Full Judgment Text
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CASE NO.:
Appeal (civil) 9738 of 1996
PETITIONER:
M.S. GREWAL & ANR.
Vs.
RESPONDENT:
DEEP CHAND SOOD & ORS.
DATE OF JUDGMENT: 24/08/2001
BENCH:
A.P. Misra & Umesh C Banerjee
JUDGMENT:
BANERJEE, J.
A very sad tale concerning fourteen young kids resulting in
untimely and unfortunate death of all of them stands out to be the
subject matter of the Appeal under consideration: Sad tale by
reason of the fact that a sheer fun of young ones turned out to be
fatal as a consequence of utter and callous neglect of teachers on
duty.
Adverting to the factual aspects, it appears that on 28.5.1995,
59 boys and 18 girls (totaling 77) students, all in 4th, 5th and 6th
classes of Dalhousie Public School, Badhani, Pathankot were
brought for a picnic at Tandapatanindora on the bank of river
Beas. The Head Master of the School deputed one Shri Surinder
Pal Singh and another Shri K. Shanmugham being teachers in the
School for escorting and taking due and proper care of the
students. Incidentally, the site chosen for the picnic was the same
on which the earlier picnic of the School was held on 7th May,
1995.
On the contextual facts, it appears that the School concerned
has in its activities, a usual picnic for all the students in batches.
Some of the students had already been into the picnic and these 77
were chosen for the batch which was scheduled for 28th May,
1995. It has been the version of the School authorities that in a
true educational institution, extra curricular activities play a
dominant role in imparting proper education to the students and
outings/picnics thus have been a regular feature in the school:
whereas in the event of there being a plan for overnight stay, the
School management without parental consent would not permit the
concerned student for participation therein though however, the
same is not a requirement in a day time outing or picnic.
The factual score further reveals that the management of the
School organised the picnic on 7th May, 1995 for the students as
noticed above and selected the same site on the bank of river Beas
which flows from North to South direction having a width of
approximately 200 ft. On the fateful day, however (28th May,
1995) the students were accompanied by five teachers, two mess
boys, one supplier and the driver of the bus along with two
European ladies (GAP students) in the picnic party. The records
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depict that in the post lunch period, fourteen students alongwith
two teachers Shanmugam and S.P.Singh went down the river for a
considerable distance with about 14 students and the teachers
however discovered a sudden dibber of about 6 8 ft. deep by
reason wherefor the teachers themselves along with the students
fell into a great danger whereas teachers could save themselves
up the students fell a victim of utter neglect of the teachers - The
children were allowed to play in the danger zone of the water
without any caution or any warning being sounded, the resultant
effect of which drowning of these unfortunate fourteen children
a rather unfortunate sad end and finale to the so-called extra
curricular activities of the School.
On the further factual score, it appears that the Government
of Himachal Pradesh, ordered a judicial inquiry under the
Commission of Inquiry Act 1952 by the District and Sessions
Judge, Kangra and the State of Punjab also ordered an inquiry by
the sub-divisional Magistrate, Pathankot but nothing was
forthcoming by reason wherefor the private respondents on 14th
July, 1995, being the parents of the unfortunate children moved a
writ petition under Article 226 of the Constitution in the High
Court against the Petitioner Nos.1 and 2 and respondent Nos.14-
16 seeking a relief by way of an inquiry by C.B.I to find out the
causes for the tragedy and fixation of responsibility therefor and
punishment to the guilty ones together however, with a prayer for
adequate compensation from the School authorities and on 2nd
August, 1995, the High Court ordered an Inquiry to be conducted
by the Central Bureau of Investigation and the latter upon
examination of various witnesses recording the unfortunate
incident of drowning of children concluded in paragraph 41 of the
report as below:
41. The conclude investigations have established
that the death of 14 students by drowning was
caused by the rash and negligent acts of firstly
allowing the students to stray down stream by
about 1100 ft. and enter into unchartered waters
and secondly, due to direct instigation by Shri
Surinder Pal Singh whereby the students in their
efforts to catch him and thereafter to race to the
bushes on the western river bank down stream,
entered into the water of Dibber and were
drowned as the depth of the water exceeded their
average height. The investigation has thus prima
facie established the commission of offence u/s
304A of the Indian Penal Code by S/Shri S.P.
Singh, Director Physical Education, Dalhousie
Public School and Shri K. Shanmugam, teacher,
Dalhousie Public School, Badhani.
The Writ Petition, however, came up for final disposal before
the High Court on 4th March, 1996 wherein the writ petition was
allowed and it was ordered that the Chairman and the Management
of the School shall pay a compensation of Rs.5 lakh to each of the
parents of fourteen students who died in the incident and a sum of
Rs.30,000/- to each of the parents of students who suffered due to
drowning incident within two months with interest at the rate of
12% per annum from 28th May, 1995 by depositing the same in the
registry of the High Court and hence the Special Leave Petition
before this Court and the subsequent grant of leave with an order
to deposit a sum of Rs.7 lakhs towards discharge of the liability of
the petitioner, if ultimately upheld by the Court to be disbursed in
accordance with the orders of the court. Incidentally, the order
requiring the petitioner to deposit a sum of Rs.7 lakhs stands
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complied with.
