Andhra Pradesh High Court - Amravati
Pathi Venkata Narayana vs The Government Of Andhra Pradesh, on 12 January, 2024
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No.14124 of 2022
ORDER:
This Writ Petition is filed under Article 226 of the
Constitution of India seeking the following relief:
"to issue a writ, order or direction more particularly
one in the nature of Writ of Mandamus declaring the action
of the respondents in not granting compensation of
Rs.36,00,000/- for the death of the petitioner‟s innocent
deceased son, which is caused due to the breach of duty,
negligence and wrongful act of the officials of the
Government/respondent Nos.2 to 6 as arbitrary,
discriminatory, illegal, ultra vires, unconstitutional against
principles of natural justice and consequently to consider
the petitioner‟s representation dated 13.12.2021 and to
pass such other order or orders..."
2. The brief facts of the case are that the petitioner is
hails from a poor BPL (Below Poverty Line) family and he is
working as daily wage agricultural labour. He has two sons
namely Vishnu Vardhan and Mahendar. Whereas his elder son
namely Vishnu Vardhan aged about 11 years and he is
studying 4th class at Sri Vivekananda Vidya Peetam High
School, Markapur. On 29.08.2021, which happens to be a
public holiday, petitioner's elder son i.e., Vishnu Vardhan along
with other children were playing at the Mandal Parishad
Primary School building which is in a dilapidated condition,
suddenly, beams and walls of the school building were
collapsed and fell on the chest, stomach and body of the
petitioner's son. Due to forcible fall of the beams and walls upon
the son of the petitioner, he lost his breath and died on the
spot. On the same day, the petitioner gave a report to the Sub-
Inspector of Police, Markapur, Rural Police Station about the
death of his son caused due to accidental fall of beams, walls
and roof. Accordingly police registered a case in Crime
No.169/2021 under Section 174 Cr.P.C.
3. The learned counsel for the petitioner states that due to
the negligence on the part of the respondents in keeping the
dilapidated building as it is, the son of the petitioner, who was
playing on 29.08.2021, which is being holiday at the subject
school premises which is in a dilapidated condition and due to
sudden collapse of the building, the son of the petitioner
succumbed to death on the spot. He further submits that it is
the statutory duty of the respondents, once the subject building
is in dilapidated condition it should be demolished immediately
and it cannot be continued to prevent untoward incidents, but
negligently and due to dereliction of duties, such a severe
dilapidated building was continued as it is, even after having an
assessment and report it is in severe dilapidated condition.
Therefore, the respondents are liable for the death of the son of
the petitioner due to negligence and dereliction of duties, as per
the principle of vicarious liability. Further, it is stated that
though the petitioner submitted his representations and
requests but reasons best known to the respondents neither
responded as usual for payment of the compensation nor
replied to the claim of petitioner. He further states that even
after lapse of two years period having received the
representations, but respondent authorities neither acted upon
in redressal of grievance of the petitioner nor paid any
compensation. Hence, the present Writ Petition.
4. Learned Government Pleader for School Education
appearing on behalf of respondent Nos.1, 3, 4 and 5 has filed
counter-affidavit, wherein it is stated that the 4th
respondent/Mandal Educational Officer, Markapur has
addressed a letter dated 06.09.2021 to the 3rd
respondent/District Educational Officer stating that on
29.08.2021 at 4.00 pm four students including the son of the
petitioner were playing in the dilapidated room of the Mandal
Parishad Primary School (MPPS), Rajupalem(General)
Markapuram Mandal. Due to sudden collapse of beam of the
dilapidated school building, the entire building was collapsed
upon the son of the petitioner, he sustained severe injuries and
while he was taking to the hospital by his parents in the middle
of the way he died. The 4th respondent addressed another letter
dated 10.01.2022 to the 3rd respondent stating that on
23.09.2019 a resolution was passed by the parents committee
for removal of the dilapidated room of the Mandal Parishad
Primary School (MPPS), Rajupalem(General) Markapuram
Mandal. The 4th respondent also reported the matter to the
Mandal Development Officer, Markapur vide letter dated
25.09.2019 and requested for removal of the room of the
Mandal Parishad Primary School (MPPS), Rajupalem(General)
Markapuram Mandal.
