SHAYMAL BARAN SAHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the late hours of the evening, on December 15, 1969, a sixteen year old boy, a cricket enthusiast stood in the queue, with thousands of other cricket lovers, eager to purchase a ticket on the following morning, on December 16, 1969 to witness the 4th Test Match, later on that date to be played at the Eden Garden Stadium in Calcutta. The Cricket Association of Bengal, referred to as the "C.A.B." hereinbelow, had set up counters for the sale of tickets on the portion of the Eden Gardens facing Auckland Road adjacent to the northern gates of the Akash-Bani-Bhavan, and in front of the southern gates of the Assembly-House. Anyone who has seen these queues, would know that they were more often than not an unending stream of cricket lovers, from divers walks of the society and of all ages, ready to suffer any amount of hardship to obtain a ticket. The 4 queue had increased in length over the night and with the day-break there was a sudden arrival of a very large number of people into the queue. Probably it had started with pushing and jostling and then forcibly attempting to jump the queue, but the end was a pathetic stampede. Many fell and were trampled. The defendants had arranged for police protection and a contingent of five or six mounted-police had also arrived at the spot at 6 O'clock in the morning. The sixteen year old boy of whom I have mentioned earlier had also fallen to the ground in the stampede and was trampled under the feet of the panic-stricken crowd. He was removed in a state of unconsciousness by the Calcutta Police in their vehicle to their control-room and then to the S.S.K.M. hospital. Soon thereafter, the defendant No. 1 had set up a commission to enquire into the incident and a report in that respect had been filed with the defendant No. 1.

(2.) This suit has been instituted by that unfortunate young boy in 1984.

(3.) It was the plaintiff's case, that the defendants had failed and neglected to take adequate measures to ensure the safety, security and well-being of the people who had stood in the queue, and the police arrangement was inadequate and totally ineffective. The defendant No. 2 had failed and neglected to construct sufficient bamboo structures so that the queue could be contained in it, argued counsel for the plaintiff, and could not be broken from outside, nor had any provision been made for toilets, drinking water or medical relief and ambulance. It was contended by counsel on behalf of the plaintiff, that negligence was admitted by the retired mounted-police-sergeant who, in his evidence tendered on behalf of the State, had in no uncertain terms stated in Court that he had done nothing and had kept quiet before, during and after the stampede. The defendant No. 2 had alleged that it had taken all necessary care and caution to ensure the safety and security of the people who had stood in the que to purchase tickets, yet, argued counsel for the plaintiff, not a scrap of evidence was adduced by the defendant No. 2 in these proceedings to indicate what precisely were those necessary steps. He contended that inspite of respeated requests and medical advice, the defendants further failed and neglected to afford the plaintiff the necessary and proper medical care, treatment or attention. The defendant No. 1 caused the plaintiff to be examined by its doctors and specialists in the State-hospitals, and according to the plaintiff, the State being fully aware that the doctors were unable to make any positive diagonosis as to the medical problems of the plaintiff, the State had wrongfully refused to sanction any financial grant to enable the plaintiff to seek an opinion from the specialists at the Vellore hospital, reputed for its department of neurology. The defendant No. 1 did not deliberately disclose the report of the Enquiry-Commission, or the report of the Medical-Board, contended counsel for the plaintiff, because the first report would establish that the defendants were liable in negligence, and that it was necessary for the plaintiff to be investigated and treated by the neurological hospital in Vellore would transpire, from the findings of the Board. According to him, the defendant No. 1 had caused the plaintiff to be treated in Government-hospitals free of any charges, was because the defendant No. 1 was aware of its liabilities in negligence by reason of breach of the duties cast on it under the law. He argued, that in that view of the matter also, any allegation that the suit was barred by the laws of limitation, as had been argued on behalf of the defendant No. 2 and adopted by the defendant No. 1, was not maintainable, more so according to him, because negotiation as to compensation payable to the plaintiff was continuing between the defendants. As regards duty of care cast on the defendants other than in common law, he contended would appear from the letter of permission which had been admittedly issued by the defendant No. 1 to the defendant No. 2, a prerequisite to the holding of the game, yet not disclosed by the defendants because the contents according to him would spell out precisely the duties of the defendants. He told the Court that the plaintiff not only could not walk unaided, but from the very begining he would be seized with sudden tantrums and suffered with depressions and mental confusions, excruciating head-ache, and voilent shivering of the entire body, In 1984, he submitted that it was made clear to the plaintiff, by doctors, that his condition had turned incurable and he would have to live on medicine for the rest of his life. It was then, that the plaintiff had decided to, and instituted this suit against the defendants, according to him, as because this was the first occasion when the plaintiff came to learn 5 for sure that he would not ever be cured. These symptoms had manifested soon after the incident, it was submitted on behalf of the plaintiff, and with lack of proper medical treatment, grew worse over the years, and today he was quite unable to apply his mind to any matter for any length of time. It was for these reasons, contended counsel that the plaintiff was unable to pursue his academic career. According to him, the plaintiff had paid for all medicine which had been prescribed by the diverse doctors including the doctors of the Government hospitals, and also by those to whom they had referred the plaintiff for treatment. In support of his submissions he cited and relied on the decisions reported in AIR 1965 SC 1039; AIR 1962 SC 933; (1994) 4 SCC 1; (1994) 6 SCC 205 : (AIR 1994 SC 2663); AIR 1995 SC 2377; AIR 1974 SC 890; AIR 1987 SC 1086; AIR 1986 SC 180; AIR 1993 SC 1960; AIR 1995 SC 755; AIR 1930 Mad 173 and AIR 1941 PC 1.3A . The State of West Bengal was categorical in stating its case, that it had entrusted the Calcutta Police to ensure maintenance of peace, order, safety and security of "the 20.000 people" who had stood in a queue in the evening of December 15, 1969 to purchase tickets for the cricket match to be played at the Eden Gardens on December 16, 1969, and that the Calcutta Police had complied with its duties and responsibilities in accordance with law. According to the State, the incident occured "due to the unruly behaviour of the people" and that the C.A.B. was responsible for it. The Medical-Board which had been constituted at the instance of the State, had examined the plaintiff and found that the plaintiff was not required to be sent to the Vellore hospital for any investigation or treatment, it was stated on behalf of the defendant No. 1, but he should be treated at the Gobra Mental Hospital. The plaintiff, according to the State, had also been referred to the Director of Health Services, who was to report to the State to enable the State to consider "such action as may be necessary including sanction of financial grant etc." It was admitted on behalf of the State that the C.A.B. had paid a sum of Rs. 1500.00 to the plaintiff and thereafter the State had "requested the defendant No. 2 to explore the possibility of rendering further financial assistance." It would appear from its written-statement, that the State was unable to pay special damage, "since efforts were made by the Director of Health Services for investigation and treatment as required." Counsel appearing for the State contended, that even if the police could be held responsible for the injury, no suit would lie against the State as the police were performing delegated sovereign function and in support of his contention he cited and relied on the decisions reported in AIR 1965 SC 1039; AIR 1960 SC 610; and AIR 1960 SC 675. The evidence tendered by Dr. Sengupta that in 1984 he had informed the plaintiff that the damage, which the plaintiff had suffered due to the fall in December 16. 1969, had become incurable, according to counsel for the defendant No. 1 was "not acceptable", and adopting the arguments made on behalf of the defendant No. 2 it was also submitted on behalf of the State, that the suit was barred by the laws of limitation.