Jammu & Kashmir High Court - Srinagar Bench
Abdul Aziz Bhat And Ors vs State Of J&K And Ors on 11 September, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
LPA No. 229 of 2012
Abdul Aziz Bhat and ors
Petitioners
State of J&K and Ors.
Respondents
!Mr. B. A. Misri, Advocate
^Mr. M. A.Chashoo, AAG, Advocate
Honble Mr. Justice M. M. Kumar, Chief Justice
Honble Mr. Justice Dhiraj Singh Thakur, Judge
Date: 11/09/2013
: J U D G M E N T :
M. M. Kumar, CJ
1. The substantial question of law raised in this appeal filed under clause 12 of the Letters Patent is whether the principle of strict liability as laid down by 5-Judge Bench of Honble the Supreme Court in Charan Lal Sahu v. Union of India (1990) 1 SCC 613 and M. C. Mehta v. Union of India, (1987) 1 SCC 395, would be applicable to grant of compensation to the parents and the minor daughter of the deceased Mohammad Ashraf Bhat who was killed on account of electrocution, in the peculiar facts and circumstances of the case.
2.1 Before we embark upon examining the facts it would be appropriate to extract the principle of strict liability as accepted, endorsed and followed by Honble the Supreme Court in various judgments. 2.2 A Constitution Bench of Honble the Supreme Court in the case of M. C. Mehta (supra), after referring to the aft-quoted principles laid down by House of Lords in Rylands v. Fletcher, (1868) LR 3 HL 330, has proceeded to hold that the Court must move with the march of time and evolve principles befitting the cause of justice and that law has to grow in order to satisfy the needs of the fast changing society. It cannot afford to remain static. Keeping in view the aforesaid backdrop their Lordships opined as under:-
.................We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an 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 arsing on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. ........................ This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-`-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. (Emphasis added) A perusal of the aforesaid para in unmistakable terms shows that a hazardous or an inherently dangerous activity can be tolerated only on the condition that such an enterprise would indemnify all those who suffer on account of carrying on of such dangerous activity, regardless of whether it is carried on with reasonable and due care. Therefore, even in a case where due care and caution had been taken but on account of hazardous or inherently dangerous activities death or injuries have resulted, then indemnification is imperative. These principles have found full support from the view expressed by another Constitution Bench in Charan Lal Sahus case (supra). Again in the case of M. P. Electricity Board v. Shail Kumari and ors (2002) 2 SCC 162 these principles have been followed and applied as is evident from perusal of para 8 and 11 of the judgment which are quoted below in extenso:-
8. 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 could 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. 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.
11. The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. {2001 (2) SCC 9}. (Emphasis added) 2.3 We have prefaced this judgment by extracting the principles which are applicable to the cases of tortuous liability where the nature of activity is so hazardous or inherently dangerous then negligence is not required to be proved. In such cases indemnification is imperative irrespective of the fact that due care and caution was taken or not. 2.4 The aforesaid principle would not require any further enquiry to establish the facts with regard to negligence of the respondent-
department. However, even that question stands answered in favour of the writ petitioner-appellants by various judgments of Honble the Supreme Court. In the case of M.P. Electricity Board (supra) Honble the Supreme Court proceeded to exercise jurisdiction for the reason that questions of facts were not disputed. Similar view was taken in the case of H. S. E. B. v. Ram Nath and ors (2004) 5 SCC 793. Thus in a case where the facts are not disputed the Writ Court would be fully competent to exercise jurisdiction by awarding compensation. FACTS & ISSUES in the instant appeal:
3.1 This Letters Patent Appeal is directed against judgment and order dated 07.06.2012 rendered by the learned Single Judge of this Court, holding that the writ petition suffered from delay and laches because the cause of action had arisen on 29.05.1999 and the writ petition was filed in the year 2004. It has further been held that the claim made by the writ petitioner- appellants cannot be adjudicated in exercise of writ jurisdiction because disputed questions of facts are involved.
3.2 It is appropriate to mention that on 29.05.1999 the son of the writ petitioner- appellants nos. 1 and 2 namely Mohammad Ashraf Bhat was killed on account of electrocution and the claim made by his parents and minor daughter has been rejected by the Writ Court in the impugned judgment.
3.3 Brief facts of the case are that 11 KV Tape line of Aloosa Lehipora and main 1100 KV Aloosa feeder had developed some snag on account of damage caused to the said line by wind storm. According to the averments made in the writ petition, the son of writ petitioner-appellant nos. 1 and 2 met instantaneous death due to electric shock on 29.05.1999 and FIR no. 107/1999 had already been lodged with Police Station Bandipora (Annexure-A). A copy of the death certificate along with medical opinion, reflecting the cause of death of Mohammad Ashraf Bhat has also been placed on record (Annexure-B). The cause of death is electric shock. The respondents sent a communication no. 27/ESB dated 31.05.1999 to the Station House Officer, Police Station Bandipora. The aforesaid report is earliest in point of time which is duly authored by the Assistant Executive Engineer, Electric Sub Division Bandipora (Annexure-C). It would be appropriate to set out the whole report below as it reveals some significant facts:-
To The Station House Officer Police Station Bandipora No. 27/ESB Dt: 31/5/99 Sub:- Electrical accident at Aloosa.
