IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2010 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.6240 of 2010 and M.P.No.1 of 2010 S.Johnson ... Petitioner vs. 1.State of Tamil Nadu rep. By its Chief Secretary, Secretariat, Chennai – 9. 2.The Director of Technical Education, Guindy, Chennai – 32. 3.The Principal, Govt. Technical Institute, Guindy, Chennai – 32. ... Respondents Writ petition filed under Article 226 of the Constitution of India to issue a writ of mandamus directing the respondents to pay compensation of Rs.20 lakhs for the death of the petitioner's only son J.Gladyvincent aged 15 years, as claimed by the petitioner in his representation dated 20.11.2009. For Petitioner : Mr.B.Manimaran For Respondents : Mr.A.Edwin Prabhakar, AGP for R1 Ms.E.Ranganayaki for R2 & R3 O R D E R By consent, the main writ petition itself is taken up for final disposal. 2. The prayer in the writ petition is for the issuance of writ of mandamus directing the respondents to pay compensation of Rs.20,00,000/- for the death of the petitioner's only son J.Gladyvincent, aged about 15 years based on the representation of the petitioner dated 20.11.2009. https://hcservices.ecourts.gov.in/hcservices/ 3. It is stated in the affidavit filed in support of the writ petition that the petitioner's only son J.Gladyvincent, who was studying in the third respondent Technical Institute as First Year student, as per the direction issued by the Class Teacher, on 12.10.2009 at about 10.30 a.m., was cleaning the class room roof along with other students. While doing the cleaning work, the petitioner's son fell down and sustained grievous injuries and he was admitted by the authorities of the third respondent Institute in General Hospital for treatment and the said news was intimated to the petitioner through one of the Teachers by name Sampath and the petitioner rushed to the hospital, where the petitioner's son was taking treatment. On 19.10.2009 at about 8.15 a.m., the petitioner's son died in the hospital. A criminal case was registered in J.3 Guindy Police Station in Crime No.870 of 2009. According to the petitioner, the said incident had occurred only due to the instructions issued by the teacher of the third respondent institute to do the cleaning work and the because of the same, the petitioner lost his only son and hence, he filed a representation on 20.11.2009 to the respondents praying for compensation of Rs.20,00,000/- for the death of the his son. However, no action being taken, the writ petition is filed with the above said prayer. 4. When the writ petition was posted for admission on 30.03.2010, learned Additional Government Pleader was directed to take notice and get instructions and also to produce the file. The case was posted on 05.04.2010, 07.04.2010, 08.04.2010, 22.04.2010 and 23.04.2010. On 23.04.2010, the learned Additional Government Pleader was directed to get the Enquiry Report submitted with regard to the said incident viz., the death of the petitioner's son. The report copy filed by the Regional Joint Director, Guindy, Chennai-32, addressed to the Director of Employment and Training, Guindy, Chennai-32 is placed before me. The said report is dated 15.04.2010. In the said report, even though it is stated that the petitioner was not present on the said date viz., 12.10.2009 as per attendance register, the statement of the Instructor is mentioned stating that the petitioner's son used to involve all the activities of the institute voluntarily and he could have also been involved in the cleaning work and while doing the cleaning work, the petitioner's son having stood over the plastic sheet, fell down. It is also stated that the Instructor took the petitioner's son to the Government Hospital immediately on 12.10.2009 and admitted in the hospital, where he was lying in Coma stage from the date of admission and he passed away on 19.10.2009 at 8.30 a.m. at Coma stage in the hospital. Therefore, no statement from the petitioner's son could be obtained. In the said report, it is also stated that some of the students were also asked to involve in the cleaning work. Even though, the name of the petitioner's son was not mentioned in the name of the students who stated their https://hcservices.ecourts.gov.in/hcservices/ willingness. From the report, it is evident that the petitioner's son, on being fell down from the roof on the fateful day, was taken to hospital for treatment. The above report clearly reveals that the accident had occurred only inside the premises of the third respondent institute during working hours and due to the fall, the petitioner's son died on 19.10.2009. Since the accident had taken place inside the Government Technical Institute, Guindy and the petitioner having lost his only son, the department is bound to pay compensation to the petitioner for the loss of his son. Since a report dated 15.04.2010 is already submitted to the Commissioner / Director of Employment and Training, Guindy, Chennai-32 and the representation submitted by the petitioner seeking compensation dated 20.11.2009 is pending with the Director of Employment and Training, Guindy, Chennai-32, the said Officer is directed to send a report to the first respondent within a period of four weeks from the date of receipt of a copy of this order and on receipt of the same, the first respondent is directed to ascertain the compensation payable to the petitioner and pay the same to the petitioner within