Bibhuti Charan Mohanty vs State Of Odisha And Ors. ..... Opp. ...
2023 Latest Caselaw 15979 Ori

Orissa High Court

Bibhuti Charan Mohanty vs State Of Odisha And Ors. ..... Opp. ... on 13 December, 2023

Author: B.R.Sarangi

Bench: B.R.Sarangi

                 ORISSA HIGH COURT: CUTTACK

AFR                    W.P(C) NO. 21267 OF 2016

      In the matter of an application under Articles 226 and
      227 of the Constitution of India.
                            ---------------

Bibhuti Charan Mohanty ..... Petitioner

-Versus-

State of Odisha and Ors. ..... Opp. Parties

For petitioner : M/s. R. Swain, B. Nayak, P.K. Mohanty and D. Sahu, Advocates

For opp. parties : Mr. D. Mohanty Addl. Government Advocate [O.Ps.1 to 3 & 5]

Mr. P.K. Mohanty, Sr. Advocate along with M/s. P.K. Pasayat, D.N. Mohapatra, J. Mohanty, P.K. Nayak, S.N. Dash and P. Mohanty, Advocates [O.P.4]

P R E S E N T:

THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

Date of Hearing: 06.12.2023:: Date of Judgment: 13.12.2023 // 2 //

DR. B.R. SARANGI, ACJ. The petitioner, an advocate by

profession, has filed this writ petition by way of public

interest litigation, seeking direction to the opposite

parties to control and check the roaming dogs within

the human inhabitants and also take necessary,

appropriate or adequate action for the protection of the

human lives and to pay compensation of Rs.10.00 lakhs

to the family of the deceased child.

2. The factual matrix of the case, in brief, is

that one male child, namely, Satyabrata Rout, son of

Hrudananda Rout at Jagannath Colony under

Kumbharpada Police Station, Puri, while playing by the

side of his house adjacent to the public road, on

01.12.2016, one after another four roving dogs furiously

attacked him in the hunting manner. Hearing his cry,

his mother and nearby neighbours came to the spot

immediately, but the attack of the street dogs was so

furious that within 2 to 3 minutes the child breathed

his last. Neither his mother nor the other inmates could

rescue the child from the clutches of the hunting dogs.

The said child (Satyabrata Rout) was the only son of his // 3 //

parents and his death caused havoc in the lives of the

parents so also the relatives.

2.1. The said incident was published on

01.12.2016 in Odia daily newspapers, namely, "The

Samaj" and "The Amrutadunia" and others. The

petitioner also came to know the fact from the reporter/

editor concerned of the aforesaid newspapers.

Therefore, he approached this Court by filing this writ

petition seeking direction to the opposite parties to

control and check the roaming dogs within the human

inhabitants and also take necessary, appropriate or

adequate action for the protection of the human lives

and to pay compensation of Rs.10.00 lakhs to the

family of the deceased child.

3. Mr. R. Swain, learned counsel appearing for

the petitioner contended that due to frequent roaming

and moving of dogs and other animals in the city

serious incidents and road accidents are being caused,

for which many people and children are losing their

lives. Therefore, the roaming of dogs and other animals // 4 //

in the city should be checked. It is further contended

that the frightful incident has happened due to

negligence on the part of the State Administration. It is

the duty of the State to save and protect the lives of the

people as per Article 21 of the Constitution. It is further

contended that the father of the deceased child has lost

his only son due to attack of the street dogs. Therefore,

for the mental agony and sufferings incurred, he should

be granted compensation of Rs.10.00 lakhs. But, the

Municipal Authorities have washed their hands by

giving a lump sum of Rs.50,000/- towards

compensation. To substantiate his contentions, learned

counsel for the petitioner has relied upon the judgment

of the Chhattisgarh High Court in Shobha Ram Rajwa

Ram Sahu v. State of Chhattisgarh, AIR Online 2018

CHH 1051 and Yusub v. State of Karnatak, AIR

Online 2022 KAR 399.

