Judgment : 1. This writ petition is filed for a direction against the respondents to pay the petitioner a sum of Rs.20 lakhs as compensation for the death of her son, Rukmangathan and his family, caused due to the negligence of the respondents. 2. The factual matrix of this case as per the affidavit filed in support of this writ petition is that the petitioner is the mother of late Rukmangathan. The above said petitioners son was aged 42 years at the time of the incident; his wife R. Saraswathi was aged about 35 years and two children, viz., R. Ishwarya, a girl aged about 9 years and R. Jayakrishnan, boy aged about 3 months were residing with her at Plot No. 84, “A” Block, Thanikachalam Nagar (East) Ponniammanmedu, Madhavaram, Chennai 600 110. In the month of November 1997, due to heavy rain, there was flood in Thanikachalam Nagar and the petitioners house was also surrounded by flood. The petitioner and his son along with his family members desired to move away from the place to go to her daughters house in Thiru.Vi.Ka.Nagar since the water level in the area was constantly raising. On the understanding that the petitioners son Rukmangathan along with his wife and two children should start early at 6.30 a.m. on 27.11.1997 to reach her dauahters house, it was proposed that the petitioner along with her husband Govindasamy and younger son Sutharshan would join them later in the day, the said Rukmangathan along with his wife and children has proceeded from the house at Thanikachalam Nagar on the road passing via “A” Block of Thanikachalam Nagar. As stated by the petitioner, there was a flood water drain near “A” Block, which is falling within the Municipal jurisdiction of Madhavaram Municipality. The floor of the drain was about four feet below the road but there was no parapet wall or culvert abutting the road together with the warning to the passers-by on the road. 3. During the said rain, the entire flood water rain got filled up and over flowing over the road with a height of nearly eight feet from the bottom of the flood water drain. In addition to that, waters were released from the twin lakes (“Rettai Aries”) near Madhavaram. 3. During the said rain, the entire flood water rain got filled up and over flowing over the road with a height of nearly eight feet from the bottom of the flood water drain. In addition to that, waters were released from the twin lakes (“Rettai Aries”) near Madhavaram. The whole area was flooded with rain and there was no intimation about the flood water drain, which has been filled up and water was overflowing as stated above. The petitioners son, along with his wife and children unknowingly fell into the waters in the drain and all of them were drowned and died consequently. According to the petitioner, if only parapet wall has been constructed abutting the road above, the entire family of the petitioners son could have been saved. In the absence of such warning or parapet wall or otherwise, the respondents are liable to adequately compensate the petitioner. 4. A complaint was lodged in Madhavaram Police Station on 27.11.1997 by the Village Administrative Officer and the first information report was recorded It is stated by the Village Administrative Officer that, inspite of the warning to the residents of the Thanikachalam Nagar, the petitioners son and his family have moved and they have contributed to the cause. According to the petitioner, no such warning has been given by the village Administrative Officer. The post mortem were done on the petitioners son, his wife and one child. The body of the other child aged about 3 months could be located only after three days. The report clearly states that the death was caused due to the drowning in water. This tragic incident has been reported in almost all the newspapers including “The Hindu” on 28.11.1997. 5. According to the petitioner, the liability is not only on the part of the respondents 1 and 2 but also on the part of the Municipality, which is functioning as per the District Municipalities Act. The petitioners husband on 22.12.1997 has made a representation to the Collector, Tiruvallur District seeking flood relief. By letter dated 16.3.1998, the Collector has informed the husband of the petitioner that the petitioner is not entitled to any claim as per the Government Rules. Thereafter, the Tahsildar, Ambattur by his letter dated 21.4.1998 has also informed that the petitioner is not entitled for any relief. By letter dated 16.3.1998, the Collector has informed the husband of the petitioner that the petitioner is not entitled to any claim as per the Government Rules. Thereafter, the Tahsildar, Ambattur by his letter dated 21.4.1998 has also informed that the petitioner is not entitled for any relief. According to the petitioner, in spite of the refusal of the relief, the said Officers have admitted the occurrence, but denied their liability. Thereafter, the petitioners husband had sent a representation to the Chief Ministers Cell for which, there was no reply. 