V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. W.P.(C ) NO.1476 OF 2010 (Decided on 11.04.2011) PRATAP KUMAR NAYAK ………Petitioner. .Vrs. STATE OF ORISSA & ORS. ………Opp.Parties. For Petitioner - Akshaya Kumar Nayak For Opp.Parties - Stading Counsel (School & Mass Education) V.GOPALA GOWDA, C.J. This writ petition has been filed by the father of the deceased child who died on account of sudden fall of an iron grill gate on him in the UGME school premises claiming compensation to the tune of Rs.10 lakh from the opp. parties urging various facts and grounds. 2. Brief facts as have been narrated in the writ petition may be stated as follows with a view to find out as to whether the petitioner is entitled to the relief as prayed for and to appreciate the legal contentions raised on behalf of the parties. Petitioner’s son Bhanu Pratap Nayak @ Biki was a student of Balipatna UGME School in the district of Bhadrak from the beginning of his study. He was a brilliant student and was awarded throughout his student career. While so studying in Class-V, on 15.07.2004 at about 3 P.M., Bhanu Pratap met with an accident in the school premises and sustained bodily injuries due to sudden fall of an iron grill gate on him. Being informed about the incident by the Headmaster of the School the petitioner and other villagers rushed to the school and took the child who was in an unconscious state to Bhadrak Hospital. On 16.07.2004, as the condition of the child became worse, he was shifted to S.C.B. Medical College & Hospital, Cuttack. On 18.07.2004, as the health condition of the child further worsened, the petitioner took his son to Kalinga Hospital, Bhubaneswar for better treatment. 3. It is stated that the petitioner spent a huge amount of money towards his son’s treatment at Kalinga Hospital, Bhubaneswar, but in vain. His son breathed his last on 27.07.2004 at Kalinga Hospital, Bhubaneswar. The petitioner has sold away his landed properties and gold ornaments to meet the medical expenses of his son. 4. It is stated that the Government has provided no support for such accidental death of his son that occurred in the school premises. On 15.07.2004, only police from Bhadrak P.S. came to the spot where the incident occurred and noted down everything in their diary. 5. It is stated that the incident was published in local dailies “The Orissa Bhaskar” on 16.07.2004 and “The Sambad” that a student named Bhanu Pratap Nayak was injured by fall of a grill gate. True copies of the news clippings are produced at Annexure-1 series. Further, true copies of the medical report and death declaration report given by the doctor of Kalinga Hospital, Bhubaneswar are produced at Annexure-2. 6. It is the case of the petitioner that he made a representation to the Collector, Bhadrak on 28.8.2004 with an affidavit praying therein that the petitioner’s family sustained heavy loss due to the irresponsible work of the Government by affixing an old grill gate in Balipatna UGME School. It was claimed therein that that the petitioner and his wife should be compensated with a compensation of Rs.10 lakh. Thereafter the Collector visited the spot and enquired into the reason of the accident and also assured the petitioner to consider his grievance but the same did not yield any result as yet. True copy of the said representation is produced at Annexure-3. 7. It is further stated that though the petitioner is entitled to compensation for such accidental death of his son due to negligent attitude of the Government he has been deprived of availing the said benefit. Hence the writ petition is seeking to award just and reasonable compensation. 8. Opposite party no.3 has filed his counter affidavit refuting the claim and controverting the averments made in the writ petition. It is stated that though the son of the petitioner, namely, Bhanu Pratap Nayak was a student of Balipatna UGME School, Balipatna and studying in Class-V he was a brilliant student and was awarded through out his career are totally false and imaginary. So far as school record is concerned, he was a student of average standard. 9. It is stated that the writ application has been filed after six years of the alleged incident as described by the petitioner. The alleged incident was never brought to the office of opp. party no.3 at any point of time. No criminal case was instituted with regard to the allegation of death of the petitioner’s son and even no U.D. case is registered at Bhubaneswar, where the petitioner claims that his son has died. Further, there is no post mortem report except the case summary of deceased Bhanu Pratap Nayak, which is available from the writ application. No record is also available with the Headmaster of the School relating to the death of the petitioner’s son. 10. Further, it is stated that the present Headmaster in-Charge of the School-opp. party no.5 is not able to produce any record but has stated that only after the writ petition was filed he could hear from villagers that on 15.07.2004, after the school hour was over, the said student Bhanu Pratap Nayak along with his village friends was playing using the grill gate by moving it like a swing. It is further learnt from the Headmaster that he could hear from others that three to four students were playing standing on the grill gate for which the grill gate detached from the pillar and fell down. 11. It is stated that neither any allegation about the alleged incident was made before the office of opp. party no.3 nor before the office of the Headmaster by the petitioner. There is no material in the writ petition to show that the said fact was ever brought to the notice of opp. party no.3. 12. Further, the writ petition is otherwise hit by the doctrine of delay and latches as the same is filed at a belated stage. The petitioner has cooked up the alleged incident to come before this Court with a view to make claim to award compensation. 2 13. It is stated that the said grill gate was used by the villagers to enter into the village temple which is situated in the campus of the School. Further, the Headmaster who was serving at the time alleged incident has been transferred as S.I. of Schools in the meanwhile. On being asked he stated that the alleged incident occurred beyond the school hours. 14. Further, it is stated that opp. party no.3 visited the said school on 21.08.2010 and asked the Headmaster in-Charge about the facts of the present case. At the cost of repetition it is stated that there is no record available with the school authority and everyone has treated the alleged incident as an outside affair. It is stated that the alleged incident has not occurred during the school hours. The allegations made by the petitioner are without any basis and valid cause of action. Therefore, he has prayed for dismissal of the writ petition. 15. As could be seen from the counter statement at paragraph-6 that the Headmaster in-Charge of the School has stated that he has heard from the villagers that on 15.07.2004 after the school hours was over the said student Bhanu Pratap Nayak along with his village friends was playing using the grill gate of the school by moving it like a swing on account of which the grill gate detached from the pillar and fell down. The news relating to the aforesaid incident appeared in the newspapers clippings, which have been annexed to the writ petition under Annexure-1 series. 