Saraswathy v. The Managing Director TWAD BoardNo.31, Kamaraj SalaiChennai 600 0052

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.09.2011 CORAM:THE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P. No.32699 of 2007andM.P.No.1 of 20071.Saraswathy2.Manimekalai3.Shankar..Petitioners4./vs/1.The Managing Director TWAD BoardNo.31, Kamaraj SalaiChennai 600 0052.The CommissionerVillivakkam Panchayat UnionAmbattur TownshipChennai 600 0533.The Chennai Metropolitan WaterSupply and Sewerage BoardChennaiR3-suomotu impleaded as per orderdated 21.7.2011...Respondents(R2 cause title amended as per order dated 30.1.08 in M.P.2/07 in W.P.32699/07)PRAYER: Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a Writ of Mandamus directing therespondents to pay a compensation of Rs.7,00,000/- (Rupees SevenLakhs only) for the death of the husband of the first petitioner andfather of the second and third petitioners namely, Rajendren, due tocareless and negligent act of the respondents.For Petitioner:Mr.S.UmapathyFor Respondent 1:Mr.V.P.RajuFor Respondent 2:Mr.K.V.DhanapalanFor Respondent 3:Ms.Poonam R.Chopra https://hcservices.ecourts.gov.in/hcservices/ ORDERIt is the case of the first petitioner that her husband, who wasa painter and aged about 45 years, while returning from his work inhis bicycle on 15.05.2007 fell into the drainage pit dug in 6th MainRoad, 3rd Cross Street, Near Ayyapakkam Higher Secondary School by thelocal authorities for drainage purposes and he had sustained injuriesall over the body, particularly in the head and spinal cord. He wasadmitted in the nearby hospital, thereafter he was shifted toGeneral hospital, where he died on 23.05.2007 due to the injuriessustained by him. The first petitioner lodged a compliant withThirumullaivail Police Station on 23.05.2007 and First InformationReport was also registered.2. The first petitioner alleges that her husband died on23.05.2007 due to the carelessness and negligence on the part of therespondents to maintain the drainage by taking preventive measuresaround the pit dug. It is further alleged that no caution board waskept and barbed wires or wooden sticks/planks were not installed andthe pit was also left open without any sand pile around it. Ifpreventive measures were taken, the alleged incident would have beenavoided. As the sole bread winner of the family was lost, thepetitioner sent a notice on 11.07.2007 to the respondents 1 and 2.There was no reply from respondents 1 and 2. Therefore, thepetitioner has come before this Court seeking compensation for thedeath of her husband. 3. A counter affidavit has been filed on behalf of the firstrespondent stating that the Tamil Nadu Water Supply and DrainageBoard has no jurisdiction in Chennai Metropolitan area, which comesunder Chennai Metropolitan Water Supply and Sewerage Board.Therefore, the first respondent is not responsible for the aboveincident. 4. The second respondent filed a counter affidavit stating thatno such drainage work was carried out at the said time and the saidarea was developed by the Housing Board in the year 1992-1996 andafter completion of the drainage work the common area was handed overto the panchayat in the year 2004 and there is no negligence on thepart of the second respondent. Its responsibility is to maintain thedrainage work. 5. The third respondent, who was subsequently impleaded, filed acounter affidavit stating that it did not carry out either WaterSupply Scheme or Sewerage Scheme in Ayyapakkam and it did not dig anypit. By filing those counters, the respondents denied theirliability. 6. Mr.S.Umapathy, the learned counsel appearing for thepetitioners submitted that because of the negligence on the part of https://hcservices.ecourts.gov.in/hcservices/ he respondent the first petitioner's husband died and soon after theincident the complaint was registered with the police and notice wasissued to the respondents and so far no amount was paid andtherefore, the petitioners have come before this Court. 7. Mr.K.V.Dhanapalan, learned Additional Government Pleaderappearing for the second respondent/Panchayat Union submitted thatthe area was developed by the Housing Board and no work was executedduring the relevant period and, therefore, there is no chance forthe petitioner to fell into the pit and sustain injuries. Similararguments were advance by the other respondents. 