A.Manikandan v. Thiruparankundram Municipality, Through its Commissioner, Thiruparankundram, Madurai

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 25.04.2011CORAM:THE HONOURABLE MS.JUSTICE K.SUGUNAANDTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYW.A.(MD).No.458 of 2011 and M.P.No.1 of 20111.Thiruparankundram Municipality, Through its Commissioner, Thiruparankundram, Madurai.2.Government of Tamil Nadu, Rep by its Secretary, Department of Municipal Administration and Water Supply Fort.St.George, Chennai. :Appellants / RespondentsVs.A.Manikandan : Respondent / PetitionerPRAYER: Writ Appeal is filed under Clause 15 of the Letters Patentagainst the Order dated 10.02.2011 made in W.P.(MD).No.8613 of 2009on the file of this Court. Writ petition is filed under Article 226 of the Constitution ofIndia praying for the issue of a writ of Mandamus directing therespondents to pay a sum of Rs.10,00,000/- (Rupees ten lakhs) to thepetitioner as compensation.For Appellants: Mr.D.Gandhiraj,Government Advocate JUDGMENT[Judgment of the Court was delivered BY K.SUGUNA, J]This Writ Appeal is filed as against the order dated 10.02.2011passed in W.P.(MD).No.8613 of 2009.2. The facts leading to this case are as follows:-(i). The respondent's daughter, by name Dhanalakshmi, aged about10 years, along with her mother, had gone to ThiruparankundramMurugan Temple at Thiruparankundram on 22.05.2009 at about 07.00 PMto worship Lord Murugan. At that time, suddenly rain came downheavily. Hence, the deceased daughter and her mother Jeyanthi ran forshelter towards the building near temple car, adjacent to the mainentrance. However, on their way to the said building, therespondent's daughter fell into the sewage canal (ditch), which wasnegligently left open by the first appellant – Municipal Authorities. (ii). Since the rain was down pouring heavily, the sewage canalwas submerged in the rain water and there was no clue that the ditchwas kept open, consequently, her daughter was washed away by rainwater in the ditch and only after strenuous efforts taken by thepublic and others, she was lifted from ditch near Avanipuram Section,which is located nearly 1½ Kilometers away from the place ofoccurrence. But, unfortunately, the minor child died on the way tothe hospital. https://hcservices.ecourts.gov.in/hcservices/ 2(iii). Claiming compensation of Rs.10,00,000/-, the father of thedeceased minor child had filed the said Writ Petition. The learnedSingle Judge of this Court, by order dated 10.02.2011, had allowedthe said Writ Petition directing the first appellant – Municipalityto pay a sum of Rs.2,00,000/- as compensation and also a sum ofRs.10,000/- towards costs within a period of two months from the dateof receipt of a copy of the order. (iv). Challenging the said order dated 10.02.2011, the presentWrit Appeal is filed by the appellants. 3. The stand of the learned Government Advocate appearing for theappellants is that the respondent should have approached the CivilCourt, where the alleged negligence on the part of the appellantsshould have been established. In support of his contention, thelearned Government Advocate has relied on a Judgment of the Hon'bleSupreme Court in Shakuntala Devi (Smt) vs. Delhi Electric SupplyUndertaking reported in 1995 (2) SCC 369 at paragraph No.5, whichreads as follows:-"5. According to the petitioner all these requestsfell on deaf ears of Respondent 1 which did not take anyaction in this regard. In the evening when Ram Naresh Yadavwas returning from the place of employment, when he was notaware of the electricity leakage, he came in contact withthe live cable and got electrocuted on the spot and he diedinstantaneously. This according to the petitioner was onaccount of criminal negligence on the part of Respondent 1.As this disaster has left the petitioner and her youngchildren destitute, the present petition is moved underArticle 32 of the Constitution presumably relying uponpetitioner’s fundamental rights under Article 21 of theConstitution which have got adversely affected on accountof the negligent act of the officials of Respondent 1herein. She has also claimed appropriate reliefs fromRespondent 2. This petition was treated to have beenadmitted to final hearing. We have heard the learnedadvocates for the parties in support of their respectivecases. Having heard them we felt that it is a fit case forinvoking our jurisdiction power under Article 142 of theConstitution of India for giving appropriate relief to thepetitioner, a destitute widow of the deceased and heryoung/minor children. So far as Respondent 1 is concernedit is true that the question of negligence of officials ofRespondent 1 can be properly examined in a suit wherecorrect facts can be established but as that would involvelong delay and the misery of the petitioner and her youngchildren who were stranded in life would linger on wesuggest to the learned counsel for Respondent 1 to give areasonable amount ex gratia to the petitioner and her youngchildren so that their misery can be to some extentlessened. We are happy to note that the learned counsel forRespondent 1 on instruction has left the matter to