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2009 DIGILAW 585 (GAU)

Tokkong Tayeng v. State of Arunachal Pradesh

2009-08-19

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. D. Pangging, learned Counsel, appearing for the petitioner. Also heard Mr. N. Lowang, learned Addl. Senior Government Advocate, appearing on behalf of the State respondents. None appears for the private respondent. 2. These writ petitions have been filed by the petitioners claiming compensation for the death of sons/daughter-in-law in a tragic boat accident that occurred on 8.8.2008 in the Siang River in the East Siang District of Arunachal Pradesh. Since the said tragic deaths took-place in the same accident and the grounds taken by the petitioners for claiming the compensation are same, both the aforesaid writ petitions are taken-up for hearing together and I propose to dispose of the same by this common judgment & order. In WP (C) 491 (AP) 2008, the petitioner is the father of deceased Basurut Tayeng who as aged about 48 years and was serving as a Junior Teacher in the Education Department of Arunachal Pradesh and was on deputation as a Senior Resource Person under Sarva Siksha Abhiyaan (SSA) and was posted at Mebo in the East Siang District of Arunachal Pradesh. The petitioner's son late Bsurut Tayeng, on 8.8.2008, was returning from Pasighat to his native village at Kiyit after attending a Training conducted by the Education Department at Pasighat and boarded the last Ferry for the day at Raneghat, the place from where the private ferry services are run for taking passengers and goods across the Siang river. In WP (C) 472 (AP) 2008, the petitioner is the father of deceased Long Tayeng and father-in-law of deceased Osi Perme. Deceased Long Tayeng was aged about 25 years and a student of Jawahar Lal Nehru Government College at Pasighat and deceased Osi Perme was his newly-wed wife. On 8.8.2008, they were returning from Pasighat to their native village at Motum and boarded the last ferry for the day at Raneghat, the place from where the private ferry services are run for taking passengers and goods across the Siang river. 3. On 8.8.2008, they were returning from Pasighat to their native village at Motum and boarded the last ferry for the day at Raneghat, the place from where the private ferry services are run for taking passengers and goods across the Siang river. 3. In both these writ petitions, the petitioners alleged that the accident took-place on 8.8.2008 due to lack of proper maintenance of the said ferry and because of abject failure of the State respondents in controlling and regulating the maintenance of the ferries for the safety of passengers and goods while ferrying the passengers and their goods in terms of the Northern India Ferries Act, 1878, which is applicable to the State of Arunachal Pradesh. On the fateful day of the accident on 8.8.2008, the boat was carrying 26 passengers and 2(two) fully loaded Tata Mobile Mini Trucks. Due to such over-loading, the boat was not able to negotiate the current in the river and had to return to the Bank. One of the owners of the aforesaid vehicle, asked the boatmen that his vehicle be off-loaded as the over loading might be the reason for not being able to negotiate the river current. Some of the passengers also asked the boatmen to let them get-off as they felt that there was something wrong with the boat and there was risk of drowning of the boat due to over-load but the boatmen did not pay heed to the request of the passengers as they have already taken the fares from the passengers for the trip and for loading the vehicles and heeding to their request would mean returning the fares to them. The boatmen proceeded and after going distance, they could not negotiate the boat with the river current and at that point of time, another boat owned by one Sri Apaying Perme came and tried to pull the boat across the river by tying a rope but the overloaded boat due to lack of fuel had to stop in the midst of the river and the rope tied to the boat also got snapped and consequently, the ill-fated boat drifted downwards and it hit one of the concrete pillars of the Siang Bridge, which was under construction, and the boat broke into pieces drowning all the passengers in the river. In the event, the boat also sank in the Siang river. 4. In the event, the boat also sank in the Siang river. 