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Saturday, January 26, 2013

TORTS = Apportionment of liability among the Respondents for their respective Negligence which caused death of several persons in a fire accident in RAJIV MARRIAGE PALACE = on the question of negligence on the part of the appellants and respondent no.8 – Rajiv Marriage Palace, who were held negligent in the fire accident caused on the fateful day on account of which 446 persons died and so many others had burn injuries. On the question that framed for its consideration by the High Court with regard to apportioning the respondent’s negligence for the tragedy in question and the liability for payment of compensation flowing from the same upon the parties to the writ proceedings have recorded the acts of omissions and commissions on the role played by each one of those held responsible for the accident. = The Commission, on the basis of the evidence on record, has fastened the liability of compensation upon the appellants and respondent no.8 for 80% and the same was examined by the High Court to answer the point no.3 which was formulated by the High Court for its consideration and to answer which reads thus:---Is the apportionment of the responsibility and negligence for the fire tragedy in question and the liability flowing from the same fair and reasonable having regard to the acts of omission and commission and the role played by each one of those held responsible for the incident?” 8. The High Court while examining the correctness and percentage of liability of compensation modified the percentage confined upon the appellants and respondent no.8 from 80% to 55% confining the negligence aspect upon the appellants and respondent no.8 has not been annulled. No doubt the composite negligence is fastened upon the appellants and respondent no.8, State of Haryana, the Haryana State Electricity Board and Municipal Committee Dabwali for the reasons recorded by the High Court. The correctness of the said finding not only examined in this appeal as the same is not questioned either by the appellants or by respondent no.8. While recording the finding on issue no.3 and reducing the liability of compensation to 55% out of 80% awarded by the Inquiry Commission, the High Court has held that the appellants and respondent no.8 namely Rajiv Marriage Palace would be jointly and severally liable to pay 55% of the total compensation payable to the claimants, the remaining tort-feasors refered to supra. It is not possible for this Court to apportion the liability of compensation between the appellants and respondent no.8, particularly in the absence of the material evidence on record either before the Inquiry Commission or before the High Court and particularly having regard to the fact that what is stated that economic capacity of the partners of Rajiv Marriage Palace. In the absence of such findings it is not proper for this Court to frustrate the judgment of the High Court which is based on the Commission of Inquiry Report submitted by a retired Judge of Allahabad High Court and further on behalf of respondent no.8 it is stated that out of six family members, two persons, namely Kewal Krishan and Chander Bhan died on account of the burn injuries in the said function and further the land where the Rajiv Marriage Palace was built up has been taken over by the District authorities and the same has been converted into ‘Shahid Smarker Park’ and what is the other properties left out of the partners of the Rajiv Marriage Palace and the evidence is not forthcoming by this Court or before the High Court or in these proceedings. In this way, in the absence of the same it is not possible for this Court to apportion the liability of compensation and confine the same upon the appellants and respondent no.8 out of 55% of the liability of compensation confined and holding both the appellants and respondent no.8 responsible for jointly and severally. 9. For the aforesaid reasons the civil appeal is accordingly dismissed. However, it is open for the DAV Managing Committee to approach the competent civil court for apportioning the liability of compensation out of 55% fastened upon both the appellants and the respondent no.8 by initiating appropriate proceedings. 10. In view of the dismissal of the appeal, the interlocutory application for directions to keep in abeyance the disbursal of the amount of compensation deposited in civil court pursuant to order dated 15.3.2010 of this Court is also dismissed. The appellants shall also deposit the remaining awarded amount with the Civil Judge and the claimants are permitted to withdraw the same. The Civil Judge is directed to disburse the amount to the claimants proportionately as awarded by the High Court. A copy of this judgment shall be forwarded to the learned Civil Judge, Senior Division, Dabwali, Sirsa, Haryana.


                                                              Non Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.630  OF 2013
                  (Arising out of SLP(C ) No.6715 of 2010)



DAV MANAGING COMMITTEE & ANR.                … APPELLANTS

VS.

DABWALI FIRE TRAGEDY VICTIMS ASSN.     …      RESPONDENTS
& ORS.










