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2014 DIGILAW 536 (GAU)

Motilal Sinha v. State of Assam

2014-05-19

A.M.SAPRE, UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. This writ appeal is directed against the judgment and order dated 28.01.2014, passed in WP (C) No. 5949/2006, whereby the writ petition filed by the appellant was dismissed by the learned Single Judge. Case of the appellant is that his son Sri Bidyut Singha met with an accident on 07.06.2006 at about 4 p.m. while he was returning home from school. At that time, the son was aged about 16 years and was a student of Class-X. The son had boarded the motor boat belonging to the Inland Water Transport Department, Govt. of Assam at Rajnagar Ferry Ghat. The motor boat was operated by an unauthorized person and did not have any railing/safety provision. It was packed with passengers, auto-rickshaws, bicycles, scooters etc. While moving away from the jetty, the motor boat took a sharp turn due to rash and negligent driving by the boat operator. As a result, the passengers experienced a sudden jerk and became imbalanced. Appellant's son also became imbalanced and fell into the turbulent water of the Barak river. Within a few moment of his felling down, he was sucked by the rotating propeller of the motor boat because of which he sustained grievous injuries on his both hands as well as on the back side of his ribs. Though the passengers raised a hue and cry and told the boat operator to switch off the engine, he did not do so. Ultimately, son of the appellant was rescued by the passengers, whereafter he was taken to the Silchar Medical College Hospital. As the injuries were of serious nature and required advanced treatment, appellant's son had to be bought to the Gauhati Medical College Hospital. Appellant's son was treated at Guwahati Medical College Hospital requiring hospitalization where his right hand had to be amputated at the shoulder joint. He also suffered fracture of his left hand as well as back ribs. 2. First Information was lodged by the brother of the appellant before the Arunachal Police Out Post under Silchar Police Station on 07.06.2006 about the aforesaid incident, bearing general diary entry (GDE) No. 93. The in-charge of Arunachal Out Post issued a certificate dated 02.07.2006 regarding the accident and the injuries suffered by the appellant's son. 3. Appellant had to incur heavy expenditure in the treatment of his son. The in-charge of Arunachal Out Post issued a certificate dated 02.07.2006 regarding the accident and the injuries suffered by the appellant's son. 3. Appellant had to incur heavy expenditure in the treatment of his son. He also could not attend to his professional duties as because he was pre-occupied looking after his son. In such circumstances, he submitted a representation before the Director, Inland Water Transport Department, Assam on 23.06.2006 seeking financial assistance and compensation. As there was no response, appellant filed the related writ petition seeking a direction to the respondents to pay compensation because of the injuries sustained by his son on account of the above accident. 4. The writ petition was resisted by the respondents, who filed a common affidavit. The allegations made by the appellant regarding driving of the motor boat by an unauthorized person in a rash and negligent manner were denied. Referring to the police report dated 20.07.2006 submitted by the In-charge of Arunachal Police out Post, it was contended that it was totally an accident and there was no negligence on the part of the respondents. While the respondents admitted that the ferry/motor boat belonged to the Inland Water Transport Department, Govt. of Assam, they denied any negligence on the part of the authority and denied any liability on their part. 5. Learned Single Judge after hearing the matter, held that no independent inquiry was conducted by the respondents though a departmental inquiry was conducted which was not conclusive. While the learned Single Judge recorded that it was not disputed that the ferry/motor boat was owned by the Inland Water Transport Department, Govt. of Assam and that there was no dispute as regards the injuries sustained by the son of the appellant which led to amputation of his right hand, in the absence of any independent inquiry, learned Single Judge declined to award compensation to be paid to the appellant by the respondents and, therefore, dismissed the writ petition 6. Aggrieved, the present appeal has been filed. 7. We have heard Ms. S. Kanungoe, learned counsel for the appellant. Also heard Mr. U. Rajbongshi, learned Standing Counsel, Transport Department and Ms. B. Bhuyan, learned Standing Counsel, Inland Water Transport Department, Govt. of Assam. 8. Aggrieved, the present appeal has been filed. 7. We have heard Ms. S. Kanungoe, learned counsel for the appellant. Also heard Mr. U. Rajbongshi, learned Standing Counsel, Transport Department and Ms. B. Bhuyan, learned Standing Counsel, Inland Water Transport Department, Govt. of Assam. 8. Learned counsel for the appellant submits that the motor boat was operated in a rash and negligent manner because of which appellant's son lost his balance and fell into the turbulent water of Barak river which was in spate. The accident occurred as the appellant's son lost his balance because the motor boat was operated in a very rash and negligent manner by the boat operator. There were no railings or protective measures to protect the boat passengers from falling down. Since the motor boat belonged to the Inland Water Transport Department, the Department cannot escape responsibility for the mishap. Appellant's son had suffered severe injuries when he was sucked by the rotating propeller of the motor boat which resulted in the amputation of his right hand. The injuries were so severe that it required prolonged hospitalization, which in turn led to incurring of huge expenditure by the appellant. Learned counsel for the appellant, therefore, prays for grant of appropriate monetary compensation to the victim so that he can look after himself in the future. 9. Opposing the submissions made by the learned counsel for the appellant, learned counsel for the respondents submit that though the accident was most unfortunate, it was nonetheless an accident. There was no negligence on the part of the boat operator. Therefore, the State (Inland Water Transport Department) cannot be saddled with any liability in the form of compensation. Further submission is that in the absence of any negligence or wrong doing by the respondents, question of payment of compensation does not arise. Instead of availing the remedy under the civil laws to prove negligence and deficiency and determine the quantum of damages, if entitled, appellant has chosen to avail public law remedy, which in the facts and circumstances of the present case, would not be available to him. They, therefore, submit that learned Single Judge was justified in dismissing the writ petition as the appellant failed to show any negligence on the part of the authorities as well as infringement of any fundamental right either of the appellant or that of his son by the respondents. They, therefore, submit that learned Single Judge was justified in dismissing the writ petition as the appellant failed to show any negligence on the part of the authorities as well as infringement of any fundamental right either of the appellant or that of his son by the respondents. They, therefore, seek dismissal of the writ appeal. 