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2004 DIGILAW 613 (GAU)

Soibam (O) Khomdonbi Devi v. State of Manipur

2004-12-09

T.NANDAKUMAR SINGH

body2004
JUDGMENT T.N.K. Singh, J. 1. Heard Mr. N. Biren Singh, learned Counsel for the Petitioner as well as Mr. R.S. Reisang, learned G.A. appearing on behalf of the Respondents. 2. The most precious of the precious fundamental rights of the citizen is right to life. Such right of a citizen is guaranteed by Article 21 of the Constitution of India. It is the bounden duty of the State under the Constitution to protect the life and personal liberty of a citizen and it shall not be deprived of except according to procedure established by law. The State is liable for the constitutional tort and the constitutional tort denotes the case in which compensation or exemplary damages were awarded by the Court while a constitutional right was violated. Such constitutional remedy was made to partake the character of civil actions. The award of compensation was made only in addition to the normal civil remedies. The matter regarding the tortuous liability of the State had been raised and discussed in juristic circle beginning from the case of Devaki Nanda Prasad v. State of Bihar, reported in AIR 1983 SC 1134 . The Apex Court laid down the concept of constitutional tort and compensatory jurisdiction in that case and awarded Rs. 25,000/- (Rupees twenty-five thousand) as exemplary costs for harassing the Petitioner. This concept of awarding exemplary costs had been also considered in Rudul Shah v. State of Bihar, reported in AIR 1983 SC 1086 . In that case, the Petitioner filed the Habeas Corpus before the Court for his immediate relief and inter alia prayed for rehabilitation costs, medical charges and compensation for illegal detention. After his released in 1982, the question before the Court was whether in exercise of jurisdiction under Article 32, the Court can pass an order for payment of money, if such order is in the nature of compensation consequential upon the deprivation of fundamental right and decided in the affirmative. Therefore, the state must repair the damage done by its officers to the Petitioner's right. It may have recourse against those officers. Therefore, the state must repair the damage done by its officers to the Petitioner's right. It may have recourse against those officers. The two important points decided in Rudul Shah (supra) are that (1) violation of constitutional right gives raise a right to a civil liability enforceable in Civil Court and (2) it formulates basis for a theory of liability under which a violation of right to the personal liberty can give raise to civil liability with the extreme concern to protect and preserve the fundamental rights of a citizen. The Apex Court awarded compensation to the under trial for violations of his fundamental right and also for the failure of the State to discharge its constitutional obligations to the citizen. The Supreme Court again in a case from the State of Manipur, i.e. Sebastian M. Hongary v. Union of India, reported in AIR 1984 SC 1026 Court awarded exemplary costs of Rs. 1,00,000/- (Rupees one lakh) each to the wives of the missing men. In all these cases, the Apex Court awarded compensation under the writ jurisdiction for the constitutional torts against citizen. This concept of awarding compensation in the writ jurisdiction for violation of the fundamental rights had been followed in a number of cases. 3. The Constitution Bench in Oleum Gas Leakage, i.e. M.C. Mehta v. Union of India, reported AIR 1987 SC 1086 held that Article 32 is not only injunctive in ambit but also remedial in scope. It is also powerless to assist a person while his fundamental right has been violated. It includes the power to award compensation. 4. In D.K. Basu v. State of West Bengal, reported in (1997) 1 SCC 416 , the Apex Court awarded compensation for the infringement of fundamental right of an arrestee. In para 44 of the judgment of the Apex Court in D.K. Basu (supra) held that: The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortuous acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21 , is an exercise of the Courts under the public law jurisdiction for penalizing the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen. The Apex Court in the D.K. Basu (supra) in a clear term further held that: The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. 5. The Apex Court in M.C. Mehta v. Kamal Nath and Ors., reported in (2000) 6 SCC 213 held that the Court in its writ jurisdiction can award damages/compensation, even an exemplary damages can be imposed for the constitutional tort committed to the State. 6. 5. The Apex Court in M.C. Mehta v. Kamal Nath and Ors., reported in (2000) 6 SCC 213 held that the Court in its writ jurisdiction can award damages/compensation, even an exemplary damages can be imposed for the constitutional tort committed to the State. 6. From the above discussions of the law laid down by the Apex Court, I am of the considered view that the Court in exercise of its writ jurisdiction can award damages for the constitutional torts against the State Government. Accordingly, I hold that the present writ petition for awarding compensation to the writ Petitioner in exercise of the writ jurisdiction is maintainable. The following brief facts shall suffice for deciding the short points in this case. 7. The Petitioner's minor daughter who was reading in Class-X at Salungpham High School died due to electrocution on 18.9.1998. The high voltage electric wire was only 5 ft above the ground and the victim touched the said high voltage electric wire by her head while riding her bicycle. She even tried to remove the live electric wire by her hand from the head at the relevant time. The victim girl died at the spot. It may be pertinent to mention that the Electricity Deptt. of the Govt. of Manipur supplies electricity to the residents of Manipur. It is an admitted fact in the present writ petition that the victim girl died due to electrocution on touching the live electric wire, hanging at the height of 5 feet above the ground and also the said live electric wire is maintained by the Electricity Deptt., Govt. of Manipur. 