" Date- 9.12.2003; Time 10.30 A.M." ----
It was a busy morning and the petitioner was sitting at the doorstep of her residence, suddenly she screamed with pain and blood started gushing from the thigh region of her right leg when something hit her with speed "--- That was the picture this court could imagine about that incident from the affidavit. She was immediately admitted in the Sted Ford Hospital and later referred to Vijaya Health Centre at Vadapalani, where she lost her conscious. On advice she was operated, and a bullet was removed from her body.
2. The injured lady claims to have sustained injury by the bullet fired from the first respondent force has come before this court seeking compensation to the tune of Rs.7 lakhs for the negligent act of the first respondent.
3. According to the petitioner, the bullet was fired from the first respondent training camp, when a parade took place in firing (practice). A police complaint was given, and a case was registered as Crime No.414 of 2003 on 10.12.2003, with the second respondent police. On the same day(9.12.2003), another bullet hit one Shohanlal's residence also. The bullet which was recovered from the body of the petitioner as well as from the residence of Shohanlal were handed over to the Deputy Superintendent of Police, Veerapuram, Avadi, who visited the spot and the matter was reported in News Papers also.
4. The Petitioner states that the first respondent is conducting training at Avadi regarding the use of fire arms.
From the training camp only, the bullet was fired, hit the petitioner and caused injuries on he, and hence there was negligence on the part of the first respondent.
5. The petitioner complained that she spent more than two lakhs rupees for undergoing surgery and for treatment and that she suffered 40% disability, and that she is unable to move her right leg freely, and she is still undergoing treatment regularly for the injuries sustained. Apart from that she suffered shock and mental agony. As house-wife she is not able look at her family. Hence she filed the writ petition claiming compensation.
6. The first respondent filed counter affidavit stating that the Recruits Training Centre is having a Firing Range in the camp to impart the skill in shooting with arms periodically to the newly recruited trainees and the Firing Range is constructed as per safety measures prescribed for fire range. It is also mentioned in paragraph 3 of the counter affidavit that if any fire practice is conducted, necessary guards holding read flags would be placed at various places to alert the neighbouring people, and the cattle would be prevented from entering into the dangerous zone. It is further stated that no untoward incident had occurred during the firing, since there is a construction of fire range. In paragraph 4 of the counter affidavit it is stated that fire range was allotted to their sister units namely 78 Battalion, CRPF for conducting practice on 9.12.2003, and they conducted such firing practice using arms with 7.62 mm SLRs, 5.66 Insac Rifles and 9 m.m. pistols.
7. It is further stated that after hearing about the incident, an officer from the first respondent visited the spot and investigated the real distance between CRPF and the place of incident and found that it was more than three kilometres. It was further stated that the bullet injuries sustained by the petitioner was not really by fire carried out by CRPF and no technical aspect regarding the use of fire arms was proved. It is also mentioned that the incident area is surrounded by materials of security forces and that the CRPF is not the cause for the accident.
8. Learned Government Advocate, produced a file with regard to the above incident, from which it could be seen that the second respondent police made investigation and also filed a counter affidavit. It is also seen that on 10.12.2003, the Sub Inspector of Police attached to the second respondent police, reported the Deputy Superintendent of Police on 10.12.2003 informing about the incident and the investigation was under progress. The crime branch CID, Chennai wrote a letter to the Director General of Police CRPF, New Delhi on 6.1.2004, informing about the incident and para 4 of the letter is extracted as follows:
" It is learnt that lack of basic precautionary measures such as (a) alerting the villagers; b) informing the local police; c) proper instructions to the personnel etc. are the reasons behind the said incident. Hence it is requested that suitable instructions may be issued to the authorities concerned to take necessary precautionary measures before conducting the said shooting practice. Besides considering the possibility of shifting such shooting ranges to some remote and fairly un-habituated place to safeguard the life of the general public"
9. Mr.M.Devendran, learned Central Government Standing counsel appearing for the first respondent contended that the writ petition is not maintainable for claiming compensation. He submitted that the camp is situated three kilometers away from the residential area, and the bullet is not capable of travelling three kilometers from the camp, and that the bullet which hit the petitioner was not from the first respondent camp. Morevoer he submitted that the way is invaded by the buildings, trees and other obstacles, and in view of that, even if the bullet came from the weapons of the first respondent camp, it could not travel through all the obstacles freely and land on the petitioner.
