Ashok Sharma And Ors. vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1170 Del

JUDGMENT

Badar Durrez Ahmed, J.

Page 1844

1. The six petitioners are the fathers of six children who lost their lives on 06.06.1999 in what is known as 'The Vikas Nagar Drowning Tragedy'. The six boys who lost their lives and whose fathers have filed the present writ petition were between 14 to 17 years of age.

2. The respondent Nos. 1 to 4 had arranged an annual training camp of the NCC w.e.f. 30.05.1997 to 09.06.1997 at Asha Ram Vedic Inter College, Vikas Nagar, Dehradun, U.P. The six boys Along with other fellow cadets had gone to attend the said training camp. Part of the training included the exercise of firing at a firing range which was at village Dhimawala near the Yamuna River. On 06.06.1999, some of the companies of the student cadets went for a firing exercise in the firing range at about 6.00 a.m. in the morning. Lt. Col. D.K. Bansal, who was the Commandant of that camp, had given clear instructions to all the in charges of the camps as well as the students that no Page 1845 student should be allowed to go towards the river and take a bath therein for the reason that a very strong flow of water affects the river all of a sudden and this may endanger the lives of the students. It was also alleged that after the firing exercise was over, the respondent No. 4 (D.P. Saini) took a number of students with him for the purposes of taking a bath in the river. While the said persons, which included the six boys mentioned above, were taking a bath in the river, a huge quantity of water was released from the Dak Pathar Barrage as a consequence of which 11 children in total, including the six mentioned above, drowned in the water and lost their lives.

3. According to the petitioners, the respondents failed and neglected in performing their duties and handling the cadets with due care. The cadets who were under their custody lost their lives because of the negligence on the part of the respondents. It is pointed out by the petitioners that a sum of Rs 2.75 lakhs have been received for the loss of lives of each of the cadets. This amount had been received prior to the filing of the present writ petition. It had been paid in the following manner:

   i)   NCC Cadets Welfare Society            Rs.  1,00,000/-
ii)  Government of NCT of Delhi            Rs.  1,00,000/-
iii) U.P. Government                       Rs.    50,000/-
iv)  Delhi Government School Students
     Insurance Fund                        Rs.    25,000/-
     Total                                 Rs.  2,75,000/- 
 

4. The present petition has been filed by the petitioners praying for enhancement of compensation to them. The learned Counsel for the petitioners referred to some cases where, according to him, compensation to the extent of Rs 7.5 lakhs and Rs 10 lakhs have been awarded by courts in death cases. The learned Counsel referred to the decision of the Supreme Court in the case of Chairman, Railway Board and Ors. v. Mrs Chandrima Das and Ors. . In this case, as pointed out by the learned Counsel for the petitioners, the Supreme Court had awarded compensation of Rs 10 lakhs to a lady who had been raped by an employee of the Railway Yatra Niwas. In Mrs Sudha Rasheed v. Union of India and Ors. 1995 (1) Scale 77, the Supreme Court had awarded compensation of Rs 7.5 lakhs for the custodial death of a lawyer. In Smt. Geeta and Ors. v. Lt. Governor and Ors. , this Court had awarded a compensation of Rs 5.5 lakhs in favor of the petitioner for the custodial death of her husband. The learned Counsel for the petitioner then referred to the decision in the case of Malkiyat Singh v. State of U.P. where the Supreme Court awarded the compensation of Rs 5 lakhs to the petitioner whose son had been killed in an alleged encounter. The learned Counsel also referred to the decision of the Karnataka High Court in the case of Soubhagya Devi v. Chief Secretary, State of Karnataka 2001 Crl. L.J. 238. In this case, the Karnataka High Court had awarded compensation of Rs 5 lakhs to the petitioner in respect of the custodial death of her husband.

Page 1846

5. Lastly, the learned Counsel for the petitioners placed strong reliance on the decision of the Supreme Court in the case of M.S. Grewal and Anr. v. Deep Chand Sood and Ors. . According to the learned Counsel, this case is identical to the present case. In M.S. Grewal (supra), 14 school children were taken by the school for a picnic near a river. Those 14 students lost their lives by drowning in the river while taking a bath. The learned Counsel for the petitioners submitted that the Supreme Court, after discussing the entire case law, awarded a compensation of Rs 5 lakhs to each of the petitioners. According to the learned Counsel, this decision entirely covers the present case. Accordingly, the learned Counsel for the petitioners submitted that the compensation amount be enhanced to at least a sum of Rs 7.5 lakhs for each of the petitioners.

6. Mr Maninder Singh, the learned Counsel appearing on behalf of the respondents 1 to 3 took the stand that each of the petitioners have already been paid a sum of Rs 2,75,000/- despite no case of negligence being established against the respondents. He submitted that the compensation amount was paid to the family members of all the 11 cadets who lost their lives. The same has been accepted by the others and only the six persons have filed the present petition. He, therefore, contended that the proper remedy for the present petitioners for further compensation was in filing a suit in a civil court and not in invoking the writ jurisdiction of this Court.