                               J U D G M E N T

V. Gopala gowda, J.

      Leave granted.
2.    We have heard  Mr.Rakesh  Dwivedi,  learned  senior  counsel  for  the
appellants and Mr.Manoj Swarup, learned counsel for respondent no.8 –  Rajiv
Marriage  Palace  and  dispose  of  the  appeal  by  passing  the  following
judgment.
3.    This appeal is directed against  the  judgment  and  order  dated  9th
November, 2009 passed by the High Court of Punjab &  Haryana  at  Chandigarh
in Civil Writ Petition No.13214 of 1996, urging various grounds and  praying
for setting aside the impugned judgment.
According  to  the  appellants  the
relevant necessary facts and the  grounds  framing  certain  questions  that
would arise for consideration of this Court are  confined  at  the  time  of
hearing only with regard to the grievance of the appellants  that  the  High
Court having accepted the findings of  fact  recorded
 on  the  question  of
negligence on the part  of  the  appellants  and  respondent  no.8  –  Rajiv Marriage Palace, who were held negligent in the fire accident caused on  the fateful day on account of which 446 persons died  and  so  many  others  had burn injuries.  
On the question that framed for  its  consideration  by  the
High Court with regard to apportioning the respondent’s negligence  for  the
tragedy in question and the liability for payment  of  compensation  flowing
from the same upon the parties to the writ  proceedings  have  recorded  the
acts of omissions and commissions on the role played by each  one  of  those
held responsible for the accident.   
The  High  Court  has  apportioned  55%
liability of compensation between the appellants and respondent  no.8--  the
owners of the Rajiv Marriage Palace, where the function was  held  and  fire
accident  took  place  and  the  remaining  percentage   of   liability   of
compensation was fastened 15% each upon the  Municipal  Committee,  Dabwali,
the Haryana State and the Haryana State Electricity Board (now the name  has
changed to  Dakshin  Haryana  Bijli  Vitran  Nigam).  
Having  recorded  such
finding and apportioning the compensation amount awarded by the  High  Court
between the appellants and respondent no.8- Management of Rajiv  Palace,  it
has been held that the appellants and respondent no.8 would be  jointly  and
severally liable to pay 55% of the compensation to the claimants,  therefore
the appellants have  appeared  before  this  Court  by  filing  this  appeal
questioning  not  apportioning  the   percentage   of   the   liability   of
compensation between the Appellants  and  respondent  No.8  awarded  to  the
claimants.