5. Learned Government Pleader for Revenue appearing on
behalf of respondent No.2/District Collector has filed counter-
affidavit, wherein it is stated that the before allowing the
children into the subject school premises, all precautionary
steps shall have been taken by the respondents. But,
unfortunately the son of the petitioner died due to lack of
precautionary steps as required. Therefore, they are taking
steps to provide appropriate monitory relief to the petitioner's
family due to loss of the son to the petitioner.
6. Heard the learned counsel for the petitioner, the
learned Government Pleader for School Education for
respondent Nos.1, 3, 4 and 5, learned Government Pleader for
Revenue for respondent No.2 and learned Standing Counsel for
respondent No.6 and perused the material placed on record.
7. It is an admitted fact that the responsibility of closing
the entrance of the subject school premises which is in a
dilapidated condition is a statutory duty conferred on the
School Authorities. If any school is in a dilapidated condition
collapses and causes any injury or death of a human being,
who gets unknowingly trapped into it, the primary liability to
compensate vests with the School Authorities. The school
authorities must have taken necessary steps to prevent such
untoward incidents.
8. Coming to the submissions made by the learned
counsel for the petitioner and on perusal of the material placed
by him before this Court, this Court finds that the subject
school was under the control of respondent Nos.3 and 4 and
admittedly is in a dilapidated condition. The counters filed by
the respondents clearly states that the subject school is in a
dilapidated condition and they proposed for steps for closing
and removal of the school premises which is in dilapidated
condition and a notice board was also erected. It appears that
the measures were taken by the respondent on paper only, but
not on the ground. If the respondents have really taken all the
measures to close the entry of the premises, which is in a
dilapidated condition, certainly the son of the petitioner would
not have entered into the subject premises for playing along
with the other children. Since, the respondents have not taken
proper steps or measures for preventing the entry into the
subject premises which is in a dilapidated condition, the son of
the petitioner died. Due to the negligence on the part of the
respondents only, the said incident was occurred. Even
assuming that all such measures have been adopted, a person
undertaking an activity involving hazardous or risky exposure
to human life is liable under Law of Torts to compensate for the
injury or loss suffered by any other person, irrespective of any
negligence or carelessness on their part. It is also an admitted
fact that as per the statement made by the 2nd respondent in
his counter that the petitioner is entitled for a reasonable
compensation. Therefore, the petitioner is entitled for
compensation in view of the admitted negligence and dereliction
of duties on part of the respondents as stated above. Hence, as
per the principle of vicarious liability, the 1st respondent/State
is liable for payment of compensation as determined. For such
determination of quantum of compensation, this Court relied
upon ratio laid down by the Hon'ble Apex Court as well as this
Court.
9. The Hon'ble Apex Court in M.S. Grewal and Anr. v. Deep
chand Sood and Ors. reported1, has dealt with regard to the safety
of the children and liability of the school authorities in case of any
accident, which may be usefully extracted below:
"16.. 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....
23.. 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."
10. The Hon'ble Apex Court in Lucknow Development
Authority v. M.K.Gupta2, while dealing with regard to the contention
that such compensation cannot be ordered even in cases of
negligence (either constructive or otherwise) by the State or Public
Authorities, which may be usefully extracted below:
"The authority empowered to function under
the statute with exercising power discharges
public duty. It has to act subserve general
welfare and common good. In discharging
this duty honestly and bona fide, loss may
MANU/SC/0506/2001 : AIR2001SC3660
MANU/SC/0178/1994 : AIR1994SC787
accrue to any person. But where it is found
that exercise of discretion was mala fide and
the complainant is entitled to compensation
for mental and physical harassment then the
officer cannot more claim to be under
protective cover. In modern society no
authority can arrogate to itself the power to
act in a manner which is arbitrary. When a
citizen seeks to recover compensation from a
public authority in respect of injuries suffered
by him for capricious exercise of power then
it has a statutory obligation to award the
same if proved.
