Madras High Court
Ruth Mary, Jayshankar, K. Selvi And K. ... vs The Commissioner Corporation Of ... on 9 December, 2003
ORDER K.P. Sivasubramaniam, J.
1. In both these writ petitions, the respective petitioners pray for the issue of a Writ of Mandamus to direct the respondents to pay appropriate compensation to Ruth Mary and Jayshankar in respect of the death of their children Savitha and Prakash on 4.5.1996 and to K. Selvi and K. Kumar in respect of their child Master Parthiban on the same day.
2. According to the petitioners, on 4.5.1996, the said three children went out for playing along with some other children over the Corporation's toilet and septic tank situated near the vegetable market, Division 154, Mylapore. Whileso playing, the toilet's septic tank lid suddenly broke and gave way and the three children were sunk into the septic tank. The septic tank is situate near the vegetable market which comes under the purview of the Corporation of Chennai. The petitioners further contend that a police complaint was lodged with the Velacherry Police Station and the same was registered as Crime No. 890 of 1996 under Section 174 Cr.P.C. The petitioners claim that the facts stated in the FIR clearly set out that the children were playing along with the other children in the said area and when their children were playing, the cover of the septic tank caved in, as a result of which the children fell inside the septic tank and lost their life. The bodies of the children were recovered and later sent to the Government Hospital, Madras for postmortem examination by the police. The postmortem examination of all the said three children were conducted on the next day i.e., on 5.5.1996 by the Department of Forensic Medicine. The reason for death as given in the postmortem Certificate was that the death was due to drowning. It is further stated that the parents of the children are very poor and the loss of their children, is immeasurable. It is further stated that the poor maintenance of the septic tank and its cover had caused the death of the children. The petitioners have therefore prayed for a Mandamus to pay appropriate compensation apart from claiming a sum of Rs. 50,000/- and Rs. 25,000/- respectively as interim compensation.
3. In the counter filed by the first respondent/Commissioner on 9.12.2003, the claim is denied. It is further contended that the alleged accident which is said to have happened on 4.5.1996 was disputed and the petitioners were put to strict proof of the same. The petitioners have to strictly prove and establish that the accident had occurred only on 4.5.1996 and that their children had died on that day. In fact, there was no septic tank situate near the vegetable market and there was no vegetable market or any market near the septic tank attached to the public convenience in the burial ground. It is further stated that the High Court under Article 226 of the Constitution, cannot go into the disputed questions of fact or examine and arrive at a conclusion without deciding the various issues and evidence which arise for consideration. The contention that the petitioners had sent a representation to the respondents is also denied. There are about 50 families who have encroached the burial ground premises unauthorisedly and were using the toilet and the well. There was no complaint by any person in that locality regarding the septic tank. The septic tank cover was plastered with Cement and it cannot be break open easily. The septic tank was maintained by the respondents properly and there was no truth in the contentions raised by the petitioners.
4. Learned counsel for the petitioners refers to the FIR filed in this context. Reference is also made to the postmortem conducted on 5.5.1996 and the Certificate discloses that the cause of death of the children of the petitioners' concerned was Asphyxia due to drowning. Reference is also made to the representation addressed to the Chief Minister by the residents of the area.
5. Learned counsel for the petitioner further contends that the stand taken by the respondents viz., total denial of the accident and requiring the parties to go before the Civil Court, cannot be sustained. Reliance is placed on the judgment of P. SATHASIVAM, J., in W.P. No. 16084 of 1993 (Matsa Gandhi, D. v. Tamil Nadu Slum Clearance Board). In that case, when the petitioner's daughter while trying to draw water from a well fell into the well through hole and she died. Learned Judge held that though the disputed questions of fact cannot be gone into under Article 226, the facts clearly established the negligence on the part of the Slum Clearance Board and that the death occurred on account of such negligence and therefore as the negligence was per se visible, the learned Judge ordered a sum of Rs. 75,000/- to be paid towards compensation with interest at 12% per annum from the date of the order.
