Ganesan and Nagammal vs The State of Tamil Nadu and Others

Honourable Mr. Justice K.K. Sasidharan

This Writ Petition at the instance of the unfortunate parents seek a Writ of Mandamus, directing the respondents to pay a sum of Rs.

21,00,000/- as compensation on account of the death of their only son Irulaiya, who was killed in petrol bomb blast.

Factual Matrix:

The petitioners are residents of Manakudi Village, Paramakudi Taluk in the district of Ramanathapuram. Their only son Irulaiya studied upto 10th

standard. Since the family has no independent source of income, Irulaiya discontinued his studies and he was doing mason work in and around

Paramakudi and was earning a sum of Rs. 500/- per day. He was the sole breadwinner of the family.

According to the petitioners, on the fateful day (20 May 2009), Irulaiya was proceeding to Madurai and he was travelling in a bus owned by the

Tamil Nadu State Transport Corporation. When the bus reached Thiruppuvanam in Sivagangai District, at about 02.00 p.m., three individuals

belonging to Viduthalai Siruthaigal Party, threw petrol bombs to the bus. The bomb blast caused multiple injuries on the body of Irulaiya and he

was admitted in the Government Rajaji Hospital, Madurai. Subsequently, on 23 May 2009, Irulaiya succumbed to the injuries.

According to the petitioners, the death took place on account of the negligence of police officers, who were entrusted with the task of

preserving law and order. Therefore, the State was liable to pay compensation. The deceased was aged 26 years old at the time of his death. He

was earning a sum of Rs. 500/- per day as a Mason. Though a representation was given to the respondents on 24 March, 2010 claiming a sum of

Rs. 21,00,000/- as compensation, there was no response. The deceased was their sole supporter and as such, they were denied the assistance

and company of their son. Therefore, the petitioners seek a direction to the respondents to pay a sum of Rs. 21,00,000/- as compensation.

The fifth respondent, Inspector of Police, Thiruppuvanam Police Station filed a counter in answer to the contentions raised in the affidavit filed in

support of the Writ Petition. According to the fifth respondent, at about 02.00 p.m., on 20 May, 2009 there was an incident of petrol bomb blast

in a Government bus at Thiruppuvanam and in the said occurrence, three passengers sustained injuries and the son of the petitioners, who was one

among the injured, died on 23 May, 2009 at Government Hospital, Madurai. The investigation revealed that one Siruthai Selvam @ Selvakumar,

Jeyaraj and Kani belonged to Viduthalai Siruthaigal party threw petrol bombs on the Government owned bus bearing Registration No. TN-33-N-

2155. The accused were expressing their protest on account of the death of Thiru.Velu Pillai Prabakaran, the L.T.T.E. Leader of Sri Lanka. The

accused were arrested and a case in Crime No. 216 of 2009 was registered under Sections 3(1) of TNPPDL Act, 323, 324 and 302 IPC and

after the conclusion of investigation, charge sheet was filed before the learned Judicial Magistrate, Manamadurai and it was taken on file in P.R.C.

No. 13 of 2010. The fifth respondent specifically denied the allegation of negligence levelled against the police and the liability of Government to

pay compensation.

Even though the matter was periodically adjourned for filing counter affidavit on behalf of the Government, no such affidavit has been filed.

When the Writ Petition was taken up on 08 February, 2011, I have passed a specific order directing the Government to file their counter. While

giving such a direction, it was made clear that in the event of their failure to file counter, the matter would be decided on the basis of available

materials. In spite of passing such an order, the State has not chosen to file counter. Therefore, I am deciding the Writ Petition on the basis of

materials available on record.

Submissions:

The learned counsel for the petitioners contended that the deceased was travelling in a Government bus and as such, the liability is on the

Government to pay compensation. According to the learned counsel, the deceased was aged 26 and he was earning a sum of Rs. 500/- per day

and as such, the multiplier of 18 should be taken to determine the amount of compensation.

The learned Special Government Pleader appearing on behalf of the respondents opposed the prayer for award of compensation. According to

the learned Special Government Pleader, the State was not responsible for the incident in question and as such, the State is not liable to pay

compensation. He would further contend that the police took immediate action to arrest the accused and this shows the promptness and as such,

no negligence could be attributed to the police.

The Issue:

The principal question to be decided in this Writ Petition is whether the State is liable to pay compensation to the parents of the deceased and if

so, what is the quantum.

