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V. Gopala Gowda, J.—The petitioners have filed this writ petition seeking for issuance of a writ of mandamus or direction directing the respondent No. 1 Corporation to pay a sum of Rs. 10,00,000 as compensation to the petitioners towards the loss of the life of their only son Karthik Babu urging various facts and legal contentions.
The brief facts of the case are stated as hereunder. The respondent No. 1, hereinafter called as the Corporation in short is the owner of the swimming pool situated in Jayanagar, 4th Block which is open to public on paying requisite entry fee. The Corporation has given the said swimming pool to the respondent No. 2 after inviting tenders to manage the said swimming pool for a specified period to collect necessary entry fee from the persons who have to swim in the swimming pool. The respondent No. 2 is actually in charge of the swimming pool on day-to-day basis. The respondent Nos. 3 and 4 are the Instructor and the Assistant Instructor appointed by the respondent No. 1 to supervise the swimming pool during the working hours to see that no unforeseen events take place in the swimming pool and also since they were qualified and trained, they would be able to coach the students very well. The Corporation issued a Job Chart for the swimming pool instructors vide its circular dated 4.2.1987, which details the duties of the swimming instructors and assistant swimming instructors. The respondent Nos. 3 and 4 were on duty on 9.4.1992.
The petitioners are the parents of Karthik Babu who was aged about 16 years. He had appeared for SSLC Examination which was conducted in the month of March/April, 1993. After completing the examination conducted by the Karnataka Secondary Education Board, the said Karthik Babu went to the swimming pool on 9.4.1993, for swimming after having paid the necessary entry fee. He was accompanied by his friends, namely, Muralidar, Sunil Kumar and Mahesh Babu. The above said boys, including the deceased Karthik Babu entered the swimming pool of the Corporation at about 8 a.m. for the batch of 8 a.m. to 8.45 a.m. on 9.4.1993. The respondent Nos. 3 and 4 were expected to be present in the swimming pool and take care of the boys who were swimming in the swimming pool. The deceased Karthik Babu who entered the swimming pool, in the process of swimming, he was caught between people and started drowning. At that time, he shouted for help.
The respondent Nos. 3 and 4 who were expected to act upon and save lives of the boys were conspicuously absent near the swimming pool. No other person went to the rescue of the boy and as a result of that, he had drowned and as a consequence of it, he died in the swimming pool. It is also further stated that when the said Karthik Babu was in the process of drowning, several people shouted for help. But nobody went and saved him.
After the aforesaid incident came to the knowledge of one Anand Kumar, the father of Mahesh Babu, he had immediately lodged a complaint with the Tilak Nagar Police Station, Jayanagar. The police inspected the spot and lodged a F.I.R. against the respondent Nos. 2 to 4 vide Annexure B. The police have also recorded the statement of the petitioner No. 1 and Mahesh Babu as per Annexures C and D. The body of Karthik Babu was taken to Victoria Hospital and post-mortem was conducted. It is certified in the post-mortem report that the death of the boy was due to drowning. The post-mortem report is produced at Annexure E.
The death certificate was also issued by the Corporation. The above said unfortunate incident was also published in the local daily newspaper as per Annexure D. The petitioners were shocked at the untimely death of their only son and they continued to be in shock on account of the tragedy of the death of their son which took them considerable time to overcome from the said ghastly incident. The petitioners have also lodged a complaint with the Tilak Nagar Police Station, Jayanagar on 18.4.1993.
It is the case of the petitioners that besides the deceased Karthik Babu, they have also two daughters who were younger to him. It is their case that their only son was a brilliant student throughout his student career and was also a good sportsman who participated in school tournaments in games like football and athletics. A certificate in this regard has been produced at Annexure J.
