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High Court Of Delhi
ASSISTANT OF VICTIMS OF UPHAAR TRAGEDY - Appellant
Versus
UNION OF INDIA - Respondent
Civil 4567 of 1999
Decided On : 04/24/2003
Held :
Before issuing or renewing a license, the licensing authority is required to obtain reports from the health and fire authorities.
The license of the cinema was sought to be suspended by the Licensing authority in June, 1983 for alleged violations of different provisions and rules wider the Cinematograph Act and the rules framed there under and the cinema was required to obtain clearance certificates from various authorities within four days failing which it was threatened that the license would be revoked.
These deviations, according to the DCP (Licensing) amounted to contravention of conditions 1, 2 and 17 of the license conditions, rule 23 and 47 of the Delhi Cinematograph Rules and paragraphs 2 and 18 of the First Schedule appended thereto. He, thereforee, issued a notice to the cinema to show cause as to why the license be not revoked under Rule 8 of the Rules. After considering the reply received from the cinema, order dated 27th June, 1983 was passed suspending the license of the cinema for four days. This order was stayed by the Delhi High Court by its order dated 28th June, 1983.
Besides the above structural deviations/violations, the Committee appointed by this Court as well as Naresh Kumar Inquiry Report have also made observations about the addition of seats, shortening of gangways, closure of the right side exit in their respective reports.
Constitution - Writ — Maintainability — Writ petition for damages in public law under Article 226 of the Constitution is maintainable where facts easily ascertainable — Constitution of India, 1950, Article 226.
The petition for claiming damages in public law by filing a petition under Article 226 of the Constitution of India was maintainable. It was not a matter in which highly disputed questions of fact arose and it appears to be a matter in which facts could be ascertained very easily.
Electricity - Installation of transformer — Negligence — Violation of standards prescribed by Indian Electricity Act and Rules and also BIS — Delhi Vidyut Board installing transformer on ground floor of Uphaar Cinema — No material to show what follow up actions taken so that fire would not take place and also how electricity transmitted to consumers from the transformer — Board negligent and liable for compensation to the victims of Uphaar Cinema Tragedy due to fire — Indian Electricity Rules, 1910, Rules 32, 33, 36, 50, 51.
The Delhi Vidyut Board was clearly negligent in the maintenance and installation of its transformer installed on the ground floor of the Uphaar Cinema. Though by order dated 29th February, 2000 while appointing the Commissioners, we had directed them to submit report as to whether or not all rules, regulations and statutory provisions were complied with and if not to what extent, the Commissioners have given their report only regarding deviation in structure of building and installation of seats inside the cinema hall. They have not given any report as to whether or not the Delhi Vidyut Board had complied with all the rules, regulations and statutory provisions in the installation of the transformer.
Nothing has been placed on record to show as to what follow up steps were taken by the Delhi Vidyut Board to ensure that no fire takes place after the fire was reported in the transformer in 1989 and the transformer was changed from 750 KVA to 1000 KVA.
The state of affairs at the site of DVB transformer clearly indicates that standards prescribed for such a power installation system in IE Act/Rules and bids have not been adhered to at all. This further reflects on the functioning of the Board.
torts - Negligence — Absolute and non-delegable liability — Enterprise engaged in hazardous or inherently dangerous activity — Uphaar Cinema Tragedy — Negligence on the part of Delhi Vidyut Board in installation and maintenance of its transformer in the ground floor of the building from where fire stated to have started resulting in death and burns to several persons — Statutory violation of safety standards — Board liable for compensation or damages to the victims and/or their relatives.
An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the safety of persons working in the premises or vicinity, owes an absolute and non-delegable duty to the patrons who visit the same to ensure that no harm results to anyone on account of hazardous or inherent nature of the activity which it has undertaken. The enterprise is under an obligation to ensure that the activities are conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it would be no answer to the enterprise to say that the harm has not been caused because of any negligence on its part. The persons harmed on account of the hazardous activity carried on by the enterprise may not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm, the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous activity. If the enterprise is permitted to carry on an hazardous activity for its profit, the law must presume that such permission is conditional on the profit seeking enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. It must indemnify all those who suffer on account of carrying on of such hazardous or inherently dangerous activity regardless of whether it has carried on carefully or not. The principle is also sustainable on the ground that the enterprise alone has the resources to discover and guard against hazards or dangers and to provide warning against potential hazards.
Negligence — Compensation — Installation or replacement of transformers — Prior approval of Electrical Inspector after he had inspected the equipment necessary — Delhi Vidyut Board not obtaining such approval installing transformer on ground floor of cinema building resulting deaths and burns of several persons caused by fire — Vidyut Board liable to pay compensation.
