Madras High Court
A. Saraswathy vs The Secretary To Government on 19 April, 2021
W.P. No. 33517 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2021
CORAM
THE HONOURABE MR. JUSTICE N. KIRUBAKARAN
AND
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
W.P. No. 33517 of 2018
&
W.M.P. Nos. 38895 & 38896 of 2018
A. Saraswathy ..Petitioner
Vs.
1. The Secretary to Government,
Government of Tamil Nadu,
Municipal Administration &
Water Supply Department,
Fort St. George,
Chennai – 600 009.
2. The Director,
State Municipal Administration,
Kamarajar Salai, Chepauk,
Chennai – 600 009.
1\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
3. The Assistant Director,
Municipal Administration Zonal Office,
No.5, J.G. Nagar, 1st Street,
Kumaranandapuram,
Tiruppur – 641 602.
4. The District Collector,
Tiruppur.
5. The Sub Collector,
Tiruppur.
6. The Revenue Divisional Officer,
Palladam, Tiruppur District.
7. The Municipal Commissioner,
Municipal Office,
Palladam,
Tirupur District – 641 664.
8. The Joint Registrar of
Co-operative Society,
Tiruppur Zone, Tiruppur. ..Respondents
Prayer: Petition under Article 226 of the Constitution of India praying
for issue of a Writ of Mandamus directing the 7 th respondent/the
Commissioner, Palladam Municipality to pay compensation of
Rs.50,00,000/- (Rupees Fifty lakhs only) for the act of negligence of the
officials of the 7th respondent in permitting a 3 decade old toilet in the
Palladam Bus Stand in Tiruppur District, to be used by the public, the walls
2\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
of the toilet which collapsed upon the sole breadwinning 41 year old
husband of the petitioner namely, S.Ashok kumar, who died on the spot,
when he went there to attend nature's call on 12.05.2018, leaving behind
two aged parents, two teenaged school going daughters and a teenaged
school going son and the widowed 36 year old petitioner herself herein.
For Petitioner :: Mr.M. Purushothaman
For Respondents :: Mr.S. Kamalesh Kannan,
Govt. Advocate for R1 to R6
Mr.B. Anand for
Mr.A.S. Thambusamy for R7
Mr.Bala Ramesh for R8 & R9
ORDER
(Order of the Court was made by N. KIRUBAKARAN,J.)
The matter is heard through videoconferencing.
2. Without rain, there cannot be life in the world. However,
rain is the cause for taking away a precious life in this case.
3. On the fateful night, i.e, on 12.05.2018, as there was
heavy rain, the petitioner's husband, one Mr. Ashok Kumar, a mason, aged
3\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
about 41 years, took cover under the sunshade of a toilet building in
Palladam Bus Stand maintained by the 7th respondent Palladam
Municipality. Due to heavy downpour, the roof of the toilet collapsed
crushing the petitioner's husband to death and injuring another person, by
name, Venkatesan. In this regard, an FIR was registered on 13.05.2018 in
Cr.No. 498/2018 on the file of Palladam Police Station. Contending that
because of negligence on the part of the 7th respondent in maintaining the
toilet building, the building had collapsed, taking away the life of the
petitioner's husband. Therefore, the petitioner has claimed compensation of
Rs.50 lakhs.
4. A counter affidavit has been filed by the 7th respondent
admitting the accident, however, contending that outside the toilet, a shade
was fixed on the top of the toilet supported by iron rods, which alone
collapsed and fell on the husband of the petitioner, who was taking shelter
under the shade, leading to his death. The 7th respondent Municipality
contended that the accident had occurred due to natural calamity and not
due to any negligence on the part of the 7th respondent Municipality.
4\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
Further, it is stated that the engineers of the 7th respondent inspected the
toilet and checked the condition of the toilet and found that the same was in
a stable condition. Therefore, the 7th respondent sought the dismissal of the
writ petition.
