Madras High Court
J.Ramesh vs State Of Tamil Nadu on 11 December, 2023
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2023/MHC/5389
W.P.(MD)No.14677 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD)No.14677 of 2021
J.Ramesh ... Petitioner
vs.
1.State of Tamil Nadu,
represented by the Principal Secretary,
Department of Rural Development and Panchayat Raj,
State of Tamil Nadu, Fort St. George, Chennai - 600 009.
2.State of Tamil Nadu,
represented by the Principal Secretary,
Department of Health and Family Welfare,
State of Tamil Nadu, Fort St. George, Chennai 600 009.
3.State of Tamil Nadu,
represented by the Principal Secretary,
The Public Works Department,
State of Tamil Nadu, Fort St. George, Chennai 600 009.
4.The Director,
Directorate of Medical and Rural Health Services,
DMS Complex, 361, Anna Salai,
Chennai - 600 009.
5.The Director,
Directorate of Rural Development and Panchayat Raj Department,
Panagal Building, Chennai – 600 015.
1/18
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14677 of 2021
6.The Joint Director,
Medical and Rural Health Services,
District Family Welfare Bureau,
Multipurpose Health Worker Training Centre Madurai.
7.The District Collector,
District Collectorate, Madurai District, Madurai.
8.The Block Developmental Officer,
Office of the Block Developmental Officer,
Thiruparankundram, Madurai 625 006.
9.The Superintendent of Police,
Office of the Superintendent of Police, Madurai 625 007.
10.The Inspector of Police,
Nagamalai Pudukkottai Police Station,
Nagamalai Pudukottai, Madurai - 625 019. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, directing the respondents to
conduct enquiry and take action against the officials, who are all
responsible for the death of the petitioner’s daughter by name ‘Jaanu Sri’
aged about 1¾ years and to provide the petitioner fair and reasonable
compensation for the death of petitioner’s daughter by name ‘Jaanu Sri’
in an expedite manner in accordance with law within the time stipulated
by this Court.
For Petitioner :Mr.R.Alagumani
For R1 to R8 :Mr.K.S.Selvaganesan
Additional Government Pleader
For R9 and R10 :Mr.R.Sivakumar
Government Advocate (Crl.side)
2/18
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.14677 of 2021
ORDER
This Writ Petition has been filed for the issue of a Writ of
Mandamus directing the respondents to conduct an enquiry and to take
action against the erring officials, who were responsible for the demise of
the petitioner’s daughter aged about 1¾ years and to provide reasonable
compensation to the petitioner.
2. When the matter came up for hearing on 18.08.2021, this Court
passed the following order:
“The petitioner seeks an inquiry into the death of his
daughter and for the payment of reasonable compensation in
respect thereof.
2.The petitioner has stated that his daughter, who was
little more than 1½ years, at the relevant point of time, died by
falling into an open 'Septic Tank' in the 'Sub Health Centre' at
Keelakuyilkudi.
3.Mr.P.Subbaraj, learned counsel for the State, accepts
notice on behalf of the respondents 1 to 7 and 9 & 10 and
Mr.Shanmuga Sundharam, learned Standing Counsel accepts
notice on behalf of the 8th respondent.
4.The state is directed to file a detailed report setting out
the action taken pursuant to the death of the petitioner's daughter
and also indicating the schemes available for payment of
compensation in such regard. Such report shall be filed within a
period of two weeks from the date of receipt of a copy of this
order.
5.Let the matter appear on 01.09.2021.”
https://www.mhc.tn.gov.in/judis
3. The case was thereafter listed for hearing on 06.11.2023 and this
Court passed the following order:
“This Writ Petition has been filed for a direction to the
respondents to pay compensation to the petitioner for the death of his
daughter aged about 1¾ years by falling into an open septic tank at
Sub Health Centre, Keelakuyilkudi.
2. When matter was taken up for hearing, the learned
Additional Government Pleader appearing for the respondents
submitted that a proposal has already been placed before the Principal
Secretary for payment of compensation to the petitioner from the Chief
Minister's Relief Fund.
3. In view of the above development, this Court wants to await
the decision of the Principal Secretary fixing the compensation amount
payable to the petitioner. Depending upon the same, further orders will
be passed in this Writ Petition.
4. List this Writ Petition under the caption 'for orders' on
27.11.2023.”
4. The case was once again listed for hearing on 27.11.2023 and
this Court passed the following order:
“Pursuant to the earlier order passed by this Court on
06.11.2023, the matter was posted for hearing today.
2.The learned Additional Government Pleader produced a
Government Order passed in G.O. (1D) No.832 dated
23.11.2023, wherein the Government has decided to pay a sum of
Rs.3 lakhs to the mother of the deceased from the Chief Minister's
Relief Fund.
