IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPIL No. 7 of 2014 .

Reserved on: 14.12.2015 Decided on: 02.01.2016 Court on its own motion ...Petitioner.

of Versus State of Himachal Pradesh and others ...Respondents.

Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting? Yes.

For the petitioner: Mr. Dilip Sharma, Senior Advocae, as Amicus Curiae, with Mr. Manish Sharma, Advocate.

For the respondents: Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Additional Advocate General, and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 1 to 3, 5 to 9 and 12. Mr. Shrawan Dogra and Mr. Satyen Vaidya, Senior Advocates, with Mr. Satish Sharma, Advocate, for respondents No. 4, 10 and 11.

Mr. Rajnish Maniktala, Advocate, for respondents No. 13, 23 and 24.

Mr. V. Pattabhi and Mr. Rajnish Maniktala, Advocates, for respondent No. 22.

Mr. Tek Chand Sharma, Advocate, for respondents No. 14 and 15.

of Mr. Bimal Gupta, Senior Advocate, with Mr. Vineet Vashisth, Advocate, for respondents No. 16 and 17.

rt Mr. J.S. Bhogal, Senior Advocate, with Mr. Lovneesh Kanwar, Advocate, for respondent No. 18.

Mr. Lalit K. Sharma, Advocate, for respondent No. 19.

Mr. Bipin C. Negi, Senior Advocate, with Mr. Pranay Pratap Singh, Advocate, for respondent No. 20.

Mr. Ajeet Sharma, Advocate, for respondent No. 21.

Mr. S.C. Sharma, Advocate, for the applicant in CMP No. 9126 of 2014.

Mr. Ajay Mohan Goel and Mr. Suneet Goel, Advocates, for the interveners.

Mr. Ashok Sharma, Assistant Solicitor General of India, with Mr. Nipun Sharma, Advocate, for Union of India.

Mansoor Ahmad Mir, Chief Justice.

1. We are dealing with an unfortunate case, of which .

cognizance has been taken by this Court suo motu while going through a news item contained in Amar Ujala of issue, dated 09.06.2014. The news was so shocking and pricking that it shattered everyone. It was an unfortunate incident which has of snatched away 24 budding Engineers alongwith one tour rt conductor. All the 24 students were undergoing the course of B. Tech in Electronic and Instrumentation in respondent No. 13­College in Hyberabad, which is one of the first grade Engineering College.

2. In terms of directions, dated 09.06.2014, status report was filed and FIR No. 61 of 2014 was registered at Police Station Aut, District Mandi, under Sections 336 and 304­A of the Indian Penal Code (for short " IPC "). The investigation was conducted by the police and by now, it has been taken to its logical end by presenting final report (challan) under Section 173 of the Code of Criminal Procedure (for short " CrPC ") before the Court of competent jurisdiction.

3. The VNR Vigyan Jyoti Institute of Engineering and Technology, Hyderabad (for short "the College") came to .

be arrayed as party­respondent No. 13 in the array of respondents. Respondents No. 14 to 24 were also arrayed as party­respondents in terms of the orders passed by this Court of from time to time.

4. The inquiry report was submitted by respondent rt No. 12­Divisional Commissioner in the open Court on 19.06.2014, in presence of respondents No. 4, 10 and 11.

5. Interim compensation to the tune of ` 5,00,000/­ came to be granted in favour of the parents of each of the deceased students vide order, dated 25.06.2014. The H.P. State Electricity Board Limited (for short "the Board") and the College were saddled with the liability in equal shares.

6. The State authorities have filed status reports from time to time. Respondents have also filed replies and affidavits, which are at pages No. 11 and 43 of the paper book, including the inquiry report at pages No. 52 to 152 of the paper book.

7. Respondent No. 1­Chief Secretary to the Government of Himachal Pradesh has also filed photocopy of .

the instructions issued by the Board, which were to be observed by the officials before discharge of water from the barrage/reservoir, which are at page No. 23 of the paper book.

8. After noticing the unfortunate incident, respondent No. 3­Principal Secretary (Power) to the rt Government of Himachal Pradesh has issued instructions relating to the issue, which are contained at page No. 41 of the paper book.

9. The inquiry report contains the details relating to the negligence, prima facie, committed by the in­charge officers/ officials of the Board at the relevant point of time .

The said finding is recorded at page 77 of the paper book. It also contains suggestions to avoid such lapses/ recurrences and incidents, at pages No. 91 to 98 of the paper book.

10. Respondents filed response/objections/rejoinder to the said inquiry report, which are at pages No. 283, 417, 532 and 541 of the paper book.

11. In compliance to order, dated 25.06.2014, respondent No. 1­Chief Secretary to the Government of .

Himachal Pradesh has filed compliance report/affidavit, which is at page No. 575 of the paper book alongwith the inquiry report submitted by the Chief Engineer (Electrical), of Directorate of Energy, H.P., Shimla, who was appointed as Inquiry Officer to enquire into the matter regarding the rt functioning of the H.P. State Load Discharge Centre (for short "HPSLDC") and The Northern Region Load Discharge Centre (for short "NRLDC"), which finds place at page No. 579 of the paper book, containing the details of the provisions of the Indian Electricity Act, 2003 (for short "Act") relating to the National Load Dispatch Centre (for short "NLDC"), Regional Load Dispatch Centre (for short "RLDC") and State Load Discharge Centre (for short "SLDC"); applicability of the provisions of the Rules and Regulations and the findings relating to the working of NRLDC, how State is running and manning the projects, its control and how the projects in the State continue to run on full or in some cases more than the capacity.

12. The said inquiry report also discloses the details of the working of HPSLDC, at pages No. 618 to 635 of the paper .

book; analysis of power availability, at pages No. 636 to 638 of the paper book; findings on functioning of SLDC relating to the incident specifically, at pages No. 639 to 642 of the paper of book and the issues of importance and suggested remedial measures, at pages No. 643 to 646 of the paper book.

13. rt Respondents No. 5, 8 and 9 have filed status report of the case FIR No. 61 of 2014, at pages No. 866 to 871 of the paper book. Respondent No. 1­Chief Secretary to the Government of Himachal Pradesh has filed compliance report/affidavit (pages No. 873 to 891 of the paper book), in compliance to order, dated 09.07.2014, alongwith the minutes of the meeting held on 21.07.2014, to review implementation of Government instructions pursuant to the inquiry conducted by the Divisional Commissioner, Mandi and the inquiry report submitted by the Chief Engineer, Directorate of Energy, H.P., Shimla, contained at pages No. 880 to 888 of the paper book.

14. The responses/affidavits/status reports/compliance affidavits/additional documents/suggestions filed by the ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 8 respective respondents are contained at pages No. 892 to 1606 of the paper book.

15. Respondent No. 13­College has also placed on record proposal with regard to integrated, intelligent, safety management system for monitoring the reservoir regulation.

16. One Shri Om Prakash Sharma had submitted a letter/suggestions in the open Court, contained at page No. rt 1446 of the paper book, which stands replied by respondent No. 4­Managing Director, HPSEBL at pages No. 1501 to 1504 of the paper book.