4. Mr. P.K. Mohanty, learned Senior Counsel

along with Mr. P. Mohanty, learned counsel appearing

for opposite party no.4-Puri Municipal Corporation,

referring to the counter affidavit, contended that // 5 //

after reported occurrence of the tragic incident,

opposite party no.4-Puri Municipa lity unde rtook

suitable measure s ABC (Animal Birth Control)

programme. A total of 1620 (sixteen hundred twenty)

numbers of stray dogs have been brought under

sterilization operation and the said process is

continuing. So far as compensation to the family of

the deceased child is concerned, he contended that

there is no provision under the Odisha Municipal Act,

1950 and/or any other statute for payment of any

compensation in case of such unfortunate incident.

Therefore, no liability arises for Puri Municipality in

case of any death that may have occurred because of

attack by stray dogs. But however, considering the

gravity of the matter and dealing with the instant case

sympathetically as well as giving due regard to the

order of this Court, the Executive Officer, Puri

Municipality contacted over telephone with the father

of the deceased, who is now residing in Athagarh,

Cuttack to submit the details of his bank account

to transfer the compensation as admissible. In // 6 //

order to alleviate the grievance of Hrudananda

Rout, the parents of ill-fated child died due to

stray dog bites in the year 2016, the Collector and

District Magistrate, Puri was appraised of the

matter, vide office letter no.7091 dated

24.01.2023, to grant financial assistance as

admissible. Thereafter, the Collector and District

Magistrate, Puri sanctioned an amount of

Rs.30,000/- (rupees thirty thousand) out of Chief

Minister Relief Fund, vide order no.394/Emer

dated 22.02.2023, and Rs.20,000/- (rupees twenty

thousand) from Red Cross Fund, vide order

no.48/R.C. dated 22.02.2023, in favour of

Hrudananda Rout, S/o- Nath Rout, At- Jagannath

Colony with a direction to the Tahasildar, Puri to

intimate the facts to the father of the deceased.

Thus, in total Rs.50,000/- (rupees fifty thousand)

has been paid to the father of the deceased child.

It is also contended that after the said tragic

incident, Puri Municipality has undertaken

suitable steps, as a result of which no such // 7 //

untoward incident has taken place within its

jurisdiction. To substantiate his contentions, he

has relied upon Sarla Verma (Smt.) And Ors. v.

Delhi Transport Corporation & Anr., (2009) 6

SCC 121.

5. Mr. D. Mohanty, learned Addl. Government

Advocate appearing for the State-opposite parties relied

upon the arguments advanced by Mr. P.K. Mohanty,

learned Senior Counsel appearing for opposite party

no.4-Puri Municipal Corporation and, as such, the

State has not filed any counter affidavit in this writ

petition.

6. This Court heard Mr. R. Swain, learned

counsel appearing for the petitioner; Mr. D. Mohanty,

learned Addl. Government Advocate appearing for the

State-opposite parties and Mr. P. K. Mohanty, learned

Senior Counsel along with Mr. P. Mohanty, learned

counsel appearing for opposite party no.4-Puri

Municipality in hybrid mode. The pleadings have been

exchanged between the parties and with the consent of // 8 //

learned counsel for the parties the writ petition is being

disposed of finally at the stage of admission.

7. There is no dispute in the instant case that

the father of the deceased child has lost his only child

due to attack by street dogs and, as such, the parents

could not be able to find out time to save his life by

carrying him to the hospital, as death occurred instantly

within 2 to 3 minutes of the attack by street dogs. To

compensate the mental agony and sufferings of the

parents of the deceased child, the Municipal Authority

has granted a sum of Rs.50,000/- as compensation.

8. In Hamlet, IV, v, in the words of Shakespeare

when sorrows come, they come not single species, but in

battalions. Due to such frightful event, the parents lost

their only child because of victimization of the street

dogs. As such nobody saved the life of Satyabrata, who

breathed his life within 2 or 3 minutes of the bites of the

dogs.

