M.S. Grewal
& Anr Vs. Deep Chand Sood & Ors [2001] Insc 420 (24 August 2001)
A.P.
Misra & Umesh C Banerjee Banerjee, J.
A very
sad tale concerning fourteen young kids resulting in untimely and unfortunate
death of all of them stands out to be the subject matter of the Appeal under
consideration: Sad tale by reason of the fact that a sheer fun of young ones
turned out to be fatal as a consequence of utter and callous neglect of
teachers on duty.
Adverting
to the factual aspects, it appears that on 28.5.1995, 59 boys and 18 girls
(totaling 77) students, all in 4th, 5th and 6th classes of Dalhousie Public School, Badhani, Pathankot were brought for a picnic at Tandapatanindora
on the bank of river Beas. The Head Master of the School
deputed one Shri Surinder Pal Singh and another Shri K. Shanmugham being
teachers in the School for escorting and taking due and proper care of the
students. Incidentally, the site chosen for the picnic was the same on which
the earlier picnic of the School was held on 7th May, 1995.
On the
contextual facts, it appears that the School concerned has in its activities, a
usual picnic for all the students in batches.
Some
of the students had already been into the picnic and these 77 were chosen for
the batch which was scheduled for 28th May, 1995. It has been the version of the
School authorities that in a true educational institution, extra curricular
activities play a dominant role in imparting proper education to the students
and outings/picnics thus have been a regular feature in the school:
whereas
in the event of there being a plan for overnight stay, the School management
without parental consent would not permit the concerned student for
participation therein though however, the same is not a requirement in a day
time outing or picnic.
The
factual score further reveals that the management of the School organised the
picnic on 7th May, 1995 for the students as noticed above and selected the same
site on the bank of river Beas which flows from North to South direction having
a width of approximately 200 ft. On the fateful day, however (28th May, 1995)
the students were accompanied by five teachers, two mess boys, one supplier and
the driver of the bus along with two European ladies (GAP students) in the
picnic party. The records depict that in the post lunch period, fourteen
students alongwith two teachers Shanmugam and S.P.Singh went down the river for
a considerable distance with about 14 students and the teachers however
discovered a sudden dibber of about 6 8 ft. deep by reason wherefor the
teachers themselves along with the students fell into a great danger whereas
teachers could save themselves up the students fell a victim of utter neglect
of the teachers - The children were allowed to play in the danger zone of the
water without any caution or any warning being sounded, the resultant effect of
which drowning of these unfortunate fourteen children a rather unfortunate sad
end and finale to the so-called extra curricular activities of the School.
On the
further factual score, it appears that the Government of Himachal Pradesh,
ordered a judicial inquiry under the Commission of Inquiry Act 1952 by the
District and Sessions Judge, Kangra and the State of Punjab also ordered an
inquiry by the sub-divisional Magistrate, Pathankot but nothing was forthcoming
by reason wherefor the private respondents on 14th July, 1995, being the
parents of the unfortunate children moved a writ petition under Article 226 of
the Constitution in the High Court against the Petitioner Nos.1 and 2 and
respondent Nos.14- 16 seeking a relief by way of an inquiry by C.B.I to find
out the causes for the tragedy and fixation of responsibility therefor and
punishment to the guilty ones together however, with a prayer for adequate
compensation from the School authorities and on 2nd August, 1995, the High
Court ordered an Inquiry to be conducted by the Central Bureau of Investigation
and the latter upon examination of various witnesses recording the unfortunate
incident of drowning of children concluded in paragraph 41 of the report as
below:
41.
The conclude investigations have established that the death of 14 students by
drowning was caused by the rash and negligent acts of firstly allowing the
students to stray down stream by about 1100 ft. and enter into unchartered
waters and secondly, due to direct instigation by Shri Surinder Pal Singh
whereby the students in their efforts to catch him and thereafter to race to
the bushes on the western river bank down stream, entered into the water of
Dibber and were drowned as the depth of the water exceeded their average
height. The investigation has thus prima facie established the commission of
offence u/s 304A of the Indian Penal Code by S/Shri S.P.Singh, Director
Physical Education, Dalhousie Public School and Shri K. Shanmugam, teacher, Dalhousie Public School, Badhani.