17. The unfortunate parents, by the medium of CMP No. 2792 of 2015, have placed on record the material relating to the placement, remunerations, fees and other emoluments, the students of the respondent­College were being afforded by the companies at the time of their placement, contained at pages No. 1505 to 1520 of the paper book, which is practice prevalent in the said College, but unfortunately, their bright future stands snatched away, rather cut short and the parents stand deprived of the said source/income, hope and help in old age. They have also tried to assess the average loss to the ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 9 parents per year. It is apt to reproduce para 2 of CMP No. 2792 of 2015 herein:

18. The perusal of the information placed on record by the parents of the deceased students does disclose as to what ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 10 is the status of the College, ranking of the students, which plays vital role in getting placement in job and also in society .

and other benefits. Thus, the compensation may not redress their grievances, but, may be a solace.

19. The question is ­ whether this Court has of jurisdiction to entertain this writ petition and exercise powers under Article 226 of the Constitution of India to grant compensation?

20. The law has gone through a sea change and the Courts are intervening by invoking the jurisdiction under Article 226 of the Constitution of India and granting compensation.

21. In the cases titled as Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Legal Aid Committee) versus State of Orissa and others, reported in (1993) 2 Supreme Court Cases 746; Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others versus Sukamani Das (Smt) and another , reported in (1999) 7 Supreme Court Cases 298; and Tamil Nadu ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 11 Electricity Board versus Sumathi and others , reported in (2000) 4 Supreme Court Cases 543, the Apex Court has also .

laid down the parameters and held that the Court can grant compensation without relegating the parties to civil litigation provided there is prima facie proof on the file that the said of incident/accident has taken place due to negligence of the respondents­authorities. It has further been held that the rt petitions under Article 226 of the Constitution of India are maintainable and the Courts are within their jurisdiction to intervene. It would be profitable to reproduce para 17 of the judgment in Nilabati Behera's case (supra) herein:

22. The Apex Court in the cases titled as Syad Akbar versus State of Karnataka , reported in (1980) 1 Supreme Court Cases 30, has dealt with the issue. It is apt to reproduce paras 24 and 25 of the judgment herein:

Fredrichberg, (1968) 11 CLR 403; United Motors Service v. Hutson, 1937 SCR 294) seems to be that the maxim res ipsa loquitur raises only a 'Permissive Presumption' exemplifying ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 13 merely "the general principle of inferring a fact in issue from circumstantial evidence where the circumstances are meagre but .

significant." On this reasoning, Fleming has opined that "the maxim is based merely on an estimate of logical probability in a particular case not on any overriding legal policy that controls initial allocation of the burden of proof or, by means of mandatory of presumptions, its reallocation regardless of the probabilities of the particular instance." Fleming, then illustrates this proposition, by giving an example, which for our purpose, is rt pertinent :

time of judgment whether the proven or undisputed facts, as a whole, disclose negligence. [See Ballard's case (supra); The Kite, (1933) P. 154; Per Evatt J. in Davis v. Bunn (1936) 56 CLR 246, 267; Mummary v. Irvings proprietary Ltd. (Australia), (1956) of 96 CLR 99; Winnipeg Electrical Co. Ltd. v. Jacob Geat, AIR 1932 PC 246. See also : Brown v. Rolls Royace rt Ltd., (1960) 1 All ER 577; Hendersons v. Henry E. Jenkins and Sons, (1970) AC 282.]"

of The Constitution Bench has also assigned the reason for stating the law in the said terms. It is that the enterprise (carrying on the hazardous or inherently dangerous activity) alone has rt the resource to discover and guard against hazards or dangers and not the person affected and the practical difficulty (on the part of the affected person) in establishing the absence of reasonable care or that the damage to him was foreseeable by the enterprise."

26. A Division Bench of this Court, while dealing with a case of similar nature in the case titled as Deep Chand Sood and others versus State of H.P. and others , reported in 1996 (2) Sim. L.C. 332, after discussing the 'public law', doctrine of 'res ipsa loquitor' and other attending factors, held that the Court has jurisdiction to grant compensation and granted compensation to the tune of ` 5,00,000/­ (Rupees five lacs) to the parents of each of the deceased students.

27. The said judgment was questioned before the Apex Court in the case titled as M.S. Grewal and another versus .

Deep Chand Sood and others, reported in (2001) 8 Supreme Court Cases 151. The Apex Court, after examining all aspects, has virtually affirmed the reasons given of by this Court, also supplemented the reasoning and held that the Courts have to intervene in view of the development of law rt and other factors. It is apt to reproduce paras 8, 9 and 18 to 21 of the judgment herein:

Since the elements which go to make up the value of the life of the deceased to the designated of beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for rt measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the Appellate Court should be slow in disturbing the findings reached by the Courts below, if they have taken all the relevant facts into consideration."

(Emphasis supplied)

9. The observations as above, undoubtedly lays down the basic guidance for assessment of damages but one redeeming feature ought to be noted that compensation or damages ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 23 cannot be awarded as a solatium but to assess the same with reference to loss of pecuniary benefits. In the decision last noted [(Subramania Iyer), (1969) 3 .

SCC 64], this Court placed strong reliance on two old decisions of the English Courts, to wit: Franklin v. South Eastern Rly. Co., 157 ER 448 :

That was a case where the wrong was committed for the master's (viz., the bank's) benefit, and Willes J. stated this as an ingredient of liability (Exch at p.

"......the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved."

20. But a sharp distinction has been made as regards the group of cases which is concerned with the use of motor vehicles. These are the cases Lord Wilberforce observed : (All ER p. 70a­c) ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 26 "(i) where a servant has, without authority, permitted another person to drive the master's vehicle; (ii) where a servant has, .

without authority, invited another person on to the vehicle, who suffers injury; (iii) where a servant has embarked on an unauthorised detour, or , as lawyers like to call it, a "frolic of his own."

of These cases have given rise to a number of fine distinctions, the Courts in some cases struggling to find liability, in others to avoid it, rt which it is not profitable here to examine. It remains true to say that, whatever exceptions or qualifications may be introduced, the underlying principle remains that a servant, even while performing acts of the class which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts."

21. The English law, therefore, takes a softer attitude in cases where motor vehicles are involved in the matter of foisting of liability so far as the employer is concerned ­ the reason obviously being if the concerned employee acts in a manner contrary to the course of employment and on a "frolic of his own" ­ why should the employer be made responsible. It seems logical ­ but obviously there are cases and cases on the basis wherefor the liability of the employer ought to be fixed. The Privy Council in Kooragang Ltd. attributed "frolic of his own" to be ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 27 the exonerating factor but this frolic has also to be considered from facts to facts in the matter of foisting of liability on to the employer. In any event, we .

need not devote much of our time to the excepted cases, since we have in this country several legislations covering the "excepted categories". The recognition of broader approach however, stands undisputed and has also our concurrence herewith."

28. An important case has arisen before the Apex Court titled as Delhi Jal Board versus National rt Campaign for Dignity and Rights of Sewerage and Allied Workers and others, reported in (2011) 8 Supreme Court Cases 568. It is apt to reproduce paras 38 and 39 of the judgment herein:

29. It would also be profitable to reproduce para 92 of the judgment rendered by the Apex Court in the case titled as Charan Lal Sahu versus Union of India , reported in (1990) 1 Supreme Court Cases 613, herein:

30. The Apex Court in the case titled as Chairman, Railway Board and others versus Chandrima Das (Mrs) and others , reported in (2000) 2 Supreme Court Cases 465, held that writ petition under Article 226 of the Constitution of India against the State or its instrumentalities for payment of compensation is maintainable irrespective of ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 32 availability of alternative remedies. It is apt to reproduce paras 6, 7 and 9 to 11 of the judgment herein:

and "private law" was considered by a three­Judge Bench of this Court in Common Cause. A Regd. Society v. Union of India , (1999) 6 SCC 667 : AIR 1999 SC 2979 : (1999) 5 JT (SC) 237 :

High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for "any other purpose" which would include the enforcement of public duties by public bodies. So also the Supreme Court under Article 32 has the jurisdiction to of issue prerogative writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.

40. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Article 226 or 32 has been categorised as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other Articles dealing with Fundamental Rights, every executive action of the Govt. or other public bodies, including Instrumentalities of ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 34 the Govt., or those which can be legally treated as "Authority" within the meaning of Article 12 , if arbitrary, unreasonable or contrary to law, is now .

amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates."

8. ............

9. Various aspects of the public law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to rt contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Govt. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar , (1983) 3 SCR 508 : (1983) 4 SCC 141 : AIR 1983 SC 1086. (See also Bhim Singh v. State of J&K, (1985) 4 SCC 577; Peoples' Union for Democratic Rights v. State of Bihar, (1987) 1 SCC 265; Peoples' Union for Democratic Rights v. Police Commr., ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 35 Delhi Police Headquarters, (1989) 4 SCC 730; Saheli, A Women's Resources Centre v. Commr. of Police, (1990) 1 SCC 422; Arvinder Singh Bagga v.

State of U.P., (1994) 6 SCC 565; P. Rathinam v. Union of India, 1989 Supp (2) SCC 716; Death of Sawinder Singh Grower in re, 1995 Supp (4) SCC 450;

Inder Singh v. State of Punjab , ( 1995) 3 SCC 702, and D.K. Basu v. State of W.B. , (1997) 1 SCC 416.) of

10. In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under public law domain rt in Nilabati Behera v. State of Orissa , (1993) 2 SCC 746 : (1993) 2 SCR 581 :

People's Union for Civil Liberties v. Union of India , (1997) 3 SCC 433 : AIR 1997 SC 1203 : (1997 AIR SCW 1234) and Kaushalya v. State of Punjab, (1996) 7 SCALE (SP) 13; Supreme Court Legal Aid Committee v. State of Bihar , (1991) 3 SCC 482; Dr. Jacob George v. State of Kerala , (1994) 3 SCC 430 : 1994 (2) SCALE 563 : (1994 AIR SCW 2282); Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1995) 4 SCC 37 : AIR 1996 SC 2426 : ( 1996 AIR SCW 2964) and Mrs. Manju Bhatia v. N.D.M.C. , (1997) 6 SCC 370 : AIR 1998 SC 223 : (1997) 4 SCALE 350 : (1997 AIR SCW 4190).

11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages ::: Downloaded on - 15/04/2017 19:38:44 :::HCHP 36 and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries .

are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law."

31. The Apex Court in the case titled as M.P. Electricity Board versus Shail Kumari and others , rt reported in (2002) 2 Supreme Court Cases 162, has held that a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person irrespective of any negligence or carelessness. It is apt to reproduce paras 7, 8, 11 and 13 of the judgment herein:

12. .............

13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 39 been anticipated or at any rate its consequences should have been prevented by the appellant­Board. In Northwestern Utilities, Ltd. v. London .

Guarantee and Accident Company, Ltd.

(1936 AC 108), the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural of gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was rt a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage."

32. In the case titled as Sube Singh versus State of Haryana and others , reported in (2006) 3 Supreme Court Cases 178, the Apex Court held that the Courts may award compensation under Article 226 of the Constitution of India and the award of compensation against the State is an appropriate and effective remedy. It is apt to reproduce para 38 of the judgment herein:

33. The Apex Court in the case titled as Union of India versus Prabhakaran Vijaya Kumar and others , reported in (2008) 9 Supreme Court Cases 527, laid down the same proposition. It would be profitable to reproduce paras 22 to 36, 38, 41 to 43 and 48 to 52 of the judgment herein:

26. Many jurists applaud liability .

without fault as a method for imposing losses on superior risk bearers. Their argument is that one who should know that his activity, even though carefully prosecuted, may harm others, and should treat this harm as a cost of his activity. This cost item will influence of pricing, and will be passed on to consumers spread so widely that no one will be seriously effected (vide Article by Prof. Clarence Morris entitled 'Hazardous Enterprises and Risk rt Bearing Capacity' published in Yale Law Journal, 1952 p. 1172).

27. The rule in Rylands vs. Fletcher, (1868) LR 3 HL 330, was subsequently interpreted to cover a variety of things likely to do mischief on escape, irrespective of whether they were dangerous per se e.g. water, electricity, explosions, oil, noxious fumes, colliery spoil, poisonous vegetation, a flagpole, etc (see 'Winfield and Jolowicz on 'Tort", 13th Edn., p 425) vide National Telephone Co. vs. Baker, (1893) 2 Ch 186, Eastern and South African Telegraph Co. Ltd. vs. Cape Town Tramways Co. Ltd. (1902) AC 381, Hillier vs. Air Ministry, (1962) CLY 2084, etc. In America the rule was adapted and expressed in the following words " one who carried on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 43 hazardous, although the utmost care is exercised to prevent the harm" (vide Restatement of the Law of Torts, Vol. 3, p. 41).

28. Rylands vs. Fletcher (supra) gave English Law one of its most creative generalizations which, for a long time, looked destined to have a successful future. Yet, after a welcome start given to it by Victorian Judges the rule was of progressively emasculated, until subsequently it almost became obsolete in England. According to Dias and Markesins (see 'Tort Law' 2nd Edn., p.

355) one reason for this may well be rt that as a generalization justifying a shift from fault to strict liability it may have come prematurely. The 19th Century had not yet fully got over laissez faire, and it was only in the 20th Century that the concepts of social justice and social security, as integral parts of the general theory of the Welfare State, were firmly established.

29. As already mentioned above, the rule of strict liability laid down by Blackburn J. in Rylands vs. Fletcher (supra) was restricted in appeal by Lord Cairns to non­natural users, the word 'natural' meaning 'that which exists in or by nature, and is not artificial', and that was the sense in which it was used by Lord Cairns. However, later it acquired an entirely different meaning i.e. that which is ordinary and usual, even though it may be artificial' vide Rickards vs. Lothian, (1913) AC 263, followed in Read vs. Lyons, (1947) AC 156. Thus the expression 'non­natural' was later interpreted to mean 'abnormal', and ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 44 since in an industrial society industries can certainly not be called 'abnormal' the rule in Rylands vs. Fletcher (supra) was totally emasculated in these .

subsequent rulings. Such an interpretation, as Prof. Newark writes, 'would have surprised Lord Cairns and astounded Blackburn, J' (see article entitled 'Non­natural User and Rylands vs. Fletcher,' published in Modern Law Review, 1961 vol. 24, p.

30. In Read v. J. Lyons & Co. Ltd., (1947) AC 156, which was a case of injury due to a shell explosion in an rt ammunitions factory, Lord Macmillan while rejecting the claim of the plaintiff made further restrictions to the rule in Rylands vs. Fletcher (supra) by holding that the rule "derives from a conception of mutual duties of neighbouring landowners", and was therefore inapplicable to personal injuries. He also held that to make the defendant liable there should be escape from a place under the defendant's control and occupation to a place outside his occupation, and since the plaintiff was within the premises at the time of the accident the injury was not due to escape therefrom. In this way Read v. J. Lyons & Co. Ltd., (1947) AC 156, destroyed the very spirit of the decision in Rylands vs. Fletcher (supra) by restricting its principle to the facts of that particular case, instead of seeing its underlying juristic philosophy.