// 9 //

In "The Borderers", William Butler Yeats told

that "suffering is permanent, obscure, and dark, and

shares the nature of infinity"

9. As such, suffering is permanent, obscure, and

dark, and shares the nature of infinity. The death of the

only child has caused mental agony to the parents and

from that they have not well recouped and it will

continue throughout their lives. Apart from the same,

the mother of the child, who was the witness to the

situation for a while, imprinted the incident in her brain

and has been shading tears from her eyes which have

not dried till date. Feelings of the parents for losing their

only child because of attack by the street dogs cannot be

measured in terms of money. The Municipal

Administration, by handing over Rs.50,000/- to the

parents of the deceased child, have washed their hands

and are sitting tight without taking any remedial

measure, which is very painful. Payment of

compensation for the incident occurred on 01.12.2016 is

not a matter of showing sympathy or obligation or

compassion. Rather, it is to be seen whether the // 10 //

parents, who have lost their only child, are adequately

compensated for the irreparable loss or damages caused

to them due to negligence and callous attitude of the

Municipal Administration.

10. For just and proper adjudication of the case,

it is worthwhile to note that Article 21 mandates that no

person shall be deprived of his life and personal liberty

except according to the procedure established by law.

Personal liberty has an important role to play in the life

of every citizen. Life or personal liberty includes a right

to live with human dignity. Life and personal liberty are

inalienable to human existence, and existed even before

the advent of the Constitution. Hence, the Constitution

cannot be said to be the sole repository of these natural

law rights. Enjoyment of a quality life by the people is

the essence of the guaranteed right under Article 21 of

the Constitution. The protection of the Article extends to

all 'person', not merely citizens, including even persons

under imprisonment (as regards restrictions imposed in

jail).

// 11 //

10.1. Apart from the above, it is also note worthy to

refer to the relevant provisions of the Odisha Municipal

Act, 1950, which are extracted hereunder:-

"Sec.287-Prohibition against keeping animal so as to be a nuisance or dangerous- No person shall keep any animal on his premises so as to be a nuisance or so as to be dangerous.

Sec.288-Power to destroy stray pigs or dogs-(1) The council may, and, if so directed by the District Magistrate, shall give public notice that unlicensed pigs or dogs straying within specified limits will be destroyed.

(2) When such notice has been give, the Executive Officer may cause to be destroyed in any manner not inconsistent with the terms of the notice any unlicensed pig or dog, as the case may be, found straying within such limits."

11. May it be noted that basically Article 21

States the Protection of Lives and personal liberty. That

means, Article 21 mandates that no person shall be

deprived of his life and personal liberty except according

to the procedure established by law.

12. In State of Maharashtra V. Chandrabhan,

AIR 1983 SC 803, the apex Court held that Right to Life,

enshrined in Article 21 means something more than

survival or animal existence.

// 12 //

The same view has also been taken in Olga

Tellis v. Bombay Corporation, AIR 1986 SC 180,

D.T.C. v. Mazdoor Congress Union D.T.C., AIR 1991

SC 101, Re Noise Pollution (V), (2005) 5 SCC 733 and

Re Noise Pollution (VI), (2005) 8 SCC 794.

13. In Francis Coralie Mullin v. Union

Territory Delhi, Administrator, AIR 1981 SC 746 :

(1981) 1 SCC 608, the apex Court held that the right to

life would include the right to live with human dignity.

14. In Maneka Gandhi v. Union of India, AIR

1978 SC 597: 1978 1 SCC 248, the Apex Court held

that the right to life would include all those aspects of

life which go to make a man's life meaningful, complete

and worth living.

15. In Chameli Singh v. State of U.P., (1996) 2

SCC 549 : AIR 1996 SC 1051, the apex Court held that

the Right to Life guaranteed under Article 21 of the

Constitution embraces within its sweep not only

physical existence but the quality of life. Right to live

guaranteed in any civilised society implies the right to // 13 //

food, water, decent environment, education, medical

care and shelter.

