Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the first respondent to pay a just and reasonable amount as compensation to the bereaved family of Mr. Canicius Fernando, a Sri Lankan who was shot dead by the outside Security Warder II T. Devaraj, No. 126 of Madurai Central Prison on 5.10.2007 in front of the Central Prison Madurai at 3.15 P.M, in the light of the decision in Chairman, Railway Board v. Chandrima Das {2000 (2) SCC 465}, directing the respondents to take stern action against the Warder II T. Devaraj, No. 126 for the heinous crime he has committed against Mr. Canicius Fernando and directing the respondents to prosecute him in accordance with law and directing the respondents to take serious steps to inculcate in the Prison Staff and other prison officials the culture of human values and the sense of human rights and to eradicate anti-social, corruptive practices prevalent in the prisons all other Tamil Nadu.

:ORDER

V. RAMASUBRAMANIAN, J.

This writ petition has been filed for payment of compensation to the bereaved family of one Mr. Canicius Fernando, a Sri Lankan National, who was shot dead, without any provocation, by the Security Warder of the Madurai Central Prison on 5.10.2007

2. We have heard Mr. P. Rathinam, learned counsel appearing for the petitioner and Mr. S. Ramasamy, learned Additional Advocate General, appearing for the respondents.

3. The petitioner is an Advocate practising in various Courts in Madurai. He has filed this writ petition under an authority from the wife of the deceased person, though he has also claimed to have filed it pro bano publico.

4. One Mr. Canicius Fernando, an Office Bearer of the Sri Lankan Fishermen Association and a Sri Lankan National, visited the Central Prison Madurai on 5.10.2007, purportedly for interviewing a prisoner incarcerated therein. On the ground that when confronted, the said Mr. Canicius Fernando could not give a proper reply and that his bona fides were suspicious, the Grade II Warder by name T. Devaraj opened fire on him. The said Canicius Fernando was injured and was declared dead when taken to the hospital.

5. Upon coming to know of the said incident, an Advocate by name Mr. A.P Suryaprakasam, claiming to be the Convenor of the Association of Lawyers against Corruption and Oppression, filed a writ petition in W.P No. 32743 of 2007, on the file of the Principal Bench of this Court. The prayer in the said writ petition was for a direction to the Central Bureau of Investigation to nominate a suitable official to investigate the death of the said person as per law and to pass such further orders as deemed fit. When the writ petition came up for hearing before the First Bench (Principal Bench), it was brought to the notice of the Bench that the Warder had already been placed under suspension and a Magisterial enquiry had been ordered. Therefore, the Bench (to which one of us, V. Ramasubramanian, J., was a party) dismissed the writ petition by an order dated 23.10.2007 The operative portion of the order reads as follows:-

“In view of the fact that the Magisterial enquiry has already been ordered and in the meantime, the Warden has been placed under suspension, no interference is warranted at this stage. Petition stands dismissed”

6. Subsequently, the petitioner herein filed a writ petition in W.P (MD) No. 3228 of 2008, praying for the following reliefs:-

“(a) directing the first respondent to pay appropriate compensation to the bereaved family of Mr. Canicius Fernando, a Sri Lankan, who was shot dead by the outside Security Warder-II T. Devaraj, No. 126 of Madurai Central Prison on 5.10.2007 in front of the Central Prison, Madurai, at 3.15 p.m;

(b) directing the respondents to take stern action against the Warder-II T. Devaraj, No. 126 for the heinous crime he has committed against Mr. Canicius Fernando and directing the respondents to prosecute him in accordance with law; and

(c) directing the respondents to take serious steps to inculcate in the Prison Staff and other prison officials the culture of Human values and the sense of Human Rights and to eradicate anti-social, corruptive practices prevalent in the prisons all over Tamilnadu.”

7. The said writ petition was dismissed by another Division Bench at Madurai, on 4.4.2008, upon a finding among other things that the petitioner did not have the authority to file the writ petition, from the wife of the deceased. Therefore after getting an authorisation from the wife of the deceased, the petitioner has come up with the present writ petition, seeking similar reliefs as sought for in the previous writ petition W.P(MD) No. 3228 of 2008.

8. The writ petition is opposed by the respondents primarily on two grounds viz., (i) that after the dismissal of W.P No. 3228 of 2008, at the instance of the very same petitioner, a second writ petition is barred by res judicata and (ii) that since the Government had already sanctioned criminal prosecution and departmental action against T. Devaraj, Grade II Warder and also initiated departmental action against other Officers, apart from paying an ex-gratia of Rs. 1 lakh to the wife of the deceased, the relief sought for in the writ petition cannot be granted.

9. In the light of the objections raised by the respondents with regard to the very maintainability of the writ petition, let us first take up the same for decision, before we venture into the merits.

Issue No. 1 - Maintainability:

10. Admittedly, the earliest writ petition was filed by an Advocate by name A.P Suryaprakasam in W.P No. 32743 of 2007. The prayer of the petitioner in W.P No. 32743 of 2007, was actually for the issue of -

“Writ of Mandamus, directing the fourth respondent to nominate a suitable official subordinate to him to investigate the death of Mr. WARNAKULASOORIYA CANICIUS FERNANDO a Sri Lankan National who was shot to death in the Central Prison outer gate at Madurai on 5.10.2007, as per law”

Since the prayer in the main writ petition W.P No. 32743 of 2007 was for an enquiry by the CBI and also since that writ petition was not filed on behalf of the heirs of the victim, the dismissal of the same on 23.10.2007 by the Principal Bench, would not operate as res judicata. This is why, the plea of res judicata is actually raised by the respondents, not with reference to the writ petition W.P No. 32743 of 2007 filed by A.P Suryaprakasam, but only with reference to the earlier writ petition W.P(MD) No. 3228 of 2008 filed by the petitioner herein.

11. Even before the dismissal of W.P No. 32743 of 2007 on 23.10.2007, the Government passed an order in G.O.Rt No. 223, Animal Husbandry, Dairying and Fisheries Department, dated 10.10.2007, sanctioning an ex-gratia of Rs. 1 lakh under the Chief Minister's Public Relief Fund to the family of the deceased fisherman. The District Collector, Madurai was directed by the said Government Order to send the cheque to the Indian High Commission in Colombo, for disbursement to the family of the victim. The said order was complied with and the High Commission of India, Colombo sent a report to the Ministry of External Affairs, on 10.1.2008, informing them that a cheque for Sri Lankan Rs. 2,86,400/- (equivalent to Indian Rupees One Lakh only) had been handed over to the wife of the victim at the premises of the High Commission itself. The said report sent by the High Commission of India, Colombo by fax on 10.1.2008, was accompanied by a receipt issued by the wife of the deceased dated 1.11.2007 and a letter of the same date, addressed to the High Commissioner. The contents of the said letter of the victim's wife, are of importance, to decide this issue of res judicata and hence it is reproduced as follows:-

“Your Excellency,

I would like to extend my gratitude to the Government of India in

handing over the ex-gratia payment of Indian Rs. 100,000/-.