The petitioners who were his parents had visualised their future in him. He passed in SSLC Examination and the marks card is produced at Annexure K. It is the specific case of the petitioners that their only son died on account of gross negligence on the part of the respondent Nos. 3 and 4 as they have failed in their duties at the time of the occurrence of the incident. It is further alleged that they have not adhered to the Job Chart issued by the Corporation. Therefore, they had been negligent in performing their duties. It is stated that if the respondent Nos. 3 and 4 were to be present near the swimming pool at the time of the incident, it could not have ended in tragedy as they were trained and qualified swimming instructors and had been trained in the art of life-saving and they were employed by the Corporation to face such eventualities, but they were absent at the time of the unfortunate incident. Therefore, it is a clear case of dereliction of duty on their part and it was the paramount duty of the Corporation to see that persons who enter the swimming pool do not get drowned and die as many number of youngsters will be going to the swimming pool for swimming. It is further stated that the Corporation has not even provided necessary basic first-aid kit as such, the chance of saving the deceased boy was also lost.
It is further stated that the loss of the deceased boy had left them in a state of shock and mental agony. Therefore, the respondents are jointly and severally liable for their negligence on account of which the only son of the petitioners died. The death of their son cannot be compensated in terms of money as it is a perennial grief to the parents and their family members. It is stated that on account of untimely death of the only son of the petitioners who had a very bright future of becoming a respectable citizen and he could have looked after the petitioners in their old age. Hence they have assessed damages at a sum of Rs. 10,00,000.
The petitioners got issued a legal notice dated 22.9.1993 calling upon the respondents to pay a sum of Rs. 10,00,000 towards compensation for the death of their son on account of the gross negligence on the part of the respondent Nos. 3 and 4. The said notice has been duly served on the respondent Nos. 1, 2 and 4. The respondent No. 3 has evaded to acknowledge the said notice. The respondents upon whom the legal notices were served have neither complied with the demand nor replied to the notice. Therefore, the present writ petition is filed contending that the gross negligence on the part of the respondents in not maintaining the affairs of the swimming pool as required in law has caused the unfortunate incident, i.e., the death of Karthik Babu.
It is due to lack of diligence on the part of the respondent Nos. 3 and 4, who are the Instructor and Assistant Instructor respectively trying to save the lives of the persons who will be swimming in the Corporation swimming pool could have discharged their duty, if they were to be present near the swimming pool at the time of the incident the unfortunate death of Karthik Babu would not have occurred. It is further submitted by the learned Counsel for the petitioners that if the respondent Nos. 3 and 4 were to be present at the time of the incident, definitely they would have saved the deceased boy. Therefore, it is urged that the respondent Nos. 3 and 4 have committed gross negligence by not saving the boy when he was drowning in the swimming pool. Therefore, the learned Counsel for the petitioners has placed reliance on the various judgments of the Supreme Court and the other High Courts in the country in support of the case of the petitioners to show that they are entitled for awarding of compensation for the loss of life of their only son by this Court in exercise of its extraordinary jurisdiction. It is also further submitted that the fact of death of their son on 9.4.1993 is not disputed. The other aspects, namely, the brightness of the boy, his age and educational qualification are also not disputed. It is further submitted that in number of judgments, the Supreme Court in exercise of its power under Article 32 of the Constitution of India, has awarded compensation in the writ petitions on the ground of negligence on the part of the military personnel, police action on account of the custodial death in the prison, abduction of the person by the police force and possible assault on account of illegal detention and torture. Death of children and infant due to leakage of pesticides and fumes due to negligence, death of occupational hazards, failure to provide emergency minor treatments and custodial death of a son of the parents in the following reported judgments: Smt. Charanjit Kaur Vs. Union of India and others, ; Kewal Pati (Smt) Vs. State of U.P. and Others, ; Inder Singh Vs. State of Punjab and others, ; T. C. Pathak v. State of U.P., (1995) 6 SCC 357; State of Haryana and others Vs. K.N. Dutt, ; Consumer Education and Research center and others Vs. Union of India and others, ; Paschim Banga Khet Mazdoor Samity and others Vs. State of West Bengal and another, ; Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, and further reliance is placed in the case of The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, which are extracted as hereunder:
(9) Various aspects of the public law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The public law remedies have also been extended to the realm of tort. This court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah Vs. State of Bihar and Another, . See also Bhim Singh v. State of J&K 1986 ACJ 867 (SC); Peoples'' Union for Democratic Rights Vs. State of Bihar and Others, ; Peoples'' Union For Democratic Rights Through Its Secretary and Another Vs. Police Commissioner, Delhi Police Headquarters and Another, ; Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, ; Arvinder Singh Bagga Vs. State of U.P. and Others, ; P. Rathinam v. Union of India 1989 Su 2 SCC 716; In re: Death of Sawinder Singh Grower 1995 Su 4 SCC 450; Inder Singh Vs. State of Punjab and others, and D.K. Basu Vs. State of West Bengal, .