The
Writ Petition, however, came up for final disposal before the High Court on 4th
March, 1996 wherein the writ petition was allowed and it was ordered that the
Chairman and the Management of the School shall pay a compensation of Rs.5 lakh
to each of the parents of fourteen students who died in the incident and a sum
of Rs.30,000/- to each of the parents of students who suffered due to drowning
incident within two months with interest at the rate of 12% per annum from 28th
May, 1995 by depositing the same in the registry of the High Court and hence
the Special Leave Petition before this Court and the subsequent grant of leave
with an order to deposit a sum of Rs.7 lakhs towards discharge of the liability
of the petitioner, if ultimately upheld by the Court to be disbursed in
accordance with the orders of the court. Incidentally, the order requiring the
petitioner to deposit a sum of Rs.7 lakhs stands complied with.
It is
on this factual backdrop Mr. Bahuguna, learned Senior Advocate in support of
the Appeal in no uncertain terms stated before the Court that the event that
has happened, should not have happened. Strong reliance was placed on the
report of the C.B.I.
wherein
there has been total exoneration of any liability so far as the management of
the School are concerned though responsibility has been fixed on to School
teachers personally. Mr. Bahuguna with his usual eloquence expressed his
deepest sorrow for the incident and on the very first day of the hearing
submitted that irrespective of any instruction in the matter, a sum of Rs. 2 lakhs
can be termed to be a reasonable figure and his clients should be prepared to
pay the same a good gesture undoubtedly, but since the same does not receive
concurrence from Mr. Malhotra, the learned Senior Advocate, appearing for the
Respondents herein, we refrain ourselves from expressing any opinion thereon.
Be that as it may, Mr. Bahuguna contended the quantum had been fixed by the
High Court at a strangely staggering figure Rs. 5 lakhs without however any
basis whatsoever - Acknowledging, however, the fact that no amount of
compensation can possibly redress the grievances of the parents in the
contextual facts, it has been contended that the law courts also cannot possibly
proceed on emotions and sentiments only: the order pertaining to payment of
compensation must have its foundation on some finding of fact in the absence of
which the order becomes totally untenable. A number of decisions have been
cited to depict that the quantum must be realistically realistic having its
proper basis rather than assessment thereof on sentiment and anguish. Mr. Bahuguna
submitted that the anguish of the Judges of the High Court obviously is
understandable but that does not however mean and imply, award of compensation
to a staggering amount of Rs.5 lakhs per student by reason wherefor the School
stands foisted with the liability of more than one crore. Mr. Bahuguna
contended that assessment of compensation must also have a co-relation with the
ability or capability to pay. Ability to pay, it was contended is a necessary
criteria in regard to the fixation of quantum of compensation in the event of
there being an unfortunate event and it is on this score that paragraph 41 of
the Report has been taken recourse to The teachers have been ascribed to be
negligent and not a whisper about the conduct of the school and as such
conferment of liability on to the school in any event is totally an injudicious
discretion of the High Court. True, and as noticed hereinbefore the conclusion
of CBI, fixed the entire responsibility upon the two teachers and criminal
proceedings stand initiated by reason therefor and the accused persons as a
matter of fact also stand convicted under Section 304-A I.P.C. but what is the
affect of such a finding: Needless to record that the CBIs investigation was
not in regard to the assessment of the quantum of tort feasors or joint tort-feasors
liability and as such the report by itself would not be of any assistance to
the school authorities in the matter of fixation of monetary liability by
reason therefor.
Incidentally,
this Court in C.K. Subramania Iyer and Others v. T. Kunhikuttan Nair and Six
Others [(1969) 3 SCC 64] while dealing with the matter of fatal accidents laid
down certain relevant guidelines for the purpose of assessment of compensation.
Paragraph
13 of the report would be relevant on this score and the same is set out hereinbelow:
13.
The law on the point arising for decision may be summed up thus: Compulsory damages
under Section 1-A of the Act for wrongful death must be limited strictly to the
pecuniary loss to the beneficiaries and that under Section 2, the measure of
damages is the economic loss sustained by the estate. There can be no exact
uniform rule for measuring the value of the human life and the measure of
damages cannot be arrived at by precise mathematical calculations but the
amount recoverable depends on the particular facts and circumstances of each
case.
