CORAMTHE HONOURABLE MR v. The Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:9-11-2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.No.9909 of 2004Jothi Lakshmi ... PetitionerVersus1.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. .... RespondentsWrit Petition filed under Article 226 of Constitution of Indiapraying for the issuance of Writ of Mandamus to direct therespondent to compensate the petitioner to the tune of Rs.7 lakhsfor the negligence of the respondent's act which resulted in theinjury to the petitioner. For Petitioner : Mr.T.RamadeviFor Respondents : Mr.M.Devendran, Central Govt.Standing counsel for R1 Mrs.D.Geetha Additional Government Pleader for R2 ORDER" Date- 9.12.2003; Time 10.30 A.M." ----It was a busy morning and thepetitioner was sitting at the doorstep of her residence, suddenlyshe screamed with pain and blood started gushing from the thighregion of her right leg when something hit her with speed "--- Thatwas the picture this court could imagine about that incident fromthe affidavit. She was immediately admitted in the Sted FordHospital and later referred to Vijaya Health Centre at Vadapalani,where she lost her conscious. On advice she was operated, and abullet was removed from her body. https://hcservices.ecourts.gov.in/hcservices/

2.The injured lady claims to have sustained injury by thebullet fired from the first respondent force has come before thiscourt seeking compensation to the tune of Rs.7 lakhs for thenegligent act of the first respondent. 3.According to the petitioner, the bullet was fired from thefirst respondent training camp, when a parade took place in firing(practice). A police complaint was given, and a case was registeredas Crime No.414 of 2003 on 10.12.2003, with the second respondentpolice. On the same day(9.12.2003), another bullet hit oneShohanlal's residence also. The bullet which was recovered from thebody of the petitioner as well as from the residence of Shohanlalwere handed over to the Deputy Superintendent of Police, Veerapuram,Avadi, who visited the spot and the matter was reported in NewsPapers also.4.The Petitioner states that the first respondent isconducting training at Avadi regarding the use of fire arms.From the training camp only, the bullet was fired, hit thepetitioner and caused injuries on he, and hence there was negligenceon the part of the first respondent.5. The petitioner complained that she spent more than two lakhsrupees for undergoing surgery and for treatment and that shesuffered 40% disability, and that she is unable to move her rightleg freely, and she is still undergoing treatment regularly for theinjuries sustained. Apart from that she suffered shock and mentalagony. As house-wife she is not able look at her family. Hence shefiled the writ petition claiming compensation.6. The first respondent filed counter affidavit stating thatthe Recruits Training Centre is having a Firing Range in the camp toimpart the skill in shooting with arms periodically to the newlyrecruited trainees and the Firing Range is constructed as per safetymeasures prescribed for fire range. It is also mentioned inparagraph 3 of the counter affidavit that if any fire practice isconducted, necessary guards holding read flags would be placed atvarious places to alert the neighbouring people, and the cattlewould be prevented from entering into the dangerous zone. It isfurther stated that no untoward incident had occurred during thefiring, since there is a construction of fire range. In paragraph 4of the counter affidavit it is stated that fire range was allottedto their sister units namely 78 Battalion, CRPF for conductingpractice on 9.12.2003, and they conducted such firing practice usingarms with 7.62 mm SLRs, 5.66 Insac Rifles and 9 m.m. pistols. 7.It is further stated that after hearing about theincident, an officer from the first respondent visited the spot and https://hcservices.ecourts.gov.in/hcservices/ investigated the real distance between CRPF and the place ofincident and found that it was more than three kilometres. It wasfurther stated that the bullet injuries sustained by the petitionerwas not really by fire carried out by CRPF and no technical aspectregarding the use of fire arms was proved. It is also mentioned thatthe incident area is surrounded by materials of security forces andthat the CRPF is not the cause for the accident.8.Learned Government Advocate, produced a file with regardto the above incident, from which it could be seen that the secondrespondent police made investigation and also filed a counteraffidavit. It is also seen that on 10.12.2003, the Sub Inspector ofPolice attached to the second respondent police, reported the DeputySuperintendent of Police on 10.12.2003 informing about the incidentand the investigation was under progress. The crime branch CID,Chennai wrote a letter to the Director General of Police CRPF, NewDelhi on 6.1.2004, informing about the incident and para 4 of theletter is extracted as follows:" It is learnt that lack of basic precautionarymeasures such as (a) alerting the villagers; b)informing the local police; c) proper instructions tothe personnel etc. are the reasons behind the saidincident. Hence it is requested that suitableinstructions may be issued to the authorities concernedto take necessary precautionary measures beforeconducting the said shooting practice. Besidesconsidering the possibility of shifting such shootingranges to some remote and fairly un-habituated place tosafeguard the life of the general public" 9. Mr.M.Devendran, learned