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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SURAJ GOVINDARAJ, J.
Shri Yusub S/o Mohamusab Sanadi – Appellant
Versus
The State Of Karnataka – Respondent
Writ Petition No. 110352 of 2019 (GM-RES)
Decided on : 10-06-2022
Constitution of India,1950 – Articles 21, 226 and 32 - Indian Contract Act - Section 72 and 73 - Claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty - Award of compensation - Damages for tortuous - Petitioner is engaged in masonry work younger son of the petitioner, Master who was aged about 22 months, was attacked by street dogs while he was playing behind his house after attending nature’s call and dragged him to a nearby agricultural field and mauled him, causing serious injuries to his face, head, thighs etc - He was immediately could not be saved and he succumbed to aforesaid injuries - Doctor had opined in autopsy report that death was caused due to shock and hemorrhage as a result of multiple injuries sustained - Attack and death was reported in newspapers, though respondents had offered to help, no compensation was paid to the petitioner - Petitioner addressed various communications to the respondents but in vain - Petitioner aggrieved by death of his minor son due to the attack of street dogs – Held, petitioner could have been relegated to ordinary remedy of a suit if his claim to compensation was actually controversial” and “Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes”. This observation may tend to raise a doubt that the remedy under Article 32 could be denied “if the claim to compensation was factually controversial” and, therefore, optional, not being a distinct remedy available to the petitioner in addition to the ordinary processes - Petitioner has sought for a sum account of death and further reimbursement of medical expenses incurred - Reimbursement of medical expenses incurred, there are no documents produced by the petitioner to establish any such expenses having been incurred - Cannot be denied that the petitioner might have incurred certain expenses more so when the incident is established, child having taken to the hospital, autopsy having been conducted in relation thereto is also established and admitted. The medical report as also photographs which have been produced along with petition leave no doubt in my mind that certain amounts of expenses would have been incurred - compensation caused due to the death of a child, considering that a minor child has died who would have been a support for the petitioner during his old age as also considering the loss of love and affection the mental agony caused to the petitioner and his family due to untimely death of the minor child in such a bizarre and cruel manner deem it fit to award a sum as compensation payable by respondent No.2 to the petitioner - Respondent are held to be liable under public law for any injury and/or death caused to any citizen on account of attack by street dogs within the jurisdiction of the said municipal authority - Petitioner is at liberty to produce the medical bills with proof of payment to respondent No.2 which shall be considered and payment made within a period of four weeks from the date of receipt of such bills and proof of payment – Writ petition is allowed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
b. Issue a writ in the nature of mandamus or any other writ or directions directing the Respondents, to ensure that the laws, rules, regulations, circulars, notifications etc., that have been issued by the Central Government agencies and the state government agencies are implanted at the earliest to avoid any further event, such as death due to dog bite and protect the life and liberty of petitioner girl child aged around 7 Years.
c. Pass such other order or orders as the Hon’ble Court may deem fit in the facts and circumstances of the case.
2. The petitioner is engaged in masonry work. On 28.11.2018, the younger son of the petitioner, Master Abbasali Yusub Sanadi, who was aged about 22 months, was attacked by 4 to 5 street dogs while he was playing behind his house after attending nature’s call and dragged him to a nearby agricultural field and mauled him, causing serious injuries to his face, head, thighs etc. Though he was immediately taken to K.L.E’S Dr.Prabhakar Kore Hospital, Belagavi, he could not be saved and he succumbed to the aforesaid injuries. The doctor had opined in the autopsy report that the death was caused due to shock and hemorrhage as a result of multiple injuries sustained.
3. When the fact of this attack and death was reported in newspapers, though the respondents had offered to help, no compensation was paid to the petitioner. The petitioner addressed various communications to the respondents but in vain. The petitioner aggrieved by the death of his minor son due to the attack of street dogs is before this Court claiming for the aforesaid reliefs more particularly compensation as detailed in the prayer.
4. Vide order dated 11.11.2020, this Court had directed for interim compensation of a sum of Rs.1,50,000/-with interest at the rate of 8% p.a from the date of death of petitioner’s son till the date of deposit. A sum of Rs.77,458/-(Rs.50,000/-with interest) has been released and withdrawn by the petitioner on 25.06.2021. The remaining 1,00,000/-and interest accrued thereon has been deposited in a fixed deposit account in a nationalized bank.
5. Sri.Santosh Pujari, learned counsel for the petitioner would submit that:
5.1. There is a duty cast on the respondents to ensure that the street and human habitation of the villages/cities etc., are free of dogs and that the humans inhabiting the areas are protected from any attack by such street dogs or otherwise. This duty has not been discharged by the respondents resulting in street dogs attacking the petitioner’s minor son.
5.2. A statutory duty is vested with the respondents to control the population of the street dogs under the Animal Birth Control (Dogs) Rules, 2001 which has not been discharged.
5.3. The various directions issued by the Hon’ble Apex Court and this Court have not been complied with by the respondents making them liable for the death of the petitioner’s son and consequently entitled for compensation.
5.4. The petitioner has a public law remedy for compensation and as such, Writ Petition is maintainable. The petitioner has lost his son and also incurred hospital expenses to an extent of about Rs.80,000/-for the treatment which is required to be reimbursed by the respondents.
5.5. He relies on the decision of the Hon’ble Chhattisgarh High Court in SHOBHA RAM RAJWA RAM SAHU VS. STATE OF CHHATTISGARH reported in AIR ONLINE 2018 CHH 1051 more particularly Paras 23 and 24 thereof, which are reproduced herein for easy reference:
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