Kamal Theatre vs Kasireddy Varlakshmi

P.S. Narayana, J.—The unsuccessful defendant in O.S. No. 179 of 1983 on the file of the Principal Subordinate Judge, Visakhapatnam, is the appellant. However, since the relief was not granted in toto as prayed for, the respondent-plaintiff also filed cross-objections and hence both the matters are being disposed of by this judgment.

For the purpose of convenience, the parties will be referred to as arrayed in the original suit. The plaintiff filed the suit for recovery of a sum of Rs. 1,00,000 towards compensation by way of damages from the defendant for the death of the plaintiff''s minor son due to the stampede at Kamal Theatre, the defendant, while standing in the queue for purchase of Rs. 2 ticket on 28.5.1982. The suit was instituted as an indigent person. The main ground is that the plaintiff had lost her son only due to negligence or default on the part of the defendant in maintaining the queue properly at the aforesaid theatre. The allegations in the plaint are as follows:

The plaintiff''s minor son Kasireddy Chittibabu was born on 19.12.1967 and he appeared for the matriculation examination held in March/April, 1982 and he was a very brilliant student and in fact passed the examination with register No. 6052. On 28.5.1982 the plaintiff''s son Chittibabu went to the defendant Kamal Theatre to see the Telugu picture ''Justice Choudary'' which was then being screened in the aforesaid theatre and he stood in a queue of Rs. 2 tickets to purchase a ticket for himself for the picture. The defendant theatre have combined the queue for 90 paise tickets and Rs. 2 tickets with a negligible separation between them, and while the plaintiff''s son Chittibabu was proceeding in the queue for the purchase of a ticket, the defendant theatre people pressed, i.e., introduced some more people into the queue, which resulted in a stampede and plaintiffs son Chittibabu was pushed down in the stampede and several people have trodden over him and he immediately became unconscious. Plaintiff further learns that after her son became unconscious, one Dhanakaraju, a member of the defendant theatre staff had admitted the unconscious boy in King George Hospital on 28.5.1982 at about 7.30 p.m. and that the boy did not regain consciousness but died in the hospital in that unconscious state on 31.5.1982. It is the duty of the defendant theatre people to make proper arrangements for the maintenance of the queues regarding the purchase of tickets in the theatre and on that day, i.e., 28.5.1982 it is obvious that the defendant theatre people failed in their duty to maintain queues for the purchase of the tickets in the theatre, particularly the Rs. 2 queue and the 90 paise queue and on account of the failure of duty, responsibility and obligation to regulate and maintain proper queues of the defendant theatre people as well as their neglect and default, it has resulted in the injury of the plaintiff''s son and his ultimate death. Further, the inordinate delay in admitting an unconscious boy instead of doing it immediately and delaying the same till the booking was completed and closed has also contributed to the ultimate death of the plaintiff''s son. Plaintiff therefore, holds the defendants responsible for the injury and the death of the plaintiff''s son and in the manner they have committed wrongful act, neglect as well as default and, therefore, are liable to pay compensation by way of damages to the plaintiff, i.e., the mother and sole heir of the deceased minor unmarried boy, as she is the only legal representative of the deceased boy, who is otherwise also entitled to receive the compensation under law. The plaintiff''s deceased son was an active young and intelligent boy, coming out of a respectable family and was quite capable of coming up in life, achieve either as a Government servant or as a businessman and earning considerable amount in keeping with the family tradition. If the plaintiff s son had lived, he would certainly have earned quite a large amount and would have made a very large contribution for the support of his mother throughout her life. Plaintiff therefore estimates the damages or compensation to be recovered from the defendant for the death of her son Chittibabu in the manner ascribed above at Rs. 1,00,000 and the defendant is liable to pay the amount to the plaintiff as Chittibabu''s parents and heir. The plaintiff had made a demand of the defendant for the payment of damages claimed regarding the death of her son Chittibabu in the circumstances mentioned above by means of a lawyer''s notice dated 23.7.1982, to which the defendant had sent a reply on 2.8.1982 disclaiming his liability. The said reply notice contained contentions which are false and untenable.

