Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ashraf Rather vs Union Of India And Others on 12 October, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
OWP no.1947/2015
MP no.01/2016
Date of order: 12.10.2017 Mohammad Ashraf Rather Versus Union of India and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing Counsel:
For Petitioner(s): Mr G. N. Shaheen, Advocate For Respondent(s):Mr B. A. Dar, Sr.AAG Mr Tahir Majid Shamsi, ASGI Whether approved for reporting : Yes/No.
1. Petitioner claims to be indigent person as he belongs to weaker section of society and has no source of livelihood. He was doing job of labourer. He maintains that he was engaged as labourer by Officer Commanding, 15 Corps - respondent no.2 herein, through a contractor and his services kept at the disposal of respondent no.2. While working as labourer and rendering his services under the employment and in the premises under the occupation and control of respondent no.2 at Badami Bagh, Srinagar, respondent no.2 deployed him for loading of gravel/stone in trunks and for dumping the same somewhere in and around Badami Bagh, Cantonment Board, Srinagar. Petitioner, it is next contended, while loading said material in the trucks arranged by respondents while doing so a bomb blast/explosion took place, as a result whereof petitioner sustained multiple injuries and result of which petitioner sustained number of grievous injuries. He was treated in Army Hospital, where his both arms were amputated as they were OWP no.1947/2015 Page 1 of 24 damaged. He also sustained injuries on his various parts of body.
Petitioner sustained complete disablement, muchless unable to function as labourer. Petitioner has in this regard placed on record copy of FIR as also Disablement Certificates. He is not in a position to earn livelihood for his family and for himself. A huge amount is also stated to have been spent on his medical treatment. It is averred that he approached respondents, particularly respondent no.2, for payment of due and adequate compensation and also for arranging artificial limbs (arms and hands) for him. But respondents did not address his grievance. Petitioner, on the strength of case set up, seeks direction to respondents to pay Rs.57,80,000/- as compensation for disability sustained by him while discharging his duties as labourer with respondents, with further direction to respondents to arrange artificial arms for petitioner or in alternative pay him for arranging artificial arms and also pay him for plastic surgery of mouth and face.
2. Reply affidavit has been filed by respondents 1&2, in which they state that the Unit was carrying out surfacing work in the Unit area that includes removal of coal dust, which was lying unused and Mohammad Ashraf Bhat, who voluntarily requested the Unit to do the surfacing work by filling earth and in the lieu he wanted to carry coal dust for his personal benefit and the entire matter was based on verbal consent from both sides. It is averred that on May 2002, petitioner came along with six other civilian labourers employed by Mr Mohammad Ashraf on a civil truck no.JK01A-8105, for loading the coal dust. The incident took place while petitioner picked up a small tin approximately six centimetres in diameter from the ground and hit it on the ground and pressed it with his hands. The container exploded and petitioner suffered injuries due to the explosion. Petitioner was without delay taken to Army Hospital at Badami Bagh Cantt., for immediate OWP no.1947/2015 Page 2 of 24 treatment on humanitarian grounds on 16th May 2002. Respondents insist that as Mr Mohammad Shafi Bhat was employer and it was his moral responsibility to provide medical cover to his employee, but the unit provided medical support so required, completely on humanitarian grounds and that petitioner was employed by Mr Mohammad Shafi Bhat and not by the Unit. Respondents' further contention is that there was no employer-employee relationship between the parties and petitioner has made a false allegation and that according to FIR filed by petitioner himself, it is a conclusive fact that petitioner was employed by a civil contractor, and therefore, respondents are not responsible to pay damage/ compensation.
3. Reply has also been filed by respondents 3 to 5. They aver therein that on 3rd May 2002, police station R. M. Bagh, Srinagar, received a written report from 15 Corps Army B.B. Cantonment, Srinagar, to the effect that interior roads of B.B. Cantonment were being renovated by a civil contractor and during manual work, an explosion took place inside cantonment, in which two labourers, including petitioner, were got injured and both were shifted to Army Hospital, for treatment. On receipt of this information, case FIR no.44/2002 under Section 7/25 I.A. Act was registered in police Station R. M. Bagh, Srinagar and investigation was set into motion. During course of investigation, it came to fore that labourers were loading garbage in a vehicle and in the meanwhile petitioner lift a small box from the garbage in his hand, which all at once went off and caused an explosion resulted injuring to two persons, which includes petitioner. During investigation nothing incriminating was detected in the explosion and finally the investigation of the case was closed on 1st November 2002.