10. It is seen from the records produced by the first respondent that a letter dated 6.1.2004, from the Deputy Superintendent of Police Avadi was sent to the Deputy Inspector General of Police, CRPF, Avadi with a request to shift the shooting range giving details of bullet injuries sustained by the various persons, and one such incidents is about the petitioner's bullet injuries, which occurred on 9.12.2003. The letter further said that the bullet recovered from the petitioner's body and from the residence of Shohanlal were said to have been sent to the Deputy Commandant, Small Arms of Tamil Nadu T.S.P. for examination, and he was satisfied that both the bullets were made of 0.7 let copper coated and 1 could be 7.62 mm SLR. Giving those details, the Deputy Superintendent of Police, Avadi requested to shift CRPF range from the present place to any other place to save the public life and avoid the aforesaid untoward incident.
11. The second respondent admits in the counter affidavit about the occurrence of the incident and the filing of the case in Crime No.414 of 2003 under
Section 337 IPC. It was also stated that injuries on the left thigh of the petitioner was due to bullet which was recovered after surgery. In para 5 of the first respondent's counter it is mentioned as follows:
" The Second-in-command of 78 Bn visited the house of the petitioner and assessed the facts. But when he visited the house, no other person was available there and as per his findings a real distance from Firing Range of CRPF and place of incident is more than 3 kms. Her house is in depth to the firing range a many obstacles like wall, houses and big trees are there in between. As per version of local people present near writ petitioners house the lady got bullet injury at about 10.30 hours. When she was sitting on Varandha facing North, whereas firing range is situated on South East direction from her house. Further enquiries in this case revealed that State Police registered a case in F2 Tank Factory Police Station under Cr.No.414/03 under
Section 337 IPC dated 10.12.2003 at about 0630 Hrs on the basis of statement given by the writ petitioner. From the above it is clear that the bullet injuries if any sustained by the petitioner was not as a result of firing carried out by CRPF veracity of which can be vouchsafe and technically proved undoubtedly."
12. A perusal of the counter affidavit and the typed set filed before the court would show the injuries sustained by the petitioner, has not been denied by any party. Even in the counter affidavit filed by the first respondent it is mentioned that after issuing notice, an officer also inspected the site, and based on the complaint given, a case was registered on the file of the second respondent police in Crime No.414 of 2003 under
Section 337 IPC. Apart from that, as per the letter written by DSP, Avadi Sub Division, to the Deputy General of Police, the bullets were sent to the Deputy commander, Small Arms, Tamil Nadu, and he requested to shift the CRPF shooting range to some other places to save public life. In the said letter various incidents of striking of bullets in the residential area were described.
13. The counter affidavit filed by the second respondent has undoubtedly proved that the bullet which injured the petitioner is from CRPF fire range. Even though the first respondent denied that there is no possibility of travelling of the bullet to such a long distance and hitting the petitioner, no records has been produced before this court explaining as to how the bullet is not capable of travelling such a distance. Moreover the first respondent has not given the actual distance between the Fire range and the place of incident. It has given only the approximate distance of three kilometres. On the same day, when the petitioner got injured, one Shohanlal's residence was also damaged by the another bullet hit. Both the bullets were handed over to the CRPF, the Deputy Commander, Small Arms of Tamil Nadu. Apart from that a complaint was lodged in Crime No.414/04 under
Section 337 of IPC with regard to the above incident. An officer from the first respondent visited the spot after coming to know about the incident. On a conjoint reading of all the documents considering pleadings and the above circumstances, it would only lead to the conclusion that the bullet emanated from the fire arm of the first respondent only and from the CRPF fire range. It is not the case of the first respondent that the bullet which hit the petitioner was from some other source. It only denied that the bullet was not from their source. Hence this court comes to the conclusion that the bullet came from the first respondent fire range only, as no one was found to be using fire arms except by the first respondent and that there was negligence on the part of the first respondent and that resulted in causing injury to the petitioner and that petitioner is entitled to compensation from the first respondent.
