ORDER
N. Paul Vasanthakumar, J.
1. By consent of both sides the writ petition is taken up for final disposal.
2. Prayer in the writ petition is to issue a writ of mandamus directing respondents to pay compensation of Rs. 10,00,000/- either jointly or severally to the petitioner's family for the murder of his son Z. Jagankumar by the 7th respondent within his class room in the 5th respondent School during the school hours.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) The petitioner's eldest son K. Jagankumar, aged 16 years was studying in 11th standard (+1) in the 5th respondent School. On 12.1.2004, at about 8.30 a.m., the petitioner dropped his son K. Jagankumar in the School and returned to his home. Within two hours, petitioner received a shocking news that his son K. Jagankumar died. Petitioner was informed that his son's body was in the mortuary in Government Hospital, Pollachi.
(b) On 12.1.2004 at about 12.30 hours one T. Balamuga Ramesh the classmate of the petitioner's son, lodged a complaint before the Mahalingapuram Police Station, Pollachi, stating that the deceased was studying in the same class in Arts Group (11th standard - 'D' Section) and during the morning session after intervel, the English Teacher viz., the 6th respondent had not come for the third period and due the absence of the Teacher, the students had no control and indulged in free for all activities.
(c) At about 10.30 a.m., the 7th respondent, the classmate of the deceased was patted on the back by the deceased K. Jagankumar and having got angry, the 7th respondent caught hold of the shirt of the deceased K. Jagankumar and banged his head on the corner of the wall. The deceased fell on the back and could not get up as he was unconscious.
(d) The class leader Sikandar Basha and other classmates sprayed water on the face of the deceased, but there was no response. The Class Teacher was informed, who informed the 5th respondent/Headmaster and other teachers. The deceased was taken to the hospital by the students and teachers, where he was declared 'brought dead' by the Doctors.
(e) The Sub-Inspector of Police, Mahalingapuram Police Station, Pollachi, on receiving the complaint, registered a case in crime No.8 of 2004 on 12.1.2004 against the 7th respondent for the offence under Section 302 I.P.C. The investigation was completed and the police filed charge sheet against the 7th respondent. As the 7th respondent was a minor then, he was tried by the Juvenile Justice Board, Coimbatore, and he was convicted for the offence under Section 302 I.P.C. and was ordered to undergo sentence for a period of five years in the Special Home with a fine of Rs. 10,000/-, in default to be in the Special Home for one more year.
(f) According to the petitioner, the 5th respondent School is a Government School and in view of the absence of the 6th respondent, who was the Teacher in charge for the particular period, the students indulged in free for all activities, which resulted in the murder of the petitioner's son by the 7th respondent. The School authorities are responsible for the death of the petitioner's son by not sending any teacher at the relevant time. Petitioner states that in view of the negligence and dereliction of duty of the respondents 5 and 6, due to which the petitioner's son was killed by the 7th respondent, the respondents are to pay compensation on the ground of vicarious liability.
(g) The petitioner submitted a representation on 30.5.2005 to the first respondent and prayed for payment of Rs. 10,00,000/- as compensation to the petitioner's family due to the death of his eldest son inside the classroom, however there was no response in spite of receipt of the same. Hence the petitioner has filed this writ petition for issuing a writ of mandamus seeking direction to the respondents to pay compensation of Rs. 10,00,000/-.
4. The writ petition was admitted on 20.10.2005. The first respondent has received the notice from this Court on 1.8.2007, the second respondent on 22.11.2005, and the third respondent on 7.8.2007. All other respondents received notice as early as in the year 2005.
5. The 6th respondent filed counter affidavit. Other respondents have not filed any counter affidavit nor prayed for time to file counter affidavit, even though it was ordered on 3.11.2008 that the writ petition will be heard finally on 10.11.2008.
6. The 6th respondent in his counter affidavit stated that he was working as an English Teacher in S.R.I.Municipal Higher Secondary School, Pollachi, and he is a blind person. He joined in the said school as P.G. Teacher in English on 8.8.1984. On 12.1.2004 he was asked to handle class 11, Sections 'B' and 'D'. The students of 'D' section seemed to have been assigned reading and oration of Tamil for the ensuing examination. The Class Teacher of the 'D' section was on leave on 12.1.2004 and before the full time substitute could be arranged, the entire incident of death of the petitioner's son had happened. It is further stated in the counter affidavit of the 6th respondent that he being blind person, takes classes with the co-operation of the students and only because of the leave taken by the class teacher of 'D' section, there seems to have delay in arranging substitute teacher. It is also stated in the counter affidavit that the 7th respondent seems to have died in a road accident three months ago. According to the 6th respondent, the death of petitioner's son has taken place in the school under the above circumstance, which is described as unfortunate.