While thanking you for the kind gesture, I would like to humbly state that I am accepting the payment without prejudice to the rights I have in taking future legal action with regard to the death of my late husband, Mr. Canicious Fernando.

Sincerely,

(Sd.)

Mrs. Nirmala Pinto”

It is relevant to note here that the copy of the above letter is filed as a document not by the petitioner but by the respondents themselves. Therefore, there cannot be any dispute about its validity or authenticity, as it was forwarded by the High Commission to the Ministry.

12. After the Magisterial enquiry under Police Standing Order 150(3) was concluded, the Revenue Divisional Officer submitted his report along with his recommendations to the District Collector. The District Collector, Madurai agreed with the findings of the Revenue Divisional Officer and sent a report to the Government on 6.2.2008, to the effect that Thiru T. Devaraj was prima facie guilty for the death of the aforesaid person and that the other 4 Jail Officials were responsible for the irregularities and administrative lapses.

13. After the Collector forwarded his report dated 6.2.2008, the petitioner herein filed the writ petition W.P(MD) No. 3228 of 2008, seeking the reliefs extracted in para 6 above. But the Division Bench dismissed the writ petition in limine, primarily on the ground that the Government had already sanctioned an Ex-gratia of Rs. 1 lakh to the widow of the deceased and that when she had not questioned the same, it was not open to the petitioner to agitate the issue as a public interest litigation. Though the petitioner claimed that he was authorised by the widow of the deceased, to file the writ petition seeking compensation, the Bench rejected the same on the ground that the authorisation was confined to the limited purpose of obtaining a copy of the final report of the Sub Divisional Magistrate and that no authorisation was given to the petitioner seeking enhancement of compensation.

14. A careful perusal of the order of the Bench dated 4.4.2008, dismissing the writ petition shows that primarily the Bench was inclined to dismiss the writ petition for want of appropriate authorisation to seek the relief prayed for in the writ petition and on the ground of locus standi. It is in such circumstances, that we have to see whether the present writ petition is barred by principles analogous to res judicata, in view of the dismissal of the previous writ petition.

15. In Daryao v. State of UP {AIR 1961 SC 1457}, the Constitution Bench of the Supreme Court pointed out that though the rule of res judicata, as indicated in Section 11 of the Code of Civil Procedure, has some technical aspects, such as the aspect of constructive res judicata, the basis on which the rule rests, is founded on considerations of public policy. Two principles viz., (i) that finality should attach to binding decisions of Courts and (ii) that individuals should not be vexed twice over the same kind of litigation, were held to form the foundation of the general rule of res judicata. Therefore, the Supreme Court pointed out that the rule of res judicata cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions under Article 32. Quoting from Corpus Juris, the Supreme Court pointed out that “res judicata is a rule of universal law pervading every well regulated system of juris prudence and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to the litigation - interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause - nemo debet bis vexari pro eadem causa”.

16. However, in paragraph 23 of its decision, the Supreme Court also pointed out that if the High Court refused to exercise its discretion to issue a writ, on the ground of laches or on the ground that the party has an efficacious alternative remedy, the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. The Court also pointed out in para 26 that when a writ petition is dismissed in limine, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits, it would be a bar. Otherwise, it would not be. If the order of dismissal in limine, is without a speaking order, then such order cannot be treated as creating a bar of res judicata.

17. Following the said decision in Daryao, another Constitution Bench pointed out in Amalgamated Coalfields Ltd v. Janapada Sabha {AIR 1964 SC 1013}, that constructive res judicata, which is a special and artificial form of res judicata enacted by Section 11 of the Code of Civil Procedure, should not generally be applied to writ petitions filed under Article 32 or 226. However, the said decision was distinguished by another Constitution Bench in Devilal Modi v. Sales Tax Officer, Ratlam {AIR 1965 SC 1150}, wherein the Court pointed out that if constructive res judicata is not applied, a party can file as many writ petitions as he likes and take one or two points at every time and that to permit the same, would be opposed to considerations of public policy on which res judicata is based.

18. Again in Virudhunagar Steel Rolling Mills Ltd v. Government of Madras {AIR 1968 SC 1196}, another Constitution Bench explained the ratio in Daryao, by holding that even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order. Consequently, the Court held that where a writ petition was dismissed without notice to the other side, but by a speaking order, that would still amount to res judicata. Explaining the ratio in Daryao, the Court pointed out in para 6 that once a writ petition is decided on merits by a speaking order, it is immaterial whether notice was issued to the other side or not before such a decision was given and that the bar arises not because of the issue of the notice, but because of the disposal of the petition on merits by a speaking order.

19. In Hoshnak Singh v. Union of India {1979 (3) SCC 135}, the Supreme Court traced the law laid down in Daryao, which was later explained in Virudhunagar Steel Rolling Mills and subsequently followed in Tilokchand Motichand v. H.B Munshi {1969 (1) SCC 110} and P.D Sharma v. State Bank Of India {AIR 1968 SC 985} and held that when a subsequent writ petition is filed against an order passed in a petition availing the alternative remedy, the bar of res judicata would not apply. In paragraph 10, the Court pointed out that the second writ petition cannot be dismissed simply on the ground that the challenge to the order of the revisional authority, cannot be treated as a challenge to the original order, so as to reject the writ petition on the ground of res judicata.

20. In Workmen v. Board of Trustees of the Cochin Port Trust {1978 (3) SCC 119}, the Supreme Court held that the principle of res judicata also comes into play when a decision on a particular issue is implicit in a judgment, since in such cases it must be deemed to have been necessarily decided by implication. Dealing with this aspect, it was further held as follows:-

“But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Article 32 or Article 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking one-word order ‘dismissed’, another writ petition would not be maintainable because even the one-word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different from a writ petition dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter; then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.”

21. Adverting to the decision in Workmen of Cochin Port Trust, the Supreme Court pointed out in Ahmedabad Manufacturing & Calico Printing Co. Ltd v. Workmen {1981 (2) SCC 663}, that if a non-speaking order of dismissal cannot operate as res judicata, an order permitting the withdrawal of the special leave petition for the same reason cannot so operate.

