Rajeshwari vs State of Tamil Nadu and Others

K.K. Sasidharan, J.—The Petitioner seeks a Writ of Mandamus, to reimburse the expenses incurred by her husband for his treatment in

connection with his attack by a group of people, while he was taken as a remand prisoner in connection with the case in Crime No. 295 of 2009

on the file of the Thiruppachethi Police Station. The Petitioner also seeks payment of compensation by the State.

FACTS IN NUTSHELL:

The husband of the Petitioner Thriu.M. Velmurugan was functioning as the Vice President of Periya Avarangadu Panchayat. There were

proceedings between the Vice President and President regarding the affairs of the Village Panchayat. The cheque signing facility given to the Vice

President was withdrawn by the District Collector, Sivagangai, at the instance of the President of the Panchayat. This was challenged by the Vice

President in W.P. No. 6945 of 2008. The Writ Petition was allowed and the cheque signing facility was restored to the husband of the Petitioner.

This was followed by another proceeding taken by the President to remove him from the post of Vice President.

The husband of the Petitioner was arrested by the Inspector of Police, Thiruppachethi Police Station on 16.11.2009 on allegation that he has

assaulted one Oomaidurai, who is none other than the husband of the Panchayat President. A case in Crime No. 295 of 2009 was registered

against the husband of the Petitioner and others before the Thiruppachethi Police Station. He was remanded to judicial custody and confined in

Central Prison, Madurai with effect from 16.11.2009.

While the matters stood thus, the husband of the Petitioner was taken out of the prison by the police for the purpose of production before the

learned Judicial Magistrate, Manamadurai. It was for the purpose of extension of remand. The husband of the Petitioner was taken by two police

men to the Court. While he was proceeding to the Jail Road, Madurai, out side the Central Prison, a group of people came in two cars bearing

Registration Nos. TCU-6009 and TN-58-9350 and waylaid her husband and after throwing chilly powder, the gang indiscriminately assaulted him

by using aruval and other deadly weapons. The husband of the Petitioner sustained grievous injuries on his head, both legs and hands. There were

altogether 15 injuries on his body. He was taken to Rajaji Government Hospital, Madurai. Later, he was shifted to Meenakshi Mission Hospital, at

Madurai at 02.00 p.m. on 30.11.2009. The injured underwent as many as five surgeries and continued in the Intensive Care Unit for many days.

The expenses incurred by the Petitioner towards medical expenses alone estimated at Rs. 3,41,600/-. The Senior Consultant and Head of the

Department of Orthopaedics and Traumatology, Meenakshi Mission Hospital and Research Centre at Madurai, on inspection of the injured,

assessed his disability at 31%.

According to the Petitioner, the State was expected to protect the remand prisoner and their negligence only allowed the miscreants to attack

him. The injured remand prisoner was taken by walk. He was escorted by two police men only. Even though the police men were having guns with

them, they have not opened fire. Therefore, her husband was put to risk. Since the State has not taken any reasonable care to protect his life, the

gang was successful in their attempt to attack the remand prisoner. Therefore, she seeks reimbursement of the amount spent for the treatment of

her husband and prays for an order to pay compensation.

The Inspector of Police, C5 Karimedu Police Station, in his counter-affidavit, admitted the incident. According to the Inspector of Police, at the

instigation of Pothum Ponnu, the President of Periya Avarangadu Village Panchayat and her husband Oomaidurai, one Andiselvam and 14 others

came in two vehicles, armed with deadly weapons, threw chilly powder and attacked the remand prisoner Thiru.M. Velmurugan under handcuff

and inflicted multiple cut injuries on him. The injured was rushed to Government Rajaji Hospital in an emergency vehicle and on the basis of his

compliant, a case in Crime No. 1892 of 2009 was registered against the accused. The third Respondent further contended that the injured was

discharged from the hospital and got himself admitted in Meenakshi Mission Hospital, Madurai for better treatment. It was further contended that

the police men were armed with self-loading rifle. However, they failed to use their fire arm to protect the remand prisoner under attack and as

such, both the Constables were placed under suspension for their dereliction of duty. According to the third Respondent, the injured got himself

admitted in a private hospital and as such, the State is not liable to pay compensation.

