Madras High Court

Gomathi @ Kasthoori vs The Chairman on 8 September, 2022

WP.Nos.11207 & 15812 of 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.09.2022

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

WP.Nos.11207 & 15812 of 2011

1. Gomathi @ Kasthoori
2. Janaki
3. Jothimani
4. Mahalashmi
5. Palaneeshwari
6. Pappathi
7. S.Mahalakshmi ... Petitioners in W.P.
No.11207 of 2011

1. N.Senthil Kumar
2. Gopala Krishnan
3. Jayaprakash
4. K.R.Kumar ... Petitioners in W.P.
No.15812 of 2011

1. The Chairman,
Tamil Nadu State Marketing Corporation Ltd.,
Principal secretary, Home, Prohibition and
Excise Department, Secretariat, Chennai.

2. The Managing Director,
Tamil Nadu State Marketing Corporation Ltd.,
4th Floor, Thalamuthu Natarajan Maligai,
Egmore, Chennai – 600 008.

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3. The District Collector,
Palladam Road, Thiruppur District.

4. The Senior Zonal officer,
Office of TASMAC, Kavundam Palayam,
MSM Complex, Thayalan Street, Coimbatore.

5. The District Manager,
Tamil Nadu State Marketing Corporation Ltd.,
Angeri Palayam Road, Thiruppur.

6. Kanthasamy
7. Subramaniyam ... Respondents in both
Writ Petitions

Prayer:- These Writ Petitions are filed, under the Article 226 of
Constitution of India, to direct the respondents to consider the
representation and direct them to pay a sum of Rs.10,00,000/- as
compensation to each petitioners in W.P.No.11207 of 2011 and
Rs.5,00,000/- to each petitioner in W.P.No.15812 of 2011 within the time
frame.

For Petitioners : Mr.Sarath Chandran
in both WPs for Mr.MA.P.Thangavel in both W.Ps.

For Respondents : Mr.J.Ravindran, AAG
in both WPs : Asst. by Mr.K.Sathiskumar – R1, R2, R4 &
R5
Mr.S.Ravikumar, Spl. GP. - R3

Mr.V.Elangovan – R6
Mr.K.Goviganeshan – R7

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WP.Nos.11207 & 15812 of 2011

COMMON ORDER

These writ petitions have been filed to direct the respondents to

consider the representations of the petitioners and pay a compensation of a

sum of Rs.10,00,000/- to each petitioner in W.P.No.11207 of 2011 and to

pay a sum of Rs.5,00,000/- as compensation to each petitioner in

W.P.No.15812 of 2011.

2. The petitioners in W.P.No.11207 of 2011 are the widows of the

deceased who met with an accident in the bar run by the sixth respondent

and the petitioners in W.P.No.15812 of 2011 are the injured in the above

accident. It is the case of the petitioners that on 23.05.2007 deceased

persons and injured went to the TASMAC shop to have liquor and they

were in the bar behind the shop. The bar was running under a tin sheet and

has not been properly built with substantial materials. The fourth and fifth

respondents have leased out the said shop to the sixth respondent without

following the statutory rules. When the people were having liquor behind

the bar, the compound wall fell on the tin sheet where the bar was

functioning, as a result of which 29 people succumbed to injuries and

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several others were injured. Hence, it is his contention that due to tin

sheets and roof, the accident had occurred. Hence, seeks a direction for

compensation.

3. Though the writ petitions have been filed primarily for direction

for considering the representation of the petitioner, as there is a statutory

violation by the authorities, there is no need to prove the negligence. Mere

violations of statutory rules itself is enough to presume the negligence.

Therefore, it is submitted that instead of a direction to consider the

representation, the Court can, by exercising its jurisdiction under Article

226 of Constitution of India, very well decide the compensation.

4. The fifth respondent has filed a counter to the effect that due to

severe rain and due to thunder storm the compound wall of the adjacent

building fell on the bar and the incident is purely accidental and due to the

act of the God. There is no negligence or dereliction of duties by the

official respondents. In the additional counter, it is stated that the entire

accident is due to the collapse of the wall with a stone having 14 ft. height

and 144 ft length adjoining to the bar and there is no negligence on the part

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of the fifth respondent and the entire liability is on the owner of the

adjacent building, whose wall collapsed. There is no negligence on the

part of the TASMAC authority, the liability cannot be fixed on the State.