The defendant filed written statement denying all the allegations and the allegations made in the written statement of the defendant are as follows:

The defendant''s theatre has been constructed very recently as per the conditions laid down in the Cinematograph Act and the Rules framed thereunder and that the Collector after having satisfied about the fulfilment of the conditions of the said Act in constructing the theatre, issued a licence and as such the allegations in the plaint that the defendant has not left any space in between the queues of 90 paise and Rs. 2 and left only a negligible space between them are all false and incorrect. The space in between the said queues have been left as per the specifications approved by the Government under the Cinematograph Act and as such there is no negligence or carelessness on the part of the defendant for providing the space in between the said two queues of 90 paise and Rs. 2. The defendant''s people never introduced any one into the said queues. In fact the defendant has taken the help of the A.P. Reserve Constable to control the people who come to the theatre to see the picture and the defendant has taken all possible and necessary precautions to avoid any clash at the ticket queues. The fall of the plaintiff''s son is only due to some collision between the people who gathered for tickets. The defendant learned that there was a collision in the queues among the people who gathered for purchasing the tickets which results the plaintiff''s son and some other people fell down and the plaintiff''s son was immediately taken away to the hospital in the ambulance and he was admitted in the hospital for treatment. There is no person by name Dhanakaraju working in the defendant''s theatre either on the date of the accident or at any time and the said Dhanakaraju who is alleged to have admitted plaintiff''s son into the hospital is not known to the defendant. Either the defendant or its staff are not at all responsible for the unconsciousness of the plaintiffs son on 28.5.1982 and the plaintiffs son and the other people in the queue are only responsible for the said collision which resulted the unconsciousness of the plaintiffs son. The defendant or his staff are no way responsible for the death of the plaintiffs son. The defendant has taken all precautions for the maintenance of the queues, who come to purchase the tickets to the defendant theatre, for which the defendant with a view to help the people, taken the help of the reserve constables besides his staff and thereby discharged all their legitimate duties to avoid any collision amongst the people, who come to the theatre and thereby the defendant is in no way responsible for the alleged injuries obtained by the plaintiffs son and also his death. Immediately after the son of plaintiff fell down, he was taken to the hospital in the ambulance and there was no delay in taking the boy to hospital after the incident. The defendant is in no way responsible for the injuries and the death of the plaintiffs son and that the defendant has not committed any wrongful act, neglect as well as default as alleged in the plaint and thereby the defendant is not liable to pay any compensation to the plaintiff. The plaintiff is put to strict proof that she is the legal representative of the deceased boy as the defendant is not admitting the same. As the defendant or their staff are not at all responsible for the alleged injuries obtained by the plaintiffs son and also his death, the defendant is not liable to pay any amount to the plaintiff by way of damages or compensation much less a sum of Rs. 1,00,000 as claimed in the plaint and at any rate the said claim of Rs. 1,00,000 is excessive, arbitrary and without any basis whatsoever. A suitable reply notice, dated 2.8.1982 has been sent by defendant to the registered lawyer''s notice, dated 23.7.1982 got issued by the plaintiff to the defendant.

On the strength of the pleadings of the parties, the following issues had been settled:

(1) Whether plaintiffs son Chittibabu died on 28.5.1982 as a result of injuries received by him in a stampede in the queues for the purchase of Rs. 2 ticket in the defendant''s cine theatre?

(2) Whether the defendant is responsible for the accident and death, in not properly maintaining and regulating the queues?

(3) To what damages is the plaintiff entitled for the death of her son from the defendant-cinema theatre?

In the court below P.Ws. 1 to 4 and DWs 1 and 2 were examined and Exhs. A-1 to A-10, B-1 to B-7 and X-1 to X-3 were marked. On appreciation of both the oral and documentary evidence, the court below had decreed the suit for Rs. 30,000 towards compensation by way of damages with proportionate costs and had dismissed the rest of the suit claim. As already stated supra, aggrieved by the said judgment, defendant had preferred appeal and plaintiff also had preferred the cross-objections to the effect that the court below should have decreed the suit as prayed for.