The jurisdiction and power of the courts to
indemnify a citizen for injury suffered due to
abuse of power by public authority is
founded on the principle that an award of
exemplary damage can serve a useful
purpose in indicating the strength of law. A
public functionary if he acts maliciously or
oppressively and the exercise of power
results in harassment and agony then it is
not an exercise of power but its abuse. No
law provides protection against it. He is
responsible for it; must suffer for it;
compensation or damages may arise even
when the officer discharges his duty honestly
and bona fide. But when it arises due to
arbitrary or capricious behaviour then its
looses its individual character and assumes
social significance. Award or compensation
for harassment by public authorities not only
compensates the individual, satisfies him
personally but helps in curing social evil."
11. The High Court of Madras in V.Subramaniam
Vs. State of Tamil Nadu and Ors.3, held as follows:
"(VI) In the decision reported in Lakshmana Naidu v. State
of Tamil Nadu MANU/TN/9170/2006 : 2007 ACJ 1349
(Madras), Hon'ble Mr. Justice K. Mohan Ram, in para 12
held as follows:
2010ACJ1861, 2009(1)CTC434
(12) The High Court, being protector of civil
liberties of the citizen, has not only the power
and jurisdiction, but also an obligation to
grant relief in exercise of its jurisdiction
under Article 226 of the Constitution to the
victim or the heir of the victim whose
fundamental rights under Article 21 of the
Constitution of India are established to have
been flagrantly infringed by calling upon the
State to repair the damage done by its
officers to the fundamental rights of the
citizen, notwithstanding the right of the
citizen to the remedy by way of a civil suit or
criminal proceedings. The State, of course,
has the right to be indemnified by and take
any such action as may be available to it
against the wrongdoer in accordance with
law through appropriate proceedings. The
relief in exercise of the power under Article
226 of the Constitution of India would be
granted once it is established that there has
been infringement of the fundamental rights
of the citizen. In the said decision a total
compensation of Rs. 5,00,000 was ordered to
the legal heirs.
(vii) In Chief Secretary to the Government of Tamil Nadu v.
R. Selvam 2004 WLR 611, the Division Bench of this Court
consisting of the Hon'ble Mr. Justice A.S.
Venkatachalamoorhy (as he then was) and Hon'ble Mr.
Justice P.K. Misra, confirmed the order of the Hon'ble Mr.
Justice P. Sathasivam, (as he then was) in awarding Rs.
5,00,000 to the parents of one medical college student,
Who was killed in college hostel by the miscreants. The
Division Bench in para 17 of its judgment held as follows:
(17) ...The parents while admitting their
children, be it a boy or a girl, do so with the
fond hope that their wards will be properly
looked after. The hostel run by the Thanjavur
Medical College is not a commercial
establishment. It is the bounden duty of the
hostel authorities to take every reasonable,
possible and necessary step in providing the
security arrangements. They have to be more
careful and vigilant when they take the
responsibilities of providing boarding and
lodging for the girl students. In fact this Court
is surprised with the stand taken by the
appellants in the counter affidavit filed in the
writ petition to the effect that they are not
responsible since no separate amount was
collected under the head 'for security
arrangements'.
(ix) In, C.Chinnathambi v. State of Tamil Nadu
MANU/TN/0393/2000 : 2002 ACJ 1243 (Madras),
Hon‟ble Mr. justice V.S. Sirpurkar (as he then was) had
awarded compensation of Rs. 1,50,000 with 12 per cent
interest per annum to each of the parents of two school
students who died when a water tank broke and fell on
them. In the said decision in para 5, the responsibilities of
the school authorities are emphasised, which reads thus.
(5) Right to life enunciated in Article 21 has
time and again been recognised by the
Supreme Court and in its various
ramifications. This was a case where the two
innocent children had gone to the school and
the accident actually took place during school
tours. Even if it is considered that the said
tank had been constructed by the parent-
teachers association it was undoubtedly the
responsibility of the school authorities to see
that the tank was properly constructed and
erected and that it should not have been
hazardous to the lives of the children. There
can be no dispute that in this case school
authorities have not been careful enough to
see that the construction was proper and in
keeping with the rules. It beats one's
understanding, as to how a tank which was
constructed early in 1983-84 would collapse
all of a sudden within eight years of its
construction, i.e., on 12.10.1992. The things
do speak for themselves. There can be least
doubt that the school authorities were not
vigilant to their duties and that this being the
government school the government would
have a liability. There is no dispute that two
young lives have perished predominantly
because of the lack of care on the part of the
school authorities. In my opinion, the
compensation of Rs. 5,000 by way of ex
gratia payment would be a cruel joke. The
petitioners have claimed the compensation of
Rs. 1,50,000 each in their writ petitions."