4.    It is  only  to  the  aforesaid  extent,  the  appellants  herein  are
confined to their relief in this appeal  though  they  have  questioned  the
impugned judgment urging various grounds regarding the findings recorded  on
the  contentious  issues,  namely  the  negligence  on  the  part   of   the
appellants and the quantum of compensation awarded in favour of each one  of
the claimants, in respect to the dead persons and  the  injured  persons  by
applying the guidelines and the judgments of this Court  and  also  the  All
England Reports and the Division  Bench  Judgments  of  the  Karnataka  High
Court and the Delhi High Court on the question of awarding  compensation  in
favour of the claimants, namely Lata Wadhwa & Ors.  Vs.  State  of  Bihar  &
Ors. reported in (2001) 8 SCC 197, and  Association  of  Victims  of  Uphaar
Tragedy and Ors. V. Union of India and Ors. reported in   104  (2003)  Delhi
Law Times 234 (DB) and another judgment of this Court in the  case  of  D.K.
Basu v. State of West Bengal reported in (1997) 1 SCC 416.  The  quantum  of
compensation awarded by the High Court by following the principle laid  down
in the aforesaid judgments of this Court  and  Delhi  High  Court  that  was
challenged in this Appeal, but the same was not pressed into service at  the
time  of  hearing,  except  urging  the  legal  contention   regarding   non
apportionment  of  the  percentage  of  liability   of   compensation   upon
respondent no.8 having answered the issue no.3 regarding the  negligence  on
the part of both the appellants and respondent no.8—Rajiv  Marriage  Palace.
Since the learned senior  counsel  has  advanced  the  arguments  only  with
regard to the non-apportionment  of  the  percentage  of  the  liability  of
compensation upon the appellants and  respondent  no.8  the  learned  senior
counsel on behalf  of  the  appellants  has  confined  the  aforesaid  issue
inviting our attention to the findings recorded on the  issue  no.3  by  the
High Court of Punjab & Haryana.  It was pointed out to  this  Court  by  the
learned senior counsel that the  percentage  of  liability  of  compensation
fastened by the Commission of Inquiry upon the appellants to the  extent  of
80% that has been interfered with the High Court has its  higher  percentage
of liability of  compensation  fixed  upon  the  management  of  School  and
accordingly it was modified  to  55%.   After  making  the  observation  the
liability of compensation to be confined and  apportionment  depending  upon
the nature and extent  of  the  role  played  by  the  tort-feasors  in  the
commission of the tort and the resultant loss to  the  claimants,  the  High
Court after referring to the Association of Victims of Uphaar  Tragedy  case
(supra) has  reduced  from  80%  to  55%  liability  of  compensation  after
recording a finding that both the appellant school and the  respondent  no.8
has tort-feasors on account of  their   negligence  the  fire  accident  had
taken place and the persons  who  participated  in  the  function  died  and
others had burn injuries.  Having recorded such a finding of fact  regarding
negligence both upon the appellants and  respondent  no.8  non  apportioning
the percentage  of  liability  of  compensation  out  of  55%  liability  of
compensation fixed the appellants have got the grievance of that portion  of
finding  on  the  question  no.3  formulated  answered  against   both   the
appellants and respondent no.8, therefore, this appeal is confined  only  to
the aforesaid extent sought for in this appeal.
5.    Learned senior counsel has  invited  our  attention  to  the  impugned
judgment with regard to the findings recorded on  question  no.3  formulated
by the High Court and correctly reduced to 55% of liability of  compensation
out of 80% liability of compensation fixed by  the  Commission  of  Inquiry.
Having modified the Commission of Inquiry report from 80% to  55%  the  High
Court further recorded a finding that the Appellant  school  and  its  agent
namely,  respondent  no.8—Rajiv  Marriage  Palace  would  be   jointly   and
severally liable to 55% of the total amount of compensation payable  to  the
claimants this aspect of the matter required to be examined  is  opposed  by
respondent no.8. The  learned  counsel  has  submitted  that  the  appellant
school requested the owners of the premises to permit their annual  function
to be held in the month of December, 1995 in which  Deputy  Commissioner  of
Sirsa and S.D.M. of Dabwali have attended the function as guests as  it  was
for a public cause and for a function of school Kewal  Krishan  and  Chander
Bhan, the owners of Rajiv Marriage Palace, acceded to  the  request  of  the
DAV School Management and gave its place for the  school  function.   It  is
stated  that  respondent  no.8  has  neither  paid  the   money   nor   made
arrangements for holding the function. The entire function  arrangement  was
solely looked after by the appellants-DAV Managing Committee.
6.    It is also stated that the area was covered by pandal and bamboos  and
curtains all around leaving two gates of 12x12 feet and  8x8  feet.   It  is
further stated that the question  of  overflowing  of  any  electricity  was
neither needed nor was possible and further the DAV Managing  Committee  has
made all arrangements for the audio system by taking extra wires.  At  about
1.40 p.m. on 23.12.1995 the pandal got fire and  since  it  was  all  around
covered only by curtains the fire spread.  Out of two gates,  one  gate  was
blocked by the management of the School for VIPs only and as  such  for  the
rest of about 1200 persons only one gate was  left.   Apart  from  the  said
fact the area was only 100x60 feet having a seating capacity of 400  persons
within the knowledge of the appellants and they have invited  and  permitted
1200 persons and as such due to short circuit  fire  started  from  the  one
gate and due to stampede many persons were caught inside fire  and  many  of
them lost their lives and many others got burn injuries.  The  gate  blocked
for VIPs could manage to escape.  Further, it is  stated  that  out  of  six
family members of the owners of Rajiv Marriage Palace, two brothers  Chander
Bhan and Kewal Krishan died in the accident.  It is  also  stated  that  the
land where the Rajiv Marriage Palace was built up has  been  taken  over  by
the District authorities and  the  same  has  been  converted  into  ‘Shahid
Smarker Park’.  The CBI also filed the charge sheet against  the  owners  of
the Rajiv Marriage Palace, namely Kewal Krishan  Dhamija  and  Chander  Bhan
Dhamija (since died) and Rajendra Kumar and Devilal of Chacha Bhatija  Light
Service and they did not even  charge  sheeted  any  person  of  DAV  Public
School which according to the C.B.I. took  the  place  for  school  function
though the alleged payment of Rs.6000/- to the  respondent  No.8  had  never
been proved by the appellants herein and when one of the  reasons  of  death
caused was stampede and opening of only one gate in  the  circumstances  and
allowing more than the capacity of the Marriage Palace and all  arrangements
such as focus light, photography and audio system in the  function  and  the
arrangement of generator set is also done by the DAV school  authorities  --
the appellants herein, therefore, there is no role of play of negligence  on
the part of the respondent no.8—the management of Rajiv Palace.   Therefore,
there is no need for this Court to apportion the liability  of  compensation
by the High Court upon respondent no.8 as it has no  financial  capacity  to
pay the same to the claimants.  Therefore it is requested not  to  apportion
the percentage of liability of compensation out of  55%  determined  in  the
writ  petition  by  the  High  Court  modifying  out  of  80%  liability  of
compensation  fastened  by  the   Inquiry   Commission   and   further   the
quantification of  negligence  could  not  have  been  made  either  by  the
Commission of Inquiry or by the High Court, therefore  on  such  aspect  the
matter cannot be examined by this Court in  the  civil  appeal  proceedings.
Therefore it is  requested  on  behalf  of  the  respondent  No.8    not  to
apportion the liability of compensation out of 55% upon respondent no.8.

