Smti Debirung Aslong v. The State of Tripura and 5 Ors,

Judgment & order

Whether fit for reporting :

HON'BLE MR. JUSTICE ARINDAM LODH HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA

JUDGMENT & ORDER [S. Datta Purkayastha, J]

The appeal arises out of the judgment of dismissal dated

01.11.2022 passed by the learned Civil Judge, Sr. Division, Court No.1, West Tripura, Agartala in case No. Money Suit 30 of 2018 and related decree thereof, whereby the claim of the plaintiff (hereinafter referred to as the appellant) for Rs.12,00,000/- was rejected.

[2] The plaintiff states that she is the mother of the deceased Parendra Aslong who along with Hadajoy Aslong, Ranjit Kumar Tripura and others, were playing football in the playground of Padmarai Karbari Para J.B School on 08.04.2017 at about 5 pm. When Hadajoy Aslong was running with the football, suddenly he fell into an abandoned ring well, situated inside the said school compound and did not come out therefrom. To save Hadajoy Aslong, Parendra Aslong thereafter got down into the well and he also did not come out and then their other friend, Ranjit Kumar Tripura went inside the well to rescue his two friends and he also did not come out. Ultimately, Fire

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Service authority was informed by the locals and they rescued the dead bodies of all these three persons from the said well and all of them died due to suffocation by methyl gas emitting from said well. According to the plaintiff, the school authority or rather the defendants were in charge of management and control of the said abandoned ring well and they left it in an uncared condition without any fencing or protection wherefor the said incident occurred. It is further stated that at the time of death, Parendra Aslong was 19 years old, leaving his mother as a sole legal representative and he used to earn Rs.6,000/- per month by collecting vegetables from the cultivators and selling it in the market and also by rearing cows, pigs, etc. Police investigated the incident under section 174 Cr.P.C. by registering case bearing number Chhaomanu UD case No. 03 of 2017. The plaintiff also sent notice dated 27.11.2017 under Section 80(1) of the CPC through her Advocate to the defendants but the same fetched no positive response and thereafter, the suit was filed. [3] All the defendants categorically denied their responsibility to have any control and management of the said well and according to them, the well was not inside the school complex. Therefore, according to them, they were not responsible in any way to pay any compensation for the said incident. Additionally, it was also claimed that there was protective fencing around the said well and no one could go inside the well without climbing that fence. [4] The main ground for dismissal of the suit by the learned trial court was that first of all Hadajoy Aslong went inside the well and

did not come out and therefore, it was apparent that Parendra Aslong did not accidentally fall into the well, rather consciously he went inside the same and therefore, his death was not an accidental death and hence, the plaintiff was not entitled to get any compensation. [5] Learned trial court framed total 5[five] numbers of issues and the plaintiff adduced 5[five] witnesses including herself and also proved certain documents into the evidence. From the side of the defendants 2[two] witnesses were examined but they did not lead any documentary evidence. [6] Mr. T.D. Majumder, learned senior counsel appearing for the appellant argues on the doctrine of res ipsa loquitur and submits that in the case of the claim in respect of Hadajoy Aslong, the said court awarded compensation but in the case of claims in respect of Parendra Aslong and Ranjit Kumar Tripura, same were rejected. Therefore, the present appeal and another appeal bearing No.RFA 02 of 2023 were filed in this court. According to Mr. Majumder, learned senior counsel, from the evidence it was established that the well was inside the school complex and was under the management and control of a school authority who kept the well completely in an insecured condition, resulting to the death of three persons and therefore, they are responsible to pay compensation to the plaintiff and other claimants. [7] Mr. B, Debbarma, learned counsel appearing for the respondents No.3 to 6 argues that the ring well was constructed by

