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CASE NO.:

Appeal (civil) 9738 of 1996

PETITIONER:

M.S. GREWAL & ANR.

Vs.

RESPONDENT:

DEEP CHAND SOOD & ORS.

DATE OF JUDGMENT: 24/08/2001

BENCH:

A.P. Misra & Umesh C Banerjee

JUDGMENT:

BANERJEE, J.

A very sad tale concerning fourteen young kids resulting in

untimely and unfortunate death of all of them stands out to be the

subject matter of the Appeal under consideration: Sad tale by

reason of the fact that a sheer fun of young ones turned out to be

fatal as a consequence of utter and callous neglect of teachers on

duty.

Adverting to the factual aspects, it appears that on 28.5.1995,

59 boys and 18 girls (totaling 77) students, all in 4th, 5th and 6th

classes of Dalhousie Public School, Badhani, Pathankot were

brought for a picnic at Tandapatanindora on the bank of river

Beas. The Head Master of the School deputed one Shri Surinder

Pal Singh and another Shri K. Shanmugham being teachers in the

School for escorting and taking due and proper care of the

students. Incidentally, the site chosen for the picnic was the same

on which the earlier picnic of the School was held on 7th May,

1995.

On the contextual facts, it appears that the School concerned

has in its activities, a usual picnic for all the students in batches.

Some of the students had already been into the picnic and these 77

were chosen for the batch which was scheduled for 28th May,

1995. It has been the version of the School authorities that in a

true educational institution, extra curricular activities play a

dominant role in imparting proper education to the students and

outings/picnics thus have been a regular feature in the school:

whereas in the event of there being a plan for overnight stay, the

School management without parental consent would not permit the

concerned student for participation therein though however, the

same is not a requirement in a day time outing or picnic.

The factual score further reveals that the management of the

School organised the picnic on 7th May, 1995 for the students as

noticed above and selected the same site on the bank of river Beas

which flows from North to South direction having a width of

approximately 200 ft. On the fateful day, however (28th May,

1995) the students were accompanied by five teachers, two mess

boys, one supplier and the driver of the bus along with two

European ladies (GAP students) in the picnic party. The records

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depict that in the post lunch period, fourteen students alongwith

two teachers Shanmugam and S.P.Singh went down the river for a

considerable distance with about 14 students and the teachers

however discovered a sudden dibber of about 6 8 ft. deep by

reason wherefor the teachers themselves along with the students

fell into a great danger whereas teachers could save themselves

up the students fell a victim of utter neglect of the teachers - The

children were allowed to play in the danger zone of the water

without any caution or any warning being sounded, the resultant

effect of which drowning of these unfortunate fourteen children

a rather unfortunate sad end and finale to the so-called extra

curricular activities of the School.

On the further factual score, it appears that the Government

of Himachal Pradesh, ordered a judicial inquiry under the

Commission of Inquiry Act 1952 by the District and Sessions

Judge, Kangra and the State of Punjab also ordered an inquiry by

the sub-divisional Magistrate, Pathankot but nothing was

forthcoming by reason wherefor the private respondents on 14th

July, 1995, being the parents of the unfortunate children moved a

writ petition under Article 226 of the Constitution in the High

Court against the Petitioner Nos.1 and 2 and respondent Nos.14-

16 seeking a relief by way of an inquiry by C.B.I to find out the

causes for the tragedy and fixation of responsibility therefor and

punishment to the guilty ones together however, with a prayer for

adequate compensation from the School authorities and on 2nd

August, 1995, the High Court ordered an Inquiry to be conducted

by the Central Bureau of Investigation and the latter upon

examination of various witnesses recording the unfortunate

incident of drowning of children concluded in paragraph 41 of the

report as below:

41. The conclude investigations have established

that the death of 14 students by drowning was

caused by the rash and negligent acts of firstly

allowing the students to stray down stream by

about 1100 ft. and enter into unchartered waters

and secondly, due to direct instigation by Shri

Surinder Pal Singh whereby the students in their

efforts to catch him and thereafter to race to the

bushes on the western river bank down stream,

entered into the water of Dibber and were

drowned as the depth of the water exceeded their

average height. The investigation has thus prima

facie established the commission of offence u/s

304A of the Indian Penal Code by S/Shri S.P.

Singh, Director Physical Education, Dalhousie

Public School and Shri K. Shanmugam, teacher,

Dalhousie Public School, Badhani.

The Writ Petition, however, came up for final disposal before

the High Court on 4th March, 1996 wherein the writ petition was

allowed and it was ordered that the Chairman and the Management

of the School shall pay a compensation of Rs.5 lakh to each of the

parents of fourteen students who died in the incident and a sum of

Rs.30,000/- to each of the parents of students who suffered due to

drowning incident within two months with interest at the rate of

12% per annum from 28th May, 1995 by depositing the same in the

registry of the High Court and hence the Special Leave Petition

before this Court and the subsequent grant of leave with an order

to deposit a sum of Rs.7 lakhs towards discharge of the liability of

the petitioner, if ultimately upheld by the Court to be disbursed in

accordance with the orders of the court. Incidentally, the order

requiring the petitioner to deposit a sum of Rs.7 lakhs stands

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complied with.

