Madras High Court
Smt. Chellammal Alias Chellam And Anr. vs State Of Tamil Nadu And Ors. on 20 October, 2000
Equivalent citations: 2001CRILJ906
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The prayer in this writ petition filed by Chellammal alias Chellam and her husband Kanniappan is to issue a Writ of Mandamus directing the respondents to pay compensation to the petitioners with reference to the death of their son Natarajan while he was under custody and to take appropriate action against the guilty officials responsible for his death.
2. The case of the petitioners is as follows :-
The deceased Natarajan is the second son of the petitioners. He was working as Auto Mechanic. The petitioners were able to run the family only with the earnings of their deceased-second son, who alone got a steady income. On 26-8-1992, the deceased did not return home. Next day morning, they were informed that he was taken to Arumbakkam Police Station. On enquiry, they came to know that he was arrested in connection with a complaint of theft and he was remanded to judicial custody. While they were trying their best by taking steps to get the release of their son, the petitioners on 1-10-1992 received a telegram from the Superintendent of Central Prison, Madras, the 4th respondent herein, informing that their son had been admitted in the Government General Hospital, Madras. The petitioners went to the hospital and found injuries on the body of their son Natarajan. He told them that he was beaten inside the prison. On the next day, he was discharged by the hospital authorities and the escorts took the deceased back to the Central prison. But, the Jail authorities sent back the deceased to the Government General Hospital, Madras for readmission. Accordingly, he was readmitted in I.C.U. in the emergency ward. He was there till 6-10-1992. He died in the hospital on 6-10-1992 at about 7.00 a.m. The 5th respondent also registered a case. Thereafter, the P. A. to Collector conducted an enquiry and sent his report to the Government. Thus, the petitioners came to know that their son Natarajan was cruelly tortured by one Senthur Pandiyan and other officials on the reason that he attempted to escape from the prison. Under those circumstances they sent petitions to Government. Since no action was taken against the officials concerned by the Government, the petitioners have filed this writ petition seeking for the above directions.
3. The case of the respondents is as follows :-
The deceased Natarajan was a remand prisoner detained in the Central Prison, Madras as per the remand order passed by the Court. On 17-9-1992, he along with another remand prisoner by name Vellankanni climbed up the old kitchen building and when they were found hiding there with intention to escape from the lock-up, they were asked to get down from the roof. Both of them got down. In that process, the deceased-Natarajan sustained some swelling and abrasions in the body. Therefore, he was given treatment in the Prison Hospital. Thereafter, he was admitted in the Government General Hospital, Madras on 30-9-1992 for giving proper treatment. On 2-10-1992, he was discharged. Since he was found very fatigue, he was again taken to the Government General Hospital, Madras for re-admission. In spite of the continued treatment, on 6-10-1992 he died in the hospital. The P.A. to the Collector conducted an enquiry and submitted his report to the Collector and the Collector forwarded the enquiry report with his recommendations to the Government. On the said report, order is yet to be passed by the Government. The deceased was not beaten by the jail officials. On the other hand, he sustained injuries when he got. down from the roof of the kitchen block. Therefore, the jail officials have no connection whatsoever either with the injuries or with the death of the deceased.
4. On the basis of the above pleadings, the counsel for the parties argued at length.
5. I have carefully considered the submissions and gone through the affidavits filed by the parties.
6. The fact remains that the deceased was admitted in the Government General Hospital, Madras on 30-9-1992 by the jail authorities on emergency basis. Even though he was discharged on 2-10-1992, the jail authorities again sent him to Government General Hospital, Madras as he had to be given continued treatment for the injuries sustained by him. Accordingly, he was readmitted on 2-10-1999. On 6-10-1992, he died.
7. It is admitted in the counter that the deceased sustained injuries on his body, while he was getting down from the roof of the kitchen block, when his attempt to escape was prevented by the jail officials. In fact, it is stated in para 6 of the counter-affidavit filed by the Superintendent of Central Prison, Madras, the 4th respondent herein, that he was found with the injuries, when he got down from the roof of the old kitchen block. According to the 4th respondent, this happened on 17-9-1992. Thereafter, he was admitted in the Prison Hospital, where on 30-9-1992, the deceased complained that he was not able to eat and he was vomiting for the last two days. Therefore, he was admitted in the Government General Hospital on 30-9-1992 on emergency basis. Curiously, the separate counter-affidavits filed by the respondents do not give the details as to the nature of the injuries and the parts of the body on which the injuries were found and the cause of death.