a period of eight weeks from the rate of receipt of the report from the second respondent. The liability of the Government to pay compensation to the death of a student inside the school was considered by me in the decision reported in the case of P.N. Kanagaraj vs. The Chief Secretary, State of Tamil Nadu, Fort St.George, Chennai – 9 and others reported in (2008) 8 MLJ 1085. In paragraphs 12 to 20 it is held as follows:- " 12. The issue as to whether compensation can be ordered in a writ petition filed under Article 226 of Constitution of India, came up for consideration in the following decisions. (i) The Honourable Supreme Court in the decision reported in AIR 1990 SC 513 (SAHELI a Women's Resources Centre v. Commissioner of Police, Delhi) awarded compensation for the death of a nine year old child due to the beating and assault by the Police Officer. In paragraphs 11 to 15 the Supreme Court held as follows: "11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment https://hcservices.ecourts.gov.in/hcservices/ of compensation to Smt.Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh. 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.” 14. In Peoples’ Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters ((1989) 4 SCC 730) one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs.75,000 as compensation. 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, https://hcservices.ecourts.gov.in/hcservices/ respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs.75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly." (ii) Maintainability of writ petitions claiming compensation against the State's inaction was considered by the Supreme Court in the decision reported in (2001) 4 SCC 452 (S.S.Ahluwalia v. Union of India). In paragraph 2, the Supreme Court gave directions, which reads thus: "....... Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating the writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action." The above direction was given since the claim in those writ petitions were made directly before the Honourable Supreme Court seeking compensation to the victims of riot, which took place in various places due to the assassination of Smt.Indira Gandhi. (iii) In (2004) 8 SCC 610 (National Human Rights Commission v. State of Gujarat) the Supreme Court directed the High Court of Gujarat to consider the claims of riot victims of communal clash arose in the State of Gujarat due to the Godhra incident, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate, that the High Court should deal with the issues raised in the first instance." (iv) The liability of the State to pay compensation even against the destruction of the property during communal clash or riot or disorder was considered by the Full Bench of this Court in the decision reported in 2006 (5) CTC 97 (P.P.M.Thangaiah Nadar Firm v. The Government of Tamil Nadu). In paragraph 11, the Full Bench framed the following questions: "(1) What is the effect of deletion of Article 19(1) (f) ? (2) What is the liability of the State regarding loss of life or damages to the properties during rioting ? (3) What is the remedy available to a victim, that is to say, whether a Writ Petition can be filed or the victim is required to file a Suit for claiming compensation ?" Question No.2 relates to the liability of the State regarding loss of life or damage to the properties during rioting, which was answered by the Full Bench in paragraph 38 of the Judgment, which reads as follows: "38. .... The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and https://hcservices.ecourts.gov.in/hcservices/ circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to examine that question in any appropriate case." (v) In the decision reported in (2008) 3 MLJ 160 (Lilly Stanislaus v. Chairman, T.N.E.B.) this Court granted compensation of Rs.90,000/- to the widow of a person, who was electrocuted due to the negligence of the Electricity Board. In the said Judgment, Honourable Mr.Justice P.Jyothimani, followed the earlier decision of the Supreme Court in Smt.Kumari v. State of Tamil Nadu (AIR 1992 SC 2069) wherein a six year old boy died falling in 10 feet deep uncovered sewerage tank in the City of Madras was ordered compensation of Rs.50,000/- with 12% interest per annum from 1.1.1990. (vi) In the decision reported in 2006 WLR 608 (Lakshmana Naidu & Another v. The State of Tamil Nadu and Another), Honourable Mr.Justice K.Mohan Ram, in paragraph 12 held as follows: "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 such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. The relief in exercise of 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 2004 WLR 611 (The Chief Secretary to the Government of Tamil Nadu & Others v. Mrs.R.Selvam), the Division Bench of this Court consisting of the https://hcservices.ecourts.gov.in/hcservices/ Honourable Mr.Justice A.S.Venkatachalamoorhy, (as he then was) & Honourable Mr.Justice P.K.Misra, confirmed the order of the Honourable 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 a college hostel by the miscreants. The Division Bench in paragraph 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 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'." (viii) In 2004 WLR 346 (Smt.R.Dhanalakshmi v. Government of Tamil Nadu), Honourable Mr.Justice D.Murugesan, ordered to pay a sum of Rs.9,00,000/- to the legal heir of a person, who was killed while in custody. (ix) In 2001 