1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF OCTOBER, 2016 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.15990/2015 (GM-RES) ... PETITIONER BETWEEN: LEESHA D/O DORESWAMY RAJU AGED ABOUT20YEARS NO.47/23, 9TH CROSS PARIMALANAGAR NANDINI LAYOUT BANGALORE-560 096 (BY SRI. SUNIL KUMAR H, ADV.) AND:
1. THE SECRETARY DEPARTMENT OF HOME AFFAIRS GOVERNMENT OF KARNATAKA VIDHANASOUDHA BANGALORE-560 001 2. THE SECRETARY UNION HOME MINISTRY GOVERNMENT OF INDIA NORTH BLOCK CENTRAL SECRETRIAT NEW DELHI-110001 ... RESPONDENTS (BY SRI. PRABHULINGA K NAVADGI, ADDL.ASG. FOR SMT. ANUPAMA HEGDE, CGC FOR R2 SRI Y D HARSHA, AGA. FOR R1) 2 THIS PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO (1) DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATION OF PETITIONER DATED0501.2015 VIDE ANNEX-A AND PROVIDE THE PETITIONER A COMPENSATION OF RS.1 CRORE (ONE CRORE) ALONG WITH INTEREST BY MOULDING A SPECIAL RELIEF TO THE PETITIONER BY TAKING INTO ACCOUNT HER YOUNG AGE, MERITORIOUS ACADEMIC RECORD AND DISABILITY ON PAR WITH THE AMOUNT WHICH WOULD HAVE BEEN AWARDED TO THE PETITIONER UNDER THE FATAL ACCIDENTS ACT OR MOTOR VEHICLES ACT OR WORKMEN COMPENSATION ACT AND ETC. THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDER
S, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING : ORDER
Though several prayers are made in the instant petition, at the time of hearing the same is limited to the first and fourth prayers made in the petition and the petitioner seeks consideration in that regard.
2. The case of the petitioner is that she had suffered severe injuries in the bomb blast that occurred on 17.04.2013 at 11th Cross, Malleswaram, Bangalore, near the office of the Bharathiya Janatha Party. She was shifted to the K.C. General Hospital for treatment and was subsequently shifted to M.S.Ramaiah Memorial Hospital and has undergone operations which led to prolonged treatment. In spite of such treatment she has 3 suffered more than 50% disability. The petitioner contends that she was a student of Maharani Lakshmi Ammanni College pursuing her Bachelor of Computer Applications and presently though she has completed the course she is unable to secure employment due to the disability. Even while she was undergoing the course she has suffered a lot of hardship as she had to repeatedly go for medical check up which affected her studies. The petitioner further contends that her father who is the only earning member is a daily wager who is not able to meet the medical expenses and the other expenses. Hence a representation was made to the first respondent seeking compensation. Since the representation had not been considered, the petitioner was before this Court in W.P.No.41527/2014. This Court through the order dated 18.11.2014 had noticed that the representation had not provided sufficient details, as such this Court permitted the petitioner to file a detailed fresh representation to enable the first respondent to consider the same. The petitioner has accordingly submitted the representation dated 4 05.01.2015 as at Annexure- A. The representation has not been considered in the manner as desired by the petitioner. Hence the petitioner is before this Court in this petition.
3. Heard Sri. H.Sunil Kumar, learned counsel Sri Prabulinga K. Navadgi, Additional Solicitor General and Sri Y.D. Harsha, learned Government Advocate for the respective parties and perused the petitioner papers.
4. Insofar as the facts involved in the above case, there appears to be no dispute. However considering the circumstance in which the petitioner got injured in a bomb blast, the respondents contend that the compensation as provided under the Central Scheme for Assistance to Civilians Victims/Family of Victims of Terrorist, Communal and Naxal Violence has already been disbursed. That apart the State Government has disbursed more than the amount as provided under the Government Order dated 18.08.2014 by meeting the medical expenses incurred by the petitioner. Hence the 5 respondents contend that the prayer made in this petition is not sustainable.
5. The learned counsel for the petitioner while contending that petitioner had suffered the disability for no fault of hers and since her safety was not protected by the respondents, the petitioner is entitled to be compensated towards the pecuniary as well as non- pecuniary loss suffered by the petitioner. In support of his contention the learned counsel cited the decision of the Hon'ble Division Bench of the High Court of Himachal Pradesh wherein the compensation of Rs.1,25,00,000/- was awarded reckoning the disability to be at 100% in that case.
