Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 22ND DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 PETITIONER/S: 1 S.NARAYANAMMA AGED 34 YEARS W/O.ST. REDDY, D.NO.65-3-213/A, EX SERVICE COLONY, SRIHARIPURAM, VISAKHAPATTANAM, AP.530011 2 ST REDDY POME, NO.127061 A, INS EKSILA, MULAGADA AREA, MINDI POST, VISKHAKAPATTANAM, AP. 530012, RESIDING AT D.NO.65-3-213/A, EX SERVICE COLONY, SRIHARIPURAM, VISAKHAPATTANAM, AP.530011
BY ADV SRI.JOHN T.PAUL RESPONDENT/S: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, NORTH BLOCK, NEW DELHI 110001 2 THE CHIEF OF THE NAVAL STAFF NAVAL HEAD QUARTERS, NEW DELHI 110003 3 THE COMMANDING OFFICER INS DHRONACHARYA, FORT KCOHI, KOCHI 682001 4 THE OFFICE IN CHARGE COMNETCEN (K), NAVAL BASE, KOCHI 682004 5 DNPM FOR KOCHI INS DHRONACHARYA, FORT KOCHI, KOCHI 682001
6 HARI SHARMA ASST. GARRISON ENGINEER, AGE B&R NO.5/NO.2, NAVY QUARTERS, RAMAESWARAM, MUNDAMVELI PO, KOCHI 682507 7 LT CDR PILLAI ACCOMODATION OFFICER, NAVY QUARTERS, RAMESWARAM, MUNDAMVELI PO, KOCHI 682507 8 ZOOM ENTERPRISES REPRESENTED BY ITS MANAGER, ST. JACOB CHURCH LINE ROAD, KADUNGANPARAMBIL, PAMBAIMOOLA, EDAKOCHI, COCHIN 682010 9 LENIN KR CONTRACTOR, ZOOM ENTERPRISES, ST. JACOB CHURCH LINE ROAD, KADUNGANPARAMBIL, PAMBAIMOOLA, EDAKOCHI, COCHIN 682010
10 THE STATION HOUSE OFFICER THOPPUMPADY POLICE STATION, ERNAKULAM 682005 BY ADVS. SRI.K.R.RAJKUMAR, ADDL.CGSC ANILA PETER J.VIVEK GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Petitioners are the parents of the child Sai Aalash Reddy who unfortunately died by drowning in a maintenance pit near to children's park behind their residence inside the Naval Residential Complex (Mahavir Enclave) at Fort Kochi on 22.2.2015. The 2nd petitioner was working as a sailor in the Indian Navy and staying along with his family in the accommodation provided by the Navy. The residential accommodation is a Flat complex consisting of many buildings inside the Naval establishment. At about 5.30 p.m, the father noticed that his son was missing and after searching, the child was recovered in an unconscious state from a temporary maintenance pit just 10 meters away from the play area and later on succumbed. It is contended that the temporary maintenance pit was dug under aegis by the respondents 6 to 9 and they are individually and collectively responsible for the maintenance work. After digging the pit at 1.2 meter depth, it was left open and uncovered with fresh soil near to it. There was no boundary wall in the park. No safety measures were taken and therefore liable to be prosecuted under Section 304 A of the Indian Penal Code. Petitioner submitted an application to the Commanding Officer, INS Eksila but no action has been taken. In support of the contention,
judgment of the Delhi High Court in Darshan & Others (Smt.) v.
Union of India and Ors has been relied upon.
2. Respondents have filed the counter and submitted that the responsibility was of a contractor. On 19.9.2023, counsel for the respondent, Naval Head Quarters sought time to obtain instructions.
3. On the other hand, learned counsel appearing on
behalf of the petitioners relied upon the judgment of the Division Bench of Delhi High Court in W.P.(C) No.12326 of 2015 in Court on its own motion v. Govt. of NCT of Delhi and Ors. decided on 3.8.2018 whereas the counsel for the respondent relied on the judgment of the Supreme Court in 2020 KHC 7080 in Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto & Others. The Division Bench of the Delhi High Court arrived at a just and equitable conclusion in granting compensation after relying various cases including the
judgment of the Supreme Court in Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy, AIR 2012 SC 100 wherein it was held as under:
It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability. But in such a case it is improper to assume admittedly without any basis, that every person who visits a cinema theatre and purchases a balcony ticket should be of a high income group person. In the year 1997,
Rs.15,000 per month was rather a high income. The movie was a new movie with patriotic undertones. It is known that zealous movie goers, even from low income groups, would not mind purchasing a balcony ticket to enjoy the film on the first day itself. To make a sweeping assumption that every person who purchased a balcony class ticket in 1997 should have had a monthly income of Rs.15,000 and on that basis apply high multiplier of 15 to determine the compensation at a uniform rate of Rs.18 lakhs in the case of persons above the age of 20 years and Rs.15 lakhs for
persons below that age, as a public law remedy, may not be proper. While awarding compensation to a large group of persons, by way of public law remedy, it will be unsafe to use a high income as the determinative factor. The reliance upon Neelabati Behera in this behalf is of no assistance as that case related to a single individual and there was specific evidence available in regard to the income. Therefore the proper course would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases reserving liberty to the legal heirs of deceased victims to claim additional amount wherever they were not satisfied with the amount awarded. Taking note of the facts and circumstances, the amount of compensation awarded in public law remedy cases, and the need to provide a deterrent, we are of the view that award of Rs.10 lakhs in the case of persons aged above 20 years and Rs.7.5 lakhs in regard to those who were 20 years or below as on the date of the incident, would be appropriate. We do not propose to disturb the award of Rs.1 lakh each in the case of injured. The amount awarded as compensation will carry interest at the rate of 9% per annum from the date of writ petition as ordered by the High Court, reserve liberty to the victims or the LRs. of the victims as the case may be to seek higher remedy wherever they are not satisfied with the compensation. Any increase shall be borne by the Licensee (theatre owner) exclusively.
4. On the contrary, in the judgment relied upon by the
respondents considering the fact that the age of the child was 12 years and accepting the notional income as Rs.30,000/- by applying 15 multiplayer, compensation of Rs.5,00,000/- was awarded with interest @ 7% per annum.
5. The judgment in Municipal Corporation of Delhi (supra)
had applied a flat rate in respect of the person below 20 years and above 20 years as Rs.10 lakhs and 7.5 lakhs. In the instant case, the claimant are the parents.
6. This Court prima facie is of the view that the entire area
at Mahavir Enclave belongs to Naval area. It was their duty to issue instructions to the Contractor and if at all, the contractors were at fault, they are / or were at liberty to take appropriate steps against them but cannot ward off the liability by indulging in blame game. The contention that the parents had left the child in the park without care cannot be countenanced. Keeping in view the status of the family, ie., sailor, without going into nittigrities, I deem it appropriate to award a compensation of Rs.7.5 lakhs to the petitioners on account of the death of the daughter Sai Aalash Reddy on 22.2.2015, which shall entail into interest 7.5% from the date of filing of the petition ie., from August 2015, till the disbursement. Respondents are directed to pay the amount as early as possible in order to save the further liability of the interest. Sd/- sab AMIT RAWAL, JUDGE APPENDIX OF WP(C) 26374/2015 PETITIONER EXHIBITS P1:TRUE COPY OF THE PROVOST REPORT NO.03/15 ALONG WITH ENCLOSURES DATED 26.02.2015 P2:TRUE COPY OF THE APPLICATION FOR REDRESSAL OF GRIEVANCE OF THE 2ND PETITIONER DATED 11.06.2015