7.    With reference to the aforesaid rival legal contentions, we have  very
carefully  examined  the  contentions  to  find  out  as  to  
whether   the
apportioning of  compensation awarded in favour of the  claimants  fixed  at
55% is required to be made between the appellants and the  respondent  no.8.
With regard to this we have  carefully  gone  through  the  reports  of  the
Inquiry Commission  before  whom  the  parties  have  appeared  and  adduced
evidence to justify their claims and counter  claims.  
The  Commission,  on
the basis  of  the  evidence  on  record,  has  fastened  the  liability  of
compensation upon the appellants and respondent no.8 for 80%  and  the  same
was examined  by  the  High  Court  to  answer  the  point  no.3  which  was
formulated by the High Court for  its  consideration  and  to  answer  which
reads thus:--


            “3) Is the apportionment of the  responsibility  and  negligence
      for the fire tragedy in question and the liability  flowing  from  the
      same fair and reasonable having regard to the  acts  of  omission  and
      commission and the role played by each one of those  held  responsible
      for the incident?”


8.    The High Court while  examining  the  correctness  and  percentage  of
liability  of  compensation  modified  the  percentage  confined  upon   the
appellants and respondent no.8 from 80%  to  55%  confining  the  negligence
aspect upon the appellants and respondent no.8 has not  been  annulled.   
No
doubt  the  composite  negligence  is  fastened  upon  the  appellants   and
respondent no.8, State of Haryana, the Haryana State Electricity  Board  and
Municipal Committee Dabwali for the reasons  recorded  by  the  High  Court.

The correctness of the said finding not only examined in this appeal as  the
same is not questioned either by  the  appellants  or  by  respondent  no.8.
While recording the finding on issue no.3  and  reducing  the  liability  of
compensation to 55% out of 80% awarded by the Inquiry Commission,  the  High
Court has  held  that  the  appellants  and  respondent  no.8  namely  Rajiv
Marriage Palace would be jointly and severally liable  to  pay  55%  of  the
total compensation payable to  the  claimants,  the  remaining  tort-feasors
refered to supra.  
It is not  possible  for  this  Court  to  apportion  the
liability of  compensation  between  the  appellants  and  respondent  no.8,
particularly in the absence  of  the  material  evidence  on  record  either
before the Inquiry Commission or before  the  High  Court  and  particularly
having regard to the fact that what is stated that economic capacity of  the
partners of Rajiv Marriage Palace. 
In the absence of  such  findings  it  is
not proper for this Court to frustrate the judgment of the High Court  which
is based on the Commission of Inquiry Report submitted by  a  retired  Judge
of Allahabad High Court and further on  behalf  of  respondent  no.8  it  is
stated that out of six family members, two  persons,  namely  Kewal  Krishan
and Chander Bhan died on account of the burn injuries in the  said  function
and further the land where the Rajiv Marriage Palace was built up  has  been
taken over by the District authorities and the same has been converted  into
‘Shahid Smarker Park’ and what is the  other  properties  left  out  of  the
partners of the Rajiv Marriage Palace and the evidence  is  not  forthcoming
by this Court or before the High Court or in  these  proceedings.   
In  this
way, in the absence of the same  it  is  not  possible  for  this  Court  to
apportion the liability of  compensation  and  confine  the  same  upon  the
appellants and respondent no.8 out of 55% of the liability  of  compensation
confined and holding both the appellants  and  respondent  no.8  responsible
for jointly and severally.
9.    For the aforesaid reasons the civil appeal is  accordingly  dismissed.
However, it  is  open  for  the  DAV  Managing  Committee  to  approach  the
competent civil court for apportioning the liability of compensation out  of
55% fastened upon both the appellants and the respondent no.8 by  initiating
appropriate proceedings.
10.   In view of the dismissal of the appeal, the interlocutory  application
for  directions  to  keep  in  abeyance  the  disbursal  of  the  amount  of
compensation deposited in civil court pursuant to order dated  15.3.2010  of
this Court  is  also  dismissed.  The  appellants  shall  also  deposit  the
remaining awarded  amount  with  the  Civil  Judge  and  the  claimants  are
permitted to withdraw the same.  The Civil Judge  is  directed  to  disburse
the amount to the claimants proportionately as awarded by  the  High  Court.
A copy of this judgment shall be  forwarded  to  the  learned  Civil  Judge,
Senior Division, Dabwali, Sirsa, Haryana.
                                                              …………………………..J.
                                                        [ Dr. B.S. CHAUHAN ]
                                                               ………………………..J.
                                                         [ V. GOPALA GOWDA ]
New Delhi,
January 23, 2013.
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