6. A detailed perusal of the cited order will disclose that the consideration therein was in respect of the petitioner, who was a minor and had come in contact with a high tension live wire and got electrocuted. In that circumstance having referred to the Electricity Act and Rules which provides for the care and precautions to be taken by the respondents as 6 mandated therein and on arriving at the conclusion that the child had come in contact with the live wire due to the negligence and laxity of the respondents, had taken note of several decisions with regard to the manner in which the compensation is to be calculated and has awarded the compensation. The decision made in that circumstance will not be of assistance to this case.
7. The learned counsel for the petitioner has next relied on the decision of the Hon'ble Supreme Court in the case of V. Krishnakumar -vs- State of Tamil Nadu and others ( C.A. No.8065/2009 dated 01.07.2015). In that case the Hon'ble Supreme Court considered the award of compensation on applying the principle of restitutio in integrum i.e., to put back the person to the same position as he would have been if he had not sustained the wrong. However, such consideration was made in the case of medical negligence committed by the Doctors working in the Government Hospital and as such the State was held liable for payment of the compensation since there was negligence and deficiency in service by the doctors 7 appointed by the respondent. This decision also will not be of assistance to decide the instant case as the facts on which it was dealt is not similar.
8. The learned Assistant Solicitor General, on the other hand has cited the decision of the Hon'ble Supreme Court in the case of N. Nagendra Rao & Co.-. vs- State of A.P. [(1994)6 SCC205. Though in the said case, in an action brought out to claim damages by filing a suit for the wrongful seizure under the Essential Commodities Act was decreed by upholding the decree of the Trial Court, the consideration made in that regard to fix the liability only for 'acts of State' when it is answerable in torts and the liability does not arise otherwise is sought to be pointed out. Hence, reliance in that regard is placed on paragraph 19 and 24 which read as follows, “19. 'Sovereignty' and "acts of State" are thus two different concepts. The former vests in a person or body which is independent and supreme both externally and internally whereas latter may be act done by a delegate of sovereign within the limits of power vested in him which cannot be 8 questioned in a Municipal Court. The nature of power which the Company enjoyed was delegation of the "act of State". An exercise of political power by the State or its delegate does not furnish any cause of action for filing a suit for damages or compensation against the State for negligence of its officers. Reason is simple. Suppose there is a war between two countries or there is outbreak of hostilities between two independent States in course of which a citizen suffers damage. He cannot sue for recovery of the loss in local courts as the jurisdiction to entertain such suit would be barred as the loss was caused when the State was carrying on its activities which are politically and even jurisprudentially known as 'acts of State'. But that defence is not available when the State or its officers act negligently in discharge of their statutory duties. Such activities are not acts of State. In Sir Anthony Musgrave24 the Privy Council, while determining liability of the Governor, observed that it cannot "be assumed that he possesses general sovereign power. His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that, for acts of power done by a Governor under and within the limits of his commission, he is protected, because in doing them he is the servant of the Crown, and is exercising its sovereign authority; the like protection cannot be extended to 9 acts which are wholly beyond the authority confided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on behalf of the Crown, nor to be in any proper sense acts of State."
