Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 632 (JK)

Suraksha Bhardwaj v. State

2018-08-14

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. On 30.01.2003, late Sunil Bhardwaj, a resident of Chandigarh (hereinafter to be referred as the deceased) was driving his car bearing registration No. CH-03-H-3882 towards Jammu. His car was intercepted and stopped by the Police personnel on the National Highway at Jatwal Check Post in Tehsil, Hira Nagar, District, Kathua. When the police personnel were checking the car and its documents, a truck bearing registration No. JK-03-1230 came from the Pathankote side and struck against the car of the deceased from behind. This accident occurred at 10.30 PM. The deceased suffered head injury and became unconscious. One police Head Constable, on duty, namely, Baldev Raj, bearing Belt No. 690 and two others, who were travelling with the deceased, also suffered injuries. The deceased was shifted to the Government Medical College, Hospital, Jammu from where he was taken to Batra Hospital, Jammu and was later shifted to Fortis Hospital, Mohali (Punjab). He, however, succumbed to his injures on 03.02.2003. 2. Petitioners, who comprise of the wife, three children and the mother of the deceased, have filed this petition under Article 226/227 of the Constitution of India read with section 103 of the State Constitution to seek a writ of mandamus directing respondents to grant compensation/damages to them and further writ of mandamus directing the respondents to take effective and proper steps for laying the Nakas at Check Posts so that no untoward accident occurs in future. 3. The case set up by the petitioners is that the accident had occurred due to negligence of the police personnel as effective and preventive measures were not taken by them, while laying the naka on the road. It is alleged by the petitioners that there was no sign board or lights indicating the laying of the naka on the road. The barricades put up on the road did not have illuminating stickers or lights or signs, which could have been seen by the drivers in the head lights of their vehicles. Illuminating jackets were not worn by the police personnel. The barricades were put up in the middle of the road. There was no speed breaker prior to the place of the naka. Illuminating jackets were not worn by the police personnel. The barricades were put up in the middle of the road. There was no speed breaker prior to the place of the naka. It is contended that it was the paramount duty of the Home Department to issue appropriate directions/instructions for taking effective measures while laying nakas by the police personnel and there was negligence on their part not to issue proper directions/instructions. No medical facility was available at the naka point and even highway patrolling ambulance was not available. 4. The occurrence and factum of death of the deceased have not been denied by the official respondents in the objections and the counter filed on their behalf, which are supported by the affidavits sworn in by the respective Station House Officer (SHO) of Police Station, Hira Nagar. In regard to the laying of the Naka, it is stated that checking at different places was necessitated due to ongoing militancy and law and order situation. The Naka on 30.01.2003 was laid by the police of Police Post, Jatwal. The police personnel deployed at the naka had taken all necessary/effective steps and preventive measures for laying the Naka and that the car in question was stopped on the extreme left side of the road leaving sufficient space available for rest of the vehicles to pass effortlessly. As to the cause of accident, the stand of the official respondents is that the accident had occurred due to the rash and negligent driving by the driver of the truck No. JK03/1230. It is stated that, in the course of the checking, the said truck being driven rashly and negligently in a very high speed by its driver, Showkat Hussain, came from the Pathankote side, the driver of the truck could not keep control on the truck and the truck hit the standing car from behind. In this accident, constable Baldev Raj No. 690 and persons travelling by the car, namely, K.K.Mathur, Sunil Bhardwaj and others were seriously injured. A case under sections 279 and 337 RPC was registered as FIR No. 22/2003 with Police Station, Hira Nagar and charge-sheet was filed in the court of law. 5. In this accident, constable Baldev Raj No. 690 and persons travelling by the car, namely, K.K.Mathur, Sunil Bhardwaj and others were seriously injured. A case under sections 279 and 337 RPC was registered as FIR No. 22/2003 with Police Station, Hira Nagar and charge-sheet was filed in the court of law. 5. Respondent No.5, who is driver of the aforesaid truck, in his reply has denied any negligence on his part and has stated that the charge-sheet filed against him has been dismissed and he has been acquitted by the court of learned Munsiff, Samba. In support, he has produced copy of the judgment rendered by the trial court in the charge sheet arising in FIR No. 22/2003 of Police Station, Hira Nagar. Learned trial court after analysis of the evidence led by the prosecution has held that prosecution miserably failed to prove the guilt of the accused beyond all shadow of doubt and gave him benefit of doubt. 6. Heard Mr. Babu Ram Chandan, learned counsel appearing on behalf of the petitioners and Mr. Raman Sharma, Dy.A.G on behalf of the respondents. 7. The baseline of the submissions made by the learned counsel for the petitioners was that the police personnel on duty had not taken proper preventive measures to avoid the possibility of any untoward incident in the course of checking and had acted negligently in stopping the vehicle of the deceased inasmuch as the vehicle was made to stop and checked at the centre of the road. Learned counsel contended also that no adequate measures, like keeping arrangement for providing first aid and deployment of ambulance at or near the place of Naka, were taken by the State Government and in the result lot of crucial time was wasted before the deceased could be taken to and provided first aid at the first available hospital, which aggravated the situation leading to death of the deceased. 