Mr. Venkatarama Reddy, the learned Counsel representing the appellant had strenuously contended that the death of Chittibabu on 28.5.1982 was only by act of God and there was no negligence on the part of the appellant at all in maintaining the queue and hence appellant-defendant is in no way responsible for such an event and absolutely there is no negligence on the part of appellant-defendant and hence the court below had totally erred in decreeing the suit even to some extent. Learned Counsel also had drawn my attention to the fact that all precautionary measures had been taken to see that no such incidents or eventualities occur, but, in spite of such precautionary measures, the unfortunate incident had happened and the appellant-defendant cannot be held responsible in any way and consequently the judgment and decree of the court below are unsustainable. The learned Counsel also had contended that the witnesses examined on behalf of the respondent-plaintiff cannot be believed at all and their presence itself is doubtful and the said witnesses were examined only with a view to get some compensation from appellant-defendant. The learned Counsel also had contended that the litigation is more a speculative one and in the absence of any negligence or in the absence of any other illegality, the appellant-defendant cannot be fastened with any liability by way of compensation or otherwise.

Mr. Rajasekhar, the learned Counsel representing respondent-plaintiff and also the cross-objector in the cross-objections filed under Order 41, Rule 22 of the Code of Civil Procedure, had strenuously contented that the amount of even Rs. 1,00,000 which had been claimed is far below the reasonable compensation. Learned Counsel also had contended that by awarding damages by way of compensation, the compensation fixed should be reasonable, whether it is a case of a negligent act or a case under the Fatal Accidents Act or a case under the Motor Vehicles Act. The learned Counsel further contended that the general principles underlying the grant of compensation by way of damages in the case of fatal accidents, by and large, are one and the same and learned Counsel had placed strong reliance on a decision of this court in Amati Hymavathi and Another Vs. Nissankararao Srikrishnamurthy and others, , the decisions of the Apex Court in K. Murugesh and Others Vs. M. Palappa and Others, ; Shanti Bai and Others Vs. Charan Singh and Others, and also a decision of the Bombay High Court in Puransingh Fattesingh Osahan and Others Vs. Murlilal Chandiram Pinjani and Others, . The learned Counsel also had drawn my attention to the evidence of P.W. 4, the doctor and also Exhs. X-1 to X-3 and the independent evidence of P.Ws. 2 and 3 apart from the evidence of P.W. 1 and Exhs. A-1 to A-10 and had contended that the ground of negligence, in the facts and circumstances of the case, should be taken as proved and the only question that has to be decided is whether the quantum of compensation fixed by the court below can be said to be reasonable compensation in the facts and circumstances of the case.

Heard both the Counsel and perused the material available on record. The points which arise for consideration in this appeal are as follows:

(a) Whether the son of the respondent-plaintiff died due to the stampede in the queue for purchase of Rs. 2 ticket in the appellant-defendant''s cinema theatre?

(b) Whether quantum of compensation awarded by the court below by way of damages in the facts and circumstances of the case is justified?

(c) To what relief?

Points (a) and (b):

