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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.

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3. This  appeal  is  directed  against  the  judgment  and  order  dated  9 th  

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.   

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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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