31. Apart from the above, some other exceptions carved out to the rule in Rylands vs. Fletcher (supra) are : (a) consent of the plaintiff; (b) common ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 45 benefit; (c) Act of stranger; (d) Act of God; (e) Statutory authority; (f) default of plaintiff etc. .

32. In Dunne vs. North Western Gas Board, (1964) 2 QB 806, Sellers L.J. asserted that the defendant's liability in Rylands vs. Fletcher, (1868) LR 3 HC 330 "could simply have been placed on the defendants' failure of duty to take reasonable care", and it seems a of logical inference from this that the Court of Appeals considered the rule to have no useful function in modern times. As Winfield remarks, the rule in Rylands vs. Fletcher (supra), by reason rt of its many limitations and exceptions, today seldom forms the basis of a successful claim in the Courts (see Winfield and Jolowicz on Tort, 13th Edn., p. 442), and it seems that the rule "has hardly been taken seriously by modern English Courts", vide Attorney General v. Geothermal Produce N.Z. Ltd., (1987) 2 NZLR 348.

33. As Winfield remarks, because of the various limitations and exceptions to the rule "we have virtually reached the position where a defendant will not be considered liable when he would not be liable according to the ordinary principles of negligence" (see Winfield on Tort, 13th Edn., p. 443).

34. This repudiation of the principle in Rylands vs. Fletcher (supra) is contrary to the modern judicial philosophy of social justice. The injustice may clearly be illustrated by the case of Pearson vs. North Western Gas Board, (1968) 2 All ER 669. In that case the plaintiff was seriously injured and her husband was ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 46 killed by an explosion of gas, which also destroyed their home. Her action in Court failed, in view of the decision in Dunne vs. North Western Gas Board .

(1964) 2 QB 806. Thus the decline of the rule in Rylands vs. Fletcher (supra) left the individual injured by the activities of industrial society virtually without adequate protection.

35. However, we are now witnessing a of swing once again in favour of the principle of strict liability. The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the crude oil spill in 1988 on to the Alaska coast line from the oil rt tanker Exxon Valdez, and other similar incidents have shocked the conscience of people all over the world and have aroused thinkers to the dangers in industrial and other activities, in modern society.

36. In England, the Pearson Committee recommended the introduction of strict liability in a number of circumstances (though none of these recommendations have so far been implemented, with the exception of that related to defective products).

37. ............

38. The Court also observed that this strict liability is not subject to any of the exceptions to the rule in Rylands vs. Fletcher.

39. ..............

40. .............

41. In America the U.S. Supreme Court in Lairds vs. Nelms, 32 L Ed 2d 499 :

1427 : 346 US 15 (1952), held that the U.S. was not liable for damages from supersonic booms caused by military planes as no negligence was shown.

Schwartz regards this decision as unfortunate (see Schwartz Administrative Law, 1984). However, of as regards private enterprises the American Courts award huge damages (often running into millions of dollars) for accidents due to hazardous activities or substances.

42. In France, the liability of the State is without fault, and the principle of strict liability applies (see C.J. Hanson "Government Liability in Tort in the English and French Legal Systems")

43. In India, Article 38(1) of the Constitution states "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life".

xxx xxx xxx

48. It is recognized that the Law of Torts is not stagnant but is growing. As stated by the American Restatement of Torts, Art. 1; vide D.L. Lloyd:

49. There are dicta both ancient and of modern that the known categories of tort are not closed, and that novelty of a claim is not an absolute defence. Thus, in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat , (1994) 4 SCC 1 : JT rt (1994) 3 SC 492, the Supreme Court observed: (SCC p. 10, para 8) "8. .....law of torts being a developing law its frontiers are incapable of being strictly barricaded".

50. In Ashby vs. White, (1703) 2 Ld Raym 938, it was observed (vide Pratt C.J.):

51. In Donoghue vs. Stevenson, 1932 AC 562, it was observed by the House of Lords (per Macmillan, L.J.): (All ER p. 30A) ".....the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life."

The above view was followed in Rookes vs. Barnard, 1964 AC 1129 and Home Office v. Dorset Yacht Co. Ltd., 1970 .

52. In view of the above, we are of the opinion that the submission of learned counsel for the appellant there was no fault on the part of the Railways, or that there was contributory negligence, of is based on a total misconception and hence has to be rejected."

34. Coming to the facts of the case, the Inquiry Officer rt has given the details, at pages 55 to 76 of the paper book, how the Board Authorities have not taken due care, has recorded findings on the cause of incident and the officers/officials responsible for the same, at pages 77 to 84 of the paper book.

He has given post incidental activities, reactions and suggested remedial measures, at page 91 of the paper book.

35. While going through the inquiry report, one comes to prima facie conclusion that all the authorities, i.e. the Board, College and State, have prima facie contributed to the cause of incident. The said report and other factors are the foundation of this order.

36. The Inquiry Officer has prima facie come to the conclusion that it is the negligence, carelessness and .

recklessness of the authorities, which fact has been refuted by the authorities by the medium of affidavits, replies and other documents on the file.

37. The question is ­ whether the authorities have taken due care? What does 'due care' mean? It means that rt one has to take all steps to make every effort to save the lives of the public at large. They should also know that in case, 'due care' is not taken, what would be the result and consequences.

The place of incident was unknown to the students, who were on tour/excursion. Had the authorities put boards, hoardings, sirens, signals and taken precautions at the relevant time, while discharging the water from the barrage/reservoir, the incident would have been avoided and the precious lives of all the students, who were at their budding age, would have been saved.

38. Due care in this case means that the authorities were supposed to take precautions while performing their ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 51 duties, which, according to the Inquiry Officer, they have not taken.

39. The expression 'due care' has been discussed by the Apex Court and other High Courts in various judgments, as discussed hereinabove. It is profitable to reproduce paras of 14 to 17 of the judgment rendered by the Apex Court in M.S. Grewal 's case (supra) herein:

15. While the parent owes his child, a duty of care in relation to the child's physical security, a teacher in a School is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent. In this context, reference may be made to a decision of Tucker, J. in Ricketts v. Erith Borough Council, (1943) 2 All ER 629 : 113 LJKB 269 :

16. Duty of care varies from situation to situation ­ whereas it would be the duty of the teacher to supervise the children in the playground but the supervision, as the children leave the school, may not be required in the same degree as is in the play­field. While it is true that if the students are taken to another of school building for participation in certain games, it is sufficient exercise of diligence to know that the premises are otherwise safe and secure but rt undoubtedly if the students are taken out to playground near a river for fun and swim, the degree of care required stands at a much higher degree and no deviation therefrom can be had on any count whatsoever. Mere satisfaction that the river is otherwise safe for swim by reason of popular saying will not be sufficient compliance. As a matter of fact the degree of care required to be taken specially against the minor children stands at a much higher level than adults : children need much stricter care.