The several facts are not in dispute. The fact that there was a stampede on the fateful day also is not in dispute. The fact that Chittibabu became unconscious on account of injuries in the said stampede also is not in dispute. But, however, the stand taken by the appellant-defendant is that on the fateful day, a Telugu picture ''Justice Choudary'' was being screened and there was lot of rush and due to the said stampede the unfortunate fateful incident happened and Chittibabu was admitted in King George Hospital at 7.30 p.m. on the same day and subsequent thereto died due to the injuries on 31.5.1982. The appellant-defendant had taken a stand that the theatre management cannot be fastened with any liability since there was no negligence on their part in any manner, whatsoever. One Yugandhar, a booking clerk of the theatre, was examined as DW 1. DW 1 had deposed that due to pressing of persons from behind in the queue the said Chittibabu fell down and right from the beginning he was found unconscious. DW 2, in her evidence, had stated that Chittibabu was trampled down at the theatre while he was in queue for purchase of tickets and she had also deposed that persons standing behind Chittibabu in the queue tried to go in advance by walking over the shoulders of the persons standing in the queue. But, no doubt, she had stated that she had not actually seen Chittibabu being trampled down. The evidence of P.W. 3 is that he had reached the theatre by 6.30 p.m., but, could not secure the ticket and that some persons were brought and placed inside the compound wall, who were said to be trampled down and that among those persons injured, Chittibabu also was there and he had deposed about the taking of Chittibabu in an ambulance to the hospital and other facts. P.W. 4 is the Professor of Anaesthesia, Dr. G. Babu Rao, who had deposed that Exh. X-1 is the case-sheet pertaining to Chittibabu, who was about 14 or 15 years. P.W. 4 also deposed that Chittibabu was admitted in the casualty on 28.5.1982 at about 7.30 p.m. as per Exh. X-2. Casualty Patient Ticket is in the handwriting of one Dr. G. Bhagya Rao, the then Casualty Medical Officer. Exh. X-1 is the Medical Legal Card attached to Exh. X-2. P.W. 4 also deposed that he had examined the patient and noted the condition and had advised the treatment. As per the case-sheet, the said Chittibabu died at 5.45 p.m. on 31.5.1982 and P.W. 4 had deposed about the fractures and injuries sustained by the said Chittibabu. Exh. A-1 is the death certificate issued by the Superintendent of the King George Hospital, Visakhapatnam. It is no doubt true that P.W. 1 is not a direct witness to the actual incident of stampede, but, however, the incident is supported by the independent evidence of P.Ws. 2 and 3. In view of the evidence adduced in this regard, the fact that there was stampede on the fateful day cannot be in dispute at all. The stand taken by respondent-plaintiff is that the appellant-defendant management had been negligent in not properly maintaining and regulating the queue as a result of which there was stampede. It is no doubt true that the concept of negligence may have to be decided in the context of the correlative duties or the obligations imposed on the opposite party. The evidence of DW 1 is that Exh. B-1 is the approved plan and the length of the booking row is about 45-50 ft. and there are four rows for booking and Exh. B-2 is the photocopy of the licence and in fact, DW 1 also deposed as to how on the fateful day there was overwhelming rush to the film ''Justice Choudary'' and how, in the facts and circumstances, the theatre management cannot be held responsible. The evidence of P.Ws. 2 and 3 is clear on this aspect. They are independent witnesses. No doubt, an attempt is made to assail the said evidence also on the ground that the evidence is artificial since, at the earliest point of time, their names had not been specified. I am unable to accept the said contention since from the nature of evidence of P.Ws. 2 and 3 it is clear that they are independent witnesses and there is no necessity for them to speak so. Apart from this aspect of the matter, the fact that there was stampede on the fateful day and also the nature of the event, these aspects are not disputed at all even by the appellant-theatre management. No doubt, DW 1 had explained away saying that the theatre management had taken care by getting the reserved constables posted for bandobust duty. The appellant-defendant had placed reliance on certain documents like Exhs. B-3, B-4, X-3 and X-5 and also the evidence of DW 2. It may be a fact that some reserve armed police might have been on duty on the fateful day, but however, if the overall facts and circumstances are taken into consideration, which, in fact, had been discussed in detail by the court below at paras 6-20 of the judgment. I have no hesitation in agreeing with the findings of court below that the fateful event could have been avoided had the theatre management taken necessary measures and hence, even the omission on the part of the theatre management in this regard can be definitely styled as negligent act by virtue of which the liability can be fastened in the matter of this nature.

The next question which has to be considered is whether the compensation by way of damages fixed by the court below at Rs. 30,000 can be said to be a reasonable compensation. Though some material is available on record relating to the age of the deceased, however, the judgment of the court below is not clear relating to the fixation of the quantum of compensation. The learned Counsel appearing for the respondent-cross-objector placed strong reliance on Amati Hymavathi and Another Vs. Nissankararao Srikrishnamurthy and others, , wherein certain guidelines to the Tribunals under the Motor Vehicles Act had been specified. In fact, it was observed by this court at (pp. 371-72):

This court after having considered the law and the precedents touching the issues in question, records the following law as declared for guidance of the Tribunals and the courts:

(1) The items of compensation in cases of death of children should not be different from the items of compensation for the death of adults;

(2) While awarding the conventional sum for the death of the children, all the factors should be taken into consideration including the age of the deceased, the age of the parents or the dependants, the possibility of the deceased growing up and contributing to the family in future in an orderly life, etc.;

