Madras High Court
V.Nagarajan Alias Palaniyandi vs The State Of Tamilnadu on 5 June, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 05.06.2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.27993 of 2003 V.Nagarajan alias Palaniyandi ... Petitioner ..Vs.. 1.The State of Tamilnadu, rep. by its Secretary to Government, Department of Social Welfare, (Noon Meals Scheme) Fort St. George, Chennai 9. 2.The District Collector, Trichirappally District, Trichy 620 001. 3.The Commissioner, Panchayat Union, Musiri, Thiruchirappally District. 4.The Headmaster, Panchayat Union Elementary School, Karuppampatti Village, Evoor Post, Musiri Taluk, Thiruchirappally District. ... Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Mandamus, directing the first respondent to pay a compensation of Rs.1,50,000/- with 9% interest from 20.10.2002 till date of realisation for the death of the petitioner's son Vijayakumar, in the Noon Meal Scheme, "Hot Sambar Bowl Accident" happened on 17.10.2002 in the 4th respondent's school For Petitioner : No Appearance. For Respondents : Mr.K.V.Dhanapalan Additional Government Pleader O R D E R
Father, who has lost his son aged about 6 years, due to the negligence of the staff, attached to the Hon'ble Chief Minister's Children Nutritious Meals Scheme Centre attached to Panchayat Union Elementary School, Karuppampatti Village, Evoor Post, Musiri Taluk, Thiruchirappally District, has sought for compensation of Rs.1,50,000/- with 9% interest per annum from 20.10.2002, till the date of realisation and for further orders.
2. According to him, his son Vijaya Kumar aged about 6 years, was studying in Std-I, in the above said school and that on 17.10.2002, his wife informed him that his son fell into a vessel which contained hot sambar kept at the Centre and sustained grievous injuries. Thereafter, he was admitted in the hospital and on 20.10.2002 at 2.00pm, succumbed to the injuries. A case in Crime No.499 of 2002 under Section 174 Cr.P.C., was registered in Musiri Police Station.
3. According to him, the accident occurred due to the negligence and carelessness on the part of the staff incharge of Noon Meals Scheme Centre and vide order dated 18.10.2002 in R.C.No.A7/3445/2002, the Commissioner, Panchayat Union, Musiri, Thiruchirappalli District, has suspended three persons.
4. The petitioner has further submitted that he is a TB patient and that there is no chance of getting another child. They are agricultural coolies. He has also submitted that after the sudden demise, his wife, was put to serious hardship, agony and inexplicable suffering. The petitioner has further submitted that on 23.10.2002, he sent a letter to the Hon'ble Chief Minister of Tamilnadu requesting compensation for the death of his son and on 13.11.2002, an Advocate notice was also sent to the respondents 2 to 4, calling upon them to pay compensation.
5. According to him, the accident has occurred only due to the negligence of the Noon Meals Staff attached to the centre and for their negligence, State is vicariously liable to pay compensation. As the abovesaid representations were not considered, the petitioner has come forward with the mandamus as status supra.
6. Opposing the writ petition, the District Collector, Thiruchirappalli District, in his counter affidavit, has submitted that on 17.10.2002, a medical camp was conducted by the Medical Officer of Moovanur Primary Health Centre from 10.30.am. Teachers were assisting the camp staff for regulating the students for undergoing medical checkup. Food for distribution for the students under the Hon'ble Chief Minsiter's Noon Meal Scheme was kept in the kitchen shed, located near the school building. After completing the medical check up for students of standards 2 to 5, about 12.15 pm., medical check up for Std-I was done. While the medical check up was going on, one student by name Vijayakumar, studying in Std.I, who had gone through the way near the kitchen shed slipped and fell down into the bowl of hot sambar kept in the kitchen shed for distribution to the students. Immediately, the boy was brought to the medical officer who was conducting the medical camp. After providing necessary first aid, he was sent to Government Hospital, Musiri, by the Noon Meals staff and Headmaster of the School. On the next day, he was admitted in the Intensive Care Unit at Government Hospital. Despite the same, the boy succumbed to the injuries on 20.10.2002.
7. The District Collector, Thiruchirappalli, has further stated that action had already been taken against the noon meal employees for their negligence in their duty and all the three employees viz., the Organiser, Cook and Assistant were dismissed from service vide proceedings No.RC.N6/2339/2002 dated 21.10.2002. Though, there was no provision for compensation for such cases, a sum of Rs.5,000/- was given from the District Welfare Committee Fund, as a special case, as financial assistance to the parents of the deceased student.