17. Incidentally, negligence is an independent tort and has its own strict elements specially in the matter of children ­ the liability is thus absolute vis­a­viz the children. The school authorities in the contextual facts attributed negligence to the two teachers who stands convicted under Section 304­A of the Indian Penal Code as noticed above and Mr. Bahuguna appearing in support of the appeal during the course of hearing, however, also in no uncertain terms attributed ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 54 utter negligence on the part of the teachers and thus conceded on the issue of negligence Concession, if any, as noticed above, though undoubtedly a .

good gesture on the part of the school authority but can the school absolve its responsibility and corresponding culpability in regard to the incident :

the fact that they had not taken due care and precaution, not to speak of their negligence and recklessness. Even otherwise, there is enough material on the record to prima facie hold that of they have not taken due care, which is sufficient to grant compensation.

41. rt The Apex Court in the case titled as Rajkot Municipal Corporation versus Manjulben Jayantilal Nakum and others , reported in (1997) 9 Supreme Court Cases 552, has discussed what is negligence.

42. In the latest case titled as V. Krishnakumar versus State of Tamil Nadu & Ors. , reported in JT 2015 (6) SC 503, the issue of negligence has come up for consideration before the Apex Court, in which the Apex Court was dealing with a case of doctors' negligence and it has been held that as to what is due care, what is negligence and how the concerned doctors have given a go­bye to all precautions, ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 56 which they were required to take. It is apt to reproduce paras 12 and 13 of the judgment herein:

43. While applying the tests to the instant case, the material on the record does disclose that the authorities have of not taken all steps, as were required, and that was the reason for issuing additional guidelines as to what steps and rt precautions were to be taken in order to avoid recurrence.

44. The Apex Court was also dealing with such type of cases in Dheeru versus Government of NCT of Delhi and others, reported in 2010 ACJ 2593; Municipal Corporation of Delhi, Delhi versus Uphaar Tragedy Victims Association and others , reported in (2011) 14 Supreme Court Cases 481, and Sanjay Gupta and others versus State of Uttar Pradesh and others, reported in (2015) 5 Supreme Court Cases 283.

45. It would be profitable to reproduce paras 21 to 24 of the judgment in Dheeru's case (supra) herein:

rt State of W.B., (1997) 1 SCC 416, Rudul Shah v. State of Bihar, (1983) 4 SCC

141. The concept of compensation under public law must be understood as being different from the concept of damages under private law. Compensation under public law must not be merely seen as the moneyed equivalent of the injury caused, but must be understood in the context of the failure of the State to protect the valuable rights of the citizens, more so in the case of the marginalized and the oppressed.

22. It has long been established that the right to life enshrined in Article 21 is not a right to mere vegetative ("animal") existence, but to a life with dignity and a decent standard of living. The injury, which an individual or citizen incurs as a result of the State or its agencies neglect to perform its duties, is as actionable in public law, as in tort. In this background the failure of the State to prevent the occurrence of negligent acts by its employees, or those who are accountable to it, within promises ::: Downloaded on - 15/04/2017 19:38:45 :::HCHP 59 under its control, strikes at the very root of the right guaranteed under Article 21 of the Constitution of India.

23. In Chandrima Das, (2000) 2 SCC 465, the Supreme Court mentioned about obligation of the States to ensure that women are not victims of violence, including rape and held that this right is consistent with the right to life under Article 21 , of all who are protected by of our Constitution. In that case, the aggrieved was a victim of rape committed upon her in a railway compartment. The Court brushed aside the Central Government's disclaimer of rt liability, and declared that the right of the victim under Article 21 had been violated. It awarded Rs. 10 lakh as public law damages. It is noteworthy to see that the Court did not see who was the real perpetrator, or what duty he owed to the Government; it was held sufficient that the wrong occurred in a railway coach, which was under the control of the railway authorities.

[24] It would also be useful to notice the observations of the Supreme Court, in Nilabati Behera v. State of Orissa , (1993) 2 SCC 746, at page 762:

As far as the argument of the respondents to the efficacy of the writ remedy, under Article 226 of the Constitution of India is concerned, the Supreme Court held, in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. , (2004) 3 SCC 553, that merely because one party to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the disputants to a suit. The Court observed that in an appropriate case, the Court has the jurisdiction to entertain a writ petition involving disputed questions of fact, since there is no absolute bar for entertaining such cases."

46. While applying the test to the instant case, the ratio laid down in these cases is applicable to the case in hand, .

which duly finds place in the inquiry report submitted by the Divisional Commissioner and the other officers, who have filed the inquiry reports.

47. The question is ­ how to grant compensation in such cases?

48. rt The Apex Court in the case titled as Syed Basheer Ahamed and others versus Mohammed Jameel and another , reported in (2009) 2 Supreme Court Cases 225, and Nagar Council, Rajpura versus Tajinder Singh and others, reported in (2012) 12 Supreme Court Cases 273, has discussed the issue.

49. Keeping in view the doctrine of res ipsa loquitor, public law, remedy available to the victims in public law, breach of guidelines, snatching the young Engineering students from their parents, the placements of other similarly situated students and their earning capacity are to be kept in mind while assessing the just compensation.

50. The Courts in the entire world, particularly in USA, UK and India, have tried to evolve the method to award .

compensation. An aggrieved person can file a civil suit and claim compensation. A workman can invoke the statutory remedy and can approach the Labour Court for compensation.

of A victim of traffic accident can approach Motor Accident Claims Tribunals (for short "the Tribunals"), which is now rt developing a new concept and really achieving its aim and object and compensation is being awarded after examining the prima facie negligence.

51. Now, the question is ­ what is the method, which is being applied, rather followed in order to grant compensation to the persons, who became or are becoming the victims of either the negligence or carelessness of the State, instrumentalities of the State, institutions, colleges, schools and other similarly situated bodies?

52. As discussed hereinabove, the Courts have discussed the strict liability and remedies of public law. In some cases the Courts have granted lump­sum compensation and in some cases, they have just exercised the guess work.

53. It is apt to reproduce para 54 of the judgment in Deep Chand Sood 's case (supra) herein:

"54. Question is what compensation should be awarded to the parents of the deceased children, although, the loss sustained by the parents due to the negligence of the school management, Chairman and the staff is of great magnitude and cannot be exactly of compensated in terms of money, however, we feel that awarding of reasonable amount of compensation rt may set off their agony to some extent.

Therefore, taking into consideration all the facts and circumstances of this case, submissions of respective parties, the Chairman and management of the school are directed to pay compensation of Rs. 5,00,000/­ to each parent of 14 students who died in this tragedy due to their sheer negligence and Rs. 30,000/­ each to the parents of Varun Sharma and Utsav Mehrotra who could be saved but had to suffer tremendously. The amounts of compensation be paid within two months with interest at the rate of 12 per cent per annum from 28.5.1995 by depositing the same in the Registry of this Court."

54. It would also be profitable to reproduce para 12 of the judgment rendered by the Apex Court in M.S. Grewal's case (supra) herein:

fit to record that while judicial precedents undoubtedly have some relevance as regards the principles of law, but the quantum of assessment stands dependent on the fact­situation of the matter before the Court, than judicial precedents. As regards the of quantum no decision as such can be taken to be of binding precedent as such, since each case has to be dealt with on its own peculiar facts and thus compensation is also to be assessed on rt the basis thereof though however the same can act as a guide : Placement in the society, financial status differ from person to person and as such assessment would also differ. The whole issue is to be judged on the basis of the fact­situation of the matter concerned though however, not on mathematical nicety.