Since the claim was against the State, the matter was adjourned periodically for filing counter by the first Respondent. When the Writ Petition

came up for hearing on 04.01.2011, I have passed an order extending the time for filing counter. While granting further time to file counter by the

first Respondent, I have indicated that in case the Home Secretary fails to file counter, the matter would be decided on the basis of available

materials. Since no counter-affidavit was filed, in spite of granting further time on 04.01.2011, the Writ Petition was taken up for consideration on

27.01.2011.

I have heard the learned Counsel for the parties.

THE MOOT QUESTION:

The core issue, which arises for consideration in this Writ Petition, is as to whether the State is liable to pay compensation to the husband of the

Petitioner on account of their failure to protect him from attack.

ANALYSIS:

The husband of the Petitioner was an accused in Crime No. 295 of 2009 on the file of Thiruppachethi Police Station. He was produced before

the learned Judicial Magistrate. The accused was remanded to judicial custody and he was confined in Central Prison, Madurai with effect from

16.11.2009.

The accused Velmurugan was taken out of the Central Prison, Madurai on 30.11.2009. He was accompanied by two Armed Reserve Police

men. They were proceeding to the Court of the learned Judicial Magistrate, Manamadurai, as the remand period expires on 30.11.2009. The

incident happened at 10.20 a.m., on the Jail Road, Madurai.

The third Respondent, in his counter-affidavit, very clearly admitted the attack on Thiru. Velmurugan by a gang of 15 people. He has also

admitted that those accused were engaged by none other than the Panchayat President of Periya Avarangadu Village Panchayat and her husband

Oomaidurai, the complainant in Crime No. 295 of 2009. The third Respondent further admitted that the accused Velmurugan was under handcuff.

The injuries sustained by the accused Velmurugan are also a matter of record.

The question is as to whether the State has used reasonable care to protect the remand prisoner.

The police were aware of the fact that there was an ongoing dispute between accused Velmurugan and the President of Periya Avarangadu

Village Panchayat and her husband Oomaidurai. The husband of the Petitioner was earlier accused of attacking Oomaidurai and it was only in

respect of the said case, he was remanded. The remand prisoner was taken by walk and this made it easy for the gang to attack him. The police

have not provided any vehicle to take the accused Velmurugan to the Court. Since the said Velmurugan was under handcuff, he was helpless. The

accused, 15 in number, came in two vehicles, armed with deadly weapons and after throwing chilly power, attacked the said Velmurugan and

inflicted multiple cut injuries. The police should have anticipated this fact, as the background of the litigation between the parties shows the

continuous enmity between them.

The State is expected to protect a prisoner during the period of his judicial custody. The Judicial Magistrate has passed an order remanding the

accused. It is the duty of the police to produce the accused before the Magistrate for extension of remand. Therefore, during the transit period, a

duty is cast on the police to see that the life of the accused is protected. Since the accused was under handcuff, he was at the mercy of the police.

The police in such cases should take all reasonable care to protect the life of the prisoner. They cannot be heard to say that the prisoner was

escorted by two police men and those escorts failed to use their fire arm to protect the remand prisoner under attack. Mere suspension of the

Police Constables would not give relief to the injured.

The documents produced by the Petitioner clearly shows that the injured sustained multiple injuries. There were cut injuries on his body. The

third Respondent contended that the admission of the injured in Meenakshi Mission Hospital was at his instance. The details of the injuries shows

that the injured was fully justified in taking treatment from a Super Speciality Hospital. The medical certificate issued by the Senior Consultant and

Head of the Department of Orthopaedics and Traumatology, Meenakshi Mission Hospital and Research Centre contains the details of injuries

sustained by the husband of the Petitioner. It also discloses the grievous nature of injuries. The injured sustained disability and it was estimated at

31%. The injured was taking treatment at the time of filing the Writ Petition. Subsequently, he was discharged and the certificate issued by the

Meenakshi Mission Hospital indicates that a sum of Rs. 3,41,600/-was paid by way of hospital expenses. There is nothing on record to disbelieve

the medical certificate or the certificate of payment.

