1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.5601/2007 Narendra s/o Shankarlal Kapoor Vs. State of Maharashtra and others. ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande And Prasanna B. Varale, JJ. Order reserved on 28.1.2009. Order Pronounced on 30/1/2009 Heard Mr. P. Khubalkar, learned counsel for the petitioner, Mr. A. Deshpande, learned AGP for respondent no.1 and Mr. Khamborkar, learned counsel for respondents 4 and 5. None for respondents 2 and 3. By this petition, the petitioner seeks compensation against respondent no.4 President of New National Education Society, Mangalwari, Umred and the Head Master of National English School, Umred and further direction against respondents 1 to 3 to take action against respondents 4 and 5. It is the case of the petitioner that his son Shailesh aged six years was a student of Ist standard in National English School run by New National Education Society at Umred. On 21.7.2005 Shailesh went to the school and while playing along 2 with other children studying in the school fell in an uncovered well situated at the back side of the school. Shailesh expired on account of negligence of respondents 4 and 5 and, therefore, respondents 4 and 5 are bound to pay adequate compensation to the petitioner. Affidavit has been filed on behalf of the respondents 4 and 5 by Iftekhar Hussain Shamsuddin, the President of New National Education Society. Respondents 4 and 5 stated that Shailesh was never admitted in the school and at the time his body was taken out, he was not wearing the uniform of the school. It has been further stated that the well, in which Shailesh fell on account of which he expired, has no connection with the school. Mr. Khubalkar, learned counsel for the petitioner submitted that the petitioner is entitled to compensation since Shailesh fell in the well which was uncovered due to which he expired, which clearly discloses the negligence on the part of respondents 4 and 5 and as such respondents 4 and 5 are liable to pay compensation to the petitioner. According to learned counsel, Shailesh was a student of the respondents 4 and 5 school and the respondents 4 and 5 have falsely denied that he was a student of the school. He further submitted that the well was situated behind the school and as such the respondents 4 and 5 were bound to take adequate precaution by covering the well in order to ensure that the minor children taking education in the 3 school do not fall in the well. In support of his submissions, learned counsel relied upon the following judgments:- 1. M.S. Grewal and another vs. Deep Chand Sood And others : (2001) 8 SCC 151 and 2 Kumari (Smt.) vs. State of Tamil Nadu and others : (1992) 2 SCC 223. Per contra, Mr. Khambokar, learned counsel appearing for respondents 4 and 5 submitted that Shailesh was not a student of respondent no.5 school and the well was not situated within the school premises and, therefore, there is no negligence on the part of the respondents 4 and 5. He, therefore, submitted that the petition is liable to be dismissed. Having heard Mr. Khubalkar, learned counsel for the petitioner and Mr. Khamborkar, learned counsel for respondents 4 and 5 and having considered the materials on the record, we find that there are serious disputed questions of fact, which cannot be decided in the writ petition. Firstly, respondents 4 and 5 have denied that Shailesh was admitted in the respondent no.5 school. Moreover, there is serious dispute as to whether well in which Shailesh fell and died was within the school premises. These are the serious disputed questions of fact, which are required to be adjudicated in order to fasten the liability on the respondents 4 and 5. In our considered opinion, these questions cannot be decided in the present writ petition and on this ground 4 alone, the petition is liable to be rejected. Insofar as the authorities relied upon by Mr. Khubalkar are concerned, the same are not at all applicable considering the facts of the present case. In the case of M.S. Grewal (supra) the Apex Court has held that if the minor children are sent by the school for a picnic at a place near a river, the teachers accompanying the children have a duty to exercise high degree of care of the children and such liability is absolute. In the said case, the minor children were sent by the school accompanied by two teachers. The children who were playing near the river fell into “dibber” and were drowned. In this factual back ground, the Apex Court held that the teachers were in the course of employment and as such the school was liable for death of the children and the question whether the school management was joint tortfeasor was left open. The ratio laid down in the said judgment, obviously, is not applicable in the present case. In the case of Kumari (Smt.) (supra) the Apex Court held that State of Tamil Nadu was liable to pay compensation to the appellant whose six years' old son died as a result of falling in a ten feet deep open sewerage tank in the city of Madras since the tank was not covered and was left open, the Apex court awarded Rs. 50,000/- as compensation to the appellant. The facts being entirely different, the ratio laid down in the said case, is clearly not attracted in the present case. 5 Since the petition involves disputed questions of fact, we are not inclined to entertain the petition. Accordingly, the petition is rejected. Needless to mention that dismissal of the writ petition will not come in the way of the petitioner from seeking any other appropriate remedy if available in law. JUDGE JUDGE Ambulkar.