7. The next ground taken by Mr Maninder Singh is that the respondents 1 to 3 are not at all liable because there has been no negligence on their part. According to him, the negligence was on the part of the respondent No. 4 [D.P. Saini]. It may be pointed out, at this stage itself, that the respondent No. 4 on the other hand has stated that he was not, in any way, responsible and his duty was only to follow the instructions of his superiors which included the Commandant D.K. Bansal and the Deputy Commandant, Major A.S. Atrie. He submitted that subsequent to the said incident, two inquiries had been conducted and that in the Magisterial inquiry the respondent No. 4 had been acquitted, though an appeal is pending. Secondly, the disciplinary inquiry which has been initiated in respect of the said incident does not include the respondent No. 4 as a person who has been charge-sheeted, but, on the contrary, he has been summoned as a witness. It is further contended by the respondent No. 4 that there is evidence to show that he risked his life and jumped into the river to save the drowning children and was, through his best efforts, able to save five children. He submitted that while the other officers kept shouting near the river, it was he (respondent No. 4) who risked his life to save the cadets.

8. Mr Maninder Singh appearing on behalf of the respondents 1 to 3 also submitted that the writ petition was not maintainable because the petitioners had given undertakings at the time of enrollment of their wards as cadets that they would have no claim on the authorities in the event of any injury or death due to accident during the training or during the training Page 1847 camps / courses and while traveling. It was also submitted that the decision to put their wards in the training camp was their own decision arrived at voluntarily. It was also submitted that indemnity bonds had been filled in by the petitioners in respect of their wards. It was also contended that the petitioners were entitled to receive payments out of the NCC Cadets Welfare Society which they have already received and, therefore, there is no question of any further enhancement in the compensation to be paid to the petitioners.

9. It must be mentioned that the claim for compensation under Article 226 of the Constitution of India in respect of the rights guaranteed under Article 21 of the Constitution is a remedy available in public law. In D.K. Basu v. State of West Bengal , the Supreme Court had clearly observed that the claim in public law for compensation for unconstitutional deprivation of the fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of public servants. The Supreme Court also observed that public law proceedings serve a different purpose than the private law proceedings. In the same judgment, the Supreme Court held as under:

45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. 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....

10. In M.S. Grewal (supra), the position of law was stated by the Supreme Court as under:

28. 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 the civil court's 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 their efficacy if they 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.

Page 1848

11. In view of the aforesaid clear pronouncements of the Supreme Court in respect of claims arising under public law, the contention of Mr Maninder Singh that the petitioners be relegated to pursue the remedies in civil courts cannot but be rejected. I also see no merit in the contention made on behalf of the respondents 1 to 3 that the petitioners had given undertakings and had executed indemnity bonds in favor of the respondents and, therefore, the respondents would not be liable. The indemnity bonds were in respect of any accidents or injuries occurring during the training programme and / or connected with the training and was clearly not in respect of the incident which took place. Because, if one were to hold so, then it would mean that the petitioners indemnified the respondents even from killing their sons. Therefore, this argument also has no merit. With regard to the shifting of the blame between the respondents 1 to 3 on the one hand and the respondent No. 4 on the other, that is a matter with which this Court is not concerned. The primary liability lies with the respondents 1 to 3 and what the inter se liability between the respondents 1 to 3 on the one hand, and the respondent No. 4 on the other, is best left to be determined by other fora. The only issue, therefore, that remains to be decided in the present case is whether the petitioners are entitled to enhancement in the compensation already granted. I had occasion to deal with the question of compensation in the case of Smt. Kamla Devi v. Government of NCT of Delhi . After examining various decisions of the Supreme Court as well as of other courts and examining the international norms with regard to grant of compensation, it was, inter alia, concluded in Kamla Devi (supra) as under:

5. The compensation to be awarded by the Courts, based on international norms and previous decisions of the Supreme Court, comprises of two parts:

(a) `standard compensation' or the so-called `conventional amount' (or sum) for non-pecuniary losses such as loss of consortium, loss of parent, pain and suffering and loss of amenities; and

(b) Compensation for pecuniary loss of dependency.

6. The `standard compensation' or the `conventional amount has to be revised from time to time to counter inflation and the consequent erosion of the value of the rupee. Keeping this in mind, in case of death, the standard compensation in 1996 is worked out at Rs. 97,700/-. This needs to be updated for subsequent years on the basis of the Consumer Price Index for Industrial Workers (CPI-IW) brought out by the Labour Bureau, Government of India.