3.A cheque drawn in the name of the mother of the
deceased dated 24.11.2023 for a sum of Rs.3 lakhs was handed
over to the learned counsel for the petitioner.
4.The learned counsel for the petitioner submitted that this
is a clear case of negligence and hence, compensation amount
must be quantified and paid.
5.The above issue raised by the learned counsel for the
petitioner will be gone into during the next date of hearing.
6.Post this Writ Petition on 11.12.2023 under the same
caption.”
https://www.mhc.tn.gov.in/judis
5. Heard Mr.R.Alagumani, learned Counsel appearing on behalf of
the petitioner, Mr.K.S.Selvaganesan, learned Additional Government
Pleader appearing on behalf of the respondents 1 to 8 and
Mr.R.Sivakumar, learned Government Advocate (Crl. Side) appearing on
behalf of the respondents 9 and 10.
6. The petitioner is the father of the deceased, Jaanu Sri, who was
aged about 1¾ years at the relevant point of time. The petitioner was
having three daughters and the said Jaanu Sri is the third daughter of the
petitioner. The petitioner was residing opposite to Keelakuyilkudi
Panchayat Office and Sub Health Centre. On the sanction accorded by
the District Collector, a Sub Health Centre was constructed in the year
2019. The work was completed during May 2020. However, since there
was a complete lock down due to pandemic, the building was handed
over to the Block Medical Officer, Valayankulam only during the year
2021. The drainage pit was located on the back side of the Sub Health
Centre and it was closed with two blocks of removable kadappa stones.
There is no dispute with regard to the fact that the building was not
secured by constructing a compound wall around the building.
https://www.mhc.tn.gov.in/judis
7. On 07.07.2021, the child was left in the custody of two other
children and those children were playing near the garden. When the
mother of the child returned back and asked those children as to where is
deceased Jaanu Sri, they found that the child was missing and after
search, they came to know that the child had fallen into the drainage soak
pit and the child was removed from the pit and was taken to the Primary
Health Centre and unfortunately, the child died. The postmortem that was
conducted on the child revealed the fact that the child had died of
asphyxia due to drowning. It is, under these circumstances, the petitioner
had approached this Court and sought for taking action against the erring
officials and for payment of compensation on the ground of negligence
on the part of the respondents.
8. The ninth respondent has filed a counter affidavit and has taken
a stand that the construction of the Sub Health Centre was completed in
the year 2020 and it was handed over to the Block Medical Officer in the
year 2021. As part of construction, the drainage pit/septic tank was
located on the back side of the Sub Health Centre and it was closed with
two kadappa stones. Since compound wall was not put up, some
https://www.mhc.tn.gov.in/judis
miscreants had removed the stones and as a result, the drainage pit/septic
tank was kept open and unfortunately, a child had fallen into it and had
succumbed. According to the ninth respondent, this incident was more in
the nature of an accident for which, the respondents cannot be blamed
and that there was no negligence on the part of the respondents. That
apart, the investigation done by the police based on the FIR that was
registered in Cr.No.296 of 2021, also resulted in a closure report as
mistake of fact. Hence, the respondents have sought for dismissal of this
Writ Petition.
9. During the pendency of this Writ Petition, the Government had
sanctioned and paid a sum of Rs.3,00,000/- (Rupees Three Lakhs only) to
the mother of the deceased and this amount was released as exgratia
payment from the Chief Minister's Relief Fund. This fact had already
been noted in the earlier order passed on 27.11.2023.
10. The main issue that arises for consideration, is as to whether
there was negligence on the part of the respondents in not properly
securing the drainage pit/septic tank, which resulted in the death of a
https://www.mhc.tn.gov.in/judis
child aged about 1¾ years and if so, what is the quantum of
compensation that has to be paid to the petitioner.
11. There is no dispute with regard to the fact that the petitioner
was residing opposite to the Sub Health Centre. It is also not in dispute
that pursuant to the sanction granted by the District Collector, the
construction of the Sub Health Centre was commenced in the year 2019
and it was completed during May 2020. The building was not able to be
handed over to the Block Medical Officer due to pandemic and
ultimately, it was handed over only during the year 2021. The averments
made in the affidavit filed in support of the Writ Petition and also the
averments made in the counter affidavit show that there was a drainage
pit/septic tank on the back side of the Sub Health Centre and it was only
closed with two blocks of removable kadappa stones. Unfortunately, the
building was not enclosed with a compound wall and as a result, there
was free access to everyone to get into the building.