55. In another case titled as Lata Wadhwa and others versus State of Bihar and others , reported in (2001) 8 Supreme Court Cases 197, the concept was also discussed and it has been held by the Apex Court that the Courts have to intervene. It is apt to reproduce paras 8 and 9 of the judgment herein:

The Court also further observed that the proper method of computation is the multiplier method and any departure, except in exceptional and extraordinary cases, would introduce in consistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. The Court disapproved the contrary views taken by some of the High Courts and explained away the earlier view of the Supreme Court on the point. After considering a series of English decisions, it was held that the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 67 yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also .

be consumed up over the period for which the dependency is expected to last. In view of the aforesaid authoritative pronouncement of this Court and having regard to the determination made in the report by Shri Justice Chandrachud, on the basis of of the aforesaid multiplier method, it is difficult for us to accept the contention of Ms. Rani Jethmalani, that the settled principle for determination of compensation, has not been followed in rt the present case. The further submission of the learned counsel that the determination made is arbitrary, is devoid of any substance, as Shri Justice Chandrachud has correctly applied the multiplier, on consideration of all the relevant factors. Damages are awarded on the basis of financial loss and the financial loss is assessed in the same way, as prospective loss of earnings.

The basic figure, instead of being the net earnings, is the net contribution to the support of the defendants, which would have been derived from the future income of the deceased. When the basic figure is fixed, then an estimate has to be made of the probable length of time for which the earnings or contribution would have continued and then a suitable multiple has to be determined (a number of year's purchase), which will reduce the total loss to its resent value, taking into account the proved risks of rise or fall in the income. In the case of Mallett v. McMonagle, 1970 AC 166, Lord Diplock gave a full analysis of the uncertainties, ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 68 which arise at various stages in the estimate and the practical ways of dealing with them. In the case of Davies v. Taylor, 1974 AC 207, it was held that .

the Court, in looking at future uncertain events, does not decide whether on balance one thing is more likely to happen than another, but merely puts a value on the chances. A possibility may be ignored if it is slight and remote. Any method of calculation of is subordinate to the necessity for compensating the real loss. But a practical approach to the calculation of the damages has been stated by Lord Wright, in a passage which is rt frequently quoted, in Davis v. Powell Duffryn Associated Collieries Ltd.

(1942) 1 All ER 657, to the following effect : (All ER p. 665 A­B) "The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of year' purchase."

9. It is not necessary for us to further delve into the matter, as in our opinion, Shri Justice Chandrachud, has correctly arrived at the basic figure as well as in applying the proper multiplier, so far as the employees of the TISCO are concerned, but the addition ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 69 of conventional figure to the tune of Rs. 25,000/­ appears to us to be inadequate and instead, we think the conventional figure to be added should be .

Rs.50,000/­."

56. It would also be profitable to reproduce para 40 of the judgment rendered by the Apex Court in Delhi Jal Board 's case (supra) herein:

57. Before we determine what should be the compensation in the instant case, we deem it proper to discuss what are the latest pronouncements made by the Courts relating to granting of the compensation in the Motor Vehicles Act, 1988 (for short " MV Act ") which are to be kept in mind while assessing just compensation.

58. Expression "just" has been elaborated by the Apex Court in State of Haryana and another vs. Jasbir Kaur .

and others, reported in AIR 2003 Supreme Court 3696. It is apt to reproduce para 7 of the said decision hereunder:

compensation which is the pivotal ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 71 consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be .

rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non­arbitrary. If it is not so it cannot be just. (See Helen C. of Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191)."

59. Similar view has been taken by the Apex Court in rt a case titled as The Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172.

60. The Apex Court in the case titled as Oriental Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717, laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v.

Gurudayal Singh & Ors, (2003) 2 SCC 274; Devki Nandan Bangur and Ors. versus State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. versus Mohd. Jameel & ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 72 Anr. , (2009) 2 SCC 225; National Insurance Co. Ltd. versus Laxmi Narain Dhut , (2007) 3 SCC 700; Punjab State .

Electricity Board Ltd. versus Zora Singh and Others (2005) 6 SCC 776; A.P. SRTC versus STAT and State of Haryana & Ors. versus Shakuntla Devi , 2008 (13) SCALE 621.

61. The Apex Court in another case titled as Ningamma & another versus United India Insurance rt Co. Ltd., reported in 2009 AIR SCW 4916, held that it is the bounden duty of the Court to award "Just Compensation" in favour of the claimants to which they are entitled to, irrespective of the fact whether any plea in that behalf was raised by the claimants or not. It is profitable to reproduce para 25 of the judgment herein:

and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 73 raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or .

not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by of the High Court."

62. The Apex Court in the judgments delivered in the rt cases titled as A.P.S.R.T.C. & another versus M. Ramadevi & others, reported in 2008 AIR SCW 1213 and Sanobanu Nazirbhai Mirza & others versus Ahmedabad Municipal Transport Service , reported in 2013 AIR SCW 5800, has discussed as to what is the 'just compensation' in a Claim Petition filed under the Motor Vehicles Act . It is apt to reproduce para 9 of the judgment rendered in Sanobanu's case (supra) herein:

63. The Apex Court in the case titled Santosh Devi versus National Insurance Company Ltd. and others , reported in (2012) 6 SCC 421, discussed the issue of assessing compensation in regard to the salaried employees and the self­ employed persons. It is profitable to reproduce para 11 and 14 to 18 of the said judgment herein:

10 to 16. ...........

17. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 80 were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be .

18. The term 'income' in P. Ramanatha Aiyar's Advanced Law Lexicon (3rd Ed.) has been defined as under :

It has also been stated :

2008 AIR SCW 2393, and V. Subbulakshmi and others versus S. Lakshmi and another, reported in (2008) 4 SCC 224, while taking the similar view, has held that it was not of relevant to take into account the fact as to what would have been the income of the deceased at the time of retirement, had rt he retired on attaining the age of superannuation.

67. The Apex Court in another case titled as Amrit Bhanu Shali and others versus National Insurance Company Ltd. and others , reported in (2012) 11 SCC 738, has laid down the principles how to grant compensation, how to reach the victim of a vehicular accident and granted ` 9.50 lacs as compensation.

68. The Apex Court in the case titled as Savita versus Bindar Singh & others , reported in 2014 AIR SCW 2053, has held that it is the duty of the Court to award just compensation to the victims of a vehicular accident and while assessing the just compensation, the Court should not ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 82 succumb to the niceties or technicalities of law. It is apt to reproduce paragraph 6 of the said judgment hereunder:

69. The Apex Court has also discussed this issue in the cases titled as Radhakrishna and another versus Gokul and others, reported in 2014 AIR SCW 548, and Kalpanaraj and others versus Tamil Nadu State ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 83 Transport Corporation , reported in (2015) 2 SCC 764, and held that the Courts, while granting compensation to the .

victims of a vehicular accident, have to keep in view all factors including income. It was also held that the monthly income of the deceased can be assessed on the basis of income tax of returns. It is apt to reproduce para 8 of the judgment in Kalpanaraj 's case (supra) herein:

70. In view of the above, just compensation can be granted while keeping in view the status of the parents, the .

prospects of the deceased students and loss of income to the parents, rather loss of source of dependency.

71. Admittedly, as discussed hereinabove, these of students, after obtaining Engineering degree from the said reputed College, would have got better placements. It is rt known to everyone that an Engineer of said discipline and cadre would have been earning not less than about ` ten lacs per annum.