the State Government and not by his clients. More so, the death of the deceased was not an accidental death. Next point of argument of Mr. Debbarma, learned counsel is that even if it is presumed that the well was inside the school complex, still the incident occurred after a school hours and therefore, the school authority has no responsibility or attribution in respect of said deaths. [8] Mr. P. Gautam, learned counsel appearing for the respondents No.1 to 3 submits that if any amount is awarded by the Court, the same should be borne by the respondents No.3 to 6 and not by the State Government inasmuch as the well was under the management, control and supervision of the said respondents. [9] The bedrock of the claim of the plaintiff is on the basis of doctrine of res ipsa loquitur. Said principle in law of Tort fastens the liability upon the defendant(s) for damages when harm is caused to the plaintiff due to negligent act or omission on the part of the defendant(s) which would not have occurred in ordinary course except for such negligent act or omission to take care of such object which has caused the harm and which was solely under his/their control. [10] In Ravi Kapur vs. State of Rajasthan, (2012) 9 SCC 284, the Apex Court has observed that the court is required to adopt one parameter of 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher

degree when the pedestrians happen to be children of tender years. It was also further observed that while driving a vehicle on a public way, an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or the pedestrians. [11] While describing the general principles of law of negligence, the Apex Court in that case also cited reference of Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p.3) in the following terms: ―9......1. General principles of the law of negligence.— Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.‖

[12] The claim of the plaintiff has been generated on the basis of the provision of Section 1(A) of the Fatal Accident Act, 1855 which envisages that whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would

(if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused. [13] In the case in hand, when Hadajoy Aslong was not returning from the said well, as per the evidence, Parendra Aslong went inside the same to rescue Hadajoy Aslong without knowing the consequence thereof and ultimately lost his life. The police investigated the matter by registering said unnatural death case bearing No.03 of 2017 and submitted the final report of the investigation [Exbt.2] corroborating with said allegation. The post-mortem report of Parendra Aslong [Exbt.4] also shows that the cause of death was asphyxia as a result of suffocation. Both said investigating officer and the medical officer who conducted the autopsy, were examined by the plaintiff as PWs-4 & 5 and nothing came out in their cross-examination to discredit such part of their respective evidences and therefore, it is established that when Hadajoy Aslong was not returning from the well, his other two friends, one after another went inside the well to rescue him and ultimately, they also lost their lives.

[14] It appears from the evidence of PW-2, Sri Padma Ranjan Chakma and PW-3 Barendra Tripura, two inhabitants of that locality that they categorically stated that the said well was an abandoned well situated inside the said school complex within the territorial jurisdiction of Tripura Tribal Areas Autonomous District Council. PW-2 himself was the eyewitness of the occurrence. None of these two witnesses could be discredited in their cross-examination with reference to said part of their evidence. PW.2 even stated that he alongwith other locals had requested the School authority for taking protective steps for said ring well with proper covering but no such step was taken by them. The investigating police officer i.e. PW-4 mentioned in the related site map (Exbt.5) that the point 'A' was the place of occurrence i.e. the well and the point 'C' was the school building and also deposed that in his case diary, it was reflected that the well was within the school boundary. In his cross-examination, he also stated that there was no boundary fencing on the boundary of the school campus. [15] The respondents No.3 to 6, in their written statement asserted that the said school was under the TTAADC but the said ring well was beyond the school complex and on that ground, they tried to deny their responsibility. [16] Both DW-1, Smt. Rina Shil who discharged the duties of Headmistress as an in-charge thereof and DW-2 Sri Debashis Barua, another teacher of that school stated that there was a fencing of about 3 feet to 5 feet height around the said well but during police

investigation, nothing as such came out about the existence of any fencing around the said well. Even in the site map also, there is no indication of existence of any such fencing. The independent witnesses, as discussed earlier, have also stated that the said well was lying in an uncared and in an abandoned condition. Therefore, the evidence of DWs-1 & 2 in this regard is not convincing. [17] Considering all these materials as placed into the evidence, it is established that said well was inside the said Padmarai Karbari Para Junior Basic School compound and it was lying in an abandoned and uncared condition without taking any protective measures thereon, for which ultimately 3[three] innocent youths lost their lives while going to play football. When the well was inside the school complex, certainly it was the duty of the school authority to take proper care and caution in maintaining said well in such a manner that no such incident could occur, but the defendants No.3 to 6 have failed in their such duties exhibiting their neglects and default. Therefore, they are held responsible to pay damages to the plaintiffs. [18] The observations of the learned trial court that consciously the deceased went inside the well despite knowing the fact that Hadajoy Aslong was not coming from the said well and therefore, the plaintiff was not entitled to get any compensation, are totally perverse. Firstly, when Hadajoy Aslong went inside, it was not within the knowledge of the deceased, an illiterate person, that there would be methyl gas inside the same and that such methyl gas could be fatal for his own life and also that already Hadajoy was under the grief

