10 - Chapter 5

CHAPTER- V
JUDICIAL ATTITUDE IN AWARDING

COMPENSATION IN INDIA
I. Introduction
In our constitutional scheme, the Supreme Court of
India has been assigned the role of ensuring and
enforcing social justice as envisaged in the Preamble,
Fundamental Rights and Directive Principles of State
Policy along with two organs of the government i.e. the
executive and the legislative. While discussing the
judicial response in awarding compensation an attempt
has been made to analyse the role of the Supreme Court
and the High Courts in safeguarding the interest of the
victims. Thus, this chapter has been devoted with the
purpose of examining, whether or not the courts have
succeeded in fulfilling the role assigned to them by the
framers of the Constitution i.e. to administer justice in a
manner so as to achieve or promote the welfare of
citizens.
Indian judiciary has applied the principles of social
and distributive justice in areas like compensation to the
victim and their rehabilitation whenever necessary, the
Supreme Court and the High Courts have not failed to
Judicial Attitude in Awarding Compensation in India 207
warn the Central Government as well as the State

Government of their responsibilities towards victim rights
must not be trampled upon. Especially, the Supreme
Court of India has been playing an important role in
achieving and promoting the rights of victim in present
socio-economic and political sphere. It is proved from the
number of judgements pronounced by the Supreme Court
which can be termed as a stepping stones towards the
promotion of victim's right of compensation in socio-
economic and political environment. Here a few of them
are considered in which the Indian judiciary has applied
the concept of compensatory jurisprudence.
I I . J u d i c i a l A t t i t u d e and Workmen Compensation Act

Indian judiciary applied the concept of
compensatory jurisprudence in cases which fall in the
ambit of Workmen's Compensation Act, 1923. Section 3
of Act provides that compensation is payable in cases of
personal injury caused to the workman by accident
arising out and in the course of his employment.
Personal injury is not defined in the Act but it includes
any harmful change in the body.
In the case of Indian News Chronicle Ltd. vs. Luis
Lazarus^ where a workman was under duty as an
AIR 1951 Punj 102.

electrician to go to heating room and then to a cooling

room frequently where the temperature was kept very
low. While on duty the workman went to the cooling room
and thereafter fell ill and subsequently died of
pneumonia. The court held that the word injury in
section 3 of the Workmen's Compensation Act does not
mean mere physical injury but it includes a strain which
causes a chill. The death of workman was due to
personal injury and he is eligible to be compensated.2
In the case of Padam Debi vs. Raghunath Raj,^ it
was observed that when accident was caused to a motor
bus, which clashed against a tree as a result of its being
driven by the driver rashly and negligently resulting in
injuries to the driver leading to his death. It was held
that his death was caused by an accident, and the
employer would be liable to pay compensation under
Section 3(1) of the Act, the fact that the driver was
negligent or that he committed a breach of the provision
of the Motor Vehicle Act while driving the b u s , are not
factors which would defeat the right to claim
compensation under the Workmen Compensation Act,
1923.
2 Ibid.
3 AIR I960 Orissa 207.
So the accidental injures includes such as

collisions, tripping over floor obstacles, falls of roofs,
stream which causes r u p t u r e , exposure to a draught
causing chill, exertion in stoke hold causing apoplexy
and stock causing neurasthenia. But these incidents are
important when the accident arise out of and in the
course of the workmen's employment, the accident in
order to give rise to a claim of compensation must have
some casual relation to the workmen's employment and
must be due to a risk incidental to that employment."*
Further, it is necessary to establish that there was
relation between death of the workman and the work
during his employment in order to give rise to a claim for
compensation.5 The most important aspect of the Section
is that an accident which causes personal injury to the
workman must arise out of and in the course of his
employment.6 In the case of Ravuri Kotayya vs. Dasari
Regavardhanamma'^ in order to determine whether an
accident has arisen out of and in the course of the
employment of the workman or not, the following
principles applied :
4 Bai Shakri vs. New Maneek Chowk Mills Co., AIR 1961 Guj. 34.
5 Ibid.
6 The phrase 'arising out and in course of the employment' is taken from the English Act
originally appearing in the Act of i 897.
7 AIR 1962 A.P. 42.
Firstly, that the workman was in fact employed on,

or performing the duties of his employment at the time of
the accident.
Secondly, that the accident occurred at or about the
place where he was performing his duties, or where the
performance of his duties required him to be present.
Lastly, that the immediate act which led to or
resulted in the accident had some form of casual relation
with the performance of there duties, and such casual
connection could be held to exist if the immediate act
which led to the accident is not so remote from the
sphere of his duties or the performance thereof, as to be
regarded as something foreign to them.
In Bhagubai vs. General Manager Central Railway,
Bombay^ the Court observed that there must be casual
connection between the accident and the employment in
order that the Court can say that the accident arose out
of the employment of the deceased. The cause
contemplated is the proximate cause and not any remote
cause. If the employee in the course of his employment
has to be in a particular place and by reason of his being
in that particular place, he has to face a peril and the
accident is caused by reason of the peril which he has to
face, then the casual connection is established between
AIR 1955 Bom. 105
Judicial Auiludc in Awarding Compensation in India 21 1
the accident and the employment. Once the peril is

established, it is for the employer then to establish either
that peril was brought about by the employee himself,
that he added or extended the peril, or that peril was not
a general peril but a peril personal to the employee.
In the instant case, the deceased was employed in
the Central Railway at a station and he lived in the
railway quarters adjoining the railway station. It was
found as a fact that the only access for the deceased
from his quarters to the railway station was through the
compound of the railway quarters. One night the
deceased left his quarter a few minutes before midnight
in order to join duty and immediately thereafter he was
stabbed by some unknown person. There was no evidence
that the employee was done to death because someone
was interested in killing him. Nor was there any evidence
that the employee was bound to be murdered whether he
was on the spot in the course of his employment or
anywhere else. It was held that the accident arose out of
the employment. It has been observed that in order to
establish that the person injured was in the course of
employment, the first ingredient necessary is that he
must have been on duty at the time and must be
supposed to do work whether he is doing that work or
not, or he was doing some other work is immaterial but if
Judicial Atlitude in Awarding Compensation in India 212
he is supposed to so some work then he would be deemed

to be in the course of employment.^ The ambit and scope
of the man's employment has to be looked at in relation
to the contract which he made with the employer. The
test in fact applicable in such cases is whether it was or
was not a part of the injured person's employment to
hazard or suffer or do that which caused his death.
Where the workman when he met with his death was
doing the very thing which he was employed to do the
mere fact that he had no right to work in the place where
he was when he met his death does not mean that the
accident did not arise out of and in the course of the
employment and the employer would in such cases be
liable to pay compensation under Section 3 of the Act.^°
It has been held that it is enough if at the time of the
accident the workman was in actual employment
although he may not be actually turning out the work
which it was his duty to carry out. Therefore, even when
a workman is resting or having his food, or taking his tea
or proceedings from the place of his employment to his
residence, and an accident occurs the accident is
regarded as arising out of and in the course of the
employment."
9 Divisional Superintendent, Northern Railways vs. Umrao, AIR i960 All. 383.
10 Bhurangya Coal Co. Ltd. vs. Sahebjan Mian, AIR 1956 Pat. 229.
11 Sri Krishna Rice and Flour Mills vs. Challapalli Chittamma, 1961 (2) LLJ 260.
Judicial Alliludc in Awarding Compensation in India 213
Even, the Apex Court in Saurashtra Salt

Manufacturing Co. vs. Bai Valu Raja^^ has explained the
maxim "arising out of and in the course of the
employment". There was a salt manufacturing company
wherein certain workmen were employed. The workmen
employed in that salt manufacturing company while
returning home after finishing their work had to go by
public path, then through a sandy area in the open
public land and finally across a creek through a ferry
boat. The workmen while crossing the creek in a public
ferry boat which capsized due to bad weather was
drowned. On a claim for compensation under the
provision of the Workmen Compensation Act, the Apex
Court considered the circumstances of the case and
observed that as a rule, the employment of a workman
does not commence until he has reached the place of
employment, and doesn't continue when he has left the
place of employment, the journey to and from the place of
employment being excluded. It is now well settled,
however, that this is subject to the theory of 'notional
extension'^^ of the employer's premises so as to include
an area which the workman passes and re-passes in
going to and in leaving to the actual place of work.
12 AIR 1958 SC 881.

13 Saurashtra Salt Manufacturing Co. vs. Bai Velu Raja, AIR 1958 SC
Judicial Auimdc in Awarding Compensation in India 214
So, according to Apex Court in order to come within

the purview of this Section it is essential that the
accident must be in the course of the employment which
means during the course of employment, i'* In order to
give rise to a claim for compensation both the things
must be looked into. Firstly, injury sustained by the
workman and secondly, it must be in the course of the
employment.
In Director (T&M), DNK Project vs. Smt. D.
Buchtalli'5 where a factory worker having a heart
disease, while coming out of the factory, profusely,
sweated and died after four hours of work inside the
factory premises. The court observed that most important
phase in section 3(1) of the Act is 'arising out and in the
course of employment'. It is understood to mean that the
injury has resulted during the course of employment
from some risk incidental to the duties of the service,
which unless engaged in the duty owing to the master, it
is reasonable to believe the workman would not otherwise
have suffered. In other words there must be a casual
relationship between the accident and the employment.
The court observed that the stress and strain in the four
hours of work the deceased had must be taken to be an
14 MacKinnon Mackenzie and C. (P) Ltd. vs. Ibrahim Mohd. Issq K, AIR 1971 SC 966.
15 (1989) I L U 2 5 9 .
Judicial Altitude in Awarding Compensation in India 2 1 5
accelerating factor in giving the final blow on account on

which the deceased died and therefore, the employer is
liable to pay compensation under the Act.
In another case of Raj Dulari v s . Superintending
Engineer, Punjab State Electricity Board^^ where a
work-charged employee under the Punjab State
Electricity Board was engaged in fixing electric wire on
either side of a road. A bus belonging to Punjab Road
Transport Corporation came at a high speed and dragged
the electric wires hanging on the road, with the result
the pole on which he was working was broken from the
middle and he fell down and died instantaneously. The
Commissioner dismissed the claim in view, that the
deceased employee worked beyond the duty hours on his
own risk and therefore, the death was not in the course
of employment. Appeal was filed against the orders of the
Commissioner.
In the appeal it was held that if the work had been

left at the spot, as it was, the result would have been
that the wires would have been on the roads causing
much more damage. By asking the employee to continue
the work beyond the duty hours, the Assistant lineman
acted with responsibility. If a workman continue to work
whether upto the duty hours or beyond on a job directed
16 (1989) 11 LLJ 132 (P&H).
by his superiors, he continues to be on duty and in the

course of employment. There are many cases where court
relied upon the principles of accident during the course
of employment or not.^"^
(a) Notional Extension of Employer's Premises

