Allahabad High Court
U.P. State Electricity Board And Anr. vs District Magistrate And Ors. on 17 February, 1997
Equivalent citations: 1998ACJ721, AIR1998ALL1, (1997)2UPLBEC1344, AIR 1998 ALLAHABAD 1, 1998 ALL. L. J. 1, 1998 A I H C 665, 1997 (2) UPLBEC 1344, 1998 (2) ACJ 721, 1997 (3) ALL WC 1889, 1997 (30) ALL LR 664
Author: M. Katju
Bench: M. Katju
ORDER M. Katju, J.
1. Heard Shri S.K. Misra, learned counsel for the petitioners and Sri S.K. Garg for respondent Nos. 2 and 3.
2. This writ petition has been filed against the impugned award dated 26-8-1996, Annexure 6 to the writ petition passed by the Collector under Section 7(1) of the Public Liability Insurance Act, 1991 (hereinafter referred to as the " 1991 Act").
3. The Facts of the case The facts of the caste are that the respondent No. 1 and 3 arc the father and mother of one late Anil Gurang. They filed a claim petition on 10-7-1995 under Section 6(1) of the 1991 Act before the Collector. True copy of the application is Annexure-1 to the writ petition. In this application it has been alleged that the applicants are the parents and legal representatives of late Anil Gurang who was unmarried and employed in Hilton Hotel, Dehradun. Anil Gurang used to financially support his parents from his income. On 16-10-1994 Anil Gurang had gone for a wedding, and while going in the wedding procession the trolly of the band came in to contact with an electric wire which had been hanging at a low height of about 10 feet due to the negligence of the respondents in the claim petition. There was no sign or indication about this electric wire which could be seen by anyone so as to give a warning. This wire came into contact with the trolly and consequently caused the death of three workers and one member of the wedding procession (Anil Gurang) on spot. The deceased were Shafiq Ahmad, Bbrampal, Sanjay alias Sonu and Anil Singh Gurang. Three persons were also injured namley, Sudama Thapa, Ajit Sing and Yusuf, the proprietor of the Band, All these deaths and injuries were caused because the high tension wire was hanging at a height of about 10 feet. It was alleged that the respondents had been negligent since the wire had been hanging at a low height. It was further alleged that on 16-10-1995 when the electric wire came into contact with the trolly band sparks were seen coming from the trolly. A member of the band Zahid escaped injury because he was on a wooden stand and was wearing plastic shoes. Another member of the Band Awwal Hasan took some dry stick and removed the wire from the trolly. The injured and dead persons were taken to the hospital. In the post mortem of the deceased it was revealed that the deaths were due to electric shock. Anil Gurang was 24 years of age when he died. He was the sole earning member in his family and thus the support of his family has come to an end and their lives have been plunged into darkness. Jhalak Bahadur Gurang, the father of Anil Gurang, is 75 years of age and he does not get any pension etc. Anil Gurang was earning Rs. 935/- per months as an employee of the Hilton Hotel and he was likely to get promotion and increment. On the basis of these averments the claim petitioners prayed for award of compensation under the 1991 Act.
4. In reply to the claim petition an objection/ written statement was filed on behalf of the U.P. State Electricity Board, true copy of which is Annexure 2 to the writ petition. In paragraph 2, it is stated that whenever an electricity connection is required for a marriage permission is required to be obtained. No application for electricity connection for the marriage was moved, and the requisite permission was not obtained. It was denied that the electric high tension wire was at a height of 10 feet. It was also denied that the high tension wire was the cause of the accident. It was alleged that a high tension wire cannot be a loose wire. It was denied that the accident occurred due to negligence on behalf of the respondents in the claim petition. It was alleged that the claim petition was not legally maintainable under the 1991 Act as electricity was not a hazardous substance. It was alleged that electricity does not come within the definition of hazardous substance given in the Environment (Protection) Act, 1986 as electricity has no chemical or physico chemical properties. It was further alleged that the petitioners were not legal representatives of the deceased and were not authorised by the legal representatives. It was further alleged that the application was not moved in the prescribed from. It was further alleged that notice in form 2 was not given and hence the claim petition was not maintainable. It was also alleged that an F.I.R. was filed regarding the accident, and a final report has been submitted. Copies of the F.I.R. and final report are Annexures 4 and 5 to the writ petition.
