IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.10033 of 2000 1.D.Manimegalai 2.Lalithamma 3.Yogitha (Minor) 4.Saicharan (Minor) Minors rep by mother and natural Guardian, D.Manimegalai ..Petitioners -vs- 1.The Commissioner, Corporation of Madras – 3. 2.Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, rep. by its Chairman & Managing Director. 3.The Government of Tamil Nadu rep. by the Secretary Department of Municipal Administration and Water Supply, Secretariat, Chennai – 600 009. ... Respondents R2&3 impleaded as per court order dated 20.10.2008 in W.P.M.P.No.1390/2008 in W.P.No.10033/2000 Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the respondents to pay a sum of Rupees Ten Lakhs to the petitioners, as compensation for the death of Hari prasad For Petitioners : Mr.Karthik Mukundan for Mr.Neelakandan For Respondents : Mr. T.Mathi for R1 Mr.B.Mani for R2 Mr.P.Muthukumar for R3 Govt. Advocate O R D E R The legal heirs of one Hariprasad are the petitioners in this writ petition with a prayer to direct the respondents to pay a sum of Rs.10,00,000/- as compensation for the death of Hari prasad, who died https://hcservices.ecourts.gov.in/hcservices/ on 15.06.1995, while riding his motor cycle, when he hit against the manhole cover, which overturned and obstructed the movement of two wheeler, which resulted in the accident. The first petitioner is the wife of the deceased, the second respondent is the mother of the deceased and the petitioners are the children of the deceased, who are still minors. 2. The case of the petitioner is that Mr.Hari Prasad was a promising young man, most dynamic with lot of ideas and capacity to develop his life, he was an extrovert and commended good respect among persons belonging to all walks of life and particularly among the business people, he has stated to be well experienced in riding a motor cycle, was always a conscious driver and had been riding motor cycle over 15 years and that he was a graduate having a Bachelor degree in economics and was employed in the Managerial Cadre in Amaravathi Hotel and his employer taking into consideration his dynamism and intelligence gave him incharge of another subsidiary concern of the Hotel M/s.Ruchi Products. According to the petitioners, his zeal and enthusiasm had driven in to start in his own company and after resigning from his job. He started a owned Private Limited Company engaged in financing and set up the office at No.2 Sivprakasam Street, T.Nagar, Madras- 17 and was getting a salary of Rs.5,000/- per month from the finance company, apart from other emoluments and perks that he was eligible as the Managing Director of the Company. 3. At about 1.00 am, on 14/15-06-1995, when Mr.Hari Prasad was proceeding in his motor cycle towards Mylapore from Royapettah in the Royapettah High Road, when near the main signal opposite to Ajantha Hotel, the lid of the manhole on the road was not closed, it was protruding and not visible in the night and when the motor cycle hit against the protruding manhole lid, the petitioner was thrown out of the motor cycle, sustained injuries on head and died, on the way to the hospital. According to the petitioners, the reason for the accident is that the manhole lid was not properly closed and the failure on the part of the respondents to maintain the manhole in a proper manner has caused the accident, was widely reported in "The Hindu" dated 16.06.1995, by stating that the lid of protruding manhole claimed the life of Mr.Hari Prasad. The news item further stated that the Adyar Traffic Police have registered a case and are investigating. The petitioners also placed reliance on certain letters to the Editor, written by certain readers. It has been further stated in the affidavit that strangely the corporation had influenced the police to prepare a false F.I.R, as if an eye witness, who had stated that the accident occurred due to the fault of the rider of the motor cycle. 4. The petitioners claimed that the deceased was getting a monthly income of Rs.5,000/- and that apart, he was eligible for another income of Rs.5,000/- per month, for the service rendered https://hcservices.ecourts.gov.in/hcservices/ apart from share in the profit of the company. Therefore, the petitioners assessed his monthly income at Rs.10,000/- and the share in the profits would be not less than Rs.16,000/- per annum and that the deceased was a hale and healthy person and would have lived for another 35 years, since the father of the deceased lived up to 65 years and the deceased left behind the young widow and two minor children, aged about 2 years and 45 days at the time of the accident. It has been emphatically stated that the accident occurred due to the protruding lid of the manhole. Originally, when the writ petition was filed the Commissioner of Corporation was the sole respondent. Subsequently, the Chennai Metropolitan Water Supply and Sewerage Board and the Government of Tamil Nadu were impleaded as respondents 2&3, as per the order of this Court dated 20.10.2008 in W.P.M.P.No.1390 of 2008. 