Zarifa Begum vs State Of J&K And Others
2022 Latest Caselaw 1120 j&K

                                                        Sr. No.191

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                       Pronounced on: 16.08.2022

                                             OWP No. 823/2006


Zarifa Begum                                     .....Appellant(s)/Petitioner(s)


                     Through: Ms. Veenu Gupta, Advocate.


                Vs

State of J&K and others                                    ..... Respondent(s)

                     Through: Mr. Suraj Singh, Advocate for
                              R-1, 2 & 4.

Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                JUDGMENT

1. The petition is taken up for consideration at the admission stage with

the consent of learned counsel for the parties.

2. Nasir Ahmed Malik, son of the petitioner, was stated to be student of

12th standard and was studying in Government Higher Secondary

School, Ukhral Banihal. The said child was representing the school

team as well as the District team in the discipline of Volleyball and was

participating in the inter district tournament at Rajouri. The child died

of drowning and the petitioner was informed of the death of the child.

The petitioner apprehends that the death of the child was not natural

one and suspects some foul play in view of the injuries received by the

child as per the postmortem report. The further case of the petitioner is

that even assuming that the death of the son of the petitioner was

accidental one still the duty was cast upon the department of Education

and department of Youth Services and Sports to take care of the child

and further that the respondents are liable to pay compensation to the

petitioner.

3. The objections stand filed by the respondents wherein the respondents

have denied that there was any foul play in the death of said child. It is

submitted that three teachers of the sports department accompanied the

team and adequate measures were taken for the safety of the child and

other students who participated in the tournament. There was no

negligence on the part of the respondents and the death was purely an

accident. It is also submitted that the petitioner was provided financial

assistance to the tune of Rs.1,13,000/-.

4. Heard learned counsel for the parties and perused the record.

5. The argument raised on behalf of the petitioner by the learned counsel

is that the post mortem report indicates the foul play in the death of the

child. The deceased child was a bright student and outstanding sports

person. In any case, the negligence of the respondents led to the death

of the child for which the petitioner is required to be compensated. The

respondents cannot escape from their liability as the child was

officially participating in the tournament when the purported accident

took place.

6. The learned Government Advocate has argued that there was no

negligence on the part of the respondents and the death of the child was

purely an accidental one for which the respondents cannot be held

liable.

7. There is no denial of the fact that Nasir Ahmed Malik had gone to

Rajouri for participation in Volleyball tournament on behalf of school

and during the tournament the said child died. As per the postmortem

report, the cause of death of the child is asphyxia due to drowning. The

report of the police also does not point out any finger against any

individual in the cause of the death of the child. Apparently, no

circumstance is brought on record by the petitioner to convince the

court that the death of the child has taken place in suspicious

circumstances. The objections filed by the respondents could not be

countered by the petitioner. The respondent No.3 in his objections has

stated that the deceased along with other friends had gone to nallah for

bath and when the child started drowning one Sandeep Singh tried to

save him but could not succeed. The death of the child is result of

drowning is what is made out of record.

8. The court appreciates that the family of the deceased child had been

given financial relief by the respondents to the tune of Rs.1,13,000/-

which may be by way of donation or contribution. The court does not

agree with the submission of learned counsel for the petitioner that any

liability as such should be fastened upon the respondents to pay the

compensation on account of the unfortunate death of the child as the

death has taken place due to the negligence of the respondents.

However, the court is of the view that the fact that the child was

officially participating in the tournament at Rajouri the respondents as

a welfare State can be directed to compensate the petitioner for the life

lost. No doubt some financial assistance has been provided to the

family of the petitioner but as per the respondents that is by way of

contribution from the employees and students of the respondent No.3.

The life lost cannot be brought back. However, some sort of financial

assistance can bring some relief to the family of the petitioner as that is

the only way the respondents can take care of the tragedy which has

struck the family of the deceased child.

9. The court, in the facts and circumstances of the case, is of the view that

the interest of justice shall be met in case the respondents are directed

to pay the petitioner sum of Rs.1,50,000/- on account of the death of

child Nisar Ahmed Malik within a period of two months from the date

the direction is passed by the court. It is again reiterated that the court

while awarding the amount has not otherwise in any way held the

respondents liable on account of negligence on the basis of the record

which is before the court.

10. Disposed of in above terms.

( Puneet Gupta ) Judge Jammu :

              16.08.2022
              Pawan Chopra


                                            Whether the order is speaking     :   Yes
                                            Whether the order is reportable   :   Yes



PAWAN CHOPRA
2022.08.17 10:30
I attest to the accuracy and
integrity of this document