5. Heard Mr.S. Kamalesh Kannan, learned Government
Advocate for respondents 1 to 6, Mr. B. Anand for Mr.A.S. Thambusamy,
learned counsel for 7th respondent, Mr.Bala Ramesh, learned Special
Government Pleader for respondents 8 and 9.
6. It is evident, as per the admission made by the 7th
respondent, that the accident had occurred due to the fall of shade, which
was fixed on the ceiling of the toilet, resulting in the death of the petitioner's
husband and injuring another person. Eventhough the 7th respondent would
submit that it was a natural calamity and there was no negligence on their
part and the 7th respondent is not responsible for the fall of shade, as the
toilet was maintained properly and the building was in a stable and sound
condition, the said contention has to be rejected for the reason that the shade
5\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
had been fixed to the toilet building only by the Municipality and it cannot
surface on its own. The necessity to fix the shade with iron rods has not
been explained by the 7th respondent. In any event, the shade was part of the
toilet building and it had been put up by the 7 th respondent and therefore, the
7th respondent alone could be held negligent for the falling of the shade on
the petitioner's husband. If the shade had been properly fixed, then there
would have been no occasion for it to fall down. Therefore, it is the 7th
respondent Municipality's negligence, due to which the accident had
occurred, resulting in death of petitioner's husband and the Municipality is
liable to pay compensation to the petitioner.
7. Though it is contended that a writ petition is not
maintainable regarding payment of compensation, Mr. M. Purushothaman,
learned counsel for the petitioner relied upon the judgment of a Division
Bench of this Court reported in 2017 (2) CTC 119 (The Commissioner,
Corporation of Chennai, Rippon Buildings, Chennai -600 003 V. State of
Tamil Nadu, rep. by the Secretary to Government, Municipal
Administration and Water Supply Department, Fort St. George, Chennai
6\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
– 600 009 & another) in which a treee planted and maintained by the
Corporation fell on a car resulting in loss of life. The Division Bench
rejected the contention of the Corporation that it is an "Act of God" and
confirmed the award of Rs.29.26 lakhs.
8. The Division Bench relied upon a number of judgments
of the Honourable Supreme Court to show that writ petition under Article
226 of the Constitution of India can be invoked for payment of
compensation. Public law remedy is always a liability by fixing tortuous
liability on the State.
9. The said judgment fully supports the case of the
petitioner since there was negligence on the part of the 7th respondent,
Palladam Municipality, which is a State under Article 12 of the Constitution
of India. This Court has also found that there was negligence on the part of
the 7th respondent to maintain the toilet and in fixing the shade properly.
7\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
10. Having found that the 7th respondent's negligence is
responsible for the accident, the compensation payable has to be calculated
following the formula adopted in motor accident cases.
11. The FIR dated 13.05.2018 as well as the death certificate
dated 17.05.2018 would reveal that the deceased was aged about 41 years.
It is stated by the petitioner in her affidavit, in paragraph No.11, that her
husband was aged abut 41 years and that he was a construction
worker/mason and he was earning a sum of Rs. 700/- per day. The
statement made in the affidavit has not been denied by the 7 th respondent. It
is also stated in the FIR itself , which is the earliest document, immediately
after the accident, that the deceased Ashok Kumar was a construction
worker. Therefore, it is proved that the deceased was aged about 41 years
and he was a construction worker/mason.
12. The legal heirship certificate issued by the Revenue
Authoritiese dated 16.07.2018 would reveal that the deceased left behind his
wife, two daughters, one son and his aged mother. Since the accident
8\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
occurred in the year 2018, the wages of a mason could be fixed at Rs.600/-
per day as it would have been impossible to get a mason for less than
Rs.600/- per day. Considering the number of construction activities in our
country, eventhough a mason would be able to get 30 days pay, it would be
appropriate to calculate the wages for 25 days instead of 30 days and thus,
the monthly income of the deceased would be Rs.600 x 25 = Rs.15,000.