10. Submissions made have been considered. We have also perused the materials placed on record. 11. It is no longer res integra that the superior or the constitutional courts award compensation against the State to victims who have suffered at the hands of the State or its officers. Award of compensation as a public law remedy for violation of the fundamental rights of a person under Article 21 of the Constitution of India in addition to the private law remedy under the law of torts as has evolved over the last several decades is a manifestation of the expanding constitutional jurisprudence so much so that it has become an appropriate and effective remedy for violation of a person's fundamental right under Article 21 of the Constitution. However, the law on the subject is ever expanding and newer horizons are visible. 12. Award of compensation as a public law remedy is now no longer confined to violation of Article 21 of the Constitution. The concept of strict liability, also called no fault liability, is now being increasingly applied by the Indian courts. The above doctrine is an exception to the general law of torts which is based on the principle that there can be no liability without fault. The Hon'ble Supreme Court in the case of Union of India vs. Prabhakaran Vijaya Kumar & Ors., reported in (2008) 9 SCC 527 , examined the concept of strict liability. That was a case where the Hon'ble Supreme Court was considering the death of a railway passenger due to accidental falling from a train, in the context of section 123(c) of the Railways Act, 1989. Examining the above concept, it was held that strict liability focuses on the nature of the defendant's activity rather than on any negligence. There are many activities which are so hazardous that they may constitute a danger to the person or property of another. Examining the above concept, it was held that strict liability focuses on the nature of the defendant's activity rather than on any negligence. There are many activities which are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability is based on the proposition that the one who undertakes such activities has to compensate for the damage caused by him irrespective of any fault on his part. Thus, in a case where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff even though the defendant may not have been at any fault. 13. The principle of strict liability has found recognition in various statutes, such as, Workmen's Compensation Act, 1923, Motor Vehicles Act, 1988, Railways Act, 1989, the Public Liability Insurance Act, 1991 etc. 14. Various facets of compensation as a public law remedy were gone into by the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Uphaar Tragedy Victims Association & Ors., reported in (2011) 14 SCC 481. The aforesaid decision was rendered in the context of the Uphaar Cinema tragedy in Delhi, which led to the death to the 59 cinegoers and injury to 103 others. The Apex Court referred to various earlier decisions starting from Rudul Sah vs. State of Bihar, (1983) 4 SCC 141 and Nilabati Behera vs. State of Orissa, (1993) 2 SCC 746 to buttress the point that award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21 by a public servant. It was held that what can be awarded as compensation by way of public law remedy need not only be a nominal palliative amount, but something more. While determining the quantum of compensation, it was held that guidance may be had or reliance may be placed on the schedule of compensation fixed under various statutes, such as, the Motor Vehicles Act or the Workmen's Compensation Act. In the above case, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Sarla Verma vs. DTC, reported in (2009) 6 SCC 121 to determine the quantum of compensation. Justice Radhakrishnan in his separate judgment referred to the case of Prabhakaran Vijaya Kumar & Ors. In the above case, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Sarla Verma vs. DTC, reported in (2009) 6 SCC 121 to determine the quantum of compensation. Justice Radhakrishnan in his separate judgment referred to the case of Prabhakaran Vijaya Kumar & Ors. (Supra) and held that the principle of strict liability covers public utilities like railways, electricity distribution companies, public corporations etc., which may be social utility undertakings not working for private profit. In such a case, the highest degree of care is expected from private and public bodies especially when the conduct causes physical injury or harm to persons. 15. Coming to the facts of the present case, it is not disputed that the motor boat belonged to the Inland Water Transport Department, Govt. of Assam and that the appellant's son was a passenger of that boat. The accident which occurred and which resulted in severe injuries to the appellant's son leading to amputation of his right hand at the shoulder joint is also not disputed. Appellant's son fell down from the boat into the water of the Barak river and was sucked by the rotating propeller of the motor boat which resulted in his injuries. The nature of the services provided by the inland Water Transport Department i.e., plying of motor boats on rivers, is such that there is inherent danger to the passengers travelling on such boats. Therefore, highest degree of care and caution is required to be taken by the Department for safety of the passengers. Thus, applying the above principle of no fault liability, the Inland Water Transport Department is liable to compensate the appellant's son for the injuries suffered by him while travelling as a passenger of a motor boat belonging to the Department. Appellant's son was 16 years of age at the time of accident. Without entering into a mathematical exercise to arrive at the exact quantum of compensation, which in any case is not possible while awarding compensation in a proceeding under Article 226 of the Constitution of India, Court is of the view that it would be just and proper, if the appellant's son, namely, Sri Bidyut Singha is awarded a lump sum compensation of Rs. 2 (two) lakhs while leaving it open to him to seek higher compensation under private law remedy, if so advised, in accordance with law. 2 (two) lakhs while leaving it open to him to seek higher compensation under private law remedy, if so advised, in accordance with law. Thus, having regard to the discussions made above, respondent No. 2 i.e., Director, Inland Water Transport, Government of Assam, Ulubari is directed to pay compensation of Rs. 2 (two) lakhs to the son of the appellant, Sri Bidyut Singha, within a period of three (3) months from the date of receipt of a certified copy of this order. Accordingly, order of the learned Single Judge dated 28.01.2014 is set aside. Writ appeal as well the connected writ petition are allowed. However, there shall be no order as to costs. Petition allowed