14. As far as the injuries are concerned, the petitioner was admitted in the Sted Board Hospital initially and she was referred to Vijaya Health Centre, Vadapalani where a surgery was conducted, a bullet was removed from her body. CT Scan taken on her body on 9.12.2003 reads as follows:
"The left ileac bone show fracture with adjacent hematoma and air.
A radio dense foreign body (Bullet) is seen in the lateral aspect of left hip. The left hip joint appear normal.
The thigh muscles and bones appear normal.
IMPRESSION:
Right V-U calculus, right renal calculus and right hydro nepro ureterosis.
Left ileac bone fracture with radio dense foreign body (Bullet) in the lateral aspect of left hip joint."
15. The discharge summary dated 24.12.2003, would reveal that the petitioner was hospitalised on 9.12.2003 and discharged on 24.12.2003, and it also revealed that foreign body (Bullet) was removed on 9.12.2003 from left thigh of the petitioner. The other documents regarding her treatment are filed as additional typed set of papers, and the amounts spent for the treatment have been given as Rs.1,42,958/- and the same is supported by cash bills except travelling expenses of Rs.20,000/-. The said bills cannot be suspected as they were issued by Vijaya Health Centre, a reputed Medical Institution in Chennai. The disability certificate issued by a qualified Ortho paediatrics surgeon has been filed showing the disability as 40%. As stated in the writ petition in para 4, the petitioner's free movement of her leg is affected because of the injury. Hence this court finds that because of bullet fired from the first respondent camp, the injuries were caused to the petitioner and that the petitioner spent more than one lakh for taking treatment including surgery and that she sustained 40% disability.
16. This court has got jurisdiction under
Article 226 of Constitution of India to grant relief to the victim whose fundamental rights under
Article 21 of the Constitution of India are stated to have infringed and calling upon the State to pay compensation. This has been settled by the Hon'ble Supreme Court of India in a number of decisions. The Honourable Supreme Court awarded compensation to the victims who suffered personal injuries at the hands of the officers of the Government and for causing of injuries which amounted to tortious act. In Rudul Sah vs. State of Bihar reported in AIR 1983 SC 1086, a three judge bench awarded compensation for illegal detention. Similar reliefs were granted in D.K.Basu vs. State of West Bengal reported in AIR 1997 SC 610 and Pramjit Kaur vs. State of Punjab reported in 1996 (7) SCC 20. For medical negligence compensation was awarded by the Supreme Court in Jacop George (Dr) vs. State of Kerala reported in 1994 (3) SCC 430 and in Supreme Court Legal Aid Committee Versus State of Bihar reported in AIR 1991 SC 482. Damages was awarded by the Supreme Court in Mariya Batia, New Delhi, Municipal Council reported in AIR 1993 SC 223.
17. In Nilabati Behara vs. State of Orissa reported in 1993 (2) SCC 746, the Honourable Supreme Court held that the Supreme Court and High Courts being the protectors of civil liberty of the citizens have not only the power and jurisdiction but also obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of Constitution of India to the victims or heirs of the victims whose fundamental rights under
Article 21 of the Constitution of India were infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizens, notwithstanding the rights of the citizens to the remedy by way of civil suit or criminal proceedings.