WLR 174 (C. Chinnathambi and others v. State of T.N. & Others) Honourable Mr.Justice V.S.Sirpurkar, (as he then was) awarded compensation of Rs.1,50,000/- with 12% 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 paragraph 5, the responsibilities of the school authorities are emphasised, which reads thus, "5. Right of life enunciated in Article 21 has time and again been recognised by the Supreme Court and in its various ramifications. This was a case where the two innocent children had gone to the school and the accident actually took place during school hours. Even if it is considered that the said tank was constructed by the Parent Teachers Association it was undoubtedly the responsibility of the School authorities to see that the tank was properly constructed and erected and that it should not have been hazardous to the lives of the children. There can be no dispute that in this case https://hcservices.ecourts.gov.in/hcservices/ 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 in 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." (x) In 2006 WLR 13 (C. Thekkamalai v. State of Tamil Nadu & 2 Others) the Division Bench of this Court consisting of Honourable Chief Justice A.P.Shah & Honourable Mr.Justice F.M.Ibrahim Kalifulla, enhanced the compensation from Rs.75,000/- to Rs.5,00,000/- to the person who was illegally arrested and raped by the Sub-Inspector of Police. In paragraphs 8 to 10 the Division Bench held as follows: "8. We find considerable substance in the submissions of learned counsel for the appellant. Where a heinous crime of rape committed by the police personnel, who are public functionaries, the matter clearly relates to the violation of basic human rights as well as Fundamental Right guaranteed under Article 21 of the Constitution and the victim would be entitled to a fair and reasonable compensation. It is reported that the concerned Sub Inspector was convicted by the trial Court in S.C.No.90 of 1992 under sections 366, 376(2)(a) (1), 384 and 342 of I.P.C. and sentenced to suffer rigorous imprisonment for ten years and to pay fine amount. The trial court also directed the accused to pay Rs.2,00,000/- and Rs.50,000/- as compensation to Lakshmi and Thekkamalai respectively. In the appeal filed by the Sub Inspector of Police, the conviction under Sections 366 and 376(2)(a)(i) of I.P.C. as well as the payment of Rs.2,00,000/- as compensation to the victim Lakshmi was confirmed by this Court. It appears that the amount of compensation has not been paid by the accused, who is presently behind the bars. https://hcservices.ecourts.gov.in/hcservices/ 9. In our opinion, the ends of justice would be served if the amount of compensation is enhanced from Rs.75,000/- to Rs.5,00,000/-. It is brought to our notice that pursuant to the order passed by the learned single Judge a sum of Rs.85,000/- (Rs.75,000/- towards interim compensation and Rs.10,000/- towards rehabilitative measures) has already been paid to the victims Lakshmi and her husband Thekkamalai. We, therefore, direct the State Government to pay the balance amount of Rs.4,15,000/- (Rupees Four Lakhs Fifteen Thousand only), with simple interest at the rate of six (6) per cent per annum from the date of the order of the learned single Judge till date of payment, within a period of eight weeks from today. Out of the total amount (i.e.) Rs.4,15,000/- plus interest accrued on the said amount, a sum of Rs.5,00,000/- (Rupees Five Lakhs only) shall be invested in the name of Lakshmi in a fixed deposit, initially for a period of three years, with Tamil Nadu Power Finance Corporation and she would be entitled to receive the interest accrues on such deposit once in three months. The remaining amount shall be released to the appellant and his wife Lakshmi jointly. State is at liberty to take steps to recover the amount of compensation so paid to the victims from the concerned delinquent police personnel by taking appropriate steps in accordance with law. 10. We further direct the State Government to consider the application of Lakshmi for allotment of agricultural land under THADCO land purchase scheme and if she identifies the land, the same shall be allotted to her at concessional rate in accordance with the scheme." (xi) In W.P.No.19260 of 2002, by order dated 14.8.2008, I have considered similar issue claiming compensation by father of a student, who died due to the collapse of a compound wall inside the School and a sum of Rs.2 lakhs with 10% interest was ordered to be paid by the Department. 13. The Principal or Headmaster of an Educational Institution is responsible for the discipline in the institution, apart from maintaining quality of education as well as functional efficiency. https://hcservices.ecourts.gov.in/hcservices/ 14. In the decision reported in AIR 2004 SC 499 (Manager, Nirmala Senior Secondary School, Port Blair v. N.I.Khan and Others) the Honourable Supreme Court explained the role of a teacher in an educational institution, in paragraphs 1 and 2, which reads as follows: "A teacher affects the eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers. 2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. ........" 15. On the basis of my above findings as well as the decisions referred above, it is evident that the respondents 1 and 5 are vicariously liable to pay compensation for the death of petitioner's son, K.Jagankumar, aged 16 years. 16. Now the only question to be decided is with regard