4. Most of the passengers of the aid ill-fated boat were luckily rescued by the boat of Sri Apaying Perme, whose boat tried to pull the said boat across the Siang river but Basurut Tayeng, Long Tayeng and Osi Perme got drowned and died in the said accident. The dead body of deceased Basurut Tayeng was retrieved only on 12.8.2008 near Majorbari Ghat in the Dhemaji District of Assam. The dead body of deceased Long Tayeng was found on 13.8.2008 at around 15 kilometres downstream of Majorbari Ghat in the Dhemaji District of Assam. The dead body of deceased Osi Perme could not be found till this date and she was presumed to be dead. 5. The Deputy Commissioner, East Siang District, Pasighat, vide order No. DCP/JCD/264 dated 18.8.2008 to be conducted by Sri Tapyam Pada, Judicial Magistrate, First Class, Pasighat, for finding out the cause of the tragic boat accident which occurred on 8.8.2008. The aforesaid Judicial Magistrate, First Class, conducted the enquiry. In the enquiry, he examined the owner of the vehicle, boatmen, rescue team, survivors, eye- witnesses and police officers, and submitted his report to the Deputy Commissioner, East Siang District, Pasighat, on 19.9.2008, with his conclusive findings wherein the causes of the said accident, have been mentioned, as under: (1) Main points in regard to the accident are that the steering drivers (Gurial Maji) should not have left the steering at any cost. Soon after the motorboat lost its balance due to breaking of rope the boat went to the middle of the river, when the steering driver was not with his steering. If the steering driver remained with the steering, he could have made safe direction of the boat and accident could have been easily avoided. (2) Why the motorboat was pulling the loaded motorboat whereas other boat cross/re-crossed the river with its own engine capacity without the help of another boat, which reveal that the engine condition of the accidental motorboat was not in proper functioning condition. (3) As per the statement of engine operator Sri Gopa Sharma, pan (Pangka) of the boat got broken because it struck a stone/boulder inside the river, as a result, the engine got stop. The statement is also found to be not up to acceptable mark. (3) As per the statement of engine operator Sri Gopa Sharma, pan (Pangka) of the boat got broken because it struck a stone/boulder inside the river, as a result, the engine got stop. The statement is also found to be not up to acceptable mark. Presence of any stone/boulder in such a deep river is quite impossible and unbelievable. However, the case may be proved if the fan (Pangka) of engine boat are recovered and examined by the expert. (4) Why did they overload the boat with full of goods in the Tata mobile, as they knew the river current was very strong? (5) Why boatman did not listen to the earnest and repeated request of the anxious passenger. It reveals that the boatman was greedy of money earning rather than the precious lives of the passenger. Under above circumstances, it is well established that it was due to negligence of the steering driver Sri Heera Doley and engine driver Shri Gopal Sharma who are solely responsible for the accident and should be brought to book. 6. In the said report, the Judicial Magistrate, First Class, Pasighat, also suggested some steps as remedial measures to be taken by the State Government and District Administration to check recurrence and prevention of such kind of eventualities in the near future which is quoted as follows: (1) Immediate implementation of Northern India Ferries Act, 1878 in Arunachal Pradesh or any specific guidelines relating to the plying of Ferry boat in the Siang river till completion of Siang Bridge with immediate effect for which provision of infrastructure like specification of boat marine engineer and staff having technical know-how should be deployed at the earliest to streamline the system. (2) Creation of Inland Water Transport Department comprising commercial, tourism and other allied purposes in the State of Arunachal Pradesh with a comprehensive working system for plying of ferries/motorboats in all the major rivers of the State. (3) Framing of suitable Rules under the Northern India Ferries Act, 1878. 7. The Judicial Magistrate, First Class, Pasighat, also suggested following steps to be taken-up by the State Government and the District Administration for prevention of repetition of such Ferry accident: (1) The boat should be inspected repeatedly/periodically by the Department having technical know-how borne under the Department of Transport Engineering Wing. No boat/Ferry should be allowed to ply unless Fitness Certificate is issued by the Department. No boat/Ferry should be allowed to ply unless Fitness Certificate is issued by the Department. (2) The boat owner should be instructed to register their both Water Transport Permit Form and the boat should be insured. (3) A register should be maintained at both side of Ghat and ticket should be issued to incorporating the name and address of passengers. A signboard should be placed displaying the boat No. and time of arrival/departure and sitting capacity of boat should be written on every boat. 8. The petitioner in WP (C) 491 (AP) 2008, in paragraph 15, averred that he is aged about 70 years and after the death of his deceased son, the petitioner has to shoulder the responsibility and entire burden of deceased son's kiths and kin comprising 9 members including daughter-in-law, 3 (three) grandsons and 2(two) grand daughters, and 3(three) minor great grandchildren. The petitioners made statements to the effect that although the State Government, after the aforesaid tragic boat accident, declared to pay ex gratia amount of Rs. 1 lakh each to the bereaved family members, have not paid a single penny to this date. 9. Mr. D. Pangging, learned Counsel for the petitioners, submits that this is a case of clear violation of fundamental rights inasmuch as the deceased died in the accident due to the negligence of the authorities concerned and the State Government is liable to pay compensation under the public law based on the principle of strict liability in addition to the claim available in private law for damages caused by the torturous acts of the public servants. In this regard, he cites the case of D.K. Basu v. State of West Bengal reported in (1997) 1 SCC 416 . The Court, submits Mr. Panging, can direct such compensation in the public law commensurate with the loss or damage caused to the bereaved families. 