Delhi High Court

Yogita vs Government Of Nct Of Delhi And Anr. on 31 January, 2011

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      W. P. (C) No.21139 of 2005

                                     Reserved on: 10th January 2011
                                     Decision on: 31st January 2011


       YOGITA                                             ..... Petitioner
                               Through: Mr. Rakesh Prabhakar with
                               Ms. Amrita, Advocate.


                      versus


       GOVERNMENT OF NCT OF DELHI
       AND ANR.                              ..... Respondents
                   Through: Ms. Zubeda Begum, Addl.
                   Standing Counsel for R-1/GNCTD.
                   Mr. P. V. Kapur, Senior Advocate with
                   Mr. Jeevesh Nagnath and
                   Ms. Ikasha Bhalla, Advocates for
                   R-2/Liberty Cinema.

       CORAM: JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
          allowed to see the judgment?                                 Yes
       2. To be referred to the Reporter or not?                       Yes
       3. Whether the judgment should be reported in Digest? Yes

                                JUDGMENT

31.01.2011

1. The Petitioner is the widow of deceased Shri Sita Ram who died in a

terrorist attack on 22nd May 2005 at 8.20 pm in the Liberty Cinema

Hall owned by Respondent No. 2. The Government of National

Capital Territory of Delhi („GNCTD‟), Respondent No. 1, gave the

Petitioner an ex gratia amount of Rs.1 lakh. The deceased left behind

the Petitioner and two minor children aged five and three years. In the

circumstances, the present petition has been filed for directions to

Respondent Nos.1 & 2 to jointly and severally pay damages in the sum

of Rs.9,60,000/- calculated inter alia on the basis that the Petitioner‟s

late husband who was working as a plumber and was aged 30 years,

earning an amount of Rs.4,000/- per month.

2. A reply on behalf of Respondent No.1 has been filed by the Deputy

Commissioner of Police (DCP) (Special Cell), Lodhi Colony, Delhi. It

is stated that on 22nd May 2005, two bomb blasts took place at the

Liberty and Satyam Cinema Halls in New Delhi. In the blast, which

took place at Liberty Cinema Hall in Karol Bagh, New Delhi at about

8.20 pm, 55 persons were injured and one died. FIR No.206/2005

under Sections 302/307 IPC and Sections 3/4/5 of the Explosive

Substances Act, 1908 was registered at Police Station Desh Bandhu

Gupta Road, New Delhi. After the case was transferred to the Special

Cell, Delhi Police it was revealed during investigations that the

offences were committed by a terrorist group and Sections

121/121A/122/123/120B IPC and Sections 16/17/18/19/20/23 of the

Unlawful Activities (Prevention) Act, 1967 were also added in the

FIR.

3. The affidavit of Respondent No. 1 further states that in the

investigations into the bomb blasts which took place in the Liberty

Cinema as well as Satyam Cinema revealed that the accused were the

members of the Babbar Khalsa International („BKI‟). The accused

appeared to have taken training in Pakistan under the supervision of

BKI chief Wadawa Singh and a large quantity of explosive armed

material was recovered at the instance of the accused. 5.7 Kgs. of

RDX, 23 detonators, 1 timer, Rs.2.94 lakhs cash, 2 Kgs. Gold, 1 rifle

.303 bore, 90 live rounds of .303 bore rifle, 3 empty magazine of .303

bore rifle, 5 magazine of 30 bore pistol, one Tata Sierra vehicle and

one Santro Car used for transportation of the explosives to the Cinema

Halls besides other articles were recovered. After setting out the

details of the investigations carried out, the affidavit states that there

was no failure on the part of the Police to take measures to avoid such

incidents and for ensuring safety of the people. The incident is termed

as a "terrorist attack". It is claimed that the incident in which the

Petitioner‟s husband died was not on account of any negligence on the

part of the Police or the State authorities. It is claimed that there is no

breach of duty and therefore, no liability under the law of torts is

attracted.