It is on this factual backdrop Mr. Bahuguna, learned Senior
Advocate in support of the Appeal in no uncertain terms stated
before the Court that the event that has happened, should not have
happened. Strong reliance was placed on the report of the C.B.I.
wherein there has been total exoneration of any liability so far as
the management of the School are concerned though responsibility
has been fixed on to School teachers personally. Mr. Bahuguna
with his usual eloquence expressed his deepest sorrow for the
incident and on the very first day of the hearing submitted that
irrespective of any instruction in the matter, a sum of Rs. 2 lakhs
can be termed to be a reasonable figure and his clients should be
prepared to pay the same a good gesture undoubtedly, but since
the same does not receive concurrence from Mr. Malhotra, the
learned Senior Advocate, appearing for the Respondents herein, we
refrain ourselves from expressing any opinion thereon. Be that as
it may, Mr. Bahuguna contended the quantum had been fixed by
the High Court at a strangely staggering figure Rs. 5 lakhs
without however any basis whatsoever - Acknowledging,
however, the fact that no amount of compensation can possibly
redress the grievances of the parents in the contextual facts, it has
been contended that the law courts also cannot possibly proceed on
emotions and sentiments only: the order pertaining to payment of
compensation must have its foundation on some finding of fact in
the absence of which the order becomes totally untenable. A
number of decisions have been cited to depict that the quantum
must be realistically realistic having its proper basis rather than
assessment thereof on sentiment and anguish. Mr. Bahuguna
submitted that the anguish of the Judges of the High Court
obviously is understandable but that does not however mean and
imply, award of compensation to a staggering amount of Rs.5
lakhs per student by reason wherefor the School stands foisted with
the liability of more than one crore. Mr. Bahuguna contended that
assessment of compensation must also have a co-relation with the
ability or capability to pay. Ability to pay, it was contended is a
necessary criteria in regard to the fixation of quantum of
compensation in the event of there being an unfortunate event and
it is on this score that paragraph 41 of the Report has been taken
recourse to The teachers have been ascribed to be negligent and
not a whisper about the conduct of the school and as such
conferment of liability on to the school in any event is totally an
injudicious discretion of the High Court. True, and as noticed
hereinbefore the conclusion of CBI, fixed the entire responsibility
upon the two teachers and criminal proceedings stand initiated by
reason therefor and the accused persons as a matter of fact also
stand convicted under Section 304-A I.P.C. but what is the
affect of such a finding: Needless to record that the CBIs
investigation was not in regard to the assessment of the quantum of
tort feasors or joint tort-feasors liability and as such the report by
itself would not be of any assistance to the school authorities in the
matter of fixation of monetary liability by reason therefor.
Incidentally, this Court in C.K. Subramania Iyer and Others
v. T. Kunhikuttan Nair and Six Others [(1969) 3 SCC 64] while
dealing with the matter of fatal accidents laid down certain relevant
guidelines for the purpose of assessment of compensation.
Paragraph 13 of the report would be relevant on this score and the
same is set out hereinbelow:
13. The law on the point arising for decision may
be summed up thus: Compulsory damages under
Section 1-A of the Act for wrongful death must be
limited strictly to the pecuniary loss to the
beneficiaries and that under Section 2, the
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measure of damages is the economic loss
sustained by the estate. There can be no exact
uniform rule for measuring the value of the
human life and the measure of damages cannot be
arrived at by precise mathematical calculations
but the amount recoverable depends on the
particular facts and circumstances of each case.
The life expectancy of the deceased or of the
beneficiaries whichever is shorter is an important
factor. Since the elements which go to make up
the value of the life of the deceased to the
designated beneficiaries are necessarily personal
to each case, in the very nature of things, there
can be no exact or uniform rule for measuring the
value of human life. In assessing damages, the
Court must exclude all considerations of matter
which rest in speculation or fancy though
conjecture to some extent is inevitable. As a
general rule parents are entitled to recover the
present cash value of the prospective service of
the deceased minor child. In addition they may
receive compensation for loss of pecuniary
benefits reasonably to be expected after the child
attains majority. In the matter of ascertainment of
damages, the Appellate Court should be slow in
disturbing the findings reached by the courts
below, if they have taken all the relevant facts into
consideration.