The
life expectancy of the deceased or of the beneficiaries whichever is shorter is
an important factor. Since the elements which go to make up the value of the
life of the deceased to the designated beneficiaries are necessarily personal
to each case, in the very nature of things, there can be no exact or uniform
rule for 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) The observations as above, undoubtedly lays down the basic guidance
for assessment of damage but one redeeming feature ought to be noted that
compensation or damages cannot be awarded as a solatium but to assess the same
with reference to loss of pecuniary benefits. In the decision last noted
[(1969) 3 SCC 64] this Court placed strong reliance on two old decisions of the
English Courts to wit: Franklin v. The South East Railway Company
(157 English Reports 3 H & N, p.448) wherein Pollock, C.B. stated :
We do
not say that it was necessary that actual benefit should have been derived, a
reasonable expectation is enough and such reasonable expectation might well
exist, though from the father, not being in need, the son had never done
anything for him. On the other hand a jury certainly ought not to make a guess
in the matter, but ought to be satisfied that there has been a loss of sensible
and appreciable pecuniary benefit, which might have been reasonably expected
from the continuance of life.
The
other decision relates to the case of Taff Vale Railway Company v. Jenkins
[(1913) AC 1] wherein Atkinson, J. stated the law as below:
I
think it has been well established by authority that all that is necessary is
that a reasonable expectation of pecuniary benefit should be entertained by the
person who sues. It is quite true that the existence of this expectation is an
inference of fact there must be a basis of fact from which the inference can
reasonably be drawn; but I wish to express my emphatic dissent from the
proposition that it is necessary that two of the facts without which the
inference cannot be drawn are, first, that the deceased earned money in the
past, and second, that he or she contributed to the support of the plaintiff.
These
are, no doubt, pregnant pieces of evidence, but they are only pieces of
evidence; and the necessary inference can I think be drawn from circumstances
other than and different from them.
Be it
placed on record that in assessing damages, all relevant materials should and ought
always be placed before the court so as to enable the Court to come to a conclusion
in the matter of affectation of pecuniary benefit by reason of the unfortunate
death.
Though
mathematical nicety is not required but a rough and ready estimate can be had
from the records claiming damages since award of damages cannot be had without
any material evidence: whereas one party is to be compensated, the other party
is to compensate and as such there must always be some materials available therefor.
It is
not a fanciful item of compensation but it is on legitimate expectation of loss
of pecuniary benefits. In Grand Trunk Railway Company of Canada v. Jennings (13 Appeal Cases 800) this well accepted principle stands
reiterated as below:
In
assessing the damages, all circumstances which may be legitimately pleaded in
diminution of the damages must be considered. It is not a mere guess work
neither it is the resultant effect of a compassionate attitude.
As
noticed above, a large number of decisions were placed before this Court as
regards the quantum of compensation varying between 50,000 to one lakh in
regard to unfortunate deaths of young children. We do deem it 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
fact-situation of the matter before the court, than judicial precedents. As
regards the 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 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 fact-situation of the matter concerned
though however, not on mathematical nicety.
On the
issue of negligence, the CBI report and subsequent decision the Criminal Court
have foisted liability on to the teachers accompanying the students But what is
the effect of such a finding? Significantly, the school authority though
claimed to be not liable in any way, in no uncertain terms however blamed the
teachers and their utter negligence, resulting in such a tragedy.
Negligence
in common parlance mean and imply failure to exercise due care, expected of a
reasonable prudent person. It is a breach of duty and negligence in law ranging
from inadvertence to shameful disregard of safety of others. In most instances,
it is caused by heedlessness or inadvertence, by which the negligent party is unaware
of the results which may follow from his act.
Negligence
is thus a breach of duty or lack of proper care in doing something, in short,
it is want of attention and doing of something which a prudent and a reasonable
man would not do (vide Blacks Law Dictionary). Though sometimes, the word
inadvertence stands and used as a synonym to negligence, but in effect
negligence represents a state of the mind which however is much serious in
nature than mere inadvertence. There is thus existing a differentiation between
the two expressions whereas inadvertence is a milder form of negligence,
negligence by itself mean and imply a state of mind where there is no regard
for duty or the supposed care and attention which one ought to bestow.
Clerk
& Lindsell on Torts (18th Ed.) sets out four several requirements of the
tort of negligence and the same read as below:
(1) the
existence in law of a duty of care situation, i.e. one in which the law
attaches liability to carelessness. There has to be recognition by law that the
careless infliction of the kind of damage in suit on the class of person to
which the claimant belongs by the class of person to which the defendant
belongs is actionable;
(2) breach
of the duty of care by the defendant, i.e. that it failed to measure up to the
standard set by law;
(3) a
casual connection between the defendants careless conduct and the damage;
(4) that
the particular kind of damage to the particular claimant is not so
unforeseeable as to be too remote.