4. Respondent No. 2 has filed a counter affidavit in which while not

denying that the unfortunate death of the Petitioner‟s husband took

place on account of the bomb blast on 22nd May 2005, it is stated that

Respondent No. 2 itself is a victim of the said terrorist attack. It is

stated that the following security measures were taken by Respondent

No. 2 on the advice of the Delhi Police for the security of those

visiting the cinema hall:

"(i) Customers were not allowed to carry bags, packages, food items, boxes etc. into the movie hall;

(ii) One doorframe metal detector and a hand metal detector are used at the main entrance (there is no other way any person can enter) and all persons entering the picture hall have to pass through the metal detectors;

(iii) After the patrons pass through the metal detectors, they are physically frisked and checked by security personnel before they can enter the auditorium;

(iv) The bathrooms, dustbins, the auditorium and the space under each seat is checked before each show;

(v) Parking lot attendants check all the cars including the undercarriage, by using mirrors;

(vi) A slide is shown on the screen requesting the patrons to immediately inform the management, if they see any unidentified object;"

5. It is contended that Respondent No. 2 on its part had taken all

reasonable measures to ensure the safety of persons visiting the cinema

hall. It is denied that there was any negligence or breach of duty of

reasonable care on the part of Respondent No. 2. It is denied that

Respondent No. 2 is liable in any manner to compensate the Petitioner

or the two children for the death of her husband.

6. Mr. Rakesh Prabhakar, learned counsel for the Petitioner, relied on

the judgment of the Court in Kamla Devi v. Government of NCT of

Delhi 2004 (114) DLT (Delhi) 57 and contended that it was a

responsibility of the State to ensure that dangerous explosive

substances like RDX were not accessible to criminals and terrorists.

Obviously, the State had been unable to prevent the occurrence of the

explosion. Relying on the decision of the Supreme Court in D. K.

Basu v. State of West Bengal (1997) 1 SCC 416, it was submitted that

it was the responsibility of the State to secure the life and liberty of its

citizens and the liability of the losses arising out of a bomb blast must

essentially be borne by the State. Reliance was also placed on the

decisions of the Supreme Court in Tamil Nadu Electricity Board v.

Sumathi (2004) 4 SCC 543 and Nilabati Behera v. State of Orissa

(1993) 2 SCC 746. It was further submitted that the compensation

awarded by the State Government ex gratia was hardly sufficient for

the Petitioner to manage a family of two minor children. Adopting the

calculation of compensation as arrived at in Kamla Devi's case, the

Petitioner recalculated the amount claimed as Rs.7,84,083.18/-

(including simple interest @ 7%) towards compensation for herself

and her two minor children.

7. Mr. P. V. Kapur, learned Senior counsel appearing for Respondent

No. 2 submitted that Respondent No. 2 was not undertaking any

inherently dangerous activity and, therefore, the question of strict

liability would not arise. Referring to the judgment in Perry v.

Kendricks Transport Ltd. (1956) 1 All E R 154, it is pointed out that

where the defendant can show that the act in question was brought

about by someone that defendant had no control, and defendant would

not be negligent. He referred to certain observations in Sukhraji Bhuj

v. Calcutta State Transport Corporation AIR 1966 (Cal) 620, to the

effect that "people must guard against reasonable probabilities and not

fantastic possibilities". He referred to the decisions in M.C. Mehta v.

Union of India (1987) 1 SCC 395, Rajkot Municipal Corporation v.

Manjuben Jayantilal Nakum (1997) 9 SCC 552 and Shyama Devi v.

National Capital Territory of Delhi AIR 1999 Delhi 264. Referring to

certain passages in Clerk & Lindsell on Torts [VII Ed. 1995 Sweet &

Maxwell, London, p. 332], Mr. Kapur submitted that in fixing liability

as well as compensation there has to be an objective reasonable criteria

arrived at by balancing costs and benefits and community values.

8. The above submissions have been considered. That a bomb blast

took place at Liberty Cinema Hall in which the Petitioner‟s husband

died is not in dispute. The question therefore is limited to whether, for

the death of the Petitioner‟s husband, the Respondents are jointly and

severally liable to compensate his family and to what extent. The

investigations by the Delhi Police so far have revealed the involvement

of BKI, a banned organization in carrying out the bomb blast both at

Liberty Cinema as well as Satyam Cinema on the same date. They

used RDX and other devices to detonate the explosion. Clearly, a

terrorist attack of this nature could not have been prevented by the

owner of the cinema hall, i.e., Respondent No. 2 who is stated to have

taken reasonable precautions as detailed in the affidavit filed by him.