16. In Unni Krishnan, J.P. v. State of Andhra

Pradesh, (1993) 1 SCC 645 : AIR 1993 SC 2178, the

apex Court held that several unenumerated rights fall

within Article 21, since the expression 'personal liberty'

is of the widest amplitude.

17. In U.P. Avas Evam Vikas Parishad v.

Friends Coop. Housing Society Limited, 1995 Supp

(3) SCC 546, the apex Court held that Right to shelter

has been held to be a fundamental right which springs

from right to residence under Article 19(1)(e) and right

to life under Article 21.

18. In Delhi Jal Board v. National Campaign

for Dignity and Rights to Sewerage and Allied

Workers, (2011) 8 SCC 568, the apex Court held that

the State and its agencies/instrumentalities or the

contractors engaged by them are under a constitutional

obligation to ensure the safety of the persons who are

asked to undertake hazardous jobs.

// 14 //

19. Therefore, if the provisions contained in

Article 21 of the Constitution, as mentioned above, are

taken into consideration, right to life with human

dignity is the prime consideration and the State should

ensure such right of its citizens by providing adequate

protection. In absence of the same, it can be inevitably

concluded that the State and its instrumentalities have

lacked in shouldering their responsibility and utterly

failed in due discharge of their duty as enshrined in the

Constitution of India.

20. The facts and circumstances available on

record lead to an irresistible conclusion that the death of

the child was caused due to negligence and, as such,

admitting such factum the Puri Municipality has paid

compensation of Rs.50,000/- to the parents of the

deceased child.

21. In Advanced Law Lexicon of 3rd Edition 2009,

'negligence' has been defined as follows:-

"Negligence" is not an affirmative word, it is a negative word; it is the absence of such care, skill and diligence as it was the duty of the // 15 //

person to bring to the performance of the work, which he is said not to have performed."

Negligence may consist as well in not doing the thing which ought not to be done as in doing that which ought not to be done when in either case it has caused loss and damage to another.

Negligence is "the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances reasonable and ordinary prudence would require to be exercised".

22. In Jay Laxmi Salt Works (P) Ltd. v. State of

Gujurat, (1994) 4 SCC 1, the apex Court held that

negligence in performance of duty is only a step to

determine if action of Government resulting in loss or

injury to common man should not go uncompensated.

23. In Poonam Verma v. Ashwin Patel, (1996)

4 SCC 332, 'negligence' has been dealt with by the apex

Court in the manner stated herein below:-

"Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. The definition involves the following constituents:

(1) a legal duty to exercise due care; (2) breach of the duty; and (3) consequential damages."

// 16 //

24. In M.S.Grewal v. Deep Chand Sood, (2001)

8 SCC 151 = 2001 SCC (Cri) 1426, the apex Court in

para 14 stated as follows:-

"Negligence in common parlance means and implies "failure to exercise due care, expected of a reasonable prudent person". It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do. Though sometimes the word "inadvertence" stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, is much more serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions- whereas inadvertence is a milder form of negligence, "negligence" by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow."

25. In Jacob Mathew v. State of Punjab, AIR

2005 SC 3180, the apex Court considering the meaning

of "negligence", held as follows:-

"The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is opposed to intention; (ii)careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or // 17 //

statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings."

26. In Malay Kumar Ganguly v. Dr.Sukumar

Mukherjee, (2009) 9 SCC 221= AIR 2010 SC 1162, the

apex Court considering the meaning of "negligence‟,

held as follows:

"Negligence is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account. Negligence is strictly nonfeasance and not malfeasance. It is omission to do what the law requires, or failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to dictates of ordinary prudence."

27. "Negligence‟ has also been considered in

various judgments of this Court as well as the apex

Court. In Consumer Unity and Trust Society v.

Chairman and Managing Director, (1995) 2 SCC 150,

the apex Court has held that "negligence‟ is absence of // 18 //

reasonable or prudent care which a reasonable person

is expected to observe in a given set of circumstances.