While
the parent owes his child, a duty of care in relation to the childs 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 and Another (1943 (2) All ER 629) as also the decision of the
Court of Appeal in Prince and Another v. Gregory and Another (1959(1)WLR177).
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 play-field.
While
it is true that if the students are taken to another school building for
participation in certain games, it is sufficient exercise of diligence to know
that the premises are otherwise safe and secure but 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 sayings will not be a 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.
Incidentally,
negligence is an independent tort and has its own strict elements specially in
the matter of children the liability is thus absolute vis-à-vis the children.
The school authorities in the contextual facts attributed negligence to the two
teachers who stand 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 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: Would they be termed to be
a joint tort feasors or would it be a defence that the school has taken all due
care having regard to its duty and it is irrespective thereof by reason of
utter neglect and callous conduct on the part of the two of the teachers
escorting them that has caused the injury Mr. Bahuguna contended that the
school cannot be made liable under any stretch of imagination by reason of the
happening of an event which is not within the school premises and has, in fact,
happened by reason of the neglect of two of the teachers. It is on this score
that Mr. Malhotra rather emphatically contended that the liability cannot
simply be obliterated by reason of plea of utter neglect on the part of the two
of the teachers: School concerned can be said to be liable even as a joint
tort-feasor and in any event, Mr. Malhotra contended that applicability of the
doctrine of vicarious liability cannot be doubted or be brushed aside, in any
way whatsoever and since the issue of vicarious liability has been more
emphatic and pronounced than the issue of joint tort-feasor, we deem it
expedient to deal with the second of twin issues first as noticed above.
Be it
noted that the doctrine of vicarious liability has had a fair amount of
judicial attention in the English Courts. By the end of 18th century, the idea
began to grow up that some special importance ought to be attached to the
relationship of master and servant and in 1849 it was officially held that
existence of that relationship was essential. Thereafter, though primary
liability on the part of anyone could be established on proof of direct
participation in the tort, such direct participation was not even theoretically
required to make a master liable for his servants torts. The liability is
derived from the relationship and is truly vicarious. At the same time, the
phrase implied authority which had been the cornerstone of the masters primary
liability gives way gradually to the modern course of employment. (vide
Winfield & Jolowicz on Tort 15th Ed.).
In
recent years, the tendency has been however, towards more liberal protection of
third party and so in establishing a particular course of employment the court
should not dissect the employees basic task into component parts but should ask
in a general sense: What was the job at which he was engaged for his employer?
And it is on this perspective Lord Wilberforce in Kooragang Investments Pty.
Ltd. v. Richardson & Wrench Ltd. (1982 A.C. 462) stated:
Negligence
is a method of performing an act:
instead
of it being done carefully, it is done negligently. So liability for negligent
acts in the course of employment is clear. Cases of fraud present at first
sight more difficulty: for if fraudulent acts are not directly forbidden, most
relationships would carry an implied prohibition against them. If committed for
the benefit of the employer and while doing his business, principle and logic
demand that the employer should be held liable, and for some time the law
rested at this point. The classic judgment of Willes J. in Barwick v. English
Joint Stock Bank (1867) L.R. 2 Ex.259, 266 stated the principle thus:
In all
these cases it may be said.that the master has not authorised the act. It is
true, he has not authorised the particular act but he has put the agent in his
place to do that class of acts and he must be answerable for the manner in
which the agent has conducted himself in doing the business which it was the
act of his master to place him in.
That
was a case where the wrong was committed for the masters (viz., the banks)
benefit, and Willes J. stated this as an ingredient of liability at p.265:
..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 masters benefit, though no
express command or privity of the master be proved.
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:
(i) where
a servant has, without authority, permitted another person to drive the masters
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. 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, 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."
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 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.
Significantly,
however, Mr. Malhotra with all the emphasis at his command and rather strongly
commented upon the submissions of Mr. Bahuguna on the issue of award of compensation
by reason of specific legislations in the country in particular reference to
Motor Vehicles Act and on a conjoint reading of the 2nd Schedule thereto, Mr. Malhotra
contended that the quantum would be far in excess of the amount awarded by the High
Court submissions seem to be rather attractive: Motor Vehicles Act and the 2nd
Schedule thereto cannot but be treated to be a guide in the matter of award of
compensation and there cannot possibly be any doubt in regard thereto. We shall
however be dealing with the issue slightly later in this judgment.
