // "The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him."
7.8. In Basavaraj v. Shekhar, 1987 ACJ 1022 (Karnataka), a Division Bench of this Court held as follows:
"If the original position cannot be restored- as indeed in personal injury or fatal accident cases it cannot obviously be-the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage."
7.9. In K. Narasimha Murthy v. Manager, Oriental Insurance Co. Ltd., 2004 ACJ 1109 (Karnataka), the Division Bench of the Karnataka High Court in its judgment rendered in an appeal preferred by the claimant under Section 173 of Motor Vehicles Act, 1988 succinctly laid down the legal principles, after extracting the relevant paras from the decisions of the cases in Admiralty Comrs. V. S.S. Valeria, (1922) 2 AC 242; Livingstone v. Rawyards Coal Co., (1880) 5 AC 25; H. West & Son Ltd. V. Shephard, 1958-65 ACJ 504 (HL, England); Ward v. James, (1965) 1 AII // 13 // ER 563; Basavaraj v. Shekhar, 1987 ACJ 1022 (Karnataka); Perry v. Cleaver, 1969 ACJ 363 (HL, England); Phgillips v. South Western Railway Co., (1874) 4 QBD 406; Fowler v. Grace, (1970) 114 Sol Jo 193; and (1969) 3 AII ER 1528; and referring to McGregor on Damages, 14th Edn. in support of the conclusion for determination of the compensation for personal injury both for pecuniary and non-pecuniary losses in favour of the injured petitioners. 7.10. In Houghton Main Colliery Co. Ltd. In Re, (1956) 3 All ER 300, the apex Court held that the word "compensation" signifies that which is given in recompense an equivalent rendered-damages, on the other hand, constitute the sum of money claimed, or adjudged to be paid as compensation for loss or injury sustained, the value estimated in money of something lost or withheld. The term "compensation" etymologically suggests the image of balancing one thing against another; as, where there is loss of pension rights, allowance for income-tax respectively payable in respect of pension has to be deducted.
// 14 // 7.11. In State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634, the apex court held that the expression "compensation" is not defined in the Constitution. In ordinary parlance, the expression "compensation" means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily be in terms of money. The phraseology of the constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, compensation is to be determined and "given". If it were to be in terms of money along, the expression "paid" would have been more appropriate. 7.12. In Lucknow Development Authroity v. M.K. Gupta, AIR 1994 SC 787, the apex Court held that according to dictionary it means, "compensating or being compensated; thing given as recompense". In legal sense, it may constitute actual loss or expected // 15 // loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. 7.13. In Kiranabala Dandapat v. Secy. Grid Corporation of Orissa Ltd. AIR 1998 Ori 159, this Court held as follows:-
"'Compensation' means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined as given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss or be made whole in respect of his injury; something given or obtained as equivalent; rendering of equivalent in value or amount an equivalent given for property taken or for an injury done to another; a recompense in value; a recompense given for a thing received recompense for whole injury suffered, remuneration or satisfaction for injury or damage or every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damage' although compensation may often have to be measured by the same rule as damages in an action for a breach."
// 16 // 7.14. Therefore, the compensation has to be awarded as per the principle decided above by the apex Court. As such, in Shobha Ram Rajwa Ram Sahu v. State of Chhattisgarh, AIR Online 2018 CHH 1051, the learned Single Judge of the Chhattisgarh High Court has formulated question in paragraph-7 to the effect as to whether the petitioner therein is entitled to get compensation due to death of his wife for rabid dog bite or not. Paragraphs 8 to 10 of the said judgment read thus:-
"8. In Anupam Tripathi v. Union of India and others (2016) 13 SCC 492 and other connected matters the Supreme Court was considering conflicting issues brought before it by way of several petitions. On the one hand petitions have been filed for direction to the concerned State to control stray dogs; the other raised the issue of indiscriminating killing of stray dogs amounting to cruelty to animals. The Supreme Court referred to the provisions of the Prevention of Cruelty to Animals, Act, 1960 (for short 'the PCA Act') and Animal Birth Control (Dogs) Rules, 2001 (for short 'the Rules, 2001'). The Supreme Court eventually constituted a committee to maintain complaints regarding injuries sustained by the persons in the dog bite, the nature and gravity of the injury, availability of medicines and the treatment administered to them, the failure of treatment and its cure // 17 // and in case of unfortunate death, the particulars of the deceased and the reasons behind the same. The Supreme Court observed that on the basis of the report of the committee, subject to adjudication of the responsibility of the State, it would be in a position to think of granting of compensation.