(10) In cases relating to the custodial deaths and those relating to medical negligence, this Court awarded compensation under the public law domain in Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, ; State of Madhya Pradesh v. Shyamsunder Trivedi AIR1995 SCW 2793; People''s Union for Civil Liberties Vs. Union of India and another, ; Jahar Singh Vs. Union of India (UOI) and Others, ; Supreme Court Legal Aid Committee Vs. State of Bihar and Others, ; Dr. Jacob George v. State of Kerala AIR1994 SCW 2282; Paschim Banga Khet Mazdoor Samity and others Vs. State of West Bengal and another, and Manju Bhatia v. New Delhi Municipal Council AIR 1998 SC 223.
The death of the school children in the river due to negligence of school management compensation of Rs. 5,00,000 was awarded to the parents of each child by the Himachal Pradesh High Court in the case of Deep Chand Sood and Others Vs. State of Himachal Pradesh and Others, and also compensation was granted by the Madras High Court in the case of T. Gajayalakshmi Thayumanavar and another Vs. Secretary, Public Works Department, Govt. of Tamil Nadu, Madras and others, , in exercise of power under Article 226 of the Constitution of India on account of death of 21 years old boy caused due to electrocution because of fall of overhead electrical wire, Electricity Board was found negligent and compensation of Rs. 3,99,000 was granted to the appellants.
Per contra, the respondent No. 1 has filed a detailed statement of counter opposing the claim of the petitioners contending that the writ petition is not maintainable in law. Therefore, they have prayed for dismissal of this petition and it is admitted that the swimming pool belongs to the Bangalore City Corporation and also further admitted that the respondent Nos. 3 and 4 who are the Swimming Instructor and the Assistant Instructor who are employees of the Corporation. The respondent No. 2 was the operator of the swimming pool on 9.4.1993. They had further asserted that the respondent Nos. 3 and 4 are qualified and trained swimming instructors and were on duty and in charge of the swimming pool on that day discharging their duties as per the Job Chart and circular dated 4.2.1987. It is further admitted that the deceased Karthik Babu had entered the swimming pool at about 8 a.m. for swimming in the batch of 8 a.m. to 8.45 a.m. on 9.4.1993. But the respondent Nos. 3 and 4 have denied the allegation that they had gone out ignoring the duties cast upon them and had stated that they were not conspicuous in their absence which is false and invented statement made by the petitioners to justify their claim. Therefore, it is stated that the petitioners are put to strict proof of the allegations made against the respondents.
Further, it is asserted by the Corporation that the respondent Nos. 3 and 4 were on duty at the swimming pool on 9.4.1993 for the batch from 8 a.m. to 8.45 a.m. and were very much present at the pool discharging their duties diligently. It is further stated that at that time they had noticed that Karthik Babu who did not know swimming was trying to learn swimming at little deeper end of the pool. The respondent Nos. 3 and 4 having noticed this had warned him and moved him to the learner''s end of the pool. It is alleged that even after that the boy again tried to go deeper and hence the respondent Nos. 3 and 4 took the boy out of the pool with strict instructions not to enter the pool again. However, when the respondents were engaged in their routine supervision of other swimmers, the boy without their knowledge somehow managed to enter the pool and indulged in swimming on his own at the deep end of the pool. Immediately after noticing that the boy started drowning, the respondent Nos. 3 and 4 brought the boy out of the pool and extended first aid. After administering the first aid while transporting the boy to the hospital for further treatment, the boy expired on the way. It is submitted that the boy was alive when he was taken out of water and administered first aid. Therefore, the respondents have contended that they have acted diligently in saving the boy from drowning and extended all possible facilities to save and send him to the hospital and in spite of their best efforts the boy died on the way to the hospital.