8. Heard the parties and perused the materials available onrecord.9. It is true that the first petitioner's husband died on23.05.2007 due to injury in the spinal cord. The First InformationReport registered on 23.05.2007 would reveal that the firstpetitioner's husband fell in to the pit dug for drainage purposes.The relevant portion of the First Information Report is extracted asfollows:- vdJ fzth; kzp vd;gth; fle;j 15-5-2007 md;W ,ut[ 8/30kzp mstpy; vdJ fzth; ntiyf;F ngha;tpl;L tUk; nghJ vd; tPl;od;mUfpYs;s ghjhs rhf;filf;F njhz;oa gs;sj;jpy; jtwptpGe;Jtpl;lhh;/ ///////////////// @rpfpr;ir gydpd;wp ,d;W 23-5-2007 md;W fhiy6/30 kzp mstpy; vdJ fzth; ,we;Jtpl;lhh;@10. The accident register dated 16.05.2007 would also show thatthe victim is alleged to have fallen in to a pit at Ayyapakkam. ThePost Mortem Report dated 23.05.2007 would show that the victim dieddue to cervical, spinal, injuries sustained. The statement given bythe local people would confirm that the first petitioner's husbandfell into the drainage pit. That apart, the information provided bythe Inspector of Police T-10 Thirumullaivaill Police Station, Chennai600 062 with regard to the cause of death of the first petitioner'shusband reads as follows:- "15/ ,d;d fhuzj;jpdhYk; ,d;d khjphpahft[k; kuzk;nehpl;lbjd;gJ tprakha; g";rhaj;J egh;fspd; mgpg;gpuhak;gpnujkhdth; bgapz;o'; Typntiy bra;Jtpl;L jd; tPl;ow;F jpUk;gptUk;nghJ 15/05/2007 e; njjp 20/30 ,ut[ neuj;jpy; ma;ag;ghf;fk; cah;epiyg;gs;sp mUfpy; 6?tJ, 7?tJ bkapd; nuhL gphpa[k; ,lj;jpy; cs;s ehd;F kPl;lh;rhiyapy; l;iune!; gs;sj;jpy; jtwp tpGe;J Kjfpy; vGk;g[ Kwpt[ Vw;gl;Lrpfpr;ir gydpd;wp kUj;Jtkidapy; ,w;eJs;shh; vd;w fUj;jpid rhl;rpfs; https://hcservices.ecourts.gov.in/hcservices/ kw;Wk; g";rhaj;jhh;fs; Kd;dpiyapy; tprhuiz bra;jjpy; Vf kdjhfahnfhgpj;Jk;. jdpj;jdpahft[k; fUj;J bjhptpj;jdh;/@The aforesaid information provided by the police would show that, asper the investigation, the first petitioner's husband fell into thedrainage pit and sustained injuries and died because of that.Therefore, it is conclusively proved that the first petitioner'shusband died because of his fell into the drainage pit. It is alsoseen that the accident was widely given coverage in the newspaper on24.05.2007 where it is stated that the victim fell into the drainagepit. 11. The respondents, who filed counter affidavits merely statedthat they are not responsible for that. Para 7 of the counter of thesecond respondent/Villivakkam Panchayat Union reads as follows:-"7. I deny the entire allegation made by thepetitioner in the affidavit filed in support of writpetition, the said allegations are baseless andwithout any material evidence. It is submitted thatno such drainage work was carried out at the saidtime as alleged by the petitioner. Actually the saidplace is Housing Board area build up by the HousingBoard in the year 1992-1996. While the carrying outthe constructions of the flats the Housing Board onlyformed and carried out the underground drainage workand they have also constructed to pumpwise for thedrainage progresses and after the completion of theconstruction of work the common area was handed overto the panchayat in the year 2004 hence is no way therespondent is concerned with the construction of saidflats or formation of the underground drainage.Hence, the allegation of the petitioner is baselessand without any material evidence and the saidallegation is made with a malafide intention to getcompensation. As far as the duty of the PanchayatUnion is concerned they have to only maintain thedrainage works and that to particularly based on theresolution passed by the panchayat, and if the workis heavy in nature, tender should be called for andbased on that only the formation of any drainage ormajor work of the drainage maintenance will becarried out by the panchayat. The minor work alonewill be carried out by the sanitary workers." From the above, it is very clear that the area was developed by theHousing Board in the year 1992 -1996 and the Housing Board onlycarried out the underground drainage work and after completion ofconstruction, the common area was handed over to the second https://hcservices.ecourts.gov.in/hcservices/ respondent/Panachayat Union in the year 2004. Therefore, it isevident from the year 2004 onwards the second respondent/Union hasbeen maintaining that area. 12. Though it has been contended by the second respondent thatno work was executed during the relevant period and so that the pitcould not have been dug, a perusal of the resolution book of thesecond respondent would reveal that the repair work in the drainagepit was carried out and it was authorised by resolution No.129 dated26.04.2007. The said resolution reads as follows.Resolution No. 129 : Cuhl;rpapy; 1?tJ thh;L jkpH;ehL tPl;L trjpthhpak; gFjpapy; cs;s fHpt[ ePh; Rj;jpfhpg;g[ epiyak; I and II blyptphpiyd; igg; iyd; fhy;tha; cilg;g[ Vw;gl;lij jpUntw;fhL bkapd; nuhLgFjpapy; 6 ,l';fspy; mjid fl;Lkhd bghUl;fs; bfhz;L gGJ ePf;fp rhpbra;j tifapy; ,k;kd;wk; Xg;g[jyspf;f/ //// xg;g[jy; mspf;fg;gl;lJ/Resolution No. 131 : ma;ag;ghf;fk; Kjy;epiy Cuhl;rpapy; 1?tJthh;L jkpH;ehL tPl;Ltrjp thhpak; gFjpapy; kid vz;/7758. 7748. 7779.7745. 5440. 5424.5423. 5464. 