Lt. Col. R.C. Prashar vs Union of India (UOI) and Others

Bhawani Singh, J.—Petitioner Lt. Col. R.C. Prashar was posted at Dharamshala during the year 1987. He had in his occupation bungalow No. 2, Bharatpur Lines, Dharamshala Cantonment. It was provided by the respondents and the petitioner was living there along with his family. This bungalow was built in the year 1926 as per the record maintained by the respondents.

On November 24/25, 1987, fire started in the chimney of this bungalow and within a short time, the whole building was destroyed by the fire. Besides Government furniture, the petitioner lost his personal articles, value of which was to the extent of Rs. 49,370/-. By order of Station Head Quarter, Dharamshala Cantt. No. 2068/01, dated January 5,1988, Court of Enquiry was constituted which consisted of Presiding Officer Lt. Col. K.S. Thapa, two members� Major Sudarshan and Captain Vinayak Bhat. During the course of its proceedings, the Court of Enquiry inspected the spot and took note of the loss sustained by the petitioner and the respondents. It also received evidence through various persons including the petitioner. On conclusion of the proceedings, the Court of Enquiry drew its conclusions and gave its findings and opinion. Some of the important aspects of this report under the heading ''Finding of the Court'' may be stated thus:

(2) The bungalow No. 2, Bharatpur Lines, was constructed in 1926. The capital cost of the building including electric fittings was Rs. 23,195/- (witness No. 9).

XXX XXX XXX (4) The bungalow No. 2, Bharatpur Lines, was allotted to Lt. Col. R.C. Prashar, 2 JAT and the same was occupied on 10th February, 1987 (witness No. 1).

XXX XXX XXX (12) The life of a chimney is about 15 to 20 years. As per MES records no chimney in bungalow No 2 was repaired or replaced since its construction in 1926 (witness No. 9).

XXX XXX XXX (14) The preliminary investigations were carried out which reveal that the fire broke out from chimney of the fireplace in children''s room where the fire was lit on 24th November, 1987 (App. D).

(15) The total loss of the personal belongings of Lt. Col. R.C. Prashar was approximately Rs. 49,370/- (Appendix ''A'' attached).

(16) The total loss of the MES property is amounting to Rs. 11,548/- (Appendix ''E'' attached).

Under ''Opinion of the Court'', the Court of Enquiry stated that in the opinion of the court:

(a) The fire broke out in bungalow No. 2, Bharatpur Lines, due to hot smoke and sparks "escaping out of the perforations in the chimney, which heated up the wooden wall or ceiling and thus resulted in a major fire.

(b) The loss of MES property amounting to Rs. 11,548/- and loss of government property amounting to Rs. 1,870/- be written off charge and the loss to be borne by the State.

(c) The serviceable salvaged stores of bungalow No. 2, Bharatpur Lines, to be taken over by the MES and accounted for.

(d) The officer to be suitably compensated.

The petitioner wrote communication dated 12th February, 1990 (Annexure-4) requesting the fourth respondent to pay him Rs. 49,370/- for the loss of his belongings and drew the attention of the respondents to the opinion of the court that the petitioner was to be suitably compensated for the loss. The petitioner also pointed out that the cause of the fire was unserviceable chimneys which had not been replaced since the construction of the building, though the life of the chimneys was fifteen to twenty years and the fire had resulted due to hot smoke and sparks escaping out of the perforations in the chimney, which heated up the wooden wall and ceiling, thus causing the major fire.

At a later stage, say, 10th October, 1990, the petitioner again served a notice on the respondents through his lawyer not only demanding the compensation for the loss of his articles (Rs. 49,370/-), but also for mental torture and agony (Rs. l,00,000/-).

Another notice dated 11th October, 1990 was also served by the petitioner on the respondents wherein the claim of Rs. 49,370 has been extended to Rs. 70,000/-by inclusion of Rs. 20,000/- on account of the rise of price index. However, there is no mention of claim of Rs. 1,00,000/- claimed earlier through notice of 10th October, 1990.