5. The first respondent has filed a counter affidavit in which they have denied the allegations of negligence on the part of the corporation in maintaining the roads and stated that if the lid was protruding the rider should have taken a diversion and gone and that probably, the driver was under the influence of alcohol and fell down or he could have ride the bike and very high speed. It is further stated that the water supply and drainage system is being maintained by second respondent from 1978 onwards and that the second respondent was the proper party to be added as the respondent. It has been further stated that the F.I.R. would show that the accident occurred only due to the fault of the deceased and the writ petition has been filed after five years and the claim is belated. It is further stated that there is no material produced by the petitioners to show that the accident occurred, only due to the negligence on the part of the respondents. It is relevant to note that though heavy reliance has been placed on the First Information Report said to have been registered, neither the counsel for the first respondent corporation or Chennai Metropolitan Water Supply and Sewerage Board were able to produce the same before this Court, in spite of the matter having been adjourned for such purposes on several occasions. Further, the learned counsel appearing for the writ petitioner also pleaded inability to produce any such F.I.R as stated by the respondents 1& 2. Therefore, the matter is proceeded further on the basis that there is no F.I.R on record as contended by the first respondent Corporation. 6. The second respondent has filed a counter affidavit inter alia contending that the deceased met with the accident on 15.06.1995 at 1.00 am and the accident occurred, while the vehicle of late Hari Prasad had pressed the manhole and consequently the manhole overturned having obstructed the vehicle movement and therefore, the accident occurred only due to the negligence of Hari Prasad. Further, it is stated that the deceased would have driven the vehicle in a hectic speed and would have ended in the accident. It is further stated that in the accident register, it has been mentioned https://hcservices.ecourts.gov.in/hcservices/ as Motor Bike Jumping over a ditch and hit against a tree on Royapettah High Road. Therefore, the second respondent would contend that they are not liable to pay any compensation. 7. The learned counsel appearing for the petitioners after elaborately setting out the facts of the case would contend that this Court has sufficient jurisdiction to grant compensation in such cases and in fact it has been clearly established from the averments in the counter affidavit that the accident occurred only due to the protruding manhole cover. The learned counsel prayed for fixing just compensation for the legal heirs of the victim. The learned counsel for the respondents would contend that the writ petition is not maintainable for claiming damages and when the tortious liable has been denied, the question of granting compensation does not arise. 8. Having considered the submissions on either side and having perused the materials on record, the first aspect, which has to be considered is as to whether a writ petition could be entertained for a prayer to grant compensation. The Hon'ble Supreme Court in Kumari Vs. State of Tamil Nadu and others [(1992) ACJ 283], directed payment of compensation of Rs.50,000/- for the death of 6 year old son of the appellant therein, who fell in a deep sewerage tank, a sum of Rs.50,000/- was directed to be paid with interest at 12% and the amount was to be paid by the State of Tamil Nadu with liberty to recover from the appropriate respondent. This Court in D.Matsa Gandhi Vs. Tamil Nadu Slum Clearance Board rep. by its Chairman, Madras -5 [2000 (III) CTC 24], considered the issue as to whether compensation could be granted in a writ petition. This Court held as follows:- "10. In the course of argument it is brought to my notice the recent decision of the Hon'ble Supreme Court reported in Nath Bros., Exaim International Ltd., v. Best Roadways Ltd., 2000 (4) S.C.C. 553 and power of this Court under Article 226. Nodoubt, the Hon'ble Supreme Court has not accepted the action of the High Court in granting compensation to the family of the victim who died by electrocution in a writ petition filed under Article 226. It is equally true that when disputed questions of fact arises and if there is clear denial of tortious liability remedy under Article 226 of the Constitution may not be proper. However, in the very same judgment their Lordships after saying so, in paragraph 10 have observed. '....However it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution.' (Italics Supplied) In such circumstance and in view of the factual conclusion as referred to above, I am of the view that the petitioner is https://hcservices.ecourts.gov.in/hcservices/ entitled reasonable compensation from the respondent for the death of her daughter and in the interest of justice this Court would be justified in considering the relief prayed by the petitioner. 