It is on this factual backdrop Mr. Bahuguna, learned Senior

Advocate in support of the Appeal in no uncertain terms stated

before the Court that the event that has happened, should not have

happened. Strong reliance was placed on the report of the C.B.I.

wherein there has been total exoneration of any liability so far as

the management of the School are concerned though responsibility

has been fixed on to School teachers personally. Mr. Bahuguna

with his usual eloquence expressed his deepest sorrow for the

incident and on the very first day of the hearing submitted that

irrespective of any instruction in the matter, a sum of Rs. 2 lakhs

can be termed to be a reasonable figure and his clients should be

prepared to pay the same a good gesture undoubtedly, but since

the same does not receive concurrence from Mr. Malhotra, the

learned Senior Advocate, appearing for the Respondents herein, we

refrain ourselves from expressing any opinion thereon. Be that as

it may, Mr. Bahuguna contended the quantum had been fixed by

the High Court at a strangely staggering figure Rs. 5 lakhs

without however any basis whatsoever - Acknowledging,

however, the fact that no amount of compensation can possibly

redress the grievances of the parents in the contextual facts, it has

been contended that the law courts also cannot possibly proceed on

emotions and sentiments only: the order pertaining to payment of

compensation must have its foundation on some finding of fact in

the absence of which the order becomes totally untenable. A

number of decisions have been cited to depict that the quantum

must be realistically realistic having its proper basis rather than

assessment thereof on sentiment and anguish. Mr. Bahuguna

submitted that the anguish of the Judges of the High Court

obviously is understandable but that does not however mean and

imply, award of compensation to a staggering amount of Rs.5

lakhs per student by reason wherefor the School stands foisted with

the liability of more than one crore. Mr. Bahuguna contended that

assessment of compensation must also have a co-relation with the

ability or capability to pay. Ability to pay, it was contended is a

necessary criteria in regard to the fixation of quantum of

compensation in the event of there being an unfortunate event and

it is on this score that paragraph 41 of the Report has been taken

recourse to The teachers have been ascribed to be negligent and

not a whisper about the conduct of the school and as such

conferment of liability on to the school in any event is totally an

injudicious discretion of the High Court. True, and as noticed

hereinbefore the conclusion of CBI, fixed the entire responsibility

upon the two teachers and criminal proceedings stand initiated by

reason therefor and the accused persons as a matter of fact also

stand convicted under Section 304-A I.P.C. but what is the

affect of such a finding: Needless to record that the CBIs

investigation was not in regard to the assessment of the quantum of

tort feasors or joint tort-feasors liability and as such the report by

itself would not be of any assistance to the school authorities in the

matter of fixation of monetary liability by reason therefor.

Incidentally, this Court in C.K. Subramania Iyer and Others

v. T. Kunhikuttan Nair and Six Others [(1969) 3 SCC 64] while

dealing with the matter of fatal accidents laid down certain relevant

guidelines for the purpose of assessment of compensation.

Paragraph 13 of the report would be relevant on this score and the

same is set out hereinbelow:

13. The law on the point arising for decision may

be summed up thus: Compulsory damages under

Section 1-A of the Act for wrongful death must be

limited strictly to the pecuniary loss to the

beneficiaries and that under Section 2, the

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measure of damages is the economic loss

sustained by the estate. There can be no exact

uniform rule for measuring the value of the

human life and the measure of damages cannot be

arrived at by precise mathematical calculations

but the amount recoverable depends on the

particular facts and circumstances of each case.

The life expectancy of the deceased or of the

beneficiaries whichever is shorter is an important

factor. Since the elements which go to make up

the value of the life of the deceased to the

designated beneficiaries are necessarily personal

to each case, in the very nature of things, there

can be no exact or uniform rule for measuring the

value of human life. In assessing damages, the

Court must exclude all considerations of matter

which rest in speculation or fancy though

conjecture to some extent is inevitable. As a

general rule parents are entitled to recover the

present cash value of the prospective service of

the deceased minor child. In addition they may

receive compensation for loss of pecuniary

benefits reasonably to be expected after the child

attains majority. In the matter of ascertainment of

damages, the Appellate Court should be slow in

disturbing the findings reached by the courts

below, if they have taken all the relevant facts into

consideration.

(Emphasis supplied)

The observations as above, undoubtedly lays down the basic

guidance for assessment of damage but one redeeming feature

ought to be noted that compensation or damages cannot be

awarded as a solatium but to assess the same with reference to loss

of pecuniary benefits. In the decision last noted [(1969) 3 SCC 64]

this Court placed strong reliance on two old decisions of the

English Courts to wit: Franklin v. The South East Railway

Company (157 English Reports 3 H & N, p.448) wherein Pollock,

C.B. stated :

We do not say that it was necessary that actual

benefit should have been derived, a reasonable

expectation is enough and such reasonable

expectation might well exist, though from the

father, not being in need, the son had never done

anything for him. On the other hand a jury

certainly ought not to make a guess in the

matter, but ought to be satisfied that there has

been a loss of sensible and appreciable pecuniary

benefit, which might have been reasonably

expected from the continuance of life.