Turning
attention however on to the issue of vicarious liability, one redeeming feature
ought to be noticed at this juncture that to escort the children was the duty
assigned to the two teachers and till such time thus the period of escorting
stands over, one cannot but ascribe it to be in the course of employment the
two teachers were assigned to escort the students : the reason obviously being
the children should otherwise be safe and secure and it is the act of utter
negligence of the two teachers which has resulted in this unfortunate tragedy
and thus it is no gain-said that the teachers were on their own frolic and the
school had done all that was possible to be done in the matter safety of the
children obviously were of prime concern so far as the school authorities are
concerned and till such time the children return to school, safe and secure
after the picnic, the course of employment, in our view continues and thus
resultantly, the liability of the school.
A
profitable re-capitulation of facts depict that the criminal court has already
found both the teachers guilty of utter negligence and convicted them under
Section 304 A IPC (which provides that whoever causes the death of any person
by doing any rash or negligence act not amounting to culpable homicide shall be
punished with) We are not inclined to record anything contra, save what stands
recorded by the District Court in the criminal proceeding but we are
constrained to record our anguish over the conduct of the teachers escorting
the students even a simple rule of discipline and safety would have prompted
the teachers not only to go to the river where they went but no where near the
river ought to have been the guiding factor children are children: fun and
frolic stand ingrained in them and it is School/Teachers deputed for escorting
ought to be reasonably careful since entrusted with the safety this entrustment
ought to have infused a sense of duty which should have prompted them to act
not in the manner as they have so acted.
In
view of the above, we are unable to record our concurrence with the submissions
of Mr. Bahuguna that the doctrine of vicarious liability cannot in any event be
made applicable in the facts of the matter under consideration. Liability of
the school, in our view, in the contextual facts cannot be shifted for any
reason whatsoever by reason of the factum of teachers being within the course
of employment of the school at the time of the tragedy.
Next
is the issue maintainability of the writ petition before the High Court under
Article 226 of the Constitution. The appellant though initially very strongly
contended that while the negligence aspect has been dealt with under penal law
already, the claim for compensation cannot but be left to be adjudicated by the
Civil law and thus the Civil courts jurisdiction ought to have been invoked
rather than by way of a writ petition under Article 226 of the Constitution.
This plea of non-maintainability of the writ petition though advanced at the
initial stage of the submissions but subsequently the same was not pressed and
as such we need not detain ourselves on that score, excepting however recording
that the law courts exists for the society and they have an obligation to meet
the social aspirations of citizens since law courts must also respond to the
needs of the people. In this context reference may be made to two decisions of
this court: The first in line, is the decision in Nilabati Behera (Smt) alias Lalita
Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and
Others (1993 (2) SCC 746) wherein this Court relying upon the decision in Rudal
Sah (Rudal Sah v. State of Bihar & Anr.: 1983 (4) SCC 141) decried the
illegality and impropriety in awarding compensation in a proceeding in which
courts power under Articles 32 and 226 of the Constitution stand invoked and
thus observed that it was a clear case for award of compensation to the
petition for custodial death of her son. It is undoubtedly true however that in
the present context, there is no infringement of States obligation unless of
course the State can also be termed to be a joint tort-feasor, but since the
case of the parties stand restricted and without imparting any liability on the
State, we do not deem it expedient to deal with the issue any further except
noting the two decisions of this Court as above and without expression of any
opinion in regard thereto.
The
decision of this Court in D.K. Basu vs. State of West Bengal [(1997) 1 SCC 416]
comes next. This decision has opened up a new vesta in the jurisprudence of the
country. The old doctrine of only relegating aggrieved to the remedies
available in civil law limits stands extended since Anand, J. (as His Lordship
then was) in no uncertain terms observed:
The
courts have the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected to respond to
their aspirations. A court of law cannot close its consciousness and aliveness
to stark realities. Mere punishment of the offender cannot give much solace to
the family of the victim civil action for damages is a long drawn and a
cumbersome judicial process. Monetary compensation for redressal by the court
finding the infringement of the indefeasible right to life of the citizen is,
therefore, useful and at time perhaps the only effective remedy to apply balm
to the wounds of the family members of the deceased victim, who may have been
the breadwinner of the family.