It is further contended by the learned Counsel for the respondents that despite warnings by the instructors the boy ventured to swim at the deep end of the pool without their knowledge and suffered for his mistake. It is stated that the respondent Nos. 3 and 4 being trained and qualified have discharged their duties in all fairness and prompt action was taken well in time. The respondents were not negligent in discharging their duties as alleged and were in no way responsible for the death of the boy. The statement of other swimmers who were present at that time, recorded immediately after the incident to show that the respondents have taken prompt action to save the deceased boy.
The further allegations in the petition that the deceased was a brilliant student throughout his career and he was a good sportsman and participated in school tournaments like football and athletics are said to be not within the knowledge of the respondents. Further they have submitted that the respondent Nos. 3 and 4 were not negligent in discharging their duties and also the inquiry held by the Corporation revealed that they were not negligent. Moreover, the entry of swimmers to the swimming pool was restricted and subject to the conditions of entry which is prominently displayed at the entrance of the swimming pool. As per condition 12 of the said notice, neither the Corporation nor its officials are responsible for any loss of life, injury, accidents and for loss of other articles like wristwatch, purse and other valuables. It is stated that the deceased boy entered the swimming pool after reading the said condition. Therefore, the respondents contended that they are not liable to pay any compensation, much less the claim of Rs. 10,00,000 of the petitioners. It is further stated that the reliance placed upon the decisions of the Supreme Court and the various High Courts which are referred to in this judgment are not applicable to the facts of this case, as they are all cases involving fundamental rights and whereas the petitioners'' fundamental rights have not been infringed in this case as stated by them. Therefore, the respondents'' counsel has prayed for dismissal of the writ petition. He placed reliance on the judgment of the Apex Court in the case of Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das AIR 1999 SC 3412, for the proposition that the High Court in exercise of its power under Article 226 of the Constitution of India cannot award compensation in cases of death due to negligence by coming into contact with electricity lines of the power corporation and further held that the acts of negligence cannot be proved by the parties by filing affidavits alone for the reason that the actions are required to be established by the claimants by placing cogent and valid evidence on record. Therefore, the Supreme Court has held, in that case, that it was wrong on part of the High Court of Orissa in entertaining the writ petition in exercise of its writ jurisdiction on the disputed questions of fact and this Court cannot adjudicate the disputed fact in the writ petition proceedings in exercise of its extraordinary and discretionary power under Article 226 of the Constitution of India. Therefore, the learned Counsel for the respondents submits that the writ petition is liable to be rejected.
After hearing the learned Counsel for the petitioners and the respondents at length and after perusing the petition averments and the documents and the statement of counter filed by the respondents this Court proceeds to pass the following order. This court has issued ''Rule nisi'' on 3.1.1994 and on 10.7.1995 the petition was referred to the Division Bench u/s 9 of the Karnataka High Court Act for the reasons stated in the order. The matter has been pending before this Court till 19.1.2000 and on that date, the case was heard on merits and reserved for judgment and today we have pronounced that judgment.
The relevant facts of the case are taken into consideration by this Court for the purpose of considering the case of the parties and granting the reliefs claimed by the petitioners in this petition having regard to the circumstances of this case. It is an undisputed fact that the deceased Karthik Babu went to the swimming pool of the respondent No. 1 Corporation on 9.4.93 for swimming. It is also an undisputed fact that the respondent Nos. 3 and 4 were the Swimming Instructor and Assistant Instructor respectively on that date near the swimming pool, they are trained persons in swimming appointed by the respondent No. 1 Corporation whose main duties are to be in charge of the swimming pool and manage the activities of the pool. The Corporation had issued a circular detailing the duties of the Swimming Instructors and Assistant Instructors respectively as per the Job Chart vide Annexure A to the writ petition. It is also undisputed fact that the deceased Karthik Babu, the son of the petitioners had entered the swimming pool at about 8 a.m. for swimming in the batch of 8 a.m. to 8.45 a.m. on 9.4.1993. He was in the process of swimming and he was caught between people and started drowning in the swimming pool. It is also an undisputed fact that the respondent Nos. 3 and 4, in the counter statement at para 3 have clearly stated that the deceased Karthik Babu who did not know swimming was trying to learn swimming at a little deeper end of the pool and the respondents had also warned him and moved him to the learners end of the pool. Despite warning him by the Instructors he had tried to go deeper and he was taken out from the swimming pool by the Instructors with strict warning to him not to enter the pool. It has been further stated that when the respondent Nos. 3 and 4 were busy with the other learners teaching them swimming, the boy had managed to enter the pool without their knowledge and had indulged in swimming on his own at the deeper end of the swimming pool. In the same para, it is stated by them that immediately after noticing that the boy started drowning, they brought him out of the pool and extended first aid to him. While he was taken from the swimming pool to the hospital for treatment, on the way he expired. It is further stated that when he was taken out from the swimming pool he was alive and while he was taken to hospital he died. From the above facts it is an undisputed fact that he died due to drowning in the swimming pool of the Corporation.