9. The law concerning the liability of the State to account for the safety

and security of its citizens and to compensate for the losses suffered as

a result of acts of omissions and commissions of the State or its

agencies is well established. In D.K. Basu v. State of West Bengal, the

Supreme Court observed that the Court was required to order

compensatory relief "...not by way of damages as in the civil action

but by way of compensation in 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. To repair the wrong done

and give judicial redress for legal injury is a compulsion of judicial

conscience." It was held that the award of compensation for

established infringement of the indefeasible rights guaranteed in

Article 21 of the Constitution "is a remedy available in the public law

since the purpose of public law is not only to civilize public power but

also to assure citizens that they live in 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 penalizing the wrong doer 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." The

decision in D.K. Basu v. State of West Bengal, has been reiterated and

followed in Lata Wadhwa v. State of Bihar and M.S. Grewal v. Deep

Chand Sood (2001) 8 SCC 151.

10. In Shyama Devi v. National Capital Territory of Delhi, a Division

Bench of this Court was dealing with a case where a Head Constable

had been killed in a rocket explosion. The facts were that the rocket

had been detected lying near Post No. 6 on railway land. It was seized

by a Sub-Inspector of Police Station Naraina in the presence of two

Sub-Inspectors of the Bomb Disposal Squad. Subsequently, a Sub-

Inspector of the Bomb Disposal Squad dismantled the rocket into five

pieces after defusing it. The five pieces were placed in the plastic bag

and kept as case property in FIR No.19 of 1996 registered at Police

Station Naraina. The case property was kept with the Head Constable

Om Prakash. On 15th May 1997, when Om Prakash was taking out the

case properties for being taken to the court for a hearing fixed on that

date, an explosion took place as a result of which Om Prakash and

another constable sustained injuries. On 24th May 1997, Om Prakash

succumbed to the injuries.

11. The Division Bench held that the heavy duty of care lay upon the

State since the explosive device was kept at the Malkhana. As the

device was not defused, the duty of care was clearly breached by the

State and its concerned officials. In para 5, the Division Bench held as

under:

"In such like cases the Courts expect strict and high standard of care from them. When there is a failure to perform duty which results in physical injury, deprivation of life or loss of property, Article 21 of the Constitution is attracted and the aggrieved party is entitled to invoke Article 226 to claim monetary or pecuniary compensation as such a remedy is available in pubic law based on strict liability for breach of fundamental right."

12. After referring to the decided cases of the Supreme Court, the

Division Bench awarded a compensation of Rs. 3,50,000/- to the wife

and the two minor children of the deceased Om Prakash.

13. In Kamla Devi's case, the facts were that the deceased was on a

public road in the Paharganj area in the vicinity of Arjun Guest House

when a massive explosion brought the building crashing down. It

resulted in the death of deceased Uday Singh who was an electrician

dealing in the sale and repair of electrical goods in village Wazirpur in

district Gurgaon, Haryana. He left behind his wife Kamla Devi and an

infant son. 16 others were also killed in the said bomb blast in which

RDX was used. Investigations revealed that RDX was brought to the

building by one Manzoor Ahmed Khan, an active member of a J & K

terrorist organization. He too died in the explosion that took place

while he was assembling the improvised explosive device in the said

building. In the said case too, a total ex-gratia amount of Rs.50,000/-

was paid to the family of the victims by the GNCTD. This Court found

that while primarily it is the terrorist who was liable for the death of

innocent citizens, next it was the State which had failed to prevent the

terrorist from harming innocent citizens. It was the responsibility of

the State to ensure that no person shall be deprived of his life except

according to procedure established by law as provided in Article 21 of

the Constitution. It was then observed as under:

"The State failed to prevent the terrorist from harming innocent citizens like Uday Singh. Terrorism itself is an indication of the inability of the State to curb resentment and to quell fissiparous activities. Social malaise in itself is a reflection of the State's inefficiency in dealing with the situation in a proper manner. Apart from the general inability to tackle the volatile situation, in this case, the State agencies failed in their duty to prevent terrorists from entering Delhi. It was their responsibility to see that dangerous explosives such as RDX were not available to criminals and terrorists. The incident occurred as there was a failure on the

part of state to prevent it. There was failure of intelligences they did not pick up the movement of this known and dangerous terrorist. So, it would be extremely difficult even to suggest that the State did not fail in its duty towards the late Uday Singh and his family."