12. The Hon'ble Supreme Court in the decision
reported in Chandigarh Administration v. Rajni Vali4, held
that want of finance cannot be reason to deny proper education
to the children including the payment of proper salary to the
teachers. The Supreme Court categorically held that it is for the
authorities who are running the institutions to find out the
source for running the institution. In the said decision the
Supreme Court in paras 6 and 10 held as follows:
(6) .. imparting primary and secondary
education to the students is the bounden
duty of the State administration. It is a
constitutional mandate that the State shall
ensure proper education to the students on
whom the future of the society depends. In
line with this principle, the State has enacted
statute and framed rules and regulations to
control/regulate establishment and running
of private schools at different levels. The
State Government provides grant-in-aid to
private schools with a view to ensure that the
standard of teaching does not suffer on
account of paucity of funds. It needs no
emphasis that appointment of qualified and
efficient teachers is a sine qua non for
maintaining high standard of teaching in any
educational institution. Keeping in mind
these and other relevant factors this Court in
number of cases has intervened for setting
right any discriminatory treatment meted out
to teaching and non-teaching staff of a
particular institution or a class of institutions.
(10) Coming to the contention of the
appellants that the Chandigarh
Administration will find it difficult to bear the
additional financial burden if the claim of the
respondent Nos. 1 to 12 is accepted, we need
only say that such a contention raised in
different cases of similar nature has been
MANU/SC/0019/2000 : AIR 2000 SC 634
rejected by this Court. The State
Administration cannot shirk its responsibility
of ensuring proper education in schools and
colleges on the plea of lack of resources. It is
for the authorities running the Administration
to find out the ways and means of securing
funds for the purpose. We do not deem it
necessary to consider this question in further
detail. The contention raised by the appellant
in this regard is rejected..."
13. The substance laid down by the High Court of Patna
in Ranchi Bar Association, Ranchi and Ors. Vs. State of
Bihar and Ors.5, reads as follows:
"31. QUESTION NO. 3(B) COMPENSATION
As mentioned earlier, while dealing with the question No.
3(A), it has been settled by the Apex Court that the
Government is bound to pay compensation to those who
have suffered the loss of life, liberty and property on
account of the failure of the government to protect them.
The Government is, thus, bound to compensate the loss
suffered by the members of the Bar and their Association.
It has also to pay the compensation for the loss of life of
Monoj Kumar Agrawal who was seriously injured by the
supporters of the Bundh, resulting in his death in a
hospital."
14. The Hon'ble Apex Court in Nilabati Bahera v. State of
Orissa (supra), Justice J.S. Verma on behalf of himself and Justice
Venkatachala after reviewing the case law on the subject, in Rudul
Sah v. State of Bihar6, Sebastian M. Hongray Union of India7,
Sebastian M. Hongray v. Union of India8, Bhim Singh v. State of
J and K9, Bhim Singh v. State of J and K10, Saheli: A Women's
C.W.J.C.No.1536 of 1998R
MANU/SC/0380/1983 : (1983) 4 SCC 141)
MANU/SC/0381/1983 : (1984) 1 SCC 339)
MANU/SC/0080/1984 : (1984) 3 SCC 82)
(1984 Spp. SCC 504)
MANU/SC/0064/1985 : (1985) 4 SCC 677)
Resources Centre v. Commissioner of Police, Delhi Police
Headquarters11 and State of Maharashtra v. Ravikant S. Patil12,
with regard to violation of fundamental right by State's
instrumentalities or servants, whether the State can be directed to
pay compensation to the victim or his heir by way of 'monetary
amends" held that:
"'a claim in public law for compensation' for contravention
of human rights and fundamental freedoms, the protection
of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of
such rights, and such a claim based on strict liability
made by resorting to a constitutional remedy provided for
the enforcement of a fundamental right is distinct from,
and in addition to, the remedy in private law for damages
for the tort' resulting from the contravention of the
fundamental right."