6. According to the petitioner, the petitioners husband is a pensioner, who is suffering from Hernia, Arthritis and hydrocele and the considerable portion of his pension is being spent towards his treatment. The petitioner is having an eldest son, viz., Gopinath, who is living away for the past 10 years and he is not making any contribution to the family of the petitioner and he has also got two college going children and he could not be of any monetary help to the petitioner. The second son of the petitioner is also living away for the past four years and he is also having two school going children. He is also not contributing anything to the petitioners family. The house in which, the petitioner is living belongs to the youngest son Sutharshan, which has been constructed by availing loan and the younger son is also not able to contribute for the well being of the petitioner since he has dues to the finance corporations, where from he obtained loan for the construction. According to the petitioner, at the time of death, the deceased son was earning a sum of Rs. 4,100/- as a senior Assistant in Lee and Muirhead Company, Madras-1 and he was aged about 42 years at that time. He would have lived for another 23 years atleast taking into account 65 years as the average life of expectancy. He would have earned, much more in the future and contributed to the family. 7. The petitioners case is that as per the series of judgment of the Hon‘ble Supreme Court, in cases like this, where the negligence of the State is prima facie revealed, directions have been issued for payment of compensation in respect of the death. He would have earned, much more in the future and contributed to the family. 7. The petitioners case is that as per the series of judgment of the Hon‘ble Supreme Court, in cases like this, where the negligence of the State is prima facie revealed, directions have been issued for payment of compensation in respect of the death. Therefore, according to the petitioner, the death caused to her son Rukmangathan and his family is due to the negligence of the respondents including the Municipality, viz, the third respondent. 8. The first and second respondents in their counter affidavit have admitted the incident that took place on 27.11.1997 at about 6. a.m, in which the petitioners son Rukmangathan, who was aged 40 years, his wife Saraswathi aged 30 years and his daughter Ishwarya aged about 9 years and son Jayakrishnan, aged about 3 months had died. It is the case of the first and second respondent that the deceased and his family members while crossing the channel across the Thanikachalam Nagar, fell accidentally in the flowing water and died on the spot. The father of the deceased was aged about 70 years at that time and the petitioner, who is the mother, was aged 63 years. It is stated in the counter affidavit that the father of the deceased was employed in the Government Press as Top senior Reader and retired. He is getting a pension of a sum of Rs. 2,169/-per month. A proposal was sent to the Commissioner of Revenue Administration to consider the sanction of financial assistance to the writ petitioner as per G.O. Ms. No. 1121. Revenue dated 25.10.1996 or to give special financial assistance as was done in the case of 162 victims who died during the floods 1997, as per G.O. Ms. No. 314, Revenue dated 22.4.1998. It is the case of the first and second respondents that, Tahsildar, Ambattur has stated that the concerned Village Administrative Officer has given cyclone and flood warning to all the residents of the area. According to the respondents, all the residents of that area have not come out except the ill fated family ignoring the caution given by the Revenue officials. That has been reflected in the first information report as per the complaint dated 27.11.1997 given by the Village Administrative Officer. According to the respondents, all the residents of that area have not come out except the ill fated family ignoring the caution given by the Revenue officials. That has been reflected in the first information report as per the complaint dated 27.11.1997 given by the Village Administrative Officer. It was informed to the petitioner that she was not entitled for the compensation as per the instructions issued to the Principal Commissioner and Commissioner of Revenue Administration. Chepauk dated 25.2.1998 and it is the case of the first and second respondents that it is not known as to whether the mother of the deceased who had died along with his wife and two children is entitled for any compensation and in that regard a clarification has been sought. It is also stated by the first and second respondents, considering the pathetic situation in which the entire family was washed away, the Commissioner of Revenue Administration has been addressed to view the claim sympathetically and sanction financial assistance to the legal heirs of the deceased. 