Madras High Court
B.Madhusuthanan Nair vs The State Of Tamil Nadu on 27 February, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.12029 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 03.02.2023
ORDER PRONOUNCED ON : 27.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.12029 of 2015
and M.P(MD).No.2 of 2015
1.B.Madhusuthanan Nair
2.S.Sathykumari Amma ....Petitioners
Vs
1.The State of Tamil Nadu
Represented by its Secretary
Public Works Department
Fort St George
Chennai 600 009
2.The District Collector of Erode
At Erode
Erode District
3.The Executive Engineer, PWD/WRD
Bhavanisagar Dam Division
Bhavanisagar 638 451
Erode District
4.The Superintendent of Police of Erode
At Erode
Erode District
5.The Sub Inspector of Police
Bungalowpudur
Erode District ....Respondents
https://www.mhc.tn.gov.in/judis
1/15
W.P(MD).No.12029 of 2015
Prayer: This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records of the third
respondent pertaining to his order in letter No.VaPa/lvaA.
2/Co.Mu.Tha.Pi.Manu/256/2015/ dated 11.06.2015, on his file, quash the
same, directing the respondents to pay to the petitioners towards
compensation for the accidental death of their son, Manusuriya M.S., on
11.01.2015, due to the fault of the respondents, an amount of fifteen crore
rupees with interest at the rate of twenty-four per cent per annum for the
period from the said 11.01.2015 till the date of payment, within a time to be
fixed by this Court.
For Petitioners : Mr.K.N.Thampi
For R1 to R3 : Mr.A.Sivanupandian
Government Advocate
For R4 & R5 : Mr.P.Kottaichamy
Government Advocate (Crl.Side)
ORDER
The writ petition has been filed seeking for a compensation of Rs.15 crores along with interest for the untimely death of the son of the writ petitioners due to drowning in Kodiveri Dam in Erode District.
2.According to the petitioners, their son was a healthy and brilliant student who had passed the Higher Secondary Examination with flying https://www.mhc.tn.gov.in/judis 2/15 W.P(MD).No.12029 of 2015 colours. He got admitted under the Government Quota in MBBS Course in IRT-Perundurai Medical College, Perundurai, Erode District. While he was taking bath in Kodiveri dam, he got drowned and passed away on 11.01.2015. The police officials have registered an F.I.R in Crime No.11 of 2015 on the file of the Sub Inspector of Police, Bungalowpudur, Erode District under Section 174 Cr.P.C.
3.According to the petitioners, they sent a representation to the authorities on 08.04.2015 seeking compensation for the death of their son. The said representation was rejected by the 3rd respondent herein by an order dated 11.06.2015 on the ground that there was no negligence on their part and the accident had taken place due to carelessness and negligence on the part of their son who had ventured into the dam area disregarding the warning board. Challenging the said order, the present writ petition has been filed.
4.The petitioners herein had contended that their son was not conversant in Tamil and the warning boards were only in Tamil and hence, the said warning boards could not be considered to be effective, as far as the tourists from other States are concerned. The following submissions were made on the side of the petitioners.
(i). The respondents have not prevented the visitors from venturing into the dangerous and deep area in the dam.
https://www.mhc.tn.gov.in/judis 3/15 W.P(MD).No.12029 of 2015
(ii).The respondents have not posted any security staff to inform and warn the visitors not to enter into the deep area.
(iii).They were negligent in keeping and maintaining the said dam and have not taken any precautionary measures which would amount to dereliction of duties. If there had been proper warning board and preventive measures, their son would not have died due to drowning. If really there were security staff, their son would have been rescued while he was drowning. The statement recorded from the friends of the deceased person have been extracted and those alleged statements are unverified and concocted with malafide intention.
5.The third respondent had filed a counter affidavit and contended as follows:
(i). The Dam area is a prohibited area for bathing and warning boards have been installed.
(ii).The bathing area is located under the falls and barricades have been put up at the bathing place under the falls.
(iii).The tourists are prohibited from taking bath in the upstream side and the areas surrounding the sand vent are strictly prohibited and the warning boards have also been placed there for public notice.
(iv). The petitioners' son has not taken bath under the falls, but he had gone to the upstream area and he had got drowned.
https://www.mhc.tn.gov.in/judis 4/15 W.P(MD).No.12029 of 2015
(v).The victim had passed away due to his ignorance, negligence and violation of the warning boards and hence, the Government is not responsible for payment of compensation. 12 students who had accompanied the deceased have given statements to the police that the deceased had entered into the dam area disregarding the warning boards and he had got drowned.
(vi). The photographs relating barricades and caution boards installed at the prohibited area are submitted along with the counter.
6.The fifth respondent herein had filed a counter contending that two Police Officials namely Tmt.Gandhimathi of Kadathur Police Station and S.S.I. Thiru.Manivasagam of Bangalapudur Police Station were on bandobust duty and they have warned all the visitors in the entrance itself. Despite the said warning and caution boards, the victim had entered into the the upstream area of the check dam and he got drowned.