22. In Gulam Abbas v. State of UP {1982 (1) SCC 71}, a writ petition under Article 32 was filed before the Apex Court, by the petitioners, in a representative capacity on behalf of the Shia Community of Mohalla Doshipura Varnasi, complaining about the members of the Sunni Community, for alleged infringement of their fundamental rights in the matter of performance of certain religious rites and practices. When the bar of res judicata was raised, on the basis of the dismissal of a previous civil appeal, a previous review petition and a previous withdrawal of a special leave petition, the Supreme Court pointed out in para 34 as follows:-

“We would like to point out that the present litigation has been fought in a representative character both as regards the petitioners who are representing the Shia Community and as regards the respondents 5 and 6 who are representing the Sunni Community whereas the earlier Writ Petitions Nos. 2397 of 1973 (out of which arose Civil Appeal No. 941 of 1976) and 3906 of 1978 (out of which arose Special Leave Petition No. 6226 of 1978) were filed in the Allahabad High Court by the then petitioners in their individual capacity and as such these earlier litigations which were fought right up to this Court cannot be regarded as between the same parties who are before us; further, where it was felt by this Court that proper adjudication would not be possible without impleading the two Boards (Shia Central Wakfs Board and Sunni Central Wakfs Board) notices were issued to them and they were also impleaded as parties to the petition who have filed their respective affidavits in the matter and have been heard through respective counsel. Secondly, the earlier decision of this Court in Civil Appeal No. 941 of 1976 did not record any decision on the rights of the parties on merits but the Court took the view that the parties should be relegated to a civil suit on the assumption that the petitioners before the Allahabad High Court (in W.P No. 2397 of 1973) had raised disputed questions of title and the Allahabad High Court had decided them for the first time in the writ petition; irrespective of whether the assumption made by this Court was right or wrong, the fact remains that there was no adjudication or decision on the petitioners' rights on merits as a result of the final order passed by this Court in the appeal, which was confirmed in the review petition; all that could be said to have been decided by this Court in Civil Appeal No. 941 of 1976 and Review Petition No. 36 of 1977 was that parties should get their rights adjudicated in a civil suit. For these reasons it is obvious that neither res judicata nor principle analogous to res judicata would bar the present writ petition.”

23. In B. Prabhakar Rao v. State of AP {1985 Supp. SCC 432}, the Supreme Court said in simple terms that the dismissal in limine of a writ petition can possibly inhibit the discretion of the Court, but not its jurisdiction.

24. In Forward Construction Co. v. Prabhat Mandal {1986 (1) SCC 100}, a three member Bench of the Supreme Court held that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. It was further held therein that in view of the principle underlying Explanation IV to section 11 CPC, where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. Where a matter has been constructively in issue, it cannot be said to have been actually heard and decided. But it could be deemed to have been heard and decided.

25. In G.K Dudani v. S.D Sharma {1986 Supp. SCC 239}, a three member Bench of the Supreme Court pointed out that by reason of the Explanation inserted under Section 141 of CPC, by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code would not in terms apply to any proceeding under Article 226. But nevertheless the Court held that the principle of res judicata would certainly apply to writ petitions.

26. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra {1990 (2) SCC 715}, the Constitution Bench of the Supreme Court reiterated the principles laid down in Daryao and also the principles of constructive res judicata invoked in Forward Construction Co.

27. In UP State Road Transport Corporation v. State of UP {2005 (1) SCC 444}, the Supreme Court pointed out that the principle of res judicata is not limited by the specific words of Section 11 CPC and that it would apply even as between two stages in the same litigation.

28. Thus the applicability of the principles of res judicata in general, to the proceedings under Article 226 have stood the test of time right from the decision in Daryao till date. However, the question as to whether the principle of res judicata would apply to public interest litigations, was perhaps considered for the first time in Forward Construction Co. v. Prabhat Mandal {Regd.}, Andheri and Others {1986 (1) SCC 100}. In that case, after referring to the principle of constructive res judicata enshrined in Explanation IV to Section 11 CPC, a three Member Bench of the Supreme Court referred to Explanation VI in para 21 of its judgment and held as follows:-

“21. Explanation VI to Section provides: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating.

But it is only when the conditions of Explanation VI are satisfied that a decision in the litigation will bind all persons interested in the right litigated and the onus of proving the want of bona fides in respect of the previous litigation is on the party seeking to avoid the decision. The words “public right” have been added in Explanation VI in view of the new Section 91 CPC and to prevent multiplicity of litigation in respect of public right. In view of Explanation VI, it cannot be disputed that Section 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.”

29. But the ratio in Forward Construction Co. was explained to a limited extent, by a 2 member Bench in V. Purushotham Rao v. Union of India {2001 (10) SCC 305}. As seen from para 17 of the decision in that case, the second question considered therein was as to whether the principle of constructive res judicata as provided in Explanation IV to Section 11 of the Code of Civil Procedure or Order 2 Rule 2 CPC, would apply to a public interest litigation. In paragraph 19 of the said judgment, the Supreme Court held as follows:-

“19. Coming to the second question, Explanation IV to Section 11 of the Civil Procedure Code postulates that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Order 2 Rule 2 of the Code of Civil Procedure provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and if he omits to sue in respect of, or intentionally relinquishes, any portion of his claim, then he shall not afterwards sue in respect of the portion, so omitted or relinquished. By virtue of Explanation to Section 141 of the Code of Civil Procedure, since proceedings under Article 226 of the Constitution are excluded from the expression “proceedings”, therefore, the Civil Procedure Code is not required to be followed in a proceeding under Article 226 unless the High Court itself has made the provisions of the Civil Procedure Code applicable to a proceeding under Article 226. Then again, the principles of Section 11 as well as Order 2 Rule 2, undoubtedly contemplate an adversarial system of litigation, where the Court adjudicates the rights of the parties and determines the issues arising in a given case. The public interest litigation or a petition filed for public interest cannot be held to be an adversarial system of adjudication and the petitioner in such case, merely brings it to the notice of the Court, as to how and in what manner the public interest is being jeopardised by arbitrary and capricious action of the authorities.”

Thus the Supreme court sent a note of caution in V. Purushotham Rao to the effect-(i) that by virtue of the Explanation to Section 141, CPC, the provisions of section 11 or Order II, Rule 2, CPC may not per se apply to writ proceedings and (ii) that at any rate public interest litigations do not belong to the adversarial system of adjudication like civil disputes, so as to enable the opponent to raise such issues. When the attention of the court was drawn to the decision of the 3 member Bench in Forward Construction Co., the Court made a distinction on the following lines:-

“The learned counsel appearing for the appellants drew our attention to the decision of this Court in the case of Forward Construction Co. v. Prabhat Mandal whereunder the Court did record a conclusion that Section 11 of the Civil Procedure Code applied to public interest litigation. In our considered opinion, therefore, the principle of constructive res judicata cannot be made applicable in each and every public interest litigation, irrespective of the nature of litigation itself and its impact on the society and the larger public interest which is being served. There cannot be any dispute that in competing rights between the public interest and individual interest, the public interest would override.”

