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2010 Supreme(Guj) 414
2011 (1) GCD 737 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Smt. Justice Abhilasha Kumari
Shriram Education Trust Trustees of Trust & Ors.
Versus
Mitaben Anilbhai Patel & Ors.
First Appeal No. 4643 of 20081—Decided on 16/12/2010
Appearance :
First Appeal Nos. 4643 to 4651, 4653 to 4661, 4663, 4664, 4667,4668 and 4670 of 2008.
Mr. M.B. Gandhi, learned Advocate for the Appellants.
Mr. Hasmukh C. Patel, learned Advocate for the Opponents in First Appeal Nos. 4645 to 4647, 4649 to 4651, 4653, 4654, 4657, 4658, 4661, 4663, 4664, 4667, 4668.
First Appeal Nos. 319 to 340 of 2009.
Mr. Hasmukh C. Patel, learned Advocate for the Appellants.
Mr. P. P. Majmudar, learned Advocate for the Opponent No. 10.
Point in Issue :
Whether appellants in the facts of the cases not liable to pay compensation to claimants on account of natural calamity.
Headnote:Head Note :
(a) First Appeal — Award of compensation — Collapsed of school building — Death of 26 students studying in 11th Standard on account of earth quack as natural calamity or VIS major — Sustainability — Finding of — The defence of appellants that building collapsed due to ‘Act of God’ has no force and same can not come to the their aid because there is no evidence that all necessary and reasonable care was taken in construction of the building — The burden was on appellants and after discharging the burden of proof that any benefit of an ‘Act of God’ can be claimed by appellant otherwise such defence can not be accepted — Court found no justification to interfere with the finding of trial Court in this regard.
Held :
It is not the defence of the appellants that all buildings in the nearby or surrounding area have collapsed on account of the earthquake. On the contrary, it is contended that another old building constructed by the appellants has not collapsed. Hence, the present incident of collapse of a newly-constructed building cannot be treated as a usual or normal consequence of the earthquake. In normal circumstances a newly-constructed building ought not to have collapsed, as one can legitimately expect that a newer building will have more strength than an older one. The circumstances of collapse of the building in question when other buildings have remained intact, can be said to be unusual and may, therefore, fall in the ambit of res ipsa loquitur (thing speaks for itself). The defence of the appellants that the building collapsed due to an “Act of God” would not come to their aid, as the burden of proof would be shifted upon the appellants to prove that all necessary and reasonable care was taken in the construction of the building, and all statutory requirements for construction and use of the building, were complied with and satisfied. It is only after discharging this burden of proof that any benefit of an “Act of God” could be available to the appellants, in order to avoid tortious liability; otherwise such a defence cannot be accepted as a valid one. In the present case, looking to the material on record, it cannot be said that the appellants have been successful in discharging this burden of proof. Therefore, the defence of Vis major or “Act of God” is not available to them.
[Para 24 ]
The evidence on record clearly points out to gross negligence and carelessness on the part of the appellants in construction of the School building which suffers from numerous flaws as is evident from the material on record. When the very soil of the land on which the building was constructed was never tested and has ultimately been found to be sticky and no Load Bearing Capacity test was done, the plea of natural catastrophe in the form of an earthquake would not absolve the appellants from their liability arising on account of negligence. Had proper care been taken in the construction of the building such as any reasonable and prudent man would take, then, the question of liability for negligence in the wake of an earthquake, which is undoubtedly an Act of God, may not have arisen. But this is not the case here. There is ample evidence on record to prove that the construction of the building was careless and faulty from the foundation itself. When the foundation of the building was weak and not as per required Norms and Standards of building, and the Load Bearing Capacity of the soil had not been tested, mere reiteration on the part of the appellants that the building collapsed due to an Act of God, cannot be accepted. More so, as gross negligence is clearly and palpably evident from the material on record. The finding of the Trial Court that appellants Nos. 1 to 8 (original defendants) are liable to pay compensation and damages to the plaintiffs is, therefore, found to be based on cogent and reliable evidence. On re-appreciation of the same, we find no justification to interfere with the same. [Para 28]
Head Note :
(b) First Appeal — Award — Grant of compensation — Quantum of compensation — Determination — Finding of trial Court — Sustainability — Trial Court awarded compensation of Rs. 2,00,000/-with interest at the rate of 5% per annum — Court finding the amount of compensation inadequate awarded compensation of Rs. 3,75,000/- with interest @ 8% per annum to each claimant.
