The petitioners in all these four writ petitions are unfortunate fathers
of their respective minor children who were crushed to death while playing near
the 5th respondent school gate on 29.04.2005 and in the case of minor Gopinath
on 1.05.2005.
2. The W.P.8285 of 2005, the petitioner's minor son Ganapathy
@Chinnapar was eight years old at the time of the accident and he was studying IV
std in the fifth respondent school. In W.P.8369 of 2005, the petitioner's minor
son was Mariappan, who was also eight years old and was studying in the third
respondent school. In W.P.8644 of 2005, the petitioner's son was minor
Karupasamy and he was seven years old and was studying III standard in the fifth
respondent school. In W.P.10476 of 2005, the petitioner's son was Gopinath and
he was six years old and studying I Standard in the fifth respondent school.
3. The fifth respondent school is an elementary school at Seithur and
it is an aided private school. In sofar as the salaries of teachers are
concerned, cent percent grant is given by the State Government. They are also
getting some maintenance grant from the Government. The School is also governed
by the provisions of Tamil Nadu Recognised Private Schools (Regulation) Act
1973. By virtue of the provisions, the school committee headed by the 6th and
7th respondents has got complete control over the school and its properties.
4. It is alleged by the petitioners that a compound wall is constructed
in front of the school along with a an iron grill gate. It is stated that six
months before before the accident, a lorry which came with building materials to
the school hit against the wall. From that time onwards, the compound wall was
in a dilapidated shape and ready to collapse at any time. The school
management, (sixth and seventh respondents) never took any steps to carry on
repairs to the damaged wall.
5. On 29.04.2005, when the children were playing near the wall, the
compound wall collapsed and some children were caught under its weight. While
five children died, some other children got grievous injuries. In the case of
minor Gopinath, after he was hospitalised, he died on 1.05.2005. This news was
widely covered in all the newspapers and a criminal case was registered against
the respondents 5 to 7 by the Sethur police station in Crime No.97 of 2005 under
Section 304 A IPC. The post-mortem conducted on the five children (only four
parents are before this Court) clearly showed the nature of injuries was due to
crushing by the broken wall along with the gate.
6. Each of the parents in these writ petitions sent representations to
all the governmental authorities and sought for compensation for the death of
their children due to the negligent act of the School Management. In W.P.8644
of 2005, the minor Karuppasamy was the only male hair for his parents. In
W.P.10746 of 2004, Minor Gopinath was the only son for his parents. It was also
stated that his mother had undergone family planning operation and therefore,
there was no possibility of any child for them in the future.
7. Even after representations were sent by the petitioners to the
various governmental authorities, proper relief was not given due to the death
of the children of the petitioners. In view of the news published by the press,
an ex gratia payment of Rs.50,000/- was paid to the parents by the Government.
8. It was stated in the affidavit filed in support of the writ
petitions that after the fire accident in a Kumbakonam School in which more than
100 children were charred to death, the State Government had appointed Justice
Sampath Commission of Inquiry. Justice Sampath Commission after an elaborate
enquiry submitted a report to the State Government and its recommendations was
also accepted by the Government. One of the recommendation related to the
safety aspect of school children, which were required to be monitored by the
school authorities.
9. These writ petitions were admitted on various dates and notice was
issued to the various respondents. Pursuant to the notice, counter affidavits
dated 21.12.2005 was filed by the Chief Educational Officer, Virdhunagar (4th
respondent herein).
10. In the counter affidavit, it is stated that on 29.05.2005 about 20
students after climbing onto the Iron Grill gate and were swinging it back and
forth. It was stated that unable to bear their weight, the gate fell down on
the students who were clinging onto the gate and crushed them. It is rather
ironical that the Chief Educational Officer has described the incident as an
"Act of God" and not due to any negligence or carelessness on the part of the
management or teachers. It is stated that the ex gratia payment made by the
Government for a sum or Rs.50,000/- was accepted by the parents and damages can
be claimed only by filing appropriate Civil suit.
11. Thereafter, going by the stand of the management, the Chief
Educational Officer, relied upon the Stability Certificate produced by the
school for the period 01.08.2004 to 31.07.2007. It is also stated that the
Tahsildar, Rajapalayam has given the building licence from 07.01.2005 to
08.01.2008. By stating it was an "Act of God", the Chief Educational Officer
has concluded giving a clean chit to the respondents and stated that they are
not liable to pay any damages to the petitioners.