It is also stated that it is only a disputed fact and the negligence has to be

proved only in Civil Court. Therefore, in this writ petition, Order for

compensation cannot be passed.

5. The sixth respondent filed a counter to the effect that the building

was handed over by the fifth respondent and the fifth respondent verified

the stability of the building to run a bar and the entire accident is due to the

act of the God and due to severe rain, the adjacent compound wall fell on

the tin sheets in the Bar.

6. The learned Additional Advocate General Mr.J.Ravindran would

submit that though disputed facts involve with regard to the negligence, he

would fairly submit that the building has not been constructed as pucka

building only tin sheets have been used.

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7. It is not disputed that the bar was running in an enclosure which is

covered by tin sheets. It was run by the sixth respondent. It is also not

disputed by the State that the death of 29 persons was due to the collapse

of the adjoining compound wall which belongs to the seventh respondent.

It is the contention of the learned counsel appearing for the petitioner that

the sixth respondent is running the bar not in accordance with the rules and

licence is also not granted complying the rules which are governing to the

issuance of licence to run a bar.

8. The learned counsel appearing for the petitioners has also brought

to the notice of this Court the evidence of the District Manager, TASMAC,

tendered before the Criminal Court. Though the finding of the Criminal

Court cannot be binding on this Court, but the evidence tendered in a

judicial proceedings can be very well looked into. A perusal of the

evidence of the fifth respondent, who was examined as P.W.46 in

C.C.No.82 of 2008, he has categorically admitted that the bar was run with

tin sheets on the roof. In his evidence he has also admitted that the sixth

respondent has extended the area more than the permitted area and there

was violation of area also. It is also admitted by him that on finding such

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an encroachment, he has repeatedly asked the authorities to take action to

remove the encroachments. These facts clearly indicate that originally the

bar was run in an extent of 165 sq.ft. and contrary to the licence, the sixth

respondent has extended the bar to an extent of 250 sq.ft. and to the

extended area, he has covered with zinc sheets adjoining the compound

wall. The evidence of the fifth respondent tendered before the Criminal

Court makes it clear that there was violation of licence conditions by

encroaching the larger area and roofing with zinc sheets. The learned

counsel appearing for the petitioner has also brought to the notice of this

Court Rule 10 of the Tamilnadu Liquor Retail Vending [In Shops And

Bars] Rules 2003 which reads as follows :

LOCATION OF BAR - As per Rule 10 of Tamil Nadu

Liquor Retail Vending (Shops and Bars) Rules, 2003.

1) The bar shall lie within the shop or adjoining the shop.

2)The bar shall have a minimum plinth area of ten square

metres.

3)Every bar shall be housed in pucka building and no part

of the bar shall be thatched either on the sides or on the roof.

The bar room shall be sufficiently screened so thatconsumption

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of liquor is not visible from outside and shall also be provided

with fans. Sufficient number of tables and chairs for the

consumers to conveniently sit and consume liquor shall be

provided. Such room shall not be used as a club or recreation

room or for any other purpose whatsoever. No gambling or any

kind of disorderly conduct in the shop shall be permitted.

4)Facilities such as drinking water and wash basin within

the surroundings of each shop premises shall be provided and

the shop,its premises and surroundings shall be always kept

clean, hygienic and well lit.

5) Every shop shall have a signboard in Tamil in front of

the shop showing the number of the shop and details regarding

authorization issued by the Corporation for the shop, the price

of liquor in different sizes of bottles sold in the shop shall also

be displayed. There shall also be displayed on the signboard the

following slogans in bold letters about the evils of drinking and

such other slogans as may be approved by the Commissioner.

"Liquor ruins country, family and life"

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9. According to the learned counsel appearing for the petitioners,

whenever the licence is issued to run the bar, such bar should be housed in

a pucka building. It is also brought to the notice of this Court the 2nd

Master Plan for CMDA Area, 2026 in order to explain what is a pucka

building. For that purpose, the learned counsel relied upon Clause 6.09 and

for proper appreciation, the same is extracted hereunder:-

6.09.In Chennai city 75% of the houses are with roof made up of

brick, stone, concrete and other materials of pucka nature about

15% are with semi-pucka roofing materials such as tiles, slate,

G.I. Metal sheets and asbestos cement sheets, and about 10% are

with “Katcha” materials such as tatched, bamboo etc.