A perusal of paras 2, 3 and 4 of document dated December 31, 1990 at page 28 of the petition (Annexure C) discloses that the respondents have admitted that fire had broken out in the bungalow in the occupation of the petitioner and that the Court of Enquiry had recommended to compensate the petitioner suitably for the personal loss but the higher authorities had not recommended the case of the petitioner, though the recommendations relating to the loss to the Government property are that the same be written off. Then it has also been said that no correspondence had been received from the petitioner relating to the loss and that no provision existed for providing compensation to the petitioner. Finally, it has been said that the Union of India was not responsible for the fire, meaning thereby, the respondents were not responsible for the payment of compensation to the petitioner for the loss he had sustained in this fire.

In the reply-affidavit of the respondents, besides the above stated pleas, it has been averred that the recommendation of the Court of Enquiry was invalid, since it had no power and jurisdiction to compensate the petitioner suitably for the losses sustained by him. It is also the case of the respondents that the compensation for the losses is to be assessed by a Board of Officers in terms of para 354 of Pay and Allowances Regulations for Officers of the Army (Revised Edition, 1954) and not by a Court of Enquiry. A perusal of the reply further discloses that the respondents have seated that the Court of Enquiry had not blamed the maintenance services nor the petitioner had complained of any defect or asked for the repair of the fireplaces in the house. The estimates of personal losses suffered by the petitioner were his own and had not been authenticated from any records. The Court of Enquiry had not admitted the loss of the petitioner to the extent of Rs. 49,370/-. The Court of Enquiry had no means to assess the personal loss of the petitioner. It had also not blamed any of the respondents for the cause of fire.

The petitioner has also filed rejoinder-affidavit in this case in which claim for the payment of compensation has been reasserted. The petitioner also says that the respondents kept mum over his claim despite repeated representations to higher authorities in accordance with appropriate procedure. These are the main features of the case before us.

Mr. Krishan Mohan Aggarwal, who is appearing for the petitioner, submitted that Regulations for the Army are statutory in character, since they have been framed under the Army Act, 1951. Section 191 provides for the framing of Rules, while Section 192 for framing of Regulations. In order to sustain this plea, reliance was placed on Supreme Court decision reported in Capt. Virendra Kumar Vs. Union of India (UOI), . The learned counsel for the respondents did not dispute this proposition and after examining the legal position explained to us by the learned counsel for the petitioner, we hold that Army Rules and Regulations are statutory in character.

Mr. Krishan Mohan Aggarwal then submitted that the Court of Enquiry was appointed in pursuance of the order of 3rd respondent under Regulation 1195 and it has proceeded strictly in accordance with this regulation. In our opinion, Court of Enquiry is not only a statutory body but also plays significant role in the Army. Here, regulation 1195 specifically postulates appointment of the Court of Enquiry to look into the circumstances leading to the fire incident. It has to deal with the matter in accordance with the procedure prescribed. It comprised high ranking officers and during the course of its proceedings, it collected evidence and gave its findings and opinion.

The contention that this kind of claim could be dealt with under para 354 of the Defence Service Regulation (Pay and Allowances Regulation) for Officers of the Army does not appeal to us for a variety of reasons. Apparently, it does not specifically mention that claim sustained by an army personnel in a fire incident is also to be processed under it. Further, this provision was never brought to the notice of the petitioner, therefore, it is too late for the respondents to set up this plea to defeat the claim of the petitioner. Now, it appears to be a technical plea in view of the findings and the opinion of the Court of Enquiry sustaining the claim of the petitioner for compensation. The respondents have sought to seek assistance from the Court of Enquiry on matters which are helpful to them but have repudiated the findings and opinion qua matters which are against them. Such a stand is unfair and cannot be legitimately and reasonably appreciated and accepted.

The fire incident had taken place and the respondents have not denied. The respondents have not alleged that the constitution of Court of Enquiry was illegal or improper. As said, they have accepted its findings and opinion on all other aspects except as to the claim of the petitioner for compensation without any cogent reason for that.