In the background of the above referred necessary and relevant admitted facts by the parties and the judgments of the Apex Court and other various High Courts, which are referred to in this judgment wherein they have held in exercise of their power under Articles 32 and 226 of the Constitution of India, they have awarded compensation to the petitioners in those cases and awarded compensation to them on account of death of persons for various illegal and arbitrary actions of the authorities. In the backdrop of the facts and circumstances of this case the legal contentions urged by the learned Counsel for the parties, this Court considered the contentions of the parties urged by them. The petitioners have contended that the Instructor and Assistant Instructor were not diligent in discharging their duties as per the Job Chart on 9.4.1993 near the swimming pool at the shift hours between 8 a.m. and 8.45 a.m. No doubt these facts are denied by the contesting respondents in their counter statement. But the petitioners'' counsel has placed reliance upon the definition of ''drowning and asphyxia'', as defined in the Medical Jurisprudence book written by the leading author Miles and further in the post-mortem report of the boy it is mentioned as "death due to asphyxia as a result of drowning". The definition of drowning as defined in the above referred book is extracted as here-under:
Definition of Drowning:
Drowning is a form of death in which the atmospheric air is prevented from entering the lungs by submersion of the body in water or any other fluid medium. It is not necessary that there should be complete submersion. Death is sure to occur, even if the face alone is submerged so that air is prevented from entering the respiratory orifices.
The different kinds of drowning are, (a) wet drowning may be in fresh or salt water, (b) dry drowning, (c) secondary drowning and (d) the immersion syndrome (cold water drowning). It is now established that the mechanism of death in drowning is complex. Miles suggested that the term ''drowning'' should be used to denote the process resulting from submersion in water in which there is loss of consciousness and a threat to life. Drowning has been defined accordingly as death due to submersion.
Stages of Drowning:
When an individual in perfect possession of his senses falls into water, he sinks to a depth proportionate to the momentum obtained during the fall, but immediately rises to the surface owing to the buoyancy of the body and clothes and struggling movements of his limbs, though the specific gravity of the body is slightly higher than that of water. If he is not a swimmer, he cries and shouts for help, when, his mouth being at the level of the water surface, he draws water into the stomach and lungs. The water in the lungs excites coughing and during violent expiratory efforts due to cough, a certain amount of air is expelled from the lungs and its place is taken up by the water which is drawn into the lungs. The weight of the body increases and he sinks. He rises again to the surface by the voluntary movements of the limbs and draws more water into the lungs in an effort to keep above water and consequently goes to the bottom. This alternate raising and sinking goes on longer than the proverbial three times, until all the air has been expelled from the lungs and its place has been taken up by water. He then becomes insensible and sinks to the bottom to die. Sometimes convulsions and a short period of suspended animation precede death. K.W. Donald reports the following differences in dogs drowned in fresh and in salt water.
