ORDER
Ronojit Kumar Mitra, J.
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 Mateh, 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 queue had increased in length over the night and with the day-break there was a sudden arrival of 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; o take adequate measures toensure 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 raution to ensure the safely 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. Hecontended that inspite of rcspeated 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 theplaintiff 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 l. 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 voilcnt 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 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 and .
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 Stale 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 hiscontention he cited and relied on the decisions and . 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, thai the suit was barred by the laws of limitation.
4. The C.A.B. maintained that it had duly obtained permission and paid the requisite fees to the Government of West Bengal, and that therefore, it had taken all necessary care and caution to ensure the safely and security ,of the people who had queued up to purchase tickets. The plaintiff, according to the C.A.B. had contributed to and was responsible for the stampede or the alleged injury, and there could be no question of any breach of any duty of care or there being any negligence on the part of the C.A.B. It was contended by counsel for the C.A.B. that the C.A.B. having complied with its duties, and notified the Calcutta Police in that respect, it was for the State authorities to take such steps and in such manner as it thought fit and proper for the purpose of maintainence of peace, safely and security of the people in the queue. In those circumstances, either on 15th or 16th December, 1969 it was submitted on behalf of the C.A.B. that in law or otherwise there was no duty of care on the C.A.B. The payment of the sum of Rs. 1500.00 to the plaintiff, it was submitted, was not made by the C.A.B. but by one Jalan, the then secretary, on compassionate ground. Finally it was urged, that the suit was barred by the laws of limitation, since the suit was instituted six years after the incident. The present Honourary Secretary of the C.A.B. gave evidence in Courl and said that the police authorities were “solely responsible for maintaining the gate and to maintain the law and order problem inside and outside the garden.” He had also stated, that due to income-tax formalities the C.A.B. was not able to sanction any further money in favour of the plaintiff.
5. The propositions urged by counsel on behalf of the defendants, and also as set out in their pleadings, shall of course be considered by me hereunder. I was however, quite unable to follow the submissions by counsel for the defendants, that the plaintiff had contributed to or was responsible for the stampede or that it was impossible for the State authorities “to control the unpredictable unruly behaviour of the public”. In paragraph 4 at page 8 of the ‘written-notes’ submitted on behalf of the State, it has been recorded while dealing with the point of negligence and duty of care that, “if at all it was possible to take measures to guard against the unpredictable unprecedented selfish unruly behaviour of the disorganised crowd for buying tickets the Hon’ble Court would be pleased to come to the Hon’ble Court’s finding if the Hon’ble Courts deem fit to do.”
6. The defence on behalf of the State would appear to be two fold, that the incident had occured due to the irresponsible conduct of the public, standing in the queue, including the plaintiff, and that the Calcutta Police had discharged its duties by virtue of delegated soverign powers of the State, and that therefore the State was not liable in any manner as alleged by the plaintiff. The C. A.B. of course denied having any liability since it had . obtained the requisite permission from and had paid the fees to the State and that the plaintiff had contributed to the stampede.
7. In its ‘written-statemcnt1, it was stated on behalf of the State authorities in paragraph 10, “that inspite of utmost effort to control the crowd there was a sudden and heavy rush which the police on duty could not apprehend.” In the ‘written-notes’ it has been submitted on behalf of the State, that the State authorities were dealing with a disorganised crowd of a selfish unruly behaviour, which was both unpredictable and unprecedented. Both the contentions were unsupported by any evidence, and I am inclined to be of the opinion, that they were a mere emotional outburst on behalf of the State or involuntary conjectures. The case sought to be made out from the Bar on behalf of the State, that there was a “law and order problem” was also without any basis whatsoever. Law and order situation, as commonly understood, would arise where there was an uprising by an unlawful public-gathering or there was a riot or a deliberate and wilful breach of the law by way of an unauthorised and illegal demonstration and so on and so forth. The situation must necessarily be taintedas being unlawful, and violent with an element of threat to the breach of peace in defiance of the law. There was no allegation of any sort as to the presence of any of those elements, immediately before the incident had occured. In fact it was an admitted position that thousands of people had peacefully stood over-night and unto the morning, at a place demarcated by the authorities. The mounted police sergeant, now retired, who was present at the incident, while giving his evidence on behalf of the State, described the crowd as a “mass of humanity” and no adjectives. Neither he, nor anyone else, had even hinted that the situation was “unpredictable”, “unprecedented” or that the crowd was “selfish”, “disorganised” or of “unruly behaviour”. It would appear from his evidence, that he with his five or six companions had stood quietly before and while the stampede had occured, since according to him, the “situation was confusing”. As regards the injured, he stated that they were removed to the Control-Room, and thereafter to the hospital in police vehicles as there were no ambulances. In his evidence he opined that for reasons of maintenance of peace and to safeguard the security of the public, the Calcutta-Maidan would have been the apropriate venue, and not the place where the queue had been allowed to accumulate.