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Held :
Court cannot lose sight of the evidence on record to the effect that all the deceased children were students of Science and used to secure marks above 70%. Apart from the expectations of their parents, the potentiality of the children to earn in future, deserves to be considered. It is by now settled law that the notional income of any educated person would not be less than Rs. 3000/- per month or Rs. 36, 000/- per year. [Para 37]
A contention was raised that in Motor Vehicle Accident cases, the notional income is considered as Rs. 15,000/- per annum and hence it cannot be considered as Rs. 36,000/- per annum. It is true that the same can be a guiding factor but the pertinent aspect is that tortious liability is based on common law, which is based on principles of equity that envisage the requirement of awarding just compensation. If the principles of equity are controlled by any codified law, the jurisdiction of the Court may not exceed beyond such law, like in Motor Accident Cases; but, in absence thereof, the Court would continue to hold the power to award just and reasonable compensation, considering the facts and circumstances of the case. Hence, we find it proper to assess the compensation, keeping in mind the talent, potentiality and bright future of the deceased children who have lost their lives. The parents of the unfortunate children have lost their children on account of the careless and negligent manner in which the School building has been constructed by the appellants, without taking proper care and caution and by committing breach of statutory requirements for construction and use of the said School building. [Para 38]
Calculating the notional income of each of the students as Rs. 3000/- per month, (which is the minimum) and deducting 1/3rd for personal expenses, the remaining amount for dependency benefit comes to approximately Rs. 2000/- per month. This amount, multiplied by 12, would come to Rs. 24,000/- per annum. Rs. 24,000/- multiplied by 14 would come to Rs. 3,36,000/-. In addition thereto, we find that the claimants would be entitled to Rs. 5000/- towards funeral expenses, Rs. 15,000/- towards pain, shock and suffering and Rs. 15,000/- for loss of expectancy, totalling to Rs. 3,71,000/-. Further, the interest awarded by the Trial Court at 5% per annum is too low and in our view it should be enhanced to 8% per annum, from the date of filing of the Suits, till realisation. [Para 39]
Keeping in view the nature of the case and the conduct of the appellants, exemplary damages quantified at Rs. 4000/- in each case should be awarded. The total amount payable to each claimant by the appellants is Rs. 3, 75, 000/- with interest at the rate of 8% per annum, to be deposited by the appellants in each case, within a period of three months from today. [Para 39.1]
Law Laid Down :
National Income of any educated person cannot be less than Rs. 3,000/- p.m.
Case Law Analysis :
Lata Wadhva vs. State of Bihar, AIR 2001 SC 3218 [Para 8];; M.S. Grewal vs. Deep Chand Sood, AIR 2001 SC 3660 [Para 11];; Charan Lal Sahu vs. Union of India, AIR 1990 SC 1480 [Para 13];; M.C. Mehta vs. Union of India, AIR 1987 SC 1086 [Para 13];; Jacob Mathew vs. State of Punjab and Another, AIR 2005 SC 3180 (1) [Para 15];; Syed Akbar vs. State of Karnataka, AIR 1979 SC 1848 [Para 17];; Municipal Corporation of Delhi vs. Subhagwanti, AIR 1966 SC 1750 [Para 18];; Scot vs. London and St. Katharins Dock Co., (1865) 3 H and C 596 [Para 18];; Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121 [Para 35].—Relied on
Smt. Abhilasha Kumari, J.—These appeals have been filed by the appellants (original defendants Nos. 1 to 8) against the common judgment and decree dated 25-10-2007 passed by the City Civil Court, Ahmedabad in Civil Suit No. 3091 of 2001 and cognate matters, whereby the Suits filed by the plaintiffs (respondents in the present group of appeals and appellants in the Cross Appeals) have been partly-allowed, and it has been held that the plaintiffs are entitled to recover an amount of Rs. 2,00,000/- (Rupees two lacs) with interest at the rate of 5% per annum, from the date of the Suit till realization, from defendants Nos. 1 to 8, jointly and severally, with costs quantified at Rs. 5000/-. The appellants of Cross Appeals Nos. 319 to 340 of 2009 are the original plaintiffs in the Suits and their claim is for enhancement of the compensation, awarded by the Trial Court. As common questions of law and facts arise for consideration, they are being considered and decided by a common judgment.
2. Appellant No. 1 (original defendant No. 1) is Shriram Education Trust, a Trust Registered under the Bombay Public Trusts Act, 1950, which is running Shri Swaminarayan Vidhyamandir Higher Secondary School, Ghodasar in Ahmedabad. Appellants Nos. 2, 3 and 4 are Trustees of appellant No. 1-Trust. Appellant No. 5, Shivam Corporation, was entrusted with the work of construction of the School building in question. Appellants Nos. 6, 7 and 8 are the partners of Shivam Corporation, which constructed the building. Originally, the plaintiffs had joined Amit G. Bhatt (B.E. Civil Engineer) and Naren M. Mehta (Structural Engineer), as defendants Nos. 9 and 10. However, the Trial Court has dismissed the suit against defendants Nos. 9 and 10.
3. The brief facts leading to the institution of the Suits are as follows:
On 26-1-2001, a devastating earthquake took place, measuring 7.9 on the Richter Scale, in several parts of the State of Gujarat, including the City of Ahmedabad. on that fateful day, as many as 32 students, studying in the 11th Standard, in Shri Swaminarayan Vidhyamandir Higher Secondary School, met with a tragic and untimely death as the building of the School collapsed. The unfortunate students were buried in the debris of the School building and their bodies had to be extricated from the debris by the Fire Brigade and police personnel. Suits for compensation were filed by the parents and relatives of 26 students who lost their lives, against the School authorities. It is the case of the plaintiffs, (parents of the deceased students) that their children were studying in the 11th Standard, in the Science Stream. 26-1-2001 was a National Holiday. In spite of this, the children of 11th Standard (both boys and girls) were called by the Teachers of the Science Faculty of the School at 8.0 A.M. for the purpose of practical revision in the Laboratory, as the practical examination was to be held on 29-1-2001. The boys and girls who have lost their lives were all in the age group of 15 to 18 years. As there were common issues of fact and law in all the Suits, the Trial Court consolidated and decided them, by a common judgment.
4. The case of the plaintiffs before the Trial Court is that the appellants (defendants) constructed the School building consisting of four stories with 25 rooms, office, and giant water tank, within a period of two and half months. No Building Use Permission was obtained by the appellants from the concerned authorities and appellants Nos. 1 to 4 were not granted permission to run a Laboratory or a School. Further, the construction of the School was carried out in a careless and hasty manner. The material used in the construction was of poor quality, resulting in the collapse of the building. Before starting the construction, the appellants did not have a soil test done and good quality steel was not used for the pillars and beams. That the material used in the construction did not conform to the Standards laid down in the Nation
