Gujarat High Court
Shriram vs Mitaben on 16 December, 2010
Bench: Jayant Patel, Abhilasha Kumari
FA/4643/2008 69/ 69 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4643 of 2008 With FIRST APPEAL No. 4644 of 2008 With FIRST APPEAL No. 4645 of 2008 With FIRST APPEAL No. 4646 of 2008 With FIRST APPEAL No. 4647 of 2008 With FIRST APPEAL No. 4648 of 2008 With FIRST APPEAL No. 4649 of 2008 With FIRST APPEAL No. 4650 of 2008 With FIRST APPEAL No. 4651 of 2008 With FIRST APPEAL No. 4653 of 2008 With FIRST APPEAL No. 4654 of 2008 With FIRST APPEAL No. 4655 of 2008 With FIRST APPEAL No. 4656 of 2008 With FIRST APPEAL No. 4657 of 2008 With FIRST APPEAL No. 4658 of 2008 With FIRST APPEAL No. 4659 of 2008 With FIRST APPEAL No. 4660 of 2008 With FIRST APPEAL No. 4661 of 2008 With FIRST APPEAL No. 4663 of 2008 With FIRST APPEAL No. 4664 of 2008 With FIRST APPEAL No. 4667 of 2008 With FIRST APPEAL No. 4668 of 2008 With FIRST APPEAL No. 4670 of 2008 With CIVIL APPLICATION No. 11172 of 2008 In FIRST APPEAL No. 4643 of 2008 With FIRST APPEAL No. 319 of 2009 To FIRST APPEAL No. 340 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HON'BLE SMT. JUSTICE ABHILASHA KUMARI =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================================== SHRIRAM EDUCATION TRUST TRUSTEES OF TRUST & 7 - Appellant(s) Versus MITABEN ANILBHAI PATEL & 6 - Defendant(s) =================================================== Appearance : First Appeals Nos.4643 to 4651, 4653 to 4661, 4663, 4664, 4667,4668 and 4670 of 2008 Mr.M.B.Gandhi, learned advocate for the appellants. Mr.Hasmukh C.Patel,learned advocate for the opponents in First Appeal Nos.4645 to 4647,4649 to 4651,4653, 4654, 4657,4658,4661, 4663,4664,4667,4668. First Appeal Nos.319 to 340 of 2009 Mr.Hasmukh C.Patel, learned advocate for the appellants. Mr.P.P.Majmudar,learned advocate for opponent No.10 =================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/12/2010 CAV JUDGMENT
(Per : HON'BLE SMT. JUSTICE ABHILASHA KUMARI)
1. These appeals have been filed by the appellants (original defendants Nos.1 to 8) against the common judgment and decree dated 25-10-2007 passed by the City Civil Court, Ahmedabad in Civil Suit No.3091 of 2001 and cognate matters, whereby the Suits filed by the plaintiffs (respondents in the present group of appeals and appellants in the Cross Appeals) have been partly-allowed, and it has been held that the plaintiffs are entitled to recover an amount of Rs.2,00,000/- (Rupees two lacs) with interest at the rate of 5% per annum, from the date of the Suit till realization, from defendants Nos.1 to 8, jointly and severally, with costs quantified at Rs.5000/-. The appellants of Cross Appeals Nos.319 to 340 of 2009 are the original plaintiffs in the Suits and their claim is for enhancement of the compensation, awarded by the Trial Court. As common questions of law and facts arise for consideration, they are being considered and decided by a common judgment.
2. Appellant No.1 (original defendant No.1) is Shriram Education Trust, a Trust Registered under the Bombay Public Trusts Act,1950, which is running Shri Swaminarayan Vidhyamandir Higher Secondary School, Ghodasar in Ahmedabad. Appellants Nos.2,3 and 4 are Trustees of appellant No.1-Trust. Appellant No.5, Shivam Corporation, was entrusted with the work of construction of the School building in question. Appellants Nos.6,7 and 8 are the partners of Shivam Corporation,which constructed the building. Originally, the plaintiffs had joined Amit G.Bhatt (B.E. Civil Engineer) and Naren M.Mehta (Structural Engineer), as defendants Nos.9 and 10. However, the Trial Court has dismissed the suit against defendants Nos.9 and 10.
3. The brief facts leading to the institution of the Suits are as follows:
On 26-1-2001, a devastating earthquake took place, measuring 7.9 on the Richter Scale, in several parts of the State of Gujarat, including the City of Ahmedabad. On that fateful day, as many as 32 students, studying in the 11th Standard, in Shri Swaminarayan Vidhyamandir Higher Secondary School, met with a tragic and untimely death as the building of the School collapsed. The unfortunate students were buried in the debris of the School building and their bodies had to be extricated from the debris by the Fire Brigade and police personnel. Suits for compensation were filed by the parents and relatives of 26 students who lost their lives, against the School authorities. It is the case of the plaintiffs, (parents of the deceased students) that their children were studying in the 11th Standard, in the Science Stream. 26-1-2001 was a National Holiday. In spite of this, the children of 11th Standard (both boys and girls) were called by the Teachers of the Science Faculty of the School at 8.0 A.M. for the purpose of practical revision in the Laboratory, as the practical examination was to be held on 29-1-2001. The boys and girls who have lost their lives were all in the age group of 15 to 18 years. As there were common issues of fact and law in all the Suits, the Trial Court consolidated and decided them, by a common judgment.