30. After the Apex Court explained in V. Purushotham Rao, the ratio in Forward Construction Co., another 3 member Bench had an occasion to consider the issue. It was in State of Karnataka and Another v. All India Manufacturers Organisation and Others {2006 (4) SCC 683}. In that case, the Court examined the question whether the principle of res judicata could be applied inflexibly to public interest litigations, especially when a re-examination of decided issues might be in public interest. The case before the Supreme Court arose out of the dispute with regard to the Bangalore-Mysore Infrastructure Corridor Project. Before answering the said issue, the Supreme Court pointed out in paragraph 32 of its decision that Section 11 CPC is not the foundation of the principle of res judicata, but merely the statutory recognition thereof and that consequently, Section 11 cannot be considered as exhaustive of the general principle of law. After pointing out that the principle is a recognition of both “cause of action estoppel” as well as “issue estoppel”, the Court went on to consider whether the doctrine of res judicata, as a matter of principle, can be applied to public interest litigations. Thereafter the Supreme Court held in paragraphs 33, 34 and 35 as follows:-

“33. Explanation VI to Section 11 states:

‘Explanation VI. - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating’.

34. Explanation VI came up for consideration before this Court in Forward Construction Co. v. Prabhat Mandal (Regd.) (hereinafter “Forward Construction Co.”). This Court held that in view of Explanation VI, it could not be disputed that Section 11 applies to public interest litigation, as long as it is shown that the previous litigation was in public interest and not by way of private grievance. Further, the previous litigation has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.

35. As a matter of fact, in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous public interest litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the Court and raising any connected issue or an issue, which had been raised should have been raised on an earlier occasion by way of public interest litigation.”

31. A survey of the march of law in the past 50 years, from Daryao in 1961, to Mysore Infrastructure Corridor Project case in 2006 shows -

(i) that Section 11 CPC is not the foundation of the principle of res judicata, but a statutory recognition of a principle of common law, founded on the one hand upon public policy to ensure finality to litigation and on the other hand, upon private interest to ensure that an individual is not vexed twice over the same cause;

(ii) that consequently, Section 11 CPC is not exhaustive of the general principles of the law;

(iii) that the principle is a recognition of the “cause of action estoppel” as well as “issue estoppel”;

(iv) that since the principle of res judicata is not confined to the four corners of the Code of Civil Procedure, but is rooted on principles of public policy, it is applicable even to writ proceedings, despite the insertion of the Explanation under Section 141 CPC by the Amendment Act 104 of 1976;

(v) that on the same analogy, the principle of constructive res judicata is also applicable to proceedings under Article 226;

(vi) that however, if a writ petition is dismissed in limine, without going into merits, either on the ground of delay and laches or on the ground of availability of alternative remedy or on any other similar ground, either before or after issuing notice, the dismissal cannot operate as res judicata; and

(vii) that while invoking the principle of res judicata to public interest litigations, on the analogy of Explanation VI to Section 11 CPC, the Court should take care to see whether it was a bona fide litigation.

32. Keeping the above principles in mind, if we analyse the facts of the present case, the picture that emerges would be as follows:-

(i) The first writ petition in W.P No. 32743 of 2007 was filed by an Advocate, claiming to be the “Convenor of Association of Lawyers against Corruption and Oppression”. The prayer in the main writ petition was to direct the Central Bureau of Investigation to nominate an Officer to investigate into the death of the said Canicius Fernando. It is seen from the affidavit filed in support of the said writ petition that the object for which the same was filed as a public interest litigation, was to check the violations of human rights by men in uniform. Though the petitioner therein also prayed for certain interim reliefs, including the grant of compensation to the family members of the victim, the main relief sought for, was only for an investigation by the CBI. That writ petition was dismissed by the Division Bench on 23.10.2007, solely on the ground that a Magisterial enquiry had already been ordered and the Warden had also been placed under suspension and that consequently, no interference was warranted “at that stage”.

(ii) Just before the said writ petition was disposed of, the Government sanctioned an ex-gratia to the wife of the victim. But the amount so sanctioned, even as per the report of the High Commission of India, Colombo, was received by the wife of the victim “without prejudice to her rights”.

(iii) After the disposal of W.P No. 32743 of 2007 and the payment of the ex-gratia, two subsequent developments take place. The first development took place almost simultaneously. It was this. The wife of the victim authorises a counsel by giving a vakalatnama and sends a representation to the Government on 25.10.2007, seeking a total compensation of Rs. 10 lakhs and the prosecution of the offenders by altering the FIR into one under Section 302 IPC. The second development was the conclusion of the Magisterial enquiry under PSO 150(3) and the forwarding of the same by the District Collector, Madurai along with his recommendations on 6.2.2008

(iv) In the meantime, the wife of the victim sends a letter dated 22.12.2007 authorising her Advocate to obtain a copy of the final report of the Sub-Divisional Magistrate. In pursuance of the said authorisation, her counsel issues a letter to the Deputy High Commissioner of Sri Lanka at Chennai on 4.1.2008, seeking a copy of the report, on the ground that he has been instructed to file a writ petition seeking compensation. The Deputy High Commission of Sri Lanka sends a reply dated 9.1.2008, to the Advocate engaged by the wife of the victim, along with a copy of the letter addressed by them to the District Collector, Madurai. Since it was clear from the said letter that the High Commission was not in possession of the copy of the report, the Advocate writes a letter to the Government on 6.3.2008, seeking a copy of the report of the RDO. In response to the said letter, the Government issues a reply dated 8.4.2008, stating that the report was under examination of the Government and that after a final decision is taken, it will be informed to the Deputy High Commission. It is only thereafter that the counsel engaged by the wife of the victim filed the first writ petition W.P No. 3228 of 2008.

(v) Though W.P No. 3228 of 2008 was apparently filed, for securing compensation to the family members of the victim and to get them solace by bringing to book the culprits, the counsel engaged by the wife of the victim, chose to file W.P No. 3228 of 2008, as a public interest litigation. Nevertheless the prayers in the main writ petition were (i) for appropriate compensation to the bereaved family (ii) for taking stern action against the Warder who shot at the victim and (iii) for taking serious steps to inculcate a culture of human values and a sense of human rights in the Prison Officials, so as to avoid a recurrence of such unfortunate incidents.