The other decision relates to the case of Taff Vale Railway

Company v. Jenkins [(1913) AC 1] wherein Atkinson, J. stated the

law as below:

I think it has been well established by authority

that all that is necessary is that a reasonable

expectation of pecuniary benefit should be

entertained by the person who sues. It is quite

true that the existence of this expectation is an

inference of fact there must be a basis of fact

from which the inference can reasonably be

drawn; but I wish to express my emphatic

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dissent from the proposition that it is necessary

that two of the facts without which the inference

cannot be drawn are, first, that the deceased

earned money in the past, and second, that he or

she contributed to the support of the plaintiff.

These are, no doubt, pregnant pieces of

evidence, but they are only pieces of evidence;

and the necessary inference can I think be drawn

from circumstances other than and different

from them.

Be it placed on record that in assessing damages, all relevant

materials should and ought always be placed before the court so as

to enable the Court to come to a conclusion in the matter of

affectation of pecuniary benefit by reason of the unfortunate death.

Though mathematical nicety is not required but a rough and ready

estimate can be had from the records claiming damages since award

of damages cannot be had without any material evidence: whereas

one party is to be compensated, the other party is to compensate

and as such there must always be some materials available therefor.

It is not a fanciful item of compensation but it is on legitimate

expectation of loss of pecuniary benefits. In Grand Trunk Railway

Company of Canada v. Jennings (13 Appeal Cases 800) this well

accepted principle stands reiterated as below:

In assessing the damages, all circumstances

which may be legitimately pleaded in diminution

of the damages must be considered. It is not a

mere guess work neither it is the resultant effect

of a compassionate attitude.

As noticed above, a large number of decisions were placed

before this Court as regards the quantum of compensation varying

between 50,000 to one lakh in regard to unfortunate deaths of

young children. We do deem it fit to record that while judicial

precedents undoubtedly have some relevance as regards the

principles of law, but the quantum of assessment stands dependent

on the fact-situation of the matter before the court, than judicial

precedents. As regards the quantum no decision as such can be

taken to be of binding precedent as such, since each case has to be

dealt with on its own peculiar facts and thus compensation is also

to be assessed on the basis thereof though however the same can

act as a guide: Placement in the society, financial status differ from

person to person and as such assessment would also differ. The

whole issue is to be judged on the basis of the fact-situation of the

matter concerned though however, not on mathematical nicety.

On the issue of negligence, the CBI report and subsequent

decision the Criminal Court have foisted liability on to the

teachers accompanying the students But what is the effect of

such a finding? Significantly, the school authority though claimed

to be not liable in any way, in no uncertain terms however blamed

the teachers and their utter negligence, resulting in such a tragedy.

Negligence in common parlance mean and imply failure to

exercise due care, expected of a reasonable prudent person. It is a

breach of duty and negligence in law ranging from inadvertence to

shameful disregard of safety of others. In most instances, it is

caused by heedlessness or inadvertence, by which the negligent

party is unaware of the results which may follow from his act.

Negligence is thus a breach of duty or lack of proper care in doing

something, in short, it is want of attention and doing of something

which a prudent and a reasonable man would not do (vide Blacks

Law Dictionary). Though sometimes, the word inadvertence

stands and used as a synonym to negligence, but in effect

negligence represents a state of the mind which however is much

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serious in nature than mere inadvertence. There is thus existing a

differentiation between the two expressions whereas

inadvertence is a milder form of negligence, negligence by itself

mean and imply a state of mind where there is no regard for duty

or the supposed care and attention which one ought to bestow.

Clerk & Lindsell on Torts (18th Ed.) sets out four several

requirements of the tort of negligence and the same read as below:

(1) the existence in law of a duty of care situation,

i.e. one in which the law attaches liability to

carelessness. There has to be recognition by law

that the careless infliction of the kind of damage

in suit on the class of person to which the

claimant belongs by the class of person to which

the defendant belongs is actionable;

(2) breach of the duty of care by the defendant, i.e.

that it failed to measure up to the standard set by

law;

(3) a casual connection between the defendants

careless conduct and the damage;

(4) that the particular kind of damage to the

particular claimant is not so unforeseeable as to

be too remote.

While the parent owes his child, a duty of care in relation to

the childs physical security, a teacher in a School is expected to

show such care towards a child under his charge as would be

exercised by a reasonably careful parent. In this context, reference

may be made to a decision of Tucker, J. in Ricketts v. Erith

Borough Council and Another (1943 (2) All ER 629) as also the

decision of the Court of Appeal in Prince and Another v. Gregory

and Another (1959(1)WLR177).