4. The case of the plaintiffs before the Trial Court is that the appellants (defendants) constructed the School building consisting of four stories with 25 rooms, office, and giant water tank, within a period of two and half months. No Building Use Permission was obtained by the appellants from the concerned authorities and appellants Nos.1 to 4 were not granted permission to run a Laboratory or a School. Further, the construction of the School was carried out in a careless and hasty manner. The material used in the construction was of poor quality, resulting in the collapse of the building. Before starting the construction, the appellants did not have a soil test done and good quality steel was not used for the pillars and beams. That the material used in the construction did not conform to the Standards laid down in the National Building Code and Indian Standard Code. As the School building has been constructed in a very short period and did not have the required strength, it collapsed in the wake of earthquake, like a pack of playing cards, resulting in the death of 32 innocent and growing students. It is the specific case of the plaintiffs that the defendants failed to take reasonable care and thereby are guilty of negligence and breach of statutory duties. That the School building has been constructed against Municipal Bye-laws which shows that the defendants were careless and negligent, and did not take precautionary measures against such natural calamities. All the students who lost their lives were brilliant and the plaintiffs naturally expected that they would have a bright future. The parents and guardians of the deceased students immediately rushed to the site of the School on learning about the tragic news and the bodies of the students were extricated from the debris of the collapsed School building by the Fire Brigade and police personnel. The parents and relatives of each of the deceased students, therefore, prayed for compensation to the tune of Rs.10,27,600/- from the defendants, jointly and severally, in the separate suits.
5. The appellants resisted the Suits by filing a Written Statement. It was contended on their behalf that they were not liable for payment of compensation or damages either jointly or severally, because the students have lost their lives on account of collapse of the School building, in the wake of the earthquake which took place in various parts of the State of Gujarat, and the City of Ahmedabad. It was further contended that the earthquake was a natural calamity or Vis major (Act of God). It was pervasive all over the State of Gujarat, and it was not in human hands to defend anything against an earthquake of such magnitude. The allegation regarding use of poor and sub-standard material in the construction of the building, was denied and it was asserted that the appellants are not guilty of any negligible act. It was contended that appellant No.1-Trust came into existence in the year 1990 and had constructed another School building, being Swaminarayan School No.1, located in Plot No.1, opposite Cadila Laboratory, Ghodasar, in the year 1988-89, which is still in good condition. This building had also been constructed by Shivam Corporation (defendants Nos.5 to 8), who have constructed the building that has collapsed. That the construction of the collapsed building was completed in May 2000, and defendants Nos.9 and 10 were the Civil Engineer and Structural Engineer concerned, respectively. It was denied that the School building collapsed on account of negligence on the part of the appellants, or that the material used was sub-standard or of poor quality. However,it was admitted by the appellants that no Building Use Permission had been taken before the building was constructed; and that the Plans were placed before the concerned authorities in April 1999 and were sanctioned in July 1999. Thereafter, construction was commenced, which was completed in May 2000. It was asserted that more than one year's time was taken to complete the School building and not two and a half months,as alleged by the plaintiffs. It was also contended that defendants Nos.9 and 10 visited the site for inspection, as per bye-laws. It was stated on behalf of the defendants that the Government had given an amount of Rs.1,10,000/- to the parents of the deceased. Immediately after the incident, the defendants and Trustees rushed to the site where rescue operations were going on. However, as the School building collapsed due to a natural calamity, the appellants are not liable, either jointly or severally, to pay any compensation or damages.
6. In all, seven issues were framed by the Trial Court. After hearing the learned advocates for the respective parties and considering the voluminous material on record, the Trial Court arrived at a finding that the plaintiffs were successful in proving that the material used in the construction of the building was of poor quality, resulting in the collapse of the building and the tragic death of the students. The Trial Court also found that though an earthquake took place, which is an act of God, the building has collapsed as a result of the negligence of the defendants. The Suits of the plaintiffs were partly-allowed, and a decree drawn up, accordingly.
7. The Trial Court, in the impugned judgment has taken note of some salient features arising out of the material on record and has arrived to certain conclusions, on the basis of oral and documentary evidence, which deserve mention. They are as follows:
(a) Building Use Permission was not taken by the appellants from the concerned authorities for construction of the School building.
(b) Defendants Nos.9 and 10 (Civil Engineer and Structural Engineer respectively) have signed on the Plan but they have clearly stated in their deposition that they have never visited the site, when construction was begun.
(c) No progress Report was made to the Ahmedabad Municipal Corporation, and no completion Report was filed by the appellants.
(d) The Officers of the Forensic Science Laboratory visited the premises on 9-2-2001, and on 19-2-2001 along with Police Officers. They have given their Report at Exh.133, in which it is clearly stated that the foundation soil was sticky and no tie beam or plinth were found in the building.
(e) It is an admitted position that no soil test was done before starting construction. Neither was the test for Load Bearing Capacity done.
(f) Defendant No.9 (Civil Engineer) visited the site of the School building three or four times and defendant No.10 (Structural Engineer) has never visited the site. Except for submitting the Plans, the said defendant has no role to play.
(g) The report of the National Council for Cement & Building Materials (NCCBM) (Exh.155) is in the Answers to Questions form.
The Author of the report has not been examined and read with the report of the Forensic Science Laboratory (FSL) at Exh.133, it shows that proper building materials, as required, were not used in the construction of the building.
(h) Construction on the site was not in accordance with the sanctioned Plan.