Table No.6.04 Distribution of Houses by Predominant Nature of
Roof Chennai City
Sl. Type Number of % Total
No Houses
.

                       1          Grass Thatch,       Bamboo,            90735                    9.48
                                  Wood, Mud etc.,
                       2          Plastic and Polythene                   2,966                   0.31
                       3          Tiles                                  71,403                   7.46
                       4          Slate                                   1,662                   0.17
                       5          GI Metal, Asbestos Sheets              65,392                   6.83
                       6          Brick                                  18,908                   1.98



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Table No.6.04 Distribution of Houses by Predominant Nature of Roof Chennai City 7 Stone 5,246 0.55 8 Concrete 6,96,997 72.80 9 Any other material 3,767 0.39

10. The learned counsel submitted that for the type of structure that

is covered in Sl.No.1, it is categorized as Cutcha building. For those

buildings which falls under Clauses 2 to 5, it is categorized as Semi-pucka

building and those which falls within Sl.Nos. 6 to 8 will come under the

category of a pucka building. The learned counsel submitted that the

relevant rules clearly mandates that the bar should be housed in a pucka

building which means that it should be a building constructed with bricks,

stones and concrete. In the present case, this mandate has not been fulfilled

and the same is evident from the deposition of PW46. Therefore, it was

submitted that there was a clear violation of statutory duty and that by

itself constitutes negligence on the part of the 6th respondent who was

running the bar and the principles of res ipsa loquitur must be applied by

this Court to determine the negligence on the part of the 6th respondent.

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11. Considering the above, it is seen that statutory rules and the

Master Plan and statutory requirement has not been complied by the

authorities and it has been violated. They have permitted the bar to run in

an enclosure with tin sheets. When rule itself specific that the bar should

be housed in a pucka building, allowing to run a bar enclosed in a tin sheet

is nothing but clear statutory violations. As per the Master plan referred

above, pucka building enclosed means the building should have been

completely constructed with bricks and stones and concrete. Whereas, the

bar in the present case was not run in a pucka building. On the other hand,

it was allowed to run in a temporary structure like tin sheets, that too with

encroachment and extending a larger area than the permitted area. The

same is further fortified by the evidence of the fifth respondent before the

criminal Court.

12. In this regard it is also relevant to refer the judgment of the Apex

Court in Sushil Ansal Vs. State through Central Bureau of Investigation

reported in 2014 6 SCC 173. In para 104 and 105 of the above judgment,

the Apex Court has held as follows :

“104 . That brings us to the question whether and if so

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what is the effect of a statutory obligation to care for the safety of the visitors to a cinema hall, where a duty to care otherwise exists under the common law. The answer can be best provided by a reference to the English decision in Lochgelly Iron & Coal Co. Ltd. v. M’Mullan, (1934) AC 1. A reading of this case would suggest that where a duty of care exists under common law, and this duty is additionally supported and clarified by statutory provisions, a breach of the statutory duty would be proof enough of negligence. It would not be open to the defendant in such a case to argue that the harm was not foreseeable, since “the very object of the legislation is to put that particular precaution beyond controversy”.

105. The import and significance of the case is explained in Clerk & Lindsell on Torts (Twentieth Edition) as follows:

“In Lochgelly Iron & Coal Co Ltd v. M'Mullan, the House of Lords came close to equating an action for breach of statutory duty with an action in negligence. Lord Atkin said that all that was necessary to show “is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute, and the duty to the injured person to take the care is likewise imposed by statute, and the breach is proved, all the essentials of negligence are present”. Negligence did not depend on the Court agreeing with the

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legislature that the precaution ought to have been taken, because the “very object of the legislation is to put that particular precaution beyond controversy”. On this approach breach of a statutory duty constitutes negligence per se, but it applies only to legislation which is designed to prevent a particular mischief in respect of which the defendant is already under a duty in common law. Failure to meet the prescribed statutory standard is then treated as unreasonable conduct amounting to negligence, because a reasonable man would not ignore precautions required by statute, and the defendant cannot claim that the harm was unforeseeable because the legislature has already anticipated it. The statutory standard “crystallises” the question of what constitutes carelessness. On the other hand, where legislation does not deal with circumstances in which there is an existing common law duty, then, unless expressly stated, breach of the statute would not give rise to an action, because the damages may greatly exceed the penalty considered appropriate by the legislature.”

