Authorities duty bound to ensure safety measures around hazardous installations: HC

Srinagar, Mar 25: The High Court of J&K and Ladakh Wednesday awarded as compensation Rs 6 lakh to a man whose three minor children drowned in an unfenced forebay tank of the Chenani Hydel Project in 2008, saying that the authorities had failed to adopt adequate safety measures to secure the tank for public safety.

Underscoring that authorities responsible for maintaining hazardous installations owe a duty of care to the public to ensure effective precautions against foreseeable harm, a Bench of Justice Wasim Sadiq Nargal asked J&K’s Chief Secretary (CS) to take cognizance of the issue and formulate a comprehensive policy to ensure that tragedies of such nature are not repeated in future. Arjun Kumar Sharma, a resident of village Pakhlai in District Udhampur had petitioned for compensation with the contention that his three minor children accidentally slipped into the tank and drowned due to the negligence and failure of the authorities of the Chenani Hydel Project to provide necessary safety measures.

According to Sharma’s plea, he and his wife had gone to their agricultural fields on June 9, 2008 and their minor children — Anu Devi (8), Preeti Devi (6) and Sunil (3) followed them towards the land in village Pakhlai.

The plea underscored that owing to their tender age and lack of understanding, the children accidentally slipped into the forebay tank of the Chenani Hydel Project in the village. The three children drowned as the tank had steep plastered slopes and deep water, making escape impossible for anyone who fell into it. Taking call on the 2009 plea, the Court noted that the present case was not merely one of an unfortunate accident, but one which disclosed a clear failure on the part of the authorities in discharging their duty of care in respect of a hazardous public installation. The Court, accordingly, directed the authorities to pay Rs 2 lakh each for the deaths of the children.

The deaths were a consequence of “grossly inadequate safety measures as the reservoir was secured only by a parapet wall of about two feet that was insufficient to prevent access to a hazardous structure, ” the court said.

In response to the government’s argument that the parents were negligent, the court held that children of tender age could not be expected to understand risks and authorities managing dangerous installations bear a higher duty of care.

The court further ruled that writ jurisdiction under Article 21 of the Constitution of India could be invoked, emphasizing that the right to life includes protection against such preventable hazards. Moreover, it dismissed objections regarding maintainability of the petition, reiterating that constitutional courts can grant compensation in cases where State negligence leads to violation of fundamental rights, even if civil remedies exist. “The availability of an alternative remedy in the form of a civil suit cannot operate as a bar in a case where the violation of the fundamental right to life is prima facie established,” the court said.

The court directed the CS to frame a comprehensive policy ensuring proper fencing, warning signboards, and safety mechanisms around reservoirs and other hazardous installations across J&K.

Holding that it could not remain oblivious to the magnitude of the tragedy where the petitioner has lost three young children in a single incident, the court said no amount of monetary compensation could compensate for the loss of human life particularly that of children. “The emotional and psychological trauma suffered by the family is beyond quantification. While compensation cannot restore lives, it serves as recognition of the State’s failure and a reminder of its constitutional duty to safeguard citizens”. Observing that no compensation could truly undo the tragedy or restore what had been lost, the court said the grant of monetary relief remains the only available means in law to partially redress the harm caused and to uphold the rule of law. The Court directed the government to pay the compensation to the petitioner within eight weeks.