9. In Shakuntala v. Govt of NCT of Delhi and Anr., W.P. (C) No.13771 of 2006 decided on 1-7- 2009 (Reported in AIR 2009 (NOC) 2791 (Del)) the High Court of Delhi was considering death of a roadside Redi/Thela (hand-cart) operator, a fruit vendor, as he was mauled by two fighting bulls. After referring to the provisions contained in Section 298 of the Delhi Municipal Corporation Act, 1957 and Section 202 of the New Delhi Municipal Council Act, 1994 and various decisions of the Supreme Court and other High Courts, it was held by the High Court of Delhi that the respondents are liable to compensate the petitioner in that case as the respondents were either negligent or indifferent towards their statutory duties. The High Court of Delhi awarded a sum of Rs.10.00 lass towards compensation.
10. In Sanjay Phophaliya v. State of Rajasthan and Ors., AIR 1998 Raj 96 relying on L.K. Koolwal v. State of Rajasthan and OPrs., AIR 1988 Raj 2 it was observed thus:
"it is primary, mandatory and obligatory duly (sic duty) of Municipality to keep city clean and to remove insanitation, nuisance etc. The Municipality cannot take plea whether funds or staff is available or not."
// 18 // 7.15. In D.K. Basu v. State of WB, (1997) 1 SCC 416 : (AIR 1997 SC 610), it has been laid down by the Supreme Court that grant of compensation in proceedings under Articles 32 and 226 of the Constitution of India for the established violation of fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-civil action for damage is a long // 19 // drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family. 7.16. In Nilabati Behera (Smt.) Alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and others, (1993) 2 SCC 746 : (AIR 1993 SC 1960), it was held that the primary source of the public law proceedings stems from the prerogative writs and the Courts have, therefore, to evolve new tools to give relief in public law by moulding it according to the situation with a view to preserve and protect the rule of law. 7.17. In Nilabati Behera (supra), the Supreme Court quoted the first Hamlyn Lecture in 1949 under the title 'Freedom under the Law' where Lord Denning had said as under:-
// 20 // "No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence... This is not the task for parliament.... The courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country."
8. In view of the aforesaid facts and circumstances, this Court is of the considered view that the reasoning given by the learned Single Judge in awarding the compensation, relying upon the "treatment status" provided by the PHC, Konark and keeping in view the fact that though the child was recommended for CT scan but the same was not done, that there was negligence on the part of the school leading to loss of the young life, is well justified. As such, relying upon the judgment dated 11th August 2022 and order dated 30.09.2021 as quoted above, the // 21 // learned Single Judge directed that the authority shall pay compensation of Rs.10.00 lakhs to the respondent within four weeks and that in the event payment is not made, it will carry interest @ 5% per annum.
9. In the above view of the matter, we do not find any illegality or irregularity in the impugned judgment and order passed by the learned Single Judge so as to warrant interference with the same.
10. Accordingly, the writ appeal merits no consideration and the same is hereby dismissed. Hence, the impugned judgment and order of the learned Single Judge shall be complied forthwith. Under the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
(M.S. RAMAN)
JUDGE
Signature Not Verified
Digitally Signed
Orissa
Signed by: ASHOK KUMAR JAGADEB High Court, Cuttack
MOHAPATRA
Designation: Secretary The 30th January, 2024, Ashok
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 02-Feb-2024 14:03:12