IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.09.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P. No.32699 of 2007 and M.P.No.1 of 2007 1.Saraswathy 2.Manimekalai 3.Shankar .. Petitioners 4. /vs/ 1.The Managing Director TWAD Board No.31, Kamaraj Salai Chennai 600 005 2.The Commissioner Villivakkam Panchayat Union Ambattur Township Chennai 600 053 3.The Chennai Metropolitan Water Supply and Sewerage Board Chennai R3-suomotu impleaded as per order dated 21.7.2011. .. Respondents (R2 cause title amended as per order dated 30.1.08 in M.P.2/07 in W.P.32699/07) PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents to pay a compensation of Rs.7,00,000/- (Rupees Seven Lakhs only) for the death of the husband of the first petitioner and father of the second and third petitioners namely, Rajendren, due to careless and negligent act of the respondents. For Petitioner : Mr.S.Umapathy For Respondent 1 : Mr.V.P.Raju For Respondent 2 : Mr.K.V.Dhanapalan For Respondent 3 : Ms.Poonam R.Chopra https://hcservices.ecourts.gov.in/hcservices/ ORDER It is the case of the first petitioner that her husband, who was a painter and aged about 45 years, while returning from his work in his bicycle on 15.05.2007 fell into the drainage pit dug in 6th Main Road, 3rd Cross Street, Near Ayyapakkam Higher Secondary School by the local authorities for drainage purposes and he had sustained injuries all over the body, particularly in the head and spinal cord. He was admitted in the nearby hospital, thereafter he was shifted to General hospital, where he died on 23.05.2007 due to the injuries sustained by him. The first petitioner lodged a compliant with Thirumullaivail Police Station on 23.05.2007 and First Information Report was also registered. 2. The first petitioner alleges that her husband died on 23.05.2007 due to the carelessness and negligence on the part of the respondents to maintain the drainage by taking preventive measures around the pit dug. It is further alleged that no caution board was kept and barbed wires or wooden sticks/planks were not installed and the pit was also left open without any sand pile around it. If preventive measures were taken, the alleged incident would have been avoided. As the sole bread winner of the family was lost, the petitioner sent a notice on 11.07.2007 to the respondents 1 and 2. There was no reply from respondents 1 and 2. Therefore, the petitioner has come before this Court seeking compensation for the death of her husband. 3. A counter affidavit has been filed on behalf of the first respondent stating that the Tamil Nadu Water Supply and Drainage Board has no jurisdiction in Chennai Metropolitan area, which comes under Chennai Metropolitan Water Supply and Sewerage Board. Therefore, the first respondent is not responsible for the above incident. 4. The second respondent filed a counter affidavit stating that no such drainage work was carried out at the said time and the said area was developed by the Housing Board in the year 1992-1996 and after completion of the drainage work the common area was handed over to the panchayat in the year 2004 and there is no negligence on the part of the second respondent. Its responsibility is to maintain the drainage work. 5. The third respondent, who was subsequently impleaded, filed a counter affidavit stating that it did not carry out either Water Supply Scheme or Sewerage Scheme in Ayyapakkam and it did not dig any pit. By filing those counters, the respondents denied their liability. 6. Mr.S.Umapathy, the learned counsel appearing for the petitioners submitted that because of the negligence on the part of https://hcservices.ecourts.gov.in/hcservices/ he respondent the first petitioner's husband died and soon after the incident the complaint was registered with the police and notice was issued to the respondents and so far no amount was paid and therefore, the petitioners have come before this Court. 7. Mr.K.V.Dhanapalan, learned Additional Government Pleader appearing for the second respondent/Panchayat Union submitted that the area was developed by the Housing Board and no work was executed during the relevant period and, therefore, there is no chance for the petitioner to fell into the pit and sustain injuries. Similar arguments were advance by the other respondents. 8. Heard the parties and perused the materials available on record. 