(Emphasis supplied)
The observations as above, undoubtedly lays down the basic
guidance for assessment of damage but one redeeming feature
ought to be noted that compensation or damages cannot be
awarded as a solatium but to assess the same with reference to loss
of pecuniary benefits. In the decision last noted [(1969) 3 SCC 64]
this Court placed strong reliance on two old decisions of the
English Courts to wit: Franklin v. The South East Railway
Company (157 English Reports 3 H & N, p.448) wherein Pollock,
C.B. stated :
We do not say that it was necessary that actual
benefit should have been derived, a reasonable
expectation is enough and such reasonable
expectation might well exist, though from the
father, not being in need, the son had never done
anything for him. On the other hand a jury
certainly ought not to make a guess in the
matter, but ought to be satisfied that there has
been a loss of sensible and appreciable pecuniary
benefit, which might have been reasonably
expected from the continuance of life.
The other decision relates to the case of Taff Vale Railway
Company v. Jenkins [(1913) AC 1] wherein Atkinson, J. stated the
law as below:
I think it has been well established by authority
that all that is necessary is that a reasonable
expectation of pecuniary benefit should be
entertained by the person who sues. It is quite
true that the existence of this expectation is an
inference of fact there must be a basis of fact
from which the inference can reasonably be
drawn; but I wish to express my emphatic
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dissent from the proposition that it is necessary
that two of the facts without which the inference
cannot be drawn are, first, that the deceased
earned money in the past, and second, that he or
she contributed to the support of the plaintiff.
These are, no doubt, pregnant pieces of
evidence, but they are only pieces of evidence;
and the necessary inference can I think be drawn
from circumstances other than and different
from them.
Be it placed on record that in assessing damages, all relevant
materials should and ought always be placed before the court so as
to enable the Court to come to a conclusion in the matter of
affectation of pecuniary benefit by reason of the unfortunate death.
Though mathematical nicety is not required but a rough and ready
estimate can be had from the records claiming damages since award
of damages cannot be had without any material evidence: whereas
one party is to be compensated, the other party is to compensate
and as such there must always be some materials available therefor.
It is not a fanciful item of compensation but it is on legitimate
expectation of loss of pecuniary benefits. In Grand Trunk Railway
Company of Canada v. Jennings (13 Appeal Cases 800) this well
accepted principle stands reiterated as below:
In assessing the damages, all circumstances
which may be legitimately pleaded in diminution
of the damages must be considered. It is not a
mere guess work neither it is the resultant effect
of a compassionate attitude.
As noticed above, a large number of decisions were placed
before this Court as regards the quantum of compensation varying
between 50,000 to one lakh in regard to unfortunate deaths of
young children. We do deem it fit to record that while judicial
precedents undoubtedly have some relevance as regards the
principles of law, but the quantum of assessment stands dependent
on the fact-situation of the matter before the court, than judicial
precedents. As regards the quantum no decision as such can be
taken to be of binding precedent as such, since each case has to be
dealt with on its own peculiar facts and thus compensation is also
to be assessed on the basis thereof though however the same can
act as a guide: Placement in the society, financial status differ from
person to person and as such assessment would also differ. The
whole issue is to be judged on the basis of the fact-situation of the
matter concerned though however, not on mathematical nicety.
On the issue of negligence, the CBI report and subsequent
decision the Criminal Court have foisted liability on to the
teachers accompanying the students But what is the effect of
such a finding? Significantly, the school authority though claimed
to be not liable in any way, in no uncertain terms however blamed
the teachers and their utter negligence, resulting in such a tragedy.
Negligence in common parlance mean and imply failure to
exercise due care, expected of a reasonable prudent person. It is a
breach of duty and negligence in law ranging from inadvertence to
shameful disregard of safety of others. In most instances, it is
caused by heedlessness or inadvertence, by which the negligent
party is unaware of the results which may follow from his act.
Negligence is thus a breach of duty or lack of proper care in doing
something, in short, it is want of attention and doing of something
which a prudent and a reasonable man would not do (vide Blacks
Law Dictionary). Though sometimes, the word inadvertence
stands and used as a synonym to negligence, but in effect
negligence represents a state of the mind which however is much
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serious in nature than mere inadvertence. There is thus existing a
differentiation between the two expressions whereas
inadvertence is a milder form of negligence, negligence by itself
mean and imply a state of mind where there is no regard for duty
or the supposed care and attention which one ought to bestow.
Clerk & Lindsell on Torts (18th Ed.) sets out four several
requirements of the tort of negligence and the same read as below:
(1) the existence in law of a duty of care situation,
i.e. one in which the law attaches liability to
carelessness. There has to be recognition by law
that the careless infliction of the kind of damage
in suit on the class of person to which the
claimant belongs by the class of person to which
the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e.
that it failed to measure up to the standard set by
law;
(3) a casual connection between the defendants
careless conduct and the damage;
(4) that the particular kind of damage to the
particular claimant is not so unforeseeable as to
be too remote.
