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2013 DIGILAW 676 (GAU)

Moniram Saikia v. State of Assam

2013-09-12

A.K.GOSWAMI

body2013
JUDGMENT A.K. Goswami, J. 1. Heard Ms. K. Bhattacharjee, learned counsel for the petitioners. Also heard Ms. P. Chakraborty, learned Standing counsel, Education Department. By this writ petition, the two writ petitioners have prayed for grant of compensation on account of death of their minor sons due to negligence of the respondents. 2. The petitioner No. 1 had a minor son whose name was Dibyajyoti Saikia. The name of the son of the petitioner No. 2 was Krishna Bordoloi. Both of them were students in the 1st standard of Sonaruguri Sarkari Nimna Buniyadi Vidyalaya, Morigaon. 3. Both of them were 6(six) years of age when the unfortunate incident of drowning took place on 22.08.2008. In the school campus there are 2(two) deep ponds. One of the ponds is situated on the front side of the school building and the other is situated in the left hand comer at the backyard of the school building. 4. In the month of August, there were heavy rains and the pond in the front side of the building had over-flowed and had submerged the school compound. The ponds situated in the back side of the school building did not have any fencing around it and the gap between the pond and the plinth, which served as a passage, is about 4(four) ft. only. 5. As the front side of the building had been submerged by rain water, the only way to go to the urinal was through the aforesaid passage between the school building and the unfenced pond on the back side of the school compound. Sons of the petitioners, after taking permission from their class teacher, had gone to the urinal through the said passage. 6. After the second period was over, the daughter of petitioner No. 1, who was a 4th standard student of the said school went to meet her brother. When he was not found there, she started making enquiries and also asked the class teacher about the whereabouts of her brother. Satisfactory answers were not received by her and she started looking around. She also went to the back side of the building and to her horror, found sandals floating in the pond. 7. Realizing what had happened, she raised a hue and cry. A teacher from the adjacent Sonaruguri M.V. School rushed to the spot and he went down to the pond and fished out the 2(two) boys. She also went to the back side of the building and to her horror, found sandals floating in the pond. 7. Realizing what had happened, she raised a hue and cry. A teacher from the adjacent Sonaruguri M.V. School rushed to the spot and he went down to the pond and fished out the 2(two) boys. They were immediately taken to the hospital. However, they were declared brought dead by the hospital authorities. 8. In the petition it is stated that after coming to know of the incident of drowning of the students, the teachers of the school hurriedly left the school compound. 9. An affidavit has been filed by the Director of Elementary Education stating that the Head Pandit was suspended by an order dated 22.08.2008. By an order 25.08.2008, the Assistant teachers of the school were also suspended. 10. The incident of drowning is not denied in the affidavit. While it is stated that school is bounded on its side by bamboo fencing, the assertion of the petitioners that there was no fencing around the pond has not been denied. However, it is stated in the affidavit that the distance between the pond and the plinth is not 4(four) ft. as contended by the petitioners but it would be about 7(seven) to 8(eight) ft. It is also stated that the pond situated on the backyard of the school had also overflowed during the rainy season. 11. When the students of tender age are attending school for their education, it is expected that authorities would take all steps for their safety and security. Deep unfenced ponds inside the school compound itself pose a safety hazard even in normal times and more so, when the over-flowing waters of the ponds inundate and submerge the school compound. It is unfortunate that minimum attention was not paid by the authorities to put some barricade in the form of a fencing so as to prevent this kind of untoward incident. Whether the gap is 4(four) ft. or 7(seven) ft., it does not make much of a difference when the banks of the pond are over-flowing. 12. The picture that has emerged is really distressing and there is a total lack of concern and sensitivity. Negligence of the State authorities is apparent and because of such negligence and casual attitude, two children had to meet an untimely and tragic death. 12. The picture that has emerged is really distressing and there is a total lack of concern and sensitivity. Negligence of the State authorities is apparent and because of such negligence and casual attitude, two children had to meet an untimely and tragic death. For the parents, loss of their child is irreparable. 13. In MCD Vs. Uphaar Tragedy Victims Association, reported in (2011) 14 SCC 481, the Apex Court stated at paragraphs 99 and 103 as under:- 99. The law is well settled that a constitutional Court can award monetary compensation against the State and its officials for its failure to safeguard fundamental rights of citizens but there is no system or method to measure the damages caused in such situations. Quite often the courts have a difficult task in determining damages in various fact situations. The yardsticks normally adopted for determining the compensation payable in private tort claims are not as such applicable when a constitutional court determines the compensation in cases where there is violation of fundamental rights guaranteed to its citizens. 103. Legal liability in damages exists solely as a remedy out of private law action in tort which is generally time-consuming and expensive, and hence when fundamental rights are violated the claimants prefer to approach constitutional courts for speedy remedy. The constitutional courts of course, shall invoke their jurisdiction only in extraordinary circumstances when serious injury has been caused due to violation of fundamental rights, especially under Article 21 of the Constitution of India. In such circumstances the Court can invoke its own methods depending upon the facts and circumstances of each case. 14. Because of negligence on the part of the State authorities, State must be held accountable and responsible to pay compensation. In the facts and circumstances of the case, I am of the opinion that an amount of Rs. 3,00,000/- each will be just compensation. Accordingly, I direct that on or before 31.12.2013, the Commissioner and Secretary, Education Department will pay a sum of Rs. 3,00,000/- each to each of the petitioners as compensation. The Commissioner and Secretary, Education Department is also directed to issue necessary directions to all concerned so that safety of young school going children is not jeopardized and to take preventive actions, if there are any existing short comings. Writ petition stands disposed of with the aforesaid directions and observations.