11. In Parvati Devi and Others V. Commissioner of Police, Delhi and others [2000 (3) S.C.C. 754] the Hon'ble Supreme Court awarded compensation of Rs.1 lakh to the legal heirs in respect of death which was on account of electrocution while walking on the road. In that decision their Lordships have held, "..... Once it is established that the death occurred on account of electrocution while walking on the road, necessarily the authorities concerned must be held to be negligent, and therefore, in the case on hand, it would be NDMC who would be responsible for the death in question." After noting that the deceased was aged about 54 years on the date of death and his retirement is 60 years, the Hon'ble Supreme Court awarded a compensation of Rs.1 lakh in favour of the legal heirs of the deceased and directed NDMC to pay the same within three months from the date of order, failing which it will carry interest at the rate of 12 per cent. 12. Now, I shall consider the quantum of compensation payable to the petitioner. It is the case of the petitioner that at the time of the accident her daughter was aged about 17 years and she was working in an Export Garment Factory. It is also seen from the information furnished that apart from the deceased daughter the petitioner is having 3 sons and three daughters. Considering all the above aspects, I hereby direct the respondent – Slum Clearance Board to pay a sum of Rs.75,000.00 (Rupees Seventy five thousand only) as compensation within a period of four weeks from the date of receipt of a copy of this order, failing which the petitioner is entitled interest at the rate of 12 per cent from today." 9. In a recent decision of this Court (Justice K. Chandru) in W.P.No.6838/99 dated 31.10.2008. This Court was considering a similar case and after referring to the Judgment in the case of Kumari and D.Matsa Gandhi as referred above, this Court held as follows:- "10. Therefore, in the light of the above, the petitioners need not be driven to the remedy of Civil Court since the factum of negligence has been admitted. The death of the minor child is also not disputed, i.e. that it was due to drowning by falling into the open manhole. Since the first respondent Metro Water Board and the third respondent Slum Clearance Board are fighting over jurisdictional issue, the same shall be determined by the Chief Secretary to the Government of Tamil Nadu, who has been impleaded as the fifth https://hcservices.ecourts.gov.in/hcservices/ respondent herein. Depending upon the responsibility, the respective Board will make good the amount. But on that account they need not delay any relief being given to the petitioners. 11. With reference to the question of quantum of compensation, it must be stated that the matter is already 10 years old. If the compensation of Rs.50,000/- is awarded as in Kumari's case (cited supra), then the 10 years delay in making such payment at this point of time, will make the amount illusory. Therefore the sum of Rs.2 lakhs claimed by the petitioners towards the death of their minor son is just and proper. 12. In the light of the above, the fifth respondent Chief Secretary to the Government of Tamil Nadu is hereby directed to pay Rs.2 lakhs to the petitioners within a period of four weeks from the date of receipt of a copy of this order. After fixing the liability on either of the Board, the amount paid can be recovered by the Government. It is needless to state that such a course of action has also been adopted by the Supreme Court in Kumari's case (cited supra)." 10. Therefore, in view of the law as stated above, when there is negligence on the face of it and there is a infringement of Article 21 of the Constitution, there cannot be a bar for this Court to proceed under Article 226 of the Constitution and it is not that in every case of tortious liable the person has to be driven to file a civil suit. If the facts of the present case are analysed bearing in mind the above legal proposition, it is to be noted that the second respondent in their counter affidavit have admitted as to the manner in which the accident occurred. It is useful to extract certain portions of the counter affidavit of the second respondent:- 2..... The accident occurred while the vehicle of late Hariprasad has pressed the manhole and consequently the manhole overturned having obstructed the vehicle movement. Therefore, the accident occurred only due to the negligence of late Hariprasad. 