72. If we take a lenient view by, prima facie, holding that the deceased students, after obtaining the degree, would have become Government employees in the cadre of Assistant Engineer, meaning thereby, they would have been earning not less than ` 30,000/­ per month as salary. Even if they would have failed to get a better placement or appointment in Government employment, at least, they could have obtained their job in private firms and by guess work, it can be safely said and held that their monthly salary would not have been less than ` 25,000/­.

73. The multiplier method, as discussed hereinabove, is the best method to assess the compensation. As per the law .

laid down by the Apex Court in the latest judgment rendered in the case titled as Munna Lal Jain and another versus Vipin Kumar Sharma and others , reported in 2015 AIR of SCW 3105, the age of the deceased is the criterion for applying the multiplier method.

74. rt Admittedly, all the deceased students were 19 and 20 years of age at the relevant point of time. Thus, keeping in view the Second Schedule appended with the MV Act read with the judgments in Sarla Verma, Reshma Kumari and Munna Lal Jain's cases (supra), multiplier of '15' is just and appropriate.

75. All the deceased students were unmarried, thus, 50% is to be deducted while keeping in mind the ratio laid down by the Apex Court in the judgments (supra). Viewed thus, it can be safely held that the parents have lost source of income/ dependency to the extent of 50%, i.e. ` 12,500/­ per month in each case.

76. In the cases of the like nature, the Apex Court and the other High Courts have granted lump­sum compensation.

But at that point of time, the method of assessing compensation by applying multiplier method in claim cases under MV Act was in its infancy. Applying the same principle, of how and what amount of compensation was granted by the Apex Court and other High Courts from 1960 upto 2014 has to rt be seen and what should be the compensation as on today.

77. This Court in Deep Chand Sood 's case (supra) granted ` 5 lacs in lump­sum to the parents of each of the deceased students in the year 1996 and the same was upheld by the Apex Court in M.S. Grewal 's case (supra).

78. The Apex Court in Dheeru's case (supra) has awarded ` ten lacs as compensation. In Uphaar Tragedy Victims Association 's case (supra), the Apex Court awarded ` ten lacs in case of the persons aged above 20 years, 7.5 lacs in case of those who were 20 years or below.

79. In the case titled as Dinesh Singh versus Bajaj Allianz General Insurance Company Limited and ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 90 another , reported in (2014) 9 Supreme Court Cases 241, where an Engineer suffered permanent disability, the Apex .

Court awarded compensation to the tune of ` 33 lacs.

80. It is to be kept in mind that the Apex Court in a latest judgment in Sanjay Gupta's case (supra), after of discussing all the aspects, granted ` 5 lacs as an interim, then what should be the amount at the final stage.

81. rt The Courts have to take into view the changing inflation in price rise, the pressing demands, family background of the deceased and other attending factors.

82. The Apex Court in the case titled as Gobald Motor Service Ltd. and another versus R.M.K. Veluswami and others , reported in AIR 1962 SC 1, has held how the compensation is to be granted and what is to be kept in mind. It is apt to reproduce paras 7 and 8 of the judgment herein:

This section is in substance a reproduction of the English Fatal Accidents Acts 9 and 10 Vict. Ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 92 provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 .

AC 601. There Lord Russell of Killowen stated the general rule at p. 606 thus:

The same principle was restated with force and clarity by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., 195l AC 601. There, the learned Lord was considering the ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 93 analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614:

Viscount Simon then proceeded to lay rt down the mode of estimating the damages under the first head.

According to him, at first the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accident; secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 94 possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that .

many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the of general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary rt advantage which from whatever source comes to them by reason of the death that is, the balance of loss and gain to a dependant by the death must be ascertained.

8. The burden is certainly on the plaintiffs to establish the extent of their loss. Both the courts below found, on the evidence, the following facts: (i) The family owned a building worth Rs. 2,00,000/­ at Palni, and 120 acres of nanja land worth about Rs.1,000/­ per acre.(2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running a Siddha Vaidyasalai at Palni for a period of 30 years and had also branches in Colombo and Madras. (3) Rajaratnam studied in the Indian School of Medicine for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940. (4) He took over the management of the family Vaidyasalai at Palni. (5) Rajaratnam was earning in addition Rs.200/­ to ::: Downloaded on - 15/04/2017 19:38:46 :::HCHP 95 Rs.250 per month in his private practise. (6) He had a status in life, being Muncipal Councillor of Palni and sometimes its Vice­Chairman,and was .

maintaining a fairly good standard of life and owned motor cars. (7) He was aged 34 years at the time of his death and,therefore, had a reasonably long span of life before him. If the accident had not taken place. On the said findings the High court summarized of the position thus:

When the courts below have, on relevant. material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons. Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250/­ on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000/­ and the sum of Rs. 25,200/would represent the said expenditure for just over 8 years."

83. The Apex Court in the case titled as Santosh .

Devi versus National Insurance Company Ltd. and Ors. , reported in 2012 AIR SCW 2892, held that Courts should keep in mind the inflation of price rise, socio­economic conditions and other attending factors, while awarding of compensation. It is apt to reproduce para 11 of the judgment herein: rt "11. We have considered the respective arguments. Although, the legal jurisprudence developed in the country in last five decades is somewhat precedent­centric, the judgments which have bearing on socio­economic conditions of the citizens and issues relating to compensation payable to the victims of motor accidents, those who are deprived of their land and similar matters needs to be frequently revisited keeping in view the fast changing societal values, the effect of globalisation on the economy of the nation and their impact on the life of the people."

84. The Apex Court in V. Krishnakumar 's case (supra) has laid down the same principle. It is apt to reproduce para 24 of the judgment herein:

24.2. In the same case Lord Morris of Borth­y­Gest also upheld the principle of taking into account future uncertainties. He observed:

24.3. More recently the Judicial Committee of the UK Privy Council in Simon v. Helmot, 2012 UKPC 5, has unequivocally acknowledged the principle, that the lump sum awarded in medical negligence cases should be adjusted so as to reflect the predicted rate of inflation."

85. Keeping in view the value of money in 1980s, 1990s and as on today, prima facie, it can be safely held that ` 20­25 lacs can be awarded as compensation in favour of the parents of each of the deceased students.

86. It is also to be kept in mind that the unfortunate parents of the said students have relegated themselves to the ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 100 remedy in hand, have given up, rather have waived off their right to press or lay a claim for seeking compensation by .

invoking any other remedy available to them, in addition to which is to be awarded by this Court. Meaning thereby, they have closed the doors for themselves to get compensation from of other sources.

87. In the cases discussed hereinabove, the claimants rt had not given up the other remedies, but in the instant case, the parents of the deceased students have given up their remedies. Thus, this factor is also to be kept in mind, while awarding the compensation.

88. This Court, vide order, dated 25.06.2014, awarded interim compensation to the tune of ` five lacs. The College and the Board were saddled with liability in equal shares.

They have satisfied the same.

89. Having said so, we are of the view that the multiplier method adopted by the Tribunals and the Appellate Courts, i.e. the Apex Court and the High Courts, is the best method to assess the compensation without any ambiguity and ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 101 on the basis of the prima facie findings, in this case also and award just, reasonable and appropriate compensation.

90. Thus, it can be safely said that the parents of the deceased students are entitled to compensation to the tune of ` 12,500/­ x 12 x 15 = ` 22,50,000/­ under the head 'loss of of income/dependency'. They are also entitled to ` 10,000/­ each under the heads 'loss of love and affection', 'loss of estate' and rt 'funeral expenses'.