Duty of care varies from situation to situation - whereas it

would be the duty of the teacher to supervise the children in the

playground but the supervision, as the children leave the school,

may not be required in the same degree as is in the play-field.

While it is true that if the students are taken to another school

building for participation in certain games, it is sufficient exercise

of diligence to know that the premises are otherwise safe and

secure but undoubtedly if the students are taken out to playground

near a river for fun and swim, the degree of care required stands at

a much higher degree and no deviation therefrom can be had on

any count whatsoever. Mere satisfaction that the river is otherwise

safe for swim by reason of popular sayings will not be a sufficient

compliance. As a matter of fact the degree of care required to be

taken specially against the minor children stands at a much higher

level than adults: Children need much stricter care.

Incidentally, negligence is an independent tort and has its

own strict elements specially in the matter of children the

liability is thus absolute vis-à-vis the children. The school

authorities in the contextual facts attributed negligence to the two

teachers who stand convicted under Section 304A of the Indian

Penal Code as noticed above and Mr. Bahuguna appearing in

support of the appeal during the course of hearing, however, also

in no uncertain terms attributed utter negligence on the part of the

teachers and thus conceded on the issue of negligence.

Concession, if any, as noticed above, though undoubtedly a good

gesture on the part of the school authority, but can the school

absolve its responsibility and corresponding culpability in regard to

the incident: Would they be termed to be a joint tort feasors or

would it be a defence that the school has taken all due care having

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regard to its duty and it is irrespective thereof by reason of utter

neglect and callous conduct on the part of the two of the teachers

escorting them that has caused the injury Mr. Bahuguna

contended that the school cannot be made liable under any stretch

of imagination by reason of the happening of an event which is not

within the school premises and has, in fact, happened by reason of

the neglect of two of the teachers. It is on this score that Mr.

Malhotra rather emphatically contended that the liability cannot

simply be obliterated by reason of plea of utter neglect on the part

of the two of the teachers: School concerned can be said to be

liable even as a joint tort-feasor and in any event, Mr. Malhotra

contended that applicability of the doctrine of vicarious liability

cannot be doubted or be brushed aside, in any way whatsoever and

since the issue of vicarious liability has been more emphatic and

pronounced than the issue of joint tort-feasor, we deem it

expedient to deal with the second of twin issues first as noticed

above.

Be it noted that the doctrine of vicarious liability has had a

fair amount of judicial attention in the English Courts. By the end

of 18th century, the idea began to grow up that some special

importance ought to be attached to the relationship of master and

servant and in 1849 it was officially held that existence of that

relationship was essential. Thereafter, though primary liability on

the part of anyone could be established on proof of direct

participation in the tort, such direct participation was not even

theoretically required to make a master liable for his servants

torts. The liability is derived from the relationship and is truly

vicarious. At the same time, the phrase implied authority which

had been the cornerstone of the masters primary liability gives

way gradually to the modern course of employment. (vide

Winfield & Jolowicz on Tort 15th Ed.).

In recent years, the tendency has been however, towards

more liberal protection of third party and so in establishing a

particular course of employment the court should not dissect the

employees basic task into component parts but should ask in a

general sense: What was the job at which he was engaged for his

employer? And it is on this perspective Lord Wilberforce in

Kooragang Investments Pty. Ltd. v. Richardson & Wrench Ltd.

(1982 A.C. 462) stated:

Negligence is a method of performing an act:

instead of it being done carefully, it is done

negligently. So liability for negligent acts in the

course of employment is clear. Cases of fraud

present at first sight more difficulty: for if

fraudulent acts are not directly forbidden, most

relationships would carry an implied prohibition

against them. If committed for the benefit of the

employer and while doing his business, principle

and logic demand that the employer should be

held liable, and for some time the law rested at

this point. The classic judgment of Willes J. in

Barwick v. English Joint Stock Bank (1867) L.R.

2 Ex.259, 266 stated the principle thus:

In all these cases it may be said.that the

master has not authorised the act. It is true, he

has not authorised the particular act but he has

put the agent in his place to do that class of acts

and he must be answerable for the manner in

which the agent has conducted himself in doing

the business which it was the act of his master

to place him in.

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That was a case where the wrong was committed

for the masters (viz., the banks) benefit, and

Willes J. stated this as an ingredient of liability at

p.265:

..the master is answerable for every such

wrong of the servant or agent as is committed

in the course of the service and for the masters

benefit, though no express command or privity

of the master be proved.

But a sharp distinction has been made as regards the group of

cases which is concerned with the use of motor vehicles. These

are the cases Lord Wilberforce observed:

(i) where a servant has, without authority,

permitted another person to drive the masters

vehicle; (ii) where a servant has, without

authority, invited another person on to the vehicle,

who suffers injury; (iii) where a servant has

embarked on an unauthorised detour, or, as

lawyers like to call it, a frolic of his own. These

cases have given rise to a number of fine

distinctions, the courts in some cases struggling to

find liability, in others to avoid it, which it is not

profitable here to examine. It remains true to say

that, whatever exceptions or qualifications may be

introduced, the underlying principle remains that a

servant, even while performing acts of the class

which he was authorised, or employed, to do, may

so clearly depart from the scope of his

employment that his master will not be liable for

his wrongful acts."