9. The third respondent-Municipality in its counter has stated that the Madhavaram Municipality has formed a Storm water drain in the year 1996-97 to dispose of the surplus drain water coming from the “Rettai Eri”. It is also the case of the third respondent that due to heavy rain and unprecedented flood, the entire occupants were warned not to come out of their houses and a signal for flood warning were also made, but the petitioners family came out from their house at their own risk. Therefore, according to the third respondent, the third respondent is not liable to pay any compensation. It is the further case of the third respondent that the entire area of Thanikachalam Nagar was marooned and there is a pipe culvert in existence in that place. According to the third respondent, a retaining wall has been constructed at the cost of Rs. 44,000/-. According to the third respondent, the Government has also taken safety measures imposing caution through broadcasting and telecasting about the flood and the revenue authorities have also taken all necessary steps. According to the third respondent, the Municipality has taken immediate action to bail out the water and to clear the storm water drains to have smooth flow of rain water. According to the third respondent, the Municipality has taken immediate action to bail out the water and to clear the storm water drains to have smooth flow of rain water. Therefore, according to the third respondent, there is no negligence on the part of the third respondent or on the part of the Government. 10. Mr. V. Prakash the learned senior counsel appearing for the petitioner submitted that from the factual situation of the case, it is clear that the respondents have been negligent in not putting up proper wall around the flood water drain, admittedly constructed by the third respondent Municipality. While it is admitted in the counter affidavit that it is not in dispute that the flood water drain is to the depth of four feet at the time of flood and above the road level another four feet water was running and therefore, it was due to the fault of the Municipality as well as the Government in not putting up proper signal so as to prevent any person unwittingly entering into the flood water drain. Inasmuch as such step has not been taken the negligence is patent on the part of the respondents. He would rely upon the judgments of the Hon‘ble Supreme Court Shakuntala Devi v. Delhi Electric Supply Undertaking and Others Shakuntala Devi v. Delhi Electric Supply Undertaking and Others Shakuntala Devi v. Delhi Electric Supply Undertaking and Others (1995) 2 SCC 369 wherein in respect of an electrocution, the Supreme Court has granted compensation on the death of the husband of the petitioner to the widowed petitioner and in a decision Kumari v. State of Tamil Nadu and Others Kumari v. State of Tamil Nadu and Others Kumari v. State of Tamil Nadu and Others AIR 1992 SC 2069 : (1992) 2 SCC 223 , it has been held against the State of Tamil Nadu. The learned senior counsel would submit that while the petitioner was aged about 60 years old at the time of filing of the writ petition and at the time of the incident, now, the petitioner should have been 70 years old and in any event, the respondents are liable to pay the compensation. 11. Mr. The learned senior counsel would submit that while the petitioner was aged about 60 years old at the time of filing of the writ petition and at the time of the incident, now, the petitioner should have been 70 years old and in any event, the respondents are liable to pay the compensation. 11. Mr. N. Senthil Kumar, learned Government Advocate appearing for the first and second respondent would submit that while the incident is not denied, when all the other residents have not moved out of the house, the petitioners son and his family members alone have defied the warning and came out of the house and they should have been treated as contributed to the cause of the death. In any event, the learned counsel for the firsthand second respondent submitted that it is the third respondent, Municipality who has to maintain the flood water drain. 12. Mr. K.R. Thamizhmani, learned counsel appearing for the third respondent Municipality would submit that apart from the contributory negligence on the part of the petitioners son, the act was beyond the control of the Municipality. It is his further submission that the incident had taken place beyond the control of anybody and the local body, viz., the third respondent cannot be held liable for the act of God. It is also stated that since the petitioners case is that her son was working as a senior Assistant with M/s. Lee and Muirhead Company in Chennai and drawing a salary of a sum of Rs. 4,100/- p.m., in such circumstances, that his entire family has been killed in the incident, the petitioner being the mother, should have got terminal benefits in respect of the death of her son. It is his further submission that even as admitted by the petitioner herself, the deceased son of the petitioner alone was not the earning member of the petitioners family. The petitioners husband is a pensioner and her other sons were also earning and therefore, the