But the negligence for which a consumer can claim to

be compensated under this sub-section must cause

some loss or injury to him. In Prafulla Kumar Rout v.

State of Orissa, 1995 Cri LJ 1277, the apex Court has

held that negligence is an omission to do something

which a reasonable man guided upon these

considerations which ordinarily regulates conduct of

human affairs would do or the doing of something which

a prudent and reasonable man would not do. In

Ramesh Kumar Nayak v. Union of India, 1995 ACJ

443, the apex Court, considering the meaning of

"negligence", held that negligence means failure to

exercise the required degree of care and caution

expected of a prudent driver. In Chatra and another v.

Imrat Lal and others, 1998(1) Civ.LJ 670, the apex

Court, while defining the meaning of "negligence‟, has

stated that negligence means the breach of the

provisions of law as also the breach of the duty caused

by omission to do something which a reasonable man // 19 //

guided by those considerations which ordinarily

regulate the conduct of human affairs, would do or the

doing of something which a prudent and reasonable

man would not do. The negligence or the rashness

would depend upon the facts of each case.

28. In view of meaning attached to 'negligence', as

illustrated above, and applying the same to the present

case, it is made clear that adequate precautions have

not been taken by the Puri Municipality for

maintenance of the street dogs. There is no dispute

before this Court that the death of the child has been

caused due to attack of the street dogs. Thereby, the

Municipal Authorities have failed in their due discharge

of statutory duties enshrined in the Orissa Municipal

Act, 1950. Therefore, the negligence caused by the

Municipal Authorities in due discharge of their statutory

responsibilities cannot be absolved its liability to pay

compensation contending that there is no provision

under the Orissa Municipal Act, 1950 to pay

compensation. Therefore, in the present facts and // 20 //

circumstances, the State and its instrumentalities are

liable to pay compensation.

29. Under Sections 287 & 288 of the Orissa

Municipal Act, 1950, as quoted above, it is specifically

provided that no person shall keep any animal on his

premises so as to be a nuisance or so as to be

dangerous and the council may, and, if so directed by

the District Magistrate, shall give public notice that

unlicensed pigs or dogs straying within specified limits

will be destroyed. When such notice is given, the

Executive Officer shall cause destruction of any

unlicensed pig or dog, as the case may be, found

straying within such limits, in any manner not

inconsistent with the terms of the notice.

30. In course of hearing, Mr. P.K. Mohanty,

learned Senior Counsel appearing for opposite party

no.4-Puri Municipality contended that the death of the

child has been occurred due to bites of the street dogs

and, as such, compensation can be considered in the

light of the judgment of the apex Court in Sarla Verma // 21 //

(Smt.) and others v. Delhi Transport Corporation &

Anr., (2009) 6 SCC 121, as per the schedule referred to

in paragraph-40 of the said judgment. It is contended

that since the age of the child falls within the first

category, i.e., up to 15 years, the parents of the

deceased child are entitled to get compensation of

Rs.60,000/- and excluding compensation amount of

Rs.50,000/- the balance can be paid by the

Municipality Authority.

31. This Court is of the considered view that such

mathematical calculation has no application to the

present case. Because the Schedule, which has been

referred to in the aforesaid judgment, is only meant for

the death caused in motor vehicle accident but not in

the case where the authorities are negligent of their

conduct and not discharging their statutory duty

assigned to them.

32 In Fair v. London and North Western Rly.

Co., (1869) 21 LT 326, the Court of Queen's Bench held

that the necessity that the damages should be full and // 22 //

adequate. In Ruston v. National Coal Board, (1953) 1

AII ER 314, Singleton, L.J. said;

"Every member of this court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as there can be compensation for an injury, and to help the parties and others to arrive at a fair and just figure."

33. In Phillips v. South Western Railway

Co., (1874) 4 QBD 406, Field, J. held as follows:

"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered."

