2001 Supreme(SC) 1157

2001(6) Supreme 655
Supreme Court of India
(From Himachal Pradesh High Court)
A.P. Misra and Umesh C. Banerjee, JJ.
M.S. Grewal & Anr. —Appellants
versus
Deep Chand Sood & Ors. —Respondents
Civil Appeal No.9738 of 1996
Decided on 24-8-2001
Counsel for the Parties :
For the Appellants : Vijay Bahuguna, S. Bagga, Sr. Advocates, Seeraj Bagga, Advocate for Ms. S. Bagga, Advocate/Advocates.
For the Respondents : P.P. Malhotra, Sr. Advocate, Anish Kumar Gupta and Shrish Kumar Misra, Advocates.

Headnote:(i) Tort of Negligence—Meaning of negligence—Requirements of tort of negligence.

       Held : 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 Black’s 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 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 or 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 defendant’s 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." (Para 14)

       (ii) Duty of care—Parents duty, school’s duty, Teachers duty towards children in law of Torts.

       Held : While the parent owes his child, a duty of care in relation to the child’s 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) WLR 177. 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. (Paras 15 & 16)

       (iii) Tort of Negligence—Liability of school for Tort of negligence by its teachers—Appellant’s school sending young children for picnic under its extracurricular activities—Two teachers deputed to escort them safely—Picnic near river Bias—Teachers allowing fun in river swimming—14 young students drowned due to their negligence—Commission of inquiry attributed criminal negligence to teachers—Teachers prosecuted & convicted u/s 304A IPC—Liability of school—Nature of Tort of negligence—Liability of School on principles of vicarious liability—Discussed and upheld—Liability of school as Joint Tort feasor—Left open.

       Held : Incidentally, negligence is an independent tort and has its own strict elements specially in the matter of children - the liability is thus absolute vis-a-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 regard to its duty and it is irrespective thereof by reason of uttar 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 that the issue of joint tort-feasor, we deem it expedient to deal with the second of twin issues first as noticed above. (Para 17)

       Turning attention however on to the issue of vicarious 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 bad 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 304A 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. (Paras 23, 24 & 25)

       Held however : 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. (Para 38)

       (iv) Constitution of India—Articles 226, 227 and 136—Tort of negligence—Total Tragedy of drowning of 14 school children in picnic near river Bias due to negligence of two teachers—Parents filing writ petition in H.P. High Court against petitioners 1 and 2 and respondents 14–16 seeking relief by way of an enquiry by CBI to find cause of tragedy, fixation of responsibility and punishment to guilty together with a prayer for adequate compensation from school—Whether maintainable? (Yes).

       Held : The 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. (Para 26)

       After referring two decisions held : Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - effectation 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. (Para 28)

       (v) Tort of negligence by teachers—School held vicariously liable—14 students drowning —Parents filed writ—High Court granting Rs. 5 lakh for each death to their parents—Appeal to Surpeme Court—Question as to quantum of compensation—Loss of monetary benefits by beneficiaries —Capacity of the school to pay—Offer of school to reduce to Rs. 2 lakh per death—Whether acceptable? (No)—Interest on compensation—High Court granting 12 p.a.—Whether be reduced? (Yes, to 6 p.a.)—Appeal dismissed with this modification accordingly.

       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 CBI’s investigation was not in regard to the assessment of the quantum of tort feasor’s 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. (Para 7)

       Held : 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. (Para 12)

       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. (Para 22)

       In Lata Wadhwa’s 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 Court’s 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 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. (Paras 34, 35, 36, 37)

       Held, however, 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 instalments. 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. (Paras 39, 40 & 41)