4. Heard learned counsel for parties and considered the matter.
OWP no.1947/2015 Page 3 of 245. Admitted fact of the present case is that petitioner was working as labourer. It is not also in dispute that on 3 rd May 2002, police station R. M. Bagh, Srinagar, received a written report from respondent - 15 Corps Army B. B. Cantonment, Srinagar, that interior roads of B.B. Cantonment were being renovated by a civil contractor and during manual work, an explosion took place inside cantonment, in which two labourers, including petitioner, were got injured and both were shifted to Army Hospital, for treatment. The grievous injuries to petitioner, while working as labour for respondent 15 Corps Army B. B. Cantonment, Srinagar, has caused amputation of his both arms, made him blind by left eye and he has physical impairment of about 100%. Therefore, petitioner's right to life as enshrined in Article 21 of the Constitution has been violated. A wrong has been done and a citizen, petitioner, has been disabled for whole of his life. Fundamental rights as enshrined under the Constitution of India have, thus, been violated. But, mere declarations, such as instant one, will not provide any succour to petitioner. He needs to be compensated.
6. By the aforesaid explosion, which took place on fateful day, present petitioner has become victim thereof. He is incapacitated for whole of his life, to earn his livelihood muchless for his family. He is victim. He is certainly entitled to reparation, restitution and safeguard of his right(s). Criminal justice would look hollow if justice is not done to the victim of the crime. The subject of victimology is gaining ground. A victim of crime cannot be a forgotten man in the criminal justice system. It is he, who has suffered the most. His family is ruined, particularly in case of his being disabled for whole of his life. The shocking aspect of the matter is that petitioner is facing such a situation, which cannot be reduced in writing. His both arms are amputated. So, he is unable to attend himself not to speak of his family.
OWP no.1947/2015 Page 4 of 24Can we imagine that how he would wash his face; can he comb his hair; can he wear clothes; can he himself eat; can he attend daily routine activities? Answer is in negative. A citizen of India, while working in respondent 15 Corps, either mazdoor, labour, sweeper or scavenger, cannot be said to have no fundamental right(s) as enshrined under Constitution. It is too late in the day to suggest that in such a situation, petitioner should be relegated to ordinary civil courts to seek his tort law remedy. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen and to repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience, has been so held by the Supreme Court in D. K. Basu v. State of West Bengal1.
7. The Supreme Court cleared the ground for grant of compensation under Article 226 in situations where there was a dereliction of public duty on the part of the State. The following passages from D.K. Basu's case (supra) clarifies the legal position:
''44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public 1 (1997) 1 SCC 41 OWP no.1947/2015 Page 5 of 24 law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give such solace to the family of the victim - civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.'' ''54. Thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established in ringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defense of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish OWP no.1947/2015 Page 6 of 24 the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit.''
8. The Courts, being protectors of civil liberties of a citizen, have not only power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or heir of victim, whose fundamental rights vouched under Article 21 of the Constitution of India, are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of a citizen, notwithstanding the right of a citizen to the remedy by way of a civil suit or criminal proceedings. It is so held by the Supreme Court in Nilabati Behera v. State of Orissa2. The Supreme Court also articulated that the State, of course, has right to be indemnified by and take such an action as may be available to it against wrongdoer in accordance with law - through appropriate proceedings. Indubitably, relief in exercise of power under Article 32 or 226 would be granted 2 (1993) 2 SCC 746 OWP no.1947/2015 Page 7 of 24 only once it is established that there has been an infringement of fundamental rights of a citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of the Supreme Court in the line of cases starting with Rudul Sah v. State of Bihar3, granted monetary relief to the victims for deprivation of their fundamental rights in the proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the Courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so, the Courts take into account not only interest of applicant and respondent but also interests of public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where fundamental right of a citizen under Article 21 is concerned. Law is, as further opined by the Supreme Court, in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.
9. The Supreme Court in M.S. Grewal v. Deep Chand Sood4, while discussing the current position of law has said that currently judicial 3 (1983) 4 SCC 141 4 AIR 2001 SC 3660 OWP no.1947/2015 Page 8 of 24 attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affectation 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's case (supra) has not only dealt with the issue in a manner apposite to the social need of the country but it 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.