5. The learned District Magistrate, Dehradun by means of the impugned award dated 26-8-1996 decreed the claim of the applicants. Aggrieved, this petition has been filed in this Court.
6. Before dealing with the arguments of the learned counsels it is necessary to deal with the Scheme of the 1991 Act.
The Scheme of the 1991 Act
7. The Public Liability Insurance Act; 1991 is till date the most important legislation on the subject of claims for accidents due to hazardous substances and is likely to be of great significance for business and industry in the years to come. Hence it is necessary to set out the object and Scheme of the enactment.
8. The Statements of Objects and Reasons of the Act reads :
"Statement of Objects and Reasons-- The growth of hazardous industries processes and operations in India has been accompanied by the growing risks from accidents, not only to the workmen employed in such undertakings, but also innocent members of the public who may be in the vicinity. Such accidents led to death and injury to human beings and other living beings and damage private and public properties. Very often, the majority of the people affected are from the economically weaker sections and suffer great hardships because of delayed relief and compensation. While workers and employees of hazardous installations are protected under separate laws, members of the public are not assured of any relief except through long legal processes. Industrial units seldom have the willingness to readily compensate the victims of accidents and the only remedy now available for the victims is to go through prolonged litigation in a Court of Law. Some units may not have the financial resources to provide even minimum relief.
2. It is felt essential, therefore, to provide for Mandatory Public Liability Insurance for installations handling hazardous substances to provide minimum relief to the victims. Such an insurance apart from safeguarding the interests of the victims of accidents would also provide cover and enable the industry to discharge its liability to settle large claims arising out of major accidents. If the objective of providing immediate relief is to be achieved the mandatory public liability insurance should be on the principle of "no fault" liability as it is limited to only relief on a limited scale. However, availability of immediate relief would not prevent the victims to go to Courts for claiming larger compensation.
3. The Bill seeks to achieve the above objectives."
9. Thus the above Act was enacted to provide for public liability insurance for providing immediate relief to the persons affected by accidents due to hazardous substances. The word 'Insurance' in the title of the Act is not to be construed in the narrow sense of insurance by Insurance Companies; it includes the concept of liability without fault (strict liability). This will be discussed later in this judgment.
10. The advent of the industrial revolution, while conferring many benefits on mankind, has also led to certain hazards which were not faced by the people living earlier e.g., the hazards of industrial accidents, pollution, etc. Although many statutes were enacted in India for protection of workers in industries e.g. the Workmens' Compensation Act, Employees Stale Insurance Act, etc. the remedy available to other members of the public for accidents due to hazardous substances was only to file a civil suit for damages, which apart from involving heavy expenditure in the form Of Court-fees, etc. takes years to decide. Realising this difficulty of the general public, the Public Liability Insurance Act 1991 was enacted by parliament for giving compensation to the persons (or their legal representatives) who suffer in accidents caused by hazardous substance.
11. The words 'hazardous substance' has been defind in Section 2(d) of the 1991 Act as follows :
"2(d) "hazardouns substances" means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986 (29 of 1986), and exceeding such quantity as may be specified, by notification, by the Central Government."
12. The above definition borrows from the words 'hazardous substance' in the Environment (Protection) Act, 1986.
13. Section 2(e) of the Environment (Protection) Act, 1986 has defined 'hazardous substance' as follows :
" "hazardous substance" means any substance or preparation which, by reasons of its Chemical or physicochcmical properties or handling, is liable to cause harm to human beings, other living creatures, plants, microorganism, property or the environment."
14. Section 3 of the Public Liability Insurance Act, 1991 states :
"3. Liability to give relief in certain cases on principle of no fault-- (1) Where death or injury to any person (other than a workmen) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage.
(2) In any claim for relief under Sub-section (1) (hereinafter referred to in this Act as claim for relief) the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person.
Explanation-- For the purposes of this Section--
(i) 'Workman' has the meaning assigned to it in the workmen's Compensation Act 1923 (8 of 1923);
(ii) 'injury' includes permanent total or permanent partial disability or sickness resulting out of an accident."