(i) Applying the Rules enunciated in Rylands v. Fletcher, the appellants are liable for payment of damages on the basis of strict liability. Though students have died in the wake of the earthquake, the said Rule can still be applied against the appellants (defendants Nos.1 to 8) as they have been negligent and are required to pay compensation to the claimants.
(j) Defendants Nos.9 and 10 had no role to play, except preparation of required Plans and Maps which were to be signed by them and presented before the Ahmedabad Municipal Corporation. This has been done by them, therefore, the Suits against the said defendants have been dismissed.
8. Applying the principles laid down in Lata Wadhva v. State of Bihar, AIR 2001 SC 3218 for determining compensation in case of death of children, the Trial Court has noticed that in the said judgment the Supreme Court has awarded an amount of Rs.2,20,000/- to children of the age group of 5 to 10 years and Rs.4,10,000/- to children within the age group of 10 to 15 years. The Trial Court has also noticed the principles laid down in several other judgments of different High Courts and the Supreme Court. It has applied the multiplier of 15, considering the yearly income of each child to be Rs.15,000/- and deducting 1/3 as personal expenses. The age of the parents has also been considered, which is between 41 to 45 years. An amount of Rs.2,00,000/- has been awarded as compensation per student, to be recovered from appellants Nos.1 to 8, jointly and severally. Interest at the rate of 5% per annum, and costs quantified at Rs.5000/-, have been awarded by the Trial Court.
9. Assailing the said judgment Mr.M.B.Gandhi, learned advocate for the appellants has submitted that:
(a) The appellants are not liable to pay any compensation, as the School building collapsed on account of the massive earthquake that took place in several parts of the State of Gujarat, including the City of Ahmedabad, where the School was located.
(b) There can be no doubt that an earthquake is a natural calamity, and an Act of God (Vis major) over which the appellants had no control. The issue regarding this has been found in the affirmative by the Trial Court. Being an Act of God, the principles in Rylands v. Fletcher would not be applicable.
(c) The appellants have not been negligent or careless in the construction of the School building, and it is mentioned in the Report of the NCCBM, that the materials used were of good quality.
(d) Considering that the earthquake was an Act of God, which could not have been prevented or controlled by the appellants, the fact that Building Use Permission was not obtained before starting the School, has no relevance, as obtaining such permission could not have prevented the earthquake.
(e) The human element or mens rea is absent in the collapse, and there was no ill intention on the part of the appellants, who had entrusted the construction of the building to persons experienced in the business of construction. The earlier School building constructed by Shivam Corporation, in the year 1988-89, is still intact and did not suffer any damage whereas, unfortunately, the new School building collapsed in the wake of the earthquake. Liability for payment of compensation and damages on account of the collapse of the School building, cannot be foisted upon the appellants as the tragedy occurred due to an Act of God.
(f) The State Government has paid an amount of Rs.1,10,000/- per child as ex-gratia compensation to the plaintiffs, which aspect cannot be ignored. The plaintiffs are asking for double benefits, to which they are not entitled.
(g) The Trial Court has placed undue reliance upon the Report of the FSL (Ex.133) and report of the NCCBM (Exh.155) whereas the Report of Prof. Praful H.Anandjiwala, who has deposed at Exh.164, has not been given due importance. Prof. Anandjiwala has studied both the Reports of the FSL and NCCBM and has come to the conclusion that there was no bad intention on the part of the appellants regarding material used, in the building and construction thereof.
10. On the above grounds, it is submitted by the learned advocate for the appellants that the impugned judgment and decree be quashed and set aside.
11. Mr.Hasmukh C.Patel, learned advocate for the defendants (original plaintiffs) as well as for the appellants in the Cross Appeals, has broadly reiterated the case of the plaintiffs, as set forth before the Trial Court. It is further submitted that the students were studying in the Science Stream and were all doing very well. The average marks obtained by them were approximately 74%. They belong to middle class families, and their parents had big dreams for their future. That, the compensation of Rs.2,00,000/- per student is too meagre and deserves to be enhanced. It is submitted that in the case of Lata Wadhva v. State of Bihar (Supra), the compensation awarded to children who died in the fire that broke out during a function organised by TISCO and who were within the age group of 5 to 10 years, was Rs.2 lacs and for children who were in the age group of 10 to 15 years, studying in Class 6 to 10, was Rs.4 to 10 lacs. Further, in M.S.Grewal v. Deep Chand Sood, AIR 2001 SC 3660 the Supreme Court has upheld the compensation of Rs.5,00,000/- per children, awarded by the High Court of Himachal Pradesh in a case where school children were drowned while on a picnic near a River, due to the negligence of School authorities. It is submitted that as, in the present case, the students were all between the age group of 15 to 18 years, a higher amount of compensation ought to be awarded, following the principles laid down in the above-quoted judgments.
12. We have heard the learned counsel for the respective parties and perused the impugned judgment and other material on record.
13. At this stage it would be instructive to refer to certain authorities that have relevance to the issues arising in these appeals. The case of Rylands v. Fletcher came up for discussion in Charan Lal Sahu v.Union of India, AIR 1990 SC 1480 wherein referring to the observations made by the Supreme Court in M.C.Mehta v. Union of India,AIR 1987 SC 1086, the Court held as below:
"91.