The principle of 'notional extension' of a person's
employment beyond the work place was laid down by the
Supreme Court in the important case of Saurashtra Salt
Manufactring Co. VS. Bai Velu Raja.'s The Court in this
case expanded the ambit of the Workmen's Compensation
Act and propounded the new theory of 'notional
extension' and observed as under:
"It is well-settled that when a workman is on a
public road or on a public place or on a public
transport he is there as any other member of the
public and is not there in the course of his
employment unless the very nature of his
employment makes it necessary for him to be
there. A workman is not in the course of his
employment from the moment he leaves his home
and is on his way to his work. He certainly is in
17 State of Rajasthan and Others vs. Smt. Kanta (1989) 11 LLJ 135 (Raj); Trustees of the
Port of Bombay vs. Yamuna Bai, AIR 1952 Bom 382; Oriental Insurance Co. Ltd. vs.
Nanguli Singh, 1995 1 LLJ 298; Works Manager Carriage & Ulagon Shop East India
Railway vs. Mahavir, AIR 1954 All. 132.
18 AIR 1958 SC 881
course of his employment if he reaches the place

of work or a point or an area which comes
within the theory of notional extension, outside
of which the employer is not liable to pay
compensation for any accident happening to
him. "^9
The Supreme Court of India while applying the

principle of 'notional extension' in the case of General
Manager, Bombay Employees State Transport
Undertaking vs. Mrs. Agnes,20 held that as the free
transport is provided in the interest of service, having
regard to the long distance, a driver has to go to Depot
from his house and vice-versa. The use of the said bus is
a proved part of his duty. He is not exercising the right
as a member of the public, but only as one belonging to a
service. In such circumstances, the Court held that the
accident arose in the course of employment, giving rise to
the claim of compensation.
In the case of Works Manager Carriage and Wagon

Shop, East India Railway vs. Mahabir,^' the Court
observed that environmental accidents i.e. accident
resulting from the surroundings in which workman is
employed or through which he has to reach his place of
19 Ihid
20 AIR 1964 SC 193.
21 AIR 1954 All. 132
Judicial Altitude in Awarding Compensation in India 218
work in order to carry out his obligations to his employer

also fall within the scope of the phrase arising out and in
the course of employment.
In the case of National Iron and Steel Co. vs.
Manorania,^^ a boy was employed in a tea shop located
outside the factory gate. As a part of his duty he was
required to take the tea from the shop to persons working
in the factory. One day when the boy was coming out of
the factory after serving tea, he passed through a violent
mob of factory worker who were leaving the factory. The
mob attacked the police who fired upon the mob in self
defence. The boy was injured by a bullet and died in the
hospital. The mother of the boy claimed compensation. It
was held that accident arose in the course of employment
and death occurred because of the risk to which he was
exposed by the nature of his employment.
In another case Sri Jayaram Motor Service vs.

PitchmmaPS a night watchman of the company had died
90 minutes after return from work. The question for
decision was whether death of the watchman which
occurred after one and half hours after the employee had
returned from work, can be said to be in the course of
employment. The Madras High Court in this case held
22 AIR 1953 Cal. 143.

23 (1982)11 L U 849 (Mad).
that if the death was the 'result of stresses and strain'

which the employee suffered earlier during the period of
work. A connection is established between the
employment and death. The court held that the death of
the worker was held during the course of employment
and the dependents of the employee were awarded
compensation as provided under the Workmen's
Compensation Act, 1923.
The principle of 'notional extension' was further
explained in the case of Rajanna vs. Union of India.2^* In
this case a security a s s i s t a n t in the Special Protection
Group attached to the Cabinet Secretariat sustained
injuries resulting in permanent partial disablement in a
motor accident when he was traveling from staff quarters
to South Block for duty in the official Special Protection
Guard vehicle provided for the purpose. He claimed ex-
gratia payment in accordance with the circular dated
J u n e 13, 1986, of the Cabinet Secretariat of the Central
Government providing for grant of ex-gratia payment to
the Special Protection Guard personnel. The Central
Administrative Tribunal rejected the claim of Rs.
50,000/- on the ground that the injuries were not
24 1995 I I L U 824 SC; Macinon Mackenzie & Co. Pvt. Ltd. vs. Ibrahim Mahmmed Issak
1970 I L U , 16 SC.
sustained while performing actual VIP Security duty.

Thus the civil appeal by special leave was filed.
The Supreme Court ruled that the principle under
the Workmen's Compensation Act, 1923 for determining
whether an accident arose out of and in the course of
employment of the workman should be equally applicable
to the circular since both have the same object. It was
observed that on these facts, it cannot be doubted that
there would be notional extension of the actual duty to
include the journey of,this kind in the official Special
Protection Guard vehicle between the staff q u a r t e r s and
South Block. There can be no doubt that there was a
casual relationship between the accident in which the
applicant sustained injuries and his employment in the
Special Protection Guard for the actual VIP Security
Duty. The court was of the opinion that the meaning of
the expression 'actual VIP Security Duty' in the circular
must be the same as that of the words 'in the course of
the employment' in Workmen's Compensation Act and
therefore, the test for determining the liability for
payment under the circular literally to advance its
objects instead of taking such a rigid and pedantic stand.
Unless properly implemented, the scheme in the circular
would be frustrated resulting in failure to achieve the
avowed purpose.
In the case of (Smt.) Laxmi Bai vs. Manager, M/S

Vijayaand Road Lines Ltd.25 the Apex Court was of the
view that the injured workmen becomes entitled to get
compensation the moment he suffered personal injuries
of the types contemplated by the provisions of the
Workmen's Compensation Act and it is the amount of
compensation payable on the date of accident and not
the amount of compensation payable on account of the
amendment made in 1995, which is relevant.
In Commissioner, Kovilpatti Municipality vs.

Tanularasan and Others,26 the Court observed that
Subbiah the deceased in the instant case did not receive
injuries out of his employment. A mere road accident,
while an employee is on his way to his place of
employment cannot be said to have its origin in his
employment in the factory. It was not possible to hold
that the deceased workman, having died as a result of
injuries received in an attack while he was on a public
road, sustained injuries resulting in his death in the
course of and arising out of his employment.27
It is crystal clear from the above observation that
doctrine of 'notional extension' of the employer's
25 2001 (3) TAC 267 (Kant).

26 1998 11 LU 683; Regional Director, ESI Corpn. vs. Francis De Costa, 1997(1)LLJ34 SC
27 United India Insurance Co. Ltd., vs. Philo and Others 1997 I LU 76, Bhagubai vs. G. M.
Central Railway, AIR 1955 Bom. 105; PWD. Bhopal vs. Kaura, AIR 1966 MP 297;
Kartick Chandra vs. State, AIR 1968 Cal. 127.
premises is a doctrine which extends the coverage of the

accident caused to the workman while they are on the
way to or from the place of their work or place of
employment where they are to perform their duties. It is
necessary that there must be some reasonable extension
in both time and place and workman may be regarded as
in the course of his employment even though he had not
reached or had left his employer premises. But, it is very
important that in order to apply the theory of 'notional
extension' the workman is to prove that he was at place
of accident because of terms of contract of service either
expressly contained therein or by implication.
(b) Compensation in case of Death

Under the Workmen Compensation Act, 1923, in
case of death, permanent total disablement, permanent
partial disablement or temporary disablement whether
total or partial.^^ The compensation is awarded according
to the provisions of the Act. If the injury from the
accident results in the death of the person or under any
other head compensation is given by the employer.
In the case of Mandulova Satyanarayana vs. B.
Lokesawari & Others,29 where in an accident the driver
28 See, Workmen's Compensation A.ct, 1923, Section 4.

29 AIR 1991. AP 323.
and the cleaner sustained bodily injuries and died. The

Insurance Company had covered the liability in respect of
death of driver and cleaner to the extent of Rs. 5 0 , 0 0 0 / - .
It has been held that the provisions to enable the
workmen or the legal representative of the deceased
workmen to claim higher compensation if the same can
be awarded either under the Motor Vehicles Act or under
the Workmen's Compensation Act. If the liability of the
Insurance Company is restricted to that specified under
the Workmen's Compensation Act, the object of Section
110-AA of the Motor Vehicles Act would be furnished. In
the instant case, the amount of compensation awarded
was Rs. 2 5 , 0 0 0 / - . In as much as the Insurance Company
has undertaken the liability to the extent of R s . 5 0 , 0 0 0 / - ,
the company is liable to pay the entire amount of
Rs.25,000/-.
(c) Compensation in Case of Permanent Partial

Disablement
Where there is a case of permanent partial
disablement, the employer is liable to compensate the
workmen according to given scale. The law doesn't insist
and have nowhere indicated that the disablement should
be solely and directly attributable to the accident. In the
case of Executive Engineer, PWD (B&R) Udaipur vs.
Judicial Attilude in Awarding Compensation in India 224
Narain Lal.ô a driver of the appellant was awarded

compensation by the Commissioner for Workman's
Compensation to the tune of R s . 4 8 0 0 / - for injuries
suffered during the course of employment due to accident
resulting in head injuries and a broken collar bone. The
appellant challenged the award on the ground that there
were no permanent partial disablement, there was no
loss of earning capacity and the workmen continued in
the same service and earned the same emoluments.
High Court in this case observed that the
Workmen's Compensation Act is to provide security to
workmen who sustain partial incapacity resulting in the
earning capacity. This statutory protection is
independent of the acts of grace or mercy which the
employer might show. Therefore, the loss in the earning
capacity has to be calculated in terms of the permanent
partial disablement to which the workman has been
subjected. In computing the loss of earning capacity, the
court may take into consideration the medical evidence
or such other evidence on the basis of which the court
may come to the conclusion.
The Supreme Court in Pratap Narain Singh Deo vs.
Shrinivas Sabata and Others,î observed that it was the
30 (1978) 1 L U 142 (Raj); Also see, Lipton (India) Ltd. vs. Gokul Chandra Mondal (1982)
ILLJ255(Cal).
31 AIR 1976 SC 222
duty of the appellant under section 4-A(l) of the Act, to

pay compensation at the rate provided by section (4) as
soon as the personal injury was caused to the
respondent. He failed to do so. Ultimately, he did not
even make a provisional payment under sub-section (2) of
section 4-A for, as has been stated, he went to the extent
of taking the false pleas that the respondent was a
casual contractor and that accident occurred solely
because of his negligence. Then there is a fact that he
paid no heed to the respondent's personal approach for
obtaining the compensation. It will be recalled that the
respondent was driven to the necessity of making an
application to the Commissioner for setting the claim,
and even there the applicant raised a frivolous objection
as to the jurisdiction of the Commissioner and prevailed
on the respondent to file a memorandum of agreement
settling the claim for a sum which was so grossly
inadequate that it was rejected by the Commissioner. In
such circumstances no doubt that Commissioner was
fully justified in making an order for the payment of
interest and the penalty. He ordered the payment of
penalty to the extent of 50% together with interest of 6%
per annum making a total of Rs.15,097.32
Madan Mohan Verina vs. Mohan Lai, (1983) II LLJ 322 (All.); Bai Mani, widow of
Jakhlabhai Harjibhai vs. Executive Engineer Irrigation Project Vision Six Baroda. (1986)
II LL)426(Guj.)
Judicial Allilude in Awarding Compensation in India 226
Even in Vidya Devi vs. State of H.P.33 the High

Court ordered that report of Medical Board indicating
loss of 100% earning capacity would be placed on record
of the case pending before the Commissioner with a
direction to the Commissioner to decide the case within
specified period of 4 weeks. The order was passed by the
Commissioner, the payment of Rs. 3472.45 as
compensation with 6% interest without penalty in view of
section 4-A(3) of the Act.
In appeal against the impugned order the question
for consideration was whether the penalty as prayed by
the appellant was payable in view of the above mentioned
Question. The High Court observed that State being
employer in such case doesn't act like an ordinary
employer in the market. As a welfare state, it was
expected that it would take proper care besides providing
medical care as well as assistance to the victims of the
accident like the present one. No steps appear to have
been taken by the respondent under whose immediate
employment the claimant was, to provide him proper
medical treatment. The court considered the provision of
section 4-A of the Act and held that non-payment of half
monthly wages after accident further shows the attitude
of the respondent that it was not interested in either
33 C W P 2 9 8 o f 1988 in H. P. High Court.