Central Government Standing counselappearing for the first respondent contended that the writ petitionis not maintainable for claiming compensation. He submitted that thecamp is situated three kilometers away from the residential area,and the bullet is not capable of travelling three kilometers fromthe camp, and that the bullet which hit the petitioner was not fromthe first respondent camp. Morevoer he submitted that the way isinvaded by the buildings, trees and other obstacles, and in view ofthat, even if the bullet came from the weapons of the firstrespondent camp, it could not travel through all the obstaclesfreely and land on the petitioner.10.It is seen from the records produced by the firstrespondent that a letter dated 6.1.2004, from the DeputySuperintendent of Police Avadi was sent to the Deputy InspectorGeneral of Police, CRPF, Avadi with a request to shift the shootingrange giving details of bullet injuries sustained by the variouspersons, and one such incidents is about the petitioner's bullet https://hcservices.ecourts.gov.in/hcservices/ injuries, which occurred on 9.12.2003. The letter further said thatthe bullet recovered from the petitioner's body and from theresidence of Shohanlal were said to have been sent to the DeputyCommandant, Small Arms of Tamil Nadu T.S.P. for examination, and hewas satisfied that both the bullets were made of 0.7 let coppercoated and 1 could be 7.62 mm SLR. Giving those details, the DeputySuperintendent of Police, Avadi requested to shift CRPF range fromthe present place to any other place to save the public life andavoid the aforesaid untoward incident. 11.The second respondent admits in the counter affidavitabout the occurrence of the incident and the filing of the case inCrime No.414 of 2003 under Section 337 IPC. It was also stated thatinjuries on the left thigh of the petitioner was due to bullet whichwas recovered after surgery. In para 5 of the first respondent'scounter it is mentioned as follows:" The Second-in-command of 78 Bn visited the house ofthe petitioner and assessed the facts. But when he visitedthe house, no other person was available there and as perhis findings a real distance from Firing Range of CRPF andplace of incident is more than 3 kms. Her house is indepth to the firing range a many obstacles like wall,houses and big trees are there in between. As per versionof local people present near writ petitioners house thelady got bullet injury at about 10.30 hours. When she wassitting on Varandha facing North, whereas firing range issituated on South East direction from her house. Furtherenquiries in this case revealed that State Policeregistered a case in F2 Tank Factory Police Station underCr.No.414/03 under Section 337 IPC dated 10.12.2003 atabout 0630 Hrs on the basis of statement given by the writpetitioner. From the above it is clear that the bulletinjuries if any sustained by the petitioner was not as aresult of firing carried out by CRPF veracity of which canbe vouchsafe and technically proved undoubtedly."12.A perusal of the counter affidavit and the typed set filedbefore the court would show the injuries sustained by thepetitioner, has not been denied by any party. Even in the counteraffidavit filed by the first respondent it is mentioned that afterissuing notice, an officer also inspected the site, and based on thecomplaint given, a case was registered on the file of the secondrespondent police in Crime No.414 of 2003 under Section 337 IPC.Apart from that, as per the letter written by DSP, Avadi SubDivision, to the Deputy General of Police, the bullets were sent tothe Deputy commander, Small Arms, Tamil Nadu, and he requested toshift the CRPF shooting range to some other places to save publiclife. In the said letter various incidents of striking of bullets in https://hcservices.ecourts.gov.in/hcservices/ the residential area were described.13.The counter affidavit filed by the second respondent hasundoubtedly proved that the bullet which injured the petitioner isfrom CRPF fire range. Even though the first respondent denied thatthere is no possibility of travelling of the bullet to such a longdistance and hitting the petitioner, no records has been producedbefore this court explaining as to how the bullet is not capable oftravelling such a distance. Moreover the first respondent has notgiven the actual distance between the Fire range and the place ofincident. It has given only the approximate distance of threekilometres. On the same day, when the petitioner got injured, oneShohanlal'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 inCrime No.414/04 under Section 337 of IPC with regard to the aboveincident. An officer from the first respondent visited the spotafter coming to know about the incident. On a conjoint reading ofall the documents considering pleadings and the above circumstances,it would only lead to the conclusion that the bullet emanated fromthe fire arm of the first respondent only and from the CRPF firerange. It is not the case of the first respondent that the bulletwhich hit the petitioner was from some other source. It only deniedthat the bullet was not from their source. Hence this court comesto the conclusion that the bullet came from the first respondentfire range only, as no one was found to be using fire arms except bythe first respondent and that there was negligence on the part ofthe first respondent and that resulted in causing injury to thepetitioner and that petitioner is entitled to compensation from thefirst respondent. 