us. https://hcservices.ecourts.gov.in/hcservices/ 3Similarly the learned counsel for Respondent 2, Shri Negihas also gracefully left the matter to us. He however,submitted that if the insurance policy was a live policy,Respondent 2 would have been liable to make full insuredamount of Rs.25,000 but according to Respondent 2Corporation, the policy has lapsed as the deceased has notpaid premia for the last few instalments. He furtherfrankly stated that Respondent 2 is not in a position topoint out whether any written intimation was given to thedeceased about non-payment of premia and the possiblelapsing of policy. He also stated that though there was nostatutory rule requiring such intimation to be given to theinsured, as a matter of practice the Corporation used toissue such notices or intimations to the concerned insuredso that they can clear off the unpaid premia instalments.But in the present case he was not in a position to producea copy of any such notice issued to the deceased. So far aslearned counsel for Respondent 3 ex-employer of thedeceased is concerned, he stated that whatever was due tothe deceased under the Workmen’s Compensation Act and asper the rules and regulations of the institution hasalready been paid to the petitioner. However, he fairlystated that he will have no objection in givingcompassionate appointment to the petitioner’s son, AnilKumar who is now a major if he makes an appropriateapplication in this connection to Respondent 3. Respondent3 will see to it that such employment on compassionateground is given to the petitioner’s son Anil Kumaraccording to his suitability and educational qualificationsand appropriate job will be given to him latest within sixmonths from today. Under these circumstances interest ofjustice will be served by our directing Respondent 1 to payan ex gratia amount of Rs.75,000/- to the petitioner forthe benefit of herself and her children Anil Kumar aged 18years and two minor daughters Anita Kumari and SunitaKumari. Similarly, we direct Respondent 2, Life InsuranceCorporation to pay ex gratia amount of Rs.25,000/- whichwould cover the full amount of life insurance policy of thedeceased without going into the wider question whether thepolicy had lapsed or not on account of non-payment ofpremia. We also direct Respondent 3 to give compassionateemployment suitable to the qualification of petitioner’sson Anil Kumar. For that purpose, Anil Kumar shall make anapplication to Respondent 3 at the earliest and on receiptof the said application Respondent 3 will give suitableemployment to him at the earliest but not later than sixmonths from the date on which such application is receivedby Respondent 3. The disbursement of the above said totalamount of Rs.1.00 lakh to the petitioner and her youngchildren will be made as under." https://hcservices.ecourts.gov.in/hcservices/

44. Unfortunately, the said stand of the learned GovernmentAdvocate that the respondent should have approached the Civil Courthas not been brought before the learned Single Judge. Apart fromthis, a perusal of the said Judgment also does not reveal the same.5. But, according to the learned Government Advocate for theappellants, the ditch was kept open by somebody else and not by thefirst respondent - Municipal Authorities, and therefore, question ofpayment of compensation by the first appellant - Municipality doesnot arise at all. 6. We are not able to accept the said stand of the learnedGovernment Advocate, for the reason that even before the learnedSingle Judge, the said plea was not taken. Apart from this, if theditch was kept open by somebody else and not by the first appellant –Municipal Authorities, the burden lies on the first appellantMunicipality to prove the same. However, even in the Writ Appealalso, the said stand of the learned Government Advocate is not proved.7. Yet another stand taken by the learned Government Advocatethat the mother of the deceased would have taken care of will nothold good, for the reason that the first appellant - Municipalitybeing the local self – Government, is expected to take steps toprotect such open sewage canal and no negligence could be attributedagainst the mother of the deceased minor child. The learned SingleJudge has rightly allowed the said Writ Petition directing the firstappellant Municipality to pay a sum of Rs.2,00,000/- as compensationand also imposed costs of Rs.10,000/- for the death occurred due tothe negligence on the part of the first appellant MunicipalAuthorities. Under such circumstances, we are of the considered viewthat there is no case made out to interfere with the order of thelearned Single Judge.8. In the result, the order dated 10.02.2011 made in W.P.(MD).No.8613 of 2009 is confirmed and the Writ Appeal is dismissed Nocosts. Consequently, connected Miscellaneous Petition also dismissed. Sd/ Deputy Registrar (LA ) /True Copy/ Assistant Registrar To1. The Commissioner, Thiruparankundram Municipality, Thiruparankundram, Madurai.2.The Secretary, Government of Tamil Nadu, Department of Municipal Administration and Water Supply Fort.St.George, Chennai.JUDGMENT MADE INW.A.(MD).No.458 of 2011SMA/14.6.2011/3C/4P25.04.2011