1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.A.(MD).No.458 of 2011 and M.P.No.1 of 2011 1.Thiruparankundram Municipality, Through its Commissioner, Thiruparankundram, Madurai. 2.Government of Tamil Nadu, Rep by its Secretary, Department of Municipal Administration and Water Supply Fort.St.George, Chennai. :Appellants / Respondents Vs. A.Manikandan : Respondent / Petitioner PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 10.02.2011 made in W.P.(MD).No.8613 of 2009 on the file of this Court. Writ petition is filed under Article 226 of the Constitution of India praying for the issue of a writ of Mandamus directing the respondents to pay a sum of Rs.10,00,000/- (Rupees ten lakhs) to the petitioner as compensation. For Appellants : Mr.D.Gandhiraj,Government Advocate JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is filed as against the order dated 10.02.2011 passed in W.P.(MD).No.8613 of 2009. 2. The facts leading to this case are as follows:- (i). The respondent's daughter, by name Dhanalakshmi, aged about 10 years, along with her mother, had gone to Thiruparankundram Murugan Temple at Thiruparankundram on 22.05.2009 at about 07.00 PM to worship Lord Murugan. At that time, suddenly rain came down heavily. Hence, the deceased daughter and her mother Jeyanthi ran for shelter towards the building near temple car, adjacent to the main entrance. However, on their way to the said building, the respondent's daughter fell into the sewage canal (ditch), which was negligently left open by the first appellant – Municipal Authorities. (ii). Since the rain was down pouring heavily, the sewage canal was submerged in the rain water and there was no clue that the ditch was kept open, consequently, her daughter was washed away by rain water in the ditch and only after strenuous efforts taken by the public and others, she was lifted from ditch near Avanipuram Section, which is located nearly 1½ Kilometers away from the place of occurrence. But, unfortunately, the minor child died on the way to the hospital. https://hcservices.ecourts.gov.in/hcservices/ 2 (iii). Claiming compensation of Rs.10,00,000/-, the father of the deceased minor child had filed the said Writ Petition. The learned Single Judge of this Court, by order dated 10.02.2011, had allowed the said Writ Petition directing the first appellant – Municipality to pay a sum of Rs.2,00,000/- as compensation and also a sum of Rs.10,000/- towards costs within a period of two months from the date of receipt of a copy of the order. (iv). Challenging the said order dated 10.02.2011, the present Writ Appeal is filed by the appellants. 3. The stand of the learned Government Advocate appearing for the appellants is that the respondent should have approached the Civil Court, where the alleged negligence on the part of the appellants should have been established. In support of his contention, the learned Government Advocate has relied on a Judgment of the Hon'ble Supreme Court in Shakuntala Devi (Smt) vs. Delhi Electric Supply Undertaking reported in 1995 (2) SCC 369 at paragraph No.5, which reads as follows:- "5. According to the petitioner all these requests fell on deaf ears of Respondent 1 which did not take any action in this regard. In the evening when Ram Naresh Yadav was returning from the place of employment, when he was not aware of the electricity leakage, he came in contact with the live cable and got electrocuted on the spot and he died instantaneously. This according to the petitioner was on account of criminal negligence on the part of Respondent 1. As this disaster has left the petitioner and her young children destitute, the present petition is moved under Article 32 of the Constitution presumably relying upon petitioner’s fundamental rights under Article 21 of the Constitution which have got adversely affected on account of the negligent act of the officials of Respondent 1 herein. She has also claimed appropriate reliefs from Respondent 2. This petition was treated to have been admitted to final hearing. We have heard the learned advocates for the parties in support of their respective cases. Having heard them we felt that it is a fit case for invoking our jurisdiction power under Article 142 of the Constitution of India for giving appropriate relief to the petitioner, a destitute widow of the deceased and her young/minor children. So far as Respondent 1 is concerned it is true that the question of negligence of officials of Respondent 1 can be properly examined in a suit where correct facts can be established but as that would involve long delay and the misery of the petitioner and her young children who were stranded in life would linger on we suggest to the learned counsel for Respondent 1 to give a reasonable amount ex gratia to the petitioner and her young children so that their misery can be to some extent lessened. We are happy to note that the learned counsel for Respondent 1 on instruction has left the matter to us. https://hcservices.ecourts.gov.in/hcservices/ 3 Similarly the learned counsel for Respondent 2, Shri Negi has also gracefully left the matter to us. He however, submitted