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2020 Supreme(Gau) 304
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRASANTA KUMAR DEKA, J.
Dr. Debajit Das And Anr S/o Late Dr. Bishnu Ram Das – Appellant
Versus
Williamson Magor Education Trust And Ors – Respondent
RFA 47 of 2018, CO 35 of 2019
Decided on : 08-06-2020
Advocate Appeared:
For the Appellant : MR. D BARUAH, MR. K N CHOUDHURY
For the Respondent: MR. A GOSWAMI, Adv.
Headnote:
Code of Civil Procedure, 1908 – Section 96, Order VII Rule 11, Order XXXI Rule 2, Order XLI Rule 22, Order 1 Rule 4, Order 41 Rule 24 – Indian Trust Act, 1882 – Section 3 – Official Trustees Act, 1913 – Negligence – Principle of res judicata – Damages – Ownership – Right to possess – Nature of ownership – Liable – Breach – This regular first appeal u/s 96 of Code of Civil Procedure, 1908 is filed against judgment and decree respectively passed by learned Civil Judge, Sonitpur at Tezpur in T.S. dismissing suit – Plaintiffs appellants filed suit claiming damages against defendants respondents due to death of their son, aged about 15 years due to negligence of authority of school, a boarding one situated at Balipara – Factual matrix giving rise to cause of action for filing suit – Held, It is held that son of plaintiffs appellants died due to negligence of due care – Due care includes in court view, preparedness to face a situation of emergency by infirmary at least against hazard which are common in nature – Electrical accident is one of such hazards keeping in view essentiality of electricity in day to day life of a person – But school authority did not consider said hazard as grave element of risk which took life of son of plaintiffs appellants – That amounts to wilful negligence of due care towards deceased on part of school authority on ground that school authority took responsibility of students as a boarding school and responsibility undertaken by it is on higher level compared to a school with only day scholars – Accordingly, Rs. 5,00,000/-is imposed as exemplary damages on defendant respondents – Appeal is Allowed
JUDGMENT :
Heard Mr. D. Baruah the learned counsel for the appellants and Mr. K.N. Choudhury, the learned Senior Counsel assisted by Mr. P. Sundi and Mr. K.Goswami the learned counsel for the respondents.
This regular first appeal u/s 96 of the Code of Civil Procedure, 1908(CPC) is filed against the judgment and decree dated 18.12.2017 and 20.12.2017 respectively passed by the learned Civil Judge, Sonitpur at Tezpur in T.S. No. 16/2011 dismissing the suit. The plaintiffs appellants filed the suit claiming damages against the defendants respondents due to the death of their son, Ranveer Das aged about 15 years due to negligence of the authority of the school, a boarding one situated at Balipara. The factual matrix giving rise to the cause of action for filing the suit is stated below.
2. Williamson Magor Education Trust, the defendant respondent No. 1 is a Trust under the Indian Trust Act, 1882 represented by the Chairman, Board of Trustees established the Assam Valley School represented by the Chairman, Board of Governors, the defendant No. 2 at Balipara which is about 27 kms. away from its nearest Tezpur Town in the year 1995. The school is a residential one and the school authority professed that it was equipped with a hospital to deal with the emergency situation like head injury, snake bites, myocardial infarction etc.
3. The plaintiffs appellants upon the aforesaid consideration amongst others, admitted their son in the school on 21.04.2005 in class IV. The son was a brilliant student and a very good guitarist. He was presented with the Scholar’s Tie, a prestigious award given to a student by the school authority for academic brilliance.
4. The said son while practicing electric guitar in the music cell in the school along with three of his friends was electrocuted. He was taken to the school hospital/ infirmary in the ambulance but as it was not equipped to cope up with such emergency cases was taken to Baptist Christian Hospital situated at Tezpur town but was declared ‘dead on arrival’. Post mortem was conducted in the Kanaklata Civil Hospital at Tezpur and the cause of death of the son was due to cardiac arrest due to ventricular fibrillation as a result of electrocution.
5. The Additional District Magistrate, Sonitpur as per direction of the Deputy Commissioner, Sonitpur caused an enquiry to ascertain the reason for the death of the son of the plaintiffs appellants. The Officer-in-charge, Rangapara P.S. registered UD Case No. 154/2001 u/s 287/304 A IPC against the school authority. The Additional District Magistrate submitted the enquiry report indicating gross negligence on the part of the respondents defendants.
6. The room assigned for practicing guitar was a suffocating one of height 7 feet with synthetic carpet. The door of the room required to be closed as per the direction of the school authority. At the time of incident there was no music teacher or any adult supervisor to supervise the activities of the students including the son of the plaintiffs appellants. The said minor students were allowed to use electrical instruments without any supervisor. The school infirmary was not equipped with defibrillat or, ambu bag etc alongwith trained personnel to handle such emergency. The school authority misled the parents and the public by claiming that the hospital/infirmary was well equipped to deal with most emergency situation that might arose in the residential school. Due to negligence and lack of care on the part of the school authority, the son of the plaintiffs appellants died for which they are entitled to special and exemplary damages of Rs. 5 crores. The death of the son was a preventable one and due to lack of care of the defendants respondents he died.
7. The defendants respondents filed individual written statements but the defence was almost identical. A specific defence was taken in respect of maintainability of the suit as all the trustees of the defendant respondent No.1 Trust were not impleaded and for the