14. As regards the Respondents, including the Guest House owner,

this Court in Kamla Devi was of the opinion that determining their

liability would require a thorough investigation which could not be

gone into in a petition under Article 226 of the Constitution. However,

this did not mean that the Petitioner was without any remedy. After

referring to the decisions in D. K. Basu, Nilabati Behera and M. S.

Grewal, this Court in para 16 held as under:

"16. The public law demand, as distinct from the private law tort remedy, is that crime victims be given compensation even in ''no-fault'' situations by the State. 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 the petitioner by the State for the death of Uday Singh for the breach of the constitutional guarantee of Article 21 that ''no person shall be deprived of his life .. except according to procedure established by law"."

14. In the considered view of this Court, facts in the present case are

more or less similar to the facts in Kamla Devi's case and therefore,

this Court is inclined to adopt the reasoning in the said judgment and

hold that in the instant case as well the State is liable to compensate

the Petitioner and her two minor children for the death of her husband

in the bomb blast that took place at the Liberty Cinema Hall.

15. It may be mentioned that the approach of this Court in Ashwani

Gupta v. Government of India 117 (2005) DLT 112 was no different.

There the Petitioner was participating in the Maharaja Agrasen Jayanti

procession in Sadar Bazaar, Delhi. It was stated that the Petitioner lost

his right leg below the knee, both hands except two fingers on the left

hand and suffered injuries to both his eyes. There again the plea taken

on behalf of the GNCTD was that though the Government takes all

precautions to eliminate such violence in the civic society, the

Government cannot be made liable to compensate for the loss of life

and injuries. The Court referred to the observations of the High Court

of Punjab and Haryana in Punjab Istri Sabha v. Surjit Singh Barnala,

Chief Minister, Punjab (1990) 97 PLR 493 and observed in para 29 as

under:

"29. The failure of the State to protect the life and limbs of its citizens itself is sufficient to give rise to the liability. Nothing more needs to be said - res ipsa loquitor. Such sufferance goes against the very grain of creation of a State or comity of individuals. The individual has surrendered certain individual rights for such safety. Taxes are paid for the functioning of a government. Safe environment is the very basic function. The citizens gave to themselves the Constitution of India and adopted a democratic polity. Franklin Roosevelt said:

"Democracy, the practice of self government, is a covenant among free man to respect the rights and liberties of their follows."

It is this respect of the rights of the petitioner which have been violated. He suffered grievous injuries and 90% disability on account of the wrongful acts of other persons which the State was not able to prevent. It was undoubtedly the duty of the State to have done so."

16. In B. L. Wali v. Union of India AIR 2005 Del 110, where the

Petitioners were claiming compensation for the losses suffered on

account of their house in the Kashmir Valley being burnt down on

account of violence, this Court again held the State to be liable and

awarded compensation.

17. Consequently, in the present case also this Court has no hesitation

in holding that Respondent No.1 GNCTD is liable to compensate the

Petitioner and her two children for the death of her husband as a result

of the bomb blast that took place at the Liberty Cinema Hall. As held

in Kamla Devi, the liability of Respondent No. 2 cannot be possibly

determined in these proceedings. At the same time the Petitioner

cannot be left without a remedy.

18. As regards the amount of compensation to be determined, this

Court finds that the computation of said amount by the Petitioner in

the affidavit dated 3rd August 2010 is consistent with the approach

adopted by this Court in Kamla Devi's case. In paras 6-9 of the said

affidavit, it is stated as under:

"6. That according to the judgment delivered by Hon‟ble B.D. Ahmed in Kamla Devi vs Government of NCT of Delhi & Anr 2004 (76) DRJ 739 the amount of compensation given to the dependents of the person died in terrorist attack should be calculated on two tier system.