34. In Livingstone v. Rawyards Coal Co., (1880)

5 AC 25, Lord Blackburn has observed as follow:

"Where any injury is to be compensated by damages, in settling the sum of money to be given ... you should as nearly as possible get at that sum of money which will put the person who has been injured...in the same position as he would have been in if he had not sustained the wrong."

35. In H. West & Son Ltd. v. Shephard, 1958-

65 ACJ 504 (HL, England), Lord Morris in his // 23 //

memorable speech pointed out this aspect in the

following words:

"Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But the money cannot renew a physical frame that has been battered and shattered. All the Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards."

36. In Wards v. James, (1965) 1 AII ER 563,

speaking for the Court of Appeal in England, Lord

Denning, while dealing with the question of awarding

compensation for personal injury, laid down the

following three basic principles:-

"Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases, otherwise, there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, // 24 //

predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the pubic good."

37. In Perry v. Cleaver, 1969 ACJ 363 (HL,

England), Lord Morris of Borth-y-Gest said:-

"To compensate in money for pain and for physical consequences is invariably difficult but ... no other process can be devised than that of making a monetary assessment."

38. In Admiralty Comrs v. S.S. Valeria, (1922)

2 AC 242, Viscount Dunedin has observed thus:

"The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him."

39. In Basavaraj v. Shekhar, 1987 ACJ 1022

(Karnataka), a Division Bench of this Court held as

follows:

"If the original position cannot be restored-as indeed in personal injury or fatal accident cases it cannot obviously be-the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage."

40. In K. Narasimha Murthy v. Manager,

Oriental Insurance Co. Ltd., 2004 ACJ 1109 // 25 //

(Karnataka), the Division Bench of the Karnataka High

Court in its judgment rendered in an appeal preferred

by the claimant under Section 173 of Motor Vehicles

Act, 1988 succinctly laid down the legal principles,

after extracting the relevant paras from the decisions of

the cases in Admiralty Comrs. V. S.S. Valeria, (1922)

2 AC 242; Livingstone v. Rawyards Coal Co., (1880)

5 AC 25; H. West & Son Ltd. V. Shephard, 1958-65

ACJ 504 (HL, England); Ward v. James, (1965) 1 AII

ER 563; Basavaraj v. Shekhar, 1987 ACJ 1022

(Karnataka); Perry v. Cleaver, 1969 ACJ 363 (HL,

England); Phgillips v. South Western Railway Co.,

(1874) 4 QBD 406; Fowler v. Grace, (1970) 114 Sol Jo

193; and (1969) 3 AII ER 1528; and referring to

McGregor on Damages, 14th Edn. in support of the

conclusion for determination of the compensation for

personal injury both for pecuniary and non-pecuniary

losses in favour of the injured petitioners.

41. In Houghton Main Colliery Co. Ltd. In Re,

(1956) 3 All ER 300, the apex Court held that the word

"compensation" signifies that which is given in // 26 //

recompense an equivalent rendered-damages, on the

other hand, constitute the sum of money claimed, or

adjudged to be paid as compensation for loss or injury

sustained, the value estimated in money of something

lost or withheld. The term "compensation"

etymologically suggests the image of balancing one

thing against another; as, where there is loss of pension

rights, allowance for income-tax respectively payable in

respect of pension has to be deducted.

42. In State of Gujarat v. Shantilal

Mangaldas, AIR 1969 SC 634, the apex court held

that the expression "compensation" is not defined in

the Constitution. In ordinary parlance, the expression

"compensation" means anything given to make things

equivalent; a thing given to or to make amends for loss

recompense, remuneration or pay, it need not therefore

necessarily be in terms of money. The phraseology of

the constitutional provision also indicates that

compensation need not necessarily be in terms of

money, because it expressly provides that the law may

specify the principles on which, and the manner in // 27 //

which, compensation is to be determined and "given". If

it were to be in terms of money along, the expression

"paid" would have been more appropriate.