The English law, therefore, takes a softer attitude in

cases where motor vehicles are involved in the matter of foisting of

liability so far as the employer is concerned the reason obviously

being if the concerned employee acts in a manner contrary to the

course of employment and on a frolic of his own why should

the employer be made responsible: It seems logical but obviously

there are cases and cases on the basis wherefor the liability of the

employer ought to be fixed. The Privy Council in Kooragang Ltd.

attributed frolic of his own to be the exonerating factor but this

frolic has also to be considered from facts to facts in the matter of

foisting of liability on to the employer. In any event, we need not

devote much of our time to the excepted cases, since we have in

this country several legislations covering the excepted

categories. The recognition of broader approach however, stands

undisputed and has also our concurrence herewith.

Significantly, however, Mr. Malhotra with all the emphasis at

his command and rather strongly commented upon the submissions

of Mr. Bahuguna on the issue of award of compensation by reason

of specific legislations in the country in particular reference to

Motor Vehicles Act and on a conjoint reading of the 2nd Schedule

thereto, Mr. Malhotra contended that the quantum would be far in

excess of the amount awarded by the High Court submissions

seem to be rather attractive: Motor Vehicles Act and the 2nd

Schedule thereto cannot but be treated to be a guide in the matter

of award of compensation and there cannot possibly be any doubt

in regard thereto. We shall however be dealing with the issue

slightly later in this judgment.

Turning attention however on to the issue of vicarious

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liability, one redeeming feature ought to be noticed at this juncture

that to escort the children was the duty assigned to the two teachers

and till such time thus the period of escorting stands over, one

cannot but ascribe it to be in the course of employment the two

teachers were assigned to escort the students : the reason obviously

being the children should otherwise be safe and secure and it is

the act of utter negligence of the two teachers which has resulted in

this unfortunate tragedy and thus it is no gain-said that the teachers

were on their own frolic and the school had done all that was

possible to be done in the matter safety of the children obviously

were of prime concern so far as the school authorities are

concerned and till such time the children return to school, safe and

secure after the picnic, the course of employment, in our view

continues and thus resultantly, the liability of the school.

A profitable re-capitulation of facts depict that the criminal

court has already found both the teachers guilty of utter negligence

and convicted them under Section 304 A IPC (which provides that

whoever causes the death of any person by doing any rash or

negligence act not amounting to culpable homicide shall be

punished with) We are not inclined to record anything

contra, save what stands recorded by the District Court in the

criminal proceeding but we are constrained to record our anguish

over the conduct of the teachers escorting the students even a

simple rule of discipline and safety would have prompted the

teachers not only to go to the river where they went but no where

near the river ought to have been the guiding factor children are

children: fun and frolic stand ingrained in them and it is

School/Teachers deputed for escorting ought to be reasonably

careful since entrusted with the safety this entrustment ought to

have infused a sense of duty which should have prompted them to

act not in the manner as they have so acted.

In view of the above, we are unable to record our

concurrence with the submissions of Mr. Bahuguna that the

doctrine of vicarious liability cannot in any event be made

applicable in the facts of the matter under consideration. Liability

of the school, in our view, in the contextual facts cannot be shifted

for any reason whatsoever by reason of the factum of teachers

being within the course of employment of the school at the time of

the tragedy.

Next is the issue maintainability of the writ petition before

the High Court under Article 226 of the Constitution. The

appellant though initially very strongly contended that while the

negligence aspect has been dealt with under penal law already, the

claim for compensation cannot but be left to be adjudicated by the

Civil law and thus the Civil courts jurisdiction ought to have been

invoked rather than by way of a writ petition under Article 226 of

the Constitution. This plea of non-maintainability of the writ

petition though advanced at the initial stage of the submissions but

subsequently the same was not pressed and as such we need not

detain ourselves on that score, excepting however recording that

the law courts exists for the society and they have an obligation to

meet the social aspirations of citizens since law courts must also

respond to the needs of the people. In this context reference may

be made to two decisions of this court: The first in line, is the

decision in Nilabati Behera (Smt) alias Lalita Behera (Through the

Supreme Court Legal Aid Committee) v. State of Orissa and

Others (1993 (2) SCC 746) wherein this Court relying upon the

decision in Rudal Sah (Rudal Sah v. State of Bihar & Anr.: 1983

(4) SCC 141) decried the illegality and impropriety in awarding

compensation in a proceeding in which courts power under

Articles 32 and 226 of the Constitution stand invoked and thus

observed that it was a clear case for award of compensation to the

petition for custodial death of her son. It is undoubtedly true

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however that in the present context, there is no infringement of

States obligation unless of course the State can also be termed to

be a joint tort-feasor, but since the case of the parties stand

restricted and without imparting any liability on the State, we do

not deem it expedient to deal with the issue any further except

noting the two decisions of this Court as above and without

expression of any opinion in regard thereto.