Sir, As reported by concerned M. R. and Sectional Officer and self investigation regarding the accident which occurred on 29/99 at about 8 PM at Aloosa Lahipora. The 11 KV tape line of Aloosa Lehipora and main 11 KV of Aloosa feeder was under fault from 4 o Clock (PM). Due to damage to the tape line of Lahipora caused by wind storm.
The conductor was snapped and the L/m concerned started to repair the line for restoration of power, meanwhile one person namely Aashaq Ahmad Bhat S/o Aziz R/o Aloosa helped voluntarily to the concerned L/m for restoration of Power supply. The line got charged from the R/Station without clearance and the person got shock and died on spot.
Further it is reported the restoration work is being taken in hand after isolating the links, which is best known to L/m concern who is under investigation. (Emphasis added) 3.4 A specific reference has been made to this report in para 3 of the writ petition. In the objections filed by the respondents it has not been controverted nor has any comment been offered on that report. The petitioner-appellants have been pressing their claim before the respondents for compensation on account of death of their son. A copy of one such representation filed before the Chief Engineer-respondent no.2 dated 30.01.2000 followed by reminders has been placed on record (Annexure B colley). The respondents filed their objections and raised the issue of delay and urged that disputed questions of facts are involved. The learned Single Judge, accepting their contention has concluded that the writ petition would not be maintainable and dismissed the same.
4. We have heard the learned counsel for the parties at a considerable length.
5. Mr. B. A. Misri, learned counsel for the writ petitioner- appellants has argued that the writ petition was filed in the year 2004 and it cannot be said that there was any delay and laches because on 30.01.2000 the writ petitioner-appellants have already filed a representation followed by reminders. They were thus not sleeping over their rights. According to the learned counsel the concept of delay and laches would be mitigated once the petition is admitted to hearing. In support of his submissions learned counsel has placed reliance on para 23 of a Division Bench judgment of this Court rendered in the case of Bashir Ahmad Bhat v.
State of J&K and ors, 2005 (1) SLJ 1 and argued that the plea of laches cannot be entertained after admission of the writ petition. Mr. Misri has argued that it is a continuous cause of action and delay would not defeat the rights as the right of compensation on account of death of Mohammad Ashraf Bhat would arise every day. It has still further been submitted that there is no rule of law to defeat a right by virtue of delay and it is only a rule of prudence based on the proper exercise of jurisdiction by the Courts. In support of his submissions learned counsel has placed reliance on the observations made in paras 10, 11 and 12 of the judgment rendered by Honble the Supreme Court in the case of Tukaram Kana Joshi and ors v. M.I.D.C and ors, AIR 2013 SC 565.
6. Mr. M. A. Chashoo, learned AAG appearing for the respondents has, however, argued that in similar circumstances Honble the Supreme Court has declined to grant the benefit of compensation. He has placed reliance on the judgment of Honble the Supreme Court rendered in the case of SDO, Grid Corporation of Orissa ltd. V. Timudu Oram, (2005) 6 SCC 156 and submitted that it is only in case of loss caused by negligence that the Courts would be able to exercise jurisdiction under Article 226 of the Constitution to grant relief to an aggrieved party. The question whether the wire had snapped due to negligence of the power supply department, resulting in death, would be a question of fact and full opportunity is required to be given to the respondents to show that proper care and precautions were taken and yet the wire snapped due to natural calamity. The submission made is that in the present case also the death has occurred on account of natural calamity and the wire was snapped on account of wind storm.
7. Having heard the learned counsel for the parties and perusing the record, particularly the communication dated 31.05.1999 sent by the Assistant Executive Engineer, Electric Sub Division Bandipora to the Station House Officer, Police Station Bandipora, we are left with no doubt that snapping of wire might be result of natural calamity but the subsequent release of power in the snapped wire is the result of sheer negligence. According to the second para of this communication, it has been admitted that the conductor was snapped and the Lineman started repairing the line for restoration or power. The deceased Mohammad Ashraf Bhat started helping the Lineman for restoration of the power supply. Somebody negligently released the power from the Receiver Station which resulted in energising the line. This was done without seeking clearance. Consequently Mohammad Ashraf Bhat suffered shock and died on spot. It is practice of the department that restoration work is undertaken after isolating the links. How the line got charged from the Receiver Station is not clear from the record and the investigation has been in progress. The communication sent by the Assistant Executive Engineer to the Police Station, in unambiguous terms reveals that the death by electrocution had occurred not by snapping of wire on account of natural calamity but due to the reason that during repairs the power was released from the Receiver Station which resulted in energising the lines. That caused acute shock and instantaneous death of Mohammad Ashraf Bhat. Therefore, it is a case of sheer negligence not that of even natural calamity.
