IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24-10-2008 CORAM THE HON'BLE MR.JUSTICE K. CHANDRU WRIT PETITION No.17134 of 1999 M. Subramani ... Petitioner vs 1. The Assistant Commissioner Regional Office-I Chennai Corporation No.266, T.H. Road Chennai-600 021 2. The Commissioner Chennai Corporation Rippon Building Chennai 3. The Secretary to Government of Tamil Nadu Local Administration and Rural Development Secretariat, Chennai-9 (impleaded as per Court order dated 25.9.2008 in WPMP No.1477 of 2008 in WP No.17134/1999 by KKSJ ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Mandamus directing the respondents to pay compensation to a sum of Rs.1,00,000/- to the petitioner. For petitioner : Mr.B. Nedunchezhian For respondents : Mr.G.T. Subramanian 1&2 For 3rd respondent : Mr.A. Arumugam, Spl.GP ORDER The petitioner seeks for a Writ of Mandamus directing the respondents to pay compensation of Rs.1,00,000/- to the petitioner on account of the death of his son on 5.9.2008. The petitioner's son was https://hcservices.ecourts.gov.in/hcservices/ aged about 1 ½ years and they were residing at No.51, Karanesan Nagar, Korrukkupettai, Chennai-600 021. Near the house of the petitioner storm water drain cleaning work was going on 5.9.2008. The cleaning work was done by the employees of the respondents. After completing the work, the employees of the respondents 1 and 2 Corporation did not close the cement slabs. Since the child was playing on the road, the child fell in to the storm water drain. The child drowned into the canal and died. He was taken to Government Stanley Hospital for conducting post morotem and the post mortem report reveals that the child died due to drowning in the canal. 2. The matter was widely published in the newspaper. The petitioners sent a complaint to the Chief Minister's Grievance Cell and remarks were called for from the Zonal Officer-I, Corporation of Chennai. In the remarks dated 18.12.1998 the Zonal Officer informed the Special Officer, Chief Minister's Grievance Cell that Storm Water drain in Zone I Ward III is having depth of 3 feet and was built during 1987. Thd said drain goes across the Manali Road and reached Buckingam canal. The respondents have also acknowledged that they were informed that the child fell into ditch and police department informed the Corporation. 3. When the officials of Corporation visited the place on 6.9.98, they found that out of 3 slabs, covering lid, middle slab had fell into the canal. It was also stated that they were not aware that whether the slab fell after the work was completed as alleged by the petitioner or that the slab was not put up by closing the lid. In any event, as can be seen from the affidavit filed in support of the petition, a sum of Rs.2,000/- was paid by the 1st respondent. 4. The petitioner has also stated that out of two children, they have lost the son and are having only the daughter. The petitioners are suffering from mental agony and it cannot be compensated. The petitioner made representation and the same has not been suitably replied. Hence the present petition has been filed and the same was admitted on 25.10.1999. The prayer for the interim relief of payment of Rs.12500/- was rejected by this Court by order dated 1.9.2003. Subsequently, the petitioner has impleaded the State Government as third respondent by an order dated 25.9.2008 and notice was taken by the learned Special Government Pleader. 5. In any event, insofar as the death of the petitioner's son viz., Venugopal, aged about 1 ½ years, the respondent Corporation is squarely responsible because of their negligence and not keeping the storm water drainage in closed condition, such incident had taken place. Otherwise, the minor Venugopal is only 1 year and 2 months and he cannot be expected to know the danger of the storm water drainage kept in an open condition. 6. Despite notice from this Court, as early as in the year 1999 and 9 years have been lapsed, the respondents 1 and 2 have not taken any care to file any affidavit nor produced any file. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr.Nedunchezhian, learned counsel appearing for the petitioner brought to the notice of this Court the decision of the Hon'ble Supreme Court in Kumari(Smt) vs State of Tamil Nadu and Others reported in 1992 SCC (Crl) 386. In the above said judgement, paragraphs 2 and 3 , which read a follows: 2. Six years old son of the appellant died as a result of falling in a ten feet deep sewerage tank in the city of Madras. The tank was not covered with a lid and was left open. The appellant filed a petition under Article 226 of the Constitution of India before the Madras High Court seeking a writ in the nature of Mandamus directing the respondents to pay Rs.50,000/- as compensation to the appellant. The High Court dismissed the writ petition on the ground that in writ jurisdiction it was not possible to determine as to which of the respondents was negligent in leaving the sewerage tank uncovered. 3. In the facts and circumstances of this case, we set aside the High Court Judgment anddirect the respondent 1, the State of Tamil Nadu shall pay to the appellant a sum of Rs.50,000/-(Rupees fifty thousand) with interest at 12 percent per annum from January1, 1990 till the date of payment. The amount shall be paid within six weeks from today. It will be open to the State of Tamil Nadu to take appropriate proceedings to claim the said amount or any part thereof from any of the respondents or any other authority which might be responsible for keeping the sewerage tank open. The claim, if made, will be decided in accordance with law." 8. In that case, an amount of Rs.50,000/- was fixed based upon no fault liability available in the Motor Vehicles Act and this was rendered 16 years ago. With the current cost of living and the value of money, the claim of Rs.1,00,000/- claimed by the petitioner cannot be said to be excessive or imaginary. Further the incident took place in the year 1998 9. In the light of the same, the 2nd respondent Corporation is directed to pay a sum of Rs.1,00,000/-(Rupees one lakh only) to the petitioner within a period of four weeks from the date of receipt of copy of this order and report compliance to this Court. 10. Any failure in this regard, will be viewed seriously by this Court. https://hcservices.ecourts.gov.in/hcservices/ 11. In result, the writ petition is allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sr To 1. The Assistant Commissioner Regional Office-I Chennai Corporation No.266, T.H. Road Chennai-600 021 2. The Commissioner Chennai Corporation Rippon Building Chennai 3. The Secretary to Government of Tamil Nadu Local Administration and Rural Development Secretariat, Chennai-9 Copy to: The Deputy Registrar(Writs) Writs, High Court, Madras. (To receive, the report of compliance) + 1 CC to Mr.B.Nedunchezhian, Advocate, SR.NO.59336 W.P.NO.17134 of 1999 SGL [CO] RB 4/11/2008 https://hcservices.ecourts.gov.in/hcservices/