Andhra Pradesh High Court - Amravati
Pathi Venkata Narayana vs The Government Of Andhra Pradesh, on 12 January, 2024
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No.14124 of 2022
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not granting compensation of Rs.36,00,000/- for the death of the petitioner‟s innocent deceased son, which is caused due to the breach of duty, negligence and wrongful act of the officials of the Government/respondent Nos.2 to 6 as arbitrary, discriminatory, illegal, ultra vires, unconstitutional against principles of natural justice and consequently to consider the petitioner‟s representation dated 13.12.2021 and to pass such other order or orders..."
2. The brief facts of the case are that the petitioner is hails from a poor BPL (Below Poverty Line) family and he is working as daily wage agricultural labour. He has two sons namely Vishnu Vardhan and Mahendar. Whereas his elder son namely Vishnu Vardhan aged about 11 years and he is studying 4th class at Sri Vivekananda Vidya Peetam High School, Markapur. On 29.08.2021, which happens to be a public holiday, petitioner's elder son i.e., Vishnu Vardhan along with other children were playing at the Mandal Parishad 2 Primary School building which is in a dilapidated condition, suddenly, beams and walls of the school building were collapsed and fell on the chest, stomach and body of the petitioner's son. Due to forcible fall of the beams and walls upon the son of the petitioner, he lost his breath and died on the spot. On the same day, the petitioner gave a report to the Sub- Inspector of Police, Markapur, Rural Police Station about the death of his son caused due to accidental fall of beams, walls and roof. Accordingly police registered a case in Crime No.169/2021 under Section 174 Cr.P.C.
3. The learned counsel for the petitioner states that due to the negligence on the part of the respondents in keeping the dilapidated building as it is, the son of the petitioner, who was playing on 29.08.2021, which is being holiday at the subject school premises which is in a dilapidated condition and due to sudden collapse of the building, the son of the petitioner succumbed to death on the spot. He further submits that it is the statutory duty of the respondents, once the subject building is in dilapidated condition it should be demolished immediately and it cannot be continued to prevent untoward incidents, but negligently and due to dereliction of duties, such a severe dilapidated building was continued as it is, even after having an 3 assessment and report it is in severe dilapidated condition. Therefore, the respondents are liable for the death of the son of the petitioner due to negligence and dereliction of duties, as per the principle of vicarious liability. Further, it is stated that though the petitioner submitted his representations and requests but reasons best known to the respondents neither responded as usual for payment of the compensation nor replied to the claim of petitioner. He further states that even after lapse of two years period having received the representations, but respondent authorities neither acted upon in redressal of grievance of the petitioner nor paid any compensation. Hence, the present Writ Petition.
4. Learned Government Pleader for School Education appearing on behalf of respondent Nos.1, 3, 4 and 5 has filed counter-affidavit, wherein it is stated that the 4th respondent/Mandal Educational Officer, Markapur has addressed a letter dated 06.09.2021 to the 3rd respondent/District Educational Officer stating that on 29.08.2021 at 4.00 pm four students including the son of the petitioner were playing in the dilapidated room of the Mandal Parishad Primary School (MPPS), Rajupalem(General) Markapuram Mandal. Due to sudden collapse of beam of the 4 dilapidated school building, the entire building was collapsed upon the son of the petitioner, he sustained severe injuries and while he was taking to the hospital by his parents in the middle of the way he died. The 4th respondent addressed another letter dated 10.01.2022 to the 3rd respondent stating that on 23.09.2019 a resolution was passed by the parents committee for removal of the dilapidated room of the Mandal Parishad Primary School (MPPS), Rajupalem(General) Markapuram Mandal. The 4th respondent also reported the matter to the Mandal Development Officer, Markapur vide letter dated 25.09.2019 and requested for removal of the room of the Mandal Parishad Primary School (MPPS), Rajupalem(General) Markapuram Mandal.