Discussion:

The petitioners are the parents of deceased Irulaiya. The incident in question was on 20 May, 2009. The deceased was travelling from his native

place to Madurai. He boarded the bus owned by the State Transport Corporation bearing Registration No. TN-33-N-2155. When the bus

reached Thiruppuvanam within the jurisdiction of Sivagangai District Administration, three persons belonged to a political party, who were

aggrieved by the assassination of Thiru.Velu Pillai Prabakaran, have thrown petrol bombs towards the Government bus. The bomb exploded and

the son of the petitioners and two others sustained serious burn injuries. Irulaiya was admitted in Madurai Rajaji Hospital and ultimately, he died on

23 May, 2009.

There is no dispute with regard to the incident in question. The Inspector of Police very clearly admitted the untoward incident and the part

played by three accused. So, the cause of death is not in dispute. The accused were charge sheeted and the case is now pending on the file of the

Sessions Court, Sivagangai. Since the Government property was also involved in the incident, provisions of the Tamil Nadu Property (Prevention

of Damage and Loss) Act, 1992 were also invoked against the accused.

The petitioners claim compensation against the State on the ground that it is the duty of the State to protect the life, liberty and property of the

citizen. The State through the Inspector of Police denied the liability on the sole ground that the death was on account of an unfortunate incident

involving the members of a political party.

Article 21 is a salutary provision of our Constitution. The said constitutional provision protects the life and personal liberty of people and it

mandates that constitutional right shall not be deprived of except in accordance with the procedure established by law.

The Hon''ble Supreme Court and the High Courts have rendered several decisions expanding the scope of Article 21 of the Constitution of

India. The Courts have time and again held that the State was expected to protect the life of its citizens and when it is made out that the State failed

to give such protection, the sovereign immunity cannot be taken as a defence. The Supreme Court has extended the scope of public law

proceedings and held that it is open to the High Courts to award compensation under Article 226 of the Constitution of India for established

infringement of indefeasible right guaranteed under Article 21 of the Constitution of India. The remedy available under the public law is based on

the strict liability for violating the basic rights conferred on the citizen. The view taken earlier that damages has to be claimed by resorting to civil

action under the private law has underwent a sea change. The Courts have started awarding compensation by making the State liable for the

breach of its public law duty. The aggrieved parties were given a right to claim compensation by invoking the public law proceedings

notwithstanding their right to move the civil Courts, invoking the private law.

The issue with regard to the right to seek compensation against the State for destruction of property in communal clash and riot came up for

consideration before a Full bench of this Court in P.P.M. Thangaiah Nadar Firm and Others Vs. The Government of Tamil Nadu, and after

surveying the decisions of various High Courts and the Supreme Court, the Full Bench observed thus:

Thus a conspectus of the decisions of several High Courts and even those of the Supreme Court makes it clear that it is the constitutional

obligation of the State to protect the life, liberty and property of a person and where the State, that is to say its machinery without any justification

fails in such duty resulting in loss to a person the State cannot avoid its responsibility by taking refuge under a plea that the damage was done by

the rioteers and not by State''s machinery.

The police authorities were fully conscious about the violence that had taken place consequent to the death of L.T.T.E. supreme. The victim

was travelling in a Government bus and he had paid the charges for the journey. The bus in question was owned by a Government owned

Corporation. The Corporation was bound to ensure the safety of its passengers. The State being the owner of the bus also cannot avoid the

responsibility. The injured passengers and the legal heirs of the deceased passengers are entitled to claim compensation, in case of accident. In the

subject case, the death occurred on account of a bomb blast. The members of a recognised political party were the wrong doers. They were

charge sheeted and the Sessions case is now pending. The State cannot wash their hands by pleading that the death occurred on account of the

unlawful and barbaric acts of certain individuals belonging to a political party.

The Intelligence Wing of the State police miserably failed to unearth the conspiracy hatched by the accused to cause explosion. The

jurisdictional police equally failed in their duty. The State was, therefore, liable to pay compensation on account of the negligence and inaction of its

servants, besides its position as the owner of the vehicle.

The bus in question is deemed to be a public property within the meaning of Section 2(4)(h) of the Tamil Nadu Property (Prevention of

Damage and Loss) Act, 1992 [hereinafter referred to as ""the Public Property Act""]. Section 4 of the Act provides that mischief causing damage to

the property by fire or explosive substance would attract rigorous imprisonment for a term which shall not be less than two years, but which may

extend to ten years and with fine. Section 7 of the Act gives authority to the trial Court to award compensation. Section 7(1)(b) clearly states that

while imposing a sentence of fine, it is open to the Court to pay compensation, in the payment to any person, of compensation for any loss or injury

caused by the offence.

The accused were charge sheeted under the provisions of Public Property Act. Therefore, while convicting the accused and imposing fine, it is

open to the trial Court to direct the accused to pay the fine for paying compensation for loss or injury caused by the offence in question.

The State is primarily liable to pay compensation to the petitioners. It is open to the State to approach the learned Sessions Judge for an order

directing the accused to pay compensation u/s 7 of the Act and it is for the Sessions Court to decide the said issue. The poor parents of the

deceased cannot be made to wait for years together for concluding the case. It is always open to the State to recover the amount from the

accused, after getting orders from the learned Sessions Judge.