18. A three judges bench of the Hon'ble Supreme Court in a common cause, A Registered Society vs. Union of India and others reported in 1999 (6) SCC 667 held as follows:
" 65. There is, therefore, not much of a difference between the powers of the court exercised here in this country under
Article 32 or
Article 226 and those exercised in England for judicial review. Public law remedies are available in both the countries and the courts can award damages against public authorities to compensate for the loss or injury caused to the plaintiff/petitioner, provided the case involves, in this country, the violation of fundamental rights by the Government or other public authorities or that their action was wholly arbitrary or oppressive in violation of
Article 14 or in breach of statutory duty and is not a purely private matter directed against a private individual." (underlining by this court)
19. In Chairman Railway Board and another vs. Chadridoss (Mrs.) and others reported in 2000 (2) SCC 465, it has been held that public law remedies have also been extended to realm of tort and court can award compensation to the petitioners who suffered personal injuries amounting to tortuous act at the hands of the officers of the Government. Therefore this court has got power and jurisdiction to award compensation in the case of infringement of rights of the citizen guaranteed under
Article 21 of the Constitution of India. In this case the petitioner suffered bullet injury and she was operated and a bullet was removed from her body and therefore for the injuries sustained by her and for the mental agony undergone by her, she is entitled to compensation.
20. In M.S.Grewal and another vs. Deep Chand Sood and others reported in 2001 ACJ 1719,(SC) Apex court held as follows:
" law courts exists for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the society". Therefore this court has to redress the grievances of the people who knock its doors with plea of infringement of fundamental right. The court should not shirk its responsibility on technical pleas like maintainability of writ. In view of plethora of judgements of the Apex Court, this court rejects the plea of maintainability by the first respondent.
21. What is the amount to be awarded to the petitioner? and what is the formula to be adopted to determine the compensation? There is no statue in public law for calculating the compensation. In that event, this court can follow methods from other laws like workmen's compensation Act or Motor Vehicles Act which are beneficial Acts.
22. The Hon'ble Supreme Court followed the Motor Vehicles Act in Lata Wadhwa and others vs. State of Bihar and others reported in 2001 ACJ 1735(SC). In that case due to unforeseen circumstances fire broke out in a pandal erected for celebration at Jamshedpur, Bihar and many people died. A commission by Mr.Justice Y.V.Chandrachud was constituted and the committee relying upon English decisions Hodges vs. Harland & Wolf Limited reported in (1965) 1 All ER 1086, Kemp & Kemp on Quantum of damages, and Tables in American Restatement of the Law of Torts suggested multiplier method to determine the compensation and based on the recommendation, compensation was paid. For the death of a house wife, taking into multifarious services rendered by the house wives for managing entire family the monthly income of the house wife was fixed at Rs.3000/-. The formula adopted was application of multiplier as per the age of the victim. While deciding the above case, the Apex Court relied on earlier decision in General Manger, Kerala State Road Transport Corporation vs. Susamma Thomas reported in 1994 ACJ 1 (SC). Therefore this court adopts II Schedule appended to
Section 163 of Motor Vehicles Act.
23. In this case, the age of the petitioner at the time of incident was 31 years house-wife who is the backbone of the family. The proper multiplier for 31 years according to second schedule, is 17. The annual income would be Rs.3000/- X 12 = 36,000/- is the loss of earning capacity. The said amount has to be multiplied with multiplier 17 i.e. 36000 X 17 = 6,12,000/=. The disability sustained by the petitioner is 40%. Hence loss of earning capacity would be Rs.6,12,000 X 40/100 = 2,44,800/-.