While the parent owes his child, a duty of care in relation to
the childs physical security, a teacher in a School is expected to
show such care towards a child under his charge as would be
exercised by a reasonably careful parent. In this context, reference
may be made to a decision of Tucker, J. in Ricketts v. Erith
Borough Council and Another (1943 (2) All ER 629) as also the
decision of the Court of Appeal in Prince and Another v. Gregory
and Another (1959(1)WLR177).
Duty of care varies from situation to situation - whereas it
would be the duty of the teacher to supervise the children in the
playground but the supervision, as the children leave the school,
may not be required in the same degree as is in the play-field.
While it is true that if the students are taken to another school
building for participation in certain games, it is sufficient exercise
of diligence to know that the premises are otherwise safe and
secure but undoubtedly if the students are taken out to playground
near a river for fun and swim, the degree of care required stands at
a much higher degree and no deviation therefrom can be had on
any count whatsoever. Mere satisfaction that the river is otherwise
safe for swim by reason of popular sayings will not be a sufficient
compliance. As a matter of fact the degree of care required to be
taken specially against the minor children stands at a much higher
level than adults: Children need much stricter care.
Incidentally, negligence is an independent tort and has its
own strict elements specially in the matter of children the
liability is thus absolute vis-Ã -vis the children. The school
authorities in the contextual facts attributed negligence to the two
teachers who stand convicted under Section 304A of the Indian
Penal Code as noticed above and Mr. Bahuguna appearing in
support of the appeal during the course of hearing, however, also
in no uncertain terms attributed utter negligence on the part of the
teachers and thus conceded on the issue of negligence.
Concession, if any, as noticed above, though undoubtedly a good
gesture on the part of the school authority, but can the school
absolve its responsibility and corresponding culpability in regard to
the incident: Would they be termed to be a joint tort feasors or
would it be a defence that the school has taken all due care having
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regard to its duty and it is irrespective thereof by reason of utter
neglect and callous conduct on the part of the two of the teachers
escorting them that has caused the injury Mr. Bahuguna
contended that the school cannot be made liable under any stretch
of imagination by reason of the happening of an event which is not
within the school premises and has, in fact, happened by reason of
the neglect of two of the teachers. It is on this score that Mr.
Malhotra rather emphatically contended that the liability cannot
simply be obliterated by reason of plea of utter neglect on the part
of the two of the teachers: School concerned can be said to be
liable even as a joint tort-feasor and in any event, Mr. Malhotra
contended that applicability of the doctrine of vicarious liability
cannot be doubted or be brushed aside, in any way whatsoever and
since the issue of vicarious liability has been more emphatic and
pronounced than the issue of joint tort-feasor, we deem it
expedient to deal with the second of twin issues first as noticed
above.
Be it noted that the doctrine of vicarious liability has had a
fair amount of judicial attention in the English Courts. By the end
of 18th century, the idea began to grow up that some special
importance ought to be attached to the relationship of master and
servant and in 1849 it was officially held that existence of that
relationship was essential. Thereafter, though primary liability on
the part of anyone could be established on proof of direct
participation in the tort, such direct participation was not even
theoretically required to make a master liable for his servants
torts. The liability is derived from the relationship and is truly
vicarious. At the same time, the phrase implied authority which
had been the cornerstone of the masters primary liability gives
way gradually to the modern course of employment. (vide
Winfield & Jolowicz on Tort 15th Ed.).
In recent years, the tendency has been however, towards
more liberal protection of third party and so in establishing a
particular course of employment the court should not dissect the
employees basic task into component parts but should ask in a
general sense: What was the job at which he was engaged for his
employer? And it is on this perspective Lord Wilberforce in
Kooragang Investments Pty. Ltd. v. Richardson & Wrench Ltd.
(1982 A.C. 462) stated:
Negligence is a method of performing an act:
instead of it being done carefully, it is done
negligently. So liability for negligent acts in the
course of employment is clear. Cases of fraud
present at first sight more difficulty: for if
fraudulent acts are not directly forbidden, most
relationships would carry an implied prohibition
against them. If committed for the benefit of the
employer and while doing his business, principle
and logic demand that the employer should be
held liable, and for some time the law rested at
this point. The classic judgment of Willes J. in
Barwick v. English Joint Stock Bank (1867) L.R.
2 Ex.259, 266 stated the principle thus:
In all these cases it may be said.that the
master has not authorised the act. It is true, he
has not authorised the particular act but he has
put the agent in his place to do that class of acts
and he must be answerable for the manner in
which the agent has conducted himself in doing
the business which it was the act of his master
to place him in.
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That was a case where the wrong was committed
for the masters (viz., the banks) benefit, and
Willes J. stated this as an ingredient of liability at
p.265:
..the master is answerable for every such
wrong of the servant or agent as is committed
in the course of the service and for the masters
benefit, though no express command or privity
of the master be proved.
