Madras High Court
K.Veeraraghavan vs The Secretary To Government on 14 May, 2014
Author: M.Venugopal
Bench: M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:14.05.2014 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.35052 of 2012 K.Veeraraghavan ... Petitioner Vs. 1.The Secretary to Government, School Education Department, Secretariat, Chennai 600 009. 2.The Principal Secretary to Government, Revenue (Disaster Management) Department, Secretariat, Chennai 600 009. 3.The District Collector, Kancheepuram District. 4.The Director of School Education, College Road, Chennai 600 006. 5.The District Elementary Education Officer, Kancheepuram. 6.The Assistant Elementary Education Officer, Kattangulathur. 7.The Head Master, Government Middle School, Karunilam Village, Chengalpattu Taluk, Kancheepuram District 603 204. 8.The Panchayat President, Karunilam Village, Chengalpattu Taluk, Kancheepuram District 603 204. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the Respondents to grant compensation of Rs.5,00,000/- for the death of the Petitioner's innocent son, which is caused due to the breach of duty, negligence and wrongful act of the officials of the Government. For Petitioner : Mr.R.Murali For Respondents 1 to 7 : Mr.S.Navaneethan Additional Government Pleader For 8th Respondent : Served No appearance ORDER
The Petitioner has preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents to grant compensation of Rs.5,00,000/- for the death of his innocent son, which was caused due to the breach of duty, negligence and wrongful act of the officials of the Government.
2.The Resume of Facts:
(i)The Petitioner hails from a poor family background and he has wife and three children. He is working as an agriculture labour for daily wages in and around his village. His only son V.Prasanth, 8 years was studying in 3rd standard at Government Middle School, administered by the 7th Respondent.
(ii)His only son V.Prasanth went to school on 25.03.2009 and had not returned home till evening 5.00 p.m. Therefore, he and other villagers went in search of his missing child and enquired in the school and they were informed by the teachers that they were unaware of his whereabouts. On enquiry with a students, they informed that his son and his friends were available in the class till 12 p.m. and later on, they were not seen. They found the bag of his son inside the class room, with trembled mind and anxiety, they started searching in and around the school, we found the trouser of his son near a pond which is 25 feet away from the school and approximately 22 feet in depth. After that, with suspicion that his son might have slipped inside the pond, they started to search inside the pond where they found the dead body of his son and friend of his son, Master Vignesh. On enquiry, he was told that the class teacher of his son was absent for the day and an in-charge was appointed to take care of the students, the in-charge teacher was also not present in the class and not taking the attendance for the day thus exhibiting her negligence and caused breach of duty.
(iii)The Headmaster of the school without the approval from the higher authorities had arranged a Science Exhibition in the school wherein the students of the different classes are allowed to visit the Exhibition. The teachers of different classes assembled in the Exhibition Hall and got busy in arrangements to commence the Exhibition and failed to attend their duty to take charge of the students in the class rooms, thus attracting their negligence and show causing their breach of duty.
(iv)The 6th Respondent/Assistant Elementary Education Officer, Kattangulathur, after 'Enquiry' about the incident of Petitioner's son's death, had initiated disciplinary proceedings against the said in-charge teacher, from the media report he came to know that the 7th Respondent and two teachers were suspended during that period, which undoubtedly admits that the death of Petitioner's son and his friend were caused due to gross negligence and wrongful act of the school administration. The school management had not fulfilled the basic requirements of the students like Drinking Water, Toilet facilities, Erection of Compound Walls etc. due to non-fulfilment of basic amenities, students are constrained to go outside the school to attend their natural calls, even during the school hours. Like that his son went out of school during working hours of the school to attend his natural calls and while washing the same, he fell down into the pond and these facts were disclosed by his friends.
(v)After the accident, the Village Education Committee conducted a special meeting on 30.03.2009 in the presence of Assistant Elementary Education Officer, Additional Assistant Elementary Officer, Kattankulattur and others. In the said meeting, the Committee passed several resolutions that through the Director of School steps will be taken to construct a Compound Wall, to provide Toilet, the Commissioner would be approached, even during interval students would not be allowed to go outside the school, steps would be taken to get 'Financial Assistance' from the Government for the parents of the victim children and Departmental Proceedings would be initiated against the Headmaster and teachers, after conducting proper enquiry. It clearly reveals the reluctant actions of the employees in the responsibility of maintaining the students in a secured way.
(vi)The then Panchayat President for his personal benefits had illegally exercised his powers for digging the pond when it was dry for the sale of the soil using JCB and lorry's which increased the depth of the pond from 10 feet deep to 22 feet and thus becomes responsible for breach of duty and contributory negligence for the death of his son.
(vii)The Petitioner made a representation to the Government claiming compensation for the death of his son caused due to gross negligence and breach of duty of the school management and of the contributory negligence of the then Panchayat President, for which, the Revenue (Disaster Management) 1 (1) Department, vide V.O.(1D) No.247, dated 12.08.2011, had granted financial assistance of Rs.5000/- through District Collector vide proceedings dated 04.10.2011 after a period of two years. Due to inadequacy of the compensation (the said financial assistance could not be treated as compensation), he approached the Village School Committee to get a compensation, which passed a resolution on 30.03.2009 to take steps for the same. However, inspite of repeated efforts to various authorities, they are not ready to heed his case. Therefore, he had filed the present Writ Petition.
3.The Counter Averments of the 5th Respondent (Counter filed for himself and on behalf of other Respondents):
(i)The Petitioner's son had not returned to home till came on 25.03.2009. It was totally false to allege that Bag found from the class room. The school starts from 9.30 a.m. to 4.10 p.m. on that day the school was arranged Science Exhibition, where the number of students came from others schools. The incident had not occurred during the school hours. Hence, there was no negligence, wrongful act of the official or breach of duty on the part of the Government Official. From the Post-mortem report, it was revealed that the Petitioner's son died of drowning (death would have occurred 18-20 hour's prior to P.M.). The Petitioner had approached this Court only on 20.09.2012 and in fact, he had not approached this Court in time.
(ii)It was true that the class teacher was absent on that day, but it was false to allege that in-charge of teacher was not present in the class and not taken attendance for that day. The Respondents had not appointed other teacher namely to take care of the students and taken attendance of the day. The in-charge of the teacher also taken the students at every mall of the Science Exhibition and the attendance register also extracted thereunder.