(3) The monetary loss to the claimants should also be awarded subject to proof as special damages in each case;

(4) No precedent should be taken in such a question as the conclusion in the matter as each case has to be considered on its own merits subject to the general principles;

(5) No amount of compensation as conventional sum should be taken as fixed;

(6) The minimum amount of compensation awardable for the case of death of children as in the case of adults shall be as follows:

(i) Rs. 15,000 (rupees fifteen thousand) for the death of children in respect of the accidents occurred on or after the date when Section 92-A of 1939 Act was brought on the statute book, i.e., 1.10.1982;

(ii) Rs. 25,000 (rupees twenty-five thousand) for the death of children in respect of the accidents occurred on or after the date when Section 140 of 1988 Act was brought into force, i.e., 1.7,89;

(iii) Rs. 50,000 (rupees fifty thousand) for the death of children in respect of the accidents occurred on or after the date on which Section 140 of 1988 Act was amended by Act No. 54 of 1994, i.e., 14.11.1994.

(7) The compensation in each case may be more than the minimum amounts of compensation stated above in each case depending upon the facts and circumstances of each case which should be proved;

(8) Any other item of compensation as suggested in the article "Compensation for death of children in motor accidents" by 5. Lalitha, Reader, Department of Law, Sri Krishnadevaraya University, Anantapur 1991 ACJ 18 may also be taken into consideration depending upon the facts and circumstances of each case;

(9) It shall not be taken that either the Apex Court or this court or any other court has laid down the law in clear terms that the compensation in the case of death of children for a particular age is a known sum or a definite sum as indicated in some of the precedents and it has to be worked out in each case depending upon the facts and circumstances of each case.

In Puransingh Fattesingh Osahan and Others Vs. Murlilal Chandiram Pinjani and Others, , it was held that in a suit filed claiming compensation for death under Fatal Accidents Act before constitution of Claims Tribunal, the principles governing calculation of compensation laid down by judicial precedents under Motor Vehicles Act are equally applicable to the cases under Fatal Accidents Act. In K. Murugesh and Others Vs. M. Palappa and Others, , while dealing with the principles of assessment of compensation, it was held that the fact that the deceased was a student and not an earning member cannot be said to be a relevant consideration for the purpose of determining the compensation. Reliance also was placed on Shanti Bai and Others Vs. Charan Singh and Others, , in this regard.

The compensation claimed by way of damages for negligence on the part of theatre management, which had resulted in the death of Chittibabu, is Rs. 1,00,000. However, the particulars and details and how this claim of Rs. 1,00,000 had been made by the respondent-plaintiff are not available. In matters of fixing the liability relating to the payment of compensation, it should be in accordance with the settled principles and it cannot be on the strength of any guesswork or surmises or at the whims and fancies of the courts. Courts are expected to be careful and cautious while fixing and assessing compensation in the case of accidents due to negligent acts, fatal accidents, motor accidents or any other accident of the like nature. I had carefully gone through the judgment of the court below. Unfortunately, the basis on which the quantum of Rs. 30,000 had been fixed instead of Rs. 1,00,000 had not been made clear. Apart from this aspect, the details or particulars even for claiming the quantum of Rs. 1,00,000 are lacking in the pleadings and evidence of the plaintiff, especially, in the light of cross-objections filed by respondent-plaintiff, it is essential to consider this aspect with all seriousness.

To what relief:

In view of the fact that I have already expressed the opinion that the only question that has to be decided is relating to the quantum of compensation to be fixed by the court by way of damages for want of several details and particulars and especially in the light of the fact that the suit itself was instituted as an indigent person. I am inclined to set aside the judgment and decree and remit the matter to the court below for the purpose of giving an opportunity to both the parties to let in further evidence on the aspect of the quantum of compensation to be fixed by way of damages only. However, it is made clear that if respondent-plaintiff already had received any amount in pursuance of the earlier directions of this court, the said amount will be given due credit at the time of disposal of the suit by the court below by virtue of the present remand order. In the facts and circumstances of the case, both the parties do bear their own costs.