But a sharp distinction has been made as regards the group of
cases which is concerned with the use of motor vehicles. These
are the cases Lord Wilberforce observed:
(i) where a servant has, without authority,
permitted another person to drive the masters
vehicle; (ii) where a servant has, without
authority, invited another person on to the vehicle,
who suffers injury; (iii) where a servant has
embarked on an unauthorised detour, or, as
lawyers like to call it, a frolic of his own. These
cases have given rise to a number of fine
distinctions, the courts in some cases struggling to
find liability, in others to avoid it, which it is not
profitable here to examine. It remains true to say
that, whatever exceptions or qualifications may be
introduced, the underlying principle remains that a
servant, even while performing acts of the class
which he was authorised, or employed, to do, may
so clearly depart from the scope of his
employment that his master will not be liable for
his wrongful acts."
The English law, therefore, takes a softer attitude in
cases where motor vehicles are involved in the matter of foisting of
liability so far as the employer is concerned the reason obviously
being if the concerned employee acts in a manner contrary to the
course of employment and on a frolic of his own why should
the employer be made responsible: It seems logical but obviously
there are cases and cases on the basis wherefor the liability of the
employer ought to be fixed. The Privy Council in Kooragang Ltd.
attributed frolic of his own to be the exonerating factor but this
frolic has also to be considered from facts to facts in the matter of
foisting of liability on to the employer. In any event, we need not
devote much of our time to the excepted cases, since we have in
this country several legislations covering the excepted
categories. The recognition of broader approach however, stands
undisputed and has also our concurrence herewith.
Significantly, however, Mr. Malhotra with all the emphasis at
his command and rather strongly commented upon the submissions
of Mr. Bahuguna on the issue of award of compensation by reason
of specific legislations in the country in particular reference to
Motor Vehicles Act and on a conjoint reading of the 2nd Schedule
thereto, Mr. Malhotra contended that the quantum would be far in
excess of the amount awarded by the High Court submissions
seem to be rather attractive: Motor Vehicles Act and the 2nd
Schedule thereto cannot but be treated to be a guide in the matter
of award of compensation and there cannot possibly be any doubt
in regard thereto. We shall however be dealing with the issue
slightly later in this judgment.
Turning attention however on to the issue of vicarious
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liability, one redeeming feature ought to be noticed at this juncture
that to escort the children was the duty assigned to the two teachers
and till such time thus the period of escorting stands over, one
cannot but ascribe it to be in the course of employment the two
teachers were assigned to escort the students : the reason obviously
being the children should otherwise be safe and secure and it is
the act of utter negligence of the two teachers which has resulted in
this unfortunate tragedy and thus it is no gain-said that the teachers
were on their own frolic and the school had done all that was
possible to be done in the matter safety of the children obviously
were of prime concern so far as the school authorities are
concerned and till such time the children return to school, safe and
secure after the picnic, the course of employment, in our view
continues and thus resultantly, the liability of the school.
A profitable re-capitulation of facts depict that the criminal
court has already found both the teachers guilty of utter negligence
and convicted them under Section 304 A IPC (which provides that
whoever causes the death of any person by doing any rash or
negligence act not amounting to culpable homicide shall be
punished with) We are not inclined to record anything
contra, save what stands recorded by the District Court in the
criminal proceeding but we are constrained to record our anguish
over the conduct of the teachers escorting the students even a
simple rule of discipline and safety would have prompted the
teachers not only to go to the river where they went but no where
near the river ought to have been the guiding factor children are
children: fun and frolic stand ingrained in them and it is
School/Teachers deputed for escorting ought to be reasonably
careful since entrusted with the safety this entrustment ought to
have infused a sense of duty which should have prompted them to
act not in the manner as they have so acted.
In view of the above, we are unable to record our
concurrence with the submissions of Mr. Bahuguna that the
doctrine of vicarious liability cannot in any event be made
applicable in the facts of the matter under consideration. Liability
of the school, in our view, in the contextual facts cannot be shifted
for any reason whatsoever by reason of the factum of teachers
being within the course of employment of the school at the time of
the tragedy.
Next is the issue maintainability of the writ petition before
the High Court under Article 226 of the Constitution. The
appellant though initially very strongly contended that while the
negligence aspect has been dealt with under penal law already, the
claim for compensation cannot but be left to be adjudicated by the
Civil law and thus the Civil courts jurisdiction ought to have been
invoked rather than by way of a writ petition under Article 226 of
the Constitution. This plea of non-maintainability of the writ
petition though advanced at the initial stage of the submissions but
subsequently the same was not pressed and as such we need not
detain ourselves on that score, excepting however recording that
the law courts exists for the society and they have an obligation to
meet the social aspirations of citizens since law courts must also
respond to the needs of the people. In this context reference may
be made to two decisions of this court: The first in line, is the
decision in Nilabati Behera (Smt) alias Lalita Behera (Through the
Supreme Court Legal Aid Committee) v. State of Orissa and
Others (1993 (2) SCC 746) wherein this Court relying upon the
decision in Rudal Sah (Rudal Sah v. State of Bihar & Anr.: 1983
(4) SCC 141) decried the illegality and impropriety in awarding
compensation in a proceeding in which courts power under
Articles 32 and 226 of the Constitution stand invoked and thus
observed that it was a clear case for award of compensation to the
petition for custodial death of her son. It is undoubtedly true
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however that in the present context, there is no infringement of
States obligation unless of course the State can also be termed to
be a joint tort-feasor, but since the case of the parties stand
restricted and without imparting any liability on the State, we do
not deem it expedient to deal with the issue any further except
noting the two decisions of this Court as above and without
expression of any opinion in regard thereto.