8. Per contra, learned Deputy Advocate General, Mr. Raman Sharma, submitted that all precautions were taken by the police personnel at the place of Naka and the police personnel had assisted in and made all arrangements for shifting the deceased to nearest hospital from where he was referred to GMC, Jammu. 8. Per contra, learned Deputy Advocate General, Mr. Raman Sharma, submitted that all precautions were taken by the police personnel at the place of Naka and the police personnel had assisted in and made all arrangements for shifting the deceased to nearest hospital from where he was referred to GMC, Jammu. Referring to the sketch map of the site of the accident prepared by the Investigating Officer, which is produced as Annexure R-1 to the counter filed on behalf of the official respondents, learned Dy.A.G. sought to point out that the car of the deceased was stopped at the side of the road and the offending truck had hit the car from behind due to rash and negligent driving by its driver. 9. It may be pointed out that the objections filed on behalf of the respondents at the pre-admission stage on 09.07.2008, that is, five years after the accident, are supported by the affidavit sworn in by the then SHO, Police Station, Hira Nagar, Mr. Dewakar Singh and the counter filed in the year 2013 is supported by the affidavit sworn in by the then SHO, Police Station, Hira Nagar, Mr. Ashwani Kumar. The SHO, Dewakar Singh, while stating in his affidavit that he is well conversant with the facts of the case, has not stated as to what were the basis of his knowledge about the accident. SHO, Ashwani Kumar, however, has made it clear that his information in the matter was based on the available record. It is, thus, safe to presume that whatever stated in the objections or the counter filed on behalf of the respondents was based on the record maintained at Police Station, Hira Nagar in FIR No. 22/2003 (supra). 10. Since the matter is being taken up in a writ petition, the document which can be safely relied upon to ascertain as to whether there had been negligence on the part of the police personnel would be the sketch map of the site of the accident (R-1), which was prepared by the Investigation Officer on the next day of the accident. A plain look on the sketch map would show that the pucca road at the site of the accident as at that time of accident was 30 feet wide and was adjoined by considerably wide kucha road though the exact width of kucha road is not indicated. A plain look on the sketch map would show that the pucca road at the site of the accident as at that time of accident was 30 feet wide and was adjoined by considerably wide kucha road though the exact width of kucha road is not indicated. Mark ‘A’ on the sketch map has been shown as the exact point where the Car of the deceased was stopped by the police personnel and was hit by the offending truck from behind. It is clear too and would admit of no doubt that the major portion of the car as also of the offending truck was on the pucca road. Lack of proper care and caution on the part of the police personnel, who stopped the vehicle for checking, is not only evident but writ large. The car could well have been taken to and stopped wholly on the kucha road, if it was to be put to any search and its documents were to be checked. Had this being done, the very possibility of the car being hit from behind would have been ruled out even if the truck was coming at a fast speed. The allegation of negligence on the part of the truck driver in any case is liable to be rejected in view of the acquittal earned by him from the trial court. The only conclusion that can well be drawn is that there was lack of observance of proper care and caution on the part of the police personnel, which amounts to negligence that was the cause of the accident leading to death of the deceased. To stop a vehicle for checking on pucca road on a National Highway at night is an act of sheer negligence, which in this case resulted into a fatal accident. 11. The death of the deceased having taken place due to negligence on the part of the police personnel deployed at the Naka, the claimants are entitled to adequate compensation and the department/State is vicariously liable for the negligence of its employees to pay compensation to the claimants. 12. The question relating to maintainability of the writ petition in a claim for compensation need not be discussed as the said question is no more res integra in view of the Division Bench judgment of this Court in Miss Haneefa Bano v. State of J&K and ors, 1998 Sri. 12. The question relating to maintainability of the writ petition in a claim for compensation need not be discussed as the said question is no more res integra in view of the Division Bench judgment of this Court in Miss Haneefa Bano v. State of J&K and ors, 1998 Sri. LJ 56 : AIR 1998 J&K 37 . In that case, the petitioner, a girl aged 16 years, suffered electric shock by coming in contact with a loose high tension wire resulting into amputation of her right arm causing permanent disablement to her. This accident had occurred due to negligence in proper maintenance of the electric line. Learned Division Bench after survey of the authorities on the point has held that incidents of such nature have direct nexus with the infringement of fundamental or legal rights and writ for compensation can be entertained notwithstanding the fact that alternative remedy is available under ordinary civil law. Relevant paragraphs of the judgment are extracted: “14. Besides the authorities mentioned above, there are so many other authorities where the Apex Court and the High Courts have entertained the writs under Articles 32 and 226 of the Constitution respectively and have awarded compensation. This power, it appears from the judgments, has been exercised due to particular circumstances of the cases. 