12. Similarly, the 7th respondent had also filed counter affidavit dated
nil (January, 2006). In that counter affidavit, the school management stated
that the school is not an instrumentality of the State and hence no writ
petition will lie. The accident did not take place during the school hours. In
fact, on the last working day after 3.20 p.m., the accident had taken place. It
was admitted that the Head Master was not in the school and had gone away to the
town to collect the salaries of the Teachers and Staff. It was also admitted
that there were no teachers or staff near the gate. While the Chief Educational
Officer mentioned about 20 boys clinging onto the gate, the School Secretary has
given the number as 15 boys. It was only because they were playing with the
gate, the gate fell down along with the pillars on the children. They also
relied upon the certificate regarding Stability and Building licence as well as
Health and Fire Report to state that there was no deficiency in the building. It
was also stated that the F.I.R. filed by the police is a false case. The
incident that took place cannot be compared with the Kumbakonam incident.
13. A typed set of papers was also filed to show that the building
licence obtained by the school as well as the Fire Certificate. But, however it
is seen from the statement in Form B signed by the Structural Engineer,
Rajapalayam dated 16.08.2004 shows that the building was constructed in 1987 and
it is 17 years old. In the statement to accompany the opinion regarding the
structural soundness dated 16.09.2004, shows that certificate was given only for
'School building-class rooms'. There is no mention about either the compound
wall or the gate.
14. The Supreme Court in Municipal Corporation of Delhi Vs. K.Subhagwanti
others reported in AIR 1966 Supreme Court 1750 dealt with the case of potential
danger of structures near the Highways and the legal responsibility of the
owner. The following passage found in para:5 of the judgment is usefully
extracted below:-
5.... The legal position is that there is a special obligation on the
owner of adjoining premises for the safety of the structures which he keeps
besides highway. If these structures fall into disrepair so as to be of
potential danger to the passers-by or to be a nuisance, the owner is liable to
anyone using the highway who is injured by reason of the disrepair. In such a
case it is no defence for the owner to prove that he neither knew nor ought to
have known of the danger. In other words, the owner is legally responsible
irrespective of whether the damage is caused by a patent or a latent defect.
15. Even in the counter affidavits filed by the Chief Educational
Officer and the School Management, there is no specific denial with reference to
para 8 of the affidavit filed by the petitioners. A specific allegation has
been made that the compound wall was hit by a lorry and the compound wall caved
in six months before the incident and that it was never repaired by the
management.
16. Though the management merely stated that the story of the accident
was not a correct statement, nothing about the stability of the compound wall
and the two pillars supporting the gate on the date of the accident was
mentioned. It must be stated that the School Management did not mention about
the "Act of God" being the reason for the said incident. It only shows the
close nexus between the education department authorities and the school
management and the over loyalty of the Officers of the Management.
17. The learned counsel for the School Management relied upon the
following two judgments of the Supreme Court.
(a) Chairman, Grid Corporation of Orissa Ltd (GRIDCO) and others Vs.
Sukamani Das (Smt) and another reported in 1999 (7) SCC 298.
(b) S.D.O.Grid Corporation of Orissa Ltd and others Vs. Timudu Oram
reported in 2005 (5) CTC 695.
18. In both the cases, it was held that in cases of disputed facts the
remedy under Article 226 cannot be availed. In fact, in Timudu Oram case (cited
supra), there was also an inordinate delay in approaching the High Court. In
both the cases, the Supreme Court did not deal with the cases of minor children
and an irresponsible school management.
19. However, Mr. Jessi Jeeva Priya Learned counsel for the School
Management contended that the school has no funds for making any compensation.
The accident had taken place after school hours. But in the counter affidavit,
it has been fairly admitted that the Head Master of the School was not present
at that time, as he had gone to the treasury for collecting the salaries to the
teachers and staff. Further, no materials have been produced regarding the
safety and stability of the grill gates put up by the management. Even for an
argument sake, that 15 children, within the age group of 6 to 8 years, were
found clinging onto the gate, their total weight may not exceed beyond 450
Kilos. Therefore, it is unthinkable that the gates can get collapsed unable to
bear the weight of the tender children.
20. In any event, when the children of tender age are sent to a State
supported School, it is the responsibility of the School and the State to take
care of the safety of the children. No negligence can be attributed to the
children of tender age. Further, it is for the School Management to prevent the
children from playing near the gate, as the children may not know the inherent
danger. All these had taken place since the school does not have a good play
area as admitted by the counsel for the School.
21. Regarding the safety of children and liability of the school
authorities in case of any accident the Supreme Court dealt with such an issue
in M.S.Grewal and another Vs. Deep chand Sood and others reported in AIR 2001
Supreme Court 3660. The following passages found in para 16 and 23 may be
usefully extracted below:-
"16...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. ....
