High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.11.2007CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANA.S.No.203 of 1996 1.V.S.Boys Higher Secondary School,Thiruvarur rep. Byits Manager,V.T.Somasundaram.2.Thiru Sundaram,Secretary and Correspondent,V.S.Boys Higher Secondary School,Thiruvarur.3.K.Subburathinam,Head Master,V.S.Boys Higher Secondary School,Thiruvarur..... Appellantsvs.1.Durairaj2.Tmt. Lakshmi .... RespondentsAppeal filed against the Judgment and Decree dated 19.12.1994passed in O.S.No.34 of 1989 on the file of the Subordinate Judge ofNagapattinam.For Appellants : Mr.S.K.RakhunathanFor Respondents : Ms.AL.GandhimathiJUDGMENTAggrieved by the judgment and decree dated 19.12.1994 made inO.S.No.34 of 1989 on the file of the learned Subordinate Judge,Nagapattinam, the defendants in the suit have preferred thisappeal. 2.The brief facts of the case are as follows:-It is not in dispute that the deceased Loganathan who is theson of the respondents herein aged about 13 years was a student inthe appellants' school, studying VIII standard. On the fateful day,i.e., on 11.03.1987, the deceased Loganathan had gone to theschool, his class teacher having been on leave and out of eight https://hcservices.ecourts.gov.in/hcservices/ periods per day, for the last two periods no substitute teacher wasposted to handle the class. Though, it had been informed that theseventh period would be handled by Tamil Teacher, according to therespondents/plaintiffs, even the said Teacher did not attend theclass. The third appellant who is the Head Master of the school,had not posted any substitute Teacher to handle the class. However,the boys were permitted to play Kabadi, as there was no PhysicalEducation Teacher, while the deceased Loganathan was participatingin the Kabadi, he was handled roughly by the other playmates, whichresulted in the death of the deceased loganathan, the son of therespondents herein. 3.According to the respondents, the unfortunate occurrence hadhappened only due to the carelessness and negligence on the part ofthe appellants, for which, the respondents have claimedcompensation of Rs.50,000/- against the appellants/defendants forthe loss of their son. 4.It was contended by the learned counsel for the appellantsthat as there was no negligence on the part of the third appellantor the other appellants. According to them, the appellants about 10students including the deceased Loganathan alone had gone out ofthe class room without getting permission from the Head Master orfrom any other teacher and therefore, the appellants have notcommitted any negligence and as such, they are not bound to pay anycompensation to the respondents herein.5.It is seen from the impugned judgment and the case recordsthat the first respondent who is the father of the deceasedLoganathan was examined as P.W.1 apart from other witness P.W.2 andExs.P.1 and P.2 were also marked on their side. On the side of theappellants, the third appellant was examined as R.W.1 and nodocument was marked on the side of the appellants/defendants.6.The trial Court after considering the evidence both oral anddocumentary adduced by both sides and also the arguments advancedby both sides, has held that the death of the deceased Loganathanwas caused due to the negligence on the part of the schoolauthorities and accordingly passed the award amount of Rs.25,000/-in favour of the respondents/plaintiffs to be paid by theappellants/defendants with interest and costs. Aggrieved by thejudgment and decree, this appeal has been preferred by thedefendants.7.Mr.S.K.Rakhunathan, the learned counsel for the appellantscontended that based on the alleged negligence, the respondentshave claimed compensation against the appellants/defendants, hencein order to fix the same there should have been existence ofnegligence on the part of the appellants herein. According to thelearned counsel, there is no evidence available on record to show https://hcservices.ecourts.gov.in/hcservices/ that there was any negligence on the part of the Head Master, thirdappellant herein. As there were 3000 students studying in theschool, it may not be possible for the third appellant to takeindividual care of the students. He further contended that thestudent Loganathan could have died due to some heart ailment.8.The learned counsel for the appellants further submittedthat there was no post mortem made to find out the cause of thedeath of the deceased student and according to him, the principleof 'loco parentis' is not applicable in India. 9.Per contra, Ms.AL.Gandhimathi, learned counsel appearing forthe respondents contended that admittedly the occurrence had takenplace during the class hours within the school campus. It is not indispute that the class teacher was on leave on the date ofoccurrence and no Teacher was handling the class continuously fortwo afternoon periods and no substitute Teacher was also posted,and the students were allowed to play themselves within the schoolcampus and while playing Kabadi, as the playmates handled thedeceased Loganathan roughly without the guidance of any PhysicalEducation Teacher, the occurrence had taken place and therefore,the third appellant namely, the Head Master and the otherappellants being the school authorities are liable to paycompensation to the parents of the deceased student. According tothe learned counsel for the respondents, the available evidence onrecord would show that there was negligence on the part of theappellants. It is not in dispute that the deceased Loganathan wasin the school Scout Unit which would show that he was heal andhealthy before the occurrence. The defence that the student couldhave died due to any heart ailment cannot be accepted.10.It is not in dispute that the deceased Loganathan had beentaken to the hospital, where, the student died. Hence, according tothe learned counsel for the respondents, even the schoolauthorities could have obtained certificate with regard to thehealth condition of the deceased since they had taken the studentto the hospital.11.In this appeal, the question to be decided is,Whether there was any negligence on the part of theappellants/defendants, so as to direct them to pay compensation tothe respondents and whether the compensation awarded by the Courtbelow is exorbitant. 