(iii)In order to built extracurricular activities, the Headmaster arranged Science Exhibition on the approval granted from the higher authorities and the other school students also visited the school campus during the school hours. The pond was located outside from the school compound. The incident had not occurred during the school hours. The same was revealed from the Post-mortem report. The school is fenced with the compound wall and all the basic amenities were provided.
(iv)On the complaint received by the 5th Respondent/The District Elementary Educational Officer, Kancheepuram, the authorities had enquired in detail and found no negligence on his part and the same was revoked on 04.08.2009. The financial assistance was issued from the Chief Minister Relief Fund, vide G.O.No.247 dated 12.08.2011 at the rate of Rs.5,000/- to the Petitioner and not damages or compensation. Hence, the Petitioner claiming compensation of Rs.5,00,000/- is highly imaginary, which is not sustainable in law.
(v)No negligence and wrongful act were committed by the Respondents. The incident occurred due to drowned in the pond which was situated outside the school campus. The Respondents had not engaged any private persons or third parties to deep the pond. Usually the school authorities were taking preventive measures by deputing a school teacher during school hours from preventing the students to go near the pond up to 5.00 p.m. The Petitioner's Contentions:
4.The Learned Counsel for the Petitioner submits that the Respondents failed to safeguard the life of the child V.Prasanth, which is very evident as in Res Ipsa Loquitur. Further, it is contended on behalf of the Petitioner that the incident took place during the school hours and appropriate attention was not given to the students, unauthorised Science Exhibition was conducted, assembly of teachers in the Science Exhibition ignoring the governance of the students, failing to register the attendance of students thus proving the negligence and breach of duty primarily fixed by law on the part of the school management.
5.The Learned Counsel for the Petitioner projects an argument that the 6th Respondent/Assistant Elementary Education Officer, Kattangulathur, after enquiry of the incident, had initiated the Disciplinary Proceedings against the teacher who was in-charge of 3rd standard on the fateful day which showed negligence and breach of duty which were identified and accepted by the Department itself.
6.The Learned Counsel for the Petitioner brings it to the notice of this Court that the Respondents failed to provide the basic amenities like 'Drinking Water, Toilet facilities' within the school which compelled the children to go in search for other alternatives for their basic requirements. Also, it is contended that the authorities neither constructed 'a Compound Wall' in the boundaries of the school, (which was a mandatory requirement to start a private school) nor took care of the students, who left the school during school working hours. In fact, these would prove 'Negligence' and 'Breach of Duty' not only of 'Teachers' but also the 'Authorities' of the Education Department.
7.On behalf of the Petitioner, it is pleaded that the 8th Respondent/The Panchayat President, Karunilam Village, Chengalpattu Taluk unlawfully permitted the third parties to deepen the pond for his own personal benefits exercising his powers and made the pond so dangerous for public usage, which the innocent school children were unaware and used the pond for their convenience thus proving the negligence and breach of duty, arising out of Tortious liability.
8.Further, on behalf of the Petitioner, it is brought to the notice of this Court that the order issued by the Revenue (Disaster Management) 1 (1) Department vide G.O.(1D) No.247 dated 12.08.2011 had granted financial assistance of Rs.5,000/- and it had not considered 'Negligence' and 'Breach of Duty' of the officials, which caused the damages to the Petitioner. Moreover, it reflected lethargic and reluctant administration of the Government in determining the amount as compensation.
Submissions on the side of Respondents 1 to 7:
9.The Learned Additional Government Pleader for Respondents 1 to 7 submits that the school starts from 9.30 a.m. to 4.10 p.m. and on that day, the school arranged Science Exhibition where number of students from other schools took part and when the incident had not taken place during the school hours and therefore, there was no negligence, wrongful act of the official or breach of duty on the part of Government Official.
10.The Learned Additional Government Pleader for Respondents 1 to 7 contends that the Respondents appointed other teacher to take care of the students and attendance was taken on that day and the in-charge teacher also took the students at every mall of the Science Exhibition and therefore, it was false to allege on the part of the Petitioner that in-charge of teacher was not present in the class and not took attendance for that day.
11.The Learned Additional Government Pleader for Respondents 1 to 7 takes a stand that there was no negligence on the part of Respondents and further the Respondents had not committed any wrongful act. Moreover, the incident occurred due to drowning in the pond, which was situated out side the school campus.
12.According to the Learned Additional Government Pleader for Respondents 1 to 7, the Headmaster of the School was present at 6.30 p.m. and the Headmaster would leave the school only after ascertaining that all the students had left the school.
13.To lend support to the contention that the Petitioner's son V.Prasanth died due to 'Breach of Duty', 'Negligence' and 'Carelessness of the Officials of the Government', the Learned Counsel for the Petitioner relies on the order of this Court dated 06.02.2014, in W.P.No.37980 of 2003 (between A.Pavadai V. The Revenue Divisional Officer, Kallakurichi, Villupuram and 6 others), wherein, in paragraph 41, a reference is made to the Order dated 25.01.2012 in W.P.No.42181 of 2006, [Minor Muthulakshmi v. Government of Tamil Nadu] whereunder, in paragraph Nos.17 and 18, it is held as under:
17.The learned counsel for the petitioner rightly placed reliance on the decision of the Hon'ble Apex Court in Grewal, M.S. & another v. Deep Chand Sood & others reported in 2002-1-L.W.491. That was a case wherein the judgment of the Himachal Pradesh High Court was upheld by the Hon'ble Apex Court, granting the relief of compensation on the ground of death of the students while they were taken to the playground by the school authorities. The Hon'ble Apex Court has held that Article 226 can very well be invoked for granting the relief of compensation depending on the circumstances of each case, particularly, on the ground of negligence to take care of the students by the school authorities. It is worthwhile to refer certain portions of the decision rendered by the Hon'ble Apex Court as hereunder: Be it placed on record that in assessing damages, all relevant materials should and ought always be placed before the Court so as to enable the Court to come to a conclusion in the matter of affectation of pecuniary benefit by reason of the unfortunate death. Though mathematical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefor. It is not a fanciful item of compensation but it is on legitimate expectation of loss of pecuniary benefits. Negligence in common parlance means and implies failure to exercise due care expected for 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 is prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word 'inadvertence' stands and is used as a synonym to negligence, but in effect negligence represents a state of mind which, however, is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expression whereas inadvertence is a milder form of negligence, 'negligence' by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. 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 are a much higher level than adults: Children need much stricter care. (emphasis supplied by this Court) Incidentally, negligence is an independent Tort and has its own strict elements specially in the matter of children the liability is thus absolute vis-a-vis the children.