15. The Hon'ble Apex Court in State of A.P. v. Challa
Ramakrishna Reddy13, held as follows:
"3. The suit was contested by the State of Andhra
Pradesh on two principal grounds, namely, that the suit
was barred by limitation and that no damages could be
awarded in respect of sovereign functions as the
establishment and maintenance of jail was part of the
sovereign functions of the State and, therefore, even if
there was any negligence on the part of the Officers of the
State, the State would not be liable in damages as it was
immune from any legal action in respect of its sovereign
acts. Both the contentions were accepted by the trial court
and the suit was dismissed. On appeal, the suit was
decreed by the High Court for a sum of Rs. 1,44,000/-with
interest at the rate of 6 per cent per annum from the date
of the suit till realisation. It is this judgment which is
challenged in this appeal.
MANU/SC/0478/1989 : (1990) 1 SCC 422)
MANU/SC/0561/1991 : (1991) 2 SCC 373)
MANU/SC/0368/2000 : (2000) 5 SCC 712
4. Ms. K. Amreshwari, learned Senior Counsel
appearing on behalf of the State of Andhra Pradesh has
contended that the suit was barred by time as the period
of limitation, as provided by Article 72 of the Limitation
Act, 1963 was only one year and since the act complained
of took place in the night intervening 5th and 6th of May,
1977, the suit which was instituted on 9th of June, 1980,
was barred by time. Learned Counsel appearing on behalf
of the respondents has, on the other hand, contended that
the period of limitation would be governed by Article 113
of the Limitation Act, 1963 which prescribed a period of
three years from the date on which the right to sue
accrued. It is contended that Article 113 was the
residuary Article and since the nature of the present suit
was not covered by any other Article of the Limitation Act,
it would be governed by the residuary Article , namely,
Article 113 and, therefore, the suit, as held by the High
Court, was within limitation,
5. The other question which was argued by the
learned Counsel for the parties with all the vehemence at
their command was the question relating to the immunity
of the State from legal action in respect of their sovereign
acts. It was contended by the learned Counsel for the
appellant that the prisons all over the country are
established and maintained either by the Central
Government or by the State Government as part of their
sovereign functions in maintaining law and order in the
country and, therefore, the suit for compensation was not
maintainable. Learned Counsel for the respondents, on the
contrary, has contended that the theory of immunity,
professed by the appellant in respect of sovereign acts,
has since been exploded by several decisions of this Court
and damages have been awarded against the State even
in respect of custodial deaths.
9. These Articles, namely, Article 72 and 113 are
applicable to different situations. In order to attract Article
72, it is necessary that the suit must be for compensation
for doing or for omitting to do an act in pursuance of any
enactment in force at the relevant time. That is to say, the
doing of an act or omission to do an act for which
compensation is claimed must be the act or omission
which is required by the statute to be done. If the act or
omission complained of is not alleged to be in pursuance
of the statutory authority, this Article would not apply.
This Article would be attracted to meet the situation where
the public officer or public authority or, for that matter, a
private person does an act under power conferred or
deemed to be conferred by an Act of the Legislature by
which injury is caused to another person who invokes the
jurisdiction of the court to claim compensation for that act.
Thus, where a public officer acting bona fide under or in
pursuance of an Act of the Legislature commits a "tort", the
action complained of would be governed by this Article
which, however, would not protect a public officer acting
mala fide under colour of his office. The Article , as
worded, does not speak of "bona fide" or "mala fide" but it
is obvious that the shorter period of limitation, provided by
this Article , cannot be claimed in respect of an act which
was malicious in nature and which the public officer or
authority could not have committed in the belief that the
act was justifiable under any enactment."
16. In similar circumstances in the light of the judgments
rendered by the Hon'ble Apex Court, the High Court of Madras
in Singaraj and Ors. Vs. The State of Tamil Nadu and Ors.,
held as under:
"(31) Therefore, in the above circumstances, the
Writ Petitions are liable to succeed and the parents
are entitled for compensation as sought for by them.