8. While the State admitted that an Enquiry-Commission had been set up in respect to the incident, and also that a Medical Board had been constituted to consider the ease of the plaintiff, and that both the Commission and the Board had filed their respective reports, no submission was made nor explanation of any substance was forwarded on behalf of the State as to why the reports were not produced before this Court. The written-statement filed on behalf of the State had been verified “as based on information derived from records” though no records not any contemporaneous documents in support of the averments made on behalf of the State in its pleadings were produced on behalf of the State. Exhibit “DD” the letter addressed by the Sports Council, State of West Bengal, requesting the appropriate State authorities to consider the case of the plaintiff for financial assistance favourably, remained uncontroverted and significantly did not feature in the arguments forwarded on behalf of the State. Inspite of repeated demands by counsel for the plaintiff the defendants failed to produce the letter of permission granted by the State to the C.A.B. to hold the Cricket Match at the Eden Gardens. The cocants of the letter would very likely have contained the particulars of the duties cast on both the State of West Bengal as also the C.A.B., with regard to the measure of the safety and security of the public which the defendants were to have ensured in the circumstances. Admittedly, the Medical Board consisting of physicians at the Medical College Hospital required to examine the plaintiff in the month of June and then again in September and finally in December, 1983 to ascertain whether treatment at Vellore hospital was at all required. Since the State chose not to disclose any particulars of the deliberations of the Board, the question sought to be raised by the plaintiff that whether it was the same Board which had considered the matter for seven long months and what actually was the decision of the Board would appear to be quite pertinent. The proverbial reasonable man, not “the man on the clapham omnibus” but the man who returns from work, clinging on the side of a over-crowded public bus in Calcutta, with a toehold on the foot board, to his shanty home in the remoter suburbs of the city, I have no doubt, would be of the view that referring the matter to Vellore, according to the desire of the plaintiff, would have, been reasonable and also saved the State incurring expenditure in treating the plaintiff between 1969 and at least 1990, and perhaps benefitial for the plaintiff too. The fact that the Board had to examine the plaintiff three times over a period of seven months before arriving at a decision, was sufficient reason to hold that the matter was complicated and in view of the suffering which was bei ng endured by the plaintiff, it would surely have been just and reasonable to respect the desire of the plaintiff and allow him to visit Vellore hospital for the purpose of investigation and possible treatment. The plaintiff had prayed for a sum of Rs. 30,000/- towards his expenses including medical treatment at Vellore. The then Mayor of Calcutta, had extended his moral support and inspite of several medical opinions in favour of treatment at Vellore the State of West Bengal chose to remain silent in the matter. The plaintiff continued to suffer and the maladies grew worse over the years. The plaintiff gave evidence in Court, which had continued for several days. He was tall and had a heavy body. He walked with a definite limp and was aided either by his mother or his sister. Hisdeamnourwasquiet and composed for most part, except for one or two occasions when he grew agitated. He appeared to be fairly intelligent, with a reasonable memory and spoke well in Bengali. It is indeed a matter of great pity that he was unable to pursue his studies. It would therefore appear from the circumstances of this case, that due to the negligence of the defendants in failing to lake proper and adequate measures to ensure the safety and security of the people who stood in the queue on November 16, 1969, there was a stampede in the queue and the plaintiff had fallen and had sustained serious injuries. The defendants in the circumstances could not have been but be aware of their respective liabilities and while the Slate allowed the doctors and special ists in the various State Hospitals toexamine and treat the plaintiff, the defendant No. 2 paid him a paltry sum of Rs. 1500/-. The defendants however, failed and neglected to extend to the plaintiff adequate and proper medical treatment with the seriousness and sincerity that was demanded in the circumstances and they were bound to do in law. The plaintiff was however, required to pay for all the medicines which had been prescribed from time to time.
