Gopinathan Nair, Rajamma and Jayasree P.G. v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938 WP(C).No. 26821 of 2007 (R) ---------------------------- PETITIONER: ---------- *1. GOPINATHAN NAIR,(DIED) PUTHENPURAYIL HOUSE R-PERINADU P.O., PIN-689 711,, RANNI TALUK, PATHANAMTHITTA DISTRICT. 2. RAJAMMA, PUTHENPURAYIL HOUSE, R-PERINADU P.O., PIN-689 711,, RANNI TALUK, PATHANAMTHITTA DISTRICT. *ADDL.3 JAYASREE P.G., D/O.LATE GOPINATHAN NAIR, VAZHAKALAYIL VEEDU, KOTTAMANPARA PO, ALUMKAL, SEETHATHODU, RANNI TALUK, PATHANAMTHITTA DISTRICT. *R1 DIED AND ADDL.3RD PETITIONER IS IMPLEADED AS PER ORDER DATED 12.07.2016 IN IA NO.10928/2016 BY ADV. SRI.JACOB P.ALEX RESPONDENT: -------------- 1. STATE OF KERALA DISTRICT COLLECTOR, PATHANAMTHITTA. 2. SECRETARY, KERALA STATE WATER RESOURCES DEPARTMENT, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, PAMPA IRRIGATION PROJECT (DIVISION), CHENGANNUR. 4. ASSISTANT EXECUTIVE ENGINEER, PAMPA IRRIGATION PROJECT (DIVISION),, MANIYAR P.O., RANNI, PATHANAMTHITTA. 5. ASSISTANT ENGINEER, PAMPA IRRIGATION PROJECT (DIVISION),, MANIYAR P.O., RANNI. 6. TAHSILDAR, RANNI, PATHANAMTHITTA DISTRICT. 7. RANNI PERUNADU GRAMA PANCHAYAT, REP. BY ITS SECRETARY, R.PERUNADU PO, RANNI. R7 BY ADV. SRI.S.MUHAMMED HANEEFF BY GOVERNMENT PLEADER SRI.BABY THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1207-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX PETITIONER'S EXHIBITS - P1: TRUE COPY OF FIR BEARING NO.158/2004 OF RANNY-PERUNADU POLICE STATION. - P2 : TRUE COPIES OF NOTICE DATED 23.03.2007 AND REPLY DATED 09-042007 OF THE 3RD RESPONDENT. - P3: TRUE COPIES OF NOTICE DATED 08.05.2007 AND REPLY DATED 08.06.2007 OF 3RD RESPONDENT. - P4: CERTIFICATE ISSUED BY RANNY-PERUNADU PANCHAYAT ON 12.03.2007. - P5: NOTICE ISSUED TO RESPONDENTS ON 08.05.2007. RESPONDENTS EXHIBITS NIL /True Copy/ P.A. to Judge ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = W.P.(C).No.26821 of 2007 = = = = = = = = = = = = = = Dated this the 12[th] day of July, 2016** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i) issue a writ in the nature of mandamus or any appropriate order or direction commanding the 1[st] respondent to pay compensation of Rs.5 lakhs to the petitioners on account of the death of their only son due to the negligence on the part of respondents 3,4 and 5; ii) Direct respondents 3, 4 and 5 not to open the shutters/sluice gate of Maniyar dam without issuing prior warning to the people living in riparian villages of river Pampa in accordance with law. (iii) issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to take appropriate action upon Ext.P5 and to take necessary steps for granting compensation as demanded therein.” 2.The contention of the writ petitioners, who are the mother and the sister of Jayan P.G, who drowned in river Pampa at Ranny on 19.09.2004, is that the accident occurred due to the W.P.(C).No.26821/07 **2** negligent act of the respondents in raising the shutters of the Maniyar Dam without any warning whatsoever. It is stated that the young man had gone for bathing at Kalloorkkadavu and was drowned in a flash flood and abnormal rise in the water level at about 7 p.m. which was a result of the opening of the shutters/sluice gates of the Maniyar dam unexpectedly. Applications were made under the Right to Information Act and information was obtained to the effect that water was released from the Maniyar dam from 18 hrs to 20.00 hrs and from 21.00 hrs to 24.00 hrs and the approximate quantity of water released was 361.182 cubic metres per second. It is further stated in Ext.P2 information supplied in reply to the application made under the Right to Information Act that “the field staff at the Maniyar Dam site released water from the dam as there is a general instruction to operate the shutters when the water level increases beyond the full reservoir level for avoiding any mishaps”. Ranny-Perunad Grama Panchayat has also issued Ext.P4 certificate stating that there was no prior warning as to release of water from the Maniyar dam in W.P.(C).No.26821/07 **3** 2004. The petitioners had approached the respondents seeking compensation for the death of Jayan which remained unanswered at the hands of the respondents which prompted the filing of the writ petition. 3.A counter affidavit has been filed on behalf of respondents 3,4 and 5. The fact that Jayan was a victim for drowning accident is admitted in the counter affidavit. It is stated that the electric supply in the Pathanamthitta-Edappon 110 KV line failed at 4.55 p.m. and that the Carborandum Universal Madrass India's Hydro Electric Plant which is drawing water from the Maniyar barrage for power generation tripped off. The plant stopped the release of water to the river Kakkad and there was rise in the water level in Maniyar reservoir. It is stated that when the water in the reservoir crossed the critical level, of 34.62m, “the same quantity of water which was flowing through the plant was then released through the spillways as per the routine practice.” It is stated that there was a warning board exhibited in the 'dry portion' of the W.P.