Before installing or replacing a transformer, it is mandatory under the rules to get approval from the electrical Inspector after he had inspected the equipment. Admittedly, even as per their own case, the Delhi Vidyut Board had not taken the approval from the electrical Inspector at the time of installation of 1000 KVA transformer. Though, it is the case of the Delhi Vidyut Board that with a view to ensure continuous supply of electricity to the consumer, they did not feel it necessary to have the equipment inspected by the electrical inspector and to get his approval before the transformer was made operational, however, in our view, this argument does not inspire any confidence inasmuch as the Board is not expected to do away with the safety standards in the name of supply of continuous electricity to the consumers. Safety is the first aspect which has to be looked into by all concerned including the Board and even if there is any apprehension of the safety standards having not been followed, the transformer ought not have been made functional. Moreover, there is clear deviation and violation of the rules by the Delhi Vidyut Board by not providing the circuit breakers and relays which are necessary to be provided under the I.S.Code. It is no ground not to provide relays by stating that the same were being stolen from time to time and the Board had no control over the unmanned sub-stations. It is the duty of the Board to ensure that proper safely standards are applied and proper relays are provided at the sub-stations so that any such mishap does not takes place at the sub-station.
The Delhi Vidyut Board was negligent in the maintenance and installation of the transformer, the same would be sufficient to hold the Delhi Vidyut Board responsible and liable for payment of compensation. Installation of a transformer is not such an activity which can said to be normal. There is inherent danger of fire in the installation of the transformer and it can, thereforee, be said to be hazardous activity. The Board is under an obligation to ensure that the hazardous activities should be conducted with the highest standards of safety and if any harm results on account of such activity, the Board must be liable to compensate for suck harm and it would be no answer to the Board to say that the harm has not been caused because of any negligence on its part.
Negligence — Compensation — Quantum — Uphaar Cinema Tragedy — Victims students, of an affluent school catering the needs of the upper strata of the society — Award of Rs. 5 Lakhs as compensation not excessive but proper, and question of capacity to pay higher fees to the school for the students irrelevant.
It is not that the award of compensation at Rs. 5 lacs can be attributed to be the resultant effect of either emotion or sentiments or the High Courts anguish over the incident. The High Court obviously considered the overall situation as regards social placements of the students. As stated hereinafter the school presently is one of the affluent school in the country and fee structure and other incidentals are so high that it would be a well nigh impossibility to think of admission in the school at even the upper middle class level. Obviously the school caters to the need of upper strata of the society and if the 2nd Schedule of Motor Vehicles Act, can be termed to be any guide, the compensation could have been am much larger sum. Thus in the factual situation award of compensation at Rs. 5 lakhs cannot by any stretch be termed to be excessive.
The school as of date stands out to be one of the most affluent schools in the country as such ability to pay cannot be termed to be an issue in the matter and on the wake thereto we are not inclined to deal with the same in any further detail.
Negligence — Damages — Uphaar Cinema Tragedy — Criteria for estimating damages — Profitability of the owners to be taken into consideration at the time of granting damages.
Insofar as the calculation of the profitability is concerned, the same appears to have been slightly exaggerated. The cost of one balcony ticket is taken by Mr. Tulsi as Rs. 50/-, which was the cost in 1979, but it could not be the rate throughout between 1979 and 1997. The cost of the balcony ticket in or about 1979 may be Rs. 15 or Rs. 20 and the same position might have continued till the middle of 80s. Moreover, one could not imagine that all the five shows of the day during the entire 365 days a year would have been house full. Assuming the average rate of ticket in the balcony between 1979 and 1996 to be Rs. 30/- and of the 150 shows in a month assuming 50% shows to be houseful, the owners will be getting approximately Rs. 2250/- per seat per month or Rs. 27,000/- per seat per year and in 18 years the owners may have earned Rs. 4,86,000/-. The owners may have earned Rs. 2,50,00,000/- (Rupees Two Crores Fifty Lacs only) from all these additional seats. This may not be the exact income earned by the owners of the cinema hall but this figure is only one of the indices which may indicate what the damages should be in the event of their being awarded.
Negligence — Rule of absolute and strict liability — Installation of transformer on ground floor of cinema building meant to supply electricity to the colony and not to the cinema building — User not natural — Rule of strict and absolute liablity applies since the activity was hazardous and dangerous — Delhi Vidyut board liable for negligence.
