Sunita vs State Of National Capital ...
2008 Latest Caselaw 893 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                          LPA No.2552/2005

%                             Date of decision : 2nd July, 2008

      SUNITA                                   .....Appellant
                     Through: Mr.N.Kinra with Mr.Dheeraj
                              Sammi, Advocates

                     Versus

    STATE OF NATIONAL CAPITAL TERRITORY
    OF DELHI & ANOTHER                  ...Respondents

Through Ms.Mukta Gupta, Standing Counsel (Crl) with Ms.Rajdipa Behura, Advocate CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papers be allowed to see the judgment?y

2.To be referred to the Reporter or not ?y

3. Whether the judgment should be reported in the Digest ?y

AJIT PRAKASH SHAH, CJ:

1. This appeal under Clause X of the Letters Patent is directed

against the order of the learned single Judge dated 24th August,

2005 passed in WP(Crl) No.1292/2003. That writ petition was filed

by Smt.Sunita, widow of one Mohinder, who died while in police

custody on 15th August, 1999. In the writ petition Smt.Sunita

sought a writ, order or direction to the respondent-Government of

National Capital Territory of Delhi to award compensation to the

members of the family of the deceased Mohinder. By the

impugned order the learned single Judge awarded a sum of Rs.3

lacs as ex gratia compensation. Being aggrieved Smt.Sunita has

preferred this appeal on the ground that the compensation

awarded by the learned single Judge is wholly inadequate and the

meagre sum of Rs.3 lacs awarded after a period of six years of the

custodial death is no compensation in the eye of law.

2. The unfortunate events which led to the present proceedings

may be shortly stated:

Mohinder, the late husband of Smt.Sunita, the appellant

herein, was an employee of the Haryana State Electricity Board

(HSEB) and was working as Assistant Lineman, posted at Yamuna

Nagar. On 15th August, 1999 at 5 a.m Mohinder was taken into

custody while he was waiting at a Bus Stand near Jindpur after two

policemen found him carrying Rs.1,30,000/- in Rs.500/-

denomination notes. Mohinder's sister Jayawanti, a Paschim Puri,

Delhi, resident, had died due to cancer and to give money to her

family, Mohinder had withdrawn Rs.68,000/- from his Provident

Fund Account and also obtained a loan of Rs.35,000/- from his

brother Rajinder Sharma, an Air Force Corporal posted at Naliya

(Raj.).

It appears that during his interrogation and questioning by

the police, he was beaten up and tortured and third degree

methods were used as a result of which he suffered severe bodily

injuries. He was declared brought dead by the doctors at Hindu

Rao Hospital at about 8.40 p.m on 15th August, 1999. It is seen

from the post mortem report of the panel of doctors set up by the

State Government that nearly two-third of his body was bruised.

Injury marks on his buttocks indicated that he had been beaten

brutally by a blunt object or a rubber tube. Injury marks revealed

an attempt to twist his small finger, in a bid to extract information.

The victim suffered blue marks from both the palms to the elbow

and from the knee down to the feet. The victim suffered wounds

also visible near his eye and became unconscious on receipt of

severe injuries inflicted by the Police and died.

Following the death, the North-West District Police Chief

Satyendra Garg, SHO Ajay Sharma, Police Station Alipur, Sub

Inspector Ram Phool, H.C. Shri Bhagwan and Ujjagar Singh and

Constable Stayawan and Shri Pal and Siya Ram had been

suspended. Cases under Section 304 and 342 of IPC had been

registered against them and probe of the case had been referred

to the Crime Branch. The panel of doctors set up for conducting

post mortem confirmed custodial death in their report of 16th

August, 1999 and in the subsequent report of 21st October, 1999.

3. Initially Smt. Sunita filed Writ Petition (Crl) No.110 of 2002 in

the Supreme Court. The said writ petition was however directed to

be transmitted to the High Court of Delhi as it was felt that in the

first instance it would be proper for the petitioner to approach the

High Court for reliefs. Thereafter the matter was heard and

disposed of by the learned single Judge who vide the impugned

order dated 24th August, 2005 awarded Rs.3 lacs as ex gratia

compensation. Aggrieved, Smt.Sunita filed the present appeal

challenging the order passed by the learned single Judge. We

hasten to add that the order of of the learned single Judge is

rather cryptic and does not give any reason for fixing the amount

of compensation at Rs.3 lacs.

4. Mr.N.Kinra, learned counsel appearing for the appellant-

Smt.Sunita strenuously contended that the learned single Judge

failed to appreciate that it was a case for compensation for

violation of the fundamental rights of a person under Article 21 of

the Constitution and it could not be treated as a case for ex gratia

payment. He pointed out that the deceased Mohinder was a

government servant working with the HSEB and was drawing total

emoluments of Rs.6,017/- per month. He was 47 years of age at

the time of his death in custody and his wife and one daughter

aged 16 years and the son aged 14 years were left destitute with

no other source of income and that the meagre sum of Rs.3 lacs

awarded by the learned single Judge that too after a period of six

years after the custodial death is wholly inadequate. Learned

counsel referred to the decision of the Supreme Court in the case

of Ajaib Singh & Another v. State of UP (2000) 3 SCC 521 wherein

in similar circumstances the Court awarded Rs.5 lacs as

compensation.