Hence this court determines the following:
1. Loss of earning capacity on account of injuries sustained at Rs.2,44,800/-.
2. The medical expenses spent by the petitioner is fixed at Rs.1,22,958 (excluding travel expenses).
3. Total compensation is Rs.2,44,800 + Rs.1,22,958 = Rs.3,67,758/-.
24. A Four Judges Bench of the Hon'ble Supreme Court, in Pratap Narain Singh Deo vs. Srinivas Sabata and another reported in 1976 (1) SCC 289 arising out of workmen's compensation Act held that the date of occurrence of the accident would be the cause of action and the interest has to be calculated from that date onwards. Following the said judgement, considering the occurrence of the incident on 9.12.2003, this court awards interest from 9.12.2003. Therefore the petitioner is entitled to Rs.3,67,758/- as compensation from the first respondent along with interest at the rate of 6% per annum from 9.12.2003 till the date of payment.
25. By awarding the compensation, this court is not underestimating the services of the first respondent force. The first respondent is doing extraordinary service in meeting the law and order problems in our country, and their services especially during the time of crisis are laudable. In any event, the facts and circumstances require awarding of compensation against the first respondent. Time for payment is eight weeks from the date of the receipt of a copy of this order.
26. There has been growth of cities/towns due to migration of people from villages to urban areas for various reasons like employment, education etc. Suburbs bustles with housing construction. Allowing housing colonies in haphazard manner near existing camp of the respondent is in a way responsible for this kind of incident. Therefore Corporation of Chennai, CMDA, Municipalities and other local bodies are required to be careful, while giving sanction for lay out, plan for constructing new houses near rivers, monuments, heritage buildings, factories etc., considering the consequences like emission of hazardous gas, river pollution, bullet hitting, damage to monuments, noise and air pollution from factories and mills etc..
27. Local authorities are required to involve officials of the factories, officials of pollution control board, officials of concerned departments or organization while taking decision for granting approval. The conditions should consider the location of factories, mills, rivers, monuments, camps while granting approvals and they are required to exercise their power judiciously in the interest of public. Otherwise there would be occurrence of this kind of untoward incidents and resulting in hue and cry against factories, mills, industries which were established long back, complaining about pollution. Irregular approvals were granted for construction in waterbodies and it resulted in flooding of residential areas. First Bench of this court has to intervene to remove encroachment in water bodies. Unless united action is taken while granting plans the civil consequences including endangerment of life cannot be prevented.
28. These suggestions are given only in the light of the bullet hit incident which caused injuries to the petitioner.
29. With the above directions, the writ petition is allowed and however there will be no order as to costs.
9.11.2009 Internet:Yes/No Index :Yes/No vk To:
1.The Union of India rep. by its Commandant in Chief Central Reserve Protection Force, Avadi, Chennai-62.
2.The Sub Inspector of Police, F2 Tank Factory, Police Station,Avadi, Chennai-62.
N.KIRUBAKARAN,J.
vk W.P.No.9909 of 2004 9.11.2009 (26. Immortal Thiruvalluvar wrote Thirukural about 2000 years ago, in which a couplet is about the role of a doctor to diagnose.
"neha;eho neha;Kjy; eho mJjzpf;Fk;
tha;eho tha;g;gbray;@ "The skilful treatment of a decease consists in identifying the symptoms and causes as well as possible remedies, before, choosing the best."
27. Similarly when a matter is brought before this court, this court is not only required to adjudicate the issue but also duty bound to find the reason for occurrence of this kind of incident, and give suitable suggestions/recommendations to prevent the same. This court view is supported by the judgment of the Supreme Court in Vellore Citizens Welfare Forum vs. Union of India reported in AIR 1996 SC 2715, in which it has been held that " Precautionary principle" has been accepted as part of law of the land. Similarly the view has been reiterated in People Union for Civil principles versus Union of India and another reported in 1997 3 SCC 433, AP Pollution Control Board vs. Professor Nayudu reported in AIR 1999 SC 812, M.C.Mehta vs. Union of India reported in 2001 9 SCC 142 and in M.C.Mehta vs. Union of India reported in 2004 12 SCC 118, the Hon'ble Supreme Court explained the scope of precautionary principles observing that it requires anticipatory action to be taken to prevent harm and that the harm can be prevented even at reasonable suspicion and that it is not always necessary that there should be direct evidence on harm free environment. In cases relating to pollution and its effect on ecology, the Supreme Court observed that a balance has to be struck between sustainable development and effect on environment.