8. The District Collector, Thiruchirappalli, has also admitted that the Noon Meal Staff ought not to have left the place, where the cooked food was kept. But they have failed to do so. As negligence on the part of the staff was per se apparent, they were dismissed by proceedings dated 21.10.2002. At para No.7 of the counter affidavit, the District Collector has also stated that the accident had occurred due to the unfortunate and unexpected entry of the student into the kitchen shed, where the cook food was kept. According to him, there is no provision for compensation. For the reasons stated supra, he has prayed for dismissal of the writ petition.
9. Heard the learned counsel for the parties and perused the materials available on record.
10. The fact that son of the petitioner, fell into a bowl containing hot sambar, kept in the kitchen shed for distribution to the students under the Hon'ble Chief Minister's Nutritious Meals Scheme, on 17.10.2002 and lateron succumbed to the injuries on 21.10.2002, has been admitted by the District Collector, Thiruchirappalli District. He has also categorically admitted that the staff of the noon meal centre, viz., the Organiser, Cook and Assistant were negligent and that they ought not to have left the Centre, where the cooked food was kept.
11. The District Collector, has also categorically admitted that for the negligence in their duty, action was taken against them and vide proceedings in No.RC.N6/2339/2002 dated 21.10.2002, all the three staff were dismissed from service. However, while praying for dismissal of the writ petition, the District Collector, Thiruchirappalli, has stated that the only reason for not accepting to the request of the petitioner for payment of compensation is that the accident occurred due to the unfortunate and unexpected entry of the student into the kitchen shed and that there is no provision for payment of compensation in such cases. However, a sum of Rs.5,000/- has been given to the parents of the deceased student from the District Welfare Committee Fund.
12. Negligence on the part of the staff of the Noon Meal Centre has been admitted. Negligence is a specific tort and in any given circumstances, the failure to exercise that care which the circumstances demand, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. In so far as strict liability is concerned, it is the settled position that the rule of reliance from time to time is that a person who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief, if it escapes, must keep it at his peril. If he fails to do so, he is prima facie liable to the damages which is the natural consequence of its escape. Liability under the rule is strict and does not define that the thing escaped without the willful act or default, even though he had no knowledge of its existence.
13. In C.Chinnathambi vs The State Of Tamil Nadu And Ors, reported in 2001 Writ L.R.174, two writ petitions were filed by the parents, who lost their children aged about 11 years, students of standard 6 in a Government Higher Secondary School. In that school, the parent teachers association had constructed a water tank for the usage of the students and the teachers. On the fateful day while these children were washing their utensils in the recess the said water tank broke and fell down on the two innocent children crushing them to death. The Government has sanctioned Rs. 5,000/- to each of them by way of ex gratia payment.
14. In both the writ petitions, they claimed that the amount was meagre and not commensurate. They claimed Rs.1,50,000/- each. The respondents opposed the writ petitions on the ground that ex-gratia payment has already been paid and that there was no liability against the State Government. It was also contended that Civil Court would be the proper forum to establish tortuous liability.
15. Rejecting the objections at paragraph Nos.5 and 6, this Court ordered as follows:
"5.Right of life enunciated in Article 21 has time and again been recognised by the Supreme Court and in its various ramifications. This was a case where the two innocent children had gone to the school and the accident actually took place during school hours. Even if it is considered that the said tank was constructed by the parent teachers Association it was undoubtedly the responsibility of the school authorities to see that the tank was properly constructed and erected and that it should not have been hazard to the lives of the children. There can be no dispute that in this case school authorities have not been careful enough to see that the construction was proper and in keeping with the rules. It beats ones understanding, as to how a tank which was constructed nearly in 1983-84 would collapse all of a sudden within eight years of its construction i.e. on 12-10-1992. The things do speak for themselves. There can be least doubt that the school authorities were not vigilant to their duties and that this being the Government School the Government would have a liability. There is no dispute that two young lives have perished predominantly because of the lack of care on the part of the school authorities. In my opinion the compensation of Rs. 5,000/- by way of ex gratia payment would be a cruel joke. The petitioners have claimed the compensation of Rs. 1,50,000/- each in their writ petitions.
6. Considering the age of the children, the social background that they come from the fact that these children were bona fide students and could have had a bright future, the compensation of Rs. 1,50,000/- shall be on the lower side. I, therefore, allow both the petitions and direct the Government to make a payment of Rs.1,50,000/- to each of the petitioners within two months from today. If the payment is not so made, it shall carry the interest at the rate of 12% p.a. till the actual payment is made."
