K. Madhavan Nair and Others v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **WP(C) NO. 4363 OF 2016** ## **PETITIONERS:** - **1 K.MADHAVAN NAIR AGED 70 YEARS KAPOOR HOUSE NO.8/499, PUTHUCODE, ALATHUR TALUK, PALAKKAD DISTRICT.** - **2 K.SATHEESH KUMAR AGED 46 YEARS S/O.K.MADHAVAN NAIR, KAPOOR HOUSE NO.8/499, PUTHUCODE, ALATHUR TALUK, PALAKKAD DISTRICT.** - **3 JAGADEESH KUMAR AGED 44 YEARS S/O.K.MADHAVAN NAIR, KAPOOR HOUSE NO.8/499, PUTHUCODE, ALATHUR TALUK, PALAKKAD DISTRICT.** - **4 SURESH KUMAR AGED 41 YEARS S/O.K.MADHAVAN NAIR, KAPOOR HOUSE NO.8/499, PUTHUCODE, ALATHUR TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.C.KHALID A.R.NIMOD SRI.T.V.MAMMOOTTY M.A.AUGUSTINE(K/000511/2005)** ## **RESPONDENT/S:** - **1 GOVERNMENT OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, NEW DELHI-110 001.** - **2 THE NATIONAL HIGHWAY AUTHORITY OF INDIA REPRESENTED BY ITS PROJECT DIRECTOR, VIII/1187, ARUMUGHAM COLONY, CHANDRAN NAGAR, PALAKKAD-678 007.** - **3 MS.THRISSUR EXPRESS WAY LIMITED BEHIND APOLLO TYRES, PO PERAMBRA, MUKUNDAPURAM, THRISSUR DISTRICT-680 001.** W.P (C) No.4363/2016 -2- **4 MS.KMC CONSTRUCTIONS LIMITED BEHIND APOLLO TYRES, PO PERAMBRA, MUKUNDAPURAM, THRISSUR DISTRICT-680 001.** **BY ADVS. SRI.K.A.BALAN, CGC K.A.SALIL NARAYANAN SRI.T.P.RAMACHANDRAN (THACHETH) V.A.JOHNSON (VARIKKAPPALLIL)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (C) No.4363/2016 -3- ## **J U D G M E N T** The first petitioner is the father of late Jayan who died on 13-03-2014 on account of an unfortunate accident when he fell into a pit which was dug as a part of the National Highway construction near Mannuthy Junction, Palakkad District. The other petitioners are brothers of late Jayan. According to the petitioners there were no warning signs, barricades or other safety precautions to ensure that an accident like the one that had befallen late Jayan did not take place. It is submitted that the death of late Jayan (who was only aged 34 at the time of his death) was solely on account of the callous negligence of the National Highway Authority and its contractor and therefore the petitioners are entitled to compensation. 2. The learned Standing counsel appearing for the National Highway Authority and the learned counsel appearing for respondents 3 and 4 [the contractors] would submit that there is absolutely no merit in the contentions taken in the writ petition. It is submitted that there were sufficient safety precautions at the place in question. It is submitted that there were sufficient barricades and warning tapes around the work site and watch and ward had also been engaged. It is submitted that the pit in question was more than 3 meters away from bituminized tar road edge of the existing Highway which clearly shows that late Jayan had tresspassed into the work site. It is W.P (C) No.4363/2016 -4- submitted that the bore hole was closed using steel plates and the accident occurred only on account of the fact that late Jayan had entered into the work site ignoring all safety aspects. 3. Learned counsel appearing for respondents 3 and 4 would submit with reference to Ext.R3 (a) produced along with the counter affidavit filed by respondents 3 and 4 that the level of alcohol in blood detected during post mortem examination was 103 milligram of Ethyil Alcohol in 100 ml of blood. He submits that though the provisions of the Motor Vehicles Act 1988 may not be directly applicable to the facts of this case, the limits of alcohol in Section 185 of the Motor Vehicles Act (30 mg per 100 ml of blood) indicates that the deceased was substantially under the influence of alcohol at the time when he fell into the pit and met with death due to drowning. It is submitted that in almost similar circumstances this court in judgment dated 26-07-2022 in W.P (C) No.22114/2020 had held that such factual disputes cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. 