5. Learned Government Pleader for Revenue appearing on behalf of respondent No.2/District Collector has filed counter- affidavit, wherein it is stated that the before allowing the children into the subject school premises, all precautionary steps shall have been taken by the respondents. But, unfortunately the son of the petitioner died due to lack of precautionary steps as required. Therefore, they are taking steps to provide appropriate monitory relief to the petitioner's family due to loss of the son to the petitioner. 5
6. Heard the learned counsel for the petitioner, the learned Government Pleader for School Education for respondent Nos.1, 3, 4 and 5, learned Government Pleader for Revenue for respondent No.2 and learned Standing Counsel for respondent No.6 and perused the material placed on record.
7. It is an admitted fact that the responsibility of closing the entrance of the subject school premises which is in a dilapidated condition is a statutory duty conferred on the School Authorities. If any school is in a dilapidated condition collapses and causes any injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate vests with the School Authorities. The school authorities must have taken necessary steps to prevent such untoward incidents.
8. Coming to the submissions made by the learned counsel for the petitioner and on perusal of the material placed by him before this Court, this Court finds that the subject school was under the control of respondent Nos.3 and 4 and admittedly is in a dilapidated condition. The counters filed by the respondents clearly states that the subject school is in a dilapidated condition and they proposed for steps for closing and removal of the school premises which is in dilapidated 6 condition and a notice board was also erected. It appears that the measures were taken by the respondent on paper only, but not on the ground. If the respondents have really taken all the measures to close the entry of the premises, which is in a dilapidated condition, certainly the son of the petitioner would not have entered into the subject premises for playing along with the other children. Since, the respondents have not taken proper steps or measures for preventing the entry into the subject premises which is in a dilapidated condition, the son of the petitioner died. Due to the negligence on the part of the respondents only, the said incident was occurred. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under Law of Torts to compensate for the injury or loss suffered by any other person, irrespective of any negligence or carelessness on their part. It is also an admitted fact that as per the statement made by the 2nd respondent in his counter that the petitioner is entitled for a reasonable compensation. Therefore, the petitioner is entitled for compensation in view of the admitted negligence and dereliction of duties on part of the respondents as stated above. Hence, as per the principle of vicarious liability, the 1st respondent/State 7 is liable for payment of compensation as determined. For such determination of quantum of compensation, this Court relied upon ratio laid down by the Hon'ble Apex Court as well as this Court.
9. The Hon'ble Apex Court in M.S. Grewal and Anr. v. Deep chand Sood and Ors. reported1, has dealt with regard to the safety of the children and liability of the school authorities in case of any accident, which may be usefully extracted below:
"16.. 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....
23.. safety of the children obviously were of prime concern so far as the school authorities are concerned and till such time the children return to school, safe and secure after the picnic, the course of employment, In our view continues and thus resultantly, the liability of the school."
10. The Hon'ble Apex Court in Lucknow Development Authority v. M.K.Gupta2, while dealing with regard to the contention that such compensation cannot be ordered even in cases of negligence (either constructive or otherwise) by the State or Public Authorities, which may be usefully extracted below:
"The authority empowered to function under the statute with exercising power discharges public duty. It has to act subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may 1 MANU/SC/0506/2001 : AIR2001SC3660 2 MANU/SC/0178/1994 : AIR1994SC787 8 accrue to any person. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer cannot more claim to be under protective cover. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power then it has a statutory obligation to award the same if proved.
The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authority is founded on the principle that an award of exemplary damage can serve a useful purpose in indicating the strength of law. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He is responsible for it; must suffer for it; compensation or damages may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then its looses its individual character and assumes social significance. Award or compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil."
11. The High Court of Madras in V.Subramaniam Vs. State of Tamil Nadu and Ors.3, held as follows:
"(VI) In the decision reported in Lakshmana Naidu v. State of Tamil Nadu MANU/TN/9170/2006 : 2007 ACJ 1349 (Madras), Hon'ble Mr. Justice K. Mohan Ram, in para 12 held as follows:3
2010ACJ1861, 2009(1)CTC434 9 (12) The High Court, being protector of civil liberties of the citizen, has not only the power and jurisdiction, but also an obligation to grant relief in exercise of its jurisdiction under Article 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course, has the right to be indemnified by and take any such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. The relief in exercise of the power under Article 226 of the Constitution of India would be granted once it is established that there has been infringement of the fundamental rights of the citizen. In the said decision a total compensation of Rs. 5,00,000 was ordered to the legal heirs.