16. In M.S.Grewal and another Vs. Deep Chand Sood and others, reported in 2001 (8) SCC 151, the Supreme Court considered the aspect of negligence, and the duty of a teacher to take care of the students, yet the explanation to the term negligence requires consideration. In that case, the students who went for a picnic, drowned in a river. On the aspect of negligence, the Supreme Court at paragraphs 14 and 16 has held as follows:-
14. Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Blacks Law Dictionary). Though sometimes, the word inadvertence stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions whereas inadvertence is a milder form of negligence, negligence by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk & Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below:
(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law;
(3) a casual connection between the defendants careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
16. Duty of care varies from situation to situation - whereas it would be the duty of the teacher to supervise the children in the playground but the supervision, as the children leave the school, may not be required in the same degree as is in the play-field. While it is true that if the students are taken to another school building for participation in certain games, it is sufficient exercise of diligence to know that the premises are otherwise safe and secure but undoubtedly if the students are taken out to playground near a river for fun and swim, the degree of care required stands at a much higher degree and no deviation therefrom can be had on any count whatsoever. Mere satisfaction that the river is otherwise safe for swim by reason of popular sayings will not be a sufficient compliance. As a matter of fact the degree of care required to be taken specially against the minor children stands at a much higher level than adults: Children need much stricter care.
17. Tracing the doctrine of vicarious liability from the English Laws and the approach of the Courts in India, the Supreme Court at paragraphs 18, 19 and 21 explained the principles as follows:-
18. Be it noted that the doctrine of vicarious liability has had a fair amount of judicial attention in the English Courts. By the end of 18th century, the idea began to grow up that some special importance ought to be attached to the relationship of master and servant and in 1849 it was officially held that existence of that relationship was essential. Thereafter, though primary liability on the part of anyone could be established on proof of direct participation in the tort, such direct participation was not even theoretically required to make a master liable for his servants torts. The liability is derived from the relationship and is truly vicarious. At the same time, the phrase implied authority which had been the cornerstone of the masters primary liability gives way gradually to the modern course of employment. (vide Winfield & Jolowicz on Tort 15th Ed.)
18. The Noon Meals staff were negligent in their duty and the State which runs the Centres under the scheme, is vicariously liable to compensate the petitioner, who has lost his son. Payment of a sum of Rs.5,000/- as financial assistance from District Welfare Committee Fund, as special case, is a pittance and it would not be commensurate with compensate the loss suffered by the parents. There is no prescribed formula for arriving at the quantum of compensation, in these type of matters. At this juncture, this Court deems it fit to apply two principles of law for awarding compensation viz., (a) Principles of justice, equity and good conscience and (b) Just compensation.
(a) What is justice, equity and good conscience is explained by the Supreme Court in Shri Rattan Lal Vs. Shri Vardesh Chander and Others, reported in 1976 (2) SCC 103, and in the words of Hon'ble Mr.Justice Krishna Iyer, The concept of 'justice, equity and good conscience' comes into play in the absence of any specific legislative provision. In India and in other colonies during the imperial era a tacit assumption had persuaded the courts to embrace English law (the civilizing mission of the masters) as justice, equity and good conscience. Further, the Apex Court while considering the abovesaid concept of 'justice, equity and good conscience' an English common law, at paragraph No.21 held as follows:-
This is the genesis of the idea that Indian 'good conscience' is English Common Law during the reign of Empress Victoria. The imperatives of Independence and the jural postulates based on the new value system of a developing country must break off from the borrowed law of England received sweetly as 'justice, equity and good conscience'. We have to part company with the precedents of the British-Indian period tying our non-statutory area of law to vintage English law christening it 'justice, equity and good conscience'. After all, conscience is the finer texture of norms woven from the ethos and lifestyle of a community and since British and Indian ways of life vary so much that the validity of an anglophilic bias in Bharat's justice, equity and good conscience is questionable today. The great values that bind law to life spell out the text of justice, equity, and good conscience and Cardozo has crystallised the concept thus:
Life casts the mould of conduct which will some day become fixed as law.
Free India has to find its conscience in our rugged realities and no more in alien legal thought. In a larger sense, the insignia of creativity in law, as in life, is freedom from subtle alien bondage, not a silent spring nor hot-house flower.
(b) Even in such cases when the employer or Government servant commits negligence, causing injuries or death, as the case may be, the Supreme Court has ordered that compensation awarded to the accident victims, should be on the principles of just compensation. Reference can be made to few decisions:-
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, in Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
In Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
No doubt, the above cases have arisen under Motor Accidents Claim, but on the application of "just compensation" this Court intends to follow this case.