12. The manner in which the incident has been projected shows
that the kadappa stones that were covering the drainage pit, were moved
https://www.mhc.tn.gov.in/judis
and as a result, the drainage was exposed and the child had fallen into the
drainage pit. It is the duty of the authorities to fence the Sub Health
Centre with a compound wall in order to ensure safety and security. The
same is quite clear from the Indian Public Health Standards’ Guidelines
that have been issued to such Sub Health Centres. The counter affidavit
shows that compound wall was not put up by the contractor, since in the
estimate that was given, there was no provision for putting up a
compound wall and as a result, no one cared to fence the building with a
compound wall and there was free access for everyone to get near the
building. Obviously, somebody had removed the kadappa stones which
led to a disaster. For the negligence on the part of the respondents in not
properly fencing/protecting the building by putting up a compound wall,
the respondents are necessarily answerable for the same. It is not
necessary to analyse as to who had removed the kadappa stones, since it
is not relevant for this case. Somebody had moved the kadappa stones
and thereby, the child had fallen into the drainage pit. Since the Sub
Health Centre was not properly secured/protected by fencing it with a
compound wall, the negligence has to be necessarily attributed against
the respondents. In view of the same, this Court holds that there is
https://www.mhc.tn.gov.in/judis
negligence on the part of the respondents in not fencing the building with
a compound wall as stipulated under the guidelines.
13. The next issue to be gone into is as to the compensation that is
payable to the petitioner. As stated supra, already a sum of Rs.3,00,000/-
(Rupees Three Lakhs only) has been paid as exgratia payment from the
Chief Minister's Relief Fund to the petitioner. The learned Counsel for
the petitioner by submitting a memo of calculation, dated 11.12.2023
contended that the respondents are liable to pay a compensation of a sum
of Rs.6,52,500/- (Rupees Six Lakhs Fifty Two Thousand and Five
Hundred only) with interest at 7.5% p.a. For this purpose, the petitioner
has calculated the compensation in the following manner:
MEMO OF CALCULATION
Date of Death : 07/07/2021
Age : 1 ¾ years
Notional Income : 30000/- per year
Future prospects : (+)
(25% of notional 7,500/-
income) 37,500
37,500x15 (multiplier) : 5,62,500/-
Consortium : 50,000/-
Funeral : 20,000/-
Estate : 20,000/-
Total : 6,52,500/-
https://www.mhc.tn.gov.in/judis
14. To substantiate the above, the learned Counsel for the
petitioner also relied upon the judgment of Division Bench of Delhi High
Court in Court on its Own Motion vs Govt. of NCT of Delhi and others,
reported in 2018 SCC OnLine Del 10283. The learned Counsel for the
petitioner also relied upon the judgment of the Hon’ble Apex Court in
Meena Devi vs Nunu Chand Mahto @ Nemchand Mahto and others
(SLP (Civil)No.5345 of 2019) dated 13.10.2023.
15. The learned Additional Government Pleader appearing on
behalf of the respondents submitted that compensation cannot be fixed
based on the above judgments, since in the first judgment, the age of the
child was above 11 years and in the second judgment, the age of the child
was nearly 12 years. Whereas, in the instant case, the age of the child was
1¾ years.
16. The fixation of compensation in most of these cases is only
based on approximation and there cannot be a standard formula for fixing
the compensation. At the best, this Court while exercising its jurisdiction
https://www.mhc.tn.gov.in/judis
under Article 226 of Constitution of India, can only take cue from the
principles of fixing compensation under the Motor Vehicles Act. This is
more so due to the fact that there is no legislation which enables this
Court to fairly quantify the adequate compensation that has to be paid to
a mother/father, who have lost their child at avery young age. Hence,
this Court can only draw inspiration from the judgments that have been
cited before this Court and also the general principles that are normally
applied while fixing compensation under the Motor Vehicles Act.
17. In cases involving the death of children, the Hon’ble Apex
Court had on various occasions dealt with such cases and has come to the
conclusion that even in the cases of death of school going children, the
compensation for the lost of future prospects can be granted. Useful
reference can be made to the judgment in R.K.Malik vs. Kiran Pal
reported in (2009) 14 SCC 1. Insofar as the fixation of the multiplier is
concerned, the Larger Bench of the Hon’ble Apex Court in Reshma
Kumari and others and Madan Mohan and another reported in 2013
(2) CTC 680, by following the dictum in Sarala Varma’s case, has
concluded that 15 years multiplier can be adopted, where the age of the
https://www.mhc.tn.gov.in/judis
deceased is less than 15 years.
18. In the judgments that were relied upon by the learned Counsel
for the petitioner, the children were aged about 11/12 years and they were
school going children. In one case, the child had fallen into a water
harvesting pit in a park, which was maintained by the PWD. In the other
case, the child was dashed by a jeep and as a result, he died. The accident
had taken place due to various reasons and what is important is to see as
to how the Court had assessed the compensation and directed the
payment of compensation by the tortfeasor.