14.As far as the injuries are concerned, the petitioner wasadmitted in the Sted Board Hospital initially and she was referredto Vijaya Health Centre, Vadapalani where a surgery was conducted, abullet was removed from her body. CT Scan taken on her body on9.12.2003 reads as follows:"The left ileac bone show fracture with adjacenthematoma and air.A radio dense foreign body (Bullet) is seen inthe lateral aspect of left hip. The left hip jointappear normal.The thigh muscles and bones appear normal.IMPRESSION:Right V-U calculus, right renal calculus and https://hcservices.ecourts.gov.in/hcservices/ right hydro nepro ureterosis.Left ileac bone fracture with radio dense foreignbody (Bullet) in the lateral aspect of left hipjoint." 15.The discharge summary dated 24.12.2003, would reveal thatthe petitioner was hospitalised on 9.12.2003 and discharged on24.12.2003, and it also revealed that foreign body (Bullet) wasremoved on 9.12.2003 from left thigh of the petitioner. The otherdocuments regarding her treatment are filed as additional typed setof papers, and the amounts spent for the treatment have been givenas Rs.1,42,958/- and the same is supported by cash bills excepttravelling expenses of Rs.20,000/-. The said bills cannot besuspected as they were issued by Vijaya Health Centre, a reputedMedical Institution in Chennai. The disability certificate issued bya qualified Ortho paediatrics surgeon has been filed showing thedisability as 40%. As stated in the writ petition in para 4, thepetitioner's free movement of her leg is affected because of theinjury. Hence this court finds that because of bullet fired from thefirst respondent camp, the injuries were caused to the petitionerand that the petitioner spent more than one lakh for takingtreatment including surgery and that she sustained 40% disability. 16.This court has got jurisdiction under Article 226 ofConstitution of India to grant relief to the victim whosefundamental rights under Article 21 of the Constitution of India arestated to have infringed and calling upon the State to paycompensation. This has been settled by the Hon'ble Supreme Court ofIndia in a number of decisions. The Honourable Supreme Court awardedcompensation to the victims who suffered personal injuries at thehands of the officers of the Government and for causing of injurieswhich amounted to tortious act. In Rudul Sah vs. State of Biharreported in AIR 1983 SC 1086, a three judge bench awardedcompensation for illegal detention. Similar reliefs were granted inD.K.Basu vs. State of West Bengal reported in AIR 1997 SC 610 andPramjit Kaur vs. State of Punjab reported in 1996 (7) SCC 20. Formedical negligence compensation was awarded by the Supreme Court inJacop George (Dr) vs. State of Kerala reported in 1994 (3) SCC 430and in Supreme Court Legal Aid Committee Versus State of Biharreported in AIR 1991 SC 482. Damages was awarded by the SupremeCourt in Mariya Batia, New Delhi, Municipal Council reported in AIR1993 SC 223.17.In Nilabati Behara vs. State of Orissa reported in 1993(2) SCC 746, the Honourable Supreme Court held that the SupremeCourt and High Courts being the protectors of civil liberty of thecitizens have not only the power and jurisdiction but also https://hcservices.ecourts.gov.in/hcservices/ obligation to grant relief in exercise of its jurisdiction underArticles 32 and 226 of Constitution of India to the victims or heirsof the victims whose fundamental rights under Article 21 of theConstitution of India were infringed by calling upon the State torepair the damage done by its officers to the fundamental rights ofthe citizens, notwithstanding the rights of the citizens to theremedy by way of civil suit or criminal proceedings.18.A three judges bench of the Hon'ble Supreme Court in acommon cause, A Registered Society vs. Union of India and othersreported in 1999 (6) SCC 667 held as follows:"65.There is, therefore, not much of adifference between the powers of the court exercisedhere in this country under Article 32 or Article 226 andthose exercised in England for judicial review. Publiclaw remedies are available in both the countries and thecourts can award damages against public authorities tocompensate for the loss or injury caused to theplaintiff/petitioner, provided the case involves, inthis country, the violation of fundamental rights by theGovernment or other public authorities or that theiraction was wholly arbitrary or oppressive in violationof Article 14 or in breach of statutory duty and is nota purely private matter directed against a privateindividual." (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 heldthat public law remedies have also been extended to realm of tortand court can award compensation to the petitioners who sufferedpersonal injuries amounting to tortuous act at the hands of theofficers of the Government. Therefore this court has got power andjurisdiction to award compensation in the case of infringement ofrights of the citizen guaranteed under Article 21 of theConstitution of India. In this case the petitioner suffered bulletinjury and she was operated and a bullet was removed from her bodyand therefore for the injuries sustained by her and for the mentalagony undergone by her, she is entitled to compensation.20.In M.S.Grewal and another vs. Deep Chand Sood and othersreported in 2001 ACJ 1719,(SC) Apex court held as follows:" law courts exists for the society and they have an obligationto meet the social aspirations of citizens since law courts mustalso respond to the needs of the society". Therefore this court hasto redress