Partly allowed

Muna Biswal v. State of Odisha

Orissa HC6 Feb 2023WP(C)/20079/2015

Case brief

AI extract

What is this about?

The Court awarded monetary compensation to the petitioners for the death of their son caused by slipping into an overflowing open drain, balancing prior payments from the OHRC and Municipal Corporation, directing the State and Corporation to contribute equally towards the total award.

What did the court decide?

State of Odisha and Bhubaneswar Municipal Corporation jointly directed to pay Rs. 10,00,000/- (Rs. 3,00,000/- each) to the Petitioners.

Muna Biswal Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.20079 of 2015

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Muna Biswal & Anr.

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Petitioners

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-versus-

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State of Odisha & Ors.

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…. Opposite Parties

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

ORDER

06.02.2023

Order No

06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. B.B. Swain, learned counsel for the Petitioners and Mr. A.P. Das, learned Addl. Standing Counsel appearing for the State-Opp. Parties as well as Mr. S.K. Sahoo on behalf of Mr. P.K. Mohanty, learned Sr. Counsel appearing on behalf of Bhubaneswar Municipal Corporation.

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3. This writ petition has been filed seeking a direction on the Opp. Parties to pay compensation of Rs. 15,00,000/- (Rupees Fifteen lakhs) because of the death of the Petitioner’s son on 25.08.2015. It is contended that while the Petitioner’s son was returning from tuition with his mother, he slipped into the open drain while it was overflowing after heavy rain that lashed the Capital City in the fateful day of 25.08.2015. The dead body of the minor son was recovered almost 1k.m. away from the missing place. It is further contended that at the relevant point of time the minor son was reading in Class-IV.

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4. Alleging negligence on the part of the Bhubaneswar Municipal Corporation as well as the State Authority in not maintaining the drainage system in the capital properly because of which the Petitioner lost his minor son, the present writ petition was filed seeking compensation of Rs. 15,00,000/- (Rupees Fifteen lakhs).

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5. Mr. Swain, learned counsel for the Petitioner in support of his submission relied on a decision of this Court passed in the case of Jambeswar Nayak & Anr. Vs. State of Odisha & Ors. on 30.09.2021. This Court in Para 19 & 23 of the said decision has held as follows:-

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“19.1 In Nilabati Behera v. State of Orissa (supra), the Supreme Court explained the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in action on tort. The Court said:

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“It may be mentioned straightway that award 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 defense in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings.”

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19.2 After referring to the decision of the Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago (No.

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Page 12 of 20 2), (1978) 2 All ER 670, the Supreme Court in Nilabati Behera held:

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“It follows that 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 rights 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 defense of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defense being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental rights is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.”

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19.3 In the same decision, the Supreme Court explained that public law proceedings serve a different purpose than the private law proceedings. It observed:

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“The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Page 13 of 20 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 civilize public power but also to assure the citizen 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 penalizing 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 wrong doer 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

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competent jurisdiction or/and prosecute the offender under the penal law.”

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19.4 Again in Nilabati Behera , the Supreme Court it was explained that the remedy under Article 32 or 226 would be granted once it was established that there has been an Page 14 of 20 infringement of fundamental rights of the citizen and no other form of appropriate redressal by the Court in the facts and circumstances of the case is possible. It was emphasised that “this remedy in public law has to be more readily available when invoked by the have nots who are not possessed of the wherewithal for enforcement of their rights in private law, even though this exercise is to be tempered by judicial restraint to avoid circumvention by private law remedy when more appropriate.”

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23. In Darshan v. Union of India 1999 (79) DLT 432 the Delhi Court was dealing with a claim by the widow and minor children of a bus driver who had fallen into an open manhole and died of drowning. On the facts of the case, it was held that it was a case of res ipsa loquitur, and therefore compensation could be awarded under Article 226. The Court:

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“Compensation had also been awarded by this Court as well as by the Apex Court in writ jurisdiction in several cases of custodial deaths. Coming to instant case, it is one of res ipsa loquitur, where the negligence of the instrumentalities of the State and dereliction of duty is writ large on the record in leaving the manhole uncovered. The dereliction of duty on their part in leaving a death trap on a public road led to the untimely death of Skattar Singh. It deprived him of his fundamental right under Article 21 of the Constitution of India. The scope

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and ambit of Article 21 is wide and far Page 19 of 20 reaching. It would, undoubtedly, cover a case where the State or its instrumentality failed to discharge its duty of care cast upon it, resulting in deprivation of life or limb of a person. Accordingly, Article 21 of the Constitution is attracted and the petitioners are entitled to invoke Article 226 to claim monetary compensation as such a remedy is available in public law, based on strict liability for breach of fundamental rights.”

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6. Mr. A.P. Das, learned ASC on the other hand contended that the Petitioner had earlier approached the Odisha Human Rights Commission and pursuant to the direction of the said Commission a sum of Rs. 3,00,000/- (Rupees three lakh) has been released as compensation in favour of the Petitioner. Therefore, in view of such order passed by the OHRC, no further claim is entertainable. It is also contended that the fault lies with the Authority of Bhubaneswar Municipal Corporation and accordingly no further liability is to be saddled on the State Authority.

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7. Mr. S.K. Sahoo, learned counsel appearing for the BMC on behalf of Mr. P.K. Mohanty, learned Sr. Counsel on the other hand contended that immediately on coming to know about the incident the Corporation suo moto released a sum of Rs. 1,00,000/- (Rupees One lakh) as compensation in favour of the Petitioner. Accordingly, no further compensation is payable by the Corporation.

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8. Having heard learned counsel for the Parties and taking into account the grounds taken in the writ petition and the decision relied on by Mr. Swain, this Court taking into account the fact that a

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sum of Rs. 4,00,000/- (Rupees Four lakhs) has already received by the Petitioner towards compensation, while assessing the total compensation at Rs. Rs. 10,00,000/- (Rupees ten lakhs), directs the State-Authority to pay a sum of Rs. 3,00,000/- (Rupees three lakhs) and the Bhubaneswar Municipal Corporation the balance Rs. 3,00,000/- (Rupees three lakhs) in favour of the Petitioner. The amount as directed shall be released in favour of the Petitioner within a period of two (2) months from the date of receipt of this order.

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9. The writ petition is disposed of.

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(Biraja Prasanna Satapathy)
Judge
Sneha

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Muna Biswal v. State of Odisha

Case brief

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Muna Biswal v. State of Odisha

Case brief

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