Judicial Atliludc in Awarding Compensation in India 227
setting or making the payment to the claimant when it

become due as well as in accordance with the law. So
accordingly it was observed that the claimant is entitled
to penalty on the amount ordered to be paid.
The Gujarat High Court in General Manager,
Western Railway vs. Lala Nanda^"*, the Bombay High
Court in Margarida Gomer vs. M/s. Mackinnon
Maihenzie and Co. Ltd.,35 Allahabad High Court in
Saraswati Press vs. Nand Ram,36 J 8& K High Court in
Vijay Ram vs. Janak Raj,37 Rajasthan High Court in
Ram Lai vs. Regional Manager, Food Corporation of
India Ltd.,38 have taken the same view.
In Padma Srinivas vs. Premier Insurance Co.
Ltd.,39 the Apex Court also held that the crucial date for
assessing the liability is the date of accident. Again in
Ved Prakash Garg vs. Premi Devi and Others'ô dealing
with the provisions of Motor Vehicle Act as well as
Workmen Compensation Act 1923, the Apex Court
reiterated that the relevant date for determination of
compensation, payment of interest and penalty is the
date of accident. In Oriental Insurance Co. Ltd. vs.
34 1985 ACJ 57.

35 AIR 1968 Bom. 328.
36 1971 Lab I.e. 134.
37 1981 ACJ 84.
38 1981 Lab I.e. 1281.
39 1982 ACJ 191.
40 1998 1 LLJ 363 SC.
Sheela Ratnam,'^^ the Kerala High Court in the full bench

took the same view that liability to pay compensation
arises only from the date of accident and amended
provisions have no application to penalty proceedings.
Even Kerala High Court in Oriental Insurance Co.
Ltd. vs. Majeed,'*^ held that the benefit of section 4 and
4-A as amended would be extended only in respect of
claims arising out of the accident occurred on or after
section 15, 1995. Same view was taken by the Division
Bench in Oriental Insurance Co. Ltd. vs. Abdul Nazar.'*^
The contrary view was taken by the Court in
Oriental Insurance Co. Ltd. vs. Ashokan,'^'^ which
observed that the benefit of amended provision of section
4 and 4-A would be available when the claim is finally
adjudicable whether the death or permanent disablement
resulting from the accident occurred prior to Sep., 15,
1995 or not. It was also held that in view of the above
decision of the Apex Court, the earlier Division Bench
decision in Majeed's case is impliedly overruled. So in
this situation the occasion arose to resolve the conflict
between two decisions.
41 1996(2) KLT 695.

42 1996 (2) KLT 1022.
43 (1997) I ILR496
44 (1997)2LLJ429
The various High Courts specially Kerala High Court

observed that while dealing with the claim for
compensation under Workmen's Compensation Act, 1923,
have informally taken the view that the relevant date of
determining the right and liability of parties is the date
of accident.
III. Judicial Attitude and Employees State

Insurance Act, 1948
The Supreme Court of India in Royal Tolkia,
Hyderabad vs. Employees State Insurance
Corporation'*^ observed that the object of Act is to confer
benefits on the weaker segment in situations of distress
as is apparent from the preamble. So the Employees
State Insurance Act is a beneficial piece of social
Security Legislation in the interest of labour in factories
in the first instance and with power to extend to other
establishment.''^
The provision of the Act also provide for the
contributory insurance fund. This contribution is made
by the employees as well as by the employer. The
payment of benefits is to be made to the insured persons
in the event of his death to his dependents from the
45 MR 1978 SC 1478.
46 ESIC vs. M/S Hotel Kalpaka International (1993) I L U 939 (SC); See also M/S Southern
Agencies, Rajahmundry vs. A.P. Employees State Insurance Corporation, (1998) Lab 1 C
2008 (A.P.).
insurance fund. The ESI Act provides for the sickness

benefit, maternity benefit and disablement benefit,
medical benefit and dependants benefits for the benefit of
insured person.
The application of the Employees State Insurance
Act, 1948 is to (1) factories other than seasonal factories
and (2) other establishments.'*'^
IV. Judicial Attitude under the Consumer P r o t e c t i o n

Act 1 9 8 6
The Consumer Protection is a part of socio and
economic justice as enunciated in the Constitution of
India.'^^ Based on the Constitutional mandate a number
of legislations have been enacted in the field of Consumer
Protection.''9 These legislations are relating to
standardization, grading, packaging and branding,
prevention of food adulteration, short weights and
measures, hoarding etc. to protect the interests of the
47 See, Employees State Insurance Act, 1948, Section 1(4)

It shall apply in the first instance to all factories (including factories belonging to the
Government) other than seasonal factories : provided that nothing contained in the sub
section shall apply to a factory or establishment belonging to or under the control of
Govt, whose employees are otherwise in receipt of benefit substantially similar or
superior to the benefit provide under the act.
48 See, The Constitution of India, Preattible and Article 47.
49 For example Drugs (Control) Act 1950; Drugs and Magic Remedies (Objectionable
Advertisement) Act 1954; Prevention of Food Adulteration Act 1954; Essential
Commodities Act 1955; Prevention of Black Marketing and Maintenance of Supplies of
Essential Commodities Act 1980; Essential Services Maintenance Act 1968; Trade and
Merchandise Marks Act 1958; Standards of Weights and Measures Act 1976; Bureau of
Indian Standards Act 1986; The Monopolies and Restrictive Trade Practice Act 1969. are
important legislation.
consumer. But all these are scattered pieces of

legislations.50 The litigation under these legislations are
very costly to the consumers, the procedures are
complicated and time-consuming and remedies available
are very limited. The parliament passed a potentially very
important legislation i.e. the Consumer Protection Act
1986, to provide better protection of the interest of the
consumers. This act is a comprehensive legislation to
provide effective, inexpensive, speedy redressal to the
consumer grievances.
Before this Act, the ordinary law was not sufficient
for giving the required protection to the consumer. It is
also important to note that the procedure being followed
in ordinary courts was cumbersome and time consuming
which the consumer could hardly afford. It was felt that
there is a need for such a legislation to give special
protection to the consumers with a view to provide easy
and speedy relief.
The Consumer Protection Act, sought to promote
and protect the right of consumers. Firstly, the right to
be protected against the marketing of goods, which are
hazardous to life and property. Secondly the right to be
informed about the quality, quantity, potency, purity,
standard and price of goods to protect the consumer
50 See, Agarwal, V. K., Consumer Proteclion Law and Practice, (1997), p. 10
against unfair trade practices. Thirdly, the right to be

assured wherever possible access to variety of goods at
competitive prices. Lastly, the right to seek redressal
against the unfair trade practice or unscrupulous
exploitation of consumers.
Besides this the Consumer Protection (Amendment)
Act 1993, was enacted to enlarge the scope of the Act so
as to enable the consumer to file class action complaints.
The Amendment Act, further provide to confer
additional power to the redressal agencies by way of
awarding cost to the parties and to order to recall the
goods which will be hazardous to the life and safety of
the people.
Sec. 2(1)(0) of the Consumer Protection Act 1986
categorizes certain type of services which include
banking, financing, insurance, transport, amusement
and entertainment, medical services etc. The consumer
forum, however have appreciably stood the test of time
and have brought all these services within the ambit of
the newly enacted Consumer Protection Law.
In Indian legal system, the concept of compensation
for a wrong done, to a person by a manufacturer, trader
of goods, by manufacturing and supplying defective
goods, is a new and evolving concept. The Consumer
Protection Act 1986 provides for award of compensation
Judicial Altiludc in Awarding Compensation in India 233
to the consumer for wrong done to him in one or other

ways. The Consumer Dispute Redressal Agencies
constituted under The Consumer Protection Act, 1986
has tilted the pendulum in favour of consumer. Some of
the important cases decided by these agencies have been
discussed in the succeeding pages.
In the case of Indian Airlines vs. R. K.
Upadhyay.si National Consumer Dispute Redressal
Commission observed that Section 14 (l)(d) of the
Consumer Protection Act 1986 lays down that if District
Forum is satisfied that the goods or the service
complained against suffer from any defect or deficiency
specified in the complaint, it may order the opposite
party directing him "to pay such amount as may be
awarded by it as com.pensation in the consumer for
any loss or injury suffered by the consumer due to
the negligence of the opposite party." The proof that
there was negligence and that it had caused the
particular loss or injury is a 'sine qua non' for award of
compensation under the provision.
In Sumatidevi M. Dhanwatay vs. Union of India,^-^
the victim was traveling by first class air-conditioned
berth from Nagpur to Bombay by Hawrah - Bombay Mail.
51 (1991) I CPR46(NCDRC).
52 (2004) 6 s e c 113; AIR 2004 SC 2368
A violent crowd entered the compartment, broke the

doors, windows, etc., and assaulted the bonafide
passengers including the victim. The crowd forcibly took
away the gold, silver and diamond jewellery and other
valuables of the passengers. Consequently she pulled the
alarm chain as a result the train stopped. She
approached the Railway authorities for protection but in
vain. On reaching Bombay, she lodged the complaint with
the police. She filed a complaint before the State
Commission claiming compensation of Rs. 9, 32, 256.
The Railway administration denied its liability for the
loss and injury suffered by the victim.
The State Commission after considering the fact and
circumstances held that the Railway administration had
not taken steps to avoid such incidents and allowed the
said claim to the extent of Rs. 1,41,756. The National
Commission set aside the State Commission order.
Therefore, the victim filed an appeal before the Supreme
Court. The Court allowing the appeal with cost held
strongly that the National Commission without noticing
the facts of the case, and without dislodging the reasons
recorded by the State Government and without giving
reason, upset the order of the State Commission. Further
the court observed that under Section 124-A of Railways
Act, 1989, the Railway administration cannot escape the
liability having regard to the facts a n d c i r c u m s t a n c e s of

the c a s e a n d in the light of the i n c i d e n t t h a t h a d t a k e n
place.53
It is i m p o r t a n t to s u m m a r i s e t h a t the forum may

a w a r d c o m p e n s a t i o n only if two c o n d i t i o n s a r e satisfied:
(a) the consumer must have suffered some loss or
injury, a n d
(b) the loss or injury m u s t have been c a u s e d d u e to the
negligence of the o p p o s i t e p a r t y .
In C o n s u m e r U n i t y and Trust S o c i e t y , Calcutta
v s . Bank of Baroda^"^ the q u e s t i o n w h e t h e r a banking
company which is forced to suspend its business
o p e r a t i o n for a period of time on a c c o u n t of a n illegal
strike resorted to by its employees, demonstration
involved o b s t r u c t i o n of e n t r y into a n d exit from its office
is liable to pay c o m p e n s a t i o n to the a c c o u n t h o l d e r on
the g r o u n d t h a t they were p u t into i n c o n v e n i e n c e and
loss by r e a s o n of the s u s p e n s i o n of b u s i n e s s of the b a n k
d u r i n g the period of the s t r i k e , c a m e u p for c o n s i d e r a t i o n
before National C o m m i s s i o n .
It was held t h a t w h e n s u s p e n s i o n of b u s i n e s s was