8. But, it is clear that the deceased sustained injuries on 17-9-1992 and he was initially admitted in the Prison Hospital and thereafter, he was admitted in the Government General Hospital, Madras on 30-9-1992 and he was discharged on 2-10-1992 and again he was readmitted on 2-10-1992 and from then onwards, he was put in the I.C.U. and ultimately, on 6-10-1992 he died.
9. Though the counter-affidavit was filed by the 1st and 2nd respondents to the effect that the P. A. to the Collector conducted an enquiry and submitted his report to the Collector, who, in turn, forwarded the enquiry report along with his recommendations to the Government, no details have been mentioned regarding the action taken by the Government in respect of the death of the deceased on 6-10-1992. Even though the said counter was filed before this Court on 20-9-1995 by the Secretary to the Government, the 1st respondent herein, and the Collector of Madras, the 2nd respondent herein, for the reasons best known to them, they had not given the particulars in the counter regarding the event leading to the death of the deceased.
10. It is quite strange to see that though an enquiry was conducted by the P. A. to the Collector in the year 1992 and the enquiry report was forwarded by the Collector along with his recommendations to the Government, no action has been taken by the Government so far.
11-12. Even according to the Government Advocate, who appears for the respondents, for the death of the deceased, the parents of the deceased would be entitled to ex gratia payment in pursuance of the G.O.Ms. No. 833 dated 22-5-1998. However, the learned Government Advocate is not able to say whether the ex-gratia payment, as provided in the G.O., has been disbursed to the parents of the deceased, the petitioners herein, or not till date.
13. It is true that the law has been well settled, as laid down in Chairman, Grid Corporation of Orissa Ltd. v. Smt. Sukamani Das (2000 (2) LW 81), that the High Court cannot entertain the writ petition seeking for compensation for the death of a person caused due to the negligence on the part of the deceased concerned, as the question relating to negligence being a fact could not be decided properly on the basis of the affidavit filed under Article 226 of the Constitution of India.
14. However, the Apex Court in Tamil Nadu Electricity Board v. Sumathi held as follows :-
However, it cannot be understood as laying a law that in every case of tortuous liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution.
15. In the light of the above principles, I am of the view that the respondents have not placed any materials to show that there was no negligence on the part of the jail authorities and they were not responsible for the injuries sustained by the deceased, which resulted in his death. On the other hand, the petitioners have made out a case through documents to show that the deceased sustained injuries and he was taken to the hospital on 30-9-1992 and on 2-10-1992 itself, he was discharged, even though he was not fully treated and again he was readmitted on 2-10-1992 in the Government General Hospital, Madras on emergency basis at the instance of the jail authorities and he died on 6-10-1992.
16. In the absence of any explanation by the respondents-authorities as to how those injuries were caused and what is the actual reason for the death of the deceased, I am not able to straightway hold that the respondents were not at all negligent and as such, they were not responsible for the injuries caused to the deceased, which resulted in his death.
17. At the same time, I do not propose to direct for a fresh enquiry to go into the question with reference to the negligence, as it is admitted by the authorities that earlier an enquiry under Section 145, Cr.P.C. had been conducted by the P.A. to the Collector and the Collector, the 2nd respondent herein, in turn forwarded the enquiry report along with his recommendations to the Government for taking suitable action against the officials concerned. Therefore, the first respondent is directed to pass an order on the recommendations sent by the Collector, the 2nd respondent herein, for granting ex-gratia payment to the petitioners, which they are entitled to and for taking suitable action against the officials concerned.
18. The petitioners had asked for an interim compensation of Rs. 1,00,000/- pending disposal of the writ petition. But, the said interim application was disposed of by this Court by directing the main writ petition to be posted for disposal, as this Court was not satisfied with the counter filed by the respondents by order dated 28-8-1995.
19. In Selvam v. State of Tamil Nadu, (1993 WLR 499), this Court held that Article 226 of the Constitution being discretionary, the Court can direct for compensation without going into the question whether the person concerned was negligent or not.
20. In view of the matter, it is appropriate to direct the first respondent to pay compensation of Rs. 1,00,000/- to the petitioner with interest at the rate of 8 per cent. per annum from the date on which the writ petition was entertained, i.e., 10-2-1993 till the date of realisation and accordingly, directed. This compensation would be in addition to the ex-gratia payment which the petitioners would be entitled to, as pointed out by the learned Government Advocate.
21. This Court would further direct the first respondent, as indicated above, to pass suitable orders on the recommendations sent by the Collector, the 2nd respondent herein, on the basis of the enquiry report submitted by the P. A. to the Collector after finishing the enquiry under Section 145, Cr.P.C. and to take suitable action against the officials concerned on the basis of the said report and recommendations within one month from the date of receipt of the order.
22. With these observations, the writ petition is allowed. No costs.