that if the insurance policy was a live policy, Respondent 2 would have been liable to make full insured amount of Rs.25,000 but according to Respondent 2 Corporation, the policy has lapsed as the deceased has not paid premia for the last few instalments. He further frankly stated that Respondent 2 is not in a position to point out whether any written intimation was given to the deceased about non-payment of premia and the possible lapsing of policy. He also stated that though there was no statutory rule requiring such intimation to be given to the insured, as a matter of practice the Corporation used to issue such notices or intimations to the concerned insured so that they can clear off the unpaid premia instalments. But in the present case he was not in a position to produce a copy of any such notice issued to the deceased. So far as learned counsel for Respondent 3 ex-employer of the deceased is concerned, he stated that whatever was due to the deceased under the Workmen’s Compensation Act and as per the rules and regulations of the institution has already been paid to the petitioner. However, he fairly stated that he will have no objection in giving compassionate appointment to the petitioner’s son, Anil Kumar who is now a major if he makes an appropriate application in this connection to Respondent 3. Respondent 3 will see to it that such employment on compassionate ground is given to the petitioner’s son Anil Kumar according to his suitability and educational qualifications and appropriate job will be given to him latest within six months from today. Under these circumstances interest of justice will be served by our directing Respondent 1 to pay an ex gratia amount of Rs.75,000/- to the petitioner for the benefit of herself and her children Anil Kumar aged 18 years and two minor daughters Anita Kumari and Sunita Kumari. Similarly, we direct Respondent 2, Life Insurance Corporation to pay ex gratia amount of Rs.25,000/- which would cover the full amount of life insurance policy of the deceased without going into the wider question whether the policy had lapsed or not on account of non-payment of premia. We also direct Respondent 3 to give compassionate employment suitable to the qualification of petitioner’s son Anil Kumar. For that purpose, Anil Kumar shall make an application to Respondent 3 at the earliest and on receipt of the said application Respondent 3 will give suitable employment to him at the earliest but not later than six months from the date on which such application is received by Respondent 3. The disbursement of the above said total amount of Rs.1.00 lakh to the petitioner and her young children will be made as under." https://hcservices.ecourts.gov.in/hcservices/ 4 4. Unfortunately, the said stand of the learned Government Advocate that the respondent should have approached the Civil Court has not been brought before the learned Single Judge. Apart from this, a perusal of the said Judgment also does not reveal the same. 5. But, according to the learned Government Advocate for the appellants, the ditch was kept open by somebody else and not by the first respondent - Municipal Authorities, and therefore, question of payment of compensation by the first appellant - Municipality does not arise at all. 6. We are not able to accept the said stand of the learned Government Advocate, for the reason that even before the learned Single Judge, the said plea was not taken. Apart from this, if the ditch was kept open by somebody else and not by the first appellant – Municipal Authorities, the burden lies on the first appellant Municipality to prove the same. However, even in the Writ Appeal also, the said stand of the learned Government Advocate is not proved. 7. Yet another stand taken by the learned Government Advocate that the mother of the deceased would have taken care of will not hold good, for the reason that the first appellant - Municipality being the local self – Government, is expected to take steps to protect such open sewage canal and no negligence could be attributed against the mother of the deceased minor child. The learned Single Judge has rightly allowed the said Writ Petition directing the first appellant Municipality to pay a sum of Rs.2,00,000/- as compensation and also imposed costs of Rs.10,000/- for the death occurred due to the negligence on the part of the first appellant Municipal Authorities. Under such circumstances, we are of the considered view that there is no case made out to interfere with the order of the learned Single Judge. 8. In the result, the order dated 10.02.2011 made in W.P.(MD). No.8613 of 2009 is confirmed and the Writ Appeal is dismissed No costs. Consequently, connected Miscellaneous Petition also dismissed. Sd/ Deputy Registrar (LA ) /True Copy/ Assistant Registrar To 1. The Commissioner, Thiruparankundram Municipality, Thiruparankundram, Madurai. 2.The Secretary, Government of Tamil Nadu, Department of Municipal Administration and Water Supply Fort.St.George, Chennai. JUDGMENT MADE IN W.A.(MD).No.458 of 2011 SMA/14.6.2011/3C/4P 25.04.2011 https://hcservices.ecourts.gov.in/hcservices/