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2017 DIGILAW 1726 (MAD)

M. Nithiya v. State of Tamil Nadu

2017-06-15

R.SUBRAMANIAN

body2017
JUDGMENT : R. Subramanian, J. The Petitioner seeks Compensation from the State for the death of her nine year old daughter in the accident involving a Bullock Cart engaged in illegal sand mining from Vaigai riverbed. According to the Petitioner, on 7.6.2010 at about 8.30 a.m., the daughter of the Petitioner, namely, Dhanalakshmi was going to School in a Bicycle along with her relative Karthikaiselvan, at that time, the Bullock Cart which is driven by the sixth Respondent carrying illegally mined sand hit against the Bicycle. As a result of the said accident, the nine year old daughter of the Petitioner died instantaneously. It is also claimed that an FIR was registered against the said Dinesh @ Dineshkumar by the Fifth Respondent. The said Dineshkumar was also arrested and was enlarged on bail on 8.6.2010. The husband of the Petitioner Murugesan, who was aged about 32 years was also died on 16.6.2010. According to the Petitioner, her husband Murugesan died due to the depression caused by the death of her daughter. The Petitioner, in her Affidavit, has narrated as to how rampant illegal sand mining goes on without any check. According to her, it is the failure on the part of the Revenue and Police officials to initiate serious action against such Sand Smugglers which had resulted in the death of her daughter. It is also stated that the accident occurred near the Railway level crossing where about 100 School children go to their School in the morning by walk as well as by Bicycles. According to the Petitioner, the lives of the children tire in danger in the hands of such illegal Sand Miners. The Petitioner claims that she had made several Representations to the Authorities including the Hon'ble Chief Minister to initiate action against illegal sand mining and for providing Compensation to her for the death of her only daughter in the accident. It is also stated that the Seventh Respondent namely, the Tahsildar, Vadipatty Taluk had recommended the case of the Petitioner for Compensation front the Chief Minister's Relief Fund. Since no orders have been passed till the date of filing of the Writ Petition either providing Compensation or granting compassionate appointment to the Petitioner, the Petitioner has come forward with this Writ Petition. 2. The Tahsildar, Vadipatty Taluk, the Seventh Respondent herein has filed a Counter Affidavit. Since no orders have been passed till the date of filing of the Writ Petition either providing Compensation or granting compassionate appointment to the Petitioner, the Petitioner has come forward with this Writ Petition. 2. The Tahsildar, Vadipatty Taluk, the Seventh Respondent herein has filed a Counter Affidavit. The fact that the daughter of the Petitioner was killed in the accident involving a Bullock Cart loaded with sand illegally mined from Vaigai riverbed is not disputed. It is also stated that a case in Crime No.150 of 2010 has been registered under Section 304-A of Indian Penal Code against the driver of the Bullock Cart namely, Dinesh @ Dinesh Kumar, the Sixth Respondent herein. The Counter Affidavit is silent about any action taken against him under the Tamil Nadu Minor Mineral Concession Rules, 1959 which provide for stricter penalties for illegal sand mining. The Seventh Respondent would also state that he has recommended the case of the Petitioner for grant of relief under the Chief Minister's Relief Fund as early as on 5.8.2010. He would further submit that there is no rule enabling appointment on compassionate grounds in the circumstances of this case, lie would further submit that on humanitarian ground, the Petitioner may be accommodated in any one of the noon meal centres. He would further submit that he is not empowered to grant such appointment. 3. When this Writ Petition was listed before this Court earlier, the Hon'ble Mr. Justice K.K. Sasidharan, on 10.8.2016 issued direction to the District Collector. Madurai who is the Third Respondent herein to consider the plight of the Petitioner in the light of recommendation made by the Tahsildar. Vadipatty and ascertain the feasibility of appointing the Petitioner in anyone of the Noon Meal Centres. The matter was posted for reporting compliance with the said Order. A Compliance Report has been filed by the District Collector, Madurai. In the said Compliance Report, it has been stated that the posts of Noon Meal Organiser, Cook, Assistant in Noon Meal Centres arc filled up by publication of advertisement in Newspapers and if the Petitioner applies on such publication and if she is found eligible, she would be appointed. Considering the nature of the report, the Hon'ble Mr. Justice K.K. Sasidharan, by an Order dated 22.8.2016, recalled the earlier Order and has posted the Writ Petition for hearing on merits. Considering the nature