Currently
judicial attitude has taken a shift from the old draconian concept and the
traditional jurisprudential system affectation of the people has been taken
note of rather seriously and the judicial concern thus stands on a footing to
provide expeditious relief to an individual when needed rather than taking
recourse to the old conservative doctrine of civil courts obligation to award
damages. As a matter of fact the decision in D.K Basu has not only dealt with
the issue in a manner apposite to the social need of the country but the learned
Judge with his usual felicity of expression firmly established the current
trend of justice oriented approach. Law courts will lose its efficacy if it
cannot possibly respond to the need of the society technicalities there might
be many but the justice oriented approach ought not to be thwarted on the basis
of such technicality since technicality cannot and ought not to outweigh the
course of justice.
The
only other issue, thus left outstanding in the matter under consideration
pertains to the quantum of compensation. It is at this juncture that we record
our appreciation for the gesture of Mr. Bahuguna who at the very commencement
of the hearing submitted that while the figure of Rs. 5 lacs compensation per
child seem to be strangely absurd but he recommended a figure of Rs. 2 lacs per
child as monetary compensation for the events that had taken place;
compensation there cannot be any, far less monetary compensation, for the
unfortunate death of ones own child it cannot be termed to be a solatium. Unfortunately
the situation in the facts of the matter does not warrant us to accept the same
as a result of which we wish to deal with the matter in slightly more greater
detail.
Mr. Bahuguna
for the appellant with however strong vehemence contended that the High Court
has totally misread and misapplied the principles of law in the matter of
awarding compensation and in any event the quantum thereto has been fixed at an
absurdly higher figure. The anguish of the High Court, Mr. Bahuguna contended,
is understandable by reason of the factual import in the matter but that does
not however mean and imply that a court of law would be guided by emotions and
allow the sentiments to play a pivotal role in the matter of assessment of
damages. It has been the contention of Mr. Bahuguna that there is not an iota
of evidence as to the pecuniary loss for pecuniary benefit and as such the
assessment of quantum has been totally arbitrary and in utter disregard of the
known principles of law.
As
noticed hereinbefore six several judgments have been cited wherein the quantum
of compensation varies between Rs. 30,000/- to Rs.1,50,000/- but in every
decision there was a factual basis for such an assessment and there is no
denial of the same. But the adaptability of the multiply method and its
acceptability without any exception cannot just be given a go by.
This
Court in a long catena of cases and without mixing word did apply the multiply
method to decide the question of compensation in the cases arising out of Motor
Vehicles Act. It is in this context the view of British Law Commission may be
noticed and which indicates the multiplier has been, remains and should
continue to remain, the ordinary, the best and the only method of assessing the
value of a number of future annual sums. The actuarial method of calculation
strictly speaking may not have lost its relevance but its applicability cannot
but be said to be extremely restricted said the British Commission. Lord Dennings
observations in Hodges vs. Harland & Wolff Limited [(1965) 1 ALL ER 1086]
also seem to be rather apposite. Lord Denning observed that multiplier method
cannot but be termed to be of universal application and as such it would meet
the concept of justice in the event the same method is applied for determining
the quantum of compensation.