7. The learned Counsel for the petitioner submitted that the attitude of the respondents, particularly the 5th respondent is unreasonable as he has not chosen to give complaint before the Police and a classmate of the deceased K. Jagankumar only preferred the complaint at about 12.30 hours before the Mahalingapuram Police Station, Pollachi, based on which investigation was conducted and a criminal case was registered against the 7th respondent under Section 302 I.P.C. and the Juvenile Justice Board of Coimbatore, Erode and Nilgiris District at Coimbatore, by Judgment made in J.C.No.44 of 2004 dated 14.2.2005, found the 7th respondent herein as guilty under Section 302 I.P.C. and convicted and sentenced him to undergo imprisonment for five years in the Special Home and to pay a fine of Rs. 10,000/-, in default, to be in the Special Home for further period of one year. The learned Counsel further submitted that the petitioner's son died due to brain stem injury due to fracture of cervical bone as per the findings given by the Juvenile Board. Thus, there is no iota of any doubt with regard to the death of petitioner's son inside the class room during the school hours and the school authorities having not posted any teacher to the 11th standard 'D' section on the fateful day, the death of the petitioner's son has occurred and hence the respondents 1 to 5 are bound to pay compensation to the petitioner, who is a farmer, has lost his eldest son and he is now living with his wife and another son. The learned Counsel also submitted that in the post mortem certificate, the Doctor has clearly opined that the deceased would appear to have died of brain stem injury due to fracture of cervical bone. The learned Counsel for the petitioner cited the Judgment of the Supreme Court reported in : (2001)IILLJ1559SC (Lata Wadhwa v. State of Bihar), Division Bench judgment of this Court reported in 2004 WLR 611 (The Chief Secretary to the Government of Tamil Nadu and Ors. v. Mrs. R. Selvam) and a decision of mine in W.P. Nos. 19260 of 2002 and 14436 of 2008 dated 14.8.2008 in support of his submissions.
8. Heard the learned Counsel for the 6th respondent as well as the learned Government Advocate for respondents 1 to 4.
9. The point in issue is whether the petitioner is entitled to get compensation from the respondents 1 to 5 due to the death of his son, who was studying in the 11th standard, when the death has admittedly happened inside the class room of 11th standard 'D' section on 12.1.2004 at about 10.30 a.m.
10. The facts about the death of the petitioner's eldest son K. Jagankumar is not in dispute. The Juvenile Board has convicted the 7th respondent for committing the murder of the petitioner's eldest son under Section 302 I.P.C. in J.C.No.44 of 2004 by judgment dated 14.2.2005. Admittedly no teacher was asked to handle the third period on 12.1.2004 in the absence of English Teacher (who was on leave) in 11th standard 'D' section.
11. When a teacher is absent, it is the duty of the Headmaster of the School to post a substitute teacher to handle the class or the Headmaster himself is bound to conduct/supervise the class. Admittedly, the said procedure was not followed by the 5th respondent, which led the students in indulging in free for all activities, pursuant to which the petitioner's eldest son was killed by the 7th respondent, who was also a student of 11th standard 'D' section. In view of the above undisputed facts it is evident that the death of the petitioner's son had happened only due to the negligence/carelessness of the 5th respondent and the School authorities.
12. The issue as to whether compensation can be ordered in a writ petition filed under Article 226 of Constitution of India, came up for consideration in the following decisions.
(i) The Honourable Supreme Court in the decision reported in : AIR1990SC513 (SAHELI a Women's Resources Centre v. Commissioner of Police, Delhi) awarded compensation for the death of a nine year old child due to the beating and assault by the Police Officer. In paragraphs 11 to 15 the Supreme Court held as follows:
11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt.Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh.
12. It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State 1969 ACJ 28 wherein it has been observed that:
In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.