15. A perusal of Section 3(i) shows that the owner is liable to pay damages to any person (other than workmen) where death or injury has resulted from an accident. The word accident has been defined in Section 2(A) of 1991 Act as follows :
" "Accident" means an accident or incident occurring while handling any hazardous substance."
16. The word "handling" has been defined in Section 2(c) of the 1991 Act as follows :
"(c) handling", in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage transportation by vehicle, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous.
17. Owner has been defind in Section 2(g) of 1991 Act as follows :
" 'Owner' means a person who has control over handling any hazardous substance."
18. Section 3(2) incorporates the principle of strict liability regarding accidents due to hazardous substances, and this will be discussed later in this judgment.
19. Under Section 4 of the Act, the owner has to take out one or more insurance policies providing for contracts of insurance whereby he is insured against liability to give relief under Sub-section (1) of Section 3.
20. Under Section 5 of the 1991 Act, whenever it comes to the notice of the Collector that an accident has occurred at any place within his jurisdiction, he shall verify the occurrence of such accident and cause publicity to be given in such manner as he deems fit for inviting applications under Sub-section (1) of Section 6. An application for relief is given under Section 6(1) which states :
"6. Application for claim for relief-- (1) An application for claim for relief may be made--
(a) by the person who has sustained the injury,
(b) by the owner of the property to which the damage has been caused;
(c) where death the resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be :
Provided that where all the legal representatives of the deceased have not joined in any such application for relief, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application."
21. Section 7(1) of the 1991 Act states as follows :
"7. Award of relief-- (1) On receipt of an application under Sub-section (1) of Section 6, the Collector shall, after giving notice of the application to the Owner and after giving the parties an opportunity of being heard, held an inquiry into the claim or, each of the claims, and may be an award determining the amount of relief which appears to him to be just and specifying the person or persons to whom such amount of relief shall be paid."
21. Section 8 of the 1991 Act states that the relief under Section 3(1) shall be in addition to the right to claim compensation under any other law.
23. Having examined the above provisions we may now deal with the arguments of learned counsel for petitioners.
24. Is Electricity A. Hazardous Substance? The main argument of learned counsel for the petitioner is that electricity is not a hazardous substance as defined under the Act. As can be noted from a perusal of Section 2(d), the definition of "hazardous substance" in the 1991 Act has borrowed the definition under the Environment (Protection) Act 1986 but has also added the words" and exceeding such quantity as may be notified by the Central Government."
25. We have, therefore, to firstly examine the definition of "hazardous substance" in Section 2(c) of Environment (Protection) Act, 1986.
To be a hazardous substance under Section 2(e) of the Environment (protection) Act 1986, there are two requirements; firstly, that it should be a 'substance', and, secondly, that it should be 'hazardous'. The word 'hazardous' has been defined in Chambers English Dictionary to mean 'perilous' or 'dangerous'. There can hardly be any doubt that electricity is 'hazardous' since it can injure or even kill people if not properly handled. Hence the main question is whether electricity is a 'substance'.
26. Chambers English Dictionary has defined 'substance' to mean "that in which qualities or attributes exist, the existence to which qualities belong; that which constitutes anything what it is the principal part; subject-matter; body; matter; kind of matter, esp. One of definite chemical nature; amount, wealth, property; solidty; body; solid; worth-foundation, ground."
27. To examine whether electricity can be called a 'substances' we have to first understand the nature of electricity. Electricity is simply a flow of free electrons in a particular direction at a particular moment. This flow can be in a wire, or even in the atmosphare e.g. in lighting.
28. It is wall known in modern physics that matter consists of atoms, which were earlier regarded as indivisible particles according to Dalton's theory. However, the British Scientist J.J. Thomson established in 1897 that in fact atoms consist of smaller particles, and one of such smaller particles are electrons. The basic concept of the atomic model was subsequently propounded by Rutherford in 1911 who established that atoms consist of a heavy nucleus (consisting of protons, neutrons, etc.) with electrons orbiting it' (analogous to the planets orbiting the sun). These electrons contain negative electrical charges, whereas the protons, which are part of the nucleus contain positive electricity. When some electrons are removed from their orbits they become free electrons, and when these free electrons flow a particular direction they form an electric current.
29. An electron is a particle with a negative electric charge of magnitude 0.1602 x 10-18 coulombs. The mass of an electron is 0.9108 x 10-30 kg. which is 1/1837 of the mass of the hydrogen atom. An electron is very small. The radious of the electron has not been determined exactly, but it is known to be for less than 1 x 10-15 m.
30. In 1925 it was discovered that an electron spins about an axis and that it has a magnetic moment.
31. Thus it is clearly established by modern physics that an electron is a very small particle of matter with a negative electrical charge and certain other properties. An electron is thus a material particle, and electricity is the flow of these small material particles in a particular direction. This flow is consequently a flow of matter, and the flow has physico-chemical properties e.g. when passed through water, it separates the hyderogen from the Oxygen atoms (electrolysis). We my not be able to see this flow, but we can feel it because if we touch a naked five wire it gives an electric shock. Hence it is substance as defined in Chambers English Dictionary.
32. Learned counsel for petitioners submitted that electrons are nothing but waves and-hence they cannot be conceived of as pieces of matter. In this connection it may be mentioned that it is true that according to the theory of quantum mechanics as propounded by De Broglie, Heisenberg, Schrodirger, etc. particles can be conceived of as waves, just as conversely according to the quantum theory waves can be conceived of as particles, (see 'Concepts of Modern physics by Arthur Beiser). Elementary particles like electrons, polons neutrons etc. can be conceived of, as waves because they exhibit certain features typical waves e.g. they undergo diffraction, interference, polarization, etc. This, however, only means that through modern science we have acquired a deeper understanding of nature and its laws, and not that matter has ceased to exist. Moreover, ordinarily electrons are regarded as material particles, unlike electro-magnetic waves which are regarded as pure energy.
33. Many things which were not regarded as a substance when our knowledge of physics was not so advanced are today regarded as a substance. Today we are fortified by our deeper knowledge of nature due to scietific advancement, and hence we have to get rid of our old notions and adopt modern ones. In my opinion, electricity is clearly a substance since electrons, which constitute electricity, are material particles having specific physico-chemical properties as indicated above.
34. Since electricity is both hazardous as well as a substance, in my opinion, it is clearly a 'hazardous substance' and I do not agree with the contention of the learned counsel for petitioner.
35. Do Hazardous Substances have to be Notified under Section 2(d)?
Learned counsel for petitioners then submitted that electricity is not one of the substances mentioned in the notification of the Central Government issued under Section 2(d) of the 1991 Act. The notification under Section 2(d) issued by the Central Government on 21-3-1992 is Annexure-3 to the writ petition, and it is submitted that since electricity is not mentioned therein hence it does not come within the definition of 'hazardous substances' under the 1991 Act.
36. I am not in agreement with the contention of the learned counsel for petitioners. The expression 'hazardous substance' in Section 2(d) of the 1991 Act can be interpreted in two ways: it can either be interpreted to mean that only those substances which are specified in the notification of the Central Government under Section 2(d) alone can be regarded as 'hazardous substance' for the purposes of the Act, or it can be interpreted to mean that all 'hazardous substances' as defined in the Environment Protection Act, 1986 are also 'hazardous substances' for the purpose of the 1991 Act with this exception that if any substance has been specified in the notification of the Central Government under Section 2(d) then that substance will be a 'hazardous substance' only if it exceeds the quantity specified in the said notification. The 1991 Act is a beneficial legislation for a social objective and hence it should be given a liberal interpretation, and if two views are possible the view in favour of the public should be preferred. According to the settled principles of interpretation, welfare or social legislation should be given a liberal and not a strict construction. In E.S.I. Corporation v. R.K. Swamy, AIR 1994SC 1154 (vide paragraph 11) it was observed by the Supreme Court that while construing welfare legislation like the E.S.I. Act and the notification issued thereunder a liberal construction should be placed on their provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified. In Regional Executive v. Fancy Food, AIR 1995 SC 1620, and in G.L. Hotels Ltd. v. Sarin, (1993) 4 SCC 363, it was observed that a definition in a welfare statute should be construed broadly and liberally in consonance with the object of the Act. In Stale of Karnataka v. Appa Balu, 1995 Supp (4) SCC 469 : (AIR 1993 SC 1126), it was observed that a purposive interpretation should be given to social legislation.
37. In Workmen of A.E.I.B. Corporation v. Management of A.E.I.B. Corporation, AIR 1986 SC 458, it was observed by the Supreme Court (at P. 461 of AIR):
"Words occurring in statutes of liberal import such as social welfare legislation and Human Rights' legislation are not to be put in proustean beds or shrunk to lilipution dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its mis-application must be recognised and reduced. Judges ought to be more concerned with the 'colour' the content and the 'context' of such statutes. (We have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds, 1971 (3) ALI ER 237). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, we had occasion to say, "Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad intepretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."
38. Similarly in Stale of M. P. v. Galla Tilhan Vyapari Sangh, (1977) 1 SCC 657 : (AIR 1977 SC 2208) the Supreme Court observed that an act of social legislation should be liberally construed so as to advance the object of the Act and fulfil the aims to be achieved thereby. The same view has been taken by the Supreme Court in Sudhoo v. Haji Lal Mohd. Biri Works, AIR 1990 SC 1971, and in Hindustan Lever Ltd. v. Ashok Vishnu Kate, (1995) 6 SCC 326 : (AIR 1996 SC 285).
39. In Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, the Supreme Court observed that the provisions of the Act have to be construed in favour of the consumer to achieve the purpose of the enactment as it is a social benefit oriented legislation.
40. In my opinion if the intention of parliament was that only notified substances should be regarded as hazardous substances then Section 2(d) would have been worded as follows :
"hazardous substance means any substance or preparation which is defined as a hazardous substance under the Environment (Protection) Act, 1986 and is also specified in a notification issued by the Central Government."
41. The fact that it is not worded as above shows that that was not the intention of parliament.
42. Hence in my opinion 'hazardous substance' as defined in Section 2(d) of the 1991 Act is not to be confined to a substance specified in the notification issued by the Central Government, but it includes all substances which come under the definition of 'hazardous substance' under the Environment (Protection) Act, 1986, with this exception that if any such substance is also notified by the Central Government under Section 2(d) of the 1991 Act then it will be a 'hazardous substance' only if it exceeds the quantity specified in the said notification. Thus the notification issued by the Central Government under Section 2(d) of the 1991 Act can only narrow down the scope of 'hazardous substance' as defined under the Environment (Protection) Act, 1986, but substances which are not specified in the said notification will nevertheless be regarded as 'hazardous substances' under the 1991 Act if they come within the definition of 'hazardous substances' under the Environment (Protection) Act, 1986.
43. I have already stated above that electricity is a 'hazardous substance' as defined under the Environment (Protection) Act, 1986, and hence I reject the submission of learned counsel for the petitioners that it is not a hazardous substance since it has not been included in the notification dated 24-3-1992.
44. The principle of Strict Liability, Section 3(2) of the 1991 Act places a strict liability (liability without fault) in cases of such accidents due to 'hazardous substances', and it is not necessary for the claimant to plead that the death or injury was caused by a wrong or negligent act of any person.
45. The theory of strict liability for hazardous activities can be said to have originated from the historic judgment of Blackburn, J. in. Fletcher v. Rylands, (1866) LRI Ex 265.
46. Before this decision the accepted legal position in England was that fault, whether by an intentional act or negligence, was the basis of all liability (see Salmond on 'Tort', 6th Edn P. 12) and this principle was in consonance with the then prevailing Laissez Faire Theory.
47. With the advance of industrialization the Laissez Faire Theory was gradually replaced by the theory of the Welfare State, and in the legal parlance there, was a corresponding shift from positivism to sociological jurisprudence.
48. It was realized that there are certain industrial activities which though lawful are so fraught with possibility of harm to others that the law has to treat them as allowable only on the term of insuring the public against injury (vide American Jurisprudence, 2nd Edn. Vol. 74 P. 632). As stated above, the origin of this concept of liability without fault can be traced back to Blackburn J's historic decision in Fletcher v. Rylands (supra).
49. The facts in that case were that the defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the millowner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn J. held the mill owner to be liable, on the principle that "The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." On appeal this principle of liability without fault was affirmed by the House of Lords (per Cairns, J.) but restricted to non-natural users vide (1968) LR 3 HL 330.
50. Fletcher v. Rylands in fact created a new legal principle (the principle of strict liability in the case of hazardous activities), though professing to be based on analogies drawn from existing law. The judgment is noteworthy because it is an outstanding example of a creative generalization. As Wigmore writes, this epoch making judgment owes much of its strength to 'the broad scope of the principle announced, the strength of conviction of its expounder, and the clarity of his exposition.'
51. Strict liability focuses on the nature of the defendants' activity rather than, as in negligence, the way in which it is carried on (vide 'Torts' by Michael Jones, 4th Edn. P. 247). 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 states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says "permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads (see Fleming on 'Torts', 6th Edn. P. 302).
52. Thus in cases 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.
53. The basis of the doctrine of strict liability is two fold (1) The people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate, (2) it operates as a loss distribution mechanism, the person who docs such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products (vide 'Torts' by Michael Jones 4th Edn. P. 267).
54. As pointed out by clerk and Lindsell (see 'Torts', 14th Edn.) "The fault principle has shortcomings. The very idea suggests that compensation is a form of punishment for wrong doing, which not only has the tendency to make tort overlap with criminal law, but also, and more regrettably, implies that a wrongdoer should only be answerable to the extent of his fault. This is unjust when a wholly innocent victim sustains catastrophic harm through some trivial fault, and is left virtually without compensation."
55. Many jurists applaud liability without fault as a method for imposing losses on superior risk bearers. Their argument is that one who should know that his activity, even though carefully prosecuted, may harm others, and should treat this harm as a cost of his activity. This cost item will influence pricing, and will be passed on to consumers spread so thin that no one will be seriously effected (vide Article by Prof. Clarence Morris entitled 'Hazardous Enlerprizes and Risk Bearing Capacity' published in Yale Law Journal, 1952 P. 1172.
56. The Rule in Rylands v. Flelcher (1868 LR 3 Ex 330) was subsequently interpreted to cover a variety of things 'likely to do mischief' on escape, irrespective of whether they were dangerous per se e.g. water, electricity, explosions, oil, vibralious, noxious fumes, colliery spoil, poisonous vegetation, a flagpole, etc. (vide 'Winfield and Jolowicz on 'Tort', 13th Edn. P. 425). Since the present case relates to electricity, reference may be made in particular to cases relating to injury by electricity. These are: National Telephone Co. v. Baker, (1893) 2 Ch 186, Eastern and South African Telegraph Co. Ltd. v. Cape Town Tramways Co. Ltd., (1902) AC 381 ; Hillier v. Air Ministry, (1962) CLY 2084, etc. In America the rule was adapted and expressed in the following words "one who carries on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm" (vide 'Restatement of the Law of Torts, Vol. 3, P. 41).
57. Rylands v. Fletcher (1868 LR 3 Ex 330) gave English Law one of its most creative generalizations which, for a long time, booked destined to have a successful future. Yet, after a welcome start given to it by Victorian Judges the rule was progressively emasculated, until today it has almost become obsolete in England. According to Dias and Markesins (see Tort Law' 2nd Edn. P. 355) one reason for this may well be that as a generalization justifying a shift from fault to strict liability it may have come prematurely. The 19th Century had not yet fully got over laissez Faire, and it was only in the 20th Century that the concepts of social justice and social security, as integral parts of the general theory of the Welfare State, were firmly established. As already mentioned above, the rule of strict liability laid down by Blackburn J. In Rylands v. Flelcher was restricted in appeal by Lord Cairns to non-natural users, the word 'natural' meaning 'that which exists in or by nature, and is not artificial', and that was the sense in which it was used by Lord Cairns. However, later it acquired an entirely different meaning i.e. that which is ordinary and usual, even though it may be artificial' vide Rickards v. Lothian, (1913) AC 263 followed in Read v. Lyons, (1947) AC 156 (see in this expression 'non-natural' was later interpreted to mean 'abnormal', and since in an industrial society industries can certainly not be called 'abnormal' the rule in Rylands v. Fletcher was totally emasculated in these subsequent rulings. Such an interpretation, as Prof. Newark Writes, 'would have surprised Lord Cairns and astounded Blackburn, J. (see article entitled 'Non-natural User and Rylands v. Fletcher,' published in Modern Law Review, 1961, Vol. 24, P. 557).