The Hon'ble Apex Court in the very same decision, observed as hereunder:
This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such, we need not detain ourselves on that score excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. Law Court will lost its efficacy if it cannot possibly respond to the need of the society technicalities there might be many, but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice. The principles laid down by the Hon'ble Apex Court in the decision cited supra are squarely applicable to the facts of the instant case as in this case also, the minor girl of the petitioner was aged about 12 years at the time of occurrence and she said to have lost her right hand, as the same was amputated due to the injuries sustained by her and she suffered untold hardship, mental agony and torture. It is also relevant to note that the minor girl is also now put into lifelong handicap and she would be facing difficulties in respect of marriage prospects as well as in respect of employment opportunities. At the risk of repetition it is to be reiterated that in the case on hand, the occurrence said to have taken place during school hours as that of the facts of the case in the decision rendered by the Hon'ble Apex Court (cited supra). Therefore, this Court has no hesitation to hold that the petitioner is entitled to seek the relief of compensation from the educational authorities, namely, official respondents as well as the school authorities, namely, the fifth respondent herein, as the minor girl of the petitioner suffered amputation of her right hand only due to the negligence and carelessness of the school authorities as well as the noon meal organizers and assistants.
18. Now coming to the quantum of compensation, it is vehemently contended by Mr.A.Muthukumar, learned counsel for the fifth respondent, that this Court cannot fix the quantum regarding damages and it is for the petitioner to approach only the Civil Court. I am unable to countenance such contention for the simple reason that the occurrence, admittedly, said to have taken place within the school hours and it is the utmost and paramount duty of the school authorities as well as the noon meal organizers to take care of the children during the school hours and the Hon'ble Apex Court in the decision cited supra has held that in such a situation, Law Court will lose its efficacy if it cannot possibly respond to the need of the society and the technicalities there might be many, but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice. This Court need not go deep in to the matter of assessing the damages, but can very well come to the conclusion and arrive at the quantum on the basis of the admitted facts and the prima facie materials placed before it.
14.The Learned Counsel for the Petitioner cites the decision of this Court in D.Matsa Gandhi V. Tamil Nadu Slum Clearance Board Rep. By its Chairman, Madras 5, 2000 (III) CTC 24, wherein it is observed that 'When negligence per se is visible and if infringement of Article 21 such relief could be granted under Article 226 of the Constitution of India and also that, a payment of Rs.75,000/- towards compensation with interest at 12% per annum from the date of order was directed to be paid'.
15.Apart from the above decisions, the Learned Counsel for the Petitioner cites the following decisions:
(i)In the decision of the Hon'ble Supreme Court in Smt.Kumari V. State of Tamil Nadu and others, AIR 1992 Supreme Court 2069, wherein in paragraph 2 and 3, it is observed and held as follows:
2.Six years old son of the appellant died as a result of falling in a ten feet deep sewerage tank in the city of Madras. The tank was not covered with a lid and was left open. The appellant filed a petition under Article 226 of the Constitution of India before the Madras High Court seeking a writ in the nature of mandamus directing the respondents to pay Rs. 50,000/- as compensation to the appellant. The High Court dismissed the writ petition on the ground that in writ jurisdiction it was not possible to determine as to which of the respondents was negligent in leaving the sewerage tank uncovered.
3.In the facts and circumstances of this case we set aside the High Court judgment and direct that respondent No. 1, the State of Tamil Nadu shall pay to the appellant a sum of Rs. 50,000/- (Rupees fifty thousand) with interest at 12% per annum from January 1, 1990 till the date of payment. The amount shall be paid within six weeks from today. It will be open to the State of Tamil Nadu to take appropriate proceedings to claim the said amount or any part thereof from any of the respondents or any other authority which might be responsible for keeping the sewerage tank open. The claim, if made, will be decided in accordance with law. The appeal is allowed in the above terms. There will be no order as to costs.
(ii)In the decision C.Chinnathambi and others V. The State of Tamil Nadu rep. By its Secretary to Government Education, Science and Technology Department, Fort St. George Madras 600 009 and 4 others, 2001 Writ L.R. 174 at page 175, it is held as follows:
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. 5000/- 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. 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.
(iii)In the decision of this Court in Smt.R.Dhanalakshmi V. Government of Tamil Nadu rep. By its Chief Secretary Fort St. George, Madras 9 and 4 others, 2004 Writ L.R. 346 at special page 347, it is observed as follows:
On the above facts, it must be first concluded that the deceased Rajmohan died while he was in police custody and that too, due to harassment at the hands of the Sub Inspector of Police, Karur Police Station. In the matter of custodial death, the Supreme Court in more than one case has upheld the power of this Court under Article 226 of the Constitution of India to award just and reasonable compensation.
The deceased was 29 years age on the date when he died in police custody. This fact has not been disputed by the respondents in the counter affidavit. Further, the fact that the deceased left at the time of his death, the petitioner, wife of the deceased aged about 27 years two minor sons by name Gowthaman aged 7 years and Saravanan aged 5 years apart from his mother Anjalaiammal aged 55 years, has not been disputed.
The Multiplier method adopted in the case of Motor Accidents can be adopted for determining the just and reasonable compensation in this case. If we adopt multiplier of 18, then the amount comes to Rs.12,96,000/- 1/3 amount viz., Rs.4,32,000/- has to be deducted towards the personal expenses of the deceased. Then, the compensation comes to Rs.8,66,000/-. Rs.2,000/- can be fixed towards funeral expenses and a sum of Rs.32,000/- can be fixed towards loss of consortium and love and affection. Hence, the petitioner is entitled to the total compensation of Rs.9 lakhs.
(iv)In the decision The Chief Secretary to the Government of Tamil Nadu, Fort St. George, Madras and 3 others V. R.Selvam, 2004 Writ L.R. 611, at page 612, it is held as follows:
It is elementary that when compared to the Hostels meant for boys, the girls' Hostel should have more security arrangement and which should include providing G.I Grills on the verandah, so that no one can gain entry easily once the main entrance is locked. Posting a watchman to a hostel that too for a girls' Hostel cannot be accepted as providing proper security arrangement and this Court has no hesitation to come to the conclusion that there was negligence on the part of the hostel authorities.