The decision of this Court in D.K. Basu vs. State of West

Bengal [(1997) 1 SCC 416] comes next. This decision has opened

up a new vesta in the jurisprudence of the country. The old

doctrine of only relegating aggrieved to the remedies available in

civil law limits stands extended since Anand, J. (as His Lordship

then was) in no uncertain terms observed:

The courts have the obligation to satisfy the

social aspirations of the citizens because the

courts and the law are for the people and expected

to respond to their aspirations. A court of law

cannot close its consciousness and aliveness to

stark realities. Mere punishment of the offender

cannot give much solace to the family of the

victim civil action for damages is a long drawn

and a cumbersome judicial process. Monetary

compensation for redressal by the court finding

the infringement of the indefeasible right to life of

the citizen is, therefore, useful and at time perhaps

the only effective remedy to apply balm to the

wounds of the family members of the deceased

victim, who may have been the breadwinner of

the family.

Currently judicial attitude has taken a shift from the old

draconian concept and the traditional jurisprudential system

affectation of the people has been taken note of rather seriously

and the judicial concern thus stands on a footing to provide

expeditious relief to an individual when needed rather than taking

recourse to the old conservative doctrine of civil courts obligation

to award damages. As a matter of fact the decision in D.K Basu

has not only dealt with the issue in a manner apposite to the social

need of the country but the learned Judge with his usual felicity of

expression firmly established the current trend of justice oriented

approach. Law courts will lose its efficacy if it cannot possibly

respond to the need of the society technicalities there might be

many but the justice oriented approach ought not to be thwarted on

the basis of such technicality since technicality cannot and ought

not to outweigh the course of justice.

The only other issue, thus left outstanding in the matter under

consideration pertains to the quantum of compensation. It is at this

juncture that we record our appreciation for the gesture of Mr.

Bahuguna who at the very commencement of the hearing

submitted that while the figure of Rs. 5 lacs compensation per

child seem to be strangely absurd but he recommended a figure of

Rs. 2 lacs per child as monetary compensation for the events that

had taken place; compensation there cannot be any, far less

monetary compensation, for the unfortunate death of ones own

child it cannot be termed to be a solatium. Unfortunately the

situation in the facts of the matter does not warrant us to accept the

same as a result of which we wish to deal with the matter in

slightly more greater detail.

Mr. Bahuguna for the appellant with however strong

vehemence contended that the High Court has totally misread and

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misapplied the principles of law in the matter of awarding

compensation and in any event the quantum thereto has been fixed

at an absurdly higher figure. The anguish of the High Court,

Mr. Bahuguna contended, is understandable by reason of the

factual import in the matter but that does not however mean and

imply that a court of law would be guided by emotions and allow

the sentiments to play a pivotal role in the matter of assessment of

damages. It has been the contention of Mr. Bahuguna that there is

not an iota of evidence as to the pecuniary loss for pecuniary

benefit and as such the assessment of quantum has been totally

arbitrary and in utter disregard of the known principles of law.

As noticed hereinbefore six several judgments have been

cited wherein the quantum of compensation varies between

Rs. 30,000/- to Rs.1,50,000/- but in every decision there was a

factual basis for such an assessment and there is no denial of the

same. But the adaptability of the multiply method and its

acceptability without any exception cannot just be given a go by.

This Court in a long catena of cases and without mixing word did

apply the multiply method to decide the question of compensation

in the cases arising out of Motor Vehicles Act. It is in this context

the view of British Law Commission may be noticed and which

indicates the multiplier has been, remains and should continue to

remain, the ordinary, the best and the only method of assessing the

value of a number of future annual sums. The actuarial method of

calculation strictly speaking may not have lost its relevance but its

applicability cannot but be said to be extremely restricted said

the British Commission. Lord Dennings observations in Hodges

vs. Harland & Wolff Limited [(1965) 1 ALL ER 1086] also seem

to be rather apposite. Lord Denning observed that multiplier

method cannot but be termed to be of universal application and as

such it would meet the concept of justice in the event the same

method is applied for determining the quantum of compensation.