Accordingly, the first and second respondents are
directed to pay to each of the petitioners a sum of
rupees One Lakh as compensation. This will be in
addition to the ex-gratia amount already paid by the
State Government. The sixth and seventh
respondents being the „Educational Agency‟ of the Sri
Rama Elementary School, Seihur are directed to pay
Rs.50,000/- to each of the petitioners."
17. It is observed that the liability of the State to
compensate the parents of the unfortunate child victim is a
certainty. But the State also cannot wriggle out its
responsibility in compensating the parents. Under Article 21-A
of the Constitution and as per Section 3 of the Right of Children
to Free and Compulsory Education Act, 2009, the State is
bound to provide free and compulsory education for every child
upto the age of 14 years. In the present case, the State is
fulfilling its obligations by running Government Schools as well
as providing grant-in-aid to private schools. When such schools
imparting education, they also participate in fulfilling its
constitutional obligations imposed on the State.
18. The High Court of Himachal Pradesh in Naval
Kumar alias Rohit Kumar vs. State of H.P. & others 14, held
as follows:-
"49. Now, we have to award the just and fair
compensation as per the principles laid down in the
judgments cited herein above, taking into
consideration the 100% disability of 8 years old boy
at the time of electrocution. According to the
averments made in the petition, he was a brilliant
student. The petitioner would normally had started
earning at least Rs.30,000/- per month after
attaining the age of 20 years. The annual income of
the petitioner would be Rs.3,60,000/-."
CWP No. 475 of 2013.
19. The Hon'ble Supreme Court in Divya vs. The
National Insurance Co. Ltd. & Anr.,15, wherein it is held as
follows:
"10.1.4. We are of the considered view that the
selection of Multiplier „15‟ for the age group upto 15
years by the three-Judge Bench in Reshma Kumari‟s
case is having a sound basis. It is common
Knowledge that the age group of 21 to 25 years is
regarded as the commencement of normal productive
years as referred specifically by the Two-Judge
Bench in Sarla Verma‟s case at paragraph 39."
20. In the light of the above factual matrix and the legal
precedents, the compensation to the unfortunate parents of the
child whose life was snatched away in his prime age, cannot be
denied. Therefore, the amount of compensation is to be
calculated as 30,000/- x 12 x 15(multiplier) = 54,00,000/-.
21. The Hon'ble Supreme Court in Sarla Verma and
Ors. Vs. Delhi Transport Corporation and Ors.16, held as
follows:
"Where the deceased was a bachelor and the
claimants are the parents, the deduction follows a
different principle. In regard to bachelors, normally,
50% is deducted as personal and living expenses,
MANU/SC/1410/2022
AIR2009SC3104
because it is assumed that a bachelor would tend to
spend more on himself."
22. As per Sarla Verma case as cited supra, out of the
total compensation amount, 50% amount should be deducted
toward the personal and living expenses. Therefore, the net
compensation amount shall be 54,00,000/- x 1/2 =
27,00,000/-.
23. On the above analysis and in view of the ratio laid
down by the Hon'ble Apex Court and other Hon'ble High Courts
including this Court as stated supra and also as per the
admission made by the respondents in respect of right of
entitlement of compensation and also having considered the
facts and circumstances of the case and mental agony caused
to the parents of deceased kid, the present Writ Petition is
liable to be allowed.
24. Accordingly, the Writ Petition is allowed with the
following direction:
The respondents are directed to pay an amount of
Rs.27,00,000/- towards compensation and an amount of
Rs.3,00,000/- towards the mental agony suffered by the
petitioner and his wife (parents of the deceased) along with
interest @ 9% from the date of filing of the present Writ Petition
to the petitioner, within a period of three(3) months from the
date of receipt of copy of this Order.
There shall be no order as to costs.
Consequently, Miscellaneous Petitions, if any, pending in
the writ petition shall stand closed.
______________________________________
VENKATESWARLU NIMMAGADDA, J
12.01.2024
TPS
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION No.14124 of 2022
12.01.2024
TPS