The Supreme Court in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police

Headquarters and Others, , observed that an action for damages lies for bodily harm including death. The observation reads thus:

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....

The Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others, indicated the principles governing the payment of compensation

thus:

Undoubtedly, the compensation in law is paid to

restore the person, who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed.

The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been

committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation.

The State cannot avoid liability on the ground that there was no attempt made by the police men to protect the life of the remand prisoner. The

issue is as to whether the police have taken reasonable steps to protect the prisoner. The remand prisoner was taken in a very casual manner and

he was allowed to walk. Since the remand period expires on that day, necessarily the police should have anticipated retaliation at the instance of

the complainant in Crime No. 295 of 2009. The rivalry between the President and Vice President and the proceedings between them should have

been taken note of by the police. I am of the view that there was a clear dereliction of duty on the part of the police and that was the sole reason

for enabling the accused to attack the remand prisoner on the fateful day. Therefore, the Petitioner has made out a case for payment of

compensation by the State.

The next issue relates to the determination of compensation.

The Petitioner has spent a sum of Rs. 3,41,600/-towards medical expenses. The Madurai Meenakshi Mission Hospital is a reputed Hospital in

Madurai. The certificate issued by the said Hospital indicating the amount spent by the Petitioner has to be accepted. Therefore, the Petitioner is

entitled to a sum of Rs. 3,41,600/-towards medical expenses.

The other question relates to the payment of compensation on account of the injuries sustained by the husband of the Petitioner. The husband

of the Petitioner sustained as many as 15 injuries. His disability is estimated at 31%. Therefore, necessarily the State should pay compensation and

such compensation should be equivalent to the sufferings of the injured.

It is true that there is no fixed formula in such cases to pay compensation. Therefore, the only alternative is to take the formula adopted in

motor accident claims cases as well as the provisions of the Workmen''s Compensation Act.

The husband of the Petitioner has sustained multiple injuries. He was aged 40 years. The wound certificate and the disability certificate gives a

clear indication about the grievous nature of injuries. The disability is estimated at 31%. The Respondents have not produced any evidence to

disbelieve the percentage of disability as estimated by the Senior Consultant and Head of the Department of Orthopaedics and Traumatology,

Meenakshi Mission Hospital and Research Centre.

In Ramprasad Balmiki Vs. Anil Kumar Jain and Others, , the issue before the Supreme Court was regarding the just compensation payable to

an injured, who sustained 40% permanent disability. The Supreme Court confirmed the amount of Rs. 3,75,000/-awarded by the High Court in

respect of permanent disability estimated at 40%.

Therefore, on a careful consideration of the entire factual matrix, I am of the view that awarding a sum of Rs. 3,00,000/-as compensation

would meet the ends of justice. Accordingly, the first Respondent is directed to pay a sum of Rs. 3,00,000/-as compensation to the injured. The

said sum is in addition to the medical expenses of Rs. 3,41,600/-. Therefore, the first Respondent is directed to pay a total sum of Rs. 6,41,600/-

(Rupees six lakhs and forty one thousand and six hundred only) to the husband of the Petitioner with interest at 8% per annum from 5 January

2010. The first Respondent is further directed to pay a sum of Rs. 10,000/-by way of costs. The amount should be paid by way of demand draft

drawn in the name of the injured (M. Velmurugan) and such payment shall be made within a period of eight weeks from the date of receipt of a

copy of this order.

The Writ Petition is disposed of with the above direction. Consequently, the connected miscellaneous petition is closed.