It is the bounden duty of the hostel authorities to take every reasonable, possible and necessary step in providing security arrangements. They have to be more careful and vigilant when they take the responsibilities of providing boarding and lodging for the girl students. In fact, this Court is surprised with the stand taken by the appellants in the counter affidavit filed in the Writ Petition to the effect that they are not responsible since no separate amount was collected under the head 'for security arrangements'. Deceased Suchithra was a bright student and got her entry in the Medical College in merit quota. At the relevant time, she was in the final year. She was the only daughter of her parents. The respondent comes from a middle class and her husband was, at the relevant time, working in the Tamil Nadu Electricity Board. In these circumstances, it cannot be said that the award of Rs.5,00,000/- towards compensation by the learned single Judge is on the higher side.
(v)In the decision Lakshmana Naidu (deceased) and another v. The State of Tamil Nadu, rep. By the Secretary to Government Department of Home Affairs, Fort St. George, Chennai 600 009 and another, 2006 (4) CTC 225, it is held that 'Relating to the death due to torture and burning of deceased by forest officials, the Court considering the poor circumstances viz., that the deceased were the breadwinners of the family directed the 1st Respondent to pay compensation and recover the same from salary or retirement benefits payable to accused'.
(vi)In the decision Union of India, rep. By the Chief Secretary, Government of Pondicherry and others V. Bertine Jeanne Marie and others, (2011) 2 MLJ 194 at special page 195, it is laid down as follows:
I.The State Authorities can be held liable to pay compensation for their act of negligence in the faculty construction of the bus stop leading to its collapse resulting in death of citizens unless it is proved that there is no breach of duty to take care.
II.Newspaper reports are inadmissible in evidence unless the maker of the news is examined and facts are proved.
(vii)In the decision Duraisamy V. The Executive Engineer, Operation & Maintenance, Thuriayur Post, Trichy District and 3 others, 2012 (2) CWC 401 at special page 413 and 414, in paragraph Nos.31 and 32, it is observed and held as follows:
31.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. The aggrieved must prove that in a given set of circumstances, there is a duty to take care and that the board officials breached such duty. In order to succeed in an action for damages for breach, the aggrieved must establish breach of statutory duty which on the construction of the statute. It is well settled that those who claim negligence have to prove on the probabilities, as to whether breach or negligence, has caused or materially contributed to the damage suffered by the claimant. The onus of causal connection between the breach and the injury has to be proved and in the instant case, the petitioner has failed to prove causal connection.
32. Insofar as strict liability is concerned, it is the settled position, that the rule and the 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 consequences of its escape. The said rule on the facts and circumstances in my humble opinion, cannot be made applicable to electricity board, who can neither be attributed with negligence nor failure to discharge their statutory duty in not preventing an agriculturist, from converting his ordinary agricultural fence into a electrical fence, during night time. Before fastening liability, there must be a reasonable and probable cause whereby, an ordinary, prudent and cautious man would arrive at the conclusion of negligence or failure to exercise the statutory duties. If want of reasonable care on the part of the board officials is relied upon, that element has to be proved by the aggrieved and if such facts exist and constitute a reasonable and probable cause, the burden is on the claimant to prove the same, for claiming damages.
(viii)In the decision S.Manjula and 3 others V. The Chief Secretary, Govt. of Tamil Nadu, Secretariat, Fort St. George, Chennai and 3 others, 2012 (2) CWC 552, it is observed that 'carelessness, recklessness and negligence on part of the Electricity Board officials for not taken safety measure as provided under Rule 91 of the Indian Electricity Rules, 1956 resulted in death of farmer and bull and awarded compensation of Rs.3,00,000/- to the wife and minor son of deceased and compensation of Rs.1,00,000/- each awarded to parents with interest at 9% p.a. from the date of representation till date of disbursement'.
(ix)In the decision V.Subramaniam V. 1.The State of Tamil Nadu, rep. By its Secretary to Government, Department of Education, Fort St. George, Chennai and another, 2009 (1) CTC 434, at special page 441, wherein, in paragraph 15, references are made, which run as follows:
12.It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State, 1969 ACJ 28 wherein it has been observed that:
In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.
13.In State of Rajasthan V. Vidhyawati, 1962 Supp (2) SCR 989: AIR 1962 SC 933 it has been held that: (SCR p. 1007) Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own Courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Further, in the aforesaid decision, at page 435, it is laid down as follows:
From the counter affidavit filed by the second respondent it is clear that the death of the petitioner's son is not due to the negligence of the Headmaster of the School. The said statement also establishes a fact of negligence on the part of the subordinate officials of the respondents 1 and 2 in not maintaining the school buildings and its surrounding areas, particularly compound wall in a proper manner.
On the basis of my above findings as well as the decisions referred above, it is evident that the respondents 1 and 2 are vicariously liable to pay compensation for the death of petitioner's son, aged about 10 years.
(x)In the decision M.S.Grewal and another V. Deep Chand Sood and others, 2002-1-L.W.491 at page 493 & 494, it is held as follows:
Be it placed on record that in assessing damages, all relevant materials should and ought always be placed before the court so as to enable the Court to come to a conclusion in the matter of affectation of pecuniary benefit by reason of the unfortunate death. Though mathematical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefor. It is not a fanciful item of compensation but it is on legitimate expectation of loss of pecuniary benefits.
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.
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. Incidentally, negligence is an independent tort and has its own strict elements specially in the matter of children the liability is thus absolute vis-`-vis the children. Also, in the aforesaid decision, it is held that 'The liability of the school cannot be shifted, the teachers being within the course of the employment of the school at the time of tragedy'.
Weighing up the Pros and Cons:
16.The Writ Petitioner had lodged a complaint before the Assistant Sub Inspector of D.6 Police Station, Maraimalai Nagar, Kancheepuram District, among other things, stating that on 25.03.2009 at about 9'0 clock in the morning, his son Prasanth as he went to school and around 2.00 p.m. in the afternoon co-students came to their houses, but his son had not returned to the house and in several places of the village, he searched for him and subsequently, during the evening when he went to school for making an enquiry and near the school tank bed, he saw the trouser and when he raised an alarm, the village people came running and they made a search in the pond after drowning themselves. Further, approximately after 1 hour search at about 6'0 clock in the evening, his son and one Vignesh aged 7, son of Sreenivasan studying in the same school at 2nd Standard were found dead in a posture embracing each other.