7. Compensation for pecuniary loss of dependency is to be computed on the basis of loss of earnings for which the multiplier method is to be employed. The table given in Schedule II of the MV Act, 1988 cannot be relied upon, however, the appropriate multiplier can be taken there from. The multiplicand is the yearly income of the deceased less the amount he would have spent upon himself. This is calculated by dividing the family into units - 2 for each adult member and 1 for each minor. The yearly income is then to be divided by the total Page 1849 number of units to get the value of each unit. The annual dependency loss is then calculated by multiplying the value of each unit by the number of units excluding the two units for the deceased adult member. This becomes the multiplicand and is multiplied by the appropriate multiplier to arrive at the figure for compensation of pecuniary loss of dependency.

8. The total amount paid under 6 and 7 above is to be awarded by the Court along with simple interest thereon calculated on the basis of the inflation rate based on the Consumer Prices as disclosed by the Government of India for the period commencing from the date of death of the deceased till the date of payment by the State.

9. The amount paid by the State as indicated above would be liable to be adjusted against any amount which may be awarded to the claimants by way of damages in a civil suit or compensation under the Criminal Procedure Code.

12. In the present case, the two components of compensation, i.e., standard compensation and compensation for pecuniary loss of dependency need to be ascertained based on the aforesaid principles and / or adaptations thereof. Insofar as the standard compensation or the conventional amount is concerned, there is not much difficulty. The standard compensation of Rs 50,000/-awarded by the Supreme Court in the case of Lata Wadhwa and Ors. v. State of Bihar and Ors. in respect of the year 1989 needs to be updated for the deaths which took place on 06.06.1997. Employing the same Consumer Price Index for Industrial Workers (CPI-IW) brought out by the Labour Bureau, Government of India, I find that the index for the year 1989 was 171 where the base year was 1982 (= 100). However, in 1997 the index was 358.

Therefore, the inflation corrected value of Rs 50,000/- in 1989 would work out to be Rs 1,04,678.36 (or Rs 1,04,678/-) in 1997 [(5000 x 358) " 171].

13. With regard to the compensation for pecuniary loss of dependency, a somewhat different approach would have to be employed in this case. This is because, whereas in Kamla Devi (supra), the victim was an adult earning member of the family, in the present case, the victims were all children between the ages of 14 " 17 years and who were not earning members. It can be assumed that the children would complete their education and be employed and that they would contribute to their respective house-holds upon such employment. In the maximum, it can be assumed that the victims who lost their lives would have contributed to an extent of half of their annual incomes towards the house-hold. This is so because while the victims would be earning as adults, the petitioners would also for some length of time be earning members of the family and their dependency would not be very much. Secondly, it can be safely assumed that the children who lost their lives would have also got married and would have had families of their own to support out of their incomes. Therefore, it cannot be expected that the entire incomes of such Page 1850 children, had they survived, would have gone towards the upkeep of their parents. In my view, in the maximum, only half of their incomes can be construed as going towards dependency.

14. The next step, therefore, would be to compute the income which could be reasonably expected to be earned by the deceased children, had they survived. Normally, the incomes of the parents can be taken as a standard measure for arriving at the expected annual income of the children. Unfortunately, in this case, the petitioners have not provided any such figure and there is also no hard and fast rule that the figures, if provided, would be the incomes that the victims would have been reasonably expected to earn. In such a situation, there would be an element of guess work involved. To minimise the element of guess work, it would be appropriate if the minimum wages are taken as a basis for determining the expected incomes. However, I feel that taking the minimum wages itself would not be appropriate because that is the rock bottom of legally permissible wages. The same may be multiplied by a factor of 1.5 to arrive at a reasonable estimate. The minimum wages for skilled workers notified by the Office of the Labour Commissioner, Government of NCT of Delhi for the year 1997 was Rs 2208/- per month. If the same is multiplied by a factor of 1.5, it comes to Rs 3312/- per month. As per the ratio in Kamla Devi (supra), the multiplicand would be that part of the annual income which was to be expended on the dependents. In the present case, I have already explained as to why a maximum up to half of the expected income ought to be taken for the purposes of computing pecuniary loss of dependency. Accordingly, the figure of Rs 3312/- per month ought to be divided by 2 to provide us with a monthly figure of Rs 1656/- and an annual figure of Rs 19,872/- This is the multiplicand in the present case and the same needs to be multiplied by a multiplier of 16 as per the Second Schedule to the Motor Vehicles Act, 1988 which brings us to the figure of Rs 3,17,952/-. Thus, the standard compensation for each of the petitioners comes to Rs 1,04,678/- and the compensation for pecuniary loss of dependency for each of the petitioners comes to Rs 3,17,952/-, the total being Rs 4,22,630/-. But an amount of Rs 2,75,000/- has already been received as compensation by each of the petitioners. This leaves a balance of Rs 1,47,630/- which was payable to each of the petitioners.

15. Accordingly, each of the petitioners would be entitled to receive this additional sum of Rs 1,47,630/- Along with interest thereon w.e.f. the date of the filing of the writ petition till the date the actual payment is made @ 6% per annum simple interest. The said amount shall be paid by the respondent Nos. 1 and 3 within eight weeks.

This writ petition stands disposed of accordingly.