(vi) The Division Bench before which the said writ petition came up for hearing, felt that the letter of authorisation given by the wife of the victim on 22.12.2007 to her Advocate Mr. A. Sahaya Philomin Raj, was only for the purpose of obtaining a copy of the final report of the Sub-Divisional Magistrate and that the same cannot be considered to be an authorisation for seeking compensation. The relevant portion of the judgment of the Division Bench dated 4.4.2008 in W.P No. 3228 of 2008, reads as follows:-

“By a careful reading of the authorisation letter, we feel that the authorisation letter was given for the limited purpose of obtaining the Final Report of Sub-Divisional Magistrate's Inquiry over the death of Mrs. Pinto's husband, who was shot dead outside the compound wall of the Central Prison at Madurai. It is not known whether the petitioner and the team of Lawyers have been authorised to make any further claim. As we have pointed out early, while receiving the ex-gratia payment of Rs. 1,00,000/-, the widow herself has stated that she has accepted the payment without prejudice to the rights that she has in taking future legal action. If the widow has contemplated any such action, in our considered view, she would have given an authorisation letter to the counsels but, that is not to be so.”

(vii) Despite recording a finding that the petitioner did not have a proper authorisation from the bereaved family to seek compensation on their behalf, the Division Bench, did not shut the door for the family itself to seek compensation, if they so chose. This is seen from the observations in para 15 of the decision, which read as follows:-

“If the widow of the deceased is not satisfied with the ex-gratia payment made to her by the Government of Tamilnadu, it is always open to the widow of the deceased to take appropriate action in a manner known to law. The same cannot be agitated as a Public Interest Litigation, more so by the petitioner, who is alleged to be a part of the team of Lawyers who have been authorised only for the purpose of obtaining the Report of Sub-Divisional Magistrate.

(viii) After the dismissal of W.P No. 3228 of 2008, on 4.4.2008 on the above lines, the wife of the victim sends a letter by “Air Mail” to Mr. A. Sahaya Philomin Raj, informing him that she would not be able to undertake a travel to India, to seek legal redressal, in view of her financial position and her responsibility towards her two children. Therefore, she requests and authorises him to take all remedial measures including legal action for getting suitable compensation. This letter, filed as one of the documents by the petitioner shows that it was despatched at Sri Lanka on 10.4.2008 and received by the counsel on 16.4.2008 It is on the basis of the fresh authorisation given by the wife of the victim that the present writ petition has been filed.

33. The above sequence of events disclose clearly that the first writ petition W.P No. 32743 of 2007, was neither filed on behalf of the family members of the victim nor filed by a person duly authorised by the family members of the victim. The next writ petition W.P No. 3228 of 2008 filed by the present petitioner, was viewed by the Division Bench, as one filed without an authorisation for the relief that was actually prayed for. In other words, the dismissal of W.P No. 3228 of 2008, was on the technical ground that there was no authorisation for the petitioner to seek compensation, though he had an authorisation to seek copies of the report of the Sub-Divisional Magistrate. Therefore, after getting a letter from the wife of the victim, the petitioner has come up with the present writ petition.

34. As a matter of fact, the issue of locus standi in cases of this nature, was diluted, to some extent, more than 150 years ago, with the advent of The (Indian) Fatal Accidents Act, 1855. Under the second part of Section 1A of the said Act, every action or suit to recover damages may be brought by and in the name of the executor, administrator or representative of the person deceased. The second part of Section 1A reads as follows:-

“Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased”

Section 2 of the Fatal Accidents Act, 1855, makes a claim for recovery of pecuniary loss to the estate of the deceased maintainable. Even in that Section, it is made clear that the action or suit may be brought by the executor, administrator or representative of the deceased. Section 4 of the said Act, which contains the “Interpretation Clause” says that the word “person” appearing in the Act, shall apply to bodies politic and corporate. Interestingly, the second part of Section 1A, does not even refer to “legal representative” but merely refers to a “representative of the person deceased”. The only condition imposed by the Act for claiming compensation is that the action or suit brought forth, should be for the benefit of the wife, husband, parent and child, if any, of the deceased. So long as the person who brings an action or files a suit is a representative and the action or suit is brought for the benefit of the persons named in Section 1A of the Act, the issue of locus standi recedes to the background. Therefore, the moment the petitioner herein has filed a vakalat as well as a fresh letter of authorisation, empowering the petitioner to file a claim for compensation, the technical objection on the basis of which the earlier writ petition was dismissed, goes.

35. Apart from the fact that the technical objection on account of which W.P No. 3228 of 2008 was dismissed, has now been removed, with a new authorisation, there is also one more aspect. In the fresh authorisation sent from Sri Lanka on 10.4.2008, the wife of the victim had pointed out that she is not in a position to undertake a travel to India to seek legal remedies, by availing the liberty granted to her by the Division Bench while dismissing W.P No. 3228 of 2008. The fact that she did not accept the ex-gratia payment as a final settlement, is an admitted fact. The petitioner herein is not seeking any payment to be made through him to the family. The petitioner is only seeking a payment to be made directly to the bereaved family, as the Government had already done while disbursing the ex-gratia amount. Therefore, we are of the considered view that the present writ petition cannot be taken to be barred by the principle of res judicata, either actual or constructive, from the point of view of the beneficiaries viz., the members of the family of the victim. There is sufficient indication to this effect, even in the order of the Division Bench dated 4.4.2008 in W.P No. 3228 of 2008. 36. Therefore, we hold on the first issue that the present writ petition is not barred by res judicata and that it is maintainable.

Issue-2 - Reliefs:

36. Now coming to the merits of the claim, it is seen that the incident in which the aforesaid Canicius Fernando was shot dead by the Grade II Warder, outside the Central Prison at Madurai on 5.10.2007, is not seriously disputed. The enquiry by the Sub-Divisional Magistrate indicted the Warder and the District Collector, Madurai appears to have accepted the report. The Government accepted the recommendations of the District Collector and initiated both criminal prosecution and disciplinary action against him. The Government also initiated departmental action against the Additional Superintendent, a Grade I Warder, a Grade I Chief Warder and a Grade I Head Warder of the Central Prison, Madurai, for various acts of omission and commission.

37. It is admitted in paragraph 3 of the counter affidavit filed by the Government that the deceased Thiru Canicius Fernando had a valid passport and also had a valid visa to visit India from 24.9.2007 to 17.12.2007 He was also in possession of a letter given by the Deputy Commissioner of Sri Lanka in Southern India, indicating that the purpose of his visit to India was to get his fishing vessel and its crew members released. It is further stated in para 3 of the counter affidavit that the victim went to the Madurai Central Prison on 5.10.2007 to meet a convict prisoner, also from Sri Lanka and it was at that time that the Grade II Warder opened fire from a self loading rifle near the main entrance of the prison. When taken to the Government Rajaji Hospital, Madurai, the victim was declared dead.