10.The judicial power of this Country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age; it is so said by the Supreme Court in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.5, The Supreme Court observed that access to court is an important right vested in every citizen, which implies existence of power of the Court in rendition of justice according to law. Where statute is silent and judicial intervention is required, the Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. It further observed that the public law demand, as distinct from the private law tort remedy, is that crime victims be given compensation even in ''no-fault'' situations 5 1993 Supp (2) SCC 433 OWP no.1947/2015 Page 9 of 24 by the State and compensation cannot be limited to cases of police torture or custodial deaths. It must extend to riot victims and victims of terror, indeed, it must ultimately cover all victims of crime and all criminal injuries. Legislation is lacking in this field. But, that should not deter High Courts, which are courts of unlimited and plenary jurisdiction, from intervening and redressing grievances according to ''principles of justice, equity and good conscience''. Not to intervene would amount to shirking the responsibilities, which High Courts are expected to shoulder. So, compensation is payable to breach of the constitutional guarantee of Article 21 that "no person shall be deprived of his life, except according to procedure established by law".
11.The liability of the State to compensate victims of lawlessness by its agents and employees is well settled. The Supreme Court has consistently rejected the defence of sovereign immunity as creating an exception when violations of fundamental rights are committed by the State. [See: Khatri (IV) v. State of Bihar6; Saheli v. Commissioner of Police, Delhi7; Nilabati Behera (supra); DK Basu (supra) ; State of Andhra Pradesh v. Challa Ramkrishna8]. It is also well settled that in matters involving violation of fundamental rights by law enforcement officials, the strict liability principle will apply and the State must pay monetary compensation to the victims of such violence as a public law remedy under Articles 32 or 226. This remedy is in addition to any other private law remedy the victims or their dependents may have.
12.In Nilabati Behera's case (supra), while rejecting the plea of sovereign immunity, the Supreme Court observed:
6(1981) 2 SCC 493 7 (1990) 1 SCC 422 8 (2000) 5 SCC 712 OWP no.1947/2015 Page 10 of 24 "16. In this context, it is sufficient to say that the decision of this Court in Kasturilal v State of UP AIR 1965 SC 1039 upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation."
13.In concurring opinion, the special function of the public law remedy was explained as under:
"The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action OWP no.1947/2015 Page 11 of 24 based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.
37. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. ... In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned."
14.The Supreme Court in Chairman Railway Board v. Chandrima Das9, while negativing the plea of the Railways that it could not be held vicariously liable for acts of its employees, held that "if any of such employees commits an act of tort, the Union Government, of which they are employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees". The redundancy of the sovereign immunity doctrine was explained as under: (SCC, p. 485) 9 (2000) 2 SCC 465 OWP no.1947/2015 Page 12 of 24 "41. The theory of Sovereign power which was propounded in Kasturi Lal's case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Govt. in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of Sovereign powers. The functions of the State not only relate to the defence of the country or the administration of Justice, but they extend to many other spheres as, for example education, commercial, social, economic, political and even marital. These activities cannot be said to be related to Sovereign power."
15.In State of Andhra Pradesh v. Challa Ramkrishna Reddy (supra) the Supreme Court upheld the High Court of Andhra Pradesh's decision granting compensation to family members of an under-trial, who got killed in an attack targeting him in Koilkuntla jail. It observed:
"Moreover, these decisions, as for example Nilabti Behera v. State of Orissa, in Re: Death of Sawinder Singh Grower [(1995) Supp (4) SCC 450], and D.K. Basu v. State of West Bengal, would indicate that so far as Fundamental Rights and human rights or human dignity are concerned, the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortuous action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail."
16.Monetary compensation for violation of fundamental rights by the State has been consistently awarded by the Supreme Court to the victims and their relatives. Few decisions, amongst them, include Rudul Sah v. State of Bihar (supra); Bhim Singh v. State of J&K10; Peoples' Union for Democratic Rights v. Police Commissioner, Delhi11; Mrs Sudha Rasheed v. Union of India12; Inder Singh v. State of Punjab13; Malkiat Singh v. State of UP14; Ajab Singh v.
10(1985) 4 SCC 677 11 (1989) 4 SCC 730 12 1995 (1) SCALE 77 13 (1995) 3 SCC 702 14 (1998) 9 SCC 351 OWP no.1947/2015 Page 13 of 24 State of Uttar Pradesh15; and Munshi Singh Gautam v. State of MP16.
