Velaiswamy Nagammal and ors. Vs. V.A. Sethu Manickan and anr. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 7. for reasons best known to them, appellants did not examine the person that gave the report about the accident. since the appellants failed to examine the person, who gave the report to the police, and since the averments in ex. a 1 produced by the appellants themselves clearly shows that the deceased was negligent.c.y. somayajulu, j.1. appellants who are the mother, widow and children of v. mani (the deceased), filed a claim petition seeking compensation of rs. 1,00,000/- from the respondents alleging that the deceased died due to an accident that took place due to the rash and negligent driving of the driver of the lorry belonging to the 1st respondent and insured with the 2nd respondent.2. 1st respondent chose to remain ex-parte. 2nd respondent filed counter contesting the claim.3. in support of the case of the appellants, 2nd appellant only was examined as p.w. 1 and ex. a 1 to a7 were marked. no evidence either oral or documentary was adduced on behalf of 2nd respondent. on the basis of the evidence adduced on both sides, the tribunal held that the accident occurred due to 50% negligence of the deceased and 50% negligence of the driver of the lorry of the 1st respondent, and so appellants are entitled only to rs. 55,827/-, being 50% of the compensation of rs. 1,11,654/- payable to them due to the death of the deceased in the accident. aggrieved by the finding of the tribunal that the accident occurred due to the contributory negligence of the deceased, and seeking higher compensation the appellants have preferred this appeal.4. the point for consideration is whether the accident occurred due to the contributory negligence of the deceased and to what compensation are the appellants entitled to.5. the contention of the learned counsel for the appellants is that the tribunal was in error in holding that the accident occurred due to 50% negligence of the deceased, more so because, ex.a7 shows that the driver of the lorry was convicted for the offence under section 304-a ipc. the contention of the learned counsel for 2nd respondent is that the findings arrived at by the tribunal based on the documentary evidence adduced by the appellant need no interference.6. it is no doubt true that ex.a7-judgment of the criminal court shows that the driver of the lorry belonging to 1st respondent involved in the accident was convicted for the offence under section 304-a ipc and was sentenced to pay a fine of rs. 2,000/-. but that, per se, is not a ground for holding that the accident took place only due to the rash and negligent driving of the driver of the lorry of the first respondent. the tribunal did not take into consideration the averment in ex. a 1 (fir) produced by the appellants that the deceased who sat near the cabin door kept it open to let in fresh air, and was thrown out of the lorry when the driver of the lorry applied sudden brake. judicial notice can be taken that in many cases under section 304-a ipc, drivers of the vehicles especially if those vehicles belong to some other place, would be lured by police to admit the offence promising that on conviction they would only be sentenced to fine but not imprisonment, so that he need not appear again, and taking advantage of the lenient view taken by some magistrates, offending drivers admit the offence, even though the accident might not have occurred due to his negligence only, with a view to avoid making trips to the court by pleading 'not guilty' and taking trial. if section 304-a ipc is amended and imprisonment is made compulsory many of the drivers who did not cause accidents due to their negligence, would not venture to admit the offence. since 1st respondent is shown as a resident of periyakulam, madhurai district, tamil nadu, his driver also must be from tamil nadu state. so he might have, with a view to avoid making further trips to court, admitted the offence. so merely on the basis of ex.a7, it cannot be said that the accident occurred only due to the rash and negligent driving of the driver.7. for reasons best known to them, appellants did not examine the person that gave the report about the accident. since ex. a 1, a document produced by the appellants, contains certain statements which are against their interest, appellants have to explain the circumstances to get over those statements, so that the court may not give a finding against them. since the appellants failed to examine the person, who gave the report to the police, and since the averments in ex. a 1 show that the deceased kept the window open and was sitting at the end of the seat, obviously knowing the natural consequences of his act that if the driver were to apply a sudden brake there is a possibility of his falling down, i am of the view that the tribunal did not commit any error in coming to a conclusion mat the deceased was guilty of contributory negligence for the accident because ex. a 1 produced by the appellants themselves clearly shows that the deceased was negligent. had the deceased not kept the door open, he would not have fallen down from the lorry when the driver applied a sudden brake. in the facts and circumstances of the case, the deceased can be said to be guilty of 25% contributory negligence but not 50% contributory negligence as held by the tribunal.8. so i hold that the accident occurred due to 25% contributory negligence of the deceased and due to 75% of negligence of the driver of the lorry belonging to the 1st respondent. the point is answered accordingly.9. holding that the deceased was earning rs. 6,000/- p.m. as cleaner and was contributing rs. 450/- per month or rs. 5,400/-per annum to the appellants and fixing the multiplier as 16.51 on the basis that the deceased was aged 30 years, the tribunal awarded rs.89,154/- towards pecuniary damages and rs. 15,000/- towards non-pecuniary damages and rs. 7,500/- towards loss of consortium to the 2nd respondent making a total of rs. 1,11,654/- which is just and reasonable. so rs. 1,11,700/- would be the compensation to which the appellants would have been entitled to.10. but as i held that the accident occurred due to 25% contributory negligence of the deceased, appellants are entitled only 75% of rs. 1,11,700/- i.e. rs. 83,775/- from the respondents jointly and severely. the point is answered accordingly.11. in the result, the appeal is allowed in part. an award is passed for rs. 83,775/-in favour of the appellants against the respondents with interest at 12% p.a. for rs. 55,827/- as awarded by the tribunal and with interest at 9% on rs. 27,948/- granted in this appeal, from this date till the date of deposit into the tribunal. rest of the claim of appellants is dismissed without costs. parties are directed to bear their own costs in this appeal. from out of the said amount, petitioners 1, 3 and 4 are each entitled to rs. 19,078.75 and 2nd appellant is entitled to rs. 26,558.75, and interest thereon.