of the report, the Hon'ble Mr. Justice K.K. Sasidharan, by an Order dated 22.8.2016, recalled the earlier Order and has posted the Writ Petition for hearing on merits. Thus, the Writ Petition is listed before me. 4. The question that arises for determination in this Writ Petition is as to whether the Government would be liable for payment of Compensation in cases where injury or death occurs due to the negligence on the part of the officials of the State machinery. The law imposes duty upon the State to protect its natural resources including River Sand. Smuggling of River Sand has become a menace and the fact that it goes on unabated and at times in connivance with the officials whose duty it is to prevent such illegal mining is a known secret. 5. The question whether the State could be made liable to compensate victims of such illegal actions is no longer res Integra. The Hon'ble Supreme Court in M.S. Grevel and another v. Deep Chand Sood and others, 2001 (8) SCC 151 , while considering the question of payment of Compensation for negligence by a School which had taken its wards for a picnic at Tandapatanindora on the bank of River Beas. Where 14 Students had drowned in the River has held that the School would be liable for negligence of the Teachers who had accompanied the students. 6. In The Chief Secretary to the Government of Tamil Nadu and others v. R. Selvam, 2004 WLR 611 , a Division Bench of this Court had held that the State would be liable to pay Compensation for death of a student caused due to attack by miscreants. The Division Bench had considered the duty of the State to provide proper safety of the students in the hostel for girls attached to the Medical College. The Division Bench had considered the duty of the State to provide proper safety of the students in the hostel for girls attached to the Medical College. The Division Bench also dealt with the scope of the power of this Court to grant Compensation under Article 226 of the Constitution and after referring to the decisions of the Hon'ble Supreme Court in Uttar Pradesh State Cooperative Land Development Bank Ltd. v. Chandra Bhan Dubey, 1999 (1) CTC 467 (SC) : 1999 (1) SCC 741 ; and The Tamil Nadu State Electricity Board v. Sumathi and others, 2000 (4) SCC 543 , held that this Court has got power to grant Compensation when there is negligence on the face of it. 7. A Full Bench of this Court in P.P.M. Thangaiah Nadar Firm v. Government of Tamil Nadu, 2006 (5) CTC 97 (FB), considered the right of a person whose property suffered destruction due to communal riots and held that the State will be liable to pay Compensation to the victims of riots, if it is established that Officers of the State who are ordained with duty to maintain law and order have failed to protect life, liberty and property of the citizen and such failure amounts to dereliction of duty. This Court further held that such liability can be enforced through Public Law remedy or Common Law remedy. The Full Bench had held that where necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 of the Constitution can issue appropriate direction. In Paragraph 38 of the said Judgment, the Full Bench observed as follows: "38. Now the inevitable end of the journey or may be beginning of another. In view of the various decisions noticed by us and many other decisions referred to in such decisions, the following conclusions can be reached. The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the Officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay Compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of Suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to examine that question in any appropriate case." 8. In T. Sekaran v. State of Tamil Nadu, 2010 (1) CWC 455 (DB), a Division Bench of this Court had considered the liability of the State to compensate the family of one Mr. Canicius Fernando, a Srilankan national who was shot dead by a Security Warder outside Madurai Central Prison on 5.10.2007. The Division Bench, after considering the law relating to Public Law Remedy in respect of such accident/killings, concluded that the victim or family of the victim is entitled to Compensation and the State which has failed in its duty to protect the life and liberty of an individual is liable to compensate the victim or his family as the case may be. 9. In Minor K. Priyadarshini v. Director of Elementary Education, 2016 (4) CTC 731 : 2016 (2) CWC 786, this Court upheld the claim of a minor who lost her eye because of inhuman beating by her School Teacher. The School Management was directed to pay a sum of Rs.7 lakhs as Compensation to the minor girl and this Court came down heavily on the inaction by the State in such grave matters. 