AI Structured Summary
Not yet generated for this judgment
Judgment
V.K. Shukla, J.—Present writ petition has been filed by the Petitioner, questioning the validity of order dated 25.02.2009 passed by Additional District Magistrate (Finance and Revenue), Deoria in case No. 2, Smt. Sunita Tiwari v. Executive Engineer and Ors. holing that the claim application moved on behalf of the Petitioner was not maintainable.
Brief background of the case is that the Petitioner is a widow of late Sri Prakash Tiwari, who died on 04.05.2005 in fatal accident caused by broken and hanging high tension electric wire at Pokharbinda, police station Rampurkarkhana, District Deoria. Qua the said incident in question information was given to the police, which was registered in G.D. No. 14; inquest was done on 05.05.2005. Post mortem was also conducted and cause of death was reported due to shock. The Petitioner filed application on 21.09.2005 u/s 6 of the Public Liability Insurance Act, 1991. On the said application notices were issued and thereafter, said application has been dismissed as not maintainable. At this juncture, present writ petition has been filed.
In the present case, on presentation of writ petition on 30.06.2009, this Court passed following order:
Notice on behalf of Respondent No. 1 has been accepted by the Standing Counsel. Respondent Nos. 2, 3 and 4 are represented by Sri Promod Bharadwaj, Advocate.
Respondents pray for and are granted four weeks'' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.
List on 20th August, 2009.
Thereafter, on 15.02.2010 six weeks'' further time was accorded to Sri H.P. Dubey, Advocate for filing counter affidavit. On 07.04.2010, this Court passed following order:
Shri Bhardwaj, learned Counsel prays for one week and no more time to file a response to the writ petition, which raises a pure legal issue namely as to whether the Public Insurance Liabilities Act applies in cases of the accident as involved in the present case or not.
List in the next cause list.
On 22.04.2010, the case was directed to be listed in the next cause list, showing the name of Sri Pramod Bharadwaj as counsel for the Respondents. On the matter being taken up today, Sri Alok Saran Tiwari, learned Counsel for the Petitioner, has filed information slip, clearly mentioning therein that Sri Pramod Bharadwaj has refused to accept the notice. In such a situation and in this background, as anxiety of the Court is that the matter should be decided, the case is being heard and disposed of exparte.
Sri Alok Saran Tiwari, learned Counsel for the Petitioner, contended with vehemence that the view which has been taken by the authority concerned is totally incorrect view and is in the teeth of the judgment of this Court in the case of U.P. State Electricity Board v. District Magistrate, Dehradun 1997 UPLBEC (2) 1344 wherein view has been taken that the "electricity" falls within the definition of "hazardous substance", and as such proceedings in question were maintainable under the provisions of Public Liability Insurance Act, 1991, as such writ petition deserves to be allowed.
Countering the said submissions, learned standing counsel, representing Respondent Nos. 1 and 4, on the other hand, contended that rightful view has been taken in the matter, as such no interference be made.
This Court in the case of U.P. State Electricity Board v. District Magistrate, Dehradun 1997 UPLBEC (2) 1344, has already considered the issue that electricity falls within the definition of "hazardous substance" and the accident, caused on account of it, is covered under the provisions of the Public Liability Insurance Act, 1991. Relevant extract of the judgment, as contained in paragraphs 42 to 44, is being quoted below:
Hence in my opinion ''hazardous substance'' as defined in Section 2(d) of the 1991 Act is not to be confined to a substance specified in the notification issued by the Central Government, but it includes all substances which come under the definition of ''hazardous substance'' under the Environment (Protection) Act, 1986, with this exception that if any such substance is also notified by the Central Government u/s 2(d) of the 1991 Act then it will be a ''hazardous substance'' only if it exceeds the quantity specified in the said notification. Thus the notification issued by the Central Government u/s 2(d) of the 1991 Act can only narrow down the scope of ''hazardous substance'' as defined under the Environment (Protection Act, 1986, but substances which are not specified in the said notification will nevertheless be regarded as ''hazardous substances'' under the 1991 Act if they come within the definition of ''hazardous substances'' under the Environment (Protection) Act, 1986.
I have already stated above that electricity is "hazardous substance" as defined under the Environment (Protection) Act, 1986 and hence I reject the submission of the learned Counsel for the Petitioners that it is not a hazardous substance since it has not been included in the Notification dated 24-3-1992.
THE principle of strict Liability Section 3(2) of the 1991 Act places a strict liability (liability without fault) in cases of such accident due to ''hazardous substances'' and it is not necessary for the claimant to plead that the death or injury was caused by wrong or negligent act of any person.
The High Court of Madhya Pradesh also in the case of M.P. State Electricity Board Vs. The Collector and Another, has followed the aforesaid judgment in case of U.P. State Electricity Board v. District Magistrate, Dehradun 1997 UPLBEC (2) 1344 and has taken the view that electricity is "hazardous substance". Relevant extract of the judgment, as contained in paragraphs 15 to 20 of the said judgment, is being excerpted below:
Brother Justice Dipak Misra while deciding Writ Petition No. 2165/2001 has not only relied upon the decision in the case of U.P. State Electricity Board and Another Vs. District Magistrate and Others, but has held that "electricity" is a "hazardous substance".
From the above discussion it is clear that the electricity is a "hazardous substance".