15. In the light of the above background, we hold that writs for compensation of like nature of cases which have been discussed above and which have direct nexus with the infringement of fundamental or legal rights can be entertained by the High court notwithstanding the fact that there being alternate remedy available under ordinary civil law, but that remedy is not so efficacious and adequate which will come to rescue of the needy victim suffering at the hands of State functionaries. Such writs, however, cannot be entertained at random. Where there is a dispute regarding the occurrence of such incidents, where there is a dispute about the negligence if committed by the State functionaries and where bundle of facts require to be brought on record, we should leave it to be settled by the Civil Courts. Such writs, however, cannot be entertained at random. Where there is a dispute regarding the occurrence of such incidents, where there is a dispute about the negligence if committed by the State functionaries and where bundle of facts require to be brought on record, we should leave it to be settled by the Civil Courts. There is no bar to the High Court to exercise the power under writ jurisdiction to entertain particular cases for compensation if the High Court feels that the victim needs an immediate reliefs to sustain himself or his children and the whole material placed before the High Court is sufficient to dispose of the petition by it.” 13. As regards the amount of compensation which may be awarded in favour of the petitioners, it needs to be pointed out that petitioners have opted to invoke the writ jurisdiction of this Court rather than to file a civil suit where the matter could have been thrashed and adjudicated upon on the basis of evidence to be led by the parties. Nonetheless, some important facts, which have either been admitted or are not denied, have been noticed and can be taken into consideration for computing the just and fair compensation to be paid to the petitioners. 14. Petitioners have produced the copies of returns (SARAL) said to have been filed by the deceased for his personal income in the assessment years 2000-2001, 2001-2002 and 2002-2003. They have been referred to in paragraph 25 of the petition and have been produced as Annexure P-5. Their correctness and genuineness has not been denied or disputed by the respondents. The status and the number of dependents, which the deceased left behind him, too has not been denied or disputed by the respondents. The factum of the age of the deceased being 43 years as at the time of accident too has not been denied. These undisputed facts can well be taken as the basis and the guiding factors for determining the multiplicand and the multiplier for computing the compensation to be paid to the petitioners by applying the multiplier method as it is generally applied in road traffic accident cases and can similarly be applied in this case too. The application of multiplier method by now is well settled by the Supreme Court in catena of judgments (See. The application of multiplier method by now is well settled by the Supreme Court in catena of judgments (See. General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, (1994) 2 SCC 176 , U.P.State Road Transport Corporation v. Trilok Chandra, (1996) 4 SCC 362 and Sarla Verma and ors. v. Delhi Transport Corporation and anr, AIR 2009 SC 3104 ). Multiplicand 15. The deceased died on 03.02.2003. His gross annual income in the relevant preceding financial year, that is, 2002-2003, as per the SARAL produced by the petitioners was Rs. 74685, say Rs.75000. The age of the deceased as at the time of the accident was 43, so 30 per cent, that is, Rs. 22500, addition is made towards future prospects and the gross income is, therefore, taken as Rs. 97500 (75000 + 22500). 16. The number of dependent family members of the deceased as at the time of accident was five so 1/5th of the income, that is, Rs. 19500, is to be deducted towards personal and living expenses of the deceased and the net income to be taken as multiplicand for the purpose of the computing the compensation, therefore, would be Rs. 78,000. Multiplier 17. Coming to the selection of multiplier, the deceased was 43 as at the time of his death. The applicable multiplier as provided in the Sarla Verma’s case to the age group of 46 to 50 is 14. The multiplier, however, should be appropriately scaled down, having regard to the uncertainties of future and lump sum payment to be made. Multiplier of 13 would be apt in this case. Compensation 18. The multiplicand being Rs.78,000 and the multiplier as 13, the compensation payable for the loss of dependency to the petitioners (claimants) would be Rs. 10,14,000 (78,000 x 13). In addition, Rs. 20,000 would be awarded as compensation for loss to estate, Rs. 1,00,000 towards treatment expenses incurred before death of the deceased and Rs.10,000 towards funeral expenses. Besides, Rs. 40,000 would be awarded to claimant No. 1 (wife of the deceased) as compensation for loss of consortium. 19. In the result, by issue of a writ of mandamus, the official respondents are directed to pay a compensation of Rs. 11,84,000 to the petitioners with 7.5% per annum interest from the date of the petition, which shall be paid jointly and severally by respondent No.1 and respondent No.2. 19. In the result, by issue of a writ of mandamus, the official respondents are directed to pay a compensation of Rs. 11,84,000 to the petitioners with 7.5% per annum interest from the date of the petition, which shall be paid jointly and severally by respondent No.1 and respondent No.2. It is further directed that 50 per cent of the compensation amount with proportionate interest shall be payable to petitioner No. 1 (wife), 10 per cent with proportionate interest shall be payable to petitioner No. 5 (mother) and rest of the amount shall be shared by petitioner Nos. 2, 3 & 4 in equal shares. 20. By a further writ of mandamus direction is issued to the official respondents to look into the matter and issue appropriate instructions/directions to avoid such like incidents in future.