9. It is true that the first petitioner's husband died on 23.05.2007 due to injury in the spinal cord. The First Information Report registered on 23.05.2007 would reveal that the first petitioner's husband fell in to the pit dug for drainage purposes. The relevant portion of the First Information Report is extracted as follows:- vdJ fzth; kzp vd;gth; fle;j 15-5-2007 md;W ,ut[ 8/30 kzp mstpy; vdJ fzth; ntiyf;F ngha;tpl;L tUk; nghJ vd; tPl;od; mUfpYs;s ghjhs rhf;filf;F njhz;oa gs;sj;jpy; jtwp tpGe;Jtpl;lhh;/ ///////////////// @rpfpr;ir gydpd;wp ,d;W 23-5-2007 md;W fhiy 6/30 kzp mstpy; vdJ fzth; ,we;Jtpl;lhh;@ 10. The accident register dated 16.05.2007 would also show that the victim is alleged to have fallen in to a pit at Ayyapakkam. The Post Mortem Report dated 23.05.2007 would show that the victim died due to cervical, spinal, injuries sustained. The statement given by the local people would confirm that the first petitioner's husband fell into the drainage pit. That apart, the information provided by the Inspector of Police T-10 Thirumullaivaill Police Station, Chennai 600 062 with regard to the cause of death of the first petitioner's husband reads as follows:- "15/ ,d;d fhuzj;jpdhYk; ,d;d khjphpahft[k; kuzk; nehpl;lbjd;gJ tprakha; g";rhaj;J egh;fspd; mgpg;gpuhak; gpnujkhdth; bgapz;o'; Typntiy bra;Jtpl;L jd; tPl;ow;F jpUk;gp tUk;nghJ 15/05/2007 e; njjp 20/30 ,ut[ neuj;jpy; ma;ag;ghf;fk; cah;epiyg; gs;sp mUfpy; 6?tJ, 7?tJ bkapd; nuhL gphpa[k; ,lj;jpy; cs;s ehd;F kPl;lh; rhiyapy; l;iune!; gs;sj;jpy; jtwp tpGe;J Kjfpy; vGk;g[ Kwpt[ Vw;gl;L rpfpr;ir gydpd;wp kUj;Jtkidapy; ,w;eJs;shh; vd;w fUj;jpid rhl;rpfs; https://hcservices.ecourts.gov.in/hcservices/ kw;Wk; g";rhaj;jhh;fs; Kd;dpiyapy; tprhuiz bra;jjpy; Vf kdjhf ahnfhgpj;Jk;. jdpj;jdpahft[k; fUj;J bjhptpj;jdh;/@ The aforesaid information provided by the police would show that, as per the investigation, the first petitioner's husband fell into the drainage pit and sustained injuries and died because of that. Therefore, it is conclusively proved that the first petitioner's husband died because of his fell into the drainage pit. It is also seen that the accident was widely given coverage in the newspaper on 24.05.2007 where it is stated that the victim fell into the drainage pit. 11. The respondents, who filed counter affidavits merely stated that they are not responsible for that. Para 7 of the counter of the second respondent/Villivakkam Panchayat Union reads as follows:- "7. I deny the entire allegation made by the petitioner in the affidavit filed in support of writ petition, the said allegations are baseless and without any material evidence. It is submitted that no such drainage work was carried out at the said time as alleged by the petitioner. Actually the said place is Housing Board area build up by the Housing Board in the year 1992-1996. While the carrying out the constructions of the flats the Housing Board only formed and carried out the underground drainage work and they have also constructed to pumpwise for the drainage progresses and after the completion of the construction of work the common area was handed over to the panchayat in the year 2004 hence is no way the respondent is concerned with the construction of said flats or formation of the underground drainage. Hence, the allegation of the petitioner is baseless and without any material evidence and the said allegation is made with a malafide intention to get compensation. As far as the duty of the Panchayat Union is concerned they have to only maintain the drainage works and that to particularly based on the resolution passed by the panchayat, and if the work is heavy in nature, tender should be called for and based on that only the formation of any drainage or major work of the drainage maintenance will be carried out by the panchayat. The minor work alone will be carried out by the sanitary workers." From the above, it is very clear that the area was developed by the Housing Board in the year 1992 -1996 and the Housing Board only carried out the underground drainage work and after completion of construction, the common area was handed over to the second https://hcservices.ecourts.gov.in/hcservices/ respondent/Panachayat Union in the year 2004. Therefore, it is evident from the year 2004 onwards the second respondent/Union has been maintaining that area. 12. Though it has been contended by the second respondent that no work was executed during the relevant period and so that the pit could not have been dug, a perusal of the resolution book of the second respondent would reveal that the repair work in the drainage pit was carried out and it was authorised by resolution No.129 dated 26.04.2007. The said resolution reads as follows. Resolution No. 129 : Cuhl;rpapy; 1?tJ thh;L jkpH;ehL tPl;L trjp thhpak; gFjpapy; cs;s fHpt[ ePh; Rj;jpfhpg;g[ epiyak; I and II blyptphp iyd; igg; iyd; fhy;tha; cilg;g[ Vw;gl;lij jpUntw;fhL bkapd; nuhL gFjpapy; 6 ,l';fspy; mjid fl;Lkhd bghUl;fs; bfhz;L gGJ ePf;fp rhp bra;j tifapy; ,k;kd;wk; Xg;g[jyspf;f/ //// xg;g[jy; mspf;fg;gl;lJ/ Resolution No. 131 : ma;ag;ghf;fk; Kjy;epiy Cuhl;rpapy; 1?tJ thh;L jkpH;ehL tPl;Ltrjp thhpak; gFjpapy; kid vz;/7758. 7748. 7779. 7745. 5440. 5424.5423. 5464. 4328 Mfpa kid vz;fs; bfhz;l gFjpapy; rhiyapy; ghjhsr; rhf;fil fHpt[ ePh;fhy;tha; milg;g[ ePf;fp Rj;jk; bra;j tifapy; Typ tH';fpajw;F ,k;kd;wk; xg;g[jyspf;f/ /// xg;g[jy; mspf;fg;gl;lJ/ The aforesaid resolutions would clearly establish that there were repairs in the underground drainage pipeline and the same was repaired. Hence, it is futile on the part of the second respondent to contend that there was no work carried out by the second respondent and their could not have been a pit in that area at the relevant time. Therefore, this Court has got no hesitation to come to the conclusion that because of the repair work carried out by the second respondent/Panchayat Union, the pit was dug and in the said pit only the first petitioner's husband fell down and sustained injuries in the spinal cord and because of that he died. As stated by the petitioner, if sufficient safeguards or preventive measures were taken by the second respondent, the above incident would have been averted. Therefore, the second respondent is guilty of negligence and is liable to pay compensate the petitioners. 