The decision of this Court in D.K. Basu vs. State of West
Bengal [(1997) 1 SCC 416] comes next. This decision has opened
up a new vesta in the jurisprudence of the country. The old
doctrine of only relegating aggrieved to the remedies available in
civil law limits stands extended since Anand, J. (as His Lordship
then was) in no uncertain terms observed:
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. A court of law
cannot close its consciousness and aliveness to
stark realities. Mere punishment of the offender
cannot give much solace to the family of the
victim civil action for damages is a long drawn
and a cumbersome judicial process. Monetary
compensation for redressal by the court finding
the infringement of the indefeasible right to life of
the citizen is, therefore, useful and at time perhaps
the only effective remedy to apply balm to the
wounds of the family members of the deceased
victim, who may have been the breadwinner of
the family.
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 civil courts 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 its efficacy if it 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.
The only other issue, thus left outstanding in the matter under
consideration pertains to the quantum of compensation. It is at this
juncture that we record our appreciation for the gesture of Mr.
Bahuguna who at the very commencement of the hearing
submitted that while the figure of Rs. 5 lacs compensation per
child seem to be strangely absurd but he recommended a figure of
Rs. 2 lacs per child as monetary compensation for the events that
had taken place; compensation there cannot be any, far less
monetary compensation, for the unfortunate death of ones own
child it cannot be termed to be a solatium. Unfortunately the
situation in the facts of the matter does not warrant us to accept the
same as a result of which we wish to deal with the matter in
slightly more greater detail.
Mr. Bahuguna for the appellant with however strong
vehemence contended that the High Court has totally misread and
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misapplied the principles of law in the matter of awarding
compensation and in any event the quantum thereto has been fixed
at an absurdly higher figure. The anguish of the High Court,
Mr. Bahuguna contended, is understandable by reason of the
factual import in the matter but that does not however mean and
imply that a court of law would be guided by emotions and allow
the sentiments to play a pivotal role in the matter of assessment of
damages. It has been the contention of Mr. Bahuguna that there is
not an iota of evidence as to the pecuniary loss for pecuniary
benefit and as such the assessment of quantum has been totally
arbitrary and in utter disregard of the known principles of law.
As noticed hereinbefore six several judgments have been
cited wherein the quantum of compensation varies between
Rs. 30,000/- to Rs.1,50,000/- but in every decision there was a
factual basis for such an assessment and there is no denial of the
same. But the adaptability of the multiply method and its
acceptability without any exception cannot just be given a go by.
This Court in a long catena of cases and without mixing word did
apply the multiply method to decide the question of compensation
in the cases arising out of Motor Vehicles Act. It is in this context
the view of British Law Commission may be noticed and which
indicates the multiplier has been, remains and should continue to
remain, the ordinary, the best and the only method of assessing the
value of a number of future annual sums. The actuarial method of
calculation strictly speaking may not have lost its relevance but its
applicability cannot but be said to be extremely restricted said
the British Commission. Lord Dennings observations in Hodges
vs. Harland & Wolff Limited [(1965) 1 ALL ER 1086] also seem
to be rather apposite. Lord Denning observed that multiplier
method cannot but be termed to be of universal application and as
such it would meet the concept of justice in the event the same
method is applied for determining the quantum of compensation.
Incidentally in a very recent decision of this Court (Civil Writ
Petition No. 232 of 1991 in the matter of Lata Wadhwa and Others
vs. State of Bihar & Others [of which one of us (U.C.Banerjee, J.)