compensation cannot be granted and it will amount to misusing the tax payer money. It is also stated that the matter was referred to Lok Adalat and it could not be settled. The petitioners husband is a pensioner and her other sons were also earning and therefore, the compensation cannot be granted and it will amount to misusing the tax payer money. It is also stated that the matter was referred to Lok Adalat and it could not be settled. He would also rely upon the judgment of the Hon‘ble Supreme Court Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others AIR 2000 SC 1603 : (2000) 4 SCC 543 : (2000) 3 MLJ 124 to state that the Hon‘ble Apex Court has held that in view of the disputed question of fact surrounding the death by electrocution of the family members, no compensation can be directed to be paid by the Electricity Board. 13. I have heard the learned counsel appearing for the petitioner; the learned Government Advocate appearing for respondents 1 and 2 and the learned counsel appearing for the Municipality and perused the records and given my anxious thought to the issues involved in this case. 14. While the entire incident is not in dispute, the only contention raised on behalf of the respondents is that in spite of warning given to the residents, the petitioners son along with his family members went out of the house voluntarily and had fallen in the flood water drain along with his family members and therefore, according to the respondents, there is no negligence on their part and the petitioners son and their family have contributed to the cause, which has resulted in the act of God and the same is beyond the control of the respondents. The third respondent is the Municipality governed by the provisions of the Tamil Nadu District Municipalities Act, 1920. Under Section 61 of the Act, Public streets and appurtenances in the municipal council are vested with the municipal council. The third respondent is the Municipality governed by the provisions of the Tamil Nadu District Municipalities Act, 1920. Under Section 61 of the Act, Public streets and appurtenances in the municipal council are vested with the municipal council. Section 61 of the Act reads as follows: “ Section 61: Vesting of public streets and appurtenances in the municipal council: (1) All public streets in any municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage work, tunnels and culverts, whether made at the cost of the municipal fund or otherwise, in, alongside or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the municipal council. 2. The State Government may by Notification withdraw any such street, sewer drain, drainage works, tunnel or culvert from the control of the council.” Section 162 of the Act reads as follows: “ 162. Maintenance and repair of streets: (1) The municipal council shall, at the cost of the municipal fund, cause the public streets and bridges to be maintained and repaired and may from the same fund meet the cost of all improvements to the same which are necessary or expedient for the public safety or convenience. (2) The council may entrust to any other local authority with the consent of such authority the maintenance of any public street or portion thereof, the cost of maintenance being provided by the council.” As per Section 162 of the Act, the municipality has a legal duty to maintain public street and bridges at the cost of the municipal fund. When such public duty has been imposed on the third respondent municipality, it is not open to the third respondent now to get rid of the liability only on the basis that the petitioners son along with his family have defied the warning given by the Village Administrative Officer. The fact, as it is seen as per the various records, make it clear that the flood water drain, which is expected to be maintained by the third respondent-municipality is four feet depth below the road level. The fact, as it is seen as per the various records, make it clear that the flood water drain, which is expected to be maintained by the third respondent-municipality is four feet depth below the road level. In normal circumstances, as per the above said provisions either the municipality should put parapet wall or should have given proper signal to any person to indicate about the ditch, which is to the extent of four feet depth. Even though, it is stated by the third respondent in the counter affidavit, as if certain wall has been put, there is absolutely no evidence to that effect, especially in the circumstances that beyond the four feet ditch, in which the flood water drain goes there was flow of water for another four feet above the road level. It is all the more necessary on the part of the third respondent, which should have given proper warning to the people by any other method. In the name of “act of God”, the third respondent cannot be permitted to take advantage of the conduct of the petitioners son in going out of the house, in spite of the warning. It is only human tendency that in such a situation, when the flood water drain has been raising over the ground level, every human being would be interested in saving his life and in that view when the petitioners son along with his family came out, it cannot be said as if, he had defied the warning given by the third respondent. 