13. In State of Rajasthan v. Vidhyawati 1962 Supp (2) SCR 989 : : AIR1962SC933 it has been held that: (SCR p. 1007)
Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India.
14. In Peoples' Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters : (1989)4SCC730 one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs. 75,000 as compensation.
15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs. 75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The writ petitions are disposed of accordingly.
(ii) Maintainability of writ petitions claiming compensation against the State's inaction was considered by the Supreme Court in the decision reported in : [2001]2SCR468 (S.S. Ahluwalia v. Union of India). In paragraph 2, the Supreme Court gave directions, which reads thus:.Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating the writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy of the petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action.
The above direction was given since the claim in those writ petitions were made directly before the Honourable Supreme Court seeking compensation to the victims of riot, which took place in various places due to the assassination of Smt.Indira Gandhi.
(iii) In (2004) 8 SCC 610 (National Human Rights Commission v. State of Gujarat) the Supreme Court directed the High Court of Gujarat to consider the claims of riot victims of communal clash arose in the State of Gujarat due to the Godhra incident, which reads as follows:
8. In our view, these all are issues which can be raised in the pending writ petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate, that the High Court should deal with the issues raised in the first instance.
(iv) The liability of the State to pay compensation even against the destruction of the property during communal clash or riot or disorder was considered by the Full Bench of this Court in the decision reported in : (2007)2MLJ685 (P.P.M. Thangaiah Nadar Firm v. The Government of Tamil Nadu). In paragraph 11, the Full Bench framed the following questions:
(1) What is the effect of deletion of Article 19(1)(f) ?
(2) What is the liability of the State regarding loss of life or damages to the properties during rioting ?
(3) What is the remedy available to a victim, that is to say, whether a Writ Petition can be filed or the victim is required to file a Suit for claiming compensation ?
Question No.2 relates to the liability of the State regarding loss of life or damage to the properties during rioting, which was answered by the Full Bench in paragraph 38 of the Judgment, which reads as follows:
38. ...The State is not necessarily liable in every case where there is loss of life or damage to the property during rioting. Where, however, it is established that the officers of the State ordained with duty of maintaining law and order have failed to protect the life, liberty and property of person and such failure amounts to dereliction of duty, the State would be liable to pay compensation to the victim. Such liability can be enforced through Public Law remedy or Common Law remedy. Where, necessary facts to establish culpable negligence on the part of the officials are available, the High Court under Article 226 can issue appropriate direction. Where, however, the main aspect relating to culpable negligence of the officer is seriously disputed, filing of suit may be more appropriate remedy. No hard and fast rule can be laid down on these aspects and obviously the availability of remedy under Article 226 would depend upon the facts and circumstances of each case. Compensation for loss to the property can also be claimed under Article 226 and merely because right to property has been deleted from the Chapter of Fundamental Rights and has been recognised as a Constitutional right, would not disentitle the High Court to examine that question in any appropriate case.
(v) In the decision reported in : (2008)3MLJ160 (Lilly Stanislaus v. Chairman, T.N.E.B.) this Court granted compensation of Rs. 90,000/- to the widow of a person, who was electrocuted due to the negligence of the Electricity Board. In the said Judgment, Honourable Mr. Justice P. Jyothimani, followed the earlier decision of the Supreme Court in Smt. Kumari v. State of Tamil Nadu : AIR1992SC2069 wherein a six year old boy died falling in 10 feet deep uncovered sewerage tank in the City of Madras was ordered compensation of Rs. 50,000/- with 12% interest per annum from 1.1.1990.
(vi) In the decision reported in 2006 WLR 608 (Lakshmana Naidu and Anr. v. The State of Tamil Nadu and Anr.), Honourable Mr. Justice K. Mohan Ram, in paragraph 12 held as follows:
12. The High Court, being protector of Civil liberties of the citizen, has not only the power and jurisdiction, but also an obligation to grant relief in exercise of its jurisdiction under Article 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. The relief in exercise of power under Article 226 of the Constitution of India would be granted once it is established that there has been infringement of the fundamental rights of the citizen.
In the said decision a total compensation of Rs. 5,00,000/- was ordered to the legal heirs.