was a party] wherein a three-Judge Bench of this Court has had the
occasion to consider an award of a former Chief Justice pertaining
to the assessment of compensation by reason of a huge accidental
fire. Significantly a writ petition was filed in this Court and this
Court thought it expedient to have the claims examined by a
former Chief Justice of the country and the latter duly and upon
adaptation of multiplier method finalised the quantum of
compensation which more or less barring some exceptions stands
accepted by this Court in the decision noticed above. In Lata
Wadhwas decision factual score records that while 150th Birth
Anniversary of Sir Jamshedji Tata, was being celebrated on 3rd
March, 1989 within the factory premises at Jamshedpur and a large
number of employees, their families including small children had
been invited, a devastating fire suddenly engulfed the Pandal and
the area surrounding and by the time the fire was extinguished, a
number of persons lay dead and many were suffering with burn
injuries. The death toll reached 60 and the total number of persons
injured were 113. The factual score in Lata Wadhwas case further
depicts that amongst the persons dead, there were 26 children, 25
women and 9 men and Srimati Lata Wadhwa the petitioner in the
matter lost her two children, a boy and a girl as also her parents. It
is on this score that the learned arbitrator fixed in the absence of
any material a uniform amount of Rs. 50,000/- to which again a
conventional figure of Rs.25,000/- has been added for determining
the total amount of compensation payable. While dealing with the
matter this Court (Pattanaik, J. speaking for the Bench) observed:
So far as the determination of compensation in
death cases are concerned, apart from the three
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decisions of Andhra Pradesh High Court, which
had been mentioned in the order of this Court
dated 15th December, 1993, this Court in the case
of General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas
and Ors. (1994 (2) SCC 176), exhaustively dealt
with the question. It has been held in the
aforesaid case that for assessment of damages to
compensate the dependants, it has to take into
account many imponderables, as to the life
expectancy of the deceased and the dependants,
the amount that the deceased would have earned
during the remainder of his life, the amount that
he would have contributed to the dependants
during that period, the chances that the deceased
may not have lived or the dependants may not live
up to the estimated remaining period of their life
expectancy, the chances that the deceased might
have got better employment or income or might
have lost his employment or income altogether.
The Court further observed that the manner of
arriving at the damages is to ascertain the net
income of the deceased available for the support
of himself and his dependants, and to deduct
therefrom such part of his income as the deceased
was accustomed to spend upon himself, as
regards both self-maintenance and pleasure, and
to ascertain what part of his net income the
deceased was accustomed to spend for the benefit
of the dependants, and thereafter it should be
capitalised by multiplying it by a figure
representing the proper number of years
purchase. It was also stated that much of the
calculation necessarily remains in the realm of
hypothesis and in that region arithmetic is a good
servant but a bad master, since there are so often
many imponderables. In every case, it is the
overall picture that matters, and the Court must
try to assess as best as it can, the loss suffered.
On the acceptability of the multiplier method, the
Court observed:
The multiplier method is logically
sound and legally well-established method
of ensuring a just compensation which will
make for uniformity and certainty of the
awards. A departure from this method can
only be justified in rare and extraordinary
circumstances and very exceptional cases.
In the decision of Susamma Thomas (supra), this Court in
paragraphs 7 & 8 of the report observed:
7. In a fatal accident action, the accepted
measure of damages awarded to the dependants is
the pecuniary loss suffered by them as a result of
the death. How much has the widow and family
lost by the fathers death? The answer to this lies
in the oft-quoted passage from the opinion of
Lord Wright in Davies v. Powell Duffryn
Associated Collieries Ltd.[1942 AC 617] which
says:
The starting point is the amount of wages
which the deceased was earning, the
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ascertainment of which to some extent may
depend on the regularity of his employment.
Then there is an estimate of how much was
required or expended for his own personal
and living expenses. The balance will give a
datum or basic figure which will generally
be turned into a lump sum by taking a
certain number of years purchase. That
sum, however, has to be taxed down by
having due regard to uncertainties, for
instance, that the widow might have again
married and thus ceased to be dependent,
and other like matters of speculation and
doubt.
8. The measure of damage is the pecuniary loss
suffered and is likely to be suffered by each
dependent. Thus except where there is express
statutory direction to the contrary, the damages to
be awarded to a dependant of a deceased person
under the Fatal Accidents Acts must take into
account any pecuniary benefit accruing to that
dependant in consequence of the death of the
deceased. It is the net loss on balance which
constitutes the measure of damages. (Per Lord
Macmillan in Davies v. Powell) Lord Wright in
the same case said, The actual pecuniary loss of
each individual entitled to sue can only be
ascertained by balancing on the one hand the loss
to him of the future pecuniary benefit, and on the
other any pecuniary advantage which from
whatever source comes to him by reason of the
death. These words of Lord Wright were
adopted as the principle applicable also under the
Indian Act in Gobald Motor Service Ltd. v.
R..M.K. Veluswami [AIR 1962 SC 1] where the
Supreme Court stated that the general principle is
that the actual pecuniary loss can be ascertained
only by balancing on the one hand the loss to the
claimants of the future pecuniary benefit and on
the other any pecuniary advantage which from
whatever source comes to them by reason of the
death, that is, the balance of loss and gain to a
dependant by the death, must be ascertained.