23.. 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."
22. Per Contra, Mr.M.Jothibasu, learned counsel for the petitioners
relied on the following judgments in support of his case:-
(i)S.Paramasivam Achari Vs. The Head Master Govt.High School, Amur, Musiri
Taluk, Trichy District and others reported in 1999 Writ L.R.525.
(ii)C.Chinnathambi and others V. The state of Tamil Nadu rep.by its Secretary to
Government Education, Science and Technology Department, Fort St.George Madras -
600 009 and others reported in 2001 Writ L.R.174.
(iii)D.Masta Gandhi V. Tamil Nadu Slum Clearance Board rep.by its Chairman,
Madras reported in (2000) 2 M.L.J.830.
23. S.Paramasivam Achari's case, (cited supra) the petitioner son had
gone to the urinal attached to the school within the campus. The boy died due to
the sudden collapse of the wall. It was held that the accident could have been
averted, if the school had taken proper care. Therefore, a compensation of
Rupees Two Lakhs was directed to be paid by the Government.
24. C.Chinnathambi's case, (cited supra) a water tank constructed by the
School during 1983-1984, due to faulty construction collapsed on 12.10.1992. In
that accident two school children were died. Because of the lack of care by the
School management, the School was directed to pay compensation. In that case,
V.S.SIRPURKAR.J. (as he then was) in para nos 5 and 6, observed as follows:-
"5.Right of life enunciated in Article 21 has time and again been
recognised by the Supreme Court and in its various ramifications. This was a
case where the two innocent children had gone to the school and the accident
actually took place during school hours. Even if it is considered that the said
tank was constructed by the Parent Teachers Association it was undoubtedly the
responsibility of the School authorities to see that the tank was properly
constructed and erected and that it should not have been hazardous to the lives
of the children. There can be no dispute that in this case school authorities
have not been careful enough to see that the construction was proper and in
keeping with the rules. It beats one's understanding as to how a tank which was
constructed early in 1983-84 would collapse all of a sudden within eight years
of its construction. i.e.12.10.1992. The things do speak for themselves. There
can be least doubt that the school authorities were not vigilant in their duties
and that this being the Government School the Government would have a liability.
There is no dispute that two young lives have perished predominantly because of
the lack of care on the part of the school authorities. In my opinion
compensation of of Rs.5,000/- by way of ex gratia payment would be a cruel joke.
The petitioners have claimed the compensation of Rs.1,50,000/- each in their
writ petitions.
6.Considering the age of the children, the social background that they
come from the fact that these children were bona fide students and could have
had a bright future, the compensation of Rs.1,50,000/- shall be on the lower
side. I, therefore, allow both the writ petitions and direct the Government to
make a payment of Rs.1,50,000/- to each of the petitioners within two months
from today. If the payment is not so made, it shall carry interest at the rate
of 12% p.a. till the actual payment is made.'
25. In D.Masta Gandhi's case (cited supra) P.Sathasivam,J. (as he then
was) ordered compensation against the Tamil Nadu Slum Clearance Board for
keeping the floors slippery and due to that a minor girl slipped down and died.
26. With reference to the contention that such compensation cannot be
ordered even in cases of negligence (either constructive or otherwise) by the
State or Public authorities, it is necessary to refer to the judgment of the
Supreme Court in Lucknow Development Authority Vs. N.K.Gupta reported in 1994
(1) SCC 243, and extract the following passage found in the judgment:-
"State is liable to compensate for loss or injury suffered by a citizen due to
arbitrary actions of its employees. Public authorities who are entrusted with
statutory function cannot act negligently. No functionary in exercise of
statutory power can claim immunity, except to the extent protected by the
statute itself. Public authorities acting in violation of constitutional or
statutory provision oppressively are accountable for their behaviour before
authorities created under the statute like the commission or the Courts
entrusted with responsibility of maintaining the rule of law. The authority
empowered to function under the statute with exercising power discharges public
duty. It has to act subserve general welfare and common good. In discharging
this duty honestly and bona fide, loss may accrue to any person. But where it
is found that exercise of discretion was mala fide and the complainant is
entitled to compensation for mental and physical harassment then the officer
cannot more claim to be under protective cover. In modern society no authority
can arrogate to itself the power to act in a manner which is arbitrary. When a
citizen seeks to recover compensation from a public authority in respect of
injuries suffered by him for capricious exercise of power then it has a
statutory obligation to award the same if proved.