43. In Lucknow Development Authroity v.

M.K. Gupta, AIR 1994 SC 787, the apex Court held

that according to dictionary it means, "compensating or

being compensated; thing given as recompense". In

legal sense, it may constitute actual loss or expected

loss and may extend to physical, mental or even

emotional suffering, insult or injury or loss.

44. In Kiranabala Dandapat v. Secy. Grid

Corporation of Orissa Ltd. AIR 1998 Ori 159, this

Court held as follows:-

"'Compensation' means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined as given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damified may receive equal value for his loss or be made whole in respect of his injury; something given or obtained as equivalent; rendering of equivalent in value or amount an // 28 //

equivalent given for property taken or for an injury done to another; a recompense in value; a recompense given for a thing received recompense for whole injury suffered, remuneration or satisfaction for injury or damage or every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damage' although compensation may often have to be measured by the same rule as damages in an action for a breach."

45. Therefore, the compensation has to be

awarded as per the principle decided above by the apex

Court. As such, in Shobha Ram Rajwa Ram Sahu

(supra), the learned Single Judge of the Chhattisgarh

High Court has formulated question in paragraph-7 to

the effect as to whether the petitioner therein is entitled

to get compensation due to death of his wife for rabid

dog bite or not. Paragraphs 8 to 10 of the said

judgment read thus:-

"8. In Anupam Tripathi v. Union of India and others (2016) 13 SCC 492 and other connected matters the Supreme Court was considering conflicting issues brought before it by way of several petitions. On the one hand petitions have been filed for direction to the concerned State to control stray dogs; the other raised the issue of indiscriminating killing of stray dogs amounting to cruelty to animals. The Supreme Court referred to the provisions of the Prevention of Cruelty to Animals, Act, 1960 (for short 'the PCA Act') and Animal Birth Control (Dogs) Rules, 2001 (for short 'the Rules, // 29 //

2001'). The Supreme Court eventually constituted a committee to maintain complaints regarding injuries sustained by the persons in the dog bite, the nature and gravity of the injury, availability of medicines and the treatment administered to them, the failure of treatment and its cure and in case of unfortunate death, the particulars of the deceased and the reasons behind the same. The Supreme Court observed that on the basis of the report of the committee, subject to adjudication of the responsibility of the State, it would be in a position to think of granting of compensation.

9. In Shakuntala v. Govt of NCT of Delhi and Anr., W.P. (C) No.13771 of 2006 decided on 1-7- 2009 (Reported in AIR 2009 (NOC) 2791 (Del)) the High Court of Delhi was considering death of a roadside Redi/Thela (hand-cart) operator, a fruit vendor, as he was mauled by two fighting bulls. After referring to the provisions contained in Section 298 of the Delhi Municipal Corporation Act, 1957 and Section 202 of the New Delhi Municipal Council Act, 1994 and various decisions of the Supreme Court and other High Courts, it was held by the High Court of Delhi that the respondents are liable to compensate the petitioner in that case as the respondents were either negligent or indifferent towards their statutory duties. The High Court of Delhi awarded a sum of Rs.10.00 lass towards compensation.

10. In Sanjay Phophaliya v. State of Rajasthan and Ors., AIR 1998 Raj 96 relying on L.K. Koolwal v. State of Rajasthan and OPrs., AIR 1988 Raj 2 it was observed thus:

"it is primary, mandatory and obligatory duly (sic duty) of Municipality to keep city clean and to remove insanitation, nuisance etc. The Municipality cannot take plea whether funds or staff is available or not."

// 30 //

46. In D.K. Basu v. State of WB, (1997) 1 SCC

416 : (AIR 1997 SC 610), it has been laid down by the

Supreme Court that grant of compensation in

proceedings under Articles 32 and 226 of the

Constitution of India for the established violation of

fundamental rights guaranteed under Article 21, is an

exercise of the Courts under the public law jurisdiction

for penalising 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 old doctrine of only relegating

the aggrieved to the remedies available in civil law

limits the role of the courts too much, as the protector

and custodian of the indefeasible rights of the citizens.

