Not obtaining due approval -“Milder form of Negligence”.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.03.2023
PRONOUNCED ON : 23.03.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.2191 of 2015
1.V.Shanmugam (Deceased)
2.S.Sharmila
3.Divya Bharathi ... Petitioners
Vs.
1.Union of India
Rep by the Secretary
Ministry of Youth Affairs and Sport
23. Considering the arguments of the parties to the lis on hand, the
fact remains that the coastal cleaning-up programme was conducted by the
8
th
respondent / Pallavan College of Engineering and 54 students
participated in the said one day event. Admittedly, the Organisers of the
College had not obtained any approval from the District Collector or from
any other Competent Authority of the Anna University. The Anna
University states that it is not a NSS Programme, it was an event arranged at
the discretion of the College without informing about such programme to
the University and therefore, none of the Authorities can be held liable. The
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W.P.No.2191 of 2015
participation of any student in NSS Programme is voluntary in nature and
not compulsory.
24. No doubt, the Organisers are bound to take adequate steps to
protect the safety and security of the participants in the event. The 8
th
respondent / College Authorities state that they informed the students not to
venture into the seawater for bathing, swimming etc. The Programme
organised was concluded and thereafter, two students at their own volition
jumped into the sea for bathing, which resulted in death of the son of the 1
st
petitioner. Thus, the deceased student jumped into the sea after the
programme and without informing the Organisers and therefore, the College
cannot be held responsible for the death of the student.
25. Admittedly, the deceased student was aged about 21 years and
was pursuing 3
rd year B.E. course. He was a major and capable of taking an
independent decision for his conducts. The deceased student voluntarily
jumped into the seawater for bathing without informing the Organisers,
even the instructions were not followed by the deceased student and the
other student, who was saved. As far as the instructions of the Organisers
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W.P.No.2191 of 2015
are concerned, it should be construed as formal, since the students are
majors and capable of deciding their conduct. In the present day scenario
the College Authorities or the Organisers of the event cannot interfere with
the rights of the major students, who are capable of taking decision. In the
present case, the Organisers in advance informed the students not to venture
into the seawater for bathing, swimming, etc. It is not the case that many
students had jumped into the sea water. Out of 54 students, only two
students jumped into the sea and one was saved and the son of the 1
st
petitioner alone was dead.
26. That being the factum established, question arises, whether the
Central and State Authorities can be held liable for the drowning of the
deceased student.
27. The petitioner as well as the 8
th
respondent / College Authorities
could not establish that they have obtained due approval from the District
Collector for providing safety measures including Life Guards. They have
not even informed to the NSS Coordinators of Anna University. Thus, none
of the authorities were aware of such coastal clean-up programme
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W.P.No.2191 of 2015
conducted by the 8
th
respondent / College at their discretion. Anna
University states that it is not even a NSS Programme, it was a cleaning
programme arranged by the College without even informing the University.
Thus, this Court has no hesitation in forming an opinion that the
respondents 1 to 6 are not responsible for the event conducted by the 8
th
respondent or for the death of the student.
28. Let us now consider the responsibility of the 8
th
respondent /
College.
29. It is not in dispute that that the 8
th
respondent / College organised
the coastal clean-up programme and informed the students for their
voluntary participation. No doubt, 54 students voluntarily participated in the
coastal clean-up programme conducted on 27.09.2014. The Organisers of
the programme were very much present, while conducting the programme.
They have instructed the students not to venture into the seawater for
bathing, swimming, etc. If the students, who have attained the age of
majority and 21 years voluntarily, jumped into the sea for bathing without
even informing the Organisers after completion of the programme, the
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W.P.No.2191 of 2015
Organisers cannot be held responsible.
30. Since it was the voluntary act of two students for jumping into the
sea, the principle of “Volenti Non Fit Injuria” squarely applies to the facts
of this case. Therefore, none can be blamed for the voluntary act of the
deceased student. The deceased student at the time of drowning was aged
about 21 years and capable of taking independent decision. He had not
followed the instructions given by the Organisers. Out of 54 students, two
students alone jumped into the sea without even informing the Organisers.