6. Per contra, learned counsel for the respondents contends that no representation has been addressed to the Commissioner and even in the typed set, the petitioners have filed only the representation to the Honourable Chief Minister. It is further stated that in view of the disputed question of facts, the petitioners have to approach the Civil Court for proof of damages and compensation. Reliance is placed on the judgment of the Supreme Court in Tamil Nadu Electricity Board v. Sumathi and Others (2001-2-L.W. Page 8).
7. I have considered the submissions of both sides.
8. As the facts stated above would disclose, the stand of the respondents is one of total denial. I am afraid that the stand of the respondents cannot be appreciated. It is true that the only representation which has been filed in the typed set is addressed to the Chief Minister. A representation to the Chief Minister of a State cannot be equated to the representation to the competent authority who is the appropriate authority. Having regard to the volume and nature of activities in the Office of the Chief Minister, it would be impracticable and unreasonable to expect any positive response to such a representation and hence the petitioner cannot be permitted to rely on the said representation. There is also no material to show that any other representation having been made to the first respondent or to the second respondent being the Secretary to Home Department. But the petitioners have referred to the copy of the FIR dated 4.5.1996 and also the postmortem Certificate dated 5.5.1996. Learned counsel for the petitioner has also brought to my notice several contemporaneous publications in several news papers dated 5.5.1996 viz., in "Dinathanthi", "Indian Express" and other Tamil newspapers. The accidental drowning of the said three children have been reported in great detail with photographs of the place where the children had met their death. The open drainage is also shown in the photographs. A very detailed account of the accident has been given with critical observation regarding the broken condition of the drainage cover. In the representation of the Indian Express, it is stated that three children died of asphyxiation in a septic tank at Nehru Street in Taramani on Saturday. It is further stated that according to the police, the children were playing on the septic tank adjacent to their house when it suddenly caved in and they fell into it. It is further reported that the residents complained that the tank had got filled up even a year ago and that the toilet was no longer in use and that despite repeated complaints, no action had been taken to clean the tank and that the tank cover caving in so easily only showed the poor quality of construction. In the reports of the Tamil newspapers, further details have also been given about the residents having conducted a mass protest and participated in a blockade of the road in view of the negligent manner in which the septic tank was maintained.
9. Though these writ petitions have been filed in the year 1997 itself, the present counter has been filed only now in the month of December 2003, calling upon the petitioners to strictly prove the allegations. Such an attitude of escapism from a Municipal Corporation cannot be appreciated.
10. Therefore the fact that the three children had met their death in the manner as stated by the petitioners cannot be seriously disputed and the attempt on the part of the Corporation to raise a legal defence based on the judgment of the Supreme Court in 2001-2-LW Page 8 referred to above, cannot be sustained. The judgment has to be applied to cases where the claim is remote and not supported by any tangible evidence and the liability and assessment of damages would depend upon complex facts and evidence, oral and documentary.
11. Considering that sufficient materials have been filed in the typed set regarding the manner in which the children had met with their death, the respondents ought to have filed a more truthful and objective counter affidavits. Even apart from the Corporation of Madras, the petitioner has also impleaded the Government by Secretary to Home Department. The details of the FIR and Crime Number have been given and there has been no attempt on the part of the respondents to place all the facts before the Court. In a proceeding under Article 226 of the Constitution at least, there should be a proper assistance to the Court by placing all the facts instead of stating that the petitioner is put to strict proof.
12. Therefore I am inclined to hold that there are overwhelming materials to show that the three children had met with their death only due to negligence in the maintenance of the drainage cover.
13. It is the bounden duty of the Corporation to keep all places of possible public approach in a proper condition and not as death-traps. The Corporation cannot be heard to say (as attempted in this case) that the victims had no business to go over to such a place for playing. It is true that the petitioners could have approached the Civil Court for damages. But considering that the petitioners belong to a very poor Section and they do not have any permanent job, they have approached this Court for proper relief.
14. Therefore considering the overall circumstances, I am satisfied about the truth of the accident and inclined to direct the first respondent to pay a sum of Rs. 50,000/- per head for each of the three children to their respective parents/petitioners within a period of four weeks from today. In addition, the petitioners will also be entitled to interest at the rate of 12% per annum till the date of payment from today, considering that more than seven years have passed by after the death of the children.
15. The writ petition is ordered accordingly. No costs.