13. A perusal of the above makes it clear that the breach of the

statutory duty would be enough for proof of negligence. When there is a

clear violation of statutory rules, there cannot be any defence for the

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respondents to contend that the death was not due to negligence or only it

was an act of God. In such view of the matter, this Court is of the view

that this Court can very well grant compensation for violation of statutory

duty as the violation of statutory duty itself is sufficient enough to presume

negligence. Accordingly, this Court would hold that the State is liable to

pay the compensation on the ground that the wall belonging to the seventh

respondent which has collapsed, which resulted in the death of 29 people.

It is relevant to note that if the bar was run in a pucka building constructed

with bricks and stones and building materials, even if the adjacent wall

collapse, the impact of the accident would not have been so severe. The

pucka building would have certainly withstood the stones of the wall.

Therefore, there is clear statutory violations by the respondents.

Accordingly, the respondent cannot shirk the responsibility by passing on

the responsibility on the seventh respondent. In the judgment of the Apex

Court in Sanjay Gupta and others Vs. State of Uttar Pradesh through

its Chief Secretary and others reported in [2022] 7 Supreme Court

Cases 203, the Apex Court in para 59 has held that compensation payable

has to be computed in accordance with the principles of just compensation

as in the case of accident under the Motor Vehicles Act, 1988 by the Motor

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Accidents Claims Tribunal.

14. The sixth respondent has also violated the statutory rules and

encroached upon the larger extent of land and roofed the same with tin

sheets adjoining the adjacent wall. Hence, the second and sixth

respondents are jointly liable to pay the compensation each 50%.

15. As the petitioners have not filed any proof of income of the

deceased, Rs.6000/- has been fixed as notional income, as was prevailing

at the relevant point of time.

16. Accordingly, the compensation payable to the petitioners in

W.P.Nos.11207 of 2011 is computed as under :

[i] The first petitioner is widow of the deceased Ramamorthi and he is

aged 60 years at the time of the accident and the compensation payable to

the first petitioner [6 dependents] [wife, two sons and three daughters] is as

follows :




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                     Sl.                             Head                                Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 8]                    Rs.1,92,000/-
                    2.      Loss of Consortium to wife                               Rs.    40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 5 persons)       Rs.2,00,000/-
                    4.      Funeral Expenses                                         Rs. 15,000/-
                    5.      Loss of Estate                                           Rs. 15,000/-
                            Total                                                    Rs.4,62,000/-

[ii] The second petitioner is widow of the deceased Arjunan and he

is aged 46 years at the time of the accident and the compensation payable

to the second petitioner [4 dependents – Wife, son, daughter and mother] is

as follows :

                     Sl.                             Head                                Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 13]                   Rs.3,12,000/-
                    2.      Loss of Consortium to wife                               Rs.    40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 2 persons)       Rs. 80,000/-
                    4.      Filal Consortium to mother Rs.40,000/-                   Rs. 40,000
                    5.      Funeral Expenses                                         Rs. 15,000/-
                    6.      Loss of Estate                                           Rs. 15,000/-
                            Total                                                    Rs.5,02,000/-

[iii] The third petitioner is widow of the deceased Subramani @ Ooty

Subramani and he is aged 52 years at the time of the accident and the

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compensation payable to the third petitioner [4 dependents – wife, two

sons and mother] is as follows :

                     Sl.                              Head                               Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 11]                   Rs.2,64,000/-
                    2.      Loss of Consortium to wife                               Rs.    40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 2 persons)       Rs. 80,000/-
                    4.      Filal Consortium to mother Rs.40,000/-                   Rs. 40,000/-
                    5.      Funeral Expenses                                         Rs.    15,000/-
                    6.      Loss of Estate                                           Rs.    15,000/-
                            Total                                                    Rs.4,54,000/-