(C).No.26821/07 **4** barrage. There was no additional discharge of water through the river and no rise in river water level except in the initial 'Dry Portion' of the 400m just downstream of the Maniyar Barrage. It is submitted that the accident occurred 6 k.m. downstream from the Maniyar Barrage and that the release of water from the Maniyar dam was not the reason for the flash floods in the river in which the drowning occurred. It is further stated at paragraph 5 of the counter affidavit that there are several streams merging in the river Pampa between the Maniyar dam and the site of the disaster and that there was considerable rainfall on that day which would have been the reason for the water level and heavy flow in the river. Documents have been produced with counter affidavit seeking to substantiate the claims of the respondents. - 4.The petitioners have filed a reply affidavit refuting the contentions as regards high rainfall in the area on the day in question. It is further stated that the release of 361.182 cubic metres of water at 6 p.m on 19.09.2004 being an admitted fact, W.P.(C).No.26821/07 **5** the huge quantity of water was the direct reason for the rising water level in the river at the time which resulted in the disaster in question. - 5.Heard Sr.Jacob P Alex, the learned counsel for the petitioners and Sri.Baby Thomas, the learned Government Pleader appearing for the respondents 1 to 6 and learned Standing Counsel for the 7[th] respondent Panchayat. - 6.It is the contention of the learned counsel for the petitioner that the death by drowning and the occurrence of a flood in the river being admitted facts, it is clear from the documents produced that the reason for the flash flood was the sudden release of water from the Maniyar dam at 6 p.m. without any notice or warning whatsoever. In the facts of the case, it is submitted that the respondents who are directly responsible for the negligent action which has resulted in the death are liable to be mulcted with the responsibility of compensating the petitioners at least on a monetary level. W.P.(C).No.26821/07 **6** - 7.Learned Government Pleader appearing for the respondents would, on the other hand, submits that the death by drowning was a natural calamity which occurred on 19.09.2004. The petitioners had been compensated by ex gratia payment of Rs.50,000/- by the Government, since the death was a result of natural calamity. It is further stated that the Government Order, as if stood then, permitted the grant of only Rs.50,000/to the relatives of the persons who die in natural calamities and no further amounts are due to the petitioners. It is further contended that the petitioner could have availed the civil law remedies available to them and that this writ petition is not maintainable. - 8.The learned counsel for the petitioners would rely on the decisions of this Court as well as the Apex Court to contend that where it is found that the public law remedy under Article 226 of the Constitution of India is available to persons like the petitioners who are victims of negligent or unlawful acts at the W.P.(C).No.26821/07 **7** hands of the State or any of its officers who claim compensation from the State and its functionaries. He would submit that such right to claim compensation on account of violation of the right to life or other human rights would not be dependant on the right to the remedies under the civil and criminal jurisdictions. In **M.S.Grewal v. Deep Chand Sood** [(2001) 8 SCC 151], the Apex Court held that Courts have a social obligation to respond to the need of the people and that a writ petition under Article 226 of the Constitution of India is maintainable for compensation per se. This position is well settled by decision of the Apex Court. 9.In the instant case, it is specifically pleaded by the petitioners that the incident of drowning had occurred due to the negligent act on the part of the State and its functionaries in releasing huge amount of water from the dam without any warning whatsoever. The release of water was to an extent of 361.182 cubic metres which is alleged to be much higher than the volume of water usually let out from the dam. This sudden W.P.(C).No.26821/07 **8** release of huge quantity of water had resulted in the rising of the water level in the river and flash floods. This is an aspect which was pointed out by the petitioners in the writ petition with the support of Ext.P2 reply given to a query under the Right to Information Act. Though a counter affidavit has been filed on behalf of respondents 3, 4 and 5 and documents have been produced, no record is forthcoming to show as to what is the normal volume of water which is discharged from the dam in the usual course of a day. Ext.R3(a) produced along with the counter affidavit would show that there was an interruption in power supply and that at about 1.15 p.m., one of the machines had been tripped off and the other two generators were running with the capacity of 7MW. Thereafter, it appears that at 4.45 p.m. the power supply failed again and was resumed at 5.15 p.m. These details are produced to state that there was interruption of power supply and the water level in the dam had exceeded the allowed maximum. This is stated to be the reason for the release of the water from the dam at 6 p.m. Ext.R3(f) is also produced to W.P.