In the case of installation of WOO KVA transformer on the ground floor of the building which was meant to supply electricity to the colony and had nothing to do with the cinema building, cannot be said to be a natural use. It is not understood as to how the Delhi Vidyut Board could insist upon installing the transformer inside the building when the same is to provide electricity to the area other than the building. Though, one or two tenants had already been provided electricity through this transformer, however, that will not make it a natural user. Even if this transformer was not installed on the ground floor of the building, the Board would have provided electricity to these tenants from the transformer which would have been located outside the building. It is, thereforee, of no consequence that to two or three tenants in the building the electricity was being supplied from this 1000 KVA transformer. Though initially the owners of the cinema were not prepared to give any space to the Board for installation of a transformer which was not at all meant for supply of electricity to the cinema, however, subsequently they agreed to provide space for installation of the said transformer as the Delhi Vidyut Board was delaying the supply of electricity to the cinema because of the owners not providing space for installation of this transformer. Even if the owners had agreed to provide space to the Board for installing a transformer which would have, supplied electricity to the colony and consumers outside the cinema building, the same would not make installation of 1000 KVA transformer on the ground floor of the cinema. In our view, the owners might not have other option but to agree to the demand of the Board to install the transformer on the ground floor otherwise the Board had refused to provide electricity to the cinema as well.
The rule of absolute and strict liability will apply in this case as well as it applies in the case of any activity which is inherently dangerous. In any case, installation of a transformer, in our view, is also hazardous activity inasmuch as there is always a danger of short circuiting and sparking in case, it is not property installed and maintained and the schedule of maintenance of the transformer is not adhered to. As it is an unmanned transformer and admittedly maintenance schedule was not adhered to by the Board and the installation of the transformer being an hazardous activity carried on by the Board at a place which was not meant for the same, for this reason as well the rule of strict liability will apply to the present case.
( 1 ) IN the posh area of south Delhi in Green Park is located the Uphaar Cinema. Though it was constructed sometimes in 1973, however, after renovation in 1996/97, the first film released in this theatre on Friday, the 13th June, 1997 was "border". The film had a patriotic fervor and was based on the 1971 Indo-Pak war. During the matinee show of the film, immediately after the interval, the audience in the cinema hall saw smoke coming out of the side of the screen. Most of the patrons sitting in the hall thought it was some special effect which was a part of the film realising little that a fire had broken out in the cinema building. By the time they realised that the smoke had engulfed the hall because of the fire in the building it was too late for many of them to leave the balcony. The entire balcony area and the stairs leading to the balcony were so full of smoke that it had became impossible for many of the patrons to go out of the building and as a result thereof 59 people, which included infants and children, lost their lives because of asphyxiation and about 103 other persons sustained injuries. Immediately after the incident of fire, the Lieutenant Governor vide order dated 14th June, 1997 ordered an enquiry into the incident and appointed Mr. Naresh Kumar, Deputy Commissioner (South), Government of National Capital Territory of Delhi to conduct the enquiry with the following terms of reference :-
I) to look into the cause (s) and circumstances leading to fire; ii) to examine whether the Uphaar Cinema had the necessary clearances/ NOCs/licenses from various agencies/statutory authorities. If not, to fix responsibility for lapses of the agencies; iii) to suggest measures to prevent such incidents in future; iv) any other fact (s) relevant to the incident.
THE Deputy Commissioner after recording the statement of witnesses and examining the documents submitted his report which will hereafter be referred to as the "naresh Kumar Enquiry Report".
( 2 ) THIS petition has been filed by the Association of Victims of Uphaar Tragedy. The members of the Association, we are informed, are either those who were injured in the fire or are relatives of those who were injured or killed in the fire. By this writ petition, besides claiming compensation, the petitioners have also tried to highlight the alleged shocking state of affairs existing in the cinema building and wholly inadequate safety arrangements made therein. The claim of the petitioners is that there was complete disregard of the statutory obligations prescribed under the law for prevention of fire hazards in public places. The grievance of the petitioners is that each and every public authority, not only failed in the discharge of its statutory obligations, but in fact acted in a manner which was hostile and foreign to the discharge of their public duties. The standards set under the statute and the rules framed for the purpose of preventing public hazards were observed only in their breach. License and permits were issued in complete disregard of the mandatory conditions of inspection and ensuring that the minimum safeguards were provided on the ground. Scores of cinema halls were and are permitted to run without any inspection and without any license. Permits are issued mechanically and perhaps, for a price. The petitioners, therefore, seek adequate compensation for the victims and punitive damages against the respondents for showing callous disregard to their statutory obligations and to the fundamental and indefeasible rights guaranteed under Article 21 of the Constitution of India, of the paying public, in failing to provide safe premises, free from hazards, that could reasonably be foreseen. The petitioners in the writ petition, as already mentioned above, besides claiming compensation have also sought for certain other reliefs as under:-
A. Direct the respondents jointly and/or severally to produce all the records of F. I. R. No. 432 dated 13. 6. 97, P. S
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