16. With reference to the aforesaid rival legal contentions urged by the learned counsel for the parties, the questions that would arise for consideration of this Court are as follows: (i) Whether the writ petition is maintainable in law ? (ii) Whether the accident occurred on account of negligence on the part of the UGME School authorities by not providing safety measures and not taking precautionary measures to prevent students/public to use the grill gate for the play. (iii) Whether on account of negligence on the part of the UGME school authorities the petitioners are entitled to compensation as claimed ? (iv) What order ? 17. Point nos. (i) and (ii) are required to be answered in favour of the petitioner for the reason that the School has been running by the School & Mass Education Department of Orissa State Government, Bhubaneswar, which is situated at Balipatna village in the district of Bhadrak. Undisputedly, the deceased son of the petitioner Bhanu Pratap Nayak @ Biki was a student of the said UGME School of Balipatna in the district of Bhadrak. As could be seen from the facts pleaded by the petitioner and statement of counter filed by opp. party no.3-District Inspector of Schools, Bhadrak on behalf of the opposite parties at paragraph-6, wherein it is stated that the Headmaster in-Charge has heard from the villagers that on 15.07.2004 after the school hour was over the deceased student along with his village friends was playing using the grill gate of the School by moving it like a swing, on account of which the grill gate got detached from the pillar and fell down. The said incident was appeared in the newspapers, clippings of which are 3 produced at Annexure-1 series to the writ petition. Therefore, the unfortunate incident happened in the School premises is not in dispute and the deceased boy was also a student of the said school is not in dispute and allowing the deceased along with other boys of the village to make use of the grill gate for playing, which fell down and the deceased boy suffered grievous injuries and succumbed to death is certainly the negligence on the part of the School Management. Therefore, the petitioner who is the father of the deceased boy is entitled for compensation from the School & Mass Education Department, as the School Management authorities were required to take sufficient safety measures to see that the school gate should not be used by either the students or other boys who are not students for playing. No doubt, on account of the said accident grievous injuries sustained by him and the student died. The only remedy was available to the petitioner to file original suit under the Fatal Compensation Act. Not filing of the suit under the Fatal Compensation, the liability to pay compensation by the School & Mass Education Department to the petitioner particularly having regard to the fact that the student was studying in the said School died on account of the injuries sustained by him. Non-filing of the suit by the parents does not take away the right of a claimant to claim compensation, which is payable by the School & Mass Education Department of the Orissa State Government for its negligence as the bright son of the petitioner was studied in the school on account of negligent act of the School Management for not taking care of the school premises after the school hours or during school hour does not take away the right of the petitioner to approach the Constitutional Court seeking the compensation from the Department for the negligent act on the part of the school management. The delay and latches in filing this petition shall not come in the way for the petitioner in a matter of this nature and for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India for grant of the relief, particularly having regard to the fact that the petitioner’s son at his young age at the time of prosecuting his studies in the school died on account of fall of the School grill gate, which occurred within the school premises. Therefore, the writ petition filed by the petitioner after the lapse of reasonable time is maintainable. The delay and latches shall not come in the way for this Court to exercise jurisdiction, particularly to see that statutory liability upon the School Management and School & Mass Education Department to pay compensation for their negligence. The non-filing of original suit by the petitioner under the Fatal Compensation Act or writ petition before this Court within the reasonable period shall not be a ground for this Court to reject the writ petition accepting the plea taken by the School & Mass Education Department, Orissa and other opp. party. They cannot contend that right is settled in their favour as the petitioner has not approached this Court or other court within a reasonable period to get the compensation awarded on account of death of his son which occurred in the school premises. Accordingly, the first and second points are answered in favour of the petitioner. 18. Point nos.(iii) and (iv) are also required to be answered in favour of the petitioner by awarding a total sum of Rs.3,00,000/- (Rupees three lakh) by following the guidelines laid down in Lata Wadhwa and othrs v. State of Bihar and others, (2001) 8 SCC 197, as undisputedly the deceased is a school boy whose age group is 10 to 15 years. Therefore, the guidelines laid down in the said case is applied to the fact situation of the case in hand and a sum of Rs.3,00,000/- (rupees three lakh) is awarded to both the parents towards loss of dependency and conventional heads such as expenses towards funeral and obsequies ceremony including hospital expenses as it is submitted 4 by him that to get the treatment to his deceased son, he has sold his landed properties and jwellery. The said amount is awarded in favour of the parents of the deceased boy taking into consideration that the son of the petitioner was a student with bright future. He would have studied well and could have secured many awards in his student career, he would have obtained either a Professional Degree or Basic Degree or Diploma Certificate. Then he would have got employment, earned and contributed funds to the parents and also left his estate to his legal representatives. Therefore, guidelines laid down in Wadha’s case are applied as the petitioner’s son comes within the age group of 10 to 15 years. 19. We, accordingly, direct the opp. parties to pay the aforesaid compensation amount of Rs.3,00,000/- (rupees three lakh) to the petitioner within a period of six weeks from the date of receipt of this judgment, otherwise the amount shall carry interest from 22.1.2010. The opposite party-School & Mass Education Department represented by its Secretary shall submit its compliance report after expiry of six weeks. The writ petition is allowed. Writ petition allowed. 5