While so, the Organisers cannot be held responsible for the voluntary act of
the deceased student.
31. Negligence in common parlance means and implies “Failure to
exercise due care, expected of a reasonable prudent person”. It is a breach of
duty and negligence in law ranging from inadvertence to shameful disregard
of safety of others. In most instances, it is caused by heedlessness or
inadvertence, by which the negligent party is unaware of the results which
may follow from his act. In the present case, one cannot form an opinion
that a 21 year old, 3
rd year B.E. student was unaware of the consequences of
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W.P.No.2191 of 2015
jumping into the deep sea for bathing. The risk element involved would
have been considered by the student before jumping into the sea. Thus, he
has accepted the consequences voluntarily. The voluntary acceptance of risk
exonerates the Organisers from liability and responsibility.
32. Negligence is thus a breach of duty or lack of proper care in doing
something, in short, it is want of attention and doing of something which a
prudent and a reasonable man would not do. Though sometimes, the word
“Inadvertence” stands and it used as a synonym to negligence, but in effect
negligence represents a state of the mind which, is much more serious in
nature than mere inadvertence. There is thus, an existing differentiation
between the two expressions-whereas inadvertence is a milder form of
negligence, “Negligence” by itself means and implies a state of mind, where
there is no regard for duty or the supposed care and attention, which one
ought to bestow.
33. Therefore, in the present case, the petitioners have failed to
establish that no due care has been taken by the Organisers of the
programme. Fact remains that the 8
th
respondent / College failed to get an
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W.P.No.2191 of 2015
approval from the District Collector nor informed about the programme to
the Anna University NSS Coordinators. The Coordinators of the College
informed the students not to venture into the sea for bathing, swimming, etc.
Thus, the instructions are given and when the 21 year old student after
completion of programme voluntarily jumps into the sea having understood
the risk element, the Court cannot arrive at a conclusion that the Organisers
of the College is responsible and liable for the consequences. Even before
the arrival of the Government machinery one student was saved by the other
student but the son of the 1
st petitioner died. The treatment given to him
failed.
34. This being the factum, this Court is of the considered opinion that
the negligence aspect against the Authorities has not been proved by the
petitioners. Therefore, the negligence on the part of the 8
th
respondent /
College is to be confined only to the extent of not obtaining approval from
the District Collector and in the event of such approval, the District
Collector would have arranged for safety measures including Police
Security.
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W.P.No.2191 of 2015
35. Though it seems to be an irregularity in organising such
programmes, the College Authorities ought to have taken adequate
measures in this regard so as to ensure that in the event of any untoward
incident, the Government machinery is required in the place, where the
programme is being organised. Therefore, to the extent of not obtaining
prior approval from the District Collector and not informing the NSS
Coordinator of Anna University, the 8
th
respondent / College undoubtedly
committed an act of lapses and their lackadaisical approach resulted in loss
of life of a student. To that extent, the College is responsible.
36. Every Educational Institution, while organising programmes,
educational tours, events, etc. for students, are expected to take all
precautionary measures for the safety and security of the students. Though
the student in the present case was aged 21 years at the time of the incident,
if the Life Guards and Government machinery were put in place, then his
life would have been saved and to that extent the College Authorities failed
in their duty to get approval from the District Collector and to inform the
Anna University.
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W.P.No.2191 of 2015
37. Thus, it is not a case of an absolute negligence on the part of the
Authorities including the College and Organisers, but the College had failed
to obtain necessary approval from the Competent Authorities. Hence, to that
extent, they have committed an act of negligence, which is to be construed
as “Milder form of Negligence”.
38. Thus, this Court is inclined to grant a fixed compensation instead
of adopting multiplier method. Accordingly, the 8
th
respondent / Pallavan
College of Engineering, Thimmasamudram, Kancheepuram is directed to
pay a sum of Rs.5,00,000/- (Rupees Five Lakh Only) to the petitioners
towards compensation within a period of four (4) weeks from the date of
receipt of a copy of this order