Incidentally in a very recent decision of this Court (Civil Writ

Petition No. 232 of 1991 in the matter of Lata Wadhwa and Others

vs. State of Bihar & Others [of which one of us (U.C.Banerjee, J.)

was a party] wherein a three-Judge Bench of this Court has had the

occasion to consider an award of a former Chief Justice pertaining

to the assessment of compensation by reason of a huge accidental

fire. Significantly a writ petition was filed in this Court and this

Court thought it expedient to have the claims examined by a

former Chief Justice of the country and the latter duly and upon

adaptation of multiplier method finalised the quantum of

compensation which more or less barring some exceptions stands

accepted by this Court in the decision noticed above. In Lata

Wadhwas decision factual score records that while 150th Birth

Anniversary of Sir Jamshedji Tata, was being celebrated on 3rd

March, 1989 within the factory premises at Jamshedpur and a large

number of employees, their families including small children had

been invited, a devastating fire suddenly engulfed the Pandal and

the area surrounding and by the time the fire was extinguished, a

number of persons lay dead and many were suffering with burn

injuries. The death toll reached 60 and the total number of persons

injured were 113. The factual score in Lata Wadhwas case further

depicts that amongst the persons dead, there were 26 children, 25

women and 9 men and Srimati Lata Wadhwa the petitioner in the

matter lost her two children, a boy and a girl as also her parents. It

is on this score that the learned arbitrator fixed in the absence of

any material a uniform amount of Rs. 50,000/- to which again a

conventional figure of Rs.25,000/- has been added for determining

the total amount of compensation payable. While dealing with the

matter this Court (Pattanaik, J. speaking for the Bench) observed:

So far as the determination of compensation in

death cases are concerned, apart from the three

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decisions of Andhra Pradesh High Court, which

had been mentioned in the order of this Court

dated 15th December, 1993, this Court in the case

of General Manager, Kerala State Road Transport

Corporation, Trivandrum v. Susamma Thomas

and Ors. (1994 (2) SCC 176), exhaustively dealt

with the question. It has been held in the

aforesaid case that for assessment of damages to

compensate the dependants, it has to take into

account many imponderables, as to the life

expectancy of the deceased and the dependants,

the amount that the deceased would have earned

during the remainder of his life, the amount that

he would have contributed to the dependants

during that period, the chances that the deceased

may not have lived or the dependants may not live

up to the estimated remaining period of their life

expectancy, the chances that the deceased might

have got better employment or income or might

have lost his employment or income altogether.

The Court further observed that the manner of

arriving at the damages is to ascertain the net

income of the deceased available for the support

of himself and his dependants, and to deduct

therefrom such part of his income as the deceased

was accustomed to spend upon himself, as

regards both self-maintenance and pleasure, and

to ascertain what part of his net income the

deceased was accustomed to spend for the benefit

of the dependants, and thereafter it should be

capitalised by multiplying it by a figure

representing the proper number of years

purchase. It was also stated that much of the

calculation necessarily remains in the realm of

hypothesis and in that region arithmetic is a good

servant but a bad master, since there are so often

many imponderables. In every case, it is the

overall picture that matters, and the Court must

try to assess as best as it can, the loss suffered.

On the acceptability of the multiplier method, the

Court observed:

The multiplier method is logically

sound and legally well-established method

of ensuring a just compensation which will

make for uniformity and certainty of the

awards. A departure from this method can

only be justified in rare and extraordinary

circumstances and very exceptional cases.

In the decision of Susamma Thomas (supra), this Court in

paragraphs 7 & 8 of the report observed:

7. In a fatal accident action, the accepted

measure of damages awarded to the dependants is

the pecuniary loss suffered by them as a result of

the death. How much has the widow and family

lost by the fathers death? The answer to this lies

in the oft-quoted passage from the opinion of

Lord Wright in Davies v. Powell Duffryn

Associated Collieries Ltd.[1942 AC 617] which

says:

The starting point is the amount of wages

which the deceased was earning, the

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ascertainment of which to some extent may

depend on the regularity of his employment.

Then there is an estimate of how much was

required or expended for his own personal

and living expenses. The balance will give a

datum or basic figure which will generally

be turned into a lump sum by taking a

certain number of years purchase. That

sum, however, has to be taxed down by

having due regard to uncertainties, for

instance, that the widow might have again

married and thus ceased to be dependent,

and other like matters of speculation and

doubt.

8. The measure of damage is the pecuniary loss

suffered and is likely to be suffered by each

dependent. Thus except where there is express

statutory direction to the contrary, the damages to

be awarded to a dependant of a deceased person

under the Fatal Accidents Acts must take into

account any pecuniary benefit accruing to that

dependant in consequence of the death of the

deceased. It is the net loss on balance which

constitutes the measure of damages. (Per Lord

Macmillan in Davies v. Powell) Lord Wright in

the same case said, The actual pecuniary loss of

each individual entitled to sue can only be

ascertained by balancing on the one hand the loss

to him of the future pecuniary benefit, and on the

other any pecuniary advantage which from

whatever source comes to him by reason of the

death. These words of Lord Wright were

adopted as the principle applicable also under the

Indian Act in Gobald Motor Service Ltd. v.

R..M.K. Veluswami [AIR 1962 SC 1] where the

Supreme Court stated that the general principle is

that the actual pecuniary loss can be ascertained

only by balancing on the one hand the loss to the

claimants of the future pecuniary benefit and on

the other any pecuniary advantage which from

whatever source comes to them by reason of the

death, that is, the balance of loss and gain to a

dependant by the death, must be ascertained.