(vii) In Chief Secretary to the Government of Tamil Nadu v. R. Selvam 2004 WLR 611, the Division Bench of this Court consisting of the Hon'ble Mr. Justice A.S. Venkatachalamoorhy (as he then was) and Hon'ble Mr. Justice P.K. Misra, confirmed the order of the Hon'ble Mr. Justice P. Sathasivam, (as he then was) in awarding Rs. 5,00,000 to the parents of one medical college student, Who was killed in college hostel by the miscreants. The Division Bench in para 17 of its judgment held as follows:
(17) ...The parents while admitting their children, be it a boy or a girl, do so with the fond hope that their wards will be properly looked after. The hostel run by the Thanjavur Medical College is not a commercial establishment. It is the bounden duty of the hostel authorities to take every reasonable, possible and necessary step in providing the 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 10 writ petition to the effect that they are not responsible since no separate amount was collected under the head 'for security arrangements'.
(ix) In, C.Chinnathambi v. State of Tamil Nadu MANU/TN/0393/2000 : 2002 ACJ 1243 (Madras), Hon‟ble Mr. justice V.S. Sirpurkar (as he then was) had awarded compensation of Rs. 1,50,000 with 12 per cent interest per annum to each of the parents of two school students who died when a water tank broke and fell on them. In the said decision in para 5, the responsibilities of the school authorities are emphasised, which reads thus.
(5) Right to 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 tours. Even if it is considered that the said tank had been 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 hazardous 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 one's understanding, as to how a tank which was constructed early 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." 11
12. The Hon'ble Supreme Court in the decision reported in Chandigarh Administration v. Rajni Vali4, held that want of finance cannot be reason to deny proper education to the children including the payment of proper salary to the teachers. The Supreme Court categorically held that it is for the authorities who are running the institutions to find out the source for running the institution. In the said decision the Supreme Court in paras 6 and 10 held as follows:
(6) .. imparting primary and secondary education to the students is the bounden duty of the State administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statute and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions.
(10) Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of the respondent Nos. 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been 4 MANU/SC/0019/2000 : AIR 2000 SC 634 12 rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the authorities running the Administration to find out the ways and means of securing funds for the purpose. We do not deem it necessary to consider this question in further detail. The contention raised by the appellant in this regard is rejected..."
13. The substance laid down by the High Court of Patna in Ranchi Bar Association, Ranchi and Ors. Vs. State of Bihar and Ors.5, reads as follows:
"31. QUESTION NO. 3(B) COMPENSATION As mentioned earlier, while dealing with the question No. 3(A), it has been settled by the Apex Court that the Government is bound to pay compensation to those who have suffered the loss of life, liberty and property on account of the failure of the government to protect them. The Government is, thus, bound to compensate the loss suffered by the members of the Bar and their Association. It has also to pay the compensation for the loss of life of Monoj Kumar Agrawal who was seriously injured by the supporters of the Bundh, resulting in his death in a hospital."
14. The Hon'ble Apex Court in Nilabati Bahera v. State of Orissa (supra), Justice J.S. Verma on behalf of himself and Justice Venkatachala after reviewing the case law on the subject, in Rudul Sah v. State of Bihar6, Sebastian M. Hongray Union of India7, Sebastian M. Hongray v. Union of India8, Bhim Singh v. State of J and K9, Bhim Singh v. State of J and K10, Saheli: A Women's 5 C.W.J.C.No.1536 of 1998R 6 MANU/SC/0380/1983 : (1983) 4 SCC 141) 7 MANU/SC/0381/1983 : (1984) 1 SCC 339) 8 MANU/SC/0080/1984 : (1984) 3 SCC 82) 9 (1984 Spp. SCC 504) 10 MANU/SC/0064/1985 : (1985) 4 SCC 677) 13 Resources Centre v. Commissioner of Police, Delhi Police Headquarters11 and State of Maharashtra v. Ravikant S. Patil12, with regard to violation of fundamental right by State's instrumentalities or servants, whether the State can be directed to pay compensation to the victim or his heir by way of 'monetary amends" held that:
"'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right."