17.Petitioner, in present case, claims compensation amount of Rs.57,80,000.00. Learned counsel for petitioner, for bolstering claim for such compensatory damages, while arguing the matter, has taken this Court to the facet of the matter that petitioner, when incident took place, was 20 years and he was then earning Rs.4000/- per month. Since the date of incident, as fervidly asserted by counsel, petitioner has not earned a single rupee and has spent more than Rs.5.00 lacs on his medical treatment. His further argument is that had petitioner not sustained disablement, he could have earned more than Rs.15,000/- per month and he could have earned upto the age of 75 years. Therefore, petitioner, as strenuously claimed by counsel, has lost an earning of Rs.75.00 Lacs due to the aforesaid incident, which respondents are liable to pay. I am anxious that the compensation amount, as projected by petitioner, cannot be computed in this manner because of several reasons to be discussed herein after. Petitioner would be eligible to receive standard compensation for fatal injuries caused to him. On top of this, petitioner is dependable for whole of his life, in that, he cannot now earn his livelihood, therefore, he would be entitled to receive additional compensation on account of loss of earnings. It may not be out of place to mention that there is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable; fairness being gauged by earlier decisions; but the award must also of necessity, be arbitrary or 15 (2000) 3 SCC 521 16 (2005) 9 SCC 631 OWP no.1947/2015 Page 14 of 24 conventional. No money can provide true restitution. Money can provide for proper care: this is the reason that the paramount concern of the Courts when awarding damages for personal injuries, should be to assure that there will be adequate future care. It is so said by Dickson J in Andrews v. Grand and Toy Alberta Limited17. However, if the principle of paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses. In particular, this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims.
18.The compensation for non-pecuniary losses is what is otherwise termed as general damages or as the ''conventional sum'' or ''conventional amount''. In a well-known case of Ward v. James18, comprising eminent jurists, Lord Denning M.R., Sellers, Pearson, Davies and Diplock L. JJ., it was said:
''Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well- nigh insoluble. They are being asked to calculate the 17 (1978) 83 DLR (3d) 452 18 (1965) 2 W.L.R. 455 : (1965) 1 All E.R. 563 OWP no.1947/2015 Page 15 of 24 incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money.''
19.The above quoted passage with approval was cited by the Supreme Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd19. A portion qua non-pecuniary loss, in the said case, and the pattern and set of conventional principles evolved, has also been extracted by the Supreme court, from Halsbury's Laws of England, 4th Edition, Volume 12, at page 466, which is:
''Non-pecuniary loss: the pattern. - Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award."
20.In the instant case, indisputably violation of Constitutional right of petitioner stands clearly established by the Reply filed by respondents. Thus, it is imperative for this Court, approached under Article 226 of the Constitution, to provide compensation as a public law remedy for the constitutional tort committed. To recall the observations of the Supreme Court in D K Basu's case (supra):
"The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim -- civil action for 19 1995 SCC (1) 551 OWP no.1947/2015 Page 16 of 24 damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family."
21.Consequently, there can be, in the present case, no doubt as to liability of respondents to compensate petitioner for the incident, which took place within their limits, resulting in his permanent disablement. The question that remains to be determined is of quantum of compensation. Again in D. K. Basu's case, the Supreme Court pointed out that "In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element."
22.A claim in public law for compensation for contravention of human rights and fundamental freedoms, protection whereof is vouched in the Constitution, is an acknowledged remedy for enforcement and protection of such rights and such a claim is based on strict liability made, by resorting to a constitutional remedy provided for enforcement of a fundamental right. The Supreme Court in Nilabati Behera's case (supra), has held:
"17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in OWP no.1947/2015 Page 17 of 24 the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a OWP no.1947/2015 Page 18 of 24 court of competent jurisdiction or/and persecute the offender under the penal law."
23.In the event fundamental rights enshrined under Article 21 of the Constitution of India are infringed, grant of compensation against the State is an appropriate and effective remedy, apart from beseeching additional compensation in a civil court or compensation vouchsafed by criminal court under Code of Criminal Procedure. Fundamental rights of petitioner, in the present case, have been contravened while he was working in the cantonment of respondents. The Supreme Court qua compensation to be awarded against the State in Sube Singh v. State of Haryana and ors.20, has held in the following lines:
"38. It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure."
24.Petitioner, in present case, had a right to life under Article 21 of the Constitution of India. Healthy and happy life has been curtailed by negligence of respondents causing him serious and painful injuries. He has to live with a trauma and shall remain handicap throughout life. Petitioner has to go through inconvenience, hardship, discomfort, disappointment, frustration and mental stress throughout his life. The Hon'ble Supreme Court in R.D. Hattangadi's case (supra), has laid 20 (2006) 3 SCC 178 OWP no.1947/2015 Page 19 of 24 down the following principles to determine compensation for disability:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
25.The Supreme Court in Rekha Jain vrs. National Insurance Company Limited and ors.21, have reiterated the following principles for granting compensation for personal injury:
"25. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, distinguished the above two aspects thus:
"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff 21 (2013) 8 SCC 389 OWP no.1947/2015 Page 20 of 24 sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life.