Incidentally
in a very recent decision of this Court (Civil Writ Petition No. 232 of 1991 in
the matter of Lata Wadhwa and Others vs. State of Bihar & Others [of which
one of us (U.C.Banerjee, J.) was a party] wherein a three-Judge Bench of this
Court has had the occasion to consider an award of a former Chief Justice
pertaining to the assessment of compensation by reason of a huge accidental
fire. Significantly a writ petition was filed in this Court and this Court
thought it expedient to have the claims examined by a former Chief Justice of
the country and the latter duly and upon adaptation of multiplier method finalised
the quantum of compensation which more or less barring some exceptions stands
accepted by this Court in the decision noticed above. In Lata Wadhwas decision
factual score records that while 150th Birth Anniversary of Sir Jamshedji Tata,
was being celebrated on 3rd March, 1989 within the factory premises at Jamshedpur
and a large number of employees, their families including small children had
been invited, a devastating fire suddenly engulfed the Pandal and the area
surrounding and by the time the fire was extinguished, a number of persons lay
dead and many were suffering with burn injuries. The death toll reached 60 and
the total number of persons injured were 113. The factual score in Lata Wadhwas
case further depicts that amongst the persons dead, there were 26 children, 25
women and 9 men and Srimati Lata Wadhwa the petitioner in the matter lost her
two children, a boy and a girl as also her parents. It is on this score that
the learned arbitrator fixed in the absence of any material a uniform amount of
Rs. 50,000/- to which again a conventional figure of Rs.25,000/- has been added
for determining the total amount of compensation payable. While dealing with
the matter this Court (Pattanaik, J. speaking for the Bench) observed:
So far
as the determination of compensation in death cases are concerned, apart from
the three decisions of Andhra Pradesh High Court, which had been mentioned in
the order of this Court dated 15th December, 1993, this Court in the case of
General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma
Thomas and Ors. (1994 (2) SCC 176), exhaustively dealt with the question. It has
been held in the aforesaid case that for assessment of damages to compensate
the dependants, it has to take into account many imponderables, as to the life
expectancy of the deceased and the dependants, the amount that the deceased
would have earned during the remainder of his life, the amount that he would
have contributed to the dependants during that period, the chances that the
deceased may not have lived or the dependants may not live up to the estimated
remaining period of their life expectancy, the chances that the deceased might
have got better employment or income or might have lost his employment or
income altogether.
The
Court further observed that the manner of arriving at the damages is to
ascertain the net income of the deceased available for the support of himself
and his dependants, and to deduct therefrom such part of his income as the
deceased was accustomed to spend upon himself, as regards both self-maintenance
and pleasure, and to ascertain what part of his net income the deceased was accustomed
to spend for the benefit of the dependants, and thereafter it should be capitalised
by multiplying it by a figure representing the proper number of years purchase.
It was also stated that much of the calculation necessarily remains in the
realm of hypothesis and in that region arithmetic is a good servant but a bad
master, since there are so often many imponderables. In every case, it is the
overall picture that matters, and the Court must try to assess as best as it
can, the loss suffered.
On the
acceptability of the multiplier method, the Court observed:
The
multiplier method is logically sound and legally well-established method of
ensuring a just compensation which will make for uniformity and certainty of
the awards. A departure from this method can only be justified in rare and
extraordinary circumstances and very exceptional cases.
In the
decision of Susamma Thomas (supra), this Court in paragraphs 7 & 8 of the
report observed:
7. In
a fatal accident action, the accepted measure of damages awarded to the
dependants is the pecuniary loss suffered by them as a result of the death. How
much has the widow and family lost by the fathers death? The answer to this
lies in the oft-quoted passage from the opinion of Lord Wright in Davies v.
Powell Duffryn Associated Collieries Ltd.[1942 AC 617] which says:
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 years
purchase. That sum, however, has to be taxed down by having due regard to
uncertainties, for instance, that the widow might have again married and thus
ceased to be dependent, and other like matters of speculation and doubt.
8. The
measure of damage is the pecuniary loss suffered and is likely to be suffered
by each dependent. Thus except where there is express statutory direction to
the contrary, the damages to be awarded to a dependant of a deceased person
under the Fatal Accidents Acts must take into account any pecuniary benefit
accruing to that dependant in consequence of the death of the deceased. It is
the net loss on balance which constitutes the measure of damages. (Per Lord
Macmillan in Davies v. Powell) Lord Wright in the same case said, The actual
pecuniary loss of each individual entitled to sue can only be ascertained by
balancing on the one hand the loss to him of the future pecuniary benefit, and
on the other any pecuniary advantage which from whatever source comes to him by
reason of the death. These words of Lord Wright were adopted as the principle
applicable also under the Indian Act in Gobald Motor Service Ltd. v. R..M.K. Veluswami
[AIR 1962 SC 1] where the Supreme Court stated that the general principle is
that the actual 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 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.
Needless
to say that the multiplier method stands accepted by this Court in the decision
last noticed and on the acceptability of multiplier method this Court in para
16 had the following to state:
It is
necessary to reiterate that the multiplier method is logically sound and
legally well- established. There are some cases which have proceeded to
determine the compensation on the basis of aggregating the entire future
earnings for over the period the life expectancy was lost, deducted a
percentage therefrom towards uncertainties of future life and award the
resulting sum as compensation. This is clearly unscientific.