15. The Hon'ble Apex Court in State of A.P. v. Challa Ramakrishna Reddy13, held as follows:
"3. The suit was contested by the State of Andhra Pradesh on two principal grounds, namely, that the suit was barred by limitation and that no damages could be awarded in respect of sovereign functions as the establishment and maintenance of jail was part of the sovereign functions of the State and, therefore, even if there was any negligence on the part of the Officers of the State, the State would not be liable in damages as it was immune from any legal action in respect of its sovereign acts. Both the contentions were accepted by the trial court and the suit was dismissed. On appeal, the suit was decreed by the High Court for a sum of Rs. 1,44,000/-with interest at the rate of 6 per cent per annum from the date of the suit till realisation. It is this judgment which is challenged in this appeal.11
MANU/SC/0478/1989 : (1990) 1 SCC 422) 12 MANU/SC/0561/1991 : (1991) 2 SCC 373) 13 MANU/SC/0368/2000 : (2000) 5 SCC 712 14
4. Ms. K. Amreshwari, learned Senior Counsel appearing on behalf of the State of Andhra Pradesh has contended that the suit was barred by time as the period of limitation, as provided by Article 72 of the Limitation Act, 1963 was only one year and since the act complained of took place in the night intervening 5th and 6th of May, 1977, the suit which was instituted on 9th of June, 1980, was barred by time. Learned Counsel appearing on behalf of the respondents has, on the other hand, contended that the period of limitation would be governed by Article 113 of the Limitation Act, 1963 which prescribed a period of three years from the date on which the right to sue accrued. It is contended that Article 113 was the residuary Article and since the nature of the present suit was not covered by any other Article of the Limitation Act, it would be governed by the residuary Article , namely, Article 113 and, therefore, the suit, as held by the High Court, was within limitation,
5. The other question which was argued by the learned Counsel for the parties with all the vehemence at their command was the question relating to the immunity of the State from legal action in respect of their sovereign acts. It was contended by the learned Counsel for the appellant that the prisons all over the country are established and maintained either by the Central Government or by the State Government as part of their sovereign functions in maintaining law and order in the country and, therefore, the suit for compensation was not maintainable. Learned Counsel for the respondents, on the contrary, has contended that the theory of immunity, professed by the appellant in respect of sovereign acts, has since been exploded by several decisions of this Court and damages have been awarded against the State even in respect of custodial deaths.
9. These Articles, namely, Article 72 and 113 are applicable to different situations. In order to attract Article 72, it is necessary that the suit must be for compensation for doing or for omitting to do an act in pursuance of any enactment in force at the relevant time. That is to say, the doing of an act or omission to do an act for which compensation is claimed must be the act or omission which is required by the statute to be done. If the act or omission complained of is not alleged to be in pursuance of the statutory authority, this Article would not apply. This Article would be attracted to meet the situation where the public officer or public authority or, for that matter, a 15 private person does an act under power conferred or deemed to be conferred by an Act of the Legislature by which injury is caused to another person who invokes the jurisdiction of the court to claim compensation for that act. Thus, where a public officer acting bona fide under or in pursuance of an Act of the Legislature commits a "tort", the action complained of would be governed by this Article which, however, would not protect a public officer acting mala fide under colour of his office. The Article , as worded, does not speak of "bona fide" or "mala fide" but it is obvious that the shorter period of limitation, provided by this Article , cannot be claimed in respect of an act which was malicious in nature and which the public officer or authority could not have committed in the belief that the act was justifiable under any enactment."
