9911796707
TMI Blog2001 (8) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... for escorting and taking due and proper care of the students. Incidentally, the site chosen for the picnic was the same on which the earlier picnic of the School was held on 7th May, 1995. On the contextual facts, it appears that the School concerned has in its activities, a usual picnic for all the students in batches. Some of the students had already been into the picnic and these 77 were chosen for the batch which was scheduled for 28th May, 1992. It has been the version of the School authorities that in true educational institution, extra curricular activities play a dominant role in imparting proper education to the students and outings/picnics thus have been a regular feature in the school; whereas in the event of there being a plan for overnight stay, the School management without parental consent would not permit the concerned student for participation therein though however, the same is not a requirement in a day time outing or picnic. The factual score further reveals that the management of the School organised the picnic on 7th May, 1995 for the student as noticed above and selected the same site on the bank of river Beas which flows from North to South direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Surinder Pal Singh whereby the students in their efforts to catch him and thereafter to race to the bushes on the western river bank down stream, entered into the water of 'Dibber' and were drowned as the depth of the water exceeded their average height. The investigation has thus prima facie established the commission of offence u/s 304A of the Indian Penal Code by S/Shri S.P. Singh, Director Physical Education, Dalhousie Public School and Shri K. Shanmugam, teacher, Dalhousie Public School, Badhani. The Writ Petition, however, came up for final disposal before the High Court on 4th March, 1996 wherein the writ petition was allowed and it was ordered that the Chairman and the Management of the School shall pay a compensation of Rs. 5 lakh to each of the parents of fourteen students who died in the incident and a sum of Rs. 30,000/- to each of the parents of students who suffered due to drowning incident within two months with interest at the rate of 12% per annum from 28th May, 1995 by depositing the same in the registry of the High Court and hence the Special Leave Petition before this Court and the subsequent grant of leave with an order to deposit a sum of Rs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to pay, it was contended is a necessary criteria in regard to the fixation of quantum of compensation in the event of there being an unfortunate event and it is on this score that paragraph 41 of the Report has been taken recourse to - The teachers have been ascribed to be negligent and not a whisper about the conduct of the school and as such conferment of liability on to the school in any event is totally an injudicious discretion of the High Court. True, and as noticed hereinbefore the conclusion of CBI, fixed the entire responsibility upon the two teachers and criminal proceedings stand initiated by reason therefore and the accused persons as a matter of fact also stand convicted under Section 304-A I.P.C. - but what is the affect of such a finding; Needless to record that the CBI's investigation was not in regard to the assessment of the quantum of tort feasor's or joint tort-teasers' liability and as such the report by itself would not be of any assistance to the school authorities in the matter of fixation of monetary liability by reason therefore. Incidentally, this Court in C.K. Subramania Iyer and Others v. T. Kunhikuttan Nair and Six Others [1970]2SCR6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable expectation is enough and such reasonable expectation might well exist, though from the father, not being in need, the son had never done anything for him. On the other hand a jury certainly ought not to make a guess in the matter, but ought to be satisfied that there has been a loss of sensible and appreciable pecuniary benefit, which might have been reasonably expected from the continuance of life. The other decision relates to the case of Taff Vale Railway Company v. Jenkins (1913) AC 1 wherein Atkinson, J. stated the law as below: I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn, but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the school authority though claimed to be not liable in any way, in no uncertain terms however blamed the teachers and their utter negligence, resulting in such a tragedy. Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness of inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word 'inadvertence' stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions - whereas inadvertence is a milder form of negligence, 'negligence' by itself mean and imply a state of mind where there is no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elements specially in the matter of children - the liability is thus absolute vis-a-vis the children. The school authorities in the contextual facts attributed negligence to the two teachers who stand convicted under Section 304A of the Indian Penal Code as noticed above and Mr. Bahuguna appearing in support of the appeal during the course of hearing, however, also in no uncertain terms attributed utter negligence on the part of the teachers and thus conceded on the issue of negligence. Concession, if any, as noticed above, though undoubtedly a good gesture on the part of the school authority, but can the school absolve its responsibility and corresponding culpability in regard to the incident: Would they be termed to be a joint tort feasors or would it be a defence that the school has taken all due care having regard to its duty and it is irrespective thereof by reason of utter neglect and callous conduct on the part of the two of the teachers escorting them that has cause the injury - Mr. Bahuguna contended that the school cannot be made liable under any stretch of imagination by reason of the happening of an event which is not within the school premises and has, in fact, happen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If committed for the benefit of the employer and while doing his business principles and logic demand that the employer should be held liable, and for some time the law rested at this point. The classic judgment of Willes J. in Barwick v. English Joint Stock Bank (1867) L.R. 2 Ex. 259 stated