(C).No.26821/07 **9** substantiate the claim that there was heavy rainfall in the region on the day in question. It is the contention of the learned Government Pleader that the release of water from Maniyar dam was only a routine exercise and no warning was required, since it would not involve any considerable increase in the water level. 10.I have considered the rival contentions advanced on either side and the materials produced in support of the said contentions. It is the common case of the parties that the death occurred by drowning on 19.09.2004 in the Pampa river in Ranny-Perunadu Panchayat. It is also the common case that there had been a release of water from the Maniyar dam on 19.09.2004 from 6p.m.to 8.p.m and thereafter from 9 p.m.to midnight. The question that arises for consideration is whether the release of water without warning from the Maniyar dam was the reason attributable for the rise in water level and the flash floods in the Pampa river which claimed the life of the young man. The materials produced by the petitioners as W.P.(C).No.26821/07 **10** Ext.P2 is a reply given by the Executive Engineer, Irrigation to a query made under the Right to Information Act. It is specifically stated therein that the amount of water released was 361.182 cubic metres. It is further stated that the water had to be released because of the danger of exceeding the permissible water level in the dam. The learned Government Pleader would submit that there was a series of events leading to an accumulation of water in the dam which necessitated the opening of the shutters/sluice gates of the dam to release the water. However, it is contented that the release was only a routine matter and would not have resulted in flash floods that took the life of the petitioners' son. It is further contended that there are notice boards alerting people who enter the river of the danger. However, it is clear from the pleadings and the materials produced itself that the warning boards are in the vicinity of the barrage of the Maniyar dam and not near the area where the death by drowning occurred. Ext.P2 has not been controverted by the respondents in their counter affidavit. Ext.P4 certificate issued by the Grama Panchayat W.P.(C).No.26821/07 **11** would also go to show that there was no warning of release of water from the Maniyar dam during the period in question. Learned counsel for the petitioner would also contend that a perusal of R3(f) rain chart produced by the respondents would itself show that the rain on the day in question was not so high as to produce the flash floods. The fact of drowning in the river as a result of flash flood being an admitted fact, and the respondents being unable to controvert the claim of the petitioners that the very high volume of water had been released from the dam without any warning whatsoever, I am of the considered opinion that the inescapable conclusion is that the drowning was a result of flash floods which occurred due to the release of the water from the Maniyar dam. The proximity of the time of the release as stated in Ext.P3 and as admitted by the respondents and the lack of warning of any nature as is admitted in the counter affidavit would lead to the conclusion that it was the negligent act of the employees of the 1[st] respondent State which had resulted in the deprivation of a 25 year old of his life. W.P.(C).No.26821/07 **12** 11.Coming to the question of fixation of compensation, the learned counsel for the petitioners would rely on the decisions of this Court and the Apex Court to contend that the table of compensation contained in Schedule II of the Motor Vehicles Act for fixation of compensation for third party fatal accidents under Section 163A in a case of no-fault liability should be adopted in the case of an accident of this nature as well. The learned counsel for the petitioner rely on a decision of the Apex Court in **M.S.Grewal and another v. Deep Chand Sood and others** [(2001)8 SCC 151] which relied on **Lata Wadhwa** case [(2001) 8 SCC 197] and held that the multiplier as adopted under the Motor Vehicles Act is the most appropriate method for fixing of compensation in cases of fatal accidents. In that case, in respect of the death of 77 students which occurred on 28.05.1995 the multiplier method is adopted and an amount of Rs.5 lakhs with 6% interest was held to be adequate compensation to be paid by the school authorities. In the instant case, the deceased was a 25 year W.P.(C).No.26821/07 **13** old youth. Having found that the death due to drowning was a direct consequence of a negligent act of the respondents and their employees, this Court is of the view that due compensation is to be paid to the mother for the said negligent act by the respondents. Taking into account the compensation to be awarded under Sections 163A of the Motor Vehicles Act as well, as also deducting the amount of Rs.50,000/- already granted to the 2[nd] petitioner mother as ex gratia payment and considering the date of the accident, an amount of Rs.4 lakhs is fixed as compensation due to the 2[nd] petitioner on account of the death of her son. The said amount of Rs.4 lakhs will carry simple interest of 6% from 23.08.2007. The 1[st] respondent shall pay the compensation as directed above within a period of four months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj