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2019 DIGILAW 175 (ORI)

Sanju Lenka v. State of Odisha

2019-03-01

JATINDRA PRASAD DAS, S.K.MISHRA

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JUDGMENT : Jatindra Prasad Das, J. 1. This intra Court appeal is directed against the judgment dated 23.08.2017 passed by the learned Single Judge in O.J.C. No. 10733 of 1998. The present appellants as wife, children and parents of late Sashi Bhusan Lenka filed the writ application against the opposite parties-respondents claiming compensation of Rs. 5,40,000/- (rupees five lakhs forty thousand) with interest to be paid by the respondents due to tragic death of Sashi Bhusan Lenka alleging inaction and negligence on the part of the opposite parties-respondents. It was their submission that the deceased, as usual left his house in the morning of 08.08.1997 informing his family members that after day's work, he would visit her sister's house in village Korei and thereafter would return home. He did not return. On the next day morning, the family members got an information that he has died meeting with an accident. The family members rushed to the spot and found the dead body with multiple injuries and the motorcycle used by the deceased lying nearby in a damaged condition. It was noticed that about 30 feet of the road leading to village Korei has been totally washed out due to heavy rain and the culvert was totally damaged. The position of the road was such that the damaged culvert was not visible to the approach road and any motorcyclist going even in the slowest speed would fall in the ditch, what had happened with the deceased. The petitioners alleged that even though, the road was so badly and dangerously damaged, still the opposite parties specifically, the Executive Engineer and S.D.O. of Rural Development Department, Jajpur district as well as the Block Development Officer of Korei Block, who were in-charge of maintaining the road in question had not taken any step for repair of the road nor they had put any signal or guard on the approaching roads to close the vehicular traffic on the said road. They alleged that due to such negligence on the part of the opposite parties, the deceased met with the fateful accident in the night of 08.08.1997. It was further submitted that the petitioner No. 1, namely, Sanju Lenka, wife of the deceased repeatedly approached the authorities for compensation but it was not paid heed to, for which they approached this Court for efficacious remedy claiming compensation as stated earlier. It was further submitted that the petitioner No. 1, namely, Sanju Lenka, wife of the deceased repeatedly approached the authorities for compensation but it was not paid heed to, for which they approached this Court for efficacious remedy claiming compensation as stated earlier. It was also pleaded inter alia on behalf of the petitioners that the deceased was the sole earning member of the family and being a energetic young man of 32 years of age was carrying on business of supplying coal to different coal depots and was also the owner of a Truck using the same for transport business. It was submitted that the husband of the appellant No. 1 had an income of about Rs. 4,500/- per month and his contribution towards family member was about Rs. 3,000/- per month. 2. It was the submission of opposite parties-respondents that the said road was earlier damaged due to heavy rain and flood in the month of July, 1997 and was repaired. Again due to high flood between 03.08.1997 and 06.08.1997, the repairs washed away and there was breach of the bridge on the aforesaid road. On getting information, immediate steps were taken by the concerned authorities to repair the same. It was further submitted that in the evening of 08.08.1997, humps of about 3 feet height were constructed on either side of the bridge with proper cautionary signal showing closure of the road. They counter alleged that in the night of 08.08.1997, the victim was prevented by local passersby from going on the said road but despite the preventive measures, the victim fell into the ditch due to his own negligence. They pleaded that there was absolutely no negligence on the part of the concerned authorities in attending to the damaged road but, the victim met with unfortunate death for his own negligence and carelessness. Hence, they denied any tortuous liability on the part of the opposite parties in order to compensate the petitioners for the accidental death of the deceased. They pleaded that there was absolutely no negligence on the part of the concerned authorities in attending to the damaged road but, the victim met with unfortunate death for his own negligence and carelessness. Hence, they denied any tortuous liability on the part of the opposite parties in order to compensate the petitioners for the accidental death of the deceased. It was further contended on behalf of the opposite parties-respondents that the declaration of any negligence on the part of the opposite parties and granting any amount of compensation cannot be given by the High Court in exercising its jurisdiction under Article 226 of the Constitution of India, for the reason that unless negligence on the part of either of the parties is proved and established on evidence, it cannot be decided or determined in a writ application. 3. It was not in dispute that in the night of 08.08.1997, the husband of the petitioner No. 1 died meeting with an accident while using the 1st kilometer road to Korei, which was in damaged condition. It was also not in dispute that the petitioners had a right to claim compensation as has been observed by the learned Single Judge. But, discussing the jurisdiction of this Court while exercising power under Article 226 of the Constitution of India, learned Single Judge observed that as per submission of the parties some negligence was also attributed towards the victim, since statements of some local people by way of affidavits were brought on record, which stated that while going to Korei the victim was advised to take the road from other side but while returning in the night, he seemed to have been drunk and coming on the damaged road met with an accident. Thus, it was observed by the learned Single Judge that the award of compensation or the negligence is to be assessed as to whether it is attributable to the opposite parties or the deceased, which depends upon the factual appreciation of the fact which cannot be decided under Article 226 of the Constitution India. On such observation relying upon a decision of the Hon'ble Apex Court as reported in Chairman Grid Corporation of Orissa Ltd. and Others vs. Smt. Sukamani Das and Another, (1999) AIR SC 3412. On such observation relying upon a decision of the Hon'ble Apex Court as reported in Chairman Grid Corporation of Orissa Ltd. and Others vs. Smt. Sukamani Das and Another, (1999) AIR SC 3412. learned Single Judge held that dispute relating to negligence can only be decided by leading evidences and after appreciation of factual aspects of the matter and accordingly, dismissed the writ petition. 4. It has been submitted in the appeal on behalf of the unsuccessful petitioner-appellants that High Court is not deprived of its jurisdiction to entertain petition under Article 226 of the Constitution of India, merely because in considering the petitioners' right to relief, questions of fact may fall to be determined as has been decided in different decisions of the Hon'ble Apex Court. It has further been submitted that learned Single Judge lost sight of the applicability of the principle of res ipsa loquitur. 5. Learned counsel for the appellants in respect of such submissions relied upon two decisions rendered by the Division Bench of this Court in Nirmala Nayak and Others vs. Chairman-cum-Managing Director, Grid Corporation of Orissa Ltd. and Another, (2005) 1 OLR 389 , Pravati Palai vs. Chairman-cum-Managing Director, Grid Corporation of Orissa Ltd. and Another, 2006 Supp 1 OLR 1114 and also M.P. Electricity Board vs. Shail Kumar and Others, (2002) AIR SC 551. 6. It was also submitted by learned counsel for the appellants that even in a writ appeal, as the learned Single Judge is not subordinate to the Court, the Division Bench in exercise of the appellate jurisdiction can go into questions relating to issues of fact and law. In this regard, learned counsel relied upon the decision reported in Abdul Mazid Khan (dead) vs. Abdul Rasid Khan (dead) and Others, (2011) 112 CLT 689, Smt. Asha Devi vs. Dukhi Sao and Another, (1974) AIR SC 2048 and Jagabandhu Senapati and Others vs. Bhagu Senapati and Others, (1973) 1 CWR 809. 7. Learned counsel appearing on behalf of the opposite parties-respondents submitted that finding and observation of the learned Single Judge are well supported by settled principle of law and since negligence is alleged and counter alleged by both the sides, it can only be found out on proper evidence, which is not possible while considering the writ application under Article 226 of the Constitution of India. 8. 8. It was strenuously contended by learned counsel for the appellants that the learned Single Judge categorically observed in the impugned judgment that it was not in dispute that the husband of the petitioner-appellant No. 1 met with an accident on 08.08.1997 and died and that such accident took place while the petitioner was using 1st kilometer road of Korei, which was in damaged condition and that the petitioners have a right to claim compensation. It was submitted that the learned Single Judge erroneously observed that alleged negligence is required to be established on evidence, which cannot be decided in an application under Article 226 of the Constitution of India. It was submitted that negligence on the part of the opposite parties-respondents remained admitted on record, that too on the own documents of the opposite parties-respondents and hence, there is absolutely no necessity of taking of evidence in order to determine as to who was negligent. In this regard, learned counsel for the appellants took us to a letter written by the Executive Engineer R&B, Jajpur addressed to the Superintendent Engineer Central Circle Rural Works, Bhubaneswar vide Annxure-12 to the writ appeal. In the said letter, the concerned Executive Engineer, present respondent No. 3 has mentioned that due to heavy rain fall and flood, the Panikoili-Jajpur Road was submerged and he, being informed about the same, instructed the concerned Assistant Engineer and Junior Engineer to immediately proceed to the spot and to start restoration work on war footing basis. It has also been mentioned in the said letter that the bridge at 1st kilometer, i.e. the place of accident was not approachable from Dhaneswar side. In Paragraph-7 it was mentioned that in the night of 08.08.1997, he instructed to his S.D.O. and J.E. to take up the restoration work of the damaged RCC culvert, which was replaced earlier by hume pipes at the 1st kilometer, the next day since the same was not approachable from either side till 10.30 P.M. that night. Thus, it was submitted that on their own documents it remained admitted by the opposite parties that the portion of the damaged road was not approachable from either side for which it could not be repaired in the night of 08.08.1997. Thus, it was submitted that on their own documents it remained admitted by the opposite parties that the portion of the damaged road was not approachable from either side for which it could not be repaired in the night of 08.08.1997. In the said night, the husband of the appellant No. 1 met with an accident at the spot and hence, it cannot be believed that the opposite parities had taken any cautionary measure to prevent the persons from using the said road. 9. As mentioned herein before, the facts are not disputed. There was a breach of public road and the victim during the night of 08.08.1997 met with an accident falling into the ditch at the said spot and died. The sole contention that has been advanced on behalf of the opposite parties-respondents is that preventive measures had been taken to caution the vehicular traffic not to use the damaged road but the deceased met with the accident due to his negligence and carelessness. In this respect, it would be profitable to refer an observation of the Hon'ble Apex Court reported in M.P. Electricity Board vs. Shail Kumar and Others, (2002) AIR SC 551, as follows:- "Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability." It differs from the liability, which arises on account of the negligence, or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm would be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions." The Hon'ble Apex Court in the case of M.P. Electricity Board vs. Shail Kumar and Others, (supra) relying upon the decision of Privy Council observed that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind was held to be not a distinctable defence. 10. In view of the aforesaid settled position of law, we are of the considered view that the principle of res ipsa loquitur squarely applies to the present case. It was further submitted by learned counsel for the appellants that some statements were subsequently manufactured by the opposite parties-respondents to show that the victim was drunk while driving and did not obey cautionary words of the local people, only to escape the liability. Thus, we find no serious question of fact as an issue to be decided so as to require material evidences in order to grant compensation to the petitioners-appellants. 11. As regards the maintainability of the writ application, in the present case, reference can be made to the observations of the Hon'ble Apex Court in the case of M.S. Grewal vs. Deep Chand Sood, (2001) 8 SCC 151 : "This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording 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. In this context, reference may be made to two decisions of this Court the first in line is the decision of Nilabati Behera vs. State of Orissa, (1993) AIR SC 1960 wherein this Court relying upon the decision in Rudal Sah vs. State of Bihar, (1983) AIR SC 1086 decried the illegality and impropriety in awarding compensation in a proceeding in which the Court's power under Articles 32 and 226 of the Constitution stands involved and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State's obligation, unless of course the State can also be termed to be joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto." We also feel it appropriate to quote an observation of Madhya Pradesh High Court in the case of Ramesh Sing Pawar vs. Madhya Pradesh Electricity Board and Others, (2005) AIR MP 2: "Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudentia system - affection of the people has been taken note of rather seriously and the judicial concern thus stands on a, footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the Civil Court's obligation to award damages. As a matter of fact, the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the leaned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach. Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." 12. Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." 12. The afore-quoted observation of the Hon'ble Apex Court as well as High Courts show the paradigm shift that has taken place in the judicial approach adopted by the courts to provide speedy and efficacious remedy to the needy in distress than to push him to face the traditional technicalities and procedures of Civil Law Forum. In the instant case, even if it is conceded for the sake of argument that the opposite parties-respondents had constructed some humps and had put some cautionary signs, still in our opinion those were not sufficient to escape the liability. Since the road was totally washed out making it absolutely unusable being added with a deep ditch, the road should have been totally closed prohibiting any vehicular traffic, since the humps are created only to slow down and not to stop. Hence, we are inclined to hold that the appellants are entitled for compensation to be paid by the State authorities as respondents and their prayer for relief can be granted by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, thereby setting aside the finding of the learned Single Judge. 13. Now coming to the quantum of compensation, the petitioners-appellants have claimed an amount of Rs. 5,40,000/- (rupees five lakhs forty thousand) with the submissions that the deceased was doing coal business and had a truck which was engaged in transport business. However, there being no specific material in support of the income of the deceased, in our opinion calculating the compensation according to the schedule of the Motor Vehicles Act treating the deceased as an unskilled labour would suffice the interest of justice. The deceased was 32 years old at the time of accident on 08.08.1997. Accordingly:- 1. Minimum wages per day for unskilled labour in the year 1997 Rs. 35/- 2. Monthly established income of the deceased Rs. 35/- x 30 = 1050/- 3. Yearly income Rs. 1050/- x 12 = Rs. 12,600/- 4. 16 multiplier is applicable to the age group of 30 to 35 in case of death Rs. 12,600/- x 16 = Rs. Minimum wages per day for unskilled labour in the year 1997 Rs. 35/- 2. Monthly established income of the deceased Rs. 35/- x 30 = 1050/- 3. Yearly income Rs. 1050/- x 12 = Rs. 12,600/- 4. 16 multiplier is applicable to the age group of 30 to 35 in case of death Rs. 12,600/- x 16 = Rs. 2,01,600/- 5. Deduction of personal expenses @ l/3rd Rs. 2,01,600/- (-) Rs. 67,200/- = Rs. 1,34,400/- 6. Future prospect @ 40% Rs. 53,760/- Loss of estate Rs. 15,000/- 7. Loss of consortium Rs. 40,000/- 8. Funeral expenses Rs. 15,000/- Rs. 2,58,160/- Rounding off the figure to Rs. 2,60,000/- (rupees two lakhs sixty thousand) in our opinion would be just and proper. 14. Accordingly, the writ appeal is allowed setting aside the impugned judgment dated 23.08.2017 passed by the learned Single Judge, in O.J.C. No. 10733 of 1998. It is directed that the appellants-petitioners be paid with a compensation amount of Rs. 2,60,000/- (rupees two lakhs sixty thousand only) along with six percent simple interest from the date of accident, i.e. 08.08.1997 till the date of payment by the State-opposite parties- respondents within a period of two months hence. 15. The writ appeal is disposed of accordingly. No order as to cost.