When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income".
26. McGregor on Damages (14th Edition) at paragraph no. 1157, referring to the heads of damages in personal injury actions, states as under:
"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life".
Besides, the Court is well-advised to remember that the measures of damages in all these cases 'should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases."
26.In R. Venkatesh v. P. Saravanan & Ors.22, the High Court of Karnataka, while dealing with personal injury case, in which claimant sustained certain crushing injuries due to which his left lower limb was amputated, has held that in terms of functional disability, the disability sustained by claimant is total and 100%, though only claimant's left lower limb was amputated. The Court held:
"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work.22
2001(1) Kar. L.J. 411 OWP no.1947/2015 Page 21 of 24 As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent".
27.Lord Reid in Baker v. Willoughby23, has said:
"A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned."
44. The aforesaid principles laid down by this Court, Appeal Cases, House of Lords and leading authors and experts referred to supra, whose opinions have been extracted above, with all fours, are applicable to the fact situation for awarding just and reasonable compensation in favour of the appellant as she had sustained grievous injuries on her face and other parts of the body which is assessed at 30% permanent disablement by competent doctors."
28.In the instant case, petitioner has been crippled off throughout his life. His both arms have been amputated. He is blind by one eye. He will not be able to lead and enjoy those comforts and amenities of life, which depend on freedom of movement. Compensation of Rs.60.00 Lacs in the case of electrocution, awarded by the learned Single Judge of Punjab and Haryana High Court, has even been upheld by the Supreme Court in Raman v. Uttar Haryana Bijli Vitran Nigam Ltd. & ors.24, as being just and proper.
29.Award of compensation is not restricted to what is claimed for, given the case set up and evidence brought on record. The only embargo in awarding such compensation is that it should be "just" compensation, 23 (1969) 3 All ER 1528 at p. 1532 24 2014 (15) SCC 1 OWP no.1947/2015 Page 22 of 24 that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. [See: Nagappa v. Gurudayal Singh25; Laxman @ Laxaman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd. & anr26]. Not only in these cases, but in Ibrahim v. Raju & ors27, the Supreme Court awarded double the compensation sought for by complainant after discussion of host of previous judgments.
30.Taking into account principles laid down in judgments cited hereinabove, and given 100% disability of petitioner, who was 20 years old at the time of aforementioned incident, which took place on 2nd May 2002, the compensation is to be calculated keeping all those facets of the matter into account. Petitioner claims compensation of Rs.57,80,000.00. He claims to have been earning minimum of Rs.4000/- per month prior to aforesaid incident and more than Rs.5.00 lacs spent on his medical treatment. Further claim is that petitioner could have earned more than Rs.15,000/- per month, had he not met with aforesaid accident and he could have earned upto the age of 75 years. All in all, petitioner states that he has lost an earning of Rs.75.00 Lacs, due to the aforesaid incident, which respondents are liable to pay.
31.Going by contentions in writ petition on hand, petitioner had been earning Rs.4000/- per month, way back in the year 2002. His life expectancy can safely be taken as per the prevailing trends to 70 years. He would have safely worked for 40 years. The appropriate multiplier, in the present case, would be 25. There is no possibility of marriage of the petitioner, therefore, no standard deductions can be made from the income. The income in entirety has to be taken into consideration. The minimum annual income of petitioner, by being 25 AIR 2003 SC 674 26 2012 AIR SCW 361 27 AIR 2012 SC 534 OWP no.1947/2015 Page 23 of 24 conservative, would be Rs.48,000/- per annum, which is required to be multiplied by 25. The total future loss of income of petitioner, therefore, comes to (Rs.4,000 x 12 x 25 = 12,00,000/-) i.e. Rupees Twelve Lacs.
32.Writ petition is disposed of and in order to secure financial amenities for future of petitioner, respondents 1&2 shall pay compensation of Rs.12,00,000/- ( Rupees twelve lacs ) to petitioner, along with interest at the rate of 6% per annum from the date of filing of instant writ petition.
33.Let respondents 1&2 deposit the entire amount, as has been awarded by this Court, within three months from the date of receipt of the copy of this judgment before the Registry of this Court, who shall subsequently release the same in favour of petitioner on proper identification by his counsel and in presence of his parents as well. Disposed of.
(Tashi Rabstan) Judge Srinagar 12 October, 2017 Madan I pronounce this judgement under Rule 138(3) of J&K High Court Rules, 1999.
( Sanjeev Kumar ) Judge Srinagar 12 October 2017 Madan OWP no.1947/2015 Page 24 of 24