4328 Mfpa kid vz;fs; bfhz;l gFjpapy;rhiyapy; ghjhsr; rhf;fil fHpt[ ePh;fhy;tha; milg;g[ ePf;fp Rj;jk; bra;jtifapy; Typ tH';fpajw;F ,k;kd;wk; xg;g[jyspf;f/ /// xg;g[jy; mspf;fg;gl;lJ/The aforesaid resolutions would clearly establish that there wererepairs in the underground drainage pipeline and the same wasrepaired. Hence, it is futile on the part of the second respondentto contend that there was no work carried out by the secondrespondent and their could not have been a pit in that area at therelevant time. Therefore, this Court has got no hesitation to cometo the conclusion that because of the repair work carried out by thesecond respondent/Panchayat Union, the pit was dug and in the saidpit only the first petitioner's husband fell down and sustainedinjuries in the spinal cord and because of that he died. As statedby the petitioner, if sufficient safeguards or preventive measureswere taken by the second respondent, the above incident would havebeen averted. Therefore, the second respondent is guilty ofnegligence and is liable to pay compensate the petitioners.13. One more factor which has to be considered by this Court isthe notice dated 11.07.2007 sent by the petitioners calling upon therespondents to pay a sum of Rs.10,00,000/- as compensation. Though,the said notice was received by the second respondent, which wasproved by the acknowledgment card, neither reply was sent noramount was paid. It is disheartening to note that the first https://hcservices.ecourts.gov.in/hcservices/ petitioner's husband died in the year 2007 and so far no amount waspaid to the family of the deceased. As this Court finds that the pitwas dug by the second respondent only, the second respondent wasnegligent and is alone responsible for the death of the firstpetitioner's husband and, the second respondent is liable to pay thecompensation. 14. Though the learned counsel for the second respondentsubmitted that the issue involves adjudication of facts and properremedy is filed to civil suit, this Court finds based on the recordsproduced that the second respondent alone is responsible for theincident. Moreover, the bread winner of the family is lost. Afterlapse of four years from the date of incident, it would not beappropriate for this Court to direct the petitioner to approach theCivil Court for proper remedy. Moreover, the facts cannot bedisputed in view of the records produced and this Court under Article226 of the Constitution of India can grant compensation to thepetitioners.Quantum15. With regard to the quantum of compensation, what has to betaken into consideration is the age and avocation of the victim. Nocounter has been filed with regard to the age and avocation and,therefore, it is deemed that what has been stated in the affidavithas been admitted by the respondents. The first petitioner contendedthat her husband was aged about 45 years and was earning about 3000/-per month as painter. The formula for arriving compensation can befollowed from the provisions of the Motor Vehicles Act. The firstpetitioner's husband aged about 45 years at the time of the incidentand therefore the relevant multiplier to be adopted is "15". As perthe Judgment of the Hon'ble Supreme Court in The New India AssuranceCompany Limited vs. Smt.Kalpana and Ors reported inMANU/SC/0498/2007=(2007)3SCC 538 if no material is produced withregard to the monthly income of the person who sustainedinjury/victim, the monthly contribution to the family can be taken asRs.3,000/-, after deducting 1/3rd towards his personal expenses. Inview of that, this Court determines a sum of Rs.3,000/- as monthlycontribution to the family and the multiplier to be adopted is '15'.Therefore, the compensation is calculated as follows:- The yearlycontribution of the victim to the family is Rs.36,000/-(Rs.3,000x12=36,000/-). The total contribution would be(Rs.36,000x15=5,40,000/-) Rs.5,40,000/-. The first petitioner losther husband at the age of 43 years and she was deprived ofcompanionship of her husband and therefore she has to be grantedRs.20,000/- towards loss of consortium. The second and thirdpetitioners, being son and daughter, have lost love and affectionand care of their father and therefore, a sum of Rs.10,000/-each isgranted towards loss of love and affection. A a sum of Rs.10,000/-towards funeral expenses and a sum of Rs.10,000/- towards https://hcservices.ecourts.gov.in/hcservices/ transportation are granted. The break up details are as follows:-Loss of income :Rs. 5,40,000/-Loss of consortium to the first petitioner :Rs. 20,000/-Loss of love and affection to second and third petitioners:Rs. 20,000/-Transportation charges:Rs. 10,000/-Funeral expenses :Rs. 10,000/--------------------------Total:Rs. 6,00,000/--------------------------The second respondent is liable to pay a sum of Rs.6,00,000/- with12% interest from the date of receipt of the notice dated 11.07.2007issued by the petitioners to the respondents claiming compensationtill the date of payment within a period of twelve weeks from thedate of receipt of a copy of this order.16. In the result, the writ petition is allowed. No costs.Consequently, connected Miscellaneous Petition is closed. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarariTo 1.The Managing Director TWAD BoardNo.31, Kamaraj SalaiChennai 600 0052.The CommissionerVillivakkam Panchayat UnionAmbattur TownshipChennai 600 053 https://hcservices.ecourts.gov.in/hcservices/

3.The Chennai Metropolitan WaterSupply and Sewerage BoardChennai1 cc to Mr.V.P.Raju, Advocate, Sr.No.606461 cc to Mr.S.Umapathy, Advocate, Sr.No.60187W.P.No.32699 of 2007MSM {CO}TP/12.11.2011.