8. It is true that in the present case the wire was snapped on account of the wind storm yet the death had occurred on account of sudden release of the power energising the wire by the Receiver Station without clearance. It is this part of negligence which has been readily accepted in the report sent by the Assistant Executive Engineer to the Station House Officer, Police Station Bandipora on 31.05.1999. In that regard we draw support from the view expressed by Honble the Supreme Court in para 2 of the judgment rendered in the case of Parvati Devi and Ors v. Commissioner of Police, Delhi and ors, (2000) 3 SCC 754, para 10 of the judgment rendered in the case of Tamil Nadu Electricity Board v. Sumathi and ors, (2000) 4 SCC 543 and para 8 of the judgment rendered in the case of M. P. Electricity Board v. Shail Kumari and ors (2002) 2 SCC 162.
9. The discussion in paras 1 and 2 of this order even otherwise would support the claim made by the writ petitioner- appellants. The rule of strict liability does not require that a claimant is under obligation to prove negligence. On account of hazardous and dangerous nature of enterprise the liability is fastened on the defaulter even when due and necessary care has been taken. Therefore, the necessity to prove negligence is obviated. As a consequence the argument that there is a dispute on facts would also be answered because the accident is admitted and it has not been disputed that death of Mohammad Ashraf Bhat has occurred on account of electrocution. The claimants would become entitled to demand compensation in such like cases on account of violation of fundamental rights to life and liberty guaranteed under Article 21 of the Constitution. The real test to determine the delay in such like cases is that the petitioners should have approached the Writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. In the present case the question of laches would not come in because the writ petitioner- appellants made a representation on 30.01.2000 followed by reminders (Annexure B Coolly). The question of 3rd party right is not involved and it cannot be said that the writ petitioner- appellants were guilty of laches. In the case of M/S Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur and ors, (1992) 2 SCC 598 following pertinent observations have been made in para 13 which are set out below in extenso:-
13. The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches.................. (Emphasis added)
10. A perusal of the aforesaid principle laid down by their Lordships of the Supreme Court would make it patent that fundamental rights of a claimant cannot be defeated unless it is shown that 3rd party rights have come into existence. These principles have also been reiterated in a recent judgment of Honble the Supreme Court in Tukaram Kana Joshis case (supra).
11. We are also persuaded to accept that the writ petitioner- appellants has a continuous cause of action as has been observed by Honble the Supreme Court in the case of Tukaram Joshi (supra), particularly when the writ petition was admitted on 08.11.2004. The principle of nullifying the preliminary objection regarding delay after admission of the writ petition is based on the rationale that once the petition has been admitted to hearing then after a number of years the claimants cannot be told that their claim was time barred and could not be adjudicated. In the present case the cause of action is continuous one and the right of the claimants cannot be defeated on the ground that cause of action had arisen in May, 1999 and on expiry of 3 years it had come to an end. Moreover there is no rule of law that delay and laches would defeat the right of the party. These are rules of prudence which are followed in keeping with the policy of law. These rules have some exception. If a person is not able to come to the Court in a matter where cause of action is continuous one then delay will not be invoked for defeating his rights. Therefore, we do not agree with the view taken by the learned Single Judge that the claim made by the writ petitioner-appellants suffer from delay and laches particularly when they have been pursuing the matter with the departmental authorities in the year 2000 and thereafter in 2001 by sending reminders. Accordingly, the judgment and order dated 07.06.2012 passed by the learned Single Judge would not be sustainable because there would be no room for concluding that the facts have been disputed.
12. The question then is what amount of compensation should be awarded to the writ petitioner- appellants. It has come on record that the age of Mohammad Ashraf Bhat at the time of his death was 25 years. Even a labourer would not earn less than Rs. 100/- per day which was the rate at the time of his death. The monthly income would work out above Rs. 3000/- and the annual income would thus be Rs. 36,000/-. According to Second schedule appended to Section 163-A of the Motor Vehicles Act 1988, the multiplier of 17 has been permitted in case the deceased is between 20 to 25 years of age. A reasonable cut can also be imposed for expenditure on personal use, which in the present case cannot be more than 33% of the income. The total amount of compensation would thus be worked out to be Rs. 4,08,000/-. In addition funeral charges of Rs. 10,000/- may also be added. For loss of consortiums an amount of Rs. 30,000/- could also be awarded which will bring the round figure of compensation to Rs. 4,50,000/-.
11. As a sequel to the above discussion the judgment and order dated 07.06.2012 is set aside. The writ petition is allowed and respondents are directed to pay to the writ petitioner-appellants a sum of Rs. 4,50,000/- ( four lacs fifty thousand) with interest @ 6% per annum. The interest shall be calculated from the date of death till the date of payment. The amount shall be paid within a period of three months from today.
(Dhiraj Singh Thakur) (M. M. Kumar)
Judge Chief Justice
Srinagar
11.09.2013
Anil Raina, Secy