the damages/compensation cannot be claimed against the State. ? = if the negligence or want of proper care on the part of State is proved, the tortious liability to pay damages/compensation would arise and the same needs to be treated as constitutional tort. No decided case is cited as to how a State can claim immunity from the obligation to compensate the dependants of its employee, if it is proved that the death occurred on account of its negligence and lack of proper care. The point is answered accordingly.

REPORTED/ PUBLISHED http://judis.nic.in/judis_andhra/filename=9823

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE K.G.SHANKAR            

Appeal Suit No.3504 of 2004
     
04.04.2013

Union of India and another.

Ashok Narayan Paldhe and others.

Counsel for appellants:    Sri Ponnam Ashok Goud

Counsel for Respondents :  Sri Sunil Ganu

<GIST:

>HEAD NOTE:  

?Cases referred
2004 (1) ALD 19

JUDGMENT: (Per the Hon'ble Sri Justice L.Narasimha Reddy)

        This appeal is filed against the judgment and decree, dated 12.04.2004,
passed by the Court of II Additional Senior Civil Judge, Kakinada, in  O.S.No.90
of 1997.

Respondents 1 and 2 filed the suit and the appellants figured as defendants 3
and 2 therein.  While the 3rd respondent figured as
1st defendant, respondents 4 to 8 were arrayed as defendants 4 to 8.

For the sake of convenience, the parties herein are referred to as arrayed in
the suit.

Plaintiffs are the parents of one Sri Amar Ashok Paldhe.  He was recruited as
Seaman-I, Clearance Diver No.III, and in the year 1993, he was in the Eastern
Naval Command Clearance Diving Scheme.  On 21.09.1993, Paldhe was in an  
operational exercise at Kakinada Coast.  As part of the exercise, he jumped from
the Helicopter into the sea and he was supposed to reach the shore by swimming.
However, after he jumped into the sea, he did not reach the shore and his dead
body was found two days thereafter i.e. on 23.09.1993.
The plaintiffs were given the intimation at a later point of time.  The post-
mortem was conducted on the body.  The cause of the death was not mentioned.
The report revealed that there are anti-mortem injuries over the dead body of
the deceased.  The Board of Enquiry was conducted and a finding was given to the
effect that the cause of the death was mentioned as "due to accident".  Alleging
that the defendants did not furnish the relevant information, the plaintiffs
filed W.P.No.316 of 1995 before the Bombay High Court for certain directions.

By mentioning all the facts, referred to above, the plaintiffs filed the suit
claiming compensation of Rs.15 lakhs from the defendants.  They pleaded that the
death of the deceased occurred, on account of negligence and collusion, on the
part of the defendants, and under mysterious circumstances.

A written statement was filed by defendants 1 and 2.  According to them, Paldhe
was put on regular exercise of diving and though he surfaced soon after jumping
from the Helicopter, he did not surface thereafter.  It was pleaded that the
death might have occurred due to failure of the deceased to release the weights
fixed to the belt.
It was also pleaded that the plaintiffs were extended all the benefits, on
account of the death of their son and that there are no merits in the suit.  The
grounds of limitation and want of jurisdiction were also pleaded.

The trial Court decreed the suit for a sum of Rs.10 lakhs.  Defendants 3 and 4
filed this appeal.

Sri Ponnam Ashok Goud, learned Assistant Solicitor General, submits that though
specific plea was raised in the written statement that the suit was barred by
limitation, the trial Court did not frame any issue, nor did it record the
findings thereon.  He contends that the suit was filed after expiry of
limitation, and it ought to have been dismissed on that ground.  It is further
pleaded that the death of the deceased was not on account of any negligence on
the part of the defendants, and the job of the deceased was risky, by its very
nature.  According to him, every possible care was taken to avoid accidents.
Learned counsel further submits that though search was undertaken to recover the
body, the body could not be recovered for two days, since the accident occurred
in the sea.  He contends that once the benefits provided for under the relevant
regulations were extended, the plaintiffs are not entitled to recover any
damages.  It is also pleaded that the plaintiffs wanted to have access to
privileged information and denial of the same was treated as though certain
facts were withheld from them.  He submits that the decree passed by the trial
Court cannot be sustained in law.