The Company was, thus, immune from being sued in courts only in those limited cases where its activities were political and mainly in relation to the Indian State. It did not enjoy any sovereign immunity like the Crown in England.” “24. In the modern sense the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of power and manner of its exercise. Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law. A law made by a legislature may be bad or may be ultra vires, but since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law. Nor can the Government in exercise of its executive action be sued for its decision on political or policy matters. It is in public interest that for acts performed by the State either in its legislative or executive capacity it should not be answerable in torts. That would be illogical and impractical. It 10 would be in conflict with even modern notions of sovereignty. One of the tests to determine if the legislative or executive function is sovereign in nature is whether the State is answerable for such actions in courts of law. For instance, acts such as defence of the country, raising armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature. Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil Procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the courts in such matter is impliedly barred.” 9. The learned Assistant Solicitor General would further contend that in matters of the present nature the compensation will be as per the Scheme formulated for that purpose, as per which the payment has already been made to the petitioner in compliance of the interim direction of this Court. Despite the same if the petitioner is to claim damages by alleging negligence against the State and contend that the bomb blast occurred due to such negligence, such consideration cannot be made in a writ petition under Article 226 of the Constitution but 11 will have to file a suit and tender evidence in that regard to prove such allegation and to quantify the damages. To that effect the decision of the Hon'ble Supreme Court in the case of T.N.Electricity Board -vs- Sumathi and others [(2000) 4 SCC543 cited with reference to paragraph 10 thereof reads as hereunder, “10. In view of the clear proposition of law laid by this Court in Sukamani Das case when disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P. State Co-op.Land Development Bank Ltd. vs. Chandra Bhan Dubey, where one of us (Wadhwa, J.) was a party, this Court after examining various decisions of the courts on the power of the High Court under Article 226 of the Constitution observed that the language of Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of 12 jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. This Court then observed :
"[I].t may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 13 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. ‘Person’ under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court 14 does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by- pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial ‘bull in china shop’ in the exercise of its jurisdiction under Article 226.”” 10. If in the above backdrop the instant facts are considered, there can be no dispute to the fact that the petitioner in the usual course was present at a place in the heart of the city to attend the coaching classes. As a citizen, it was no doubt legitimate to expect that the said place was safe and secure in all respects which is the faith she had reposed in the State and the state is also enjoined with the obligation of ensuring the safety to its citizens. Further, except for the recent minor blasts that have taken place, Bangalore is still perceived to be a safe city, free from terrorist activities. Despite the same the terrorists have caused the bomb blast and such activity has now become a common phenomenon in all parts of the world despite adequate safety measures being adapted. In such circumstance if this 15 Court blindly accepts the allegation that there was intelligence failure on the part of the State and impute negligence only because a blast occurred in the heart of the city and on that basis, if compensatory damages are ordered while considering a writ petition under Article 226 of the Constitution, it will lead to dangerous consequences for the State and a wrong precedent will be laid as it will not be in consonance with legal position on that aspect.
11. Having stated so, what cannot be lost sight is also that though the State may not be in a position to stop such attacks despite best efforts, adequate provision should be made to duly compensate such victims keeping in view the expectation of a citizen with reference to the right under Article 21 of the Constitution though it may not be a case of infringement of such right by the act of State in the strict sense. The first respondent – State Government has in that regard referred to the Government Order dated 18.08.2014 which provides for payment of compensation under different circumstances which 16 includes for terror attacks. The second respondent- Government of India has also relied on the Guidelines of Central Scheme for Assistance to Civilian Victims/Family of Victims of Terrorist violence. In the Order of the State Government, insofar as disablement of an earning member the maximum lump sum compensation of Rs.2,00,000/- and for temporary disablement Rs.1,00,000/- is provided, while in the case of death of an earning member it is Rs.5,00,000/-. The scheme of the Central Government provides for only Rs.3,00,000/-.
12. On the face of it, the schemes as noticed above will indicate that the lump sum amount indicated therein is more in the nature of grant rather than compensation. The amount provided therein is not based on any intelligible method, criteria or formula besides the fact that it is too inadequate. There is not even a basic reference to the avocation or future prospects of the victim in that light; the nature of injuries suffered and the treatment or the manner in which the medical expenses which may vary from case 17 to case will be taken into consideration for the purpose of reimbursement or providing compensation. Though all these aspects are not taken into consideration, this Court de hors all these aspects cannot also determine the amount of compensation adopting any other method or adopting the criteria followed under the other enactments. That is because it can neither be treated as a tortuous liability for the reasons noticed above nor can this Court unilaterally substitute the scheme by over stepping and entering the domain of the executive or the legislature. However, the respondents will have to bestow their attention to all these aspects to take a policy decision in the matter and formulate an appropriate scheme or a legislation to be in tune with the times.