(vii) In 2004 WLR 611 (The Chief Secretary to the Government of Tamil Nadu and Ors. v. Mrs. R. Selvam), the Division Bench of this Court consisting of the Honourable Mr. Justice A.S. Venkatachalamoorhy, (as he then was) & Honourable Mr. Justice P.K. Misra, confirmed the order of the Honourable Mr. Justice P. Sathasivam, (as he then was) in awarding Rs. 5,00,000/- to the parents of one medical college student, who was killed in a college hostel by the miscreants. The Division Bench in paragraph 17 of its Judgment held as follows:
17. ...The parents while admitting their children, be it a boy or a girl, do so with the fond hope that their wards will be properly looked after. The hostel run by the Thanjavur Medical College is not a commercial establishment. It is the bounden duty of the hostel authorities to take every reasonable, possible and necessary step in providing security arrangements. They have to be more careful and vigilant when they take the responsibilities of providing boarding and lodging for the girl students. In fact, this Court is surprised with the stand taken by the appellants in the counter affidavit filed in the Writ Petition to the effect that they are not responsible since no separate amount was collected under the head 'for security arrangements'.
(viii) In 2004 WLR 346 (Smt. R. Dhanalakshmi v. Government of Tamil Nadu), Honourable Mr. Justice D. Murugesan, ordered to pay a sum of Rs. 9,00,000/- to the legal heir of a person, who was killed while in custody.
(ix) In 2001 WLR 174 (C. Chinnathambi and Ors. v. State of T.N. and Ors.) Honourable Mr. Justice V.S. Sirpurkar, (as he then was) awarded compensation of Rs. 1,50,000/- with 12% interest per annum to each of the parents of two School Students who died when a water tank broke and fell on them. In the said decision in paragraph 5, the responsibilities of the school authorities are emphasised, which reads thus,
5. Right of life enunciated in Article 21 has time and again been recognised by the Supreme Court and in its various ramifications. This was a case where the two innocent children had gone to the school and the accident actually took place during school hours. Even if it is considered that the said tank was constructed by the Parent Teachers Association it was undoubtedly the responsibility of the School authorities to see that the tank was properly constructed and erected and that it should not have been hazardous to the lives of the children. There can be no dispute that in this case school authorities have not been careful enough to see that the construction was proper and in keeping with the rules. It beats one's understanding as to how a tank which was constructed early in 1983-84 would collapse all of a sudden within eight years of its construction i.e., on 12.10.1992. The things do speak for themselves. There can be least doubt that the school authorities were not vigilant in their duties and that this being the Government School the Government would have a liability. There is no dispute that two young lives have perished predominantly because of the lack of care on the part of the school authorities. In my opinion the compensation of Rs. 5000/- by way of ex gratia payment would be a cruel joke. The petitioners have claimed the compensation of Rs. 1,50,000/- each in their writ petitions.
(x) In 2006 WLR 13 (C. Thekkamalai v. State of Tamil Nadu and 2 Ors.) the Division Bench of this Court consisting of Honourable Chief Justice A.P. Shah & Honourable Mr. Justice F.M. Ibrahim Kalifulla, enhanced the compensation from Rs. 75,000/- to Rs. 5,00,000/- to the person who was illegally arrested and raped by the Sub-Inspector of Police. In paragraphs 8 to 10 the Division Bench held as follows:
8. We find considerable substance in the submissions of learned Counsel for the appellant. Where a heinous crime of rape committed by the police personnel, who are public functionaries, the matter clearly relates to the violation of basic human rights as well as Fundamental Right guaranteed under Article 21 of the Constitution and the victim would be entitled to a fair and reasonable compensation. It is reported that the concerned Sub Inspector was convicted by the trial Court in S.C.No.90 of 1992 under Sections 366, 376(2)(a)(1), 384 and 342 of I.P.C. and sentenced to suffer rigorous imprisonment for ten years and to pay fine amount. The trial court also directed the accused to pay Rs. 2,00,000/- and Rs. 50,000/- as compensation to Lakshmi and Thekkamalai respectively. In the appeal filed by the Sub Inspector of Police, the conviction under Sections 366 and 376(2)(a)(i) of I.P.C. as well as the payment of Rs. 2,00,000/- as compensation to the victim Lakshmi was confirmed by this Court. It appears that the amount of compensation has not been paid by the accused, who is presently behind the bars.