Over 120 years ago Rylands v. Fletcher, (1868) 3 HL 330 was decided in England. There A, was the lessee of certain mines. B, was the owner of a mill standing on land adjoining that under which the mines were worked. B, desired to construct a reservoir, and employed competent persons, such as engineers and a contractor, to construct it. A, had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. No care had been taken by the engineer or the contractor to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passage and flooded A's mine. It was held by the House of Lords in England that where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbour, he will not be liable in damages. But if he brings upon his land any thing which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned. In the background of the facts it was held that A was entitled to recover damages from B, in respect of the injury. The question of liability was highlighted by this Court in M.C. Mehta's case (supra) where a Constitution Bench of this Court had to deal with the rule of strict liability. This Court held that the rule in Rylands v. Fletcher, (supra) laid down a principle that if a person who brings on his land and collects and keep there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the things which escape are present by the consent of the person injured or in certain cases where there is a statutory authority. There, this Court observed that the rule in Rylands v. Fletcher(supra) evolved in the 19th century at a time when all the developments of science and technology had not taken place, and the same cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to be carried on as part of the developmental process, Courts should not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. This Court noted that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. This Court reiterated there that if it is found necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, the Court should not hesitate to evolve such principle of liability merely because it has not been so done in England.
According to this Court, an enterprise which is engaged in a hazardous or inherently dangerous industry which poses potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results to anyone on account of an accident in the operation of such activity resulting, for instance, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who were affected by the accident as part of the social cost for carrying on such activity, regardless of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous or dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resources to discover and guard against hazards and to provide warning against potential hazards. This Court reiterated that the measure of compensation in these kinds of cases must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The determination of actual damages payable would depend upon various facts and circumstances of the particular case." (emphasis supplied)
14. The Supreme Court, in M.C.Mehta v. Union of India (Supra), while elaborating the principles of strict liability and referring to the Rule in Rylands v. Fletcher, has held that :
"31.
We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher, (1868(19)LT220) apply or is there any other principle on which the liability can be determined. The rule in Rylands v. Fletcher was evolved in the year 1866(1868?) and it provides that a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury, Laws of England, Vol. 45 para 1305. Considerable case law has developed in England as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry a part of the developmental programme. This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms Which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recognise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and responsibilities. We in India cannot hold our hands back and I venture to evolve a new principle of liability which English courts have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher (supra)"
(emphasis supplied)
15. In Jacob Mathew v. State of Punjab and another, AIR 2005 SC 3180(1) the Supreme Court has delineated the essential components of negligence. The relevant extracts of this judgment are reproduced hereinbelow:
"11. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the 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, by which neglect the plaintiff has suffered injury to his person or property:- The definition involves three 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 the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
12. According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current forensic speech, negligence has three meanings.
They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (Para 1.01) The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
1.
the existence of a duty to take care, which is owed by the defendant to the complainant;
2. the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant. (Para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (Para 1.24) Negligence as a tort and as a crime"
16. The Supreme Court then summed up its conclusions regarding negligence in the context of civil and criminal law, vis-a-vis the medical professional. The relevant extracts, relevant for the present case, are reproduced hereinbelow:
"49 We sum up our conclusions as under:-(1)
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'."
(emphasis supplied)
17. In Syed Akbar v. State of Karnataka, AIR 1979 SC 1848 in the context of applicability of the doctrine of res ipsa loquitur, the Supreme Court has held, as below:
"14. Coming to the second question, it may be observed that res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the law of torts.
15. The jurisprudential status and functional utility of res ipsa loquitur have been the subject of much debate. In Ballard v North British Railway Co., 1923 SC (HL) 43, Lord Shaw said, nobody would have called it a principle if it had not been in Latin. While warning against the tendency to magnify this expression into a rule of substantive law, the Noble Lord conceded that thus Latin phrase "simply has place in that scheme of, and search for, causation upon which the mind sets itself working". In the same case, Lord Dunedan emphasised: "It is not safe to take the remarks which have been made as to the principle of res ipsa loquitur in one class of cases and apply them indiscriminately to another class".
16. No less an authority than the authors of "Salmond on the Law of Torts", (15th Edn. by R.F. Houston, p. 310) have suggested not to treat this maxim as a special rule of evidence. This is what they say:
"Much of the confusion is due to a failure to appreciate that cases where res ipsa loquitur applies may vary enormously in the strength, significance and cogency of the res proved..... Looked at in this light, it is not easy to see why the maxim should be treated as a special part of the law of evidence."
17. Lord Dunedan, in Ballard's case, (supra) thought it no more a rule of evidence than a means of shifting the onus to prove negligence. Lord Atkin in Mc Gowan v. Stott, (1923) 99 LJ (KB) 357 at p.360, treated it as equivalent to a statement that on the facts in evidence the plaintiff has satisfied the burden of proof enough to shift it on to the defendant.
18. John G. Fleming (in his 'Law of Torts', 5th Edn., page 302) thinks it as "no more than a convenient label to describe situations where, notwithstanding the plaintiff's inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient, in the absence of an explanation, to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury".
19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated, that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which "tell their own story" of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on-collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. (1950) 1 All ER 392 at p.399 Cream v. Smith (1961) 8 All ER 349 Richley v. Faull (1965) 1 WLR 1454.