5. In reply Ms.Mukta Gupta, learned Standing Counsel for the

respondent-State, submitted that there cannot be any exact

uniform rule for measuring the damage/compensation and it

cannot be arrived at by a precise mathematical calculation and it

would depend upon the facts and circumstances of each case.

She submitted that though the learned single Judge has not

assigned any specific reason for fixing the compensation at Rs.3

lacs yet the amount cannot be said to be inadequate and that the

learned single Judge has also granted liberty to the widow to

approach the civil court for regular compensation. She therefore

submitted that there is no warrant for interference with the order

of the learned single Judge.

6. The award of compensation as public law remedy for

violation of fundamental rights enshrined in Article 21 of the

Constitution in addition to the private law remedy under the law of

torts was evolved by the Supreme Court in its several decisions

including in Rudul Shah v. State of Bihar, (1983) 4 SCC 141, Bhim

Singh v. State of J&K (1985) 4 SCC 677, People's Union for

Democratic Rights v. Police Commr., (1989) 4 SCC 730 and State

of Maharashtra v. Ravikant S. Patil (1991) 2 SC 373.

7. The law was crystallised in Smt.Nilabati Behera v. State of

Orissa and Others (1993) 2 SC 746 wherein J.S.Verma, J (as he

then was) laid down the following principles:

"[A]ward of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign

immunity does not apply, even though it may be available as a defence in private law in an action based on tort. (SCC p. 758, para 10)

... enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

... '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 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. (SCC pp.

762-63, paras 16-17)"

8. Dr. A.S. Anand, J., (as he then was) in his concurring

judgment elaborated the principle thus:

"[C]onvicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which

can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

(SCC p. 767, para 31)

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 [the Supreme] 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 civilise public power but also to assure the citizens 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 wrongdoer 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 court of competent jurisdiction or/and prosecute the offender under the penal law. (SCC pp. 768-69, para 34)"

9. In D.K.Basu v. State of W.B. (1997) 1 SCC 416, in paragraph

54 the Supreme Court observed thus:

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 infringement 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 defence 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 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.

10. It is thus well settled that the award of compensation in a

proceeding before the High Court under Article 226 of the

Constitution is a remedy available in public law for contravention

of fundamental rights to which the principle of sovereign immunity

does not apply even though it may be available as a defence in

private law in an action based on tort. 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 the

enforcement of the private law remedy in tort nor come in the way

of a criminal court ordering compensation under Section 357 of

the Code of Criminal Procedure. With reference to quantum of

compensation, reference may be made to the decision of the

Supreme Court in Ajaib Singh v. State of Bihar (supra) where the

writ petition was filed under Article 32 of the Constitution by the

parents of one Rishi Pal who died while in judicial custody. The

deceased left behind three children aged 7, 4 and two and half

years. The deceased was aged 32 years and was earning

approximately Rs.5,000/-. The court in the facts and circumstances

of the case awarded a compensation of Rs.5 lacs for the death of

Rishi Pal . Our attention was also drawn to a judgment of the

Division Bench of this Court in Government of NCT of Delhi v.

Nasiruddin 2001 (1) JCC (Delhi) 57 which was a case of custodial

death where the court granted Rs.2 lacs as compensation. In that

case the deceased was aged 21 years and his parents were above

70 years and taking into account the loss of dependencies, if any

was that of parents and their age, the compensation was fixed at

Rs. 2 lacs.

11. It is true that assessment of damages has never been an

exact science. It is essentially practical as observed by Upjohn L.J.

In Charter House Credit v. Tolly (1963) 2 QB 683. There can be no

exact rule for measuring the damage. It cannot be arrived at by

precise mathematical calculation, but amount, recoverable

depends on broad facts and circumstances of each case. It should

neither be punitive against whom claim is decreed nor it should

be a source of profit of the person in whose favour it is awarded.

Broadly speaking in the case of death, the basis of compensation

is loss of pecuniary benefits to the dependents of the deceased

which includes pecuniary loss, expenses etc., and loss to the

estate. The objective is to mitigate the hardship that has been

caused to the legal representatives due to the sudden demise of

the deceased. The Supreme Court has laid down broad principles

in the matter of fixation of compensation under Motor Vehicles Act

and these principles will have to be kept in mind while fixing

compensation in the case of custodial death.

12. The question that is to be considered in this appeal is

whether the compensation fixed by the learned single Judge is just

and fair in the facts and circumstances of the case. The age of the

deceased at the time of his death was 47 years and his take home

salary was more than Rs.6,000/- per month in 1999. He was

survived by his widow and two minor children aged 16 and 14

years. Taking into account the fact that the deceased was the

only breadwinner of the family and his widow was hardly 40 years

of age at the time of his death and his two children were minor

and also keeping in view the fact that the widow who is illiterate

has not filed any civil suit for compensation and the civil remedy is

barred by limitation, we feel that the interest of justice would be

met if the amount of compensation is enhanced to Rs.5 lacs.

Accordingly the respondent is directed to pay within six weeks

from today Rs.5 lacs as compensation to the appellant with simple

interest @ 9% p.a from the date of filing of the petition in the

Supreme Court i.e. 21st August, 2002 till the date of actual

payment, after adjusting the amount already paid to the appellant

as compensation pursuant to the order of the learned single Judge.

The appeal is accordingly disposed of.

                                           CHIEF JUSTICE



JULY 02, 2008                              S.MURALIDHAR
"v"                                           JUDGE