28. The Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and others reported in (2009) 8 MLJ 921 (SC) while dealing with the appeal arisen under the ......... Act, after elaborately considering the provisions to Civil procedure Code and considering the delay between decree and its execution suggested that for a meaningful and efficient scheme of core to enable a party not only to get a decree quickly but also to get the relief quickly, change in law is required to be done by Law Commission and Parliament by making appropriate amendment. Similarly in a recent case, the Hon'ble Supreme Court suggested that various measures to be taken by the government and insurance company for speedy disposal of the motor accident claims like hassle free settlement of motor vehicles claims, formation of court funds to settle insurance claims and one time payment of insurance premium.
29. Recently a three judges bench of the Hon'ble Supreme Court in Jayaprakash National Insurance Company Limited and others reported in 2010 1 SCALE 8 suggested many suggestions for disposal of motor accidents Claims. Suggestions for insurance company were given in paragraphs 15 to 20 and suggestions for legislative/executive intervention were given in paragraphs 21 and 28 of the aforesaid judgment. The suggestions given by the court were directed to be placed before the Central Government. They are:
1) Formulation of scheme in consultation with Nationalized bank under which the compensation is kept in fixed deposit for appropriate period to see that the compensation is utilized only for the benefit of the injured claimants and family.
2) Suggestions to the Insurance Company to consider offering amuity instead of lump-sum compensation.
3) Suggestions for legislative executive intervention for ensuring all accidents to get free compensation and formulation of a more comprehensive scheme for payment of compensation to the victim of road accidents in place of present system of third party insurance.
4) Suggestions for enacting comprehensive and unified statue dealing with accidents, then the suggestion for laying out and enforcing road safety measures and establishment of large number of trauma centers and first aid centers and suggestions to consider the formation of road bureau to lay out road safety standards and norms enforce about the road safety measures and carriing out research for data collection for accident prevention and then suggestion to Central Government to consider amendment of the second schedule to the Act to rationalize the compensation payable.
30. The aforesaid judgments would show that the courts have got jurisdiction and power to go beyond the relief and suggest measures/recommendations/suggestions to prevent as a preventive measure.
31. The aforesaid three benches judgment supports the view of this court to give suggestions beyond the scope of the case, namely, though court has got no jurisdiction to give opinion, recommendations is perinephrium after all this court is only making suggestions/recommendations, only to prevent occurrence of similar incident as dealt with in this case in future.
32.
Article 226 of the Constitution of India gives wide power to this court to issue direction, orders or writs for enforcement of fundamental rights and for any other purpose.
Article 226 Clause II is extracted as follows:
" 226 (1) anything in
Article 32, every high Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any government, within those territories directions, orders or writs, including writs in the nature of habeaus corpus, mandamus, prohibition, quo warranto and cetiorari or any of them ( for the enforcement of any of the rights conferred by Part-III and for any other purpose)."
33. A perusal of the
Article 226 would reveal that this court can issue directions, orders, or writs including writs in the nature of Habeaus corpus, mandamus, prohibition, quo warranto, and Certiorari or any other writs for enforcement of any of the fundamental rights and for any other purpose. It has been decided by the Hon'ble Supreme Court in Fertilizers Kanyar Union vs. Union of India reported in AIR 1998 1 SC 344 that the words " for any other purpose" at the end of
Article 226 make the jurisdiction of the High Court to issue writs more extensive than that of Supreme Court inasmuch as those words are accent of
Article 32. Article 226 itself confers upon the High Court to issue writ for enforcement of fundamental rights as well as for other purpose.
34. In view of that in the above matter this court thinks fit to find out what is the reason for occurrence of the incident. This court as stated above is duty bound to find out the reason for the occurrence and give suggestions to prevent the same.