10. In S. Krishnaswamy v. State of Tamil Nadu, 2016 (5) CTC 70 : 2016 (2) CWC 241, this Court had held that the State is liable to compensate for the injuries sustained by a citizen as a result of violence committed by mob. It has been held that it is the responsibility of the State to secure and safeguard life and liberty of the citizens. It has been held that it is the responsibility of the State to secure and safeguard life and liberty of the citizens. Laxity and indifference of the administration in enforcing law and order was condemned and if such laxity leads lo injury or death of a citizen it was held that the State is bound to compensate such victims. 11. Recently, in The Commissioner of Corporation, Chennai v. State of Tamil Nadu, 2017 (2) CTC 119 (DB), a Division Bench of this Court held that the defence of Act of God is not available in such cases. The contention of the State that the Petitioner should institute a Civil Suit seeking damages was also rejected relying upon the Doctrine of Strict Liability taking note of march of the Public Law, the Division Bench at Paragraph 37 has observed as follows: "37. Summarising from the Judgments, extracted supra and texts, 'Act of God' means, an unexpected occurrence of nature, such as severe gale, snowstorms, hurricanes, cyclones and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. 'Act of God' provides no excuse, unless so it is unexpected that no reasonable human foresight would be presumed to anticipate the occurrence having regard to the conditions of time and place known to be prevailing at. An 'Act of God' is an occurrence, which no human foresight can provide against and of which human prudence is bound to recognise the possibility. 'Act of God' is an inevitable accident, which happens not only without the concurrence of the will of the man, but in spite of all efforts, on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. An 'Act of God' is an inevitable or unavoidable accident without the intervention of man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. It should be an incident, due to an unexpected operation of natural forces free from human intervention, which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. It should be an incident, due to an unexpected operation of natural forces free from human intervention, which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. It should be a direct violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. If the act in its origin either in the whole or in part is due to the agency of man. whether in acts of commission or omission, of non-feasance or of misfeasance, or in any other cause independent of the agency of natural forces, it will not be a case for 'Act of God'." 12. At Paragraph 38 of the said Judgment, the Division Bench further went on to state as follows: "38. In the light of the above discussion, when the officials of the Appellant-Corporation have failed to discharge their duties enjoined on them, by Chennai City Municipal Corporation Act, 1919, in Section 259 of the Act, which mandates the Corporation to cut and remove dangerous trees, even if they were standing in a Private place and when one of them fell on a Car, resulting in loss of the precious life, prima facie, it is a tort, for which, an action for damages would lie. Act of God is not a defence to breach of duty or failure to perform statutory duties. As rightly observed by Writ Court, had the officials of the Appellant Corporation, cut and removed the old, worn out and dangerous trees and performed their statutory duties, the accident would not have occurred." 13. The claim of the Petitioner has to be examined in the light of the above judicial pronouncements of this Court and the Hon'ble Supreme Court. The fact that the daughter of the Petitioner was killed as a result of an accident involving a Bullock Cart which was engaged in illegal sand mining is not in dispute. The fact that the husband of the Petitioner also died within a week of the death of his daughter is also admitted. The Counter Affidavit of the Seventh Respondent does not contain any reason as to why no action was taken against the Sixth Respondent under the Tamil Nadu Minor Mineral Concession Rules, 1959. The fact that the husband of the Petitioner also died within a week of the death of his daughter is also admitted. The Counter Affidavit of the Seventh Respondent does not contain any reason as to why no action was taken against the Sixth Respondent under the Tamil Nadu Minor Mineral Concession Rules, 1959. Though the Seventh Respondent would magnanimously state that he had recommended the case of the Petitioner for relief under the Chief Minister's Relief Fund, as early as on 5.8.2010 and even after lapse of seven years, nothing has been done. The Third Respondent, the District Collector, Madurai has expressed his inability to provide a job for the Petitioner. In these circumstances, this Court is left without any other option to consider payment of Compensation. It is also shocking to note that the Sixth Respondent's case has been referred to Lok Adalat and he has been discharged of the offence on payment of