Needless to say that the multiplier method stands accepted by

this Court in the decision last noticed and on the acceptability of

multiplier method this Court in para 16 had the following to state:

It is necessary to reiterate that the multiplier

method is logically sound and legally well-

established. There are some cases which have

proceeded to determine the compensation on the

basis of aggregating the entire future earnings for

over the period the life expectancy was lost,

deducted a percentage therefrom towards

uncertainties of future life and award the resulting

sum as compensation. This is clearly unscientific.

For instance, if the deceased was, say 25 years of

age at the time of death and the life expectancy is

70 years, this method would multiply the loss of

dependency for 45 years virtually adopting a

multiplier of 45 and even if one-third or one-

fourth is deducted therefrom towards the

uncertainties of future life and for immediate

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lump sum payment, the effective multiplier would

be between 30 and 34. This is wholly

impermissible. We are, aware that some decisions

of the High Courts and of this Court as well have

arrived at compensation on some such basis.

These decisions cannot be said to have laid down

a settled principle. They are merely instances of

particular awards in individual cases. The proper

method of computation is the multiplier method.

Any departure, except in exceptional and

extraordinary cases, would introduce

inconsistency of principle, lack of uniformity and

an element of unpredictability for the assessment

of compensation. Some judgments of the High

Courts have justified a departure from the

multiplier method on the ground that Section 110-

B of the Motor Vehicles Act, 1939 insofar as it

envisages the compensation to be just., the

statutory determination of a just compensation

would unshackle the exercise from any rigid

formula. It must be borne in mind that the

multiplier method is the accepted method of

ensuring a just compensation which will make

for uniformity and certainty of the awards. We

disapprove these decisions of the High Courts

which have taken a contrary view. We indicate

that the multiplier method is the appropriate

method, a departure from which can only be

justified in rare and extraordinary circumstances

and very exceptional cases.

In Lata Wadhwas case, however, this Court came to a

conclusion that upon acceptability of the multiplier method and

depending upon the facts situation namely the involvement of

TISCO in its tradition that every employee can get one of his child

employed in the company and having regard to multiplier 15 the

compensation was calculated at Rs. 3.60 lacs with an additional

sum of Rs.50,000/- as conventional figure making the total amount

payable at Rs.4.10 lacs for each of the claimants of the deceased

children.

The decision in Lata Wadhwa, thus, is definitely a guiding

factor in the matter of award of compensation wherein children

died under an unfortunate incident as noticed morefully

hereinbefore in this judgment.

Having considered the matter in its proper perspective and

the applicability of multiplier method and without even any further

material on record we do feel it expedient to note that though Mr.

Bahuguna attributed the quantum granted by the High Court as

strangely absurd, we, however, are not in a position to lend our

concurrence therewith. It is not that the award of compensation at

Rs. 5 lacs can be attributed to be the resultant effect of either

emotion or sentiments or the High Courts anguish over the

incident. The High Court obviously considered the overall

situation as regards social placements of the students. As stated

hereinafter the school presently is one of the affluent school in the

country and fee structure and other incidentals are so high that it

would be a well nigh impossibility to think of admission in the

school at even the upper middle class level. Obviously the school

caters to the need of upper strata of the society and if the 2nd

Schedule of Motor Vehicles Act, can be termed to be any guide,

the compensation could have been a much larger sum. Thus in the

factual situation award of compensation at Rs. 5 lakhs cannot by

any stretch be termed to be excessive. Another redeeming feature

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of Mr. Bahuguna submissions pertains to the theory of ability to

pay: Audited accounts have been produced for the year 1995

depicting a situation, though not of having stringency but the

situation truly cannot but be ascribed to be otherwise comfortable

to pay as directed by the High Court. The matter, however,

prolonged in the law courts in the usual manner and it took nearly

six years for its final disposal before this Court these six years

however had rendered the financial stability of the school

concerned in a much more stronger situation than what it was in

the year 1995. The school as of date stands out to be one of the

most affluent schools in the country as such ability to pay cannot

be termed to be an issue in the matter and on the wake thereto we

are not inclined to deal with the same in any further detail.

In the view we have taken as above, we could have awarded

a larger sum but judicial propriety deters us from doing so, since

in the normal course of events appellate forum ought not to

interfere with the award of compensation.

In the view, we have taken as noted hereinbefore, we do not

feel it inclined to deal with the other issue of the school authority

being a joint-tort feasor as submitted before this Court by the

respondents. The issue thus is left open.

As regards the question of interest as contended by Mr.

Malhotra, we feel it inclined to grant 6% simple interest from the

date of the judgment of the High Court till payment on the

reducing balance. The amount so directed by the High Court

together with interest as modified above be paid by eight (8)

quarterly installments.

The amount deposited in terms of earlier order of this Court

inclusive of interest with the Registrar of this Court be made

available to the parties pro-rata in terms of this order and the

balance, however, be paid as directed above.

This appeal thus stands disposed of without any order as to

costs.

.J.

(A.P. Misra)

.J.

(Umesh C. Banerjee)

August 24, 2001