IN THE HIGH COURT OF ORISSA
Decided On: 11.12.2014
Appellants: A. Sudha
Vs.
Respondent: National Aluminium Co. Ltd. and Ors.
Vs.
Respondent: National Aluminium Co. Ltd. and Ors.
Hon'ble Judges/Coram:Biswanath Rath , J.
Citation; AIR 2015(NOC)871 Orissa
NALCO authorities also cannot shift their responsibility on the plea that the responsibility of maintenance of the water system as well as the sewerage system was lying with the contractor. In any case there was no impediment on NALCO to make payment of appropriate compensation to the bereaved family, which may not be on the head of compensation but by way of ex gratia and by holding an inquiry NALCO could have fixed responsibility on the contractor and recovered the amount from the contractor thereafter. As appears from the case record, the incident had taken place on 14.6.2008 and this writ petition is taken up for hearing at the end of 2014. Even assuming that there is no strong material directly holding the NALCO negligent for the incident, the petitioner cannot be asked now to file a civil suit, as the same will be grossly bared by time.
1. This writ petition has been filed by the petitioner, the mother of a dead child seeking a direction to the opposite parties for payment on account of compensation on death of her child due to fall in a trench/hole in connection with a sewerage system inside. Surakhya Vihar Playground at CISF Colony under National Aluminium Company Limited (for short "NALCO"). The petitioner claims that her husband, who is working as a Constable in CISF Unit, Damanjodi, is residing in the residential CISF Colony, established and maintained by NALCO. She had three children of her own out of the same, the eldest one is a daughter, the eldest son is a physically and mentally retarded child being affected by Cerbral Pulsi. It is claimed that their youngest son, who has a good physical and mental condition was aged about five years old at the time of accident. The petitioner further submitted that his youngest son at about 2.30 P.M. on 14.6.2008 fell into a trench/hole of the sewerage system lying uncovered at the relevant time. The accident had taken place while the son of the petitioner Was playing with his friend, namely, Sai Manikanta Reghuraman in front of the house. Based on an F.I.R., a U.D. Case N. 4 of 2008 was initiated. On completion of investigation, a final report was submitted establishing the death of the child by drowning. Petitioner also averred that a post mortem was also undertaken on the body of her son. The post mortem report also confirmed the death by drowning. It is alleged by the petitioner that in spite of her repeated approach to the NALCO authorities for appropriate compensation for their negligence she has lost her only able child, the NALCO authorities are not paying any heed. Consequently, the petitioner has filed this writ petition claiming a sum of Rs. 25,00,000/- (Rupees twenty five lakhs).
2. The NALCO authorities on their appearance have filed a counter affidavit stating therein that even though the fact of accident as well as the death of the son of the petitioner is correct, but very strongly objected the claim of the petitioner on the allegation of negligence by NALCO. The NALCO authorities pleaded that maintenance of the external water supply, sewerage line and allied work within the said colony was awarded to contractor M/s. S.K. Swain for a period of two years i.e. from 1.9.2006 to 31.8.2008 and it is only the said contractor, who is responsible for any lapses, on the plea that the incident place is far away from the residential area and at least 15" away from the play ground, they also attached the responsibility on the child. Alleging that the writ petition involves disputed question of fact and seriously disputing the negligence attributed on the contractor, the NALCO authorities objected the claim made by the petitioner and prayed for rejection of the writ petition. In support of his contention learned counsel for the NALCO has cited a decision rendered in the case of Chairman Grid Corporation of Orissa Ltd. (GRIDCO) and another v. Smt. Sukamani Das and another as reported in MANU/SC/0572/1999: AIR 1999 Supreme Court 3412. In view of the peculiar facts and circumstances involved in the case, I do not find the decision cited by NALCO has any application to the present case.
3. Heard learned counsel for the parties. While considering the submissions of the respective parties I had an occasion to go through the final report submitted in the U.D. Case which established the fact that the deceased fell into water and got drowned. The inquiry of the police also reveals that the police authority after holding the inquest over the dead body sent the dead body to DHH, Koraput for post mortem and the post mortem report also reveals that the cause of death of the deceased is due to hophyxia resulting from drowning. Thus the post mortem-report also confirms the above.
4. There is no dispute as regard to the death of the minor child of the petitioner. There is also no dispute that the death of the minor child is on account of drowning in a place under the custody of the NALCO. NALCO authorities also cannot shift their responsibility on the plea that the, responsibility of maintenance of the water system as well as the sewerage system was lying with the contractor. In any case there was no impediment on NALCO to make payment of appropriate compensation to the bereaved family, which may not be on the head of compensation but by way of ex gratia and by holding an inquiry NALCO could have fixed responsibility on the contractor and recovered the amount from the contractor thereafter. As appears from the case record, the incident had taken place on 14.6.2008 and this writ petition is taken up for hearing at the end of 2014. Even assuming that there is no strong material directly holding the NALCO negligent for the incident, the petitioner cannot be asked now to file a civil suit, as the same will be grossly bared by time.
5. Under the above circumstances, considering that the death has taken place due to drowning of a minor child in a sewerage tank belonging to NALCO and further since the NALCO authorities have not taken any effective steps to at least come to fix the responsibility on the contractor at the appropriate time, I held both contractor and NALCO are responsible for the incident. Consequently, since this a death of a minor child, I direct that at least a sum of Rs. 3,50,000/- (Rupees three lakhs and fifty thousand) be given as ex gratia by NALCO to be bereaved family, which amount shall be paid within a period of one month from the date of the judgment.
6. The writ petition succeeds to the above extent. However, there shall be no order as to cost.
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