91. Having said so, the parents of the deceased students are entitled to compensation to the tune of ` 22,50,000/­ + ` 10,000/­ + ` 10,000/­ + ` 10,000/­ = ` 22,80,000/­ with interest from the date of the accident.

92. But, keeping in view the observations made hereinabove and the amount, which was awarded by the Apex Court and other High Courts in the cases of the like nature, we deem it proper to award ` 20,00,000/­ in lump­sum to the parents of each of the students with interest @ 7.5% per annum from the date of the accident till its final realization.

93. The next question is ­ who has to satisfy the award and in which ratio?

94. The following facts are admitted:

(ii) All the deceased students were the students of a prestigious college;

(iii) They would have got better placement; and of

(iv) Death was because of sudden rt discharge of water from the barrage/reservoir.

95. The College and the Board Authorities had to exercise due care. In view of the inquiry report, as discussed hereinabove, it was a sheer carelessness of the Board Authorities and the College Authorities. Had they taken the precautions, as discussed hereinabove, had the College Authorities and the officers/officials, who were with the students anticipated where the students are going and what will be the result of the same, may be, their lives would have been saved.

96. Keeping in view the facts of the case read with the inquiry report, the other reports and the attending factors, one ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 103 comes to prima facie conclusion that the Board Authorities and the College Authorities have not exercised due care.

97. The Board is an authority of the State. We have discussed hereinabove the action of the State Authorities and the officers in charge of the concerned department having of issued the guidelines how to prevent such accidents/incidents and what steps are to be taken in future. Had the State rt Authorities taken these steps earlier, perhaps, this incident would not have been occurred.

98. The Board is the instrumentality of the State, it was the duty of the State to see whether the Boards and the other Authorities working under the State are functioning and discharging their duties properly, has failed to do so, thus, the State is also, prima facie, liable.

99. The Apex Court has discussed the 'strict liability' and who is liable, in the cases discussed hereinabove reported in (2002) 2 Supreme Court Cases 162, (2011) 8 Supreme Court Cases 568, (2011) 14 Supreme Court Cases 481, (2015) 5 Supreme Court Cases 283, and JT 2015 (6) SC 503. It would be profitable to reproduce para 27 of the judgment in V. ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 104 Krishnakumar 's case (supra), reported in JT 2015 (6) SC 503, herein:

100. Applying the test to the instant case, all the three, i.e. the Board, the College and the State, are to be saddled with the liability.

101. The next question is ­ in what proportion the Board, the College and the State are to be saddled with the liability?

102. The Uphaar Tragedy Victims Association's case (supra) contains the guidelines how to fix the percentage.

103. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in the case titled as .

DAV Managing committee and another versus Dabwali Fire Tragedy Victims Association and others , reported in (2013) 10 Supreme Court Cases 494, herein:

capacity of the partners of Rajiv Marriage Palace. In the absence of such findings it is not proper for this Court to frustrate the judgment of the High Court which is based on the Commission of Inquiry Report submitted by a retired Judge of of Allahabad High Court and further on behalf of respondent no.8 it is stated that out of six family members, two persons, namely Kewal Krishan and Chander Bhan died on account of the rt burn injuries in the said function and further the land where the Rajiv Marriage Palace was built up has been taken over by the District authorities and the same has been converted into 'Shahid Smarker Park' and what is the other properties left out of the partners of the Rajiv Marriage Palace and the evidence is not forthcoming by this Court or before the High Court or in these proceedings. In this way, in the absence of the same it is not possible for this Court to apportion the liability of compensation and confine the same upon the appellants and respondent no.8 out of 55% of the liability of compensation confined and holding both the appellants and respondent No.8 responsible for jointly and severally."

104. The Apex Court in the cases, discussed hereinabove, has also laid down the principles what is the role ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 107 of the State in the given circumstances and how State is to be fixed with liability.

105. Keeping all these factors in view read with the inquiry report of the Divisional Commissioner, the Board Authorities had the major role and they have failed to exercise of due care and caution, thus, are to be saddled with liability at least to the extent of 60%.

106. rt The unfortunate students were on excursion and the role of the College Authorities was also important. They should have ascertained all facts including the circumstances and other factors prevailing in the area, where they were planning to visit.

107. In Deep Chand Sood 's case (supra), the school had arranged picnic for the students, 15 boys met with the same fate and the Court held that the school concerned is also liable, even though the school was not falling under the definition of State or instrumentality of the State as per the mandate of Article 12 of the Constitution of India.

108. Accordingly, we deem it proper to hold that the College is liable to the extent of 30%.

109. In view of the above, the State is also saddled with liability to the extent of 10%.

110. Learned Amicus Curiae and the learned counsel representing the parents of the deceased students have placed on record the material, which do disclose that in addition to of ` 5,00,000/­ awarded as interim compensation, the insurance amount, the ex­gratia by the States of Himachal Pradesh, rt Andhra Pradesh and Telangana and also tuition fee has been refunded by the College, the details of which are as under:

3. State of Andhra Pradesh ` 5.00 lac

4. Insurance amount ` 2.00 lac

5. Refund of tuition fee ` 45,000/­ ­ ` 1.74 lac

111. The question is ­ whether this amount is to be adjusted towards the total amount of compensation? The answer is in the negative for the following reasons:

112. This issue was raised before the Apex Court and other High Courts in the cases discussed hereinabove and it ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 109 was held that the perks, fee, the insurance amount and other such amounts cannot be deducted.

113. The tuition fee and the insurance amount was their own money. The other amounts granted by the State Governments of Telangana and Andhra Pradesh as ex­gratia of have no role to play. It is just the gesture of the State Governments.

114. rt Applying the ratio laid down by the Apex Court and the other High Courts, this amount is to be excluded from the amount of compensation.

115. Having glance of the above discussions, ` 20,00,000/­, including the interim compensation to the tune of ` 5,00,000/­, with interest @ 7.5% per annum from today till its final realization is awarded in favour of the parents of each of the deceased students and against the Board, College and the State of Himachal Pradesh in the ratio of 60:30:10.

116. They are directed to deposit the amount after making deduction of ` 5,00,000/­ awarded as interim compensation paid by the Board and the College within eight ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 110 weeks before the Registry of this Court.

117. On deposition of the amount, the same be released .

in favour of the parents through payee's account cheque or by depositing in their respective accounts, the details of which shall be furnished by the learned Amicus Curiae or the of learned counsel representing the parents of the deceased students, in the Registry.

118. rt It is made clear that the findings recorded hereinabove are only prima facie in nature in order to grant compensation, as per the discussions made hereinabove, cannot be made basis for recording judgment(s) in any civil suit, criminal proceedings or departmental proceedings.

119. Before parting with, we deem it proper to place on record a word of appreciation for the valuable assistance rendered by the learned Amicus Curiae, learned Advocate General, learned Advocates who appeared in this case, the Divisional Commissioner­Inquiry Officer and the other officers, who have assisted this Court.

120. Having said so, the lis is disposed of alongwith all ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP 111 pending applications, as indicated hereinabove, (Mansoor Ahmad Mir) .

Chief Justice (Tarlok Singh Chauhan) Judge January 2, 2016 ( rajni ) of rt ::: Downloaded on - 15/04/2017 19:38:47 :::HCHP