38. It is also stated in para 4 of the counter affidavit of the Government that the Revenue Divisional Officer first conducted a preliminary enquiry and found a prima facie case made out. Therefore, the Collector ordered a full fledged enquiry under PSO 150(3). The RDO seized the weapon and bullet and sent them for examination by the Ballistic Expert. His final report was forwarded by the Collector to the Government, as seen from para 5 of the counter affidavit and the Government issued G.O.Ms No. 732, Public (Law & Order) Department, dated 24.6.2008, ordering the prosecution and departmental action against the erring officials.

39. The above facts, as culled out from the counter affidavit of the Government, would show that an innocent foreign national, who was on a visit to India with a valid visa and whose visit to the Central Prison, was in accordance with law, was shot dead, by a person on duty in uniform. There is no indication either in the counter affidavits or in the documents filed on both sides, that the victim was at fault in some way. There is also no indication in the counter affidavits to the effect that any act on the part of the victim, contributed to the incident.

40. The Additional Director General of Prisons, who is the fourth respondent in the writ petition, has filed a separate counter affidavit. It is claimed by him in para 2 of the counter affidavit, that the deceased visited the Central Prison at 3.20 P.M, on 5.10.2007 to interview some prisoners and came out from the inner gate and tried to go beyond the outer gate. It is further stated that when the Grade II Warder questioned him, no proper reply was given by the visiter and the Warder could not understand the utterances of the visiter. Therefore, according to the fourth respondent, the Warder doubted the bona fides of the visiter and without consulting any higher officials, he himself opened fire on the chest of the visiter. When he was taken to the hospital, the duty Doctor declared him dead.

41. Again in para 8 of the counter affidavit, the fourth respondent has stated that the victim had a valid visa for travel to India from 18.9.2007 to 17.12.2007 He also carried an authorisation letter dated 24.9.2007 issued by the Deputy High Commissioner of Sri Lanka in southern India, to the effect that he was representing the owner of a Sri Lankan Fishing Vessel by name “Devadu Prasansa” which was apprehended by the Indian Coast Guard on 13.6.2007 and that his visit to Tamil Nadu was for the purpose of getting the fishing vessel and its crew members released. It is further stated in para 8 of the counter affidavit of the fourth respondent that the victim arrived at the Chennai Airport on 24.9.2007 and went to Madurai Central Prison on 5.10.2007 and gave a letter to the Superintendent of Prisons, to permit him to see the prisoner by name Kaushan Makiriguguo.

42. The contents of the letter of authorisation dated 24.9.2007, issued by the Deputy High Commissioner of Sri Lanka to the victim, are extracted in para 11 of the counter affidavit of the fourth respondent. The last paragraph of the said letter of authorisation contains a request by the Sri Lankan Deputy High Commission to all concerned, to assist and extend all possible cooperation to Mr. Canicius Fernando.

43. In para 13 of the counter affidavit filed by the Additional Director General of Prisons, it is admitted that there was no eye witness to the incident and that the Warder doubted the victim as enemy, and fired one round. It is also admitted in para 15 that the Revenue Divisional Officer found the Warder guilty for the death of the victim and also found the other four Jail Officials responsible for certain irregularities and administrative lapses. The District Collector concurred with the findings and their recommendations were accepted by the Government. In para 16 of the counter, it is admitted by the fourth respondent that the victim met the Superintendent of Prisons at 1.15 P.M, and gave a petition containing a request to interview the prisoner. The Superintendent of Prisons instructed the Jailor to permit the interview as per rules. It is also stated in para 28 of the counter affidavit that the incident involving the death of Mr. Canicius Fernando, was an unfortunate and unexpected incident and the only one of its kind in the entire history of the Tamil Nadu Prison Department.

44. From the stand taken by the Additional Director General of Prisons, it is clear that the victim had (i) a valid passport (ii) a valid visa (iii) a valid authorisation from the Deputy High Commissioner of Sri Lanka to meet the prisoners and (iv) a valid permission, sought through the Superintendent of Prisons, Madurai. His meeting with the Superintendent of Prisons had taken place by about 1.15 P.M, as seen from para 16 of the counter affidavit of the fourth respondent and his presence on the spot at the time of the incident, was obviously after going through the procedural formalities prescribed by the Prison Manual. There is no averment in any of the counter affidavits to the effect that the presence of the victim at the spot where the incident took place, was unauthorised or unlawful. There is also no averment to the effect that he carried any weapon or that he posed any security threat. Therefore, the death of such a person, at the hands of another who wielded official authority, needs to be compensated.

45. Under common law, as propounded in Baker v. Bolton {1808 (1) Camp. 493}, the wrongful killing of one by another could not be complained of as an injury. As pointed out by Viscount Simon, L.C, under the common law of England, it was the general rule that no executor or administrator could sue, or be sued, for any tort committed against or by the deceased in his lifetime. Such was the actual purport of the maxim “actio personalis moritur cum persona” - a maxim which is both obscure in origin and inaccurate in expression, for the proposition that personal actions abate with the death of either party is, of course, not true, generally speaking, of causes of action arising out of contract. The purport of the above maxim was sought to be removed by the Fatal Accidents Act of 1846 in England (popularly known as Lord Campbell's Act), a similar version of which was enacted as the Indian Fatal Accidents Act, 1855. Subsequently in England, the rule of common law was virtually swept away by the Law Reform (Miscellaneous Provisions) Act, 1934. The Fatal Accidents Act preserved, notwithstanding the death of the person, all causes of action vested in that person when he died, but the claim to be asserted is a claim in the right of the deceased person. Lord Wright explained that the Act gives the right of survivorship, by preventing the original right from getting extinguished. The legal right involved in such cases was summed up by him in the following words:-

“A man has a legal right that his life should not be shortened by the tortuous act of another. His normal expectancy of life is a thing of temporal value, so that its impairment is something for which damages should be given.”

46. In Chairman, Railway Board v. Chandrima Das and Others {2000 (2) SCC 465}, the Court was concerned with a writ petition filed by a practising lady Advocate of the Calcutta High Court, claiming compensation on behalf of a Bangladeshi National, who was gang raped by railway officials at the Howrah Railway Station. The High Court awarded compensation of Rs. 10 lakhs, to be paid by the Railways and the same was challenged before the Supreme Court by the Railway Board. The first contention raised before the Apex Court was that the victim herself ought to have approached the Court in the realm of Private Law and invited a finding of fact on allegations of tortuous liability and that an Advocate had no locus standi to seek redressal under Article 226, on behalf of the victim. After referring to the distinction between public law and private law, as propounded in Common Cause v. Union of India {1999 (6) SCC 667}, the Court pointed out in para 9 of its decision that public law remedies have also been extended to the realm of tort. The Court listed in para 9, a series of cases starting from Rudul Sah v. State of Bihar {1983 (4) SCC 141}, in which compensation was awarded for causing injuries, which amounted to tortuous act. In para 10, the Court listed another series of cases from Nilabati Behera v. State of Orissa {1993 (2) SCC 746}, in which compensation was awarded under the public law domain, in cases relating to custodial deaths and medical negligence. After taking note of the series of decisions, the Court observed in para 11 that where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.