c a u s e d on a c c o u n t of an illegal s t r i k e r e s o r t e d to by the
employees without any notice and the wrongful
53 Ibid.
54 (1991) I CPR263 NCDRC.
prevention by the demonstrating banking workmen of

entry by officers and willing members of the staff into
any of the branches of the bank, it cannot be said that
inconvenience, loss or injury caused to the consumer was
due to the negligence of the bank. It further observed
that the inability of the bank to conduct banking
operation during the period of strike was due to reasons
wholly beyond its control and hence the case was clearly
falling within the well known exception of 'force majeure'
and there the claim made by the complaint for award of
compensation could not be sustained.
The Gujarat State Commission in the case of Patel
Ramabhai Shankerlal Vs. Indian Airlines Corporation^^
has held that the power to re-schedule the flight in a rare
power and if the Indian Airlines Corporation exceeds that
power, the corporation should be considered to be
negligent and hence it should be held liable to bear
damages. In another case of Society of Civil Rights vs.
Union of India^^ where a complaint was filed on behalf of
an unspecified number of users of telephone services, the
National Commission held that the failure to render
service by the management of telecommunication was
occasioned by reasons beyond the control of the
55 (1991) I CPR422(GujCDRC).
56 (1991) I CPR I04(NCDRC).
management and was not attributable to any negligence

on the part of the management and, therefore, the claim
for compensation filed by an unspecified number of users
of telephone services could not be sustained.
In the case of Umedilal Agarwal vs. United India
Assurance Co. Ltd.^^ the term 'compensation' defines
that which is given in recompense, as equivalent
rendered damage on the other hand constitute the sum of
money claimed or adjusted to be paid in compensation
for loss or injury sustained the value estimated in money
of something, lost or withhold.^s It is not mandatory or
obligatory on the part of the complainant to ask for a
specific relief and the Redressal Forum are not debarred
from granting relief not prayed for by the complainat
provided the same are justified on merit.59 The claim
must be substantiated by sufficient evidence and the
compensation has to be assessed not arbitrarily but on
the basis of well accepted legal principles.
In the instant case the complaint pertained to the
delay on the part of the insurance company in setting a
claim for compensation for loss of good by fire. The
57 (1991) I CPR34(Raj.CDRC).
58 Also see, Ghaziabad Development Authority vs. Balbir Singh, AIR 2004 SC 2141. Here
the word compensation has been defined by the Supreme Court. It may constitute actual
loss or expected loss and tnay extend to compensation for physical, mental or even
emotional suffering, insult or injury or loss.
59 District Manager, Telephones, Patna vs. Dr. Tarun Bharthuar (1991) I PR 171
(NCDRC).
Rajasthan State Commission after examining the record,

reached to the conclusion that the insurer failed to
indemnify the insured for the loss within reasonable time
from the date of occurrence. The Commission held that
the insurer was negligent in not settling the claim within
reasonable time. The State Commission considering the
fact and circumstances, awarded compensation for loss
suffered by it. In an appealô the National Commission
upheld the prior decision and rejected the contention put
forward by the insurance company.
In case of M. Meenakshi Sunderam vs. G.M.
Southern Railway,6' the Railways were required to pay
Rs. 1000/- as the amount of compensation to the
complaint whose number is the waiting list was
superseded in favour of some VIP.
In J.R. Sharma vs. Maruti Udyog Ltd.^^ the
appellant purchased a Van manufactured by the
respondent, wherein the variable numbers on the chassis
and engine were impressed. Because of this defect, the
appellant was prevented from performing his urgent duty
of depositing the tax within time. The Haryana State
Commission awarded Rs. 5 0 0 0 / - as compensation for
lurking fear that the vehicle was stolen one.
60 (1991) 1 CPR 217 (NCDRC).

61 (1991) I I CPJ 137(TN,CDRC).
62 (1991) 1 CPJ 126 (Haryana CDRC).
In Mahaveer Electricals vs. The District Manager,

Telecommunication^^ the appellant suffered loss in
business due to non-shifting of the external extension of
his telephone due to the negligence on the part of
Telecommunication Department, he was awarded
compensation. When there was undue delay in the
installation of Phone ever after the turn of the
complainant had matured. There was further delay in
marking the Telephone Operation. The opposite party was
held liable to pay compensation for the samc^"*
It was further observed that if a telephone
complaint remains unattended for over six months that
a m o u n t s to deficiency in service. In such a situation, the
Telephone Department has been held liable to pay
compensation to the complainant.^^ Similarly, billing of
Lhe phone which was not used or was in the shifting
process also comes in deficiency in service.^^
Again regarding the deficiency in service, the
complainant an Advocate, purchased tickets from
Cuttack to Banglore. The train which was to leave
Banglore at 10:30 P.M. actually started after 10 hours.
63 (1991) 11 CPJ 296.

64 Telephones, Jalandhar vs. Om Prakash, III (1996) CPJ 479 (Punjab S.C.D.R.C).
65 Mahanagar Telephone Nigam vs. Vinod Karkare II (1991) CPJ 655; Consumer
Action Group vs. Madras Metropolitan Telecom Board II (1991) CPJ 48.
66 Punjab State Coop. Bank Producers Federation vs. Deptt. of Telecom. Ill (1996)
CPJ 552 (Punjab S.C.D.R.C).
ludicial Alllludc in Awarding Compensation in India 240
The complainant suffered inconvenience and expanses

and had to hire a retiring room. Railways failed to
disclose the reasons for the delay. It was observed that it
is deficiency in service. Each of the complaints was
awarded compensation of Rs. 500/-.^''
In another case the daughter of complainant, fell
down and died while passing through interconnecting
passage in the Mail going from Delhi to Guwahti. The
passage was not protected by grills. The State
Commission awarded compensation of Rs. 2 Lacs for the
death of a girl and 2 5 , 0 0 0 / - for mental agony etc. to the
parents of the deceased on account of deficiency in
service by the Railways.
It has been held that for physical discomfort and
mental stress experienced by passengers one is entitled
to claim compensation.^8
In another case^^ where there was a booking of II
Class AC but no reservation was available to the
complainants. It has been held that it is deficiency in
service by the Railways and compensation amounting to
Rs. 2 0 0 0 / - was allowed for the discomfort and mental
agony caused thereby.
67 Union of India vs. KedarNath Jena & Others. Ill (1997) CPJ 198 (Orissa S.C.D.R.C).
68 G. M. Southern Railway vs. N. Prabakaran, 1993 BCCL (6)42
69 AnilGupta vs. C M . Northern Railways II (1991) C.P.J. 308; Meenakshi vs. The
C M . Southern Railway, II (1991) C.P.J. 137.
Jiidiciiil AtiJtudc in Awarding Compensation in India 24 1
In continuation with the deficiency of services in

Airport Authority of India vs. Arun Kumarô the
complainant parked his car at the parking lot managed
by the license of the parking lot. A token of receipt was
given to the complainant and a fee of Rs. 5 / - was
charged. The car was lost. It was held to be a bailment of
car and the person managing the parking area was held
liable to pay compensation for the loss.
In Satish Bagdoria vs. Airdoot InternationaF^ the
complainant purchased a ticket from the respondents for
a flight from Chandigarh to New Delhi. The flight was
cancelled but the complainant was not informed. It was
held that the Authorities must refund the price of the
ticket alongwith compensation of Rs. 5 0 0 0 / - and costs
Rs. 1000/-.
In case of wrongful disruption of Electricity in
Haryana State Electricity Board vs. T. R. Poultry
Farm,'72 the complainant was having an electricity
connection for his poultry farm. An electric transformer
got burnt, the same was not replaced for 25 days,
whereby the electric supply to the poultry farm got
70 1(1997) CPJ 247 (Delhi S C. D.R.C).

71 111 (1996) CPJ 96 (Chandigarh S.C.D.R.C); also see Chief Commercial Officer,
Indian Airlines vs. P. Lalchand 111 (1995) CPJ 134; Indian Airlines vs. S.N. Sinha, I
(1992) CPJ 62 (N.C.) in the instant case metallic wire found in the food served by the Air
Lines. In the process of chewing the passenger's gum v/as injured. He was awarded
2000/- as compensation.
72 II (1996) C.P.J. 15 (N.C).
Judicial Alliludc in Awarding Compensation In India 242
disrupted. Near about 300 birds died as a result of it.

The opposite party demanded 12560/- and allowed
compensation of Rs. 7 5 0 0 / - to the complainant for loss
of birds. In another case^^ for illegal disconnection the
supply of electricity to the complaint was disconnected
illegally and without prior notice. This was held to be
deficiency in service and Rs. 5 0 0 0 0 / - as assessed loss
and compensation of the same amount was awarded to
the complainant.
In a important judgement in Vasantha P. Nair vs.
Smt. V.P. Nair'^'' the National Commission uphold
decision of Kerala State Commission which said that the
patient is a consumer and medical assistance was
considered as services. In the event of any deficiency in
the performance of medical service, the consumer court
can have the jurisdiction, further it was observed that
the medical officers service was not a personal service so
as to constitute an exception to the application of the
Consumer Protection Act. The Supreme Court in a
landmark case i.e. Indian Medical Association vs. V. P.
Shantha and Others'^s has observed that patients
73 11(1996) C.P.J. 306 (N.C.); similarly in Gita Rani Chakroborty vs. S.S.B.
W.B.S.1£.B., 1 (1997) C.P.J. 45 (West Bengal S.C.D.R.C); Rajasthan S.E.B. vs. Mohd.
Yusuf. Ill (1995) CPJ 433 (Rajasthan S.C.D.R.C), compensation was awarded for
defective meter or installation of such meter.
74 1(1991) CPJ 685.
75 AIR 1996 SC 550.
Judicial Aiiiiudc in Awarding Compensation in India 243
aggrieved by any deficiency in treatment from both

private clinics and Government hospitals are entitled to
seek damages under the Consumer Protection Act. It was
held that service rendered to patient by a medical
practitioner by way of consultation, diagnoses and
treatment both medical and surgical would fall within the
ambit of service as defined in Sec. 2 (1)(0) of the
Consumer Protection Act.
The fact that medical practitioner belong to the
medical profession and are subject to the disciplinary
control of the Medical Council of India or State Medical
Council would not exclude the service rendered by them
from the ambit of this Act. The services rendered by a
doctor were under a contact for personal service and was
not covered by the exclusionary clause of the definition
of service defined in the Act. The hospitals and doctors
can not claim it to be a free service if the expenses have
been borne by an insurance company under medical case
or by one's employer under the service condition. After
this landmark judgement'^^ there is manifold increase in
the cases under which compensation is granted for
deficiency in medical services. For example Brain damage
to a child,'^'^ scissors to remain in the body,'^^ cut off
76 Ibid.
11 Spring Meadows Hospital vs. Harjot Ahlowalia A I R 1998 SC 1801.
78 Nihal Kaur vs. Director PGI, Chandigarh III (1996) CPJ 112.
Judicial Allimdc in Awarding Compensation in India 244
penis without justification^g uterus removed without

justification,80 doctor's duty to maintain secrecy,«'
Homoepath practicing Allopathy.^2
Through the inception of new dimensions the
National Commission further held that the service
rendered by a tailor is not a contract of personal service,
and if he defectively stitches a garments, he is liable for
loss arising.83 It was further observed that consumer not
only means merely one who hires services for
consideration, but also includes a person who is
beneficiary of such service. In the area of a telephone
service even though person is not himself the subscriber
can make a compliant and get remedy under the
Consumer Protection Act 1986 if the complaint remained
unattended for over six months.8''
V. Judicial Attitude and Environment Protection Act, 1986