4. The learned counsel for the petitioners in reply would submit that Ext.P3 charge filed before the Judicial First Class Magistrate Court No.III, Thrissur in Crime No.451/2014 of the Mannuthy Police Station would clearly indicate that the death of late Jayan occurred on account of the negligence of the respondents. It is submitted with reference to Exts.P7 and P8 that the W.P (C) No.4363/2016 -5- contention taken before this Court that the pit was suitably covered does not appear to tally with the earlier versions including in Ex.P7 letter of the National Highways Authority of India to the Sub Inspector of Police, Mannuthy Police Station as also with Ext.P8 letter issued by the independent Engineer to the 3[rd] respondent (Ext.P8). It is also submitted that in a recent judgment of this Court in W.P.(C)No.26374/2015, this Court had after relying on the judgment of the Supreme Court in _**Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy;** AIR 2012 SC 100_ came to the conclusion that compensation can be awarded in a writ petition under Article 226 of the Constitution of India especially when it can be found that the death was caused on account of the negligence of the National Highways Authority of India and its contractors .It is submitted that Exts.P7 and P8 indicate beyond doubt that there was clear negligence on the part of National Highways Authority of India and its contractors . 5. Having heard the learned counsel appearing for the petitioners and the learned Standing Counsel appearing for the National Highways Authority of India and the learned counsel appearing for respondents 3 and 4, I am of the view that in the facts and circumstances of this case, it will not be appropriate for this Court to directly order the award of compensation to the petitioners owing to the death of late Jayan. The facts considered by this W.P (C) No.4363/2016 -6- Court in W.P (C)No.26374/2015 were slightly different from the facts of this case. In the facts of the present case, Ext.R3 (a) document appears to indicate that the deceased was under the influence of alcohol at the time when he had met with the accident. While this may not be conclusive regarding the question as to whether the compensation is to be paid by the respondents, it indicates that atleast the case of contributory negligence may have to be considered before awarding of compensation. In W.P (C) No.26374/2015, this Court was dealing with the death of a minor child, who had died by falling into a pit while playing outside his house. There was no question of any contributory negligence and it does not appear that the parties in that case had raised a contention that there were sufficient warning signs etc as has been contended in this case. Therefore, I am inclined to take the view taken by this Court while disposing of W.P (C) No.22114/2020 and I hold that the question of payment of compensation to the petitioner cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. The writ petition fails and it is accordingly dismissed. However, I make it clear that no observation in this judgment shall be deemed as a finding by this Court on any aspect of the matter and it will be open to the petitioners to claim compensation by approaching the competent civil court. Since this writ petition was pending before this Court from 03-02-2016 till today, I also W.P (C) No.4363/2016 -7- deem it appropriate to direct that the period from 03-02-2016 till the date of receipt of a certified copy of this judgment shall be excluded for the purpose of determining any period of limitation within which any civil suit had to be filed for claiming compensation. The writ petition is ordered accordingly. Sd/- **GOPINATH P. JUDGE** AMG W.P (C) No.4363/2016 -8- ## **APPENDIX OF WP(C) 4363/2016** ## **PETITIONER EXHIBITS** **Exhibit-P1 TRUE COPY OF THE FIR IN CRIME NO.451/2014 OF MANNUTHY POLICE STATION. Exhibit-P2 TRUE COPY OF THE FI STATEMENT GIVEN BY MR.DIWAKARAN IN CRIME NO.451/2014 OF MANNUTHY POLICE STATION. Exhibit-P3 TRUE COPY OF THE FINAL REPORT IN CRIME NO.451/2014 OF MANNUTHY POLICE STATION. Exhibit-P4 TRUE COPY OF NATIONAL TRADE CERTIFICATE ISSUED BY NATIONAL COUNCIL FOR VOCATIONAL TRAINING TO THE DECEASED JAYAN Exhibit-P5 TRUE COPY OF THE EMPLOYMENT CERTIFICATE OF THE DECEASED JAYAN Exhibit-P6 TRUE COPY OF THE APPLICATION DT 23-11-2015 SENT BY THE 1ST PETITIONER TO THE 2ND RESPONDENT WITH ITS POSTAL RECEIPT Exhibit-P7 TRUE COPY OF THE LETTER NUMBERED NHAT/PD/PALAKKAD/NH47/KL-3 BY 2ND RESPONDENT TO SUB INSPECTOR OF POLICE, MANNUTHY POLICE STATION, DATED 19.03.2014 Exhibit-P8 A TRUE COPY OF LETTER DATED 19.03.2014 MARKED AS ANNEXURE E IN EXT-P7 BY IEL THRISSUR EXPRESSWAY LTD**