7.The petitioners had filed a reply affidavit refuting the presence of the Police Officials. They have further contended that in the reply affidavit that if really CCTV cameras have been installed in the said location, such clipping and the Photographs could have been produced by the respondents. They had further contended that when the victim was drowning, other students called for help, but there were no one to rescue the victim. Hence, the contention of the police authorities that their men have been posted in the site at the time of https://www.mhc.tn.gov.in/judis 5/15 W.P(MD).No.12029 of 2015 accident is not factually correct. Hence, he prayed for allowing the writ petition.
8.I have considered the submissions made on either side and perused the materials available on record.
9.Kodiveri Dam is a check dam which is wetted from Bhavani Sagar Reservoir for irrigation of fields wetted by Thadapalli-Arakankottai canals. The said dam is located in the Erode District. It attracts the tourist not only from the State of Tamil Nadu but also from neighbouring States for swimming and bathing during the weekends under the water falls. The petitioners had filed an additional typed set of papers on 07.01.2020 in which a print out from an English Newspaper dated 09.07.2014 has been annexed.
10.A perusal of the said news item indicates that the authorities have installed surveillance cameras and police people have also been employed to watch those people who are possessing liquor or entering into the dam area in an inebriated condition. This news item has been published in one year six months prior to the date of accident. Therefore, it is clear that even on the date of accident, there were surveillance cameras and police personnel employed in the check dam in order to monitor and regulate the tourist.
11.In the affidavit filed in support of the writ petition, the writ petitioners have contended that the warning boards ought to have been https://www.mhc.tn.gov.in/judis 6/15 W.P(MD).No.12029 of 2015 installed not only in Tamil, should also be displayed in English in order to help the tourist from other States. Therefore, it is clear that already warning boards have been installed by the concerned authorities cautioning the tourists about the danger for taking bath in the upstream area of the check dam. The respondent authorities have furnished photographs relating to the warning boards put up by the Public Works Department and the Police Department. A perusal of the warning boards clearly indicate that the surveillance cameras have been put up and the tourists have been warned not to take bath in the dam area. There is also a warning board indicating that it is dangerous to take bath in the upstream of the dam. However, the learned counsel for the petitioners had contended that these photographs does not indicate the date on which they have been taken and it will not help the authorities to defend the case.
12.The news item that is published in English Newspaper on 09.07.2014 ( 6 months prior to the accident) clearly indicates that not only the warning boards have been erected but also the police personnel have been employed. Therefore, it is clear that the Public Works Department and the Police Authorities have already put up warning boards cautioning the tourists not to take bath in the dam area. The tourists have been instructed to take bath only in the water falls that is created due to overflowing of the water from the check dam.
https://www.mhc.tn.gov.in/judis 7/15 W.P(MD).No.12029 of 2015
13.It is an admitted fact that the petitioners' son and 12 of his friends have taken bath in the upstream of the dam area disregarding the warning boards. The learned counsel for the petitioners had contended that the warning boards were only in Tamil and the victim was not having knowledge about Tamil and hence, he could not read those warning boards. However, it is also an admitted case that the petitioners' son had not gone alone but he was accompanied by 12 of his friends from the same College. It is not the case of the petitioners that none of his friends were Tamil knowing students. It should also be taken into consideration that all the other friends had safely come out after taking bath and the petitioners' son alone had got drowned. Therefore, the contentions of the petitioners that due to non display of the warning boards, their son had got drowned is not legally sustainable.
14.It is clear from the facts narrated that the petitioners' son and others disregarding the warning boards have entered into the upstream of the check dam area and had taken bath. Therefore, certainly negligence could be attributed on the part of the petitioners' son also.
15.Even assuming that there was negligence on the part of a tourist in entering into the prohibited area, it is the duty of the authorities of the Public Works Department and the Police Authorities to stop the tourist from entering into the prohibited area. Putting up of warning board or cautioning the tourist at the entrance of the check dam cannot be considered to be a sufficient care https://www.mhc.tn.gov.in/judis 8/15 W.P(MD).No.12029 of 2015 taken on the part of the Government to protect the tourists in the dam area. In case, if there is any violation of the warning boards and some tourists had reached into the prohibited area, the police officials should prevent them from entering into the area and make an attempt to recall them immediately into the safer zone.
16.In case of some untoward incident, there should be a men and material to rescue the people who had ventured into the dangerous zone. There are no pleadings in the counter affidavit and no records have been produced on the side of the Government to establish that police personnel who are experts in rescuing the people who are about to drown, have been employed in the dangerous zone.
17.It is the specific case of the petitioners that the other students had called for help to rescue their son while he was about to drown, but there was no response either from the officials by the Public Works Department or from the Police Personnel to take immediate steps to rescue their son. The counter affidavit is silent with regard to the employment of such rescue person in the dangerous zone of upstream area of the dam. In the counter affidavit, the police officials have contended that they had rescued the son of the petitioners. However, it could be seen from the medical records that he was not rescued but brought dead by the police officials to the safer zone. Therefore, it is clear that rescue personnel were not available at the dangerous https://www.mhc.tn.gov.in/judis 9/15 W.P(MD).No.12029 of 2015 zone and there was no prompt action on the part of the officials in rescuing the petitioners' son.