"Protection of Environments is not only the duty
of the citizens but is also the obligation of the
State and all the State organs including the
Judiciary. In the extend environmental law has
79 C. Sivakumar vs. Dr. John Arthur & Another III (1998) CPJ 436 (TN S.C.D.R.C).
80 Lakshmi Rajan vs. Malar Hospital Ltd. Ill (1998) CPJ 586 (TNSCD.RC).
81 Dr. Takugha vs. Apollo Hospital Enterprises Ltd., AIR 1996 SC 495.
82 Poonam Verma vs. Ashwin Patel & Others, AIR 1996 SC 21II.
83 A.C. Modagi vs. Cross Well Tailor, II (1991) CPJ 586.
84 Mahanagar Telephone Nigam vs. Vinod Karkare, II (1991) CPJ 655.
succeeded in unshackling man*s right to life

and personal liberty from the clutches of
common law theory of individual ownership."^^
In Kamal Nath's case,^^ the court ordered private
companies without any caveat, for the damage done to
environment and did not refer to the scope of jurisdiction
under Article 32(2). The court further pointed out that in
addition to damages, the person guilty of causing
pollution can also be held liable to pay exemplary
damages so that it may act as deterrent for others not to
cause pollution.s'^
In M.C. Mehta vs. Union of India,^s the Apex Court
held that the scope of Article 32 is viîde enough to
include the power to grant compensation for violation of
fundamental rights. The power of Court under Article 32
or under Article 226 is not merely preventive, but also
remedial in n a t u r e , i.e. power to grant the compensation.
The court held that compensation would be given in
'appropriate c a s e s ' and not in every case.
In the worst industrial gas disaster known as
Bhopal Gas Disaster,^^ suits were filed claiming
85 T. Damodar Rao and Others vs. The Special Officer, Municipal Corporation, Hyderabad,
AIR 1987 SC 1622.
86 (1997) 1 s e c 388.
87 (2000) 6 s e c 213 at 224.
88 AIR 1987 Se 1086.
89 Union Carbide Corporation vs. Union of India, AIR 1990 SC 273.
Judicial AUitudc m Awarding CompL-nsalion m India 246
compensation to the victims. When the matter came to

Apex Court under Article 136 of the Constitution for the
settlement of the claims. The Apex Court quantified the
damages to the tune of Rs. 750 crores in the following
manner:
for 3,000 fatal cases where compensation could
range from Rs. 1 lac to Rs. 3 lacs. This would
account for Rs. 7 0 / - crores.
for 30,000 total and partial permanent personal
injuries cases the compensation was estimated
from Rs. 2 lacs to Rs. 5 0 , 0 0 0 / - per individual for
total or partial disability which would account for
Rs. 2 5 0 / - crores.
for another 20,000 cases of temporary total or
partial disability compensation would range from
Rs. 1 lac to Rs. 5 0 , 0 0 0 / - per individual which
would come to Rs. 100/- crores.
There might be possibility of injuries of utmost
severity in which care even Rs. 4 lac per
individual might have to be considered and Rs.
8 0 / - crores additionally for about 2000 of such
cases were envisaged.
for specialized institutional medical treatment for
cases requiring such expert medical alter tics
and rehabilitation and aftercare Rs. 25 crores for

creation of such facilities was envisaged.
For cases of a less serious nature comprising
claims for minor injuries, loss of personal
belongings, loss of live-stock etc. , for which
there was a general allocation of Rs. 225 crores.
If in respect of these claims allocation are made
at Rs. 2 0 , 0 0 0 / - .
Rs. 15,000/- and Rs. 10,000/- for about
50,000/- persons or claims in each category
accounting for about 1.30 lacs more claims the
sum required would be met by Rs. 225 crores.
In Indian Council for Enviro Legal Action vs.
Union of India,ô a writ petition was filed by an
environmental organization, projecting the miseries of
people living in the vicinity of chemical industrial plants.
The court was of the view that so far as the claim for the
damages for the loss suffered by villagers or concerned
affected area was concerned, it was left to them or any
organization on their behalf to institute suits in the
appropriate civil court. If they filed the suit or suit in
forma paupers, then the State should not oppose their
application.
90 A I R 1996 SC 1446.
Judicial Auiludc in Awarding Compensation in India 248
In Vellore Citizens Welfare Forum vs. Union of

India,91 writ petition was filed by the Vellore Citizens
Welfare Forum against pollution caused by enormous
discharge of the untreated effluents from the tanneries in
State of Tamil Nadu. The Supreme Court laid down the
procedure:
(i) The Central Government shall constitute an

authority under section 3(3) of the Environment
Protection Act, 1986 and shall confer on the said
authority all the powers necessary to deal with
the situation created by tanneries and other
polluting industries in the State of Tamil Nadu.
The authority shall be headed by a retired judge
of a High Court and it may have other members,
preferably with expertise in the field of pollution
control and environment pollution,
(ii) The authority shall with the help of experts
opinion and after giving opportunity to the
concerned polluters assess the loss to ecology n
the affected area and shall also identify the
individual/families who have suffered because of
pollution and shall assess the compensation to
be paid to the said individual and families. The
AIR 1996 SC 2715. Also see Mishra, Vinod Shanker, Emerging Rights to Compensalion
in Indian Environment Law, Indian Bar Review, 28(4) 2001, pp. 61-88.
Judicial Atlitudc in Awarding Compensation in India 249
authority shall further determine the

compensation to be recovered from polluters as a
cost of reversing the damaged environment. The
authority shall lay down j u s t and fair procedure
for completing the exercise.
(iii) The authority shall compute the compensation
under two heads namely, for reversing the
ecology and for payment of individuals.
Statement showing the amount to be recovered
from each polluter, their names, the total amount
to be recovered and the person to whom the
compensation is to be paid and the amount
thereof shall be forwarded to the
Collector/District Magistrate of the area
concerned.
(iv) The authority shall direct the closure of the
industry owned/managed by polluter in case he
evades or refused to pay the compensation
awarded against him.
(v) The pollution fine and compensation amount
recovered from the pollution shall be deposited
under a separate head called "Environmental
Protection Fund" and shall be utilized for
compensating the affected person as identified by
Judicial Mliludc in Awarding Conipcnsalion in India 250
the authority and also for restoring damaged

environment.
(vi) The authority in consultation with expert bodies
like NEERI, Central Board, State Board shall
frame/schemes for reserving the damage caused
to ecology and environment by pollution in the
State of Tamil Nadu. The scheme so framed shall
be executed by the State Government under
supervision of the Central Government. The
expenditure shall be met from the Environment
Protection Fund and from the sources provided
by the State Government and the Central
Government.
In case of S. Jagannath vs. Union of India,^2 the
Supreme Court also directed the State Government to
appoint an authority/commissioner who with the help of
Board and other expert opinion and after giving
opportunity to the polluting tanneries should a s s e s s the
loss to the ecology in affected areas. The authority shall
further determine the compensation to be recovered from
the polluting industries as cost of reversing the damaged
environment.
92 (1997) 2 s e c 87.
Judicial Atliludc in Awarding Compensation in India 25 1
In Obayya Pujari vs. Member Secretary K.S.P.C.B,

Bangalore,93 the Karnataka High Court directed the State
government to appoint authority for entertainment and
adjudication of claims for compensation. The court
pointed out that the citizens of the area were authorized
to perform their claim for grant of compensation against
stone crushers. The court further lay down that the claim
for such compensation may be entertained within two
months after such right was notified to the i n h a b i t a n t s of
the area. Such claim shall be considered and disposed of
within three months and if any of the respondent stone
crusher is found to be lacking in payment of
compensation, thereafter, his licence for carrying on
stone crushing shall be cancelled.^'^
In another case K. M. Shukla vs. Union of India,^^

the Supreme Court in a writ petition concerning Bhopal
Gas Disaster case, the categorization and registration of
claim was challenged as defective. The Supreme Court
rejected the contention and explained the rationale of the
system to claim compensation through following
observations :
"There is now a system in place and any claim
which are made, have to be determined within
93 M R 1999 Kant 157.

94 Ibid: at \66.
95 2000(1) Scale 340 at 343.
this system. There is first determination by the

Deputy Welfare Commissioner against which an
appeal can be filed to the Additional Welfare
Commissioner and thereafter revision to the
Welfare Commissioner. If even then, there is a
grievances of claimant, Proper remedy is to
approach the High Court who would be in a
position to deal with a case more expeditiously
and give relief to the individual claimant where
it is called for, without undue expense rather
than approaching this court under 32 or 136 of
the Constitution.*'^(>
The Supreme Court directed that matters relating to

compensation to be transferred to the High Court which
will deal with the case under Article 226 and 227 as
expeditiously as possible.^'^
VI. Judicial Attitude and Criminal Procedure

Code, 1973
J u d i c i a l r e s p o n s e on the vital i s s u e of award of

c o m p e n s a t i o n to the victim or his d e p e n d a n t s can be
s c r u t i n i z e d in two p h a s e s - c o m p e n s a t i o n in criminal
cases and compensation in writ proceedings. The
96 Ihui
97 IhicI: at p. 344.
Judicial Auitudc in Awarding Compensation in India 253
Criminal Procedure Code reflects the general law

concerning compensation to t h e v i c t i m s of c r i m e to
some extent. Section 357 of t h e Code is t h e main
p r o v i s i o n d e a l i n g w i t h t h e c o m p e n s a t i o n to v i c t i m s .
Specifically, the C o u r t h a s t h u s , a very limited

discretion under Section 357(1); it can award
c o m p e n s a t i o n o n l y o u t of t h e f i n e , if i m p o s e d on t h e
offender. The Court has, however much more
discretion under sub-section (3) of Section 357,
though only if fine does not form a part of the
sentence. No d o u b t , sub-section (3) of S e c t i o n 357
w a s a d d e d , a s r e c o m m e n d e d by t h e Law Commission
in its 41st Report, in the new Criminal Procedure
C o d e , 1 9 7 3 . If t h e S e c t i o n is r e a d s i m p l y , t h e power
of the Court is unlimited, though practically a
Magistrate can order for higher compensation than
t h e a m o u n t of fine he c a n i m p o s e .
In Nand Ballabh Pant vs. State (Union

Territory of Delhi)^^ t h e appellant was convicted
under Section 304-A, Indian Penal Code, 1869. He
w a s s e n t e n c e d to two m o n t h ' s r i g o r o u s imprisonment
w i t h a fine of R s . 5 0 0 / - . On a p p e a l to t h e Apex C o u r t ,
t h e s e n t e n c e w a s r e d u c e d to o n e m o n t h b u t t h e fine
98 A I R 1977 SC 892.
was e n h a n c e d to Rs.lOOO/- with the d i r e c t i o n that

the same be paid to the wife of the d e c e a s e d by way
of c o m p e n s a t i o n . In another case of Palaniappa
Gounder vs. State^^ the Supreme Court has
expressed its disapproval of combining the
p u n i s h m e n t with the d e a t h s e n t e n c e and even with
life i m p r i s o n m e n t . In the said case the High Court
had r e d u c e d the p u n i s h m e n t of d e a t h s e n t e n c e to life
imprisonment awarded by the trial Court and
imposed a fine of Rs.20,000/- on the offender
p a y a b l e to the h e i r s of the d e c e a s e d . The Supreme
C o u r t of India held t h a t the a m o u n t of c o m p e n s a t i o n
m u s t not be excessive. The c o u r t f u r t h e r s t a t e d t h a t
it is not proper to first decide what compensation
should be paid and then to impose fine which is
h i g h e r t h a n the c o m p e n s a t i o n .
In a n o t h e r case of Sarwan Singh v s . S t a t e of

Punjab'oo where the d e c e a s e d was m u r d e r e d by his
two b r o t h e r s and their s o n s . Both the Trial C o u r t and
High Court convicted all the offenders u n d e r Section
302 read with Section 149 of the Indian Penal Code.
The Apex Court set aside the conviction under
Section 302 read with Section 149 and found the
99 AIR 1977 SC 1323.