58. In Read v. Lyons (1947 AC 156) (supra), which was a case of injury due to a shell explosion in ammunitions factory. Lord Macmillan while rejecting the claim of the plaintiff made further restrictions to the rule in Rylands v. Fletcher by holding that the rule "derives from a conception of mutual duties of neighbouring landowners", and was therefore in applicable to personal injuries. He also held that to make the defendant liable there should be escape from a place under the defendant's control and occupation to a place outside his occupation, and since the plaintiff was within the premises at the time of the accident the injury was not due to escape therefrom. In this way Read v. Lyons destroyed the very spirit of the decision in Rylands v. Fletcher by restricting its principle to the facts of that particular case, instead of seeing its underlying juristic philosophy.
59. Apart from the above, some other exceptions carved out to the rule in Rylands v. Fletcher are (1) consent of the plaintiff; (2) Common benefit; (3) Act of Stranger; (4) Act of God; (5) Statutory authority; (6) default of plaintiff, etc.
60. In Dunne v. North Western Gas Boards, (1964) 2 QB 806 Sellers L.J. asserted that the defendant's liability in Rylands v. Fletcher (1868 LR 3 HC 330) "could simply have been placed on the defendants' failure of duty to take reasonable care," and it seems a logical inference from this that the Court of Appeals considered the rule to have no useful function in modern times. As Winfield remarks, the rule in Rylands v. Fletcher, by reason of its many limitations and exceptions, today seldom forms the basis of a successful claim in the Courts (see Winfield and Jolowicz on Tort, 13th Edn. P. 442), and it seems that the rule "has hardly been taken seriously by modern English Courts", vide Att. Gen. v. Geothermal Produce (N.Z.) Ltd., (1987) 2 NZ1R 348.
61. As Winfield remarks, because of the various limitations and exceptations to the rule "we have virtually reached the position where a defendant will not be considered liable when he would not be liable according to the ordinary principles of negligence" (see Winfield on Tort, 13th Edn. P. 443).
62. This repudiation of the principle in Rylands v. Fletcher is contrary to the modem judicial philosophy of social justice. The injustice may clearly be illustrated by the case of Pearson v. North Western Gas Board, (1968) 2 All ER 669. In that case the plaintiff was seriously injured and her husband killed by an explosion of gas, which also destroyed their home. Her action in Court failed, in view of the decision in Dunne v. North Western Gas Board (1964 (2) QB 806) (supra). Thus the decline of the rule in Rylands v. Fletcher left the individual injured by the activities of industrial society without adequate protection.
63. However, we are now witnessing a swing once again in favour of the principle of strict liability. The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the crude on spilt in 1988 on to the Alaska coast line from the oil tanker Exon Valdez, and other similar incidents have shocked the conscience of people all over the world and have aroused thinkers to the dangers in industrial activities.
64. In England, the Pearson committee recommended the introduction of strict liability in a number of circumstances (though none of these recommendations have so far been implemented, with the exception of that related to defective products).
65. In India the landmark Constitution Bench decision of the Supreme Court in M.C. Mehta v. Union of India, AIR 1987 SC 1086 has gone much further than Rylands v. Fletcher in imposing strict liability. The Court observed "if the enterprize is permitted to carry on any hazardous or inherently dangerous activity for its profit the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads." The Court also observed that this strict liability is not subject to any of the exceptions to the rule in Rylands v. Fletcher (1868 LR 3 HL 330).
66. The decision in M.C. Mehta's case (supra) related to a concern working for private profit. However, in my opinion the same principle will also apply to public corporations which may be social utility undertakings not working for private profit.
67. It is true that attempts to apply the principle of Rylands v. Fletcher against public bodies have not on the whole succeeded vide Administrative Law by P. Peraig, 2nd Edn. p. 446), mainly because of the idea that a body which acts not for its own purpose but for the benefit of the community should not be liable. However, in my opinion, this idea is based on a misconception. Strict liability has no element of moral censure. It is because such public bodies benefit the community that it is unfair to leave the result of a non-negligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally.
68. In American the U. S. Supreme Court in Lairds v. Nelms, (1972) 406 US 797, following its earlier decision in Dalehite v. U.S., (1953) 346 US 15, held that the U. S. was not liable for damages from some booms caused by military planes as no negligence was shown. Schwartz regards this decision as unfortunate (see Schwartz Administrative Law, 1984). However, as regards private enterprizes the American Courts awards huge damages (often running into millions of dollars) for accidents due to hazardous activities or substances.