10. Mr. N. Lowang, learned Addl. Senior Government Advocate appearing for the State respondents places the affidavit-in-opposition filed on behalf of respondents No. 4 and 5 wherein it has been categorically admitted by the State respondents about the fact of the tragic boat accident that occurred on 8.8.2008 and also ordering of judicial enquiry and the submission of report by the Judicial Magistrate, First Class, Pasighat. Senior Government Advocate appearing for the State respondents places the affidavit-in-opposition filed on behalf of respondents No. 4 and 5 wherein it has been categorically admitted by the State respondents about the fact of the tragic boat accident that occurred on 8.8.2008 and also ordering of judicial enquiry and the submission of report by the Judicial Magistrate, First Class, Pasighat. The respondent authorities do not agree with the findings of the said judicial enquiry and disputing the same, put forward some of the causes due to which the accident took place. The respondents denied liability to pay any compensation to the petitioners and submitted that the respondent No. 6 who was the owner of the ill-fated boat is solely liable to compensate any loss of life and property in the said affidavit, the respondents also submitted that Section 12 of the Northern India Ferries Act, 1878, is not applicable to the private ferries and the same is applicable only to the public ferries. At the same time, it is admitted that no rules under the said Act have been framed by the State Government. Without framing such rules it is admitted that a notification was issued vide No. TPT (B) 16/97 dated 3.8.2000 laying down certain conditions to streamline the "water transport" in the State of Arunachal Pradesh and also fixing various tolls, etc. In the said notification, provisions have been made for issuance of permit, sitting capacity of passengers in the boat/ferry, permit fee, collection of revenue, etc., in respect of ferries run by the private parties. The aforesaid notification is still in force in the State of Arunachal Pradesh. From the averments made in paragraph 14 of the counter-affidavit, it is found that the answering respondent No. 4 by letter dated 29.3.2001, requested the respondent Secretary, Transport Department, for modification of the aforesaid notification as the same was "unworkable and fraught with difficulties on the grounds that there is lack of technical staff as there is no separate cadre of Marine Engineers and in such a situation, it is not possible to certify for the fitness of the ferry and in such a situation, it is not possible to issue fitness certificate and permits cannot be issued without issuing fitness certificate as issuing such certificates can put the issuing authorities in an awkward position in case there is a mishap." 11. From the aforesaid notification dated 3.8.2000, it becomes abundantly clear that the respondent authorities accepted the position that the private parties are running the ferries in certain areas of the State of Arunachal Pradesh and the State Government with a view to collect revenue fixed the permit fee, tolls, etc., without framing any rules under the provisions of the Northern India Ferries Act, 1878. From the contentions of respondents No. 4 and 5 made in their counter-affidavit, it also becomes abundantly clear that no proper care was taken for control and regulation of private ferries. The State respondents have admitted lack of technical staff for want of separate cadre of Marine Engineers. It is, therefore, easily conceivable that the Government had no machinery to check the fitness of the ferries/boats run by the private parties. This means that the ill-fated boat was also plying without being certified by the authorities concerned as fit to ply during or at the time of ferrying the passengers on the date of occurrence. It is the clear finding of the Judicial Magistrate, First Class, Pasighat, that the "engine condition of the accidental motorboat was not in proper functioning condition." 12. Although the State respondents took the plea that Section 12 of the Northern India Ferries Act, 1878, is not applicable to the private parties, they have, at the same time, admitted by issuing notification dated 3.8.2000 that the private ferries were allowed to ply in certain areas of the State. They cannot take the plea that they are not answerable to any accident that has taken place and they may be absolved from the liability to compensate for the loss of life and properties of the citizens of the State. The State authorities are receiving some portion of the revenues from the tolls collected by the private parties and it casts legal duty upon them to provide safety and security of the commuters. The State respondents are found totally negligent in maintaining and regulating the ferries run by the private parties. 