Sri Sunil Ganu, learned counsel for the plaintiffs, on the other hand, submits
that there are several suspicious circumstances surrounding the death of the
deceased, and every effort was made by the defendants to conceal the
information.  He contends that the reason mentioned in the post-mortem as to the
cause of death was changed and everything was left open.  Learned counsel
submits that even though Diatom test was directed to be conducted, gross
negligence was exhibited for a period of one year, and in the meanwhile, the
Board of Enquiry conducted and concluded.  He submits that the very fact that
the anti-mortem injuries were found on the body of the deceased is sufficient to
suspect mischief on the part of the officials, who were associated with the
exercise.  Learned counsel submits that in the name of official secrecy, the
relevant information was withheld and the plaintiffs were not even permitted to
meet the other divers.

On the question of limitation, learned counsel submits that the suit was filed
only after the plaintiffs were convinced that the respondents are not furnishing
information and the limitation cannot be reckoned from the date of death of the
deceased.  It is also pleaded that there is no bar against grant of damages, in
case there was negligence on the part of the Government and its Departments.

The plaintiffs prayed for a decree for damages alleging gross negligence and
highhandedness on the part of the defendants, in relation to the death of their
son.

On the basis of the pleadings before it, the trial Court framed the following
issues for its consideration:




i) "Whether the present suit for the relief of compensation as claimed by the
plaintiff is not maintainable?

ii) Whether the death of son of plaintiff was due to want of care, negligence
and callousness of defendants as pleaded by plaintiffs?

iii) Whether the plaintiffs are entitled to suit amount with interest?

iv) To what relief?"
     
The deceased-1st plaintiff deposed as PW.1 and he filed Exs.A.1 to A.25.  On
behalf of the defendants, DWs.1 and 2 were examined and Ex.B.1-a newspaper
cutting was filed.  No other evidence was adduced by them.  All the issues were
answered in favour of the plaintiffs.

In view of the arguments advanced before this Court, the following points arise
for consideration:

i) Whether the suit filed by the respondents is barred by limitation?

ii) Whether there existed any suspicious and mysterious circumstances
surrounding the death of Ashok Anand Paldhe?

iii) Whether there is any bar in law, prohibiting award of damages, on account
of the death of a soldier or seaman, if it is proved that the death occurred
under mysterious circumstances?


The first point, as to limitation, needs to be discussed at the threshold.

The death of the deceased occurred on 21.09.1993. The suit was filed in the year
1997.  If it is a case of recovery of money on the basis of a cause of action,
that occurred in the year 1993, the suit filed four years thereafter, would
naturally be barred by limitation.  In the instant case, sequence of events
presents an unfortunate state of affairs.  The information as to the death of
their son was given to the plaintiffs through a telegram.  However, everything
was kept outside their reach and hardly an information as to cause of death was
furnished.  The correspondence went on till November, 1993.  They were not even
permitted to meet any official, much less the fellow divers.  On 18.11.1993, a
letter was addressed to the plaintiffs by the officials of the Indian Navy, that
a Board of Enquiry will be constituted.

In the meanwhile, though post-mortem was conducted, the cause of death was not
mentioned.  A test known as 'Diatom' was directed to be conducted. That took
more than one year, to be completed.  On 01.06.1994, the plaintiffs were
informed by the Director of Personnel Services, New Delhi, that the report of
the Board of Enquiry cannot be furnished to them.  The plaintiffs continued
their efforts till September, 1994.  It was only in September, 1994 that they
could get some information pertaining to the death of Paldhe, such as that the
Helicopter was at a considerable height and not at 15 feet from the sea level,
the opinion formed by defendant No.6 as to the cause of death was wrong and that
defendant No.6 was not even censured for his negligence.