13. Since the deceased was aged about 41 years, in the light
of the Constitution Bench judgment of the Honourable Supreme Court in
National Insurance Company Limited V. Pranay Sethi (2017 ACJ 2700),
30% has to be added towards future prospects. Adding 30% towards future
prospects, the totaly monthly income of the deceased comes to,
Monthly Income :: Rs.15,000/-
ADD: 30% towards future
prospects :: Rs.15,000/- + 30% (Rs.15,000/-)
:: Rs.19,500/-
Annual Income :: Rs.19,500 x 12
:: Rs.2,34,000/-
9\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
Since the size of the family of the deceased is five consisting of wife,
three children and mother, one-fourth deduction has to be made towards
“Personal Expenses” instead of one-third deduction. After deducting one-
fourth, the annual income will be Rs.2,34,000/- (-) ¼(Rs.2,34,000/-) =
Rs.1,75,500/-
14. As per the judgment of the Honourable Apex Court in
Sarla Verma & Ors V. Delhi Transport Corporation and Another reported
in 2009 ACJ 1298 SC, the appropriate multiplier corresponding to the age
of the deceased is 14. Accordingly, applying the said multiplier, “Loss of
Dependency” works out to,
Loss of Dependency :: Rs.1,75,500 x 14
:: Rs.24,57,000/-
15. As per Pranay Sethi's case, the petitioner/wife is entitled
to Rs.40,000/- towards “Loss of Consortium”. The children of the deceased,
who were minors, aged about 15 years, 13 years and 11 years have been
deprived of their father's love and affection throughout their life. Therefore,
10\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
a sum of Rs.50,000/- is granted to each of the children of the deceased
towards “Loss of Love and Affection”, which is akin to “Loss of
Consortium” granted to the petitioner/wife. Similarly, the mother of the
deceased is also entitled to a sum of Rs.50,000/- under the said head as she
had lost her son. Therefor, the total compensation amount payable comes to,
Loss of Dependency :: Rs.24,57,000/-
Loss of Consortium :: Rs. 40,000/-
Loss of Love and
Affection :: Rs. 2,00,000/-
Total :: Rs.26,97,000/-
rounded off to :: Rs.27,00,000/-
The compensation amount shall carry interest @ 6% per annum from
the date of accident, i.e, 12.05.2018.
16. Out of the said sum of Rs.27,00,000/-, the petitioner/wife would
be entitled to Rs.10 lakhs along with proportionate interest, each of the
children would be entitled to Rs.5 lakhs along with proportionate interest
11\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
and the mother would be entitled to Rs.2 lakhs along with proportionate
interest. The said amount has to be paid by the 7th respondent within a
period of 8 weeks from the date of receipt of a copy of this order.
17. The writ petition is disposed of accordingly.
18. Post on 21.06.2021 “for reporting compliance”.
(N.K.K.J.) (T.V.T.S.J.)
nv 19.04.2021
(Note to Office: Issue order copy by 26.04.2021)
To
1. The Secretary to Government,
Government of Tamil Nadu,
Municipal Administration &
Water Supply Department,
Fort St. George,
Chennai – 600 009.
2. The Director,
State Municipal Administration,
Kamarajar Salai, Chepauk,
Chennai – 600 009.
12\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
3. The Assistant Director,
Municipal Administration Zonal Office,
No.5, J.G. Nagar, 1st Street,
Kumaranandapuram,Tiruppur – 641 602.
4. The District Collector,
Tiruppur.
5. The Sub Collector,
Tiruppur.
6. The Revenue Divisional Officer,
Palladam, Tiruppur District.
7. The Municipal Commissioner,
Municipal Office,
Palladam,
Tirupur District – 641 664.
8. The Joint Registrar of
Co-operative Society,
Tiruppur Zone, Tiruppur.
13\14
http://www.judis.nic.in
W.P. No. 33517 of 2018
N. KIRUBAKARAN,J.
AND
T.V. THAMILSELVI,J.
nv
W.P. No.33517 of 2018
19.04.2021
14\14
http://www.judis.nic.in