47. Considering the question of locus standi of the Advocate, in filing the writ petition seeking compensation, the Apex Court pointed out in para 14 of its decision that the prayer in the writ petition was not merely for compensation but also for various other reliefs, which made the true nature of the petition, a petition in public interest. Therefore, after inviting attention to the manner in which the concept of locus standi underwent a sea change from Satyanarayana Sinha v. S. Lal & Co. {1973 (2) SCC 696} to Bangalore Medical Trust v. B.S Muddappa {1991 (4) SCC 54}, the Supreme Court rejected the objection of the Railway Board in para 18 of its decision.

48. Another contention was raised before the Apex Court in Chairman, Railway Board {2000 (2) SCC 465}, that since the victim in that case was a foreign national, no relief under public law could be granted to her, as the fundamental rights enshrined in Part III of the Constitution are available only to the citizens of this country. But that argument was also rejected in para 19 of its decision, both on the ground of domestic jurisprudence based on Constitutional provisions and also on the ground of human rights jurisprudence based on the Universal Declaration of Human Rights, 1948.

49. Pointing out in para 28 that while all fundamental rights are available to all citizens, a few of them are also available to “persons”, the Court held in para 31 that Articles 20, 21 and 22 of the Constitution are in consonance with Articles 3, 7 and 9 of Universal Declaration of Human Rights, 1948. Article 3 of the Universal Declaration guarantees the right to life, liberty and security of person to everyone. Therefore, the Court held in para 32 that the right guaranteed under Article 21 will be available not only to every citizen of this country, but also to a “person” who may not be a citizen of this country. Thereafter, the Court held in para 34 as follows:-

“34. On this principle, even those who are not citizens of this country and come here merely as tourists or in any other capacity will be entitled to the protection of their lives in accordance with the Constitutional provisions. They also have a right to “life” in this country. Thus, they also have the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.”

50. On the principles laid down as above, the Supreme Court confirmed the order of the Calcutta High Court, granting compensation of Rs. 10 lakhs to the victim. Therefore, there is no doubt about the entitlement of the members of the family of the victim to compensation, since the head of the family had been shot dead by an Officer of Government, without any provocation. That the family members are entitled to compensation is also not seriously disputed by the respondents. This is why the Government itself ordered payment of an ex-gratia of Rs. 1 lakh to the wife of the victim.

51. Once it is found that the family members of the victim are entitled to compensation, the next question to be considered is as to the quantum. There is no codified law, for arriving at the quantum of compensation in cases of this nature. Though special enactments such as the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, 1948, provide lot of indications for arriving at the quantum of compensation, in cases to which they apply, there is no enactment to cover cases of this nature. Even the Fatal Accidents Act, 1855, does not provide adequate indications. The State of Kerala has a special enactment known as “The Kerala Torts (Miscellaneous Provisions) Act, 1976. But even the said Act, is primarily aimed at codifying the law relating to survival of causes of action, liability of joint tortfeasors and the liability in cases of contributory negligence in respect of torts.

52. Section 1A of the Fatal Accidents Act, 1855, is divided into 3 parts. The third part of the Section gives a clue and it reads as follows:-

“and in every such action the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought;”

53. Thus the only clue provided by the Fatal Accidents Act, 1855, is that the quantum of damages awarded by the Court should be proportionate to the loss resulting from the death. Therefore, we may have to look for guidance only from the principles laid down in various judicial pronouncements.

54. In Benham v. Gambling {1941 AC 157}, the House of Lords laid down certain interesting principles for guidance. They are as follows:-

“(1) Figures calculated to represent the expectation of human life at various ages or averages arrived at from a vast mass of vital statistics; the figure is not necessarily one which can be properly attributed to a given individual. And in any case, the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. Therefore the right conclusion cannot be reached by applying the actuarial or the statistical test.

(2) The age of the individual may, in some cases, be a relevant factor. For example, in extreme old age the brevity of what life may be left may be relevant, but, arithmetical calculations are to be avoided, as it is of no assistance to know how many years may have been lost, unless one knows how to put a value on the years.

(3) It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation, to be paid to the deceased's estate, on a quantitative basis.

(4) The ups and downs of life, its pains and sorrows as well as its joys and pleasures-all that makes up “life's fitful fever”-have to be allowed for in the estimate.

(5) There is no reason why the sum to be awarded should be greater because the social position or prospects of worldly possessions are greater in one case than in another. Lawyers and Judges may here join hands with moralists and philosophers and declare that the degree of happiness to be attained by a human being does not depend on wealth or status.”

55. In Gobald Motor Service Ltd v. R.M.K Veluswami {AIR 1962 SC 1}, the Supreme Court pointed out that damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. The Court held (i) that at first, the deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents (ii) that secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his life time and other circumstances (iii) that thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life and the amount discounted to arrive at a lump sum (iv) that fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate and (v) that fifthly, further amounts have to be deducted for the possibility of the wife dying earlier or getting remarried.

56. After pointing out the above five factors, the Supreme Court also noted that many imponderables enter into the calculation and that the actual extent of pecuniary loss may depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture.

57. In C.K Subramania Iyer v. T. Kunhikuttan Nair {1969 (3) SCC 64}, the Supreme Court pointed out that there can be no exact uniform rule for measuring the value of human life and the measure to damages cannot be arrived at by precise mathematical calculations. It was further pointed out that 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 and consequently there can be no exact or uniform rule for measuring the value of human life. The Court added that while conjecture to some extent is inevitable, considerations of matters which rest in speculation or fancy are to be excluded.

58. In Mallet v. Mc Monagle {1970 (AC) HL 166}, Lord Pearce termed the element of conjecture as “reasonable prophecy” and held that the method of assessing damages is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual “dependency” by a number of “year's purchase”.