After getting this much of information, the plaintiffs filed the suit.  The date
of death of the deceased can not at all constitute the starting point for
calculating the period.  Obviously, for this reason, a halfhearted plea was
raised in the written statement and the defendants did not insist on the framing
of any issue on the question of limitation.  Learned counsel for defendants 3
and 4 is not able to demonstrate that the suit is barred by limitation.  The
point is accordingly answered.

        Coming to the second point:  In his deposition as PW.1, the 1st plaintiff
reiterated the contents of the plaint.  He has also filed voluminous documentary
evidence, which included the copies of reports and other letters furnished by
the defendants.  The statements of some of the officials that were recorded
during the course of enquiry, such as Exs.A.4 to A.12 were also filed.  The
post-mortem certificate was filed as Ex.A.5.

        So far as the evidence of the defendants is concerned, it just comprised
of a newspaper cutting and nothing more.

        The life of a seaman entrusted with the function of diving or for that
matter, any person, who joins the armed forces, is vulnerable to risks.  If the
death occurs in the course of any armed conflict, or military operations, no
person would accuse the State or the concerned authorities, of any negligence.
Where, however, the death occurs in peace time and there are suspicious
circumstances, surrounding the incident, a close scrutiny becomes necessary.


        The record, in the instant case, discloses that Ashok Anand Paldhe was a
well trained and perfect diver.  
Officials of the Navy themselves certified him as a 'cut above the other divers'. 
 It was mentioned that he used to demonstrate
the diving from a height of 10 metres even in swimming pools. 
 From the written
statement of defendants 1 and 2, it is evident that the two divers who jumped
from helicopter before Paldhe, faltered and they had to be rescued by the team.

It was mentioned that soon after jumping from the Helicopter, Paldhe surfaced
and has shown his thumb up and thereafter went into the water, but did not
return.  
If any accident has occurred, the rescue team ought to have saved him.

The version put forward by the defendants at various points of time, was not
consistent. While at one place, it was stated that he surfaced perfectly soon
after diving, at another place, it was mentioned that it was not visible on
account of the turbulence caused by the Helicopter.

        Be that as it may, the post-mortem report revealed that the following two
anti-mortem injuries were found on the body of Paldhe:


        "i)  a lacerated injury over the left axilla measuring 10x60 mm x 3 cm
edges are irregular and bruised.  In its depth muscles, blood vessels and nerves
are exposed.  Tiny ante mortem blood clots are seen at its depth.

        ii)  A circular wound seen over the inner aspect of left angle of the
mandible measuring 1.5 cm diameter with a depth of 3 cm edges are clean out."


        No effort was made to explain these injuries.  The plaintiffs were denied
access even to the other divers. Though the Board of Enquiry suspected the role
of some of the officials connected with the exercise, no action was taken
thereon.  The final opinion in the post-mortem as to cause of death was
deferred, awaiting the result of Diatom test.  The record reveals that the
Diatom test was delayed more than one year, just on account of failure to send
the sea water from the concerned area.  Even before the Diatom test result was
obtained, the Board of Enquiry was concluded.  The cumulative effect of all
these acts and omissions is that the death of some of the plaintiffs occurred
under suspicious and mysterious circumstances.  The point is answered in favour
of the plaintiffs.

        The last point is about the defences taken by the defendants that the damages/compensation cannot be claimed against the State.
As a matter of fact,
the first issue was framed by the trial Court is about this.
Identical question
arose before this Court in A.V.Janaki Amma v. Union of India1.  It was
categorically held that if the negligence or want of proper care on the part of
State is proved, the tortious liability to pay damages/compensation would arise
and the same needs to be treated as constitutional tort.  No decided case is
cited as to how a State can claim immunity from the obligation to compensate the
dependants of its employee, if it is proved that the death occurred on account
of its negligence and lack of proper care.  The point is answered accordingly.

We do not find any merits in the appeal and it is accordingly dismissed.
There shall be no order as to costs.

The miscellaneous petition filed in this appeal shall also stand disposed of.
____________________
L.NARASIMHA REDDY, J.  
_______________
K.G.SHANKAR, J.
Dated:04.04.2013

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