20. Thus, for the application of the maxim res ipsa loquitur "no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant." (emphasis supplied)
18. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, the Supreme Court was dealing with a case where a Clock Tower owned by the Municipal Corporation, which was abutting the Highway collapsed resulting in the death of some persons passing along the said Highway. It was held that the Municipal Corporation owned special obligation to ensure the safety of the structure and it was liable for damages for loss of life caused, whether by a patent or a latent defect and that the principle of res ipsa loquitur was attracted to the case. In the case of Scot v. London and St.Katharins Dock Co.(1865)3 H and C 596 it was held that "where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
19. "Act of God" - Vis Major has been defined in the Law Lexicon, 2nd Edition, 1997,as under:
Act of God. Vis Major. It may be defined to be any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains or care, reasonably to have been expected,could have been prevented. The general characteristics of such perils are very intelligble. LR 1 CPD 423: Province of Madras v. I.S. And G. Machado, AIR 1955 Mad 519, 524,525.
The earliest use of the term 'Act of God' in English law is by Sir Edward Coke. He used the phrase, 'the act of God excuses,' as equivalent to an accident which is 'so inevitable that, by no province or industry of him who is bound, it can be prevented' or,as in Shelley's case. I Coke 97-b, which no industry could avoid, nor policy prevent.' But it does not necessarily mean an operation of natural forces, so violent and unexpected that no human foresight or skill could possibly have prevented its effects. It is enough that the accident should be such as human foresight could not be reasonably expected to anticipate. (Per CURIAM in Nichols v. Marsland, 2 Ex.D.1.) In order that an extraordinary natural event, such as a very high tide, should be, in the legal sense of the words, an act of God, it is not necessary that such an event should never have happened before. It is sufficient that its happening could not have been reasonably expected. If such an event has happened once, but there is nothing to lead to the inference that it is likely to recur, it does not, if it happens a second time, cease to be an act of God. Nitro Phospate, etc. Co. v. London and St.Katherine Docks Co., 9 Ch.D.503 (CA).
"ACT OF GOD", means not a mere misfortune but something overwhelming. (Per MARTIN, B., Oakley v. Portsmouth Steam Packet Co.,25 LJ Ex.101 ;11 Ex.623) "THE 'ACT OF GOD', is natural necessity, as wind and storms, which arise from natural causes, and is distinct from INEVITABLE ACCIDENT".
(Per MANSFIELD in Trent v.
Wood, 4 Dough.290) These storms, lightning, and tempests, are Acts of God as they could not happen by the intervention of man. (Forward v. Pittard, ITR 33) "ACT OF GOD", is defined as "irresistible superhuman cause." New York Civil Code, S.272.
Permanent Illness is an "Act of God," excusing the performance of a contract for personal services. (Boast v. Firth, 38 LJCP 1.) An event which happens independently of human action and which no human foresight or skill could reasonably be expected to anticipate [S.13 (2nd prov.), Motor Transport Workers Act and S.73(a), Indian Railways Act.]
20. There is no doubt about the fact that an earthquake is a natural calamity or an Act of God which is beyond the control of any human being. At the same time it cannot be lost sight of that the appellants were duty bound to construct the School building in a proper manner, taking care that the foundations were structurally strong, the nature of soil was conducive to the construction and the construction was carried out in the manner it ought to be, using good quality materials. In short, the duty of taking reasonable care in construction of the School building is vested upon the appellants and is distinct and separate from the natural calamity, in the form of an earthquake, that took place. If proper and reasonable care that ought to have been taken, was not taken by the appellants, they cannot escape liability behind the cloak of Vis major. The Court need not be restricted by the exceptions to the Rule in Rylands v. Fletcher, and must examine the case in light of the principles laid down in M.C.Mehta v. Union of India (Supra), evolving new principles of liability to deal an unprecedented situation caused by the earthquake. Each case has to be examined in the context of the peculiar fact-situation that obtains in it. The earthquake may be a natural calamity but had proper care been taken in the construction of the School building, may be the tragedy would not have taken place.
21. As held in Jacob Mathew v. State of Punjab and another (Supra) res ipsa loquitur is a Rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances, by applying the Rule, if the cause of the accident is unknown and no reasonable explanation as to cause is coming forth from the defendant. In Syed Akbar v. State of Karnataka (Supra) the Supreme Court has observed that there may be a case where the proved facts speak for themselves. In the said case the Supreme Court has highlighted that while in civil proceedings, mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in the criminal proceedings proof beyond reasonable doubt is insisted upon. It is thus stated that the abstract doctrine of res ipsa loquitur is not applicable to a criminal trial. However, it is applicable as a rule of evidence in civil proceedings. The ingredients of negligence have been succinctly summed up in Jacob Mathew v. State of Punjab and another (Supra) and held that the essential components of negligence are (i) duty, (ii) breach and
(iii) resulting damage.
22. In the present case, it cannot be disputed that the appellants had a duty to construct the School building, as per required standards and norms. It was obviously known to them that the building was intended to be used as a School. Every building ought to be constructed in accordance with approved Standards and Norms, as the element of human habitation would assume paramount importance. A School, is a place where students would be spending most of their time during the day. The appellants are charging fees from the students who are enrolled in the School. It was,therefore, the bounden duty of the appellants to ensure that proper and reasonable care is taken in construction of the building, and it is strong, safe and secure. The strength, safety and security of the building would obviously depend on the manner and quality of its construction.
23. Apart from the above, not only is it expected that the appellants would take reasonable care in the construction of the building but, even as per the relevant provisions of law under the Bombay Provincial Municipal Corporations Act read with the bye-laws, a duty is cast upon the person constructing a building to have the said construction supervised and submit progress reports, from time to time and, further, to intimate the Corporation regarding the completion of the said building. The Officers of the concerned Local Authority are bound to verify such progress reports and completion report, as may be submitted. It has to be ascertained by the said Authority whether requisite steps have been taken by the builders to ensure that the construction is of the desired strength, and whether it has been put-up in consonance with the approved Plan of the Structural Engineer. These aspects have to be examined and verified and only thereafter can Building Use Permission be granted by the concerned authority. The requirement of law is that the building cannot be occupied without such Building Use Permission. Hence, the requirement of taking reasonable care would also include strict compliance with the provisions of law applicable, such as the BPMC Act, Rules or Building bye-laws framed for making construction.