15. The issue involved in this case is that the petitioners son and his family members were washed away by the flood, they have fallen into the ditch and that was the only cause of the death. If only the third respondent as well as the respondents 1 and 2 have taken adequate care in giving proper warning, this incident would have certainly been avoided. Therefore, in my considered view, as per the provisions of the District Municipalities Act, it is not open to the third respondent to evade its liability. If only the third respondent as well as the respondents 1 and 2 have taken adequate care in giving proper warning, this incident would have certainly been avoided. Therefore, in my considered view, as per the provisions of the District Municipalities Act, it is not open to the third respondent to evade its liability. Since on the factual situation, I am able to see no proper warning had been given about the existence of the Flood water drain, which is four feet depth, it cannot be believed that any person in spite of issuing such warning that there is a ditch will voluntarily fall in to the ditch. This story by the respondent is only a cock and bull story making deception on the public. The further contents in the affidavit of the third respondent that the tax payers money cannot be handled so casually, is only an attempt to make mockery of the issue. It is the duty of the Government as well as the municipality to see that people are made known about such dangerous ditches and the third respondent should have taken abundant caution by notifying the place properly before the incident had taken place. Therefore, in my considered view, there is absolutely no basis for the third respondent in trying to evade itself from the liability, it is true that the first and second respondent being the Government, which is controlling the municipality are also having vicarious liability to contribute to the compensation. 16. The judgment relied upon by the learned counsel for the third respondent Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others (supra) has no application at all. That was the case, wherein, there were disputed question of fact, on the face of the denial of the accident and it was in those circumstances, the Supreme Court has held that Article 226 of the Constitution of India cannot be utilised for the purpose of deciding the disputed question of fact. Hence, the facts of the case based on which, the judgment was given is not applicable to the facts of the present case. Hence, the facts of the case based on which, the judgment was given is not applicable to the facts of the present case. As I have considered earlier that the respondents had clearly admitted the incident and no where it is whispered that proper warning has been given except stating that the Village Administrative Officer has warned the people in the area, not to come out of their houses and that is not a warning properly given. In this case, the warning is required to have been indicated in the place wherein the flood water drain overflows and that should have been indicated on the spot that there is a four feet ditch especially in the circumstances that, beyond the road level, the flood water has come to another four feet. Therefore, it cannot be said, as if there is a disputed question of fact involved on the facts and circumstances of the present case. 17. It is also not in dispute that as per the post mortem report, the occurrence is said to have taken place due to the drowning in the water. I do not understand as to what is the factual dispute raised between the parties in this case. In the case of Rudul Sah v. State of Bihar AIR 1986 SC 1086 : (1983) 4 SCC 141 , the Supreme Court has held that the defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, such defence can never be accepted, while dealing with the constitutional remedy. The observation of the Hon‘bie Supreme Court is as follows: “….. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental lights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justified award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226, for contravention of fundamental rights. Certain further observations in Rudul Sah which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of the Supreme Court in Rudul Sah and Others in that line have to be understood and Kastuilal distinguished therefrom.” In the present case, it is due to the negligence of the respondents, the fundamental right guaranteed under Article 21 of the Constitution of India has been violated. In fact, in the judgment of the Supreme Court in Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others Tamil Nadu Electricity Board v. Sumathi and Others (supra), relied upon by the third respondent, the Supreme Court had categorically held that: “…. when a disputed question of fact arises and there is a clear denial of any tortious liability, seeking a remedy under Article 226 of the Constitution may not be proper. However, that cannot be understood to lay down as a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution.” 