17.Also, in the complaint, it was stated that because of the school Management's carelessness, the incident had took place and therefore, he prayed for taking action against the school management. Based on the complaint of the Writ Petitioner, the S.I. of D.6 Police Station registered an F.I.R.No.220 of 2005 under Section 174 Cr.P.C. In the final report dated 31.03.2009 of the Inspector of Police, D.6 M.M. Nagar Police Station, Kancheepuram District (addressed to Tahsildar of Chengalpattu), it was, inter alia, stated that the school Headmaster and 2nd and 3rd class teachers viz., 2 persons were suspended in regard to the drowning incident of two children. That apart, it was also made mention of that on the day of occurrence, Science Exhibition was conducted and when the school was over at about 2'0 clock in the afternoon, the aforesaid children went to the tank bed for answering the nature's call and when they went to the tank for washing, they slept and fell down into the tank.
18.Apart from the above, the Inspector of Police, in his final report, had added that an urgent meeting was called for in the presence of Veeraraghavan and Sreenivasan and for the said school, the Resolutions, relating to a Compound Wall and a Toilet, a safety Name Board for the tank and for the children the noon meal should be given properly, were passed. In the Post-mortem Reports of Prasanth Vignesh, the Doctor, in their individual certificates, had stated that 'the deceased would appear to have died of Asphyxia due to drowning'. Accordingly, the action dropped and final report was filed.
19.It comes to be known that in connection with the death of 2nd and 3rd Class, two children viz., S.Vignesh and V.Prasanth, the District Elementary Education Officer, Kancheepuram on 29.04.2009 conducted an enquiry and came to the conclusion that because of the irresponsible attitude of the Headmaster and class teachers and also since they had not evinced interest in the welfare of the children, the incident had occurred and accordingly, by means of the proceedings of the 6th Respondent/District Elementary Education Officer, Kancheepuram dated 14.05.2009, the 7th Respondent/Headmaster, Government Middle School, Karunilam Village and class teacher Tmt.Pushpalatha were temporarily suspended.
20.In this connection, it is brought to the notice of this Court that the Headmaster, Chandrasekaran was suspended for 83 days [from 14.05.2009 to 05.08.2009] and the Assistant Teacher S.Pushpalatha was temporarily suspended for 68 days [from 14.05.2009 to 22.07.2009]. In fact, in the said proceedings, the 5th Respondent came to a definite conclusion that as per Post-mortem certificate, the incident had occurred during school hours on 25.03.2009 and to monitor the students who were not involved in the Science Exception one teacher should have been appointed but that was not done and all the teachers were sent for Science exception and this act of the Headmaster exhibits that he failed in his duty. Likewise, the class teacher Tmt.Pushpalatha should have monitored her students who had not taken part in the Science Exhibition, but she failed in her duty. That apart, the temporary suspension period of the Headmaster as well as the teacher were ordered to be regularised as eligible leave other than E.L. [based on medical certificate].
21.It transpires that on 06.08.2009, the temporary suspension of the Headmaster viz., Chandrasekaran was revoked and his next annual salary increment without cumulative effect was ordered to be stopped as per proceedings of the 5th Respondent/District Elementary Education Officer dated 24.09.2009 (signed on 30.09.2009). Likewise, in respect of Assistant Teacher S.Pushpalatha, the suspension order was revoked and her next annual salary increment without cumulative effect was ordered to be stopped. From 06.08.2009 the said Headmaster Chandrasekaran was transferred as Headmaster of a Keerapakkam Panchayat Union Middle School and Tmt.Pushpalatha was transferred as Primary Teacher to the Panchayat Union Middle School, Mannivakkam.
22.It is brought to the notice of this Court that in 2010 for the Karunilam School, the Compound Wall was constructed and the school is running safely. Further, no permission is granted to others, except the students and the parents to meet them and to take them back. Added further, during school hours, the students are monitored and after of evening conclusion prayer, the students are sent out with the help of teachers. The tank near the school is maintained by Rural Development Department after renovation and in safe position. Presently, the school was upgraded to the level of high school and with good security, the Management is functioning.
23.The Learned Counsel for the Petitioner refers to the Report of the Hon'ble Justice K.Sampath, (Retd. Judge of the Madras High Court) appointed by the Tamil Nadu State Government, as Commissioner of Enquiry, under the Commissions of Inquiry Act, 1952 [to inquire into the cause and circumstances leading to the fire accident that occurred in the premises of 'Sri Krishna Aided Primary School' at Kasiraman Street, Kumbakonam, Thanjavur District, on 16.07.2004] wherein in Chapter IV under the caption 'Status-Observations-Tamil Nadu Scenario' at page 311 at special page 314, whereunder in Clause 4.14, it is stated as follows:
4.14.Compounds Many management/government schools need compounds on all four sides. Compound walls are particularly needed where the schools abut public highway, waterways, ponds etc. They are also needed to prevent encroachment and unauthorised occupation by outsiders. In many places, the team found school space being used as passage, to their homes, by adjacent dwellers.
24.Also, in the said Report, at page 317, in Clause 4.20 under the Head 'Toilets', it is mentioned as follows:
In many schools toilet facilities were poor. The toilets even if they were there, were not clean and functional- no running water was provided.
25.Further, in Chapter V of the said Report, at page 320 & 321, one of the Top Ten Commandments mentioned is that '10.Toilets enough in number and with adequate water supply'. In page 321, under Clause '5.3. School Building (Future) Location Site', the 9th Commandment is mentioned as follows:
9.Compound wall all-round the boundary of the site shall be preferable. In the case of fencing, barbed wire fencing shall avoided.
26.Also, at page 326 of the Report in Clause 5.11 Play Space Safety, the 5th Commandment is that 'Water bodies viz., ponds, stagnant water should be fenced'. At page 327, in Clause 5.12.'Amenities', the 3rd Commandment is that '3.Enough urinals and toilets with copious water supply should be provided'. In page 329 of the Report, in Clause 5.15.Movement of Pupils and Teachers Safety and Discipline', the 6th Commandment is that 'Children should not leave the school premises during working hours'.