100 AIR 1978 SC 1525.
ludlcial Atlitudc in Awarding Compensation in India 255
appellant guilty under Section 304(1) read with

Section 149 of the Indian Penal Code and sentenced
them to five y e a r s r i g o r o u s i m p r i s o n m e n t with a fine
of Rs. 3 5 0 0 / - each with the direction t h a t s a m e be
paid as c o m p e n s a t i o n to the widow of the d e c e a s e d .
While awarding compensation the Court observed
that :
'^The object of the Section, therefore, is to

provide compensation payable to the persons
who are entitled to recover damages from the
person sentenced even though find does not
form part of the sentence. Though Section
545 enabled the Court only to pay
compensation out of the fine that would be
imposed under the law, but Sec. 357(2) when
a Court imposes a sentence, of which fine
does not form a part, the Court may direct
the accused to pay compensation. In
awarding compensation it is necessary for
the Court to decide whether the case is a fit
one in which compensation has to be
awarded. If it is found that compensation
should be paid, then the capacity of the
accused to pay a compensation has to be
Judicial Auiludi: in Awarding Compensation in India 256
determined. In directing compensation the

object is to collect the fine and pay it to the
person who has suffered the loss. The
purpose will not be served if the accused is
not able to pay the fine or compensation for,
imposing a default sentence for non-payment
of fine would not achieve the object. If the
accused is in a position to pay the
compensation to the injured or his
dependents to which they are entitled to,
there could be no reason for the Court not
directing such compensation. When a person,
who caused injury due to negligence or is
made vicariously liable to bound to pay
compensation, it is only appropriate to direct
payment by the accused who is guilty of
causing an injury with the necessary mens
rea to pay compensation for the person who
has suffered injury."^^^
The Supreme Court responded somewhat

different in G u r u s w a m i v s . S t a t e of T a m i l Nadu'°2
w h e r e it w a s held that in c a s e of m u r d e r it is only
fair t h a t proper c o m p e n s a t i o n s h o u l d be provided for
101 Ibid: at pp. 1528 & 1529.

102 AIR 1979 SC 799.
Judicial Auiludc in Awarding Compcnsalion in India 257
the d e p e n d e n t s of the d e c e a s e d . In the i n s t a n t case

the a c c u s e d was convicted on a c h a r g e of murder.
The victims were his father and b r o t h e r . The a c c u s e d
was found guilty in two C o u r t s u n d e r Section 3 0 2 ,
Indian Penal Code and was s e n t e n c e d to d e a t h by
each Court. The conviction of the appellant was
confirmed by the Apex Court b u t the s e n t e n c e was
reduced to i m p r i s o n m e n t for life. The Apex Court
imposed a fine of Rs. 1 0 , 0 0 0 / - on the offender to be
paid to the h e i r s of the deceased.'O^ n was observed
by the S u p r e m e Court t h a t c r i m i n a l j u s t i c e h a s many
dimensions beyond conviction, sentence, acquittal
and i n n o c e n c e . The victim is not to be forgotten but
m u s t be r e s t o r e d to the e x t e n t possible.'O'*
In a n o t h e r case of Rattan Kumar v s . Ranjit

Singh'05 understanding the plight of the victim,
d e c l a r e the p a y m e n t u n d e r i n s u r a n c e , and t h a t he
should also be paid out of fine, as compensation
b e a r s no k i n s h i p and c a n n o t be e q u a t e d to i n s u r a n c e
payments.
The major breakthrough came through the

decision of the S u p r e m e Court in the case of Hari
103 Prabhu Prasad Sah vs. State of Bihar, 1976 SCC (Cri) A l l ; AIR 1977 SC 704; Shukhdeo
Singh vs. State of Punjab, 1982, SCC (Cri), 467.
104 AIR 1980 SC 423.
105 AIR 1983 P&H 160.
Judicial Auiiude in Awarding Compensation in India 258
K i s h a n a n d S t a t e of H a r y a n a v s . S u k h b i r S i n g h a n d
Othersô*^ w h e r e it w a s r e c o m m e n d e d to all C o u r t s in
the country to exercise the power of awarding
c o m p e n s a t i o n to t h e v i c t i m s of offence in a c c o r d a n c e
w i t h S e c t i o n 3 5 7 of C r i m i n a l P r o c e d u r e C o d e , 1973,
so a s to a c h i e v e the goal of s o c i a l j u s t i c e . In the
i n s t a n t c a s e , two g r o u p s of p e r s o n s d u r i n g t h e c o u r s e
of a fight inflicted injuries on each other. The
a c c u s e d t h r o u g h a r m e d w i t h ballam and other sharp
edged weapons used only the blunt side. All the
seven a c c u s e d were convicted u n d e r v a r i o u s Sections
and sentenced by t h e A d d i t i o n a l Session Judge. On
appeal to High Court, two of t h e m were acquitted.
T h e o t h e r five a c c u s e d w e r e a c q u i t t e d of t h e offences
u n d e r Section 307 read with Section 149 a n d under
Section 148 of t h e I n d i a n P e n a l C o d e . T h e c o n v i c t i o n
u n d e r S e c t i o n 3 2 5 r e a d w i t h S e c t i o n 149 a n d Section
323 read with Section 149 were maintained. They
w e r e r e l e a s e d on p r o b a t i o n b u t e a c h w a s o r d e r e d to
p a y c o m p e n s a t i o n of R s . 2 5 0 0 / - to o n e of t h e v i c t i m
who was seriously injured. When the matter was
brought before the Supreme Court in appeal, the
Supreme Court questioned the legality of the
compensation to the victim which could legally
106 AIR 1988 SC 2127.

Judicial Atlltudc in Awarding Compensation in India 259
sustain and if so what amount should be proper

compensation in the present case? The Supreme
Court further observed that:
"It is an important provision but Court have

seldom invoked it. Perhaps due to ignorance
of the object of it. It empowers the Court to
award compensation to victim while passing
Judgement of conviction. In addition to
conviction, the Court may order the accused
to pay some amount by way of compensation
to the victim who has suffered by the action
of the accused. It may be noted this power of
the Courts to award compensation is not
ancillary to other sentences but it is in
addition thereto."^^^
The Court further added:
"We, therefore, recommend to all Courts to

exercise this power liberally so as to meet
the ends of Justice in better way."^^^
Hence, the award of compensation under Section

357 of Criminal Procedure Code is interpreted to be
an award in addition to other sentences and not
107 /fc/J; p. 2131.

108 Id.
Judicial Auiludc in Awarding Compensation in India 260
ancillary threats.'^^ There are so many instances

where the Courts pointed out towards the liberal
approach in interpreting the Sections, in awarding
t h e c o m p e n s a t i o n to v i c t i m s .
T h e C o u r t a g a i n o b s e r v e d t h a t p o w e r in t h i s a r e a
must be used liberally enabling it to exercise its
power even at whim, sometimes. So compensation
must be reasonable. Reasonable compensation may
depend upon the facts and circumstances of each
case. The quantum of compensation may be
determined by taking into account the nature of
crime, the j u s t n e s s of c l a i m by t h e v i c t i m and the
a b i l i t y of a c c u s e d to p a y it.
The above decisions of the Supreme Court

clearly indicate that judicial trend in compensating
t h e v i c t i m is a t t a i n i n g new d i m e n s i o n s .
In awarding compensation, following factors

plays vital role firstly, much depends upon the
p a y i n g c a p a c i t y of t h e o f f e n d e r .
Secondly, there is a g e n e r a l reluctance on the

part of the Criminal Court regarding the use of
criminal law process for compensation purpose
109 Balaji vs. StateofU.P., 1995CrU32l7.

coupled with the indifference a n d e v e n i g n o r a n c e on

t h e p a r t of l a w y e r s a n d c l i e n t s .
Thirdly, t h e C o u r t s a r e r e l u c t a n t to i m p o s e fine
along with s u b s t a n t i a l imprisonment.
Fourthly, maximum fines have been laid down

for v a r i o u s o f f e n c e s w h i c h w e r e fixed l o n g t i m e ago
a n d q u a n t i t y of fine is very s m a l l .
Lastly, conviction is n e c e s s a r y for t h e payment

of c o m p e n s a t i o n . B u t u n f o r t u n a t e l y c o n v i c t i o n is very
l e s s i r r e s p e c t i v e of t h e m e r i t of t h e c a s e . ' ^ o
B e s i d e s t h i s , it is a l s o c l e a r t h a t S e c t i o n 357(c)
is o n e of t h e important provision but Courts have
rarely invoked it. It m a y be d u e to i g n o r a n c e of i t s
o b j e c t . It e m p o w e r s t h e C o u r t to give c o m p e n s a t i o n to
v i c t i m w h i l e p a s s i n g t h e J u d g e m e n t of c o n v i c t i o n . It
should not be excessive, having regard to the
circumstances of the case like motivation of the
o f f e n c e , p e c u n i a r y g a i n likely to h a v e b e e n m a d e by
t h e o f f e n d e r a n d h i s m e a n s to p a y t h e fine.'î
From the above discussion it is clear that

S e c t i o n 3 5 7 of t h e C r i m i n a l P r o c e d u r e C o d e provides
10 See, Mundrathi. Saminaiah, Law on Compensation to Viclims of Crime and Abuse of

Pmic;-, (2002). at pp. 147-148
11 Palaniappa Gounder vs. Tamil Nadu, AIR, 1977 SC 1323; Sarwan Singh vs. Punjab AIR
1978 SC 1525. 1978, 4 SCC 111.
Judicial Auiludc in Awarding Compensation \n India 262
p r o v i s i o n s for p a y m e n t of c o m p e n s a t i o n to the victim

or his family out of the fine imposed on the a c c u s e d .
It is very s t r a n g e to find out t h a t if the a c c u s e d is
a c q u i t t e d the victim or his family m e m b e r s d e p e n d e n t
on him are u n d e r obligation to bear the a g o n i e s in
the society due to loss of the bread e a r n e r . So it is
observed t h a t conviction of a c c u s e d is n e c e s s a r y evil
to get the compensation under Code of Criminal
Procedure."2
VII. Judicial Attitude and Probation of Offenders