of such deadly gas. It is natural human instinct that when one friend is in trouble, another friend will automatically go to save him and this is the humanity for which all thrive at. [19] Now, coming to the determination of quantum of compensation, it is found that no birth certificate or any other satisfactory document of date of birth of the deceased was proved into evidence by the plaintiff. However, PW-1, the mother of the deceased deposed that at the time of death, the age of her son was 19 years old. The police investigation report as well as the post-mortem report also reflects the age of the deceased to be 19 years. Considering thus, for the purpose of calculation of compensation, his age is treated to be 19 years at the time of alleged incident. Though PW-1 stated that his monthly income was Rs.6000/-at that time by collecting and selling vegetables in the market and also by rearing cows, pigs etc., but no satisfactory evidence has been led on that point. However, a casual labour or a day labour in such a remote village area during the year 2017 could be expected to earn Rs.250/-per day. If it is presumed that he would get works for 22 days in a month, his monthly income comes to Rs.5,500/-. Considering the age of the deceased and to determine the loss of income vis-a-vis the loss of dependency, multiplier 18 is required to be applied. For personal expenses, if 50% is deducted therefrom considering that the plaintiff alone was the only dependant family member, the compensation comes to Rs.2750X12X18=Rs.5,94,000/-rounded off to Rs.6,00,000/-

[Rupees Six lakh only] inclusive of cost of funeral expenses and other post death rituals which the plaintiff had to bear due to such death. [20] In view of the above discussions, the appeal is allowed. The judgment and decree of the learned trial court are set aside. The plaintiff-appellant is held entitled to get compensation of Rs.6,00,000/- [Rupees Six lakh only] along with interest @ 6% per annum from the date of filing of the suit i.e. from 14.09.2018 till payment. The respondents No.3 to 6 are held jointly and severally liable to make the payment of said amount with interest as directed.

After such amount is paid or realised, 50% thereof shall be kept in fixed deposit in the name of the plaintiff for 5 (five) years and rest amount shall be disbursed to her through her bank account.

Return the trial court's records.

Registry is to prepare the decree accordingly.

Pending application(s), if any, also stands disposed of.

JUDGE

JUDGE

Sujay SUJAY GHOSH Date: 2024.12.17 13:35:07 +05'30'

IN THE HIGH COURT OF TRIPURA A G A R T A L A RFA No.01 of 2023 Smti Debirung Aslong wife of Sri Biranta Aslong, resident of Padmarai Karbari Para, P.O. and P.S. Chhamanu, Sub-Division- Longtarai Valley District- Dhalai, Tripura, Pin-799273 ……… Appellant(s) – V e r s u s – 1. The State of Tripura, represented by the Chief Secretary, Govt. of Tripura, Secretariat Building, New Capital Complex, PS- NCC, P.O. Kunjaban, Pin-799010, Agartala, West Tripura. 2. The Secretary, Department of Education, Govt. of Tripura, Secretariat Building, New Capital Complex, PS- NCC, P.O. Kunjaban, Pin-799010, Agartala, West Tripura. 3. The Chief Executive Officer, Tripura Tribal Area Autonomous District Council, Khumlwung, P.O. Jirania, District- West Tripura, Pin-799035 4. The Principal Officer, Education, Tripura Tribal Area Autonomous District Council, Khumlwung, P.O. Jirania, District- West Tripura, Pin-799035 5. The Inspector of Schools, Chhamanu, P.O. Chhamanu, Pin- 799273, Longtharai Valley, District- Dhalai, Tripura. 6. The Head Master Padmarai K.P. Junior Basic School, Manu Sen Karbari Para, Makar Cherra, Chhamanu, P.O. Chhamanu, 799273, Longtharai Valley, District- Dhalai, Tripura. ……. Respondent(s) For the Appellant (s) : Mr. T.D. Majumder, Sr. Adv. Mr. S. Chakraborty, Adv. For the Respondent (s) : Mr. P. Gautam, Adv. Mr. B. Debbarma, Adv. Date of hearing : 26.09.2024 Date of delivery of : 13.12.2024