27.In the aforesaid Report, in Chapter VI under the caption 'Infrastructure' at page 342, in Clause '6.1.3.Compound Walls', it is mentioned as follows:
6.1.3.1 Schools situated on main roads where buses and other public transport/heavy vehicles ply should necessarily have a compound wall with a gate and the roads should have speed breakers at strategic points, in these days of mad and reckless driving. Road rules should be part of the curriculum. Equally where the schools abut waterways ponds lakes etc., compound walls are a must. They are also needed to arrest trespass.
6.1.3.2.There must be compound walls on all four sides. Minimum distance between the compound wall and the school building should be 100 feet.
28.Also, in Clause 6.1.4., it is mentioned as 'Wells and Ponds close to the schools should be fenced'. At page 346 of the Report, in Clause 6.2 under the caption 'Toilets', it is mentioned as follows:
6.2.1 Municipal Regulation stipulates 1 urinal for every 20 students and 1 toilet for every 40 students.
6.2.2 It is disheartening to note that most of the schools in the rural areas do not have toilets at all. The only toilet that may be found would be under lock and key for the use of the teachers. As such, students are compelled to go to the toilet in the open.
29.Moreover, in the said Report, at page 350, it is mentioned as follows:
6.7.8. Children should be trained to sit in an orderly manner to have their lunch and trained not to spill food or water.
6.7.9.Snack-time and lunch-time should be supervised by 2 teachers by turn.
6.7.10. Children should not be allowed to move outside the school premises on their own during school hours.
6.7.11.No class room should be left without a teacher during class hour. Students should be instructed to inform the school office of the teacher's absence.
6.7.12. Teachers should be the last to leave the class after the children leave in an orderly fashion. A Scenario of Case Laws:
30.At this stage, in furtherance of substantial cause of Justice, this Court aptly cites the following decisions:
(a)In the decision Dharanidhar Panda and another v. State of Orissa and others, AIR 2005 Orissa 36 at page 38, in paragraph 6 & 7, it is observed and held as follows:
6.In the facts of this case it is on account of the collapse of the pillar and portion of the boundary wall of the school that the two children died. Thus, their death took place due to the breach of the duty of the school authorities to ensure that the school premises in which the children play were safe in all respects. The claim for compensation for death of the two children cannot be resisted on the ground that the children were standing and climbing on the grill-gate and were swinging and the pillar of the gate along with the portion of the wall may have collapsed due to pressure because children are prone to play in this manner and it was the duty of the school authorities to ensure that the pillars of the gate and the walls are strong enough to take such pressure.
7. The next question is whether the State of Orissa can be held liable for the compensation for the death of the children. In the case of M. S. Grewal (supra) the Supreme Court held that the two teachers for whose neglect the 14 children died in the drowning incident in the river Beas 'had escorted these students in course of their employment and since on account of their breach of duty in course of employment the fourteen children died, their employer was vicariously liable for compensation. In this case, the death of the two children occurred due to the collapse of the pillar and a portion of the boundary wall of the school due to the breach of duty of the school authorities. In the counter-affidavit of the District Inspector of Schools it is, however, stated that it is the Village Education Committee which is responsible for the maintenance of the school building. Since the responsibility of maintenance of the school building has been entrusted to the Village Education Committee by the State Government, the Village Education Committee acts as an agent of the State Government. The State Government is thus vicariously liable for the breach of duties of Village Education Committee to take care of the children by ensuring that the school campus is safe in all respects for the children.
(b)In the decision Minor Muthulakshmi v. Government of Tamil Nadu and others, AIR 2012 Madras 189, it is, inter alia observed that 'Neither school authorities, nor noon meal organizers had taken care of school children and they failed in their duty of not permitting the children to go outside the school and in regard to the injuries resulted in amputation of right hand of girl child, the school authorities were directed to pay compensation of Rs.3 lakhs with 12% simple interest.'
(c)In the decision Shripat Shankar Panchal V. Municipal Corporation for Greater Bombay, AIR 2008 (NOC) 1636 (Bom.), it is observed that 'Relating to the death of boy aged 11 years due to falling in uncovered man hole and drowning in water, the negligence on behalf of the Municipal Corporation was established and it was held that the death occurred due to negligence of the Municipal Corporation and taking into consideration future income of non-earning boy like deceased, a sum of Rs.15,000/- per annum with multiplier of 15 was awarded as compensation.'
(d)In the decision Marakkar and another V. State of Kerala and another, AIR 2010 (NOC) 562 (Kerala), it is held that 'The Public Works Department was obliged to maintain road and that the principle of res ipsa loquitur applies and that the burden was on the PWD to say that they had taken precaution and care'. Further, it was held that 'only three factors need to be established by claimant for assessing compensation in case of death, i.e. age of the deceased; income of the deceased; number of dependants'.
(e)In the decision T.C.Balakrishnan Menon and others V. T.R. Subramanian and another, AIR 1968 Kerala 151, at page 152, it is held as follows:
Where a minnal gundu falls in the midst of a crowd and bursts causing injury to an onlooker, negligence on the part of the person who is responsible for making and firing it must be presumed. Even if the negligence is not established, the principle that the thing itself speaks must apply because minnal gundus are normally to fly sufficiently high into the sky perpendicularly before they explode and not to fly at a tangent, fall amidst of the crowd and burst.
31.It is to be pointed out that the term 'Negligence' is a '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 as per decision Blyth V. Birmingham Waterworks Company, (1856) 11 Ex 781, 784.
32.As a matter of fact, the words 'Actionable Negligence' consists in the neglect of the use of ordinary care of 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, as per decision Heaven V. Pender, (1883) 11 QBD 503.
33.Indeed, in 'Negligence', there must be 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 duty. Further, there must be a breach of the said duty; and also a consequential damage. Only when damage occurs, there is a cause of action for Negligence. Damage is an essential ingredient of this kind of Tort, as per decision Cartlege V. E.Jopling & Sons Limited, (1963) 1 All ER 341. Moreover, cause of action for 'Negligence' accrues when damage i.e. Real damage, as distinct from purely minimal damage is suffered as per decision Edehomo V. Edehomo, [2011] 1 WLR 2217.