In fresh water (which is hypotonic) drowning following an initial period of struggling and apnoea of 1 to 2 minutes, large quantity of water is drawn into the lungs and immediately absorbed into the pulmonary circulation across the alveolar surface, which produces haemodilution, rise in blood volume and a proportionate reduction of electrolyte concentration. The dilution of blood causes hemolytic of the red-cells resulting in rise of plasma potassium and presence of free haemoglobin in the plasma. Potassium-sodium ratio is greatly increased, the sodium is considerably reduced by haemodilution. Ventricular fibrillation follows in a few minutes, there is a dramatic fall of blood pressure and death from marked cerebral anoxia. Respiratory failure may precede or follow by few seconds ventricular fibrillation, death occurs in about five minutes of drowning. In salt water (which is hypertonic) more than 3 per cent salt drowning the electrolyte concentration of the inhaled fluid is greater than that of body and water is absorbed from the pulmonary circulation into the alveolar spaces causing massive pulmonary oedema and hemoconcentration and hypovolemia, magnesium increases in the blood, here there is no hemolytic but the plasma sodium levels are high. No ventricular fibrillation or sudden fall of blood pressure occurs, death due to myocardial anoxia, occurs in about 8 to 9 minutes greater time than in fresh water. The importance of tonicity of the fluid inhaled was dramatically illustrated by J.A. Kylestra who reported that mice submerged in physiological saline solution, suitably oxygenated could survive for 18 hours, whereas if this medium was replaced by sea water or tap water, the mice succumbed in less than 12 minutes. Besides the tonicity of the fluid, the volume inhaled also has considerable bearing on the outcome. J.M. Modell, et al showed that in dogs the chance of survival was very small if the volume inhaled exceeded 20 ml. per 1b. body weight while the critical volume of sea water was about 10 ml. per lb. It is believed that in humans somewhat similar phenomena occur in drowning.
When an individual is rendered unconscious by shock of syncope at the time of immersion, he goes to the bottom and may rise once to a certain height but usually sinks without a struggle. In such a case little water enters the respiratory tract.
Symptoms:
The subjective symptoms felt by a drowning person are auditory and visual hallucinations and return to memory-panoramic views of events in past life, which had already been forgotten. In some cases there is mental confusion.
In view of the post-mortem report of the deceased boy and as per the definition of the drowning and asphyxia we have to record a finding that Karthik Babu died on account of drowning and asphyxia, if the Instructor and Assistant Instructor who were on job near the swimming pool, were to be there at that relevant time, the boy could have been saved from drowning in the swimming pool. For the reason stated supra we have to come to the conclusion that the respondent Nos. 3 and 4 have not discharged their duties as per the Job Chart.
Learned counsel Mr. B.V. Muralidhar for the respondent Nos. 1, 3 and 4 has contended placing reliance on the judgment of the Supreme Court in the case of Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das AIR 1999 SC 3412, for the proposition of law laid down by the Apex Court in the above case to the effect that this Court cannot exercise its power under Article 226 of Constitution of India for the alleged acts of negligence on the part of the respondent Nos. 3 and 4 cannot be proved by affidavits alone as such the allegation of negligence against the Instructor and Assistant Instructor of the Corporation has to be established by the claimants by adducing positive and substantive evidence on record in justification of their claim of compensation for the death of their son. This court has considered the law laid down in the aforesaid cases of the Apex Court which are referred to at para 11 of this judgment and particularly the recent judgment of the Apex Court in The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, , the Apex Court has laid down the law holding that this Court can exercise its power under Article 226 of the Constitution regarding the tortious liability of the master and awarded suitable compensation. The Apex Court in the above referred case at paras 9 and 10, with reference to the various judgments of the Apex Court has clearly laid down the law holding that this Court can exercise its power and award compensation. Supreme Court has considered the claim of the petitioners in those cases under Articles 32 and 226 in writ petitions filed by them and the Supreme Court and the various High Courts have awarded compensation to the claimants. In this view of the matter we have to accept the submission of the learned Counsel on behalf of the petitioners as his submissions are well founded for the reason that the same is in conformity with law laid down by the Apex Court in those cases and has awarded compensation in the writ petitions on the affidavits with regard to the death of the persons either due to drowning or custodial deaths either in the police stations or prisons or occupational hazards. Further having regard to the certain undisputed facts and this writ petition is pending before this Court for the last 7 years and ''Rule nisi'' was issued long back and, therefore, we should not drive the petitioners to the civil court for institution of suit to claim the compensation, the same cannot be done for the reason that the limitation prescribed in the Indian Limitation Act for the suit by the petitioners is also expired and also keeping in view the law laid down by the Apex Court in catena of cases referred to above we need not direct the petitioners to approach the civil court for institution of original suit claiming compensation. Therefore, we are accepting the petition and granting the relief of compensation to the petitioners holding that the reliance placed upon the judgment of Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das AIR 1999 SC 3412, by the contesting respondents does not render any assistance to the contesting respondents in view of the recent judgments of the Apex Court in the case of The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, , therefore, the reliance placed upon the case of Chairman, Grid Corporation of Orissa Ltd. is misplaced, hence the same cannot be accepted.