13. In the present case, going by the pleadings of the State respondents 4 and 5, it is found that an attempt has been made by the respondent authorities to make the private respondent No. 6, owner of the ill-fated boat, solely liable for compensation to be paid to the affected parties. 13. In the present case, going by the pleadings of the State respondents 4 and 5, it is found that an attempt has been made by the respondent authorities to make the private respondent No. 6, owner of the ill-fated boat, solely liable for compensation to be paid to the affected parties. There is no doubt that the said respondent is a tortfeasor and he is liable for the accident and thus, liable to pay compensation to the affected parties. But, it would not be correct to say that the private respondent is solely liable to pay compensation. The respondent authorities having allowed plying of ferries by the private parties in the State of Arunachal Pradesh, and the respondent No. 6, being one of them, if any accident takes place causing loss of life and properties due to negligence, the State and its instrumentalities should be treated as joint tortfeasor. In one sense, it can be said that the State is vicariously liable for wrong and/or negligence committed by the private parties. There is no escape for the State respondents from the liability to pay compensation as they are joint tortfeasor to the affected parties. The Court would be failing in discharging its duty if the respondent authorities are not prevented from taking old draconian concept of traditional jurisprudential system so as to avoid liability of payment of compensation to citizens. A golden morale has been laid, in M.S. Grewal and Anr. v. Deep Chand Sood and Ors. reported in (2001) 8 SCC 151 , which the Court must bear in mind, observing that the law Courts exist for the Society and they have an obligation to meet the social aspirations of citizens since law Courts must also respond to the needs of the people. The stand taken by the State respondents in denying their liability is contrary to the expectations of the citizens from the social welfare State in the modern times. Regarding negligence, it is aptly explained in paragraph 14 of the aforesaid judgment which would clarify any confusing mind regarding State's vicarious liability in such case of negligence. To quote the same: 14. 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 the safety of others. To quote the same: 14. 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 the 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. 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 (vide Black's Law Dictionary). Though sometimes the word "inadvertence" stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, however is much serious in nature than mere inadvertence. There is thus existing a 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. 14. Keeping in view that a school Teacher in his age of 48 years with 12 years more to retire and the other two deceased persons who got married recently with promises and hopes for a blissful married life, it would be difficult to compensate their deaths in terms of money and it is more difficult to assess what amount should be paid to the bereaved members of the family. We should confine to the bare subsistence of the surviving members left behind by the deceased and with the aforesaid consideration, it is considered just and proper to direct the State respondents to pay an amount of Rs. 3,00,000/- (Rupees Three Lakhs) each for the death of the aforesaid deceased persons. It is accordingly directed that the State respondents shall pay a sum of Rs. 3,00,000/- (Rupees Three Lakhs) for each of the deceased persons to the petitioners by means of Demand Bank Drafts drawn in any nationalized Bank having its branch at Pasighat within a period of 6 (six) weeks from today. It is made clear that ex gratia amount if any, paid by the State respondents to the petitioners, shall not be counted towards the aforesaid compensation amount. 15. It is made clear that ex gratia amount if any, paid by the State respondents to the petitioners, shall not be counted towards the aforesaid compensation amount. 15. The State respondents are directed to frame appropriate Rules for maintenance of order and safety of the passengers and properties in the ferries under the provisions of the Northern India Ferries Act, 1878, within a period of 6 (six) months from today. The State respondents are also directed to consider the preventive/protective measures suggested in the inquiry report mentioned above for implementation. 16. With the aforesaid observations and directions, these writ petitions shall stand disposed of.