34.The term 'Negligence' has three meanings: (a) a State of mind, in which opposed to intention; (b)Careless Conduct; and (c) the Breach of Duty to take care that is imposed by either Common or Statute law.
35.In the decision of the Hon'ble Supreme Court in Jacob Mathew V. State of Punjab and another, (2005) 6 Supreme Court Cases 1, the Hon'ble Supreme Court dealt with the difference between civil and criminal Negligence and observed that for 'Negligence' to amount an offence, the element of 'Mens rea' must be shown to exist. For an act to amount to criminal Negligence, the degree of Negligence should be much higher viz., gross or of a very high degree.'
36.The existence of a 'Duty Situation' or a 'Duty to Take Care' is thus essential before a person can be held liable in Negligence, as per decision in Jeet Kumari Poddar V. Chittagang Engineering and Electrical Supply Co. Ltd., (1946) ILR 2 Cal 433. A teacher in a school is expected to show such care towards a child under his charge as would be exercised by a reasonable careful parent, that duty of care varies from situation to situation. In fact, law concerns itself with carelessness only when there is a duty to take care and where failure in the duty has caused damage. Under such circumstances, carelessness assumes the legal quality of Negligence and entails the consequence in law of Negligence. In strict sense, 'Negligence' means more than heedless or careless conduct whether in omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom, duty was owing as per observation of PER LORD WRIGHT in Lochgelly Iron and Coal Company V. Mullan, (1934) AC 1, p. 25.
37.Indeed, the existence of duty is governed by a classic decision Donoghue V. Stevenson, 1932 AC 562, wherein Lord Atkin made the following pertinent observation:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplations as being so affected when I am directing my mind to the acts or omissions which are called in question.
38.The law of 'Negligence' is in fact the application of common morality and common sense to the activities of the common man. The burden of establishing Negligence is of Petitioner/Plaintiff. As a matter of fact, he must not only prove the factum of Respondent/Defendant's negligence and that of his own damage but ought to exhibit that the one was the effect of the other.
39.The defence of Volenti Non Fit Injuria is not applicable in an action based on a 'Breach of Statutory Duty'. It cannot be forgotten that if the trespassers are children, the duty of land owner is not to injure them intentionally or to put dangerous traps for them with a view to injure them. Even under the Occupier's Liability Act, 1957 in England, an Occupier must be prepared for children to be less careful than adults.
40.In the decision Williams V. GW Railway Company, 1874 LR 9 Ex. 157, the Defendant Company neglected to have gates and a watchman at a crossing as required by certain Acts and one day a child was lying on the rails with one foot severed from his body, it was held that the accident to the child was caused by Company's omission to fence.
41.In the decision Vithaldas V. Municial Commissioner of Bombay, (1902) 4 Bom. LR 914, the Defendant Municipality excavated a trench for a pipe drain in a public lane. The trench remained open for sometime and owing to a heavy fall of rain water collected in it and by percolation or saturation caused a considerable subsidence which resulted in a very heavy damage to the Plaintiffs houses close by the trench and it was held that the keeping of the drain open for a considerable time amounted to Negligence and the Defendant was liable.
42.In the decision U.P.Sharma V. Jabalpur Corporation and others, AIR 2010 (NOC) 919 (M.P.), a Mound of sand was lying on a street. The Plaintiff was passing that way on his motor cycle at night. He ran over the sand. His vehicle skidded and he suffered injuries. It was observed that the accident would not have arisen if the Municipality had done its duty in keeping the road without obstructions. The Municipal Corporation was held responsible to pay compensation to the victim for its Negligence.
43.While construing the term 'Compensation', in the decision State of Gujarat V. Shantilal, AIR 1969 SC 634, it is held as under:
That word 'compensation' means anything given to make things equivalent, a thing given to or to make amends for loss, recompense, remuneration or pay.
44.Also, in the Division Bench decision of the Mysore High Court in M.Ayyappan V. Moktar Singh, 1969 ACJ 439 (Mys), it is laid down as follows:
Thus, it is clear that the word 'compensation' is a more comprehensive term and the claim for compensation includes a claim for damages and hence, the petitioners could have put forward their suit claim before the Motor Accidents Claims Tribunal.
45.It is to be noted that the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant but would consider them to be sensible and fair', as per decision Salmon L.J. in 1968 1 All. E.R. 726. Further, the observation of Lord Morris, in the decision 1970 AC 1, it is observed that 'To compensate in money for pain and for physical consequences is invariably difficult by ... no other process can be devised than that of making a monetary assessment. Moreover, it is the primordial duty of a Court of Law to award as perfect a sum as is within its power and ambit.
46.In the decision of the Hon'ble Supreme Court in Oriental Insurance Company Limited V. Syed Ibrahim and others, (2007) 11 Supreme Court Cases 512 at page 515, wherein in paragraph 7, it is held as follows:
7.There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendour of stars, beyond the reach of monetary tape measure. The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are the claimants, relevant factor would be age of parents.
Also, in the aforesaid decision, at page 516, in paragraph 8, it is held as follows:
8. 11.... In case of the death of an infant, there may have been no actual pecuniary benefit derived by the parents during the child's life-time. But this will not necessarily bar the parents' claim and prospective loss will find a valid claim provided 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 Rly. V. Jenkins (1913) AC 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." (See Lata Wadhwa and Ors. v. State of Bihar and Ors. (2001 (8) SCC 197). Further, in the aforesaid decision, at page 516, in paragraph 10, it is observed as follows:
10.In cases of young children of tender age, in view of uncertainties abound, neither income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation.
47.It cannot be gainsaid that the award of monetary compensation certainly cannot compensate a valuable, precious loss of human life and in fact, the compensation/damages awarded to the family of deceased cannot renew a physical frame that has been battered and shattered.
48.In awarding Compensation, a Court of Law/Tribunal is to bear in mind a vital fact that the same cannot be a 'Bonanza' nor a source of profit. In fact, the measure of damages/compensation cannot be arrived at by an exact arithmetical calculations. It is true that the compensation awarded by a Court of Law in a given case should not be miserly or meagre or a pittance as the case may be. Little guess work, this way or that way is quite possible and permissible. However, the determination of compensation in a particular case is to be rational and not based on whims and fancies, arbitrariness, capriciousness etc.