The Court of Enquiry has found that this bungalow was in the occupation of the petitioner at the relevant time. It was built in 1926. The life of chimney is about fifteen to twenty years and as per the records, the chimney in this bungalow was not repaired and replaced since its construction. The fire broke out from the chimney of the fireplace due to hot smoke and sparks escaping out of the perforations in the chimney which heated the wooden wall or ceiling, thus resulting in the major fire. The total loss of the personal belongings of the petitioner was approximately Rs. 49,370/- (claimed by the petitioner itemwise as per list at page 12 on the case file).

Mr. M.L. Sharma, learned counsel for the respondents, submitted that the Court of Enquiry has not held any of the respondents responsible for fire, therefore, there is no liability to pay the compensation for the loss sustained by the petitioner. Further, the estimation of compensation is virtually the claim preferred by the petitioner before the Court of Enquiry which does not reflect the exact loss suffered by the petitioner. Both these submissions have no force. The negligence of the respondents is writ large when we notice that the building was constructed in 1926 and despite the fact that the life of a chimney is fifteen to twenty years, it had not been replaced. The Court of Enquiry has clearly pointed out how the fire took place and we have reproduced these findings hereinabove. It was the responsibility of the respondents to have replaced the chimney at intervals so that there could be no cause for fire incident. They failed to discharge this essential function. They should have realised that the non-replacement of chimney could lead to fire to the building and consequently, loss to the life and property of the officers to whom they owed a duty to provide safe living accommodation. Had they taken this care, they could have easily detected the perforations in the chimney and replaced it. Even from the records, they could have noticed that the chimneys in this building had not been replaced at intervals.

The petitioner, we feel, had placed the loss sustained by him before the Court of Enquiry and subsequently, before the respondents through communications. Perusal of list of personal items destroyed in this fire and placed on the file of this case discloses that the petitioner has not only mentioned certain articles, but has also given approximate costs thereof. The respondents had not placed any material before the Court of Enquiry disputing this extent of claim. In such a situation, the findings of Court of Enquiry on this aspect cannot be called to be erroneous and without evidence. The recommendations for compensating the petitioner suitably, in the facts and circumstances of this case, are quite legal and equitable. The claim of the petitioner does not appear to us to be exaggerated, vague and substanceless. It should have been redressed since long by recourse to provisions like Section 27 of the Army Act, 1951, or Rule 6 of the Army Rules, 1954 etc.

If we read the report of the Court of Enquiry, it is apparent that the cause of fire was on account of the negligence of the respondents in not replacing the chimney and the findings of the Court of Enquiry exonerating the officials of the respondents on this aspect are contrary to its findings taken as a whole.

Lastly, Mr. M.L. Sharma submitted that the petitioner should have applied to the Chief of Army Staff u/s 20 of the Army Act and having failed to do so, no claim is admissible. The petitioner submits that his whole case was before the respondents and he had been pursuing the matter, in accordance with the Army discipline, with the authorities at the appropriate level. Further, he had been sending legal notices to the respondents including the Central Government so that the matter could be decided by the appropriate authority at the appropriate level. We see great substance in these submissions. The respondents should have decided this matter at the appropriate level and in an appropriate manner and we see no culpable lapse on the part of the petitioner in pursuing the matter.

The sum total of our examination of the matter is that the petitioner has sustained loss to his personal belongings on account of the lapses of the respondents, as already noticed above, and they are responsible to make good his loss. Accordingly, we allow this petition and direct the respondents to pay to the petitioner Rs. 49,370/- with interest at the rate of 9 per cent per annum from 25th November, 1987 till the date of payment. We decline the prayer of the petitioner for damages for shock, injury and sufferings to the family of the petitioner on account of this fire, for want of proper evidence. However, he is at liberty to agitate this claim before the civil court, if he so chooses.

We also allow him costs of this petition to the extent of Rs. 1,000/-.