24. Further, it is not the defence of the appellants that all buildings in the nearby or surrounding area have collapsed on account of the earthquake. On the contrary, it is contended that another old building constructed by the appellants has not collapsed. Hence,the present incident of collapse of a newly-constructed building cannot be treated as a usual or normal consequence of the earthquake. In normal circumstances a newly-constructed building ought not to have collapsed, as one can legitimately expect that a newer building will have more strength than an older one. The circumstances of collapse of the building in question when other buildings have remained intact, can be said to be unusual and may, therefore, fall in the ambit of res ipsa loquitur (thing speaks for itself).
The defence of the appellants that the building collapsed due to an "Act of God" would not come to their aid, as the burden of proof would be shifted upon the appellants to prove that all necessary and reasonable care was taken in the construction of the building, and all statutory requirements for construction and use of the building, were complied with and satisfied. It is only after discharging this burden of proof that any benefit of an "Act of God" could be available to the appellants, in order to avoid tortious liability; otherwise such a defence cannot be accepted as a valid one. In the present case, looking to the material on record, it cannot be said that the appellants have been successful in discharging this burden of proof. Therefore, the defence of Vis major or "Act of God" is not available to them.
25. From the oral and documentary evidence on record, it is clear that :
(a) No Building Use Permission was taken before the School was started. This is an admitted position on behalf of the appellants, as well.
(b) No soil test,as required by the Municipal bye-laws, was carried out on the land upon which the School building was constructed. This has bean admitted in the cross-examination of defendant No.1 (Exh.137) Rambhai Dashratbhai Patre (Appellant No.2 herein). The said defendant has also admitted that while the construction of the School building was going on, no supervisor was appointed, and the work was not supervised.
(c) The second witness of the defendants Mr.Dineshbhai Patel, who is an officer of the Ahmedabad Municipal Corporation, has deposed at Exh.150, that no progress Report has been placed before the Corporation as per Rules, and no soil test has been done. Further, he had admitted that the Building permission was given on 27-7-1999. The Plans were sanctioned by the Corporation as per bye-laws, but on the site, construction was not made in accordance with the Plans. This witness has further stated that after completion of construction, a completion Report was required to be placed before the Ahmedabad Municipal Corporation, which has not been done. He has also stated that without soil test and Load Bearing Capacity Report, no design can be permitted.
(d) The Report of the Forensic Science Laboratory is at Exh.133. The Officer of the Forensic Science Laboratory has also been examined. From the Report at Exh.133 it is clear that sticky soil was found in the foundation of the building and no tie beam or plinth were found.
(e) It emerges from the record of the case that the School Building was constructed within a period of one year. The School started from June 2000 and collapsed on 26-1-2001 i.e. in less than one year.
(f) It has come on record that many adjoining buildings have not collapsed and the other School building constructed by Shivam Corporation in the year 1989-90, is still intact.
(g) The Report of the NCCBM is in the Form of Answers to Questions, and reads as under:
B1 Sample of Beam A5) The type of steel in top and bottom rod is high-strength deformed bar.
A10) It is placed at 90O angle. Details of the end work is shown in the sketch. It is not satisfactory since according to IS:13920-1993 (Code of Practice for ductile detailing of reinforced concrete structures subjected to seismic forces).
A13) The quality of concrete is satisfactory.
A13-a) It is not possible to find out the percentage of anhydrous cement in the RCC.
A19) Yes, except the angle of the end hook of the stirrups not satisfying the requirement. It is assumed that the sample is from the central part of the beam.
C1 Sample of Vertical Column A10) It is placed at 90O angle. Details of the end work is shown in the sketch. It is not satisfactory since according to IS:13920-1993 (Code of Practice for ductile detailing of reinforced concrete structures subjected to seismic forces).
A14) Average equivalent cube strength of concrete cores = 7.9 N/mm2 and large variation observed in the individual core results.
26. Though the Author of the Report has not been examined, the Report has been taken into consideration by the Trial Court. The learned counsel for the appellants has submitted that the Report of Prof.Anandjiwala, based upon a reading of the Report of the Forensic Science Laboratory and the Report of the NCCBM, has not been given due weightage by the Trial Court. However, in the judgment of the Trial Court it is specifically noted that Prof.Anandjiwala has never visited the site of the School Building and has given the Report, at the behest of the appellants, which is in the form of an opinion. The conclusion of this Report speaks for itself:
"Looking at all the aspects of investigation of N.C.C.B.M. & technical report, it is very clear that the is no bad intention regarding quality of material used as well as workmanship for the work in question as far as functioning of building is concerned.
The above statements are true to the best of my knowledge & belief, based on the examination of Investigation and test reports summery therein, I have not visited the said site of works neither before collapse nor after collapse and nor carried out any test for the building in question."
27. As the above report has been prepared without visiting the site of the calamity and without examining the material from the debris, merely on the basis of a reading of the report of the FSL and NCCBM, the Trial Court has rightly not given it any weightage. Further, the said witness Mr.Anandjiwala, could not have offered any opinion regarding the aspect of the appellants having "no bad intention". Nor would such an opinion be a valid defence in view of the observations of the Apex Court in the case of M.C.Mehta v. Union of India (Supra).