Needless to say that the multiplier method stands accepted by
this Court in the decision last noticed and on the acceptability of
multiplier method this Court in para 16 had the following to state:
It is necessary to reiterate that the multiplier
method is logically sound and legally well-
established. There are some cases which have
proceeded to determine the compensation on the
basis of aggregating the entire future earnings for
over the period the life expectancy was lost,
deducted a percentage therefrom towards
uncertainties of future life and award the resulting
sum as compensation. This is clearly unscientific.
For instance, if the deceased was, say 25 years of
age at the time of death and the life expectancy is
70 years, this method would multiply the loss of
dependency for 45 years virtually adopting a
multiplier of 45 and even if one-third or one-
fourth is deducted therefrom towards the
uncertainties of future life and for immediate
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lump sum payment, the effective multiplier would
be between 30 and 34. This is wholly
impermissible. We are, aware that some decisions
of the High Courts and of this Court as well have
arrived at compensation on some such basis.
These decisions cannot be said to have laid down
a settled principle. They are merely instances of
particular awards in individual cases. The proper
method of computation is the multiplier method.
Any departure, except in exceptional and
extraordinary cases, would introduce
inconsistency of principle, lack of uniformity and
an element of unpredictability for the assessment
of compensation. Some judgments of the High
Courts have justified a departure from the
multiplier method on the ground that Section 110-
B of the Motor Vehicles Act, 1939 insofar as it
envisages the compensation to be just., the
statutory determination of a just compensation
would unshackle the exercise from any rigid
formula. It must be borne in mind that the
multiplier method is the accepted method of
ensuring a just compensation which will make
for uniformity and certainty of the awards. We
disapprove these decisions of the High Courts
which have taken a contrary view. We indicate
that the multiplier method is the appropriate
method, a departure from which can only be
justified in rare and extraordinary circumstances
and very exceptional cases.
In Lata Wadhwas case, however, this Court came to a
conclusion that upon acceptability of the multiplier method and
depending upon the facts situation namely the involvement of
TISCO in its tradition that every employee can get one of his child
employed in the company and having regard to multiplier 15 the
compensation was calculated at Rs. 3.60 lacs with an additional
sum of Rs.50,000/- as conventional figure making the total amount
payable at Rs.4.10 lacs for each of the claimants of the deceased
children.
The decision in Lata Wadhwa, thus, is definitely a guiding
factor in the matter of award of compensation wherein children
died under an unfortunate incident as noticed morefully
hereinbefore in this judgment.
Having considered the matter in its proper perspective and
the applicability of multiplier method and without even any further
material on record we do feel it expedient to note that though Mr.
Bahuguna attributed the quantum granted by the High Court as
strangely absurd, we, however, are not in a position to lend our
concurrence therewith. It is not that the award of compensation at
Rs. 5 lacs can be attributed to be the resultant effect of either
emotion or sentiments or the High Courts anguish over the
incident. The High Court obviously considered the overall
situation as regards social placements of the students. As stated
hereinafter the school presently is one of the affluent school in the
country and fee structure and other incidentals are so high that it
would be a well nigh impossibility to think of admission in the
school at even the upper middle class level. Obviously the school
caters to the need of upper strata of the society and if the 2nd
Schedule of Motor Vehicles Act, can be termed to be any guide,
the compensation could have been a much larger sum. Thus in the
factual situation award of compensation at Rs. 5 lakhs cannot by
any stretch be termed to be excessive. Another redeeming feature
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of Mr. Bahuguna submissions pertains to the theory of ability to
pay: Audited accounts have been produced for the year 1995
depicting a situation, though not of having stringency but the
situation truly cannot but be ascribed to be otherwise comfortable
to pay as directed by the High Court. The matter, however,
prolonged in the law courts in the usual manner and it took nearly
six years for its final disposal before this Court these six years
however had rendered the financial stability of the school
concerned in a much more stronger situation than what it was in
the year 1995. The school as of date stands out to be one of the
most affluent schools in the country as such ability to pay cannot
be termed to be an issue in the matter and on the wake thereto we
are not inclined to deal with the same in any further detail.
In the view we have taken as above, we could have awarded
a larger sum but judicial propriety deters us from doing so, since
in the normal course of events appellate forum ought not to
interfere with the award of compensation.
In the view, we have taken as noted hereinbefore, we do not
feel it inclined to deal with the other issue of the school authority
being a joint-tort feasor as submitted before this Court by the
respondents. The issue thus is left open.
As regards the question of interest as contended by Mr.
Malhotra, we feel it inclined to grant 6% simple interest from the
date of the judgment of the High Court till payment on the
reducing balance. The amount so directed by the High Court
together with interest as modified above be paid by eight (8)
quarterly installments.
The amount deposited in terms of earlier order of this Court
inclusive of interest with the Registrar of this Court be made
available to the parties pro-rata in terms of this order and the
balance, however, be paid as directed above.
This appeal thus stands disposed of without any order as to
costs.
.J.
(A.P. Misra)
.J.
(Umesh C. Banerjee)
August 24, 2001