12.It has been clearly admitted that the deceased Loganathanaged about 13 years was studying VIII Standard, in the Boys HigherSecondary School run by the appellants and on 11.03.1997, for thelast two periods in the evening, there was no Teacher to handle thesaid class. The class Teacher of the said class was also on leave. https://hcservices.ecourts.gov.in/hcservices/ Admittedly, some students went out of the class room and playedKabadi within the school campus. In such circumstances, it cannotbe said that the students went out of the class room and playedKabadi without the knowledge and beyond the control of the HeadMaster.13.It is clear that the accident had taken place while thestudents playing Kabadi and due to rough handling of the play matesof the deceased. The same could have been prevented, if there wasany Physical Education Teacher available there to regulate whilethe students playing Kabadi. As the unfortunate occurrence hadtaken place within the school campus, during class hours, while thestudents were playing Kabadi and that there was no teacher toregulate the students. Hence, it cannot be said that there was nonegligence on the part of the Head Master, the third appellantherein. Being the Head of the School, the third appellant shouldhave taken steps to prevent the unfortunate occurrence. 14.As per the principle of 'loco parentis' when a student atthe adolescent age or childhood is sent to school by the parents,it is also the duty of the school authorities to play the role ofthe parents in safeguarding the students. The term 'loco parentis'in the Advanced Law Lexicon, P.Ramanatha Aiyer 3rd Edition, isdefined as under:"What is the meaning of a person in locoparentis? I cannot do better than refer to thedefinition of it given by Lord Eldon in exparte Pye (18 Ves. 140). Lord Eldon says it isa person, in the situation of the persondescribed as the lawful father of the child.'Upon that Lord Cottenham in Powys v. Mansfield,7 L.J. Ch.9 observes:-'But this definitionmust, I conceive, be considered as applicableto those parental offices and duties to whichthe subject in question has reference viz., tothe office and duty of the parent to makeprovision for the child. The offices and dutiesof a parent are infinitely various, some havingno connection whatever with making a provisionfor a child; and it would be most illogical,from the mere exercise of any of such officesor duties by one not the father, to infer anintention of such person to assume also theduty of providing for the child.' so that aperson in loco parentis means, person takingupon himself the duty of a father of a child tomake a provision for that child" (per Jessel,M.R.Bennet v. Bennet, 10 Ch D 477). https://hcservices.ecourts.gov.in/hcservices/ By the expression a person in locoparentis' is meant a person who puts himself inthe situation of a lawful father of the child,with reference to the father's office and dutyof making provision for the child. KarnalDistillery Co. Ltd. v. Ladi Parshad Jaiswal,AIR 1958 Punj 190, 202. [Indian Contract Act (9of 1872),S.16]." 15.In the instant case, it is quite clear that the students atthe adolescent age were allowed for playing Kabadi, during classhours within the school campus without the guidance of any PhysicalEducation Teacher due to which the son of the respondents died onaccount of rough handling of his playmates. Hence, I am of the viewthat the principle of 'loco parentis' is also applicable apart fromthe negligence on the part of the school authorities on the factsand circumstances of this case. The learned counsel for theappellants relied on the decision reported in K.Samikkannu v. TheUnion of India rep. By the Secretary, Department of Energy, NewDelhi (1997 (1) CTC 275) wherein in an accident, a 13 years old boydoing his VIII Standard, had gone to a prohibited area of miningoperation site, in Neyveli Lignite Corporation at Neyveli, gettingtrapped into the land slide and died. This Court has held in thesaid case, that contributory negligence does not arise for anaction of minor children and that the authorities could haveprevented the same by posting adequate securities near by theprohibited area. 16.In the instant case, there could be no contributorynegligence attributed against the deceased Loganathan since he hadnot committed any prohibited act. As there was no Teacher to handlethe class continuously, for about two periods, it could be legallyinferred that the students were allowed to play Kabadi within theschool campus, but without the guidance of any Teacher which wasresulted in rough handling of the deceased student by his playmates, which resulted in his death. Therefore, I am of the viewthat the negligence on the part of the third appellant andvicarious liability on the part of the other appellants have beenclearly proved in this case and the defence raised by theappellants cannot be accepted.17.The next aspect is with regard to the quantum ofcompensation awarded by the Court below. It is seen that only a sumof Rs.25,000/- was awarded as compensation to be paid with interestand cost to the respondents being the parents of the deceased. Thesaid amount of compensation is no way considered to be exorbitant.On the facts and circumstances, I find no reason to interfere withthe award of compensation passed by the court below. In the result, https://hcservices.ecourts.gov.in/hcservices/ the appeal fails and accordingly the same is dismissed. However,there is no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjbmTo1.The Subordinate Judge, Nagapattinam.2.The Section Officer, V.R.Section, High Court, Madras.one cc to M.S.K.Rakhunathan, advocate SR.No.69232one cc to M/s.AL.Kanthimathi, advocate SR.No.69541 A.S.No.203 of 1996sky/7/1