Rs.5,000 as fine. This, in my opinion, is most condemnable conduct on the part of the officials. In the absence of any denial of the factum of the accident and the fact that the accident involved a Bullock Cart smuggling sand, it becomes clear that the death of the minor daughter of the Petitioner namely, Dhanalakshmi was caused due to the negligence and dereliction of duty on the part of the officials of the State who are bound to prevent illegal quarrying of Sand. As pointed out by this Court, in S. Krishnaswamy's case (supra), the State is duty bound to protect its citizens and the plea that illegal sand mining goes on despite regular raids being conducted by the Government Departments cannot be an answer. The obligation of the State to protect the life and liberty of the citizens has been reiterated by this Court on more than one occasion. There is a tacit admission of the failure on the part of the State machinery to check illegal sand quarrying in the Counter Affidavit filed by the Seventh Respondent. I, therefore, reach the inevitable conclusion that the State which is bound to protect the life and liberty of the citizens failed to do so and callousness in discharging the duties by the officials is made out. The State is liable to compensate the Petitioner who is a victim of such failure on the part of the State machinery. 14. I, therefore, reach the inevitable conclusion that the State which is bound to protect the life and liberty of the citizens failed to do so and callousness in discharging the duties by the officials is made out. The State is liable to compensate the Petitioner who is a victim of such failure on the part of the State machinery. 14. The next question would be what would be the quantum of Compensation that is to be awarded to the Petitioner. The Petitioner has lost her nine year old daughter and she has also lost her husband immediately thereafter. The attempt made by this Court to make the Respondents to accommodate the Petitioner in any one of the Noon Meal Centres has also failed due to the unbending attempt exhibited by the District Collector. The loss of the Petitioner, cannot be measured in terms of money. However, her sufferings can be reduced by providing her with reasonable Compensation which would enable her to lead a decent life. While deciding the quantum of Compensation, the present day cost of living has to be borne in mind. The daughter of the Petitioner was aged about nine years and her husband was aged 32 years when they died. 15. In the Chairman, Railway Board v. Chandrima Das, 2000 (2) SCC 465 , the Hon'ble Supreme Court had upheld the award of Compensation of Rs.10 lakhs by the High Court. In M.S. Grevel's case (supra), the Hon'ble Supreme Court had sustained the award of Compensation of Rs.5 lakhs in case of death of minor students. The said case was decided by the Hon'ble Supreme Court even in the year 2001. Due to passage of time, the cost of living index had increased multifold. This case presents a difficulty in assessing the quantum of Compensation inasmuch as the victim is a minor child aged about nine years. The method of assessing Compensation under the Motor Vehicles Act also cannot be safely adopted. But taking queue from the Judgments of the Hon'ble Supreme Court in Chandrima Das's case and M.S. Gravel's (supra), I am of the considered opinion that the Compensation of Rs.10 lakhs would be just and reasonable in the circumstances of the case. 16. In the light of the above discussion, the Writ Petition is allowed. Rule . nisi is made absolute. 16. In the light of the above discussion, the Writ Petition is allowed. Rule . nisi is made absolute. There will be a direction to the First Respondent to pay a sum of Rs.10 lakhs towards Compensation to the Petitioner for the death of her minor daughter in the accident that occurred on 7.6.2010. Needless to state that the amount of Compensation is determined taking note of the fact that the husband of the Petitioner is only aged 32 years dies almost immediately (i.e.) on 16.6.2010. The Compensation amount of Rs.10 lakhs shall carry Interest at 7.5% per annum from the date of filing of this Writ Petition (i.e.) on 18.08.2010 till the date of payment. The Compensation amount shall be deposited by the State in a fixed deposit in a nationalised bank at Sholavanthan in the name of the Petitioner renewable for a period of five years with a provision of payment of monthly interest to the Petitioner. The said exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this Order. Taking note of the fact that the Seventh Respondent has fairly admitted that the menace of illegal sand mining goes as unabated despite the so-called raids conducted periodically. 1 only hope that this case will serve as an eye opener and the persons responsible for preventing illegal sand mining will do their duties consciously and prevent recurrence of such accidents in future. No Costs. W.P. Allowed - No Costs.