16. In similar circumstances in the light of the judgments rendered by the Hon'ble Apex Court, the High Court of Madras in Singaraj and Ors. Vs. The State of Tamil Nadu and Ors., held as under:
"(31) Therefore, in the above circumstances, the Writ Petitions are liable to succeed and the parents are entitled for compensation as sought for by them.
Accordingly, the first and second respondents are directed to pay to each of the petitioners a sum of rupees One Lakh as compensation. This will be in addition to the ex-gratia amount already paid by the State Government. The sixth and seventh respondents being the „Educational Agency‟ of the Sri Rama Elementary School, Seihur are directed to pay Rs.50,000/- to each of the petitioners."
17. It is observed that the liability of the State to compensate the parents of the unfortunate child victim is a certainty. But the State also cannot wriggle out its 16 responsibility in compensating the parents. Under Article 21-A of the Constitution and as per Section 3 of the Right of Children to Free and Compulsory Education Act, 2009, the State is bound to provide free and compulsory education for every child upto the age of 14 years. In the present case, the State is fulfilling its obligations by running Government Schools as well as providing grant-in-aid to private schools. When such schools imparting education, they also participate in fulfilling its constitutional obligations imposed on the State.
18. The High Court of Himachal Pradesh in Naval Kumar alias Rohit Kumar vs. State of H.P. & others 14, held as follows:-
"49. Now, we have to award the just and fair compensation as per the principles laid down in the judgments cited herein above, taking into consideration the 100% disability of 8 years old boy at the time of electrocution. According to the averments made in the petition, he was a brilliant student. The petitioner would normally had started earning at least Rs.30,000/- per month after attaining the age of 20 years. The annual income of the petitioner would be Rs.3,60,000/-."14
CWP No. 475 of 2013.
17
19. The Hon'ble Supreme Court in Divya vs. The National Insurance Co. Ltd. & Anr.,15, wherein it is held as follows:
"10.1.4. We are of the considered view that the selection of Multiplier „15‟ for the age group upto 15 years by the three-Judge Bench in Reshma Kumari‟s case is having a sound basis. It is common Knowledge that the age group of 21 to 25 years is regarded as the commencement of normal productive years as referred specifically by the Two-Judge Bench in Sarla Verma‟s case at paragraph 39."
20. In the light of the above factual matrix and the legal precedents, the compensation to the unfortunate parents of the child whose life was snatched away in his prime age, cannot be denied. Therefore, the amount of compensation is to be calculated as 30,000/- x 12 x 15(multiplier) = 54,00,000/-.
21. The Hon'ble Supreme Court in Sarla Verma and Ors. Vs. Delhi Transport Corporation and Ors.16, held as follows:
"Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, 15 MANU/SC/1410/2022 16 AIR2009SC3104 18 because it is assumed that a bachelor would tend to spend more on himself."
22. As per Sarla Verma case as cited supra, out of the total compensation amount, 50% amount should be deducted toward the personal and living expenses. Therefore, the net compensation amount shall be 54,00,000/- x 1/2 = 27,00,000/-.
23. On the above analysis and in view of the ratio laid down by the Hon'ble Apex Court and other Hon'ble High Courts including this Court as stated supra and also as per the admission made by the respondents in respect of right of entitlement of compensation and also having considered the facts and circumstances of the case and mental agony caused to the parents of deceased kid, the present Writ Petition is liable to be allowed.
24. Accordingly, the Writ Petition is allowed with the following direction:
The respondents are directed to pay an amount of Rs.27,00,000/- towards compensation and an amount of Rs.3,00,000/- towards the mental agony suffered by the petitioner and his wife (parents of the deceased) along with interest @ 9% from the date of filing of the present Writ Petition 19 to the petitioner, within a period of three(3) months from the date of receipt of copy of this Order.
There shall be no order as to costs.
Consequently, Miscellaneous Petitions, if any, pending in the writ petition shall stand closed.
______________________________________ VENKATESWARLU NIMMAGADDA, J 12.01.2024 TPS 20 413 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION No.14124 of 2022 12.01.2024 TPS