This court has considered the law laid down by the Supreme Court in the aforesaid cases in the background of certain undisputed facts of the case, namely, deceased Karthik Babu was studying in X Standard and he died on account of drowning and asphyxia in the swimming pool of the respondent No. 1 Corporation and it is correctly stated in the post-mortem report of the doctor and we have placed much reliance upon the definition of drowning as defined in the Medical Jurisprudence book written by the leading author Miles from the reading of the definition of drowning as defined in the said book and in view of the aforesaid facts and the undisputed fact of death of the deceased Karthik Babu is due to drowning in the swimming pool on 9.4.1993, we are of the view that this Court has to exercise its plenary and extraordinary jurisdiction with a view to do complete justice to the parties in this petition we have to award compensation to the petitioners.
In the instant case, the petitioners instead of instituting the original suit against the respondents claiming compensation for the fatal accident of death of the son of the petitioners in the swimming pool and they have approached this Court by filing writ petition on 3.1.1994, after 8 months from the date of death of Karthik Babu. At that time there was limitation as prescribed in the Limitation Act for the petitioners to institute original suit proceedings claiming compensation amount against the Corporation on account of the death of the deceased Karthik Babu. But this Court has issued ''Rule nisi'' on 3.1.94 and further on 10.7.1995 the matter was referred to the Division Bench u/s 9 of the Karnataka High Court Act, for its effective decision in the matter. For the reasons stated supra this Court need not direct the petitioners to approach the civil court for the reliefs as claimed in this petition as the petitioners cannot file original suit at this belated stage. Such claim at this stage is barred by limitation. Added to this, the petitioners have filed this writ petition in the year 1993 and they are awaiting for the relief all these years. Driving them to civil court at this stage would tantamount to rendering injustice to them. Already they have lost their son. They cannot be subjected to further suffering now and to wait for another decade to get the result, which is also impermissible in view of law of limitation. Hence, we are not inclined to accept the submission of the learned Counsel for the Corporation to direct the petitioners to approach the civil court for claiming the relief of compensation on the basis of the law laid down by the Apex Court in Rudul Sah Vs. State of Bihar and Another, .
For the reasons stated supra and having regard to the age of the deceased boy and the undisputed fact of death of the boy on account of asphyxia as a result of drowning in the swimming pool, the petitioners are entitled for reasonable compensation.
Keeping in view the law laid down by the Supreme Court in catena of cases referred to supra in this judgment, it would be proper and appropriate for this Court to exercise its plenary and discretionary power under Article 226 of the Constitution of India and to do complete justice to the parties and also with a view to avoid further delay in the matter, we assess the pecuniary loss caused to the petitioners who are the parents of the deceased Karthik Babu who died at his tender age in the swimming pool, on the basis of the compensation amounts ordered to be paid by the Apex Court in the decisions referred to above.
Therefore, this Court in the interest of doing complete justice between the parties, is of the view that awarding a sum of Rs. 2,00,000 (rupees two lakh only) as the compensation amount to the petitioners, in our opinion, would be fair and reasonable.
For the reasons stated supra, we pass the following order:
This writ petition is partly allowed directing the respondent No. 1 Corporation to pay a compensation of Rs. 2,00,000 (rupees two lakh only) to the petitioners on account of the death of their son Karthik Babu within eight weeks from today.