28. The cumulative effect of the entire evidence on record, the salient features of which have been discussed herein-above, leads us to the inescapable conclusion that there is a failure on the part of the appellants to exercise due care expected of a reasonable and prudent man. In addition thereto, there is a failure on the part of the appellants to comply with all statutory requirements in constructing the building. The cause of action for negligence would arise when the damage has occurred, as in the present case and negligence would become actionable on account of the injury resulting from the acts or omission on the part of appellants, amounting to negligence, which are solely attributable to them. The appellants, were very well aware that the building has been constructed for the purpose of running a School and it was incumbent upon them to ensure that a greater degree of care, as required in the case of children,is taken. The evidence on record clearly points out to gross negligence and carelessness on the part of the appellants in construction of the School building which suffers from numerous flaws as is evident from the material on record. When the very soil of the land on which the building was constructed was never tested and has ultimately been found to be sticky and no Load Bearing Capacity test was done, the plea of natural catastrophe in the form of an earthquake would not absolve the appellants from their liability arising on account of negligence. Had proper care been taken in the construction of the building such as any reasonable and prudent man would take, then, the question of liability for negligence in the wake of an earthquake, which is undoubtedly an Act of God, may not have arisen. But this is not the case here. There is ample evidence on record to prove that the construction of the building was careless and faulty from the foundation itself. When the foundation of the building was weak and not as per required Norms and Standards of building, and the Load Bearing Capacity of the soil had not been tested, mere reiteration on the part of the appellants that the building collapsed due to an Act of God, cannot be accepted. More so, as gross negligence is clearly and palpably evident from the material on record. The finding of the Trial Court that appellants Nos.1 to 8 (original defendants) are liable to pay compensation and damages to the plaintiffs is, therefore, found to be based on cogent and reliable evidence. On re-appreciation of the same, we find no justification to interfere with the same.
29. The next question that arises is whether the quantum of compensation has been rightly determined by the Trial Court. In Lata Wadhva v. State of Bihar (Supra), as regards compensation to be awarded in case of children, the Supreme Court has held as below:
"11. So far as the award of compensation in case of children are concerned, Shri Justice Chandrachud, has divided them into two groups, first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000/- has been held to be payable by way of compensation, to which the conventional figure of Rs.25,000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs.75,000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children, who died on the fateful day and having found their contribution to the family at Rs.12,000/- per annum, 11 multiplier has been applied, particularly, depending upon the age of the father and then the conventional compensation of Rs.25,000/- has been added to each case and consequently, the heirs of each of the deceased above 10 years of age, have been granted compensation to the tune of Rs.1,57,000/- each. In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rail Co.. Vs. Jenkins, 1913 A.C.1, and Lord Atkinson said thus:
"........all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact-- there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them."
At the same time, it must be held that a mere speculative possibility of benefit is not sufficient. Question whether there exists a reasonable expectation of pecuniary advantage is always a mixed question of fact and law. There are several decided cases on this point, providing the guidelines for determination of compensation in such cases but we do not think it necessary for us to advert, as the claimants had not adduced any materials on the reasonable expectation of pecuniary benefits, which the parents expected. In case of a bright and healthy boy, his performances in the school, it would be easier for the authority to arrive at the compensation amount, which may be different from another sickly, unhealthy, rickety child and bad student, but as has been stated earlier, not an iota of material was produced before Shri Justice Chandrachud to enable him to arrive at just compensation in such cases and, therefore, he has determined the same on an approximation. Mr. Nariman, appearing for the TISCO on his own, submitted that the compensation determined for the children of all age groups could be doubled, as in his views also, the determination made is grossly inadequate. Loss of a child to the parents is irrecoupable, and no amount of money could compensate the parents. Having regard to the environment from which these children were brought, their parents being reasonably well placed officials of the Tata Iron and Steel Company, and on considering the submission of Mr. Nariman, we would direct that the compensation amount for the children between the age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5 lakhs, to which the conventional figure of Rs.50,000/- should be added and thus the total amount in each case would be Rs. 2.00 lakhs. So far as the children between the age group of 10 to 15 years, they are all students of Class VI to Class X and are children of employees of TISCO. The TISCO itself has a tradition that every employee can get one of his child employed in the company. Having regard to these facts, in their case, the contribution of Rs.12,000/- per annum appear to us to be on the lower side and in our considered opinion, the contribution should be Rs.24,000/- and instead of 11 multiplier, the appropriate multiplier would be 15. Therefore, the compensation, so calculated on the aforesaid basis should be worked out to Rs. 3.60 lakhs, to which an additional sum of Rs.50,000/- has to be added, thus making the total amount payable at Rs.4.10 lakhs for each of the claimants of the aforesaid deceased children."
30. In the said case, for children of the age group of 5 to 10 years, died in the fire that broke out during a function organised by TISCO, a total amount of compensation of Rs.2 lacs was directed to be paid to every claimant, whereas for children in the age group of 10 to 15 years, studying in Class VI to X, the proper multiplier was held to be 15 and total compensation at Rs.4.10 lacs was directed to be paid to every claimant.
31. In M.S.Grewal v. Deep Chand Sood (Supra), the Supreme Court has confirmed a judgment of the High Court of Himachal Pradesh wherein compensation of Rs.5 lacs per child was awarded to the claimants of the children who lost their lives during a picnic organised by the School authorities.