The next question for consideration is whether a notification is required to be made by the Central Government quantifying the electricity by notification as mentioned in Section 2(d) of the Public Liability Insurance Act, 1991. The definition of "hazardous substance" has been given in Section 2(d) of the Public Liability Insurance Act, 1991 which is as under:
2(d)- "hazardous substance" means any substance or preparation which is defined as hazardous substance under the Environment (Protection) Act, 1986, and exceeding such quantity as may be specified, by notification, by the Central Government." The definition of "hazardous substance" has been borrowed from Section 2(e) of the Environment (Protection) Act, 1986. As per Section 2(e) of the said Act, definition of "hazardous substance" reads as under:
2(e)-''hazardous substance'' means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism, property or the environment.
The submission of Shri V. Rusia, learned Counsel for the Petitioner is that until and unless the electricity is notified by the Central Government, it cannot fall within the meaning of hazardous substance and definition has been carved out especially for the purpose of Public Liability Insurance Act, 1991.
"Hazardous Substance" has been defined in Section 2(e) of the Environment (Protection) Act, 1986, according to which it means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings. Physico-chemical properties of electricity are definitely liable to cause harm to human beings and other living creatures, plants, micro-organism etc. Thus, it has to be regarded as "hazardous substance" within the meaning given in Section 2(e) of the Environment (Protection) Act, 1986 and once when something is hazardous irrespective of quantity, In my opinion it is not necessary for the Central Govt. to issue a notification as it is not necessary to notify electricity as required in Section 2(d) of the Public Liability Insurance Act, 1991 as it is hazardous irrespective of its quantity. A thing which is known as intensely hazardous has to be treated as hazardous substance so as to effectuate the purposes for the enactment of the Act of 1991. Whatever irrespective of proportion is hazardous has to be treated as hazardous one. Some article may not be hazardous in small quantity but electricity is not one of such article. Only these hazardous substances have to be notified which may be dangerous on exceeding such quantity then it becomes necessary to specify the quantity. In my opinion it is not necessary for the electricity to be notified u/s 2(d) of the Act of 1991 as in any quantity electricity is hazardous. It has to be taken as hazardous substance within the meaning of Section 2(d) of the Act of 1991. Section 2(d) of the Act of 1991 does not have effect narrowing down the meaning of "hazardous substance" as defined in Section 2(e) of the Act of 1986. Similar question was answered in U.P. State Electricity Board and Another Vs. District Magistrate and Others, and in M.P. State Electricity Board, Jabalpur v. Collector, Mandla in W.P. No. 2165/2001 decided on 15-4-2002. In U.P. State Electricity Board (supra), it was held in Para 42 as under:
Hence in my opinion ''hazardous substance'' as defined in Section 2(d) of the 1991 Act is not to be confined to a substance specified in the notification issued by the Central Government, but it includes all substances which come under the definition of ''hazardous substance'' under the Environment (Protection) Act, 1986, with this exception that if any such substance is also notified by the Central Government u/s 2(d) of the 1991 Act then it will be a ''hazardous substance'' only if it exceeds the quantity specified in the said notification.
@page-MP161
Thus the notification issued by the Central Government u/s 2(d) of the 1991 Act can only narrow down the scope of ''hazardous substance'' as defined under the Environment (Protection Act, 1986, but substances which are not specified in the said notification will nevertheless be regarded as ''hazardous substances'' under the 1991 Act if they come within the definition of ''hazardous substances'' under the Environment (Protection) Act, 1986.
In the case of M.P. Electricity Board, Jabalpur (supra) it was held as follows:
On a reading of aforesaid two definitions it cannot be construed that the substance which is not notified by the Central Government cannot be regarded as a ''hazardous substance''. The terms used u/s 2(d) of the Act are of wide amplitude and of immense magnitude. They are not to be understood in a narrow, restricted or confined manner. On the contrary, it covers a large canvas. The dictionary clause does not lay down a postulate that unless a substance is notified it cannot be regarded as a hazardous substance. The definition in the Act refers to Environment (Protection) Act, 1986. I have reproduced the aforesaid definitions hereinabove. The said definition is in a broad spectrum. It cannot be encompassed in a small region. If both the definitions are read together it is quite pronounced that the electricity should come within the ambit and sweep of the definition, and certain substances may become hazardous if they are notified as required under the provisions. Thus, notification by the Central Government is not the sine qua non to make a substance hazardous.
Section 3(2) of the Act of 1991 speaks about the strict liability without fault in case of such accidents involving death due to hazardous substance and it is not necessary for the claimant to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person. No policy was taken out by the Board. That will not affect the liability of the owner. The main aims and objects of the Board to generate, transform and transmit the electricity and these are its activities. It cannot escape from its liability by saying that no policy was taken by the Board.
The issue, thus raised, has already been answered by this Court and followed by the High Court of Madhya Pradesh, holding that the electricity is "hazardous substances" and the notification issued by the Central Government is not a sine qua non to make the substance hazardous. Once such view has been taken by the Courts in respect of welfare legislation, then the order which has been passed by the Additional District Magistrate (Finance and Revenue) on 25.02.2009 holding that the application was not maintainable u/s 6 of the Public Liability Insurance Act, 1991, cannot be approved of.
Consequently, writ petition succeeds and the same is allowed. The order dated 25.02.2009 is hereby quashed and set aside. The application moved by the Petitioner u/s 6 of the Public Liability Insurance Act, 1991, shall be decided afresh by the Additional District Magistrate (Finance and Revenue), Deoria, in accordance with law, within a period of six months from the date of receipt of a certified copy of this judgment.