19. In the first case decided by the Division Bench of Delhi High
Court, the Division Bench took into account the standard compensation
by taking cue from the judgment in Kamla Devi vs NCT of Delhi
reported in 114 (2004) DLT 57. The Court took into consideration the
Consumer Price Index Factor and calculated the compensation. That
apart, the Court also determined the pecuniary losses, which were added
to the total compensation. The Court applied 15 multiplier.
https://www.mhc.tn.gov.in/judis
20. In the second case, the Hon’ble Apex Court had also applied 15
multiplier in view of Sarla Varma and others vs Delhi Transport
Corporation and another case reported in (2009) 6 SCC 121 and
determined the compensation. The Apex Court held that in cases of child
death, normally, the income of Rs.15,000/- (Rupees Fifteen Thousand
only) is taken into consideration and it is enhanced on account of
devaluation of money and value of rupee coming down. Hence, it is
increased from time to time. It was taken to be Rs.25,000/- (Rupees
Twenty Five Thousand) to Rs.30,000/- (Rupees Thirty Thousand) during
the year 2022. Accordingly, the compensation was determined. In the
case that was dealt with by the Hon’ble Apex Court, the age of the child
was nearly 12 years.
21. In the instant case, the age of the child was 1 ¾ years. In the
judgment that was dealt with by the Hon’ble Apex Court in Kurvan
Ansari @ Kurvan Ali and another vs Shyam Kishore Murmu and
another reported in (2022) 1 SCC 317, the age of the child was nearly 7
years and the Hon’ble Apex Court took Rs.25,000/- (Rupees Twenty Five
Thousand) as notional income. Taking cue from this judgment, this Court
https://www.mhc.tn.gov.in/judis
is inclined to fix the notional income at Rs.20,000/- (Rupees Twenty
Thousand) for the child aged about 1¾ years. Applying the multiplier of
15, the loss of dependency can be arrived at Rs.3,00,000/- (Rupees Three
Lakhs) (15x20,000). By adding conventional heads, such as consortium,
funeral expenses, loss of love and affection and mental agony, this Court
is inclined to fix a net compensation of Rs.2,50,000/- (Rupees Two Lakhs
Fifty Thousand). Thus, the total compensation in this case can be fixed
as Rs.5,50,000/- (Rupees Five Lakhs Fifty Thousands). This can be
directed to be paid along with interest at the rate of 7.5% p.a.
22. The respondents have already paid a sum of Rs.3,00,000/-
(Rupees Three Lakhs) towards exgratia payment and this amount has to
be deducted from the total compensation. However, the interest portion
is payable towards this amount also. Hence, the interest at the rate of
7.5% p.a., has to be paid on Rs.3,00,000/- (Rupees Three Lakhs) from
01.08.2021 to 24.11.2023. For the balance amount of Rs.2,50,000/-
(Rupees Two Lakhs Fifty Thousand), the interest has to be paid at the
rate of 7.5% p.a., from 01.08.2021 till the date of actual payment to the
petitioner. The entire compensation along with interest shall be paid to
https://www.mhc.tn.gov.in/judis
the petitioner within a period of six weeks from the date of receipt of a
copy of this order.
23. Insofar as the action against the erring officials, the learned
Additional Government Pleader submitted that already disciplinary
proceedings were initiated and show cause notices have been issued to
the erring officials and explanation has also been sought for. In view of
the same, the disciplinary proceedings shall also be concluded within a
period of three months from the date of receipt of a copy of this order.
24. In the result, this Writ Petition is allowed with the above
directions. No costs.
Index :Yes / No 11.12.2023
Internet :Yes / No
NCC :Yes / No
cmr
https://www.mhc.tn.gov.in/judis
To
1.The Principal Secretary,
Department of Rural Development and Panchayat Raj,
State of Tamil Nadu, Fort St. George, Chennai - 600 009.
2.The Principal Secretary,
Department of Health and Family Welfare,
State of Tamil Nadu, Fort St. George, Chennai 600 009.
3.The Principal Secretary,
The Public Works Department,
State of Tamil Nadu, Fort St. George, Chennai 600 009.
4.The Director,
Directorate of Medical and Rural Health Services,
DMS Complex, 361, Anna Salai, Chennai - 600 009.
5.The Director,
Directorate of Rural Development and Panchayat Raj Department,
Panagal Building, Chennai – 600 015.
6.The Joint Director,
Medical and Rural Health Services,
District Family Welfare Bureau,
Multipurpose Health Worker Training Centre Madurai.
7.The District Collector,
District Collectorate, Madurai District, Madurai.
8.The Block Developmental Officer,
Office of the Block Developmental Officer,
Thiruparankundram, Madurai 625 006.
9.The Superintendent of Police,
Office of the Superintendent of Police, Madurai 625 007.
10.The Inspector of Police,
Nagamalai Pudukkottai Police Station,
Nagamalai Pudukottai, Madurai - 625 019.
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH, J.
cmr
11.12.2023
https://www.mhc.tn.gov.in/judis