69. In France, the liability of the State is without fault, and the principle of strict liability applies (see C. J. Hanson "Government Liability in Tort in the English and French Legal Systerms").
70. In India, Article 38(1) of the Constitution states "The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life."
71. Thus, it is the duty of the State under our Constitution to function as a Welfare State, and look after the welfare of all its citizens.
72. In various social welfare statutes the principle of strict liability has been provided to give insurance to people against death and injuries.
73. Thus Section 3 of the Workmen's Compensation Act 1923 provides for compensation for injuries arising out of and in the course of employment, and this compensation is not for negligence on the part of the employer but is a sort of insurance to workmen against certain risks of accidents, vide AIR 1938 Nagpur 91.
74. Similarly Section 82A of the Railways Act, 1890 (corresponding to Section 124 of the 1989 Act), Section 140 of the Motor Vehicles Act, 1988, etc. in incorporate the principle of strict liability.
75. The Public Liability Insurance Act, 1991 is a step in the same direction.
76. I have discussed the principle of strict liability at great length since in my opinion that was necessary for understanding the true import of Section 3(2) of the 1991 Act. It may be noted that Section 3(2) applies the principle of strict liability shorn of the exceptions carved out to the rule in Rylands v. Fletcher (1868 LR 3 HL 330).
77. In India, while rapid Industrialization is absolutely essential for modernization of the country, we must try to avoid the evils caused by unplanned industrialization e.g. air and water pollution, discharge of harmful chemicals, explosion etc., and where industrial accidents occur prompt compensation must be paid to the victims. The 1991 Act is a great step forward taken by Parliament towards securing social justice to such victims. Since there is little, if any, case law relating to the 1991 Act, and since a lot of litigation may arise under this Act an industrialization proceeds in our country, I have tried to analyse the subject of strict liability at some length.
78. Some other arguments of Learned Counsel for the petitioner.
Having dealt with the main submissions of learned counsel for the petitioner his other submissions may also now be considered.
79. Learned counsel submitted that no notice in Form-II of the rules was given by the claimants. Form-II relates to notice, under Section 18(b) which has to be given for filing a criminal complaint. This has no relevance to the present case as it does not relate to criminal proceedings but to an award under Section 7. Similarly, the fact that a final report was filed in the criminal proceeding is irrelevant as proceedings under Section 7 are of a civil, not criminal, nature.
80. Learned counsel then submitted that the U. P. State Electricity Board is not insured under the Act. In my opinion that will pot affect the liability of the Board. Section 4, which requires owners who handle hazardous substances to take out insurance policies, is for the protection of the owners, and it cannot be said that if no insurance policy is taken out the owner will escape liability.
81. It was next argued that the Collector did not verify the occurrence of the accident nor gave publicity to it as required by Section 5. In my opinion this will also not affect the liability of the owner under the Act, otherwise the Act can be frustrated by the Collector by simply not verifying the occurrence. In my opinion even if there is not verification of the occurrence by the Collector under Section 5 it is always open to the owner in proceedings under Section 7 to deny the alleged occurrence, and then the Collector in the said proceedings has to decide on the material placed before him whether the accident did in fact occur, and the details thereof. Thus even if no verification is done under Section 5 there can be a verification in proceedings under Section 7, and in the present case that has been done as is evident from the impugned order. As regards the non-publicizing of the incident that too cannot affect the claimants rights because the purpose of publication is only to invite applications. It must be remembered that the 1991 Act is a piece of beneficial Legislation, and hence it should be construed in a manner so as to give effects to its object rather than frustrate it,
82. There is no dispute that the deceased Anil Gurung was a bachelor, and hence the claimants, being his parents, are his heirs.
83. Thus there is no infirmity in the impugned award, and the petition is hence dismissed. However, I make it clear that in view of Section 8(1) of the 1991 Act the respondents Nos. 2 and 3 may in addition to the amount awarded to them by the impugned award also institute any other proceedings, whether by means of a suit or otherwise, before the appropriate forum for claiming further relief, and if they do so the said proceeding shall be decided within six months of the institution of the same in accordance with law.