19. The structured formula method as provided for under the Motor Vehicle's Act, has also been followed in computing compensation in cases of death arising out of electrocution, due to negligence of the employees of the Electricity Board.
20. The petitioner has claimed a sum of Rs.1,50,000/- with interest at the rate of 9% per annum from 20.10.2002, i.e., from the date of death of his son, aged about 6 years. Accident and negligence have been admitted. The contention of the District Collector, Thiruchirappalli District that there is no provision for payment of compensation in the case of an accidental fall into a vessel containing hot food and therefore the writ petition has to be dismissed, cannot be countenanced.
21. Though the petitioner has restricted his claim for compensation at Rs.1,50,000/- with interest at the rate of 9% per annum from 20.10.2002, this Court is of the view that the petitioner is entitled to even an higher compensation, as per the decision in R.K.Malik v. Kiran Pal reported in 2009 (1) TN MAC 593 (SC), though, it was a case relating to motor accident. Computation of compensation is for the loss sustained, whether it be the negligence in a motor accident case by the government servant or employee, of a State owned corporation, or the negligence of the staff working in a noon meal centre. There cannot be any difference in quantum, merely because, the place and the manner of accident are different. The cause is negligence and therefore the quantum for the loss, should be the same. If the loss of life of a child below the age of 10 years in a motor accident, applying the principles of law is quantified at Rs.3,00,000/-, this Court sees no difference in the case of fall in a bowl containing "hot sambar", where the child sustained injuries, hospitalised and lateron died.
22. In the above reported case, several children died due to negligence of the driver of a van, which carried children. Legal representatives of the deceased made separate claims for compensation. In a joint trial, the tribunal awarded a sum of Rs.1,55,000/- to the dependents of children between age group of 10 to 15 years and Rs.1,65,000/- between 15 to 18 years. Three of the children, namely, Kailash Rathi, Neena Jain and Jatish Sharma were less than 10 years. In the case of Kailash Rathi, compensation of Rs.1,05,000/- was awarded and in the cases of Neena Jain and Jatish Sharma, compensation of Rs.1,30,000/- and Rs.1,31,000/- respectively was awarded. Additional amount of Rs.1,000/- was awarded in the case of Jatish Sharma, as in some other cases, for loss of books. The figures mentioned above include Rs.5,000/- each towards funeral and last rites. It awarded interest @ 6% for four years. As per the Second Schedule of the Act, balance amount was awarded for loss of dependency that was calculated on the notional income of Rs.15,000/- per annum. Rs.5,000/- was deducted towards personal living expenses. The Tribunal applied multiplier of 15 for children below 15 years and multiplier of 16 for children between 16 and 18 years respectively. On appeal, the High Court, by its common order held that the appellants are entitled to enhancement of compensation in all the cases by Rs.75,000 and Rs.1000 (if not already awarded by the Tribunal). On further appeal, the Supreme Court, considering the facts and circumstances of the present case, and following the decision in Lata Wadhwa v. State of Bihar [2001 (8) SCC 197] and The President, Malikdhinar English Medium School and Others v. A.Babudeen & others, and M.S.Grewal V. Deep Chand Sood reported in 2001 (8) SCC 151, granted compensation of Rs.75,000/- (which is roughly half of the amount given on account of pecuniary damages) as compensation for the future prospects of the children, to be paid to each claimant within one month of the date of this decision. The said amount i.e. Rs.75,000/-, was over and above, what has been already awarded by the High Court.
23. There is method of computation, in the case of accidental fall. Though in the case on hand, a claim for Rs.1,50,000/- alone has been made, this Court is inclined to award a sum of Rs.3,00,000/- as ordered by the Supreme Court, in respect of death of children below 10 years.
24. Accordingly a mandamus is issued to respondents 1 and 2 to pay a sum of Rs.3,00,000/- to the petitioner with interest at the rate of 7.5% per annum from 20.10.2002 till the date of realisation, within a period of one month from the date of receipt of a copy of this order.
25. With the above directions, the writ petition is allowed. No costs.
ars Note:-
Registry is directed to issue a copy of this order to the Secretary to Government, State of Tamilnadu, Department of Social Welfare, (Noon Meals Scheme), Fort St.George, Chennai 9, for compliance.
ars To
1. The Secretary to Government, Department of Social Welfare, (Noon Meals Scheme) Fort St. George, Chennai 9.
2. The District Collector, Trichirappally District, Trichy 620 001.
3. The Commissioner, Panchayat Union, Musiri, Thiruchirappally District.
4. The Headmaster, Panchayat Union Elementary School, Karuppampatti Village, Evoor Post, Musiri Taluk Thiruchirappally District