3..... Moreover in the accident register it has been mentioned as "Motor Bike Jumping over a ditch and hit against a tree on Royapettah High Road". Hence this Respondent could not be held liable for the accident. 11. In the counter affidavit, the first respondent has referred to a F.I.R, which was not placed before this Court despite sufficient time having been granted. The report of the Motor Vehicle Inspector, who inspected the vehicle involved in the accident had certified that there is no mechanical defect, which could be attributed to the cause of the accident, by his report dated 16.06.1995. Further, the counter affidavit of the first respondent corporation proceeds merely on surmises and conjectures and in fact, they have disowned their responsibility on the ground that the manholes are maintained by https://hcservices.ecourts.gov.in/hcservices/ second respondent after the formation of the board during 1978. This aspect of the matter has not been denied by the second respondent board. Therefore, the responsibility of maintenance of the sewerage system and water supply system vest with second respondent and such maintenance shall include proper maintenance of the manhole lids. As could be seen from the counter affidavit of the second respondent as referred above, the accident has occurred after the vehicle pressed the manhole cover. Therefore, if the manhole cover was securely placed without giving any space for movement, this accident could have been easily averted. Therefore, in my view, the second respondent and its officers and subordinates did not exercise proper care and did not ensure that the manhole lid was tightly secure. Further, the second respondent placed reliance on the extract of the accident register, which states " Motor Bike Jumping over a ditch". 12. Thus, the accident has occurred because the Motor Bike Jumping over a ditch and in such circumstances, it can be easily concluded that there is sufficient evidence to show that there was negligence on the part of the second respondent in the manner in which the manhole cover had to be maintained. In such circumstances, this Court finds that this is a fit and proper case, where compensation should be awarded. 13. The petitioners have claimed a compensation of Rs.10,00,000/- and made certain averments in the affidavit filed in support of the writ petition. However, there is no document produced to establish the proof of income and other details, which have been pleaded. Therefore, to meet ends of Justice and interim compensation could be awarded to the petitioners in the instant case, which could be qualified at Rs.2,00,000/- and also giving liberty to the petitioners to claim higher sum by initiating appropriate civil proceedings and substantiating the loss income and the loss sustained on various other heads. Taking into consideration that the writ petition was filed on 25.04.1997 and the matter has been pending and disposed of by this order, if a claim for further compensation is filed by the petitioners before the Competent Civil Court or such other forum as they may be advised, such Court/Forum shall take into consideration, the pendency of the writ petition, while deciding the issue relating to limitation, which may be raised by the contesting respondents. 14. In the result, the writ petition is allowed with the following direction:- i) The second respondent shall pay the first petitioner, a sum of Rs.2,00,000/- being interim compensation for the death of her husband in the road accident on 15.06.1995, cause due to the protruding manhole lid and such compensation shall be paid within a period of four weeks from the date of receipt of a copy this order. https://hcservices.ecourts.gov.in/hcservices/ ii) The payment shall be made in the name of the first petitioner Mrs.D.Manimegalai, who shall receive the same for and on behalf of herself and on behalf of the petitioners 2 to 4. iii) Liberty is granted to the petitioners to file appropriate proceedings before the Competent Civil Court or other forum as they may be advised for claiming further compensation. iv) If, in the event of the petitioners filing such petition for further compensation such Court/Forum shall take into consideration that the above writ petition was filed before this Court on 25.04.1997 while deciding the issue relating to limitation, which may be raised by the contesting respondents. There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To 1. The Commissioner, Corporation of Madras – 3. 2. The Chairman & Managing Director. Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, 3. The Secretary The Government of Tamil Nadu Department of Municipal Administration and Water Supply, Secretariat, Chennai – 600 009. 1 cc To Mr.B.Mani, Advocate, SR.192. 1 cc To Mr.T.Mathi, Advocate, SR.454. 1 cc To The Government Pleader, SR.70219. W.P.No.10033 of 2000 BK(CO) RVL 12.01.2010 https://hcservices.ecourts.gov.in/hcservices/