Act, 1958
The most significant aspect which is v^'orth

mentioning is that although the Probation of
Offenders Act h a s self-contained provision for award
of c o m p e n s a t i o n to the victim who h a s suffered at the
h a n d s of the offender. Provisions u n d e r P r o b a t i o n of
Offenders Act, 1958 are very rarely p r e s s e d into by
the trial c o u r t s . As a general notion, it is a g i t a t e d on
the issue of releasing the offender straightway
w i t h o u t g r a n t of any c o m p e n s a t i o n to the victim of
the crime. Unfortunately in our legal system, in
quite large number of c a s e s , the victim and the
aggrieved party who h a s suffered m e n t a l and physical
1 12 For more details see. Code of Criminal Procedure, 1973, Section 357.
a g o n y is left in t h e l u r c l i a n d h a s to r e c o n c i l e to h i s
fate a s law is i n a d e q u a t e to p r o t e c t h i m .
T h e Apex C o u r t has also laid stress regarding

award of c o m p e n s a t i o n to t h e v i c t i m and held that
Court shall exercise its power of granting
c o m p e n s a t i o n to v i c t i m l i b e r a l l y . In Hari v s . S u k h b i r
S i n g h " 3 t h e Apex C o u r t h e l d t h a t t h e o r d e r of High
C o u r t in a p p e a l g r a n t i n g b e n e f i t of S e c t i o n 4 of t h e
Probation of O f f e n d e r s Act to t h e a p p e l l a n t s cannot
be s a i d to be i n a p p r o p r i a t e , a s t h e r e w a s no p r e v i o u s
e n m i t y of m o t i v e a n d t h e o c c u r r e n c e w a s o u t c o m e of
a s u d d e n flare u p . So w h e n s u c h s i t u a t i o n o c c u r s t h e
C o u r t i n c r e a s e s t h e i r own s e n s e of r e s p o n s i b i l i t y for
their future a n d p r o t e c t s t h e m from t h e s t i g m a and
possible contamination of p r i s o n life. However, the
award of compensation by the High Court while
releasing the appellants, under the probation was
found to be i n a d e q u a t e and thus the compensation
w a s e n h a n c e d to R s . 5 0 , 0 0 0 / - .
In Babu R a g h u n a t h Naik v s . Mrs. T.P. F a u n a , i ' ' '
J u d i c i a l C o m m i s s i o n e r of Goa h e l d t h a t t h e accused
a p p e l l a n t w a s o r d e r e d to be r e l e a s e d u n d e r S e c t i o n 3
of the Probation of Offenders Act, as he had
113 AIR 1988 SC 2127; 1989 Cr.U 116.

114 AIR 1967 Goa 95: 1967 CrU 1005.
Judicial Atliludc in Awarding Conipcnsalion in India 264
committed theft of c o c o n u t tree for the purpose of

using the same a sifters to b u i l t h i s c o t t a g e . While
releasing the accused after due admonition, in the
c i r c u m s t a n c e of t h e offence a n d t h e c h a r a c t e r of t h e
offender, the J u d i c i a l C o m m i s s i o n e r g r a n t e d him the
benefit of t h e Probation of O f f e n d e r Act, directing
him to pay a compensation of Rs. 50/- to the
complainant.
It is c r y s t a l c l e a r from t h e S e c t i o n s 3 a n d 4 of
the Probation of O f f e n d e r s Act t h a t in a pragmatic
way so a s to m a k e it m o r e r e s p o n s i v e to t h e n e e d of
the community and social d e m a n d , the execution of
bond with c o n d i t i o n s like p a y m e n t of compensation
and execution of b o n d with surety and the control
and supervision of the Probation Officer after
r e l e a s i n g the offender s h o u l d be m a d e m a n d a t o r y in
the Act which would instill confidence in public
regarding the efficiency of the law relating to
probation.
It can be concluded that the Probation of

O f f e n d e r s Act, 1 9 5 8 is i n a d e q u a t e from v i c t i m ' s p o i n t
of view. The Court is h a v i n g a great discretion in
a w a r d i n g c o m p e n s a t i o n . The v i c t i m s a n d dependents
may be paid compensation from the fine amount
which a M a g i s t r a t e may impose on the a c c u s e d u n d e r

Section 357 of the Criminal P r o c e d u r e Code.^^^
V I I I . Compensation a w a r d e d by the N a t i o n a l Human

Rights Commission
National Human Rights Commission recommended
compensation in so many cases, some of the landmark
cases in which compensation recommended by the
Commission has been discussed in detail as follows :
(a) Death of Rameshwar Jat in Police Custody due to

Beatingiifi
In this case, the Commission was informed that

Rameshwar J a t died in police custody, who was called to
the police station for questioning. Deceased had fallen
into a well. He was taken out with the help of neighbours
and was identified as Rameshwar J a t , who later died in
the hospital.
The Additional District Magistrate, conducted the
inquiry and came to the conclusion that the deceased
was illegally called to the police station and was
physically beaten up. Being frightened as a result of the
serve beating, he ran away from the police station and
jumped into deep dry well, as a consequence he
sustained injuries. The Additional District Magistrate
115 Also see, Code of Criminal Procedure, 1973, Section 360.

116 NHRC, Annual Report, 1999-2000, Case No. 351/20/97-98/CD, pp. 92-93.
Judicial Alliliidf in Awarding Compensalion in India 266
held that certain police officials were responsible for the

incident.
The Commission agreed with the report and
awarded a further compensation of Rs. 5 0 , 0 0 0 / - already
sanctioned by Rajasthan State Government to his legal
representative.
(b) Death of Gothandam in Police Custody,

Pondicherry^^'^
In this case Gothandam, aged 23, was beaten to
death in custody. He was brought to the police station
during the night. During the investigation he died there.
The Commission issued the notice to the Government
calling for a report. The report received from the
Government established the fact that five police official
who had been involved in the incident, were placed under
suspension, a criminal case had been registered against
them and a sum of Rs. 6 0 , 0 0 0 / - had been paid as
compensation to the father of the deceased. The
Magistrate enquiry report also showed that the victim
had been tortured severely. The Commission further
directed for the issuance of a show cause notice to the
Government of Pondichery as to why an additional
amount of Rs. 2 Lakh be not granted as immediate
17 NHRC, Annual Report, 2000-2001, Case No. IV. 75/32/97-98/CD, pp.112-113.

Judicial Attitude in Awarding CnnipL-nsation in India 267
interim relief under Section 18(3) of the Protection of

Human Right Act 1993.
The National Human Rights Commission accordingly
directed the Government of Pondichery to deposit an
amount of Rs. 2 lakh in bank in the name of next kin of
the victim.
(c) Death of Sanjay Sitaram due to custodial violence:

Maharashtraî8
Sanjay Sitaram was picked up by the police and
locked up in a police station. It was alleged that he died
after being mercilessly beaten by the police and
thereafter, a conspiracy was hatched to show that he had
hanged himself. In response to the Commission's notice
issued to the Home Secretary, Govt, of Maharashtra, a
report was submitted by Sub-Divisional-Magistrate (SDM)
Thane. It confirmed that the death of Sanjay in police
station was due to beating by the police and added that
certain police officials had been held responsible. The
Commission after due consideration of the said report,
directed the Government of Maharashtra to pay a sum of
Rs. 3 lakh as an immediate interim relief under Sec.
18(3) of the Protection of Human Right Act, 1993 to the
next kin of the deceased.
I 18 NHRC, Annual Report. 2001-2002, Case No. 210/13/98-99-ACD, p. 145, also see
NHRC, Annual Report, 2001-2002, Case No. 483-LD/93-94, pp. 147-148.
(d) Custodial Death of Ram Kishore - Complaint by

Uttar Pradesh Parjapati Samaj Vakas Parishad^^^
In the instant case the Commission received a
complaint in which it was alleged that Ram Kishore a
driver in Ghaziabad (U.P.) had been killed in police
custody. The complaint stated that Ram Kishore had
realized an amount of Rs. 1.5 lakh from certain parties in
Meerut on behalf of his employers on 15'^ July 1993.
However, later that day he had been the victim of an
armed robbery in Modi Nagar in which incident all the
money had been taken away from him. Despite this, he
was handed over to police by his employers for
interrogation. During interrogation, he was tortured by
the police. Due to torture he died on the night of 23"'''
July 1993. Thereafter, in order to h u s h - u p the case, the
dead body was taken to District Hospital, Ghaziabad and
the post-mortem report was manipulated as to the cause
of death, the evidence of torture being destroyed. The
Commission was requested to intervene, investigation
was sought by the State Criminal Investigation
Department (CID) and compensation urged for the widow
of victim. On the basis of the Criminal Investigation
Department report, the Commission held that the fact of
19 NHRC. Annual Report. 2001-2002, Case No. 4g3-LD/93-94. pp. (47-148.

Judicial Alliludi; in Awarding Compcnsa(ion in India 269
the prosecution of public servant in itself was sufficient

proof and justification for award of immediate interim
relief.
The Commission proceeded to order the payment of
compensation in the amount of Rs. 3 lakhs as immediate
relief to the next of kin of the deceased.
(e) False Implication of the Complaint and Other

Torture by Police, Delhii2o
A petition was received by the Commission from
Dara Singh alleging that during the night of 26^*^ March,
2000 he alone with Manmohan Singh, Bhim Singh, Anil
Sharma and others was detained in the Police Station,
Delhi at the instance of Smt. Veeru Devi. All of them
were brutally beaten by Inspector A.S. Tyagi, Station
House Officer. They were later implicated in a false case
under Sections 506 and 354 of the Indian Panel Code.
While considered the petition the Commission
asked the Director General (Investigation) to enquire into
the matter and submit the report. Upon considering the
report submitted by the investigation team, the
Commission reached on the conclusion that Inspector
Tyagi had manipulated the Daily Diary Report to show
his absence from the Police Station at the time of illegal
120 NHRC. Annual Report. 2000-2001, Case No. 3069/30/1999-2000, pp. 116-117.
Judicial Auitutlc in Awarding Compensation in India 270
detention and torture. The Commission held that Dara

Singh and others were illegally detained in the Police
Station during the night of 26^^ March 2000 and that the
Inspector was wholly responsible for this and torture
inflected on them.
The Commission recommended the payment of
compensation of Rs. 10,000/- each to Dara Singh,
Manmohan Singh, Bhim Singh, Anil vSharma and R.K.
Mishra for the torture inflicted on them in custody.
Further the departmental enquiry initiated against
Inspector A.S. Tyagi to ascertain his liability.
(f) Seven Boys Paraded Naked by Police, Haryana^î;

The Commission received a complaint from Mr. Jit
Singh on 2"'* J u n e 1999. In the complaint to the
Commission he stated that an Assistant Sub-Inspector
and two Constables from the Police Station, Gurgaon,
Haryana had picked up seven boys aged between 7-12
years and taken them to the Police Station. The police
stripped them naked and paraded them on the streets
and also beat them. They were also forced to clear
garbage from nearby areas. The parents of the children
were also insulted. The only fault of boys was that they
121 NHRC. Annual Report. 2000-2001, Case No. 393/7/1999-2000, pp. 136-137.
were playing cricket in their locality and that their ball

had landed in the premises of Assistant Sub-Inspector.
After investigation, the Commission team reported
that these children belonging to Balmiki community were
humiliated, stripped naked, paraded in the locality and
also beaten up by police personal. The Commission
directed the Superintendent of Police, Gurgaon to file
charge sheets against the three errant Police personnel
under the appropriate provisions. In addition to this, the
Commission recommendation the payment of Rs.
2 0 , 0 0 0 / - as compensation to each of the seven boys.
The Commission also observed that the State
Government was at liberty to recover this amount from
the salaries of the concerned police personnel.
(g) Torture in Police Custody Results in the Death of

Kartik Mehtoi22
The Commission received a complaint from Smt.
Munuwa Devi that her husband, Kartik Mehto had been
illegally detained by the Police on 27**^ September 1995,
brutally tortured and that this led to his death in police
custody on 4^^ October 1995.
When the Commission noticed the police in its
report admitted to the death of the Kartik Mehto in police
122 NHRC. Annual Report, 2000-2001, Case No. 8903/95-96, at p. 115.