the grievances of the people who knock its doors withplea of infringement of fundamental right. The court should not https://hcservices.ecourts.gov.in/hcservices/ shirk its responsibility on technical pleas like maintainability ofwrit. In view of plethora of judgements of the Apex Court, thiscourt rejects the plea of maintainability by the first respondent.21.What is the amount to be awarded to the petitioner? andwhat 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 likeworkmen's compensation Act or Motor Vehicles Act which arebeneficial Acts. 22.The Hon'ble Supreme Court followed the Motor Vehicles Actin Lata Wadhwa and others vs. State of Bihar and others reported in2001 ACJ 1735(SC). In that case due to unforeseen circumstances firebroke out in a pandal erected for celebration at Jamshedpur, Biharand many people died. A commission by Mr.Justice Y.V.Chandrachud wasconstituted and the committee relying upon English decisions Hodgesvs. Harland & Wolf Limited reported in (1965) 1 All ER 1086, Kemp &Kemp on Quantum of damages, and Tables in American Restatement ofthe Law of Torts suggested multiplier method to determine thecompensation and based on the recommendation, compensation was paid.For the death of a house wife, taking into multifarious servicesrendered by the house wives for managing entire family the monthlyincome of the house wife was fixed at Rs.3000/-. The formula adoptedwas application of multiplier as per the age of the victim. Whiledeciding the above case, the Apex Court relied on earlier decisionin General Manger, Kerala State Road Transport Corporation vs.Susamma Thomas reported in 1994 ACJ 1 (SC). Therefore this courtadopts II Schedule appended to Section 163 of Motor Vehicles Act.23.In this case, the age of the petitioner at the time ofincident was 31 years house-wife who is the backbone of the family.The proper multiplier for 31 years according to second schedule, is17. The annual income would be Rs.3000/- X 12 = 36,000/- is the lossof earning capacity. The said amount has to be multiplied withmultiplier 17 i.e. 36000 X 17 = 6,12,000/=. The disability sustainedby the petitioner is 40%. Hence loss of earning capacity would beRs.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 atRs.2,44,800/-.2.The medical expenses spent by the petitioner is fixed atRs.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 https://hcservices.ecourts.gov.in/hcservices/ Pratap Narain Singh Deo vs. Srinivas Sabata and another reported in1976 (1) SCC 289 arising out of workmen's compensation Act held thatthe date of occurrence of the accident would be the cause of actionand the interest has to be calculated from that date onwards.Following the said judgement, considering the occurrence of theincident on 9.12.2003, this court awards interest from 9.12.2003.Therefore the petitioner is entitled to Rs.3,67,758/- ascompensation from the first respondent along with interest at therate of 6% per annum from 9.12.2003 till the date of payment. 25.By awarding the compensation, this court is notunderestimating the services of the first respondent force. Thefirst respondent is doing extraordinary service in meeting the lawand order problems in our country, and their services especiallyduring the time of crisis are laudable. In any event, the facts andcircumstances require awarding of compensation against the firstrespondent. Time for payment is eight weeks from the date of thereceipt of a copy of this order. 26.There has been growth of cities/towns due to migration ofpeople from villages to urban areas for various reasons likeemployment, education etc. Suburbs bustles with housingconstruction. Allowing housing colonies in haphazard manner nearexisting camp of the respondent is in a way responsible for thiskind 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 housesnear rivers, monuments, heritage buildings, factories etc.,considering the consequences like emission of hazardous gas, riverpollution, bullet hitting, damage to monuments, noise and airpollution from factories and mills etc..27.Local authorities are required to involve officials of thefactories, officials of pollution control board, officials ofconcerned departments or organization while taking decision forgranting approval. The conditions should consider the location offactories, mills, rivers, monuments, camps while granting approvalsand they are required to exercise their power judiciously in theinterest of public. Otherwise there would be occurrence of thiskind of untoward incidents and resulting in hue and cry againstfactories, mills, industries which were established long back,complaining about pollution. Irregular approvals were granted forconstruction in waterbodies and it resulted in flooding ofresidential areas. First Bench of this court has to intervene toremove encroachment in water bodies. Unless united action is takenwhile granting plans the civil consequences including endangermentof life cannot be prevented. 28.These suggestions are given only in the light of the https://hcservices.ecourts.gov.in/hcservices/ bullet hit incident which caused injuries to the petitioner. 29.With the above directions, the writ petition is allowedand however there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvkTo:1.The Commandant in Chief Central Reserve Protection Force, Union of India Avadi, Chennai-62.2.The Sub Inspector of Police, F2 Tank Factory, Police Station,Avadi, Chennai-62.+1cc to Mr.M.Devendran, SPCCG Sr 59705+1cc to M/s.A.Indhi Rani,Advocate Sr 59707MG(CO)km/22.2.W.P.No.9909 of 2004