13. One more factor which has to be considered by this Court is the notice dated 11.07.2007 sent by the petitioners calling upon the respondents to pay a sum of Rs.10,00,000/- as compensation. Though, the said notice was received by the second respondent, which was proved by the acknowledgment card, neither reply was sent nor amount was paid. It is disheartening to note that the first https://hcservices.ecourts.gov.in/hcservices/ petitioner's husband died in the year 2007 and so far no amount was paid to the family of the deceased. As this Court finds that the pit was dug by the second respondent only, the second respondent was negligent and is alone responsible for the death of the first petitioner's husband and, the second respondent is liable to pay the compensation. 14. Though the learned counsel for the second respondent submitted that the issue involves adjudication of facts and proper remedy is filed to civil suit, this Court finds based on the records produced that the second respondent alone is responsible for the incident. Moreover, the bread winner of the family is lost. After lapse of four years from the date of incident, it would not be appropriate for this Court to direct the petitioner to approach the Civil Court for proper remedy. Moreover, the facts cannot be disputed in view of the records produced and this Court under Article 226 of the Constitution of India can grant compensation to the petitioners. Quantum 15. With regard to the quantum of compensation, what has to be taken into consideration is the age and avocation of the victim. No counter has been filed with regard to the age and avocation and, therefore, it is deemed that what has been stated in the affidavit has been admitted by the respondents. The first petitioner contended that her husband was aged about 45 years and was earning about 3000/- per month as painter. The formula for arriving compensation can be followed from the provisions of the Motor Vehicles Act. The first petitioner's husband aged about 45 years at the time of the incident and therefore the relevant multiplier to be adopted is "15". As per the Judgment of the Hon'ble Supreme Court in The New India Assurance Company Limited vs. Smt.Kalpana and Ors reported in MANU/SC/0498/2007=(2007)3SCC 538 if no material is produced with regard to the monthly income of the person who sustained injury/victim, the monthly contribution to the family can be taken as Rs.3,000/-, after deducting 1/3rd towards his personal expenses. In view of that, this Court determines a sum of Rs.3,000/- as monthly contribution to the family and the multiplier to be adopted is '15'. Therefore, the compensation is calculated as follows:- The yearly contribution of the victim to the family is Rs.36,000/- (Rs.3,000x12=36,000/-). The total contribution would be (Rs.36,000x15=5,40,000/-) Rs.5,40,000/-. The first petitioner lost her husband at the age of 43 years and she was deprived of companionship of her husband and therefore she has to be granted Rs.20,000/- towards loss of consortium. The second and third petitioners, being son and daughter, have lost love and affection and care of their father and therefore, a sum of Rs.10,000/-each is granted towards loss of love and affection. A a sum of Rs.10,000/- towards funeral expenses and a sum of Rs.10,000/- towards https://hcservices.ecourts.gov.in/hcservices/ transportation are granted. The break up details are as follows:- Loss of income : Rs. 5,40,000/- Loss of consortium to the first petitioner : Rs. 20,000/- Loss of love and affection to second and third petitioners : Rs. 20,000/- Transportation charges : Rs. 10,000/- Funeral expenses : Rs. 10,000/- ------------------------- Total : Rs. 6,00,000/- ------------------------- The second respondent is liable to pay a sum of Rs.6,00,000/- with 12% interest from the date of receipt of the notice dated 11.07.2007 issued by the petitioners to the respondents claiming compensation till the date of payment within a period of twelve weeks from the date of receipt of a copy of this order. 16. In the result, the writ petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ari To 1.The Managing Director TWAD Board No.31, Kamaraj Salai Chennai 600 005 2.The Commissioner Villivakkam Panchayat Union Ambattur Township Chennai 600 053 https://hcservices.ecourts.gov.in/hcservices/ 3.The Chennai Metropolitan Water Supply and Sewerage Board Chennai 1 cc to Mr.V.P.Raju, Advocate, Sr.No.60646 1 cc to Mr.S.Umapathy, Advocate, Sr.No.60187 W.P.No.32699 of 2007 MSM {CO} TP/12.11.2011. https://hcservices.ecourts.gov.in/hcservices/