custody. It added that a case had been registered against

a Sub-Inspector under Sec. 302 Indian Penal Code. The
Sub-Inspector had surrendered before the court.
The Commission directed the Government of Bihar
to pay immediate interim compensation of Rs. 2 lakh to
the family of the deceased and to recover this amount
from the accused. The Commission also recommended
that employment be given to one of the members of the
family of the deceased, in accordance with his/her
education qualification. Of the total amount of
compensation awarded, the Commission directed that
50% be kept in fixed deposit in the name of the widow of
the deceased who may be allowed to draw on the interest
of every quarter.
(h) Custodial Death of Hamid in Raisen District,

M.P.123
Again against police brutality the Commission took

suo moto cognizance of a report which appeared in the
newspaper Nayi Dunia, Bhopal, on 15'^ J u n e 1995,
regarding the custodial death of one Hamid, son of
Hafizulla. The newspaper laid down that the father of
Hamid alleged that his son was picked up by the police
123 NHRC, Annual Report, 1999-2000, Case No. 1460/95-96/ at pp. 91-92; also see
NHRC, Annual Report, 1999-2000, Case No. 351/20/97-98/CD at pp. 92-93;
NHRC, Annual Report, 1999-2000, Case No. 7482/95-96 at pp. 94-95.
from his home for questioning in a theft case reported by

his employer, though in fact he was not present at the
place on the date of the alleged theft. He was beaten
mercilessly and released on IS'*^ J u n e 1995. He was
again arrested on next day on the night of which he died.
The Commission called for a report in the matter from
Madhya Pradesh Government. In the report, it was stated
that Hamid was summoned to the Police Station for
interrogation and he had consumed some poisonous
substance while he was in police custody.
The Additional District Magistrate (ADM) had also
conducted an enquiry, according to which Hamid was
illegally detained by the police for interrogation. Even the
post-mortem report indicated that there were simple
injuries on his body. Additional District Magistrate
concluded that death was result of the consumption of
poison. The officer-in-charge failed to take him to the
hospital in an ambulance, and instead took him in a
police van where the personnel were not trained in first-
aid, as a result Hamid died.
The Commission was distressed to see the blatant
manner in which record had been tempered with by the
very people who were duty-bound to maintain law and
order and to uphold the rule of law. The Commission
recommended the Government of Madhya Pradesh to pay
Rs. 50,000/- as immediate interim compensation to

Hamid's family members. The Commission also
recommended to the Govt, of Madhya Pradesh to initiate
proceedings against the errant police officials.
(i) Rape of a Minor Dalit Girl - Failure to Comply

W i t h t h e Lawi24
The Commission received a complaint from

Faridabad, Haryana wherein the complainant stated that
her daughter aged 7 years was raped by one Dekraj, who
was subsequently sentenced to 10 years of rigorous
imprisonment and a fine of Rs. 2 , 5 0 0 / - . The complainant
added that the crime committed against her young
daughter was heinous in nature and that there was great
need to rehabilitate her daughter as she was suffering
from a deep sense of humiliation and was mentally and
psychologically scarred by this experience. The
Commission called for a report from the Home Secretary,
Government of Haryana, who indicated that, an amount
of Rs. 6,250/-had been given to the complainant as
compensation in accordance with a government circular.
After considering the report, the Commission took
the view that the victim or h i s / h e r dependents were
entitled to minimum amount of relief of at least
124 NHRC. Annual Report, 2001-2002. Case No. 390/7/98-99 at pp. 161-162.
Judicial Mtilude in Awarding Compensation in India 275
R s . 5 0 , 0 0 0 / - depending upon the nature and gravity of

the offence.
(j) Suicide by a Dalit Woman following Rape by Eight

Persons including four Constables - Karnataka^^^ :
The Commission received a complaint in which it
was stated that a Dalit woman was raped by eight
persons, of whom some were Constables, and she had
subsequently committed suicide. The Commission issued
the notice to Karnataka Government. The government
sent a report stating that in this case, four police officers
had been kept under suspension and a charge sheet was
filed against them on 5'^ November, 1996. The report
further admitted that case was pending for trial.
The Commission directed the State to pay a sum of

Rs. 2 lakhs to the next kin within six weeks. In addition
to this, the Commission suggested that disciplinary
action against all erring police personnel as for a major
penalty should be taken and concluded as expeditiously
as possible.
It is crystal clear from the above cases that, over
the past 10 years, the Commission has clearly endowed
to give meaning and reality to the objectives reason that
led to the protection of human rights. It would be useful
125 NHRC, Annual Report, 1999-2000, Case No. 581/96-97 pp. 127-28.
in the light of experience of Commission to take

cognizance against such cases. The cases shown in the
Annual Reports of the National Human Right Commission
is conclusive evidence regarding the protection against
violation of human rights.
The Commission proves its efficiency to deal with
these cases of violence, but simultaneously it is also
necessary that it must opt some mechanism for
aggressive monitoring or in for redressal of the
grievances. The most important thing is that the people
must have the awareness and knowledge of their
fundamental rights.
Besides, this there are several cases, where
innocent citizens became victims of abuse of power but
fails to seek redressal for the reason that the prevailing
socio-economic conditions and complexity of the law
makes them often the helpless victims of the State
excesses.
The National Human Rights Commission in a
landmark ruling awarded Rs. 2,50,000 each as
compensation to the next of kin of 109 people found to be
'admitted in the custody of the Punjab police at the time
of their death.' The Commission held the State of Punjab
accountable and vicariously responsible for the
infringement of the indefeasible right to life of these
people as it 'failed to safeguard their lives and persons

against the risk of avoidable harm while in the custody of
the State. The Commission's order was part of the Punjab
mass cremations case in which it is looking into the
alleged illegal cremation of 2,097 people by the State
police in three crematoria in Amritsar district. ^^6
The case was initially filed by the Committee for
information and Initiative on Punjab in the Supreme
Court in April 1995. The Supreme Court, through its
order of November 15, 1995, directed the Central Bureau
of Investigation (CBI) to appoint a high power team to
investigate claims contained in the press note released
by J a s w a t Singh Khalra, General Secretary of the Akali
Dai's human rights wing. The press note released on
J a n u a r y 16, 1995, a few months before he was abducted
from outside his house, alleged that security forces in
Punjab had been secretly cremating t h o u s a n d s of bodies
labeled as unidentified. Most of them were picked u p for
interrogation. ^^7
The court decided to keep the full contents of the
report secret but disclosed 2,097 illegal cremations,
including 582 fully identified, 278 partially identified,
and 1,238 unidentified bodies. The court's order of
126 See, The Hindu, 9"" September, 2005 at p. 11.

127 Ihid
Judiciiil Alljludc in Awarding Compensation in India 278
December 12, 1996, requested the National Human

Rights Commission to look into the matter and determine
all issued concerning the matter raised by counsel for
the parties. ^^8
In the last hearing before the National Human
Rights Commission, counsel for the Committee for
Information and Initiative on Punjab and the Committee
for Coordination on Disappearances in Punjab pointed
out that the Commission's award was given without
adjudicating on facts based on a prima facie view of the
situation. Arguing that there was nothing in the Supreme
Court's orders that restricted the Commission's mandate
to only determining if there were illegal cremations, they
argued that the Commission should go into the question
of civil culpability. '^^
According to the Draft Convention on the Protection
of All Persons from Enforced Disappearances, currently
under consideration by the United Nations Sub
Commission on the Promotion and Protection of human
Rights, enforced disappearances undermine the deepest
values of any society committed to respect for the rule of
law, human rights and fundamental freedom, and that
128 Id
129 Id
the systematic practice of enforced disappearances is of

the nature of a crime against humanity, iô
The close scrutiny of the discussion on the judicial
attitude in awarding compensation makes it manifestly
clear that the courts in India have favourably construed
provisions safeguarding the interest of the victim, but
have not at all failed to realize the social requirements.
The Indian judiciary has appreciated the feeling of the
victims and endeavoured a lot to improve their position
by awarding compensation to them in order to lift them
at par with other members of the society. The Indian
judiciary has even gone to the extent of holding State
liable for the acts done by its agents.
This makes it absolutely necessary that the
independence of judiciary be preserved for the effective
production of citizen's right. The judicial system in India
should be so conceived and organized that the ever-
widening gap between the legal system and the needs of
modern society could be closed to make justice an
effective instrument of service to a progressive
democratic society. All the three organs of the State have
to act in comity and unison so that the Constitution may
fulfill what the founding fathers desire.
130 rd.

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CHAPTER- V

JUDICIAL ATTITUDE IN AWARDING

warn the Central Government as well as the State

I I . J u d i c i a l A t t i t u d e and Workmen Compensation Act

AIR 1951 Punj 102.

electrician to go to heating room and then to a cooling

So the accidental injures includes such as

Firstly, that the workman was in fact employed on,

the accident and the employment. Once the peril is

he is supposed to so some work then he would be deemed

Even, the Apex Court in Saurashtra Salt

12 AIR 1958 SC 881.

So, according to Apex Court in order to come within

accelerating factor in giving the final blow on account on

In the appeal it was held that if the work had been

by his superiors, he continues to be on duty and in the

(a) Notional Extension of Employer's Premises

course of his employment if he reaches the place

The Supreme Court of India while applying the

In the case of Works Manager Carriage and Wagon

work in order to carry out his obligations to his employer

In another case Sri Jayaram Motor Service vs.

22 AIR 1953 Cal. 143.

that if the death was the 'result of stresses and strain'

sustained while performing actual VIP Security duty.

In the case of (Smt.) Laxmi Bai vs. Manager, M/S

In Commissioner, Kovilpatti Municipality vs.

25 2001 (3) TAC 267 (Kant).

premises is a doctrine which extends the coverage of the

(b) Compensation in case of Death

28 See, Workmen's Compensation A.ct, 1923, Section 4.

and the cleaner sustained bodily injuries and died. The

(c) Compensation in Case of Permanent Partial

Narain Lal.^o a driver of the appellant was awarded

duty of the appellant under section 4-A(l) of the Act, to

Even in Vidya Devi vs. State of H.P.33 the High

33 C W P 2 9 8 o f 1988 in H. P. High Court.

setting or making the payment to the claimant when it

34 1985 ACJ 57.

Sheela Ratnam,'^^ the Kerala High Court in the full bench

41 1996(2) KLT 695.

The various High Courts specially Kerala High Court

III. Judicial Attitude and Employees State

insurance fund. The ESI Act provides for the sickness

IV. Judicial Attitude under the Consumer P r o t e c t i o n

47 See, Employees State Insurance Act, 1948, Section 1(4)

consumer. But all these are scattered pieces of

against unfair trade practices. Thirdly, the right to be

to the consumer for wrong done to him in one or other

A violent crowd entered the compartment, broke the

liability having regard to the facts a n d c i r c u m s t a n c e s of

It is i m p o r t a n t to s u m m a r i s e t h a t the forum may

It was held t h a t w h e n s u s p e n s i o n of b u s i n e s s was

prevention by the demonstrating banking workmen of

management and was not attributable to any negligence

Rajasthan State Commission after examining the record,

60 (1991) 1 CPR 217 (NCDRC).

In Mahaveer Electricals vs. The District Manager,

63 (1991) 11 CPJ 296.

The complainant suffered inconvenience and expanses

In continuation with the deficiency of services in

70 1(1997) CPJ 247 (Delhi S C. D.R.C).

disrupted. Near about 300 birds died as a result of it.