13. In that regard it would also be appropriate for the respondents to take note of the schemes available in the other parts of the world with reference to the compensation provided to terror victims and the manner in which it is quantified and paid, more particularly The Justice for United States Victims of State Sponsored 18 Terrorism Act and The Criminal Injuries Compensation Scheme, 2012 formulated under the Criminal Injuries Compensation Act,1995 in the United Kingdom which may assist the wisdom of the respondents to formulate an appropriate Scheme. The Scheme published by the United Kingdom in the digital form as a guide for the people who have applied was noticed by this Court. It is seen that despite providing adequate compensation, the introduction to the scheme contains a paragraph which is apt to be noticed. It reads as hereunder; "The rules of the Scheme and the value of the payments awarded are set by Parliament and are calculated by reference to tariff of injuries. Although the size of the award varies to reflect the seriousness of the injury, we know that it will never fully compensate you for what you have suffered or lost - it is just society's way of recognising that you have been a victim of terrorism" (emphasis supplied) 14. The respondents herein also should show such sensitivity to at least comfort its citizens by reasonably compensating or rehabilitating, without 19 driving such victims to litigation. In that light if the provision made in the Government Order and the Scheme of the respondents referred to above is taken note, the amount indicated is so meagre that we cannot even consider it as Society's way of recognising that a citizen of this country has been a victim of terrorism and such citizen has been empathised with at least, if not cared for. Having said so, this Court will fail in its duty if it is not noticed that the first respondent – State Government has in fact acted a bit more with sensitivity in the instant case. Apart from the sum of Rs.3,00,000/- sanctioned by the order dated 20.08.2015 so as to comply with the interim order of this Court, a sum of Rs.9,47,078/- is paid towards the medical expenses as depicted in Annexures - R4 and R5 produced along with the memo dated 28.09.2016.
15. But in the instant facts, something more is required to be done even if not to the extent as sought by the petitioner if a young citizen as that of the petitioner who is in the present state for no fault of hers, that too when she was at the place of incident to 20 attend the coaching class to better her prospects in life should get a feeling that the State and the Society has recognised her as a victim of terrorism and cared for her instead of leaving her to resign to her fate. In that regard, as noticed above the petitioner has submitted a representation dated 05.01.2015 as permitted by this Court earlier. In the said representation the petitioner has made a fervent request to consider her case as a special case on humanitarian grounds for ex-gratia payment, financial assistance to clear the medical bills and a government job under disability quota. The first respondent – State Government while forwarding the same to the second respondent has once again shown sensitivity in making a recommendation to consider the request of the petitioner favourably with reference to her disability. Therefore, with regard to the disability suffered by the petitioner and that she should be rehabilitated there cannot be a second opinion. The petitioner was aged about 17 years when the incident occurred and was a PUC student. Probably, if the tragedy had not struck, 21 she would have pursued a professional course as she was attending coaching classes for that purpose. Despite the same, she has studied an alternate course but literally she cannot stand on her feet which would include her physical disability and the nightmare continues. It certainly calls for being considered as a special case by the respondents.
16. Hence notwithstanding the existing Scheme or the decision if any to bring about an appropriate Scheme in future, the second respondent shall take note of the representation as a special case, take into consideration all aspects and take an objective decision relating to an appropriate quantum of amount to be paid to the petitioner. That apart the first respondent – State Government shall also take the said representation into consideration to provide a suitable job, commensurate with the qualification of the petitioner de hors the selection process by considering it on compassion grounds either in any of the Departments of the Government or in any of the Government of Karnataka undertaking to which a 22 direction from the Government would bind them. Further, if any medical bills are due in respect of the treatment for the injuries suffered, the actual expenses incurred shall be paid by the first respondent- State Government by treating it as a special case. While considering the representation, the second respondent may secure details from the first respondent with regard to the decision taken by them relating to providing a job to the petitioner, take note of that aspect as one of the mitigating factors to that extent while ultimately deciding on the monetary relief to be granted.
17. For all the aforestated reasons, the following: ORDER
i. The second respondent is directed to consider the representation dated 05.01.2015 keeping in view the observations made above and take a decision within four months from the date of receipt of a copy of this order. 23 ii. The first respondent is directed to consider the representation dated 05.01.2015 in so far as providing a job to the petitioner on compassionate grounds and for payment of the medical expenses, in the manner as indicated above. iii. The job shall be provided to the petitioner as expeditiously as possible, but not later than three months from the date on which a copy of this order is received. iv. This writ petition is accordingly disposed of with no order as to costs. Sd/- JUDGE akc/bms