For
instance, if the deceased was, say 25 years of age at the time of death and the
life expectancy is 70 years, this method would multiply the loss of dependency
for 45 years virtually adopting a multiplier of 45 and even if one-third or
one- fourth is deducted therefrom towards the uncertainties of future life and
for immediate lump sum payment, the effective multiplier would be between 30
and 34. This is wholly impermissible. We are, aware that some decisions of the
High Courts and of this Court as well have arrived at compensation on some such
basis.
These
decisions cannot be said to have laid down a settled principle. They are merely
instances of particular awards in individual cases. The proper method of
computation is the multiplier method.
Any
departure, except in exceptional and extraordinary cases, would introduce
inconsistency of principle, lack of uniformity and an element of
unpredictability for the assessment of compensation. Some judgments of the High
Courts have justified a departure from the multiplier method on the ground that
Section 110- B of the Motor Vehicles Act, 1939 insofar as it envisages the
compensation to be just., the statutory determination of a just compensation
would unshackle the exercise from any rigid formula. It must be borne in mind
that the multiplier method is the accepted method of ensuring a just
compensation which will make for uniformity and certainty of the awards. We
disapprove these decisions of the High Courts which have taken a contrary view.
We indicate that the multiplier method is the appropriate method, a departure
from which can only be justified in rare and extraordinary circumstances and
very exceptional cases.
In Lata
Wadhwas case, however, this Court came to a conclusion that upon acceptability
of the multiplier method and depending upon the facts situation namely the
involvement of TISCO in its tradition that every employee can get one of his
child employed in the company and having regard to multiplier 15 the
compensation was calculated at Rs. 3.60 lacs with an additional sum of
Rs.50,000/- as conventional figure making the total amount payable at Rs.4.10 lacs
for each of the claimants of the deceased children.
The
decision in Lata Wadhwa, thus, is definitely a guiding factor in the matter of
award of compensation wherein children died under an unfortunate incident as
noticed morefully hereinbefore in this judgment.
Having
considered the matter in its proper perspective and the applicability of
multiplier method and without even any further material on record we do feel it
expedient to note that though Mr. Bahuguna attributed the quantum granted by
the High Court as strangely absurd, we, however, are not in a position to lend
our concurrence therewith. It is not that the award of compensation at Rs. 5 lacs
can be attributed to be the resultant effect of either emotion or sentiments or
the High Courts anguish over the incident. The High Court obviously considered
the overall situation as regards social placements of the students. As stated
hereinafter the school presently is one of the affluent school in the country
and fee structure and other incidentals are so high that it would be a well
nigh impossibility to think of admission in the school at even the upper middle
class level. Obviously the school caters to the need of upper strata of the
society and if the 2nd Schedule of Motor Vehicles Act, can be termed to be any
guide, the compensation could have been a much larger sum. Thus in the factual
situation award of compensation at Rs. 5 lakhs cannot by any stretch be termed
to be excessive. Another redeeming feature of Mr. Bahuguna submissions pertains
to the theory of ability to pay: Audited accounts have been produced for the
year 1995 depicting a situation, though not of having stringency but the
situation truly cannot but be ascribed to be otherwise comfortable to pay as
directed by the High Court. The matter, however, prolonged in the law courts in
the usual manner and it took nearly six years for its final disposal before
this Court these six years however had rendered the financial stability of the
school concerned in a much more stronger situation than what it was in the year
1995. The school as of date stands out to be one of the most affluent schools
in the country as such ability to pay cannot be termed to be an issue in the
matter and on the wake thereto we are not inclined to deal with the same in any
further detail.
In the
view we have taken as above, we could have awarded a larger sum but judicial
propriety deters us from doing so, since in the normal course of events
appellate forum ought not to interfere with the award of compensation.
In the
view, we have taken as noted hereinbefore, we do not feel it inclined to deal
with the other issue of the school authority being a joint-tort feasor as
submitted before this Court by the respondents. The issue thus is left open.
As
regards the question of interest as contended by Mr. Malhotra, we feel it inclined
to grant 6% simple interest from the date of the judgment of the High Court
till payment on the reducing balance. The amount so directed by the High Court
together with interest as modified above be paid by eight (8) quarterly
installments.
The
amount deposited in terms of earlier order of this Court inclusive of interest
with the Registrar of this Court be made available to the parties pro-rata in
terms of this order and the balance, however, be paid as directed above.
This
appeal thus stands disposed of without any order as to costs.
.J.
(A.P. Misra)
.J.
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