18.The learned counsel for the petitioners relied upon a judgement of the Hon'ble Supreme Court in a judgment reported in (2001) 8 Supreme Court Cases 151 (M.S.Grewal and another Vs. Deep Chand Sood and others) and (2019) 16 SCC 573(Managing Director, Kerala Toursim Development Corporation Limited Vs. Deepti Singh and others) to contend that there is a duty cast upon the authorities concerned to take care of the tourist and proper safeguard measures along with lifeguard should have been employed in the dangerous zone to rescue the persons.
19.The Hon'ble Division Bench of our High Court in a judgment delivered in W.A.(MD).Nos.497 & 524 of 2012 ( The State of Tamil Nadu, Rep. by its Secretary, School Education Department, Chennai and others vs. M.Shahul Hammed and another) dated 19.07.2017 in Paragraph No.14 has held as follows:
“14.....It is to be noted that when any activities is run by the Government or anybody which involves inherent risk of danger to the human being, more care about the safety is required for running the swimming Pool itself. Inherent risks is involved with regard to the freshers or the person not learnt the swimming. When such risks is involved in the swimming pool, it is the duty of the Government or the https://www.mhc.tn.gov.in/judis 10/15 W.P(MD).No.12029 of 2015 employees employed by the Government to take utmost care about the safety of others. In fact, the responsibility of the people, who carry out such activities which involves risk in human, life their liability would come under the category of strict liability. Even assuming that the children were negligent and teachers were also negligent, that will not relive the State Government from the responsibility of paying the damages or from making the compensation for loss of death of the human being. The act of the stranger is an exception to the Rule of strict liability. Had there being a sufficient life savers in the swimming pool at the relevant point of time, the minor child aged about 9 years would not have been drowned. It is a common sense that drowning would not take place within a few seconds, it will take few minutes. And there being a proper life savers or coachers present at the relevant time, this accident itself would not have occurred. These facts would clearly indicate that the employees of the State Government is also negligence in their duties. Therefore, the State Government cannot contend that they are not responsible for paying any compensation”
20.Therefore, it is clear that even assuming that there is some negligence on the part of the deceased in attempting to take bath in the upstream area of the dam, the officials have not been vigilant enough to stop them from entering into the dangerous zone or were prompt in carrying out the rescue operation. Therefore, it is clear that the respondents 1 to 3 are liable to pay compensation for the untimely death of the son of the petitioners.
https://www.mhc.tn.gov.in/judis 11/15 W.P(MD).No.12029 of 2015
21.The petitioners' son was 19 years old and he was a first year M.B.B.S student. Applying the parameters of the Motor Vehicles Act, the compensation to the petitioners could be calculated as follows:
(a). In view of the findings relating to the negligent on the part of the deceased, 30% shall be deducted from the compensation towards contributory negligence.
(b).The notional income is taken as Rs.30,000/- and being a bachelor 50% shall be deducted towards personal expenses and it comes to Rs.15,000/-
per month. Deducting 30% towards contributory negligence, the notional monthly income can be arrived at Rs.10,500/-. Considering the age of the deceased, the multiplier applicable to calculate the award is 16.
(i). Total Loss of Income = Rs.20,16,000/-
( Rs.10500 X12X16)
(ii). Loss of love and affection = Rs. 1,00,000/-
(iii). Loss of Estate = Rs. 15,000/-
(iv). Transport Expenses = Rs. 15,000/-
(v). Funeral Expenses = Rs. 25,000/-
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Total = Rs. 21,71,000/-
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22.The respondents 1 to 3 are liable to pay a sum of Rs.21,71,000/- towards compensation with interest at the rate of 6% per annum from 11.06.2015 till the date of realisation.
https://www.mhc.tn.gov.in/judis 12/15 W.P(MD).No.12029 of 2015
23.In view of the above said directions, the order impugned in the writ petition is set aside. The respondents 1 to 3 are hereby directed to pay a compensation of Rs.21,71,000/- to the writ petitioners within a period of 8 weeks from the date of receipt of a copy of this order along with interest at the rate 6% p.a from 11.06.2015.
24.The writ petition stands allowed to the above said extent. No costs. Consequently, connected miscellaneous petition is closed.
27 .02.2023 Internet : Yes/No Index : Yes/No NCC : Yes/No msa https://www.mhc.tn.gov.in/judis 13/15 W.P(MD).No.12029 of 2015 To
1.The Secretary State of Tamil Nadu Public Works Department Fort St George Chennai 600 009
2.The District Collector of Erode At Erode Erode District
3.The Executive Engineer, PWD/WRD Bhavanisagar Dam Division Bhavanisagar 638 451 Erode District
4.The Superintendent of Police of Erode At Erode Erode District
5.The Sub Inspector of Police Bungalowpudur Erode District https://www.mhc.tn.gov.in/judis 14/15 W.P(MD).No.12029 of 2015 R.VIJAYAKUMAR, J.
msa Pre-delivery order made in W.P.(MD).No.12029 of 2015 and M.P(MD).No.2 of 2015 27.02.2023 https://www.mhc.tn.gov.in/judis 15/15