(a) Standard compensation or so called conventional amount for non-pecuniary losses such as loss of consortium, loss of parent, pain and loss of amenities; and

(b) Compensation for pecuniary loss of dependency.

7. That as per the judgment "the standard compensation" or the conventional amount" has to be revised from time to time to counter inflation and the consequent erosion of the value of the rupee. Keeping this in mind, in case of death, the standard compensation in 1996 is worked out

at Rs. 97,700/-. This needs to be updated for subsequent year on the basis of the consumer price index of industrial workers (CPI-W) brought out by the Labour Bureau, Government of India." In the year 1996 the standard amount was Rs. 97,700/- when the CPI-W Index was average of 334 (as per the index given on www.labureou.nic.in/indtab.htm1 with base year of 1982=100). In the year 2005 the CPI was average 536 as per the Labour Bureau, Government of India. Now the standard amount which was 97,700 in the year 1996 should be updated according to the CPI-W index in the year 2005. The calculation for this is as under. When the CPI-W average was 334 in the year 1996 standard compensation was 97,700/-. Now when the CPI-W average is 536 in the year 2005 standard compensation would be 97,700/334x536=1, 56788.02/- (Rs. One Lakh Fifty Six Thousand Seven Hundred Eighty Eight and two paisa only).

8. That the compensation for the pecuniary loss of dependency is calculated on the basis of loss of earnings for which the multiplier method is to be employed as per the judgment of Kamla Devi vs. Government of NCT of Delhi. The appropriate multiplier is taken from the Second Schedule of the Motor Vehicles Act, 1988. First thing which we need to calculate is loss in our family. This is calculated as follows as per the judgment. My family consisted of 4 members before the death of my husband. Two adult persons and two minor. Me and my husband were adult in the family and we are having two sons who are minors. Now according to the judgment the family should be divided into units:-

2 units for each adult person and 2 units for each minor. Sitaram=2 units, Yogita = 2 units, son = 1 unit, son = 1 unit, Total unit = 6 units.

Annual income of the deceased Shri Sitaram was Rs.48,000/- (Rupees Forty Eight Thousand). If the income is divided among all family members as value per unit = Rs.48,000/6 = Rs.8,000/- (Eight Thousand Only) per unit. The amount Rs.8,000/- (Eight thousand only) is the annual expenditure per unit. So, Sitaram‟s annual expenditure would be 8000x2 units = Rs.16000/- (Rupees sixteen thousand only) which should be deducted from the family‟s annual expenditure as he is died i.e. 48000- 16000 = 32,000/- (Rupees Thirty Two Thousand Only). Now the appropriate multiplier as according to the Second Schedule of the Motor Vehicle Act, 1988 is 18 (which given as according to the age of the deceased when he died. My husband was 30 years old for which appropriate multiplicand is 18. And so the loss of dependency comes to 32000x18 = Rs.5,76,000/- (Rupees five lac seventy six thousand only).

9. That the total compensation would be calculated by adding both the standard compensation and the pecuniary loss of dependency. Now the total compensation to be given would be 156788.02+576000 = Rs.732788.02/- (Rupees Seven Lac Thirty Two Thousand Seven Hundred Eighty Eight and Two Paise only)."

19. The Respondents have not contested the above statements or the

calculation. This Court finds that the calculation of the compensation

is more or less on the lines of the law laid down by this court in Kamla

Devi's case and it merits acceptance. Consequently, this Court directs

Respondent No. 1 GNCTD to pay the Petitioner and her two minor

children, a total compensation of Rs.7,32,788.02 along with simple

interest @ 6%, i.e., Rs.7,76,755.30 rounded off to Rs. 7,77,000/-

which shall be deposited in this Court by Respondent No.1 within six

weeks. The total compensation of Rs. 7,77,000/- shall be distributed in

equal shares of one-third each in the following manner.

20. The Petitioner shall forthwith thereafter be paid her share, i.e.,

Rs.2,59,000/- by the Registry upon producing proper proof of