32. It has been contended by Mr.M.B.Gandhi,learned counsel for the appellants that in the said case, the School catered to the affluent segment of society and was earning handsomely from fees collected from its students. The children studying in that School were also belonging to the upper strata of society. However, in the present case, the School is run by a Trust and the children studying in the School, mostly belong to the middle class section of society, who are not so affluent. Therefore, the same standard for award of compensation cannot be applied in the present case.
33. In M.S.Grewal v. Deep Chand Sood (Supra), the Supreme Court, while discussing the quantum of compensation observed, as below:
"12.
As noticed above, a large number of decisions were placed before this Court as regards the quantum of compensation varying between 50,000 to one lakh in regard to unfortunate deaths of young children. We do deem it fit to record that while judicial precedents undoubtedly have some relevance as regards the principles of law, but the quantum of assessment stands dependent on the fact-situation of the matter before the Court, than judicial precedents. As regards the quantum no decision as such can be taken to be of binding precedent as such, since each case to be dealt with on its own peculiar facts and thus compensation is also to be assessed on the basis thereof though however the same can act as a guide : Placement in the society, financial status differ from person to person and as such assessment would also differ. The whole issue is to be judged on the basis of the fact-situation of the matter concerned though however, not on mathematical nicety."
34. The learned counsel for the appellants has also submitted that the State Government has granted Rs.1.10 lacs per claimant as ex-gratia payment which ought to be taken into consideration while examining the question of enhancement. We are unable to accept this submission as payment of ex- gratia amount by the Government cannot be equated with liability arising due to negligence of the appellants.
35. In Lata Wadhva v. State of Bihar (Supra), the Supreme Court has awarded compensation of Rs.4.10 lacs per children between the age group of 10 to 15 years, but it appears from a reading of the said judgment that the age of the parents of the children has not been taken into consideration. In Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, (a later judgment of the Supreme Court) after meticulously examining different provisions of the Motor Vehicles Act, the Supreme Court has held, as below:
"42.
We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years." (emphasis supplied)
36. In the present case the parents of the deceased students were approximately between 41 to 45 years of age. Therefore, as per the dictum of the Supreme Court it would be proper to apply the multiplier of 14. The Trial Court has applied the multiplier of 15, which does not appear to be in consonance with the principle laid down in Sarla Verma v. Delhi Transport Corporation (Supra). Keeping in mind the age group of the parents, we find that the correct multiplier to be applied would be 14, instead of 15.
37. We cannot lose sight of the evidence on record to the effect that all the deceased children were students of Science and used to secure marks above 70%. Apart from the expectations of their parents, the potentiality of the children to earn in future, deserves to be considered. It is by now settled law that the notional income of any educated person would not be less than Rs.3000/- per month or Rs.36,000/- per year.
38. A contention was raised that in Motor Vehicle Accident cases, the notional income is considered as Rs.15,000/- per annum and hence it cannot be considered as Rs.36,000/- per annum. It is true that the same can be a guiding factor but the pertinent aspect is that tortious liability is based on common law, which is based on principles of equity that envisage the requirement of awarding just compensation. If the principles of equity are controlled by any codified law, the jurisdiction of the Court may not exceed beyond such law, like in Motor Accident Cases; but, in absence thereof, the Court would continue to hold the power to award just and reasonable compensation, considering the facts and circumstances of the case. Hence, we find it proper to assess the compensation, keeping in mind the talent, potentiality and bright future of the deceased children who have lost their lives. The parents of the unfortunate children have lost their children on account of the careless and negligent manner in which the School building has been constructed by the appellants, without taking proper care and caution and by committing breach of statutory requirements for construction and use of the said School building.
39. Calculating the notional income of each of the students as Rs.3000/- per month, (which is the minimum) and deducting 1/3rd for personal expenses, the remaining amount for dependency benefit comes to approximately Rs.2000/- per month. This amount, multiplied by 12, would come to Rs.24,000/- per annum. Rs.24,000/- multiplied by 14 would come to Rs.3,36,000/-. In addition thereto, we find that the claimants would be entitled to Rs.5000/- towards funeral expenses, Rs. 15,000/- towards pain,shock and suffering and Rs.15,000/- for loss of expectancy, totalling to Rs.3,71,000/-. Further, the interest awarded by the Trial Court at 5% per annum is too low and in our view it should be enhanced to 8% per annum, from the date of filing of the Suits, till realisation.
39.1 Keeping in view the nature of the case and the conduct of the appellants, exemplary damages quantified at Rs.4000/- in each case should be awarded. The total amount payable to each claimant by the appellants is Rs.3,75,000/- with interest at the rate of 8% per annum, to be deposited by the appellants in each case, within a period of three months from today.
40. The judgment and decree of the Trial Court stands modified, accordingly.
41. The Appeals filed by the appellants (original defendants) being First Appeals Nos.4643 to 4651, 4653 to 4661, 4663, 4664, 4667,4668 and 4670 of 2008, are dismissed. Cross Appeals Nos.319 to 340 of 2009, filed by the original plaintiffs are partly-allowed, with costs.
42. In view of the order passed in First Appeal No.4643 of 2008 and cognate matters, Civil Application No.11172 of 2008 does not survive and stands disposed of.
Decrees be drawn, accordingly. The Record and Proceedings be sent back to the Trial Court.
(Jayant Patel,J) (Smt.Abhilasha Kumari,J) arg