Quantum:

The remaining question pertains to the amount of compensation. There cannot be any rigid or mathematical precision or strait-jacket formula in

the matter of determination of compensation in public law proceedings. The compensation is in the nature of exemplary damages awarded against

the wrong doer. It is open to the Court to adopt certain guidelines in the matter of assessment of compensation. There are other sister enactments,

like Motor Vehicles Act and Workmen''s Compensation Act and those Acts contain a table of calculation to arrive at the appropriate amount of

compensation.

The Authorities:

In Concord of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, , the Supreme Court observed that the determination

of the quantum must be liberal, not niggardly, since the law values life and limb in free country in generous scales.

The Supreme Court in Kaushlya Devi Vs. Shri Karan Arora and Others, observed that totality of human life is like the beauty of sunrise or the

splendor of the stars, beyond the reach of monetary tape-measure.

The Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others, indicated the laudable object behind awarding compensation in

accident and other cases. The Supreme Court said:

In cases of motor accidents the endeavour is to put the dependents/claimants in the pre-accidental position. Compensation in cases of motor

accidents, as in other matters, is paid for reparation of damages. The damages so awarded should be adequate sum of money that would put the

party, who has suffered, in the same position if he had not suffered on account of the wrong. Compensation is therefore required to be paid for

prospective pecuniary loss i.e. future loss of income/dependency suffered on account of the wrongful act.

In R.K. Malik''s case cited supra, the Supreme Court observed that damage cannot replace a human life.

Assessment of Compensation:

The deceased was aged 26 years during the material time. According to the petitioners, the deceased was earning a sum of Rs. 500/- per day.

The Transfer Certificate issued by the School indicates that the deceased was born on 15 May, 1988. He has completed his S.S.L.C. The charge

sheet dated 20.11.2009 contain the names of the accused, the registration of the vehicle and a brief discussion about the incident. The State has

not disputed the contention regarding the avocation of the deceased and his daily income. Since he was working as a Mason, his wages could be

taken as Rs. 300/- per day. There would be no difficulty for a Mason to work for at least 25 days in a month. Therefore, his monthly income

would be a sum of Rs. 7,500/- . The annual income, therefore, would be a total sum of Rs. 90,000/- . As per the Second Schedule appended to

the Motor Vehicles Act, in case the age of the victim was between 25 years but not exceeding 30 years, the applicable multiplier would be ''18''.

In case the multiplier is taken as ''16'', the total income would be a sum of Rs. 14,40,000/- . The deceased would have spent one third of his

earnings towards his personal expenses. Therefore, after deducting one third (Rs. 4,80,000/- ), the amount would be a sum of Rs. 9,60,000/- .

Therefore, the State is liable to pay a sum of Rs. 9,60,000/- [Rupees nine lakhs and sixty thousand only] as compensation. The State is further

directed to pay a sum of Rs. 5,000/- towards funeral expenses including transport charges and a sum of Rs. 35,000/- towards litigation expenses.

The compensation amount of Rs. 9,60,000/- would carry interest at 8% per annum with effect from 23 May, 2009.

The petitioners lost their only son on account of the unlawful and heinous act done by the members of a political party. Their loss cannot be

measured in terms of money. The accused were aggrieved on account of the assassination of their Leader. The three accused persons were within

their right to express their protest. The mode adopted by them alone caused the problem. The decision taken by them to adopt violent mode to

express their strong protest caused the death of an innocent person. The parents of the deceased were denied of his compassion. There were

many other ways to express protest. However, the accused adopted an extreme method to show their dissent resulting in the death of an innocent

person.

Obiter Dictum:

The members of political parties were not expected to take arms, ammunitions and bombs to show solidarity to their deceased Leaders or to

express their deep anguish. The deceased was in no way responsible for the assassination of L.T.T.E. Supreme. Even then, he was mercilessly

killed in an explosion. The political parties should condemn such acts openly notwithstanding the position of the accused in their organisation.

Stringent action at the organisation level should be taken against such people by the political parties. This would deter others from taking recourse

to such violent and unlawful acts in future. The political parties should instruct their cadre to adopt non violent methods to redress their grievances.

The party members should realise that they are not above law. The people of this country are supreme. We are all accountable to the people. This

unfortunate incident should be an eye opener to all the political parties.

Disposition:

The State is, therefore, directed to pay a sum of Rs. 10,00,000/- [Rupees ten lakhs only] to the petitioners within a period of two months from

the date of receipt or production of a copy of this order. Liberty is given to the State to claim the amount, after such payment, from the accused by

making necessary application before the learned Sessions Judge, Sivagangai in the pending Sessions Case. The Writ Petition is allowed as

indicated above.