8. The concerned Deputy Commissioner, i.e. the Deputy Commissioner of the Thoubal District, under his letter dated 19.9.1998 (Annexure-A/2 to the writ petition) informed the concerned Executive Engineer (Electricity), Thoubal to take necessary actions and it reads as under: Further, I was informed today that a girl was electrocuted again yesterday at Salungpham again-due to faulty electric live-wire of the department. The 2 (two) incidents are noted very seriously and it is taken as serious lapses on the part of the department that when it is not in a position to give proper uninterrupted power supply to the people, it is causing death to the consumers. The 2 (two) incidents are noted very seriously and it is taken as serious lapses on the part of the department that when it is not in a position to give proper uninterrupted power supply to the people, it is causing death to the consumers. In view of the seriousness of the case, you are hereby directed to ensure that no such faulty live-wire occur again resulting in the death of members of the public. Further, you are advised to immediately assist the bereaved families in processing their cases for payment of ex-gratia by your department. Any such occurrence in future shall be taken as pure human failure of the staff of your department and concerned officers/linemen/staffs shall be made fully responsible for the loss of lives, etc. thereof. 9. From the perusal of the said letter of the Deputy Commissioner, Thoubal, it has been seen that the highest authority of the District had made the findings that the electrocution of the victim girl was due to faulty electric live-wire of the Electricity Department and it is a serious lapses on the part of the Electricity Deptt., Govt. of Manipur. 10. The Respondents filed their affidavit-in opposite and in their affidavit-in-opposition. The said finding of the Deputy Commissioner, Thoubal in his letter dated 19.9.1998 (Annexure-A/2 to the writ petition) was not denied by the Respondents in their affidavit-in-opposition, but simply stated that the live electric wire was about 6 feet above the ground, and it was caused by cutting of the stay wire fastened to the last pole by some unidentified persons in the previous night before the date of occurrence. But the Respondents did not mention anything about the action taken by the Electricity Department, Govt. of Manipur for correcting the said faulty live wire which is only above 5 feet or 6 ft. above the ground. This being the situation, the submission of the Respondents that there was no negligence on the part of the electricity staffs of the Thoubal Division Electricity, Manipur cannot be accepted. 11. The Apex Court in Chairman, Grid Corporation of Orissa Ltd. and Ors. v. Sukamani Das (Smt.) and Anr. (1999) 7 SCC 298 , held that petitions under Article 226 cannot be entertained for the damages against Grip Corporation in the disputed questions of facts. 11. The Apex Court in Chairman, Grid Corporation of Orissa Ltd. and Ors. v. Sukamani Das (Smt.) and Anr. (1999) 7 SCC 298 , held that petitions under Article 226 cannot be entertained for the damages against Grip Corporation in the disputed questions of facts. On careful perusal of the said judgment of the Hon'ble Supreme Court in case Chairman, Grid Corporation of Orissa Ltd. and Ors. (supra) it has been seen that the case is different from the present case inasmuch as in that case there is a clear case of disputed question of facts as to whether the victim died due to electrocution caused by the negligence of the Grip Corporation and its employee or the victim died because of thunderbolt. Therefore, that case gives of no help of the Counsel of the Respondents. 12. The Court in the case of Sorokhaibam Khamba Singh v. State of Manipur, in W.P. (C) No. 654 of 1999 awarded a sum of Rs. 15,000/- as compensation for one bull died on electrocution in exercise of its writ jurisdiction. Similarly, the Court in case of Santmaya Devi v. A.S.E.B. and Ors. reported in 1999 (2) GLT 448 had awarded a sum of Rs. 50,000/- as compensation for the death of a 13 years old boy due to electrocution. Similarly in a number of cases the Court awarded compensation for the death due to electrocution against the State Government. The Apex Court in Parvati Devi and Ors. v. Commissioner of Police, Delhi and Ors., reported in : (2000) 3 SCC 754 held that once it is established that the death occurred on account of electrocution while walking on the road, necessarily the authority concerned must be held to be negligent. Therefore, it is the authority to prove that electrocution was not due to their negligence. In the case in hand there is absolutely no materials on the side of the Respondents to show that there was no negligence from their side. In Parvati Devi and Ors. (supra) the Apex Court awarded compensation to the tune of Rs. 1,00,000/- (Rupees one lakh). 13. After perusal of the record as well as after hearing of the parties at length and also from the discussions of the decisions of the Apex Court as well as the Court, a sum of Rs. 1,00,000/- is awarded as compensation for the death of the victim due electrocution on 18.9.1998. 1,00,000/- (Rupees one lakh). 13. After perusal of the record as well as after hearing of the parties at length and also from the discussions of the decisions of the Apex Court as well as the Court, a sum of Rs. 1,00,000/- is awarded as compensation for the death of the victim due electrocution on 18.9.1998. The payment should be made within a period of three months from the date of receipt of this order failing which it will carry interest at the rate of 12 (twelve) percent per annum. 14. With the above observations and direction, the writ petition is allowed and no order as to costs. Petition allowed