The courts have the obligation to satisfy the social

aspirations of the citizens because the courts and the

law are for the people and expected to respond to their

aspirations. A Court of law cannot close its

consciousness and aliveness to stark realities. Mere

punishment of the offender cannot give much solace to

the family of the victim-civil action for damages is a // 31 //

long drawn and cumbersome judicial process.

Monetary compensation for redressal by the Court

finding the infringement of the indefeasible right to life

of the citizen is, therefore, a useful and at times

perhaps the only effective remedy to apply balm to the

wounds of the family members of the deceased victim,

who may have been the bread winner of the family.

47. In Nilabati Behera (Smt.) Alias Lalita

Behera (Through the Supreme Court Legal Aid

Committee) v. State of Orissa and others, (1993) 2

SCC 746 : (AIR 1993 SC 1960), it was held that the

primary source of the public law proceedings stems

from the prerogative writs and the Courts have,

therefore, to evolve new tools to give relief in public law

by moulding it according to the situation with a view to

preserve and protect the rule of law.

48. In Nilabati Behera (supra), the Supreme

Court quoted the first Hamlyn Lecture in 1949 under

the title 'Freedom under the Law' where Lord Denning

had said as under:-

// 32 //

"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorary, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence... This is not the task for parliament.... The courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country."

49. In the present case, the street dogs attack

within the Puri Municipality area can be regulated by

the provisions of the Odisha Municipal Act, 1950. As

such, the cleanliness of the town and maintenance of

the stray dogs and pigs are the statutory responsibility

of the Municipal Authorities. In the judgment rendered

by the Chhattisgarh High Court in Shobha Ram

Rajwa Ram Sahu (supra), a reference has been made

to the judgment and order dated 22.08.2017 of the said

High Court passed in W.P. PIL No.24 of 2017 // 33 //

(Regarding death of Kumari Divya Verma, D/o-Shri

Ashok Verma due to Rabies v. State of Chhattisgarh

and another), reported in ILR 2017 Chh 1042, wherein

while entertaining the suo motu PIL, the High Court of

Chhattisgarh awarded compensation of Rs.10,00,000/-

to the mother of the deceased, who died on account of

attack by street dog.

50. Similarly, in Yusub (supra), wherein the

petitioner sought for compensation of Rs.25,00,000/-

on account of death of his son Master Abbasali Yusub

Sanadi, the Karnataka High Court, referring to the

judgments of the various High Courts and taking note

of Nilabati Behera (Smt.) alias Lalita Behera

(supra), directed to make payment of Rs.10,00,000/- as

compensation to the petitioner along with interest @

6% per annum calculated from 29.11.2018, being the

date of death of the minor son, within a period of four

weeks from the date of receipt of a copy of the order.

51. Taking into consideration the aforementioned

judgments and applying the same to the present case, // 34 //

this Court is of the considered view that the father of the

deceased child is entitled to get compensation of

Rs.10,00,000/- (Rupees Ten Lakhs) due to death caused

by the street dogs bite. Accordingly, this Court directs

opposite party no.4 to pay Rs.10,00,000/- (Rupees Ten

Lakhs) as compensation to the father of the deceased

within a period of four weeks from the date of receipt of

the copy of this judgment, failing which the amount will

carry interest @ 6% per annum from the date of passing

of the judgment till such payment is made.

52. In the result, therefore, the writ petition is

allowed, but, however, there shall be no order as to

costs.

                                                             (DR. B.R. SARANGI)
                                                           ACTING CHIEF JUSTICE

          M.S. RAMAN, J.           I agree.


                                                                (M.S. RAMAN)
                                                                    JUDGE



                           Orissa High Court, Cuttack

Reason: Authentication     The13thDecember, 2023, Alok
Location: ORISSA HIGH COURT
Date: 14-Dec-2023 12:45:08