The jurisdiction and power of the courts to indemnify a citizen for injury
suffered due to abuse of power by public authority is founded on the principle
that an award of exemplary damage can serve a useful purpose in indicating the
strength of law. A public functionary if he acts maliciously or oppressively
and the exercise of power results in harassment and agony then it is not an
exercise of power but its abuse. No law provides protection against it. He is
responsible for it; must suffer for it; compensation or damages may arise even
when the officer discharges his duty honestly and bona fide. But when it arises
due to arbitrary or capricious behaviour then its looses its individual
character and assumes social significance. Award of compensation for harassment
by public authorities not only compensates the individual, satisfies him
personally but helps in curing social evil."
27. The Supreme Court vide its decision reported in Nath Bros.Exaim
International Ltd V. Best Roadways Ltd. reported (2000) 4 S.C.C.553 no doubt,
has not accepted the action of the High Court in granting compensation to the
family of the victim who died by electrocution in a writ petition filed under
Art.226. It is equally true that when disputed questions of fact arises and if
there is clear denial of Tort liability, remedy under Art.226 of the
Constitution may not be proper. However, in the very same judgment, the Supreme
Court, in paragraph 10 had observed as follows:
....However, it cannot be understood as laying a law that in every case of
tortious liability recourse must be had to a suit. When there is negligence on
the fact of its and infringement of Art.21 is there it cannot be said that there
will be any bar to proceed under Art.226 of the Constitution.
28. Therefore, the liability of the management to compensate the parents
of the unfortunate child victims is a certainty. But the State also cannot
wriggle out its responsibility in compensating the parents. Under Article 21-A
of the Constitution, the State is bound to provide free and compulsory
education for every child upto the age of 14 years. In the present case, the
State is fulfilling its obligations by running Government Schools as well as
providing grant-in-aid to private schools. When such schools impart education,
they also participate in fulfilling its constitutional obligations imposed on
the State. Law on the subject is well settled right from Mohini Jain's case,
Unni Krishnan's case as confirmed by T.M.A.Pai's Foundation's case. Further, in
this State there is also the Tamil Nadu Compulsory Education Act, while will
punish parents if they do not send their children to Schools.
29. In the light of the above factual matrix and the legal precedents,
can this Court deny compensation to the unfortunate parents of the four children
whose lives were snatched away in their prime youth? Lights they would have lit
up in their homes was blown out by their premature deaths. This Court cannot
disappoint the parents (petitioners) by telling them the cause of the death of
their children was an "Act of God" as irresponsibly suggested by the Chief
Educational Officer, Virudhunagar.
30. Will a responsible Government Officer ever tell the parents to face
the death of their children in a light hearted fashion and describe the 'Beauty
of Death' as told by Kahlil Gibran, in a famous poem, which goes like this:-
"Leave me then, friends-leave me and depart on
mute feet,
As the silence walks in the deserted valley;
Leave me to God and disperse yourselves slowly,
as the almond
And apple blossoms disperse under the vibration
of Nisan's breeze.
Go back to the joy of your dwellings and you will
find there
That which Death cannot remove from you and
me.
Leave with place, for what you see here is far away
in meaning
From the earthly world. Leave me.'
31. Therefore, in the above circumstances, the writ petitions are liable
to succeed and the parents are entitled for compensation as sought for by them.
Accordingly, the first and second respondents are directed to pay to each of
the petitioners a sum of Rupees one Lakh as compensation. This will be in
addition to the ex-gratia amount already paid by the State Government. The sixth
and seventh respondents being the 'Educational Agency' of the Sri Rama
Elementary School, Seihur are directed to pay Rs.50,000/- to each of the
petitioners. This exercise shall be carried out by the respective respondents
within a period of four weeks from the date of receipt of a copy of this order.
However, the parties are allowed to bear their own costs. These writ petitions
are ordered accordingly.
ssm
To
1.The Secretary to Government,
The State of Tamil Nadu,
Education, Science and Technology Department,
Fort St.George,
Chennai-600 009.
2.The Director of School Education,
Madras- 600 006.
3.The District Collector,
Virudhunagar.
4.The Chief Educational Officer,
Virudhunagar.
5.The Head Master,
Sri Rama Elementary School,
Seithur,
Rajapalayam Taluk,
Virudhunagar District.
6.The President,
Executive Committee,
Sri Rama Elementary School,
Seihur,
Rajapalayam Taluk,
Virudhunagar District.
7.The Secretary,
Executive Committee,
Sri Rama Elementary School,
Seihur,
Rajapalayam Taluk,
Virudhunagar District.