the principle thus: In all these cases it may be said... that the master has not authorised the act. It is true, he has not authorised the particular act but he has put the agent in this place to do that class of acts and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in. That was a case where the wrong committed for the master's (viz., the bank's) benefit, and Willes J. stated this as an ingredient of liability at p.265: ...the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved. But a sharp distinction has been made as regards the group of cases which is concerned with the use of motor vehicles. These are the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not but be treated to be a guide in the matter of award of compensation and there cannot possibly be any doubt in regard thereto. We shall however be dealing with the issue slightly later in this judgment. Turning attention however on to the issue of vicarious liability, one redeeming feature ought to be noticed at this juncture that to escort the children was the duty assigned to the two teachers and till such time thus the period of escorting stands over, one cannot but ascribe it to be in the course of employment - the two teachers were assigned to escort the students; the reason obviously being - the children should otherwise be safe and secure and it is the act of utter negligence of the two teachers which has resulted in this unfortunate tragedy and thus it is no gain-said that the teachers were on their own frolic and the school had done all that was possible to be done in the matter - safety of the children obviously were of prime concern so far as the school authorities are concerned and till such time the children return to school, safe and secure after the picnic, the course of employment, in our view continues and thus resultantly, the liability of the school. A p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the people. In this context reference may be made to two decisions of this Court. The first in line, is the decision in Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Others 1993CriLJ2899 wherein this Court relying upon the decision in Rudal Sah (Rudal Sah v. State of Bihar Anr. 1983CriLJ1644 decried the illegality and impropriety in awarding compensation in a proceeding in which court's power under Articles 32 and 226 of the Constitution stand invoked and thus observed that it was a clear case for award of compensation to the petition for custodial death of her son. It is undoubtedly true however that in the present context, there is no infringement of State's obligation unless of course the State can also be termed to be a joint tort-feasor, but since the case of the parties stand restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue may further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto. The decision of this Court in D.K. Basu vs. State of West Bengal 1997CriLJ743 : 1997C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation for the events that had taken place; compensation there cannot be any, far less monetary compensation, for the unfortunate death of one's own child - it cannot be termed to be a solatium. Unfortunately the situation in the facts of the matter does not warrant us to accept the same as a result of which we wish to deal with the matter in slightly more greater detail. Mr. Bahuguna for the appellant with however strong vehemence contended that the High Court has totally misread and misapplied the principles of law in the matter of awarding compensation and in any event the quantum thereto has been fixed at an absurdly higher figure. The anguish of the High Court, Mr. Bahuguna contended, is understandable by reason of the factual import in the matter but the does not however mean and imply that a court of law would be guided by emotion and allow the sentiments to play a pivotal role in the matter of assessment of damages. It has been the contention of Mr. Bahuguna that there is not an iota of evidence as to the pecuniary loss for pecuniary benefit and as such the assessment of quantum has been totally arbitrary and in utter disregard of the known principles of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vastating fire suddenly engulfed the Pandal and the area surrounding and by the time the fire was extinguished, a number of persons lay dead and many were suffering with burn injuries. The death toll reached 60 and the total number of persons injured were 113. The factual score in Lata Wadhwa's case further depicts that amongst the persons dead, there were 26 children, 25 women and 9 men and Srimati Lata Wadhwa the petitioner in the matter lost here two children, a boy and a girl as also here parents. It is on this score that the learned arbitrator fixed in the absence of any material a uniform amount of Rs. 50,000/- to which again a conventional figure of Rs.25,000/- has been added for determining the total amount of compensation payable. While dealing with the matter this Court (Pattanaik, J. speaking for the Bench) observed: So far as the determination of compensation in death cases are concerned, apart from the three decisions of Andhra Pradesh High Court, which had been mentioned in the order of this Court dated 15th December, 1993, this Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas and Ors. AIR1994SC1631 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duffryn Associated Collieries Ltd. 1942 AC 617 which says: The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basis figure which will generally be turned into a lump sum by taking a certain number of years purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt. 8. The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent. Thus except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages. (Per Lord Macmillan and Davies v. Powell) Lord W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility for the assessment of compensation. Some judgments of the High Court have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases. In Lata Wadhwa's case, however, this Court came to a conclusion that upon acceptability of the multiplier method and depending upon the facts situation namely the involvement of TISCO in its tradition that every employee can get one of his child employed in the company and having regard to multiplier 15 the compensation was calculated at Rs. 3.60 lacs with an additional sum of Rs. 50,000/- as conventional figure making the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