9. The defence sought to be taken by the State, behind the shield of delegated sovereign power, am afraid would not be sustainable in the present circumstances. The allegation was not that the plaintiff was injured due to police brutalily but as a result of the failure of the police to perform its duties. The defendants, both the State and the C.A.B. were quite aware on the morning of November 16, 1969, that, in the language of the retired mounted police sergeant, a “mass of humanity” had gathered, Yet, there was total inaction on the part of the C.A.B. and utter failure of the State authorities in those circumstances to reasonably anticipate the incident which had occurred. In those circumstances the C.A.B. ought to have demanded further protection by the Stale authorities, and the State ought to have deployed adequate police, especially on the submission on behalf of the State authorities that the crowd was ‘unprecedented’. On their own evidence, the police were quite unable to deal with the situation and, it would appear due to lack of expertise, were in fact quite incapable of performing their duties in any manner whatsoever.
10. The C.A.B. the organisers of the Cricket Match, with enumerable years’ of experience, were surely required in law to see that the State authorities had ensured the safety and security of the people who had stood in the queue to purchase tickets from C.A.B. counters, and to provide reasonable facilities such as toilets, drinking water and medical relief including ambulances, especially because the queue was there at their instance that was offering tickets for sale. There was noevidence that the C.A.B. had done anything in that respect. Indeed the C.A.B, had paid afee to the State authorities and in the absence of any evidence, such payment was made presumably for the usage of the Eden Garden and the necessary police protection during the game. Would it therefore, be unreasonable to question whether the C.A.B. in the circumstances was not required to ascertain and ensure that adequate police arrangements had been made and other appropriate measures had been taken by the State authorities. After all, that was what the fee, which it had paid, was all about. There was no evidence that the payment of fees or the intimation to the police by the C.A.B. made the State responsible solely in respect to the sale of tickets also. It was forcefully argued, by counsel for the C.A.B., that it had done all that was required to be done by it under the law, and that could not have been anything other than the payment of the requisite fees to the State and intimating the Calcutta Police that the cricket match would be held at the Eden Garden. There was no evidence that the payment of fees or the intimation included the matter of selling of tickets. Indeed there was evidence that the police were responsible for the maintenance of peace both inside and outside the Eden Garden, but that would be surely on the days and at the time when cricket match would be played. The C.A.B. sold tickets from counters manned by its officials, and in compliance of its directions, with approval by the Calcutta Police, hundreds of people had stood in the queue over-night, and waited for thecounters to open on the next morning. In the morning, shortly before the opening of the ticket counters the queue had increased to a size referred to as a “mass of humanity” by the mounted police sergeant, a police man of some experience in
handling of such situation who was present on the
spot. Our reasonable man would very probably be
of the view that in those circumstances the C.A.B.
was duly bound and in the ordinary course of
things should have required the State authorities,
in view of the massive demand for tickets and the
number of people in the queue having suipassed
their calculations, in the public interest, to review
and increase the police arrangements forthwith.
There was no evidence of any sort adduced by the
C.A.B. before this Court in that respect. Therefore,
I would be inclined to hold that the C.A.B. was
negligent and the plaintiff who had suffered injury I
as a consequence would be entitled to damages
from the C.A.B.
11. In those circumstances I find the defendants
liable in negligence for the breach of their lawful
duties towards the plaintiff. It is also my considered
view that the principles of ‘res ipsa loquitor’
applies squarely in the facts of the case, either as
admitted by the defendants or in their failure to
adduce any or relevant evidence in defence. For
those reasons there shall be a decree against the
defendants in terms of prayers (a) and (b) of the
plaint. I am satisfied that had the defendants taken
a reasonable and prudent attitude in the matter, it
would not perhaps have been necessary for the
plaintiff to institute this suit. The defendants shall
pay the plaintiff costs of this suit assessed at Rs.
20,000/-.
12. Advocate appearing for the defendant No. 2 prayed for slay, such prayer is refused.