[iv] The fourth petitioner is widow of the deceased Siva @

Paramasivam and he is aged 28 years at the time of the accident and the

compensation payable to the first petitioner [3 dependents – wife, daughter

and father] is as follows :

                     Sl.                              Head                               Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 18]                   Rs.4,32,000/-
                    2.      Loss of Consortium to wife                               Rs. 40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 1 person)        Rs. 40,000/-
                    4.      Filal consortium to father Rs.40,000/-                   Rs. 40,000/-
                    5.      Funeral Expenses                                         Rs. 15,000/-
                    6.      Loss of Estate                                           Rs. 15,000/-
                            Total                                                    Rs.5,82,000/-





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[v] The fifth petitioner is widow of the deceased Iyappan and he is

aged 50 years at the time of the accident and the compensation payable to

the fifth petitioner [ 3 dependents – Wife and two daughters] is as follows :

                     Sl.                                 Head                            Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 13]                   Rs.3,12,000/-
                    2.      Loss of Consortium to wife                               Rs. 40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 2 persons)       Rs. 80,000/-
                    4.      Funeral Expenses                                         Rs. 15,000/-
                    5.      Loss of Estate                                           Rs. 15,000/-
                            Total                                                    Rs.4,62,000/-

[vi] The sixth petitioner is widow mother of the deceased Chinnadurai

and he is aged 28 years at the time of the accident and the compensation

payable to the sixth petitioner [ one dependent – Mother] is as follows :

                     Sl.                                 Head                            Amount
                     No.
                    1.      Loss Dependency [ 6,000 x 12 x 1/3 x 18]                 Rs.4,32,000/-
                    2.      Filal consortium to mother                               Rs.    40,000/-
                    3.      Funeral Expenses                                         Rs.    15,000/-
                    4.      Loss of Estate                                           Rs.    15,000/-
                            Total                                                    Rs.5,02,000/-

[vii] The Seventh petitioner is widow of the deceased Selvaraj and he

is aged 44 years at the time of the accident and the compensation payable

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to the sixth petitioner [ 5 dependents – Wife, two sons and daughter and

mother ] is as follows :

                     Sl.                             Head                                 Amount
                     No.
                    1.      Loss Dependency [6000 x 12 x 1/3 x 15]                    Rs.3,60,000/-
                    2.      Loss of Consortium to wife                                Rs.    40,000/-
                    3.      Loss of Love and affection (Rs.40,000 x 3 persons)        Rs.1,20,000/-
                    4.      Filal Consortium to mother                                Rs. 40,000/-
                    5.      Funeral Expenses                                          Rs. 15,000/-
                    6.      Loss of Estate                                            Rs. 15,000/-
                            Total                                                     Rs.5,90,000/-

17. As far as W.P.No.15812 of 2011 is concerned, petitioners 1, 3

and 4 have sustained injuries and they are awarded consolidated

compensation of Rs.1,00,000/- [Rupees one lakh only] each.

18. As far as the second petitioner in W.P.No.15812 of 2011 is

concerned, he has suffered amputation of one arm and he is aged 28 years.

Hence, compensation payable to the second petitioner in W.P.No.15812 of

2011 is as follows :

                     Sl.                             Head                                 Amount
                     No.

1. Loss of future earning capacity [6000 x 12 x 18 x 60 /100 Rs.7,77,600/-


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                     Sl.                           Head                                Amount
                     No.
                    2.      Pain Suffering                                         Rs.    25,000/-
                            Total                                                  Rs.8,02,600/-

19. The second respondent is directed to deposit the entire

compensation amount less the amount already paid in the pre trial stage in

the criminal case along with interest at the rate of 6% from the date of the

respective writ petitions. Thereafter, the second respondent is directed to

recover 50% with interest from the sixth respondent. The compensation

amount shall be deposited to the credit of Writ Petitions in

W.P.Nos.11207 & 15812 of 2011 on the file of this Court. On such

deposit being made, the Registry is directed to transfer the compensation

amount directly to the Bank account of the respective petitioners in

W.P.Nos.11207 & 15812 of 2011 through RTGS, within a period of two

weeks and the petitioners are directed to furnish their account details to the

registry by way of an affidavit.