9. In our opinion, the ends of justice would be served if the amount of compensation is enhanced from Rs. 75,000/- to Rs. 5,00,000/-. It is brought to our notice that pursuant to the order passed by the learned single Judge a sum of Rs. 85,000/- (Rs. 75,000/- towards interim compensation and Rs. 10,000/- towards rehabilitative measures) has already been paid to the victims Lakshmi and her husband Thekkamalai. We, therefore, direct the State Government to pay the balance amount of Rs. 4,15,000/- (Rupees Four Lakhs Fifteen Thousand only), with simple interest at the rate of six (6) per cent per annum from the date of the order of the learned single Judge till date of payment, within a period of eight weeks from today. Out of the total amount (i.e.) Rs. 4,15,000/- plus interest accrued on the said amount, a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) shall be invested in the name of Lakshmi in a fixed deposit, initially for a period of three years, with Tamil Nadu Power Finance Corporation and she would be entitled to receive the interest accrues on such deposit once in three months. The remaining amount shall be released to the appellant and his wife Lakshmi jointly. State is at liberty to take steps to recover the amount of compensation so paid to the victims from the concerned delinquent police personnel by taking appropriate steps in accordance with law.
10. We further direct the State Government to consider the application of Lakshmi for allotment of agricultural land under THADCO land purchase scheme and if she identifies the land, the same shall be allotted to her at concessional rate in accordance with the scheme.
(xi) In W.P.No.19260 of 2002, by order dated 14.8.2008, I have considered similar issue claiming compensation by father of a student, who died due to the collapse of a compound wall inside the School and a sum of Rs. 2 lakhs with 10% interest was ordered to be paid by the Department.
13. The Principal or Headmaster of an Educational Institution is responsible for the discipline in the institution, apart from maintaining quality of education as well as functional efficiency.
14. In the decision reported in AIR 2004 SC 499 (Manager, Nirmala Senior Secondary School, Port Blair v. N.I. Khan and Ors.) the Honourable Supreme Court explained the role of a teacher in an educational institution, in paragraphs 1 and 2, which reads as follows:
A teacher affects the eternity. He can never tell where his influence stops; said Henry Adam. Any educational institution for its growth and acceptability to a large measure depends upon the quality of teachers.
2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge....
15. On the basis of my above findings as well as the decisions referred above, it is evident that the respondents 1 and 5 are vicariously liable to pay compensation for the death of petitioner's son, K. Jagankumar, aged 16 years.
16. Now the only question to be decided is with regard to the quantum of compensation payable to the petitioner.
17. The Supreme Court in the decision reported in (Lata Wadhwa v. State of Bihar) considered the compensation payable for the loss of a child between the age group of 10 and 15 years. In the said decision, for the children of the age group between 10 and 15 years, a sum of Rs. 4,10,000/- was considered as the reasonable amount, considering the age of the parents by applying the multiplier 15 at the rate of Rs. 24,000/- per annum as contribution, along with a further sum of Rs. 50,000/- towards conventional damages.
18. Following the said decision of the Supreme Court and having regard to the fact that the petitioner, who is aged 43 years, has lost his elder son due to the negligence/carelessness of the 5th respondent School, I hold that the petitioner is entitled to get a compensation of Rs. 4.10 lakhs with interest at the rate of 9% per annum from the date of death of the petitioner's son viz., 12.1.2004. The five years interest comes to Rs. 1,84,500/-.
19. The petitioner submitted a representation to the respondents 1 to 5 as early as on 30.5.2005 praying payment of compensation and the same was acknowledged by the respondents on 1.6.2005. Due to the inaction on the part of the respondents 1 to 5, the petitioner filed the present writ petition on 17.10.2005 and this Court admitted the writ petition on 20.10.2005. In spite of receipt of the notice in the writ petition, the respondents 1 to 5 have not chosen to act in any manner. This attitude and mindset of the respondents 1 to 5 show an indifferent disposition of mind, without realising the responsibility reposed on them. In such circumstances, the petitioner is also entitled to get cost of Rs. 5,500/-.
20. Thus, in toto, the first respondent is directed to pay a total sum of Rs. 6,00,000/- (Rupees Six Lakhs only) to the petitioner on or before 12.1.2009.
The writ petition is ordered with the above direction. Connected miscellaneous petition is closed.