18. In Kumari v. State of Tamil Nadu and Others Kumari v. State of Tamil Nadu and Others Kumari v. State of Tamil Nadu and Others (supra) wherein a six year old child died as a result of falling in a ten feet deep sewerage tank in the City of Madras, when the High Court has dismissed the writ petition on the basis that it was not possible to determine his age and the respondent was negligent in leaving the sewerage tank uncovered, the Supreme Court, while setting aside the judgment of the High Court has granted the compensation of Rs. 50,000/- along with interest at 12% from the date of death, i. e., 1.1.1990 till payment. In para Nos. 2 and 3 of the judgment, the Hon‘ble Supreme Court has held as follows: “ 2. 50,000/- along with interest at 12% from the date of death, i. e., 1.1.1990 till payment. In para Nos. 2 and 3 of the judgment, the Hon‘ble Supreme Court has held as follows: “ 2. Six years old son of the appellant died as a result of falling in a ten feet deep sewerage-tank in the City of Madras. The tank was not covered with a lid and was left open. The appellant filed a petition under Article 226 of the Constitution of India before the Madras High Court seeking a writ in the nature of mandamus directing the respondents to pay Rs. 50,000/- as compensation to the appellant. The High Court dismissed the writ petition on the ground that in writ jurisdiction it was not possible to determine as to which of the respondents was negligent in leaving the sewerage tank uncovered. 3. In the facts and circumstances of this case we set aside the High Court judgment and direct that respondent-1, the State of Tamil Nadu shall pay to the appellant a sum of Rs. 50,000/- (Rupees fifty thousand ) with interest at 12 per cent per annum from 1.1.1990 till the date of payment. The amount shall be paid within six weeks from today. It will be open to the State of Tamil Nadu to take appropriate proceedings to claim the said amount or any part thereof from any of the respondents or any other authority which might be responsible for keeping the sewerage tank open. The claim, if made, will be decided in accordance with law. The appeal is allowed in the above terms. There will be no order as to costs.” 19. The payment of compensation in cases of such negligence by the Electricity Board in not maintaining the Electricity Cable, with the result, the live main electric cable wire lying in rainy and water logged village not repaired, resulting in electrocution is not abnormal. In fact, in one such circumstance the Hon‘ble Supreme Court in Shakuntala Devi v. Delhi Electric Supply Undertaking and Others Shakuntala Devi v. Delhi Electric Supply Undertaking and Others Shakuntala Devi v. Delhi Electric Supply Undertaking and Others (supra), while directing the Delhi Electricity Board to undertake to pay Rs. 75,000/-, directed the LIC to pay Rs. 25,000/- on the basis of Insurance Policy. 20. 75,000/-, directed the LIC to pay Rs. 25,000/- on the basis of Insurance Policy. 20. Therefore, on the facts and circumstances, I do not accept the contention of the learned counsel for the respondent that the petitioner should be driven to the Civil Court for deciding the issue. The further contention raised by the first and second respondent in the writ petition as to whether the petitioner could be termed as a legal heir of the deceased son Rukmangathan, is again unwarranted. Even under the Hindu Succession Act, the mother of the deceased person comes under clause one heirs and it is not known as to how the rights of citizens are sought to be dealt with by the Government Departments in this manner so lightly ignoring to take into account even the basic principles of law. In any event, on the facts and circumstances of the case, taking into consideration that the petitioner, who is the mother of the deceased son, was aged about 60 years at the time of filing of the writ petition and by this time, she should have been around 70 years and also taking into consideration that the petitioner has two other sons and her husband is a Government pensioner, this Court is of the view, that ends of justice will be met, if a compensation of Rs.1 lakh is awarded to the petitioner along with interest from the date of incident till the date of payment. 21. In view of the same, this writ petition is disposed of with a direction to respondents 1 and 3 to jointly pay the amount of a sum of Rs. 1 lakh to the petitioner along with interest at the rate of 12% p.a from the date of incident till the date of payment and the said amount shall be apportioned by the first and third respondents equally. T he above said payment shall be paid by the first and third respondents within a period of four weeks from the date of receipt of a copy of this order. No cost.