49.One cannot ignore a vital fact that mere happening of an accident will afford prima facie evidence that it was result of want of 'Due care'; Res Ipsa Loquitur means 'The thing speaks for itself. This is so when (1) the injurious agency is under the management control of the defendant; (2) the accident is such, as in the ordinary course of things does not happen, if those who have the management exercise proper care.
50.In this connection, this Court, in the interest of Justice, cites a leading case SCOT V. London & St. Katherine Docks Company, 1865 3 H & C at page 596, wherein it is observed that 'There must be reasonable evidence of Negligence, but where the thing is shown to be under the Management of Defendant or his servant, and the extent is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords a reasonable opportunity in the absence of any explanation by the defendants that the accident arose for want of care'.
51.In regard to the death of 7 years old boy who fell into an open man hole was caused by 'asphyxia' as a result of drowning, the plea of Res Ipsa Loquitur was applied. It was further observed that the Respondents had provided no explanation as to why the man hole assuming it was covered on the day of incident, was found uncovered three days later, as per decision S.H.Kishanlal and others V. Government of NCTE of Delhi and others, AIR 2007 (NOC) 2444 (Del.).
52.There is no two opinion of an important fact that an interest is payable by way of Restitution. Moreover, interest cannot be claimed as a matter of right. The exercise of discretionary power by a Court of Law to award interest is to be exercised judicially based on the facts and circumstances of the case and the conduct of parties. In awarding interest, the Court can take judicial notice of both inflation and also fall in bank rate of interest.
53.A mere running of the eye over the contents of Form II of Right of Children to Free & Compulsory Education Rules, 2010 on the subject of Recognition Certificate for the School under sub-rule (4) of Rule 15 (Recognition to School) of Right of Children to Free and Compulsory Education Rules, 2010 for the purpose of Section 18 (No school to be established without obtaining certificate of recognition) of Right Children to Free and Compulsory Education Act, 2009, in Serial No.8, inter alia mentions as under:
The School shall maintain the standards and norms of the school as specified in section 19 of the Act. The facilities reported at the time of last inspection are as given under:-
Area of school campus Total built up area Area of play ground No. of class rooms Room for Headmaster-cum-Office-cum-Storeroom Separate toilet for boys and girls Drinking Water Facility Kitchen for cooking Mid Day Meal Barrier free Access Availability of Teaching Learning Material/Play Sports Equipments/ Library.
54.As a matter of fact, the Right to Children to Free and Compulsory Education Act, 2009, (35 of 2009) has come into effect from 1.4.2010 along with Rules, 2010. To put it succinctly, the Right of Children to Free and Compulsory Education Act, 2009 and its Rules, 2010 clearly speak of 'Toilet and Drinking Water facilities being provided in all schools and they are part and parcel of 'Human Rights' where education is imparted, as opined by this Court.
55.It cannot be gainsaid that although the Petitioner, in his Writ Affidavit, had taken a plea that the then Panchayat President for his personal benefits had illegally exercised his powers for digging the pond when it was dry for the sale of the soil using JCB and lorry etc. and therefore was responsible for breach of duty and contributory negligence for the death of his son, the same was not established to the subjective satisfaction of this Court and resultantly, the said plea is out rightly rejected.
56.As far as the present case is concerned, at the time of the death of the Petitioner's son V.Prasanth, he was aged about 8 years and studying in 3rd Standard at Government Middle School administered by the 7th Respondent. The Petitioner's son went out of the school during working hours of the school to attend his nature's call and while washing the same at the tank, he got drowned and died. His friend Vignesh studying in 2nd Standard aged about 7 years at the time of his death also got drowned and he also died. The 5th Respondent had found that the 7th Respondent/Headmaster and the Assistant Teacher were responsible for the occurrence of the incident, since they failed in their discharge of duties, as a result of which, two innocent students lives came to an abrupt end prematurely. Thereafter, the Headmaster of the 7th Respondent School and the Assistant Teacher were temporarily suspended initially and ultimately, they were punished in Departmental Proceedings. Further, the 5th Respondent, through his proceedings dated 30.09.2009, had passed orders, by imposing the punishment of stoppage of their next annual increment viz., Headmaster and the Assistant Teacher for one year period without cumulative effect. Later on, the delinquent Headmaster and the Assistant Teacher were transferred to different schools, for not taking due and adequate care and also not overseeing/monitoring or supervising that the students should not go out of the school premises during school hours without any authorisation. In the instant case, admittedly, the Petitioner's son V.Prasanth and another student went out of the school for attending to their nature's call and in the process of washing, they slipped and got drowned due to the Carelessness and Negligence of the school authorities, viz., the Headmaster and the Assistant Teacher of the school, the State Government for their act of Commission/Omission viz., for not being careful and vigilant enough in monitoring/supervising the students from going out of the school during school hours, the Respondents 1 and 2 are vicariously liable to pay a compensation of Rs.5,00,000/- (Rupees Five Lakhs only) to the Petitioner for the untimely death of his son V.Prasanth [excluding the sum of Rs.5,000/- granted to the Petitioner, vide G.O.(1D) No.247, Revenue (Disaster Management) 1 (1) Department, dated 12.08.2011 through District Collector vide proceedings dated 04.10.2011], which is not an exorbitant or excessive one, but the same being a Just, Fair and Equitable one [considering the high rise in prices, spiralling cost of inflation and stagflation etc.], to secure the ends of Justice, within a period of eight weeks from the date of receipt of copy of this order. If the payment is not so made, it shall carry interest at the rate of 7.5% till date of payment/realisation.
The Writ Petition is allowed, in above terms. No costs.
14.05.2014 Index :Yes Internet :Yes Sgl To
1.The Secretary to Government, School Education Department, Secretariat, Chennai 600 009.
2.The Principal Secretary to Government, Revenue (Disaster Management) Department, Secretariat, Chennai 600 009.
3.The District Collector, Kancheepuram District.
4.The Director of School Education, College Road, Chennai 600 006.
5.The District Elementary Education Officer, Kancheepuram.
6.The Assistant Elementary Education Officer, Kattangulathur.
7.The Head Master, Government Middle School, Karunilam Village, Chengalpattu Taluk, Kancheepuram District 603 204.
8.The Panchayat President, Karunilam Village, Chengalpattu Taluk, Kancheepuram District 603 204.
M.VENUGOPAL,J.
Sgl ORDER IN W.P.No.35052 of 2012 14.05.2014