59. In Organo Chemical Industries v. Union of India {1979 (4) SCC 573}, in paragraph 38, the Supreme Court held as follows:-

“38. What do we mean by ‘damages’? The expression ‘damages’ is neither vague nor over-wide. It has more than one signification but the precise import in a given context is not difficult to discern. A plurality of variants stemming out of a core concept is seen in such words as actual damages, civil damages, compensatory damages, consequential damages, contingent damages, continuing damages, double damages, excessive damages, exemplary damages, general damages, irreparable damages, pecuniary damages, prospective damages, special damages, speculative damages, substantial damages, unliquidated damages. But the essentials are (a) detriment to one by wrongdoing of another, (b) reparation awarded to the injured through legal remedies and (c) its quantum being determined by the dual components of pecuniary compensation for the loss suffered and often, not always, a punitive addition as a deterrent-cum-denunciation by the law. For instance, ‘exemplary damages’ are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation, or other aggravations of the original wrong, or else to punish the defendant for his evil behaviour or to make an example of him, for which reason they are also called “punitive” or “punitory” damages or “vindictive” damages, and (vulgarly) “smart-money”.”

60. Putting an end to speculation and prophecy in the matter of determination of compensation, Section 163A and the Second Schedule were inserted to the Motor Vehicles Act, 1988, by Amendment Act 54 of 1994. The Second Schedule prescribes multipliers, as well as the amounts that could be awarded under different heads. In M.S Grewal v. Deep Chand Sood {2001 (8) SCC 151}, the Supreme Court even while following the law laid down in C.K Subramania Iyer as laying down the basic guidance for assessment of damage, came to the conclusion that the multiplier method stands accepted by the Apex Court in its previous decisions.

61. It is seen from the copy of the First Information Report that the deceased was born on 28.9.1963 Therefore, at the time when he was shot dead, viz., 5.10.2007, he was aged 44 years. It is seen from the representation dated 25.10.2007 sent by the wife of the victim to the Government of Tamil Nadu and also from the averments contained in support of the writ petition that the deceased had a daughter aged 16 years and a son aged 13 years, apart from his wife, at the time of his death. It is also claimed that the deceased was the Treasurer of the Fishermen Association of Sri Lanka, having an active membership of 2,500. In paragraph 17 of the affidavit in support of the writ petition, it is claimed that the deceased used to earn a few lakhs of rupees through his fishing boats in a year. It is further claimed in the affidavit as well as in the representation that the deceased was helping the members of his association who were detained in various prisons of the State, to get released and thus, was a prominent person. In the fresh authorisation given to her counsel, the wife of the victim had stated that the daughter was studying in Grade Twelve and the son was studying in Grade Five.

62. In the counter affidavits filed by the Government and the Additional Director General of Prisons, no specific denial is made with regard to the above averments. But in para 8 of the counter affidavit filed by the District Collector (second respondent), it is stated as follows:-

“From the deceased person, apart from the passport and other transport documents secured, xerox copies the transaction details relating to one Negombo Sea Food Producers and Marketing Limited, Sri Lanka in English and on Singhalese language were recovered and it leads to the just surmise that the deceased was connected with the said company and the transactions found threw light on the fact that the averment of the petitioner herein to the effect that the deceased appeared to have earned a few lakhs of rupees through his fishing boat in a year appears to be far fetched and untrue and hence the petitioner herein should be in a position to prove his contention before swearing any affidavit before this Hon. Court and hence this writ is liable to be dismissed in limine.”

63. Though the affidavit of the petitioner as well as the counter affidavits of the respondents, do not have precision on the aspect of the income of the deceased, it is borne out by records that the age of the victim was 44 years and that he left behind a housewife as his widow and a daughter studying Grade 12 and a son studying Grade 5. The only averment made in the affidavit in support of the writ petition with regard to the income of the deceased is that he was earning a few lakhs of rupees through fishing boats in a year. While adverting to this averment, it is claimed by the second respondent that the deceased was connected with a sea food manufacturing and marketing company. Therefore, we have no alternative except to presume that the deceased would have been earning at least Rs. 1 lakh per annum, as against the claim of the petitioner that he was earning a few lakhs of rupees.

64. Consequently, a multiplier of 15 may have to be adopted (taking cue from the Motor Vehicles Act), which would make the compensation payable as Rs. 15 lakhs. If one third of the said amount is deducted towards personal expenses of the deceased, the balance amount of Rs. 10 lakhs would be the compensation that could be reasonably awarded to the family of the victim. The wife of the victim has claimed in her representation dated 25.10.2007 that a sum of Rs. 60,000/- was originally demanded from the brother of the victim, to air lift the body from Madurai to Sri Lanka and that at the intervention of the counsel engaged by her, the demand for money was dropped. Therefore, we do not award any amount towards transportation costs. However, drawing inspiration from the Second Schedule to the Motor Vehicles Act, 1988, a sum of Rs. 2,000/- can be awarded towards funeral expenses and a sum of Rs. 5,000/- towards loss of consortium.

65. Thus, we arrive at the compensation payable at Rs. 10,07,000/-. But a sum of Rs. 1 lakh had already been paid by way of ex-gratia in October 2007. Therefore, after giving credit to the said payment, the family of the victim would be entitled to a sum of Rs. 9,07,000/-.

66. Coming to the question of payment of interest, it is seen that the incident took place on 5.10.2007 and the ex-gratia of Rs. 1 lakh was sanctioned under G.O.Rt No. 223, Animal Husbandry, Dairying and Fisheries Department, dated 10.10.2007 The wife of the victim demanded a compensation of Rs. 10 lakhs, by her representation dated 25.10.2007 The report of the RDO, fixing responsibility on the Warder, was submitted on 20.1.2008 and the District Collector forwarded the same with his recommendations, on 5.2.2008 The Government also accepted the findings and ordered the prosecution of the Warder by G.O.Ms No. 732, Public Department, dated 24.6.2008 Therefore, the respondents are obliged to pay interest at least from 24.6.2008 We fix the rate of interest payable at 6% per annum.

67. In the result, the writ petition is allowed and a direction is issued to the respondents to pay a sum of Rs. 9,07,000/- to the wife and children of the deceased Sri Lankan National Mr. Canicius Fernando, together with interest at 6% per annum from 24.6.2008 till the date of actual payment. The payment shall be made by the Government to the beneficiaries through the High Commission of India at Colombo, in the same manner in which ex-gratia was paid under G.O.Rt No. 223, Animal Husbandry, Dairying and Fisheries Department, dated 10.10.2007 There will be no order as to costs. Consequently connected miscellaneous petitions are closed.

Svn

To

1. The Home Secretary,

State of Tamil Nadu,

Government of Tamil Nadu,

Secretariat,

St. George Fort,

Chennai-600 009.

2. The District Collector,

Madurai District,

Madurai-625 020.

3. The Revenue Divisional Officer,

Madurai District,

Madurai-625 020.

4. The Additional Director General of Prisons,

Anna Salai,

Chennai-600 002.

Home