'Fundamental Right To Properly Maintained Roads': UP Family Moves Allahabad HC Seeking Compensation For Death Of Family Member By Stray Animal

The Petitioners claim that there are precisely three factors, that contributed to Apar's death:

· Deadly, negligently uncovered pot-hole(s),

· Dangerous stray animal(s), freely roaming, in residential area, and

· Power-cut of street-lighting on the main-road, resulting in complete darkness.

The family has now sought compensation of Rs. 1,00,00,000/- (1 Crore) from the concerned Municipal Corporation, apart from appropriate directions for proper maintenance of roads. In this context the Petitioners have cited various precedents holding that a public law remedy is available under Article 226 of the Constitution of India to seek compensation on account of violation of fundamental rights.

Background

As averred in the petition filed through Advocates Shashwat Anand, Ankur Azad and Rajesh Inamdar, on the night of September 1, 2020, while returning home on a two-wheeler vehicle, Apar encountered a deep pot-hole in the middle-left of the main road, which was obscured and almost invisible on account of the power-cut at that time. The pot-hole was not easily visible and the deceased only noticed it when he reached the spot and almost fell into the pot-hole. In a desperate attempt to prevent himself from falling in, the deceased swerved his two-wheeler. Unfortunately, he collided head on with the sharp horns of a bull. The bull was also not visible due to the stark darkness. Apar was taken to the hospital, where he was declared dead on arrival.

Grounds

The Petitioners have averred that taking care of and maintaining all of the abovementioned aspects is a statutory and constitutional duty of the Municipal Corporation. However, the petitioners claim that this is a case of gross negligence on the part of the Municipal Corporation who failed to fulfil their obligation, resulting in the macabre death of Apar.

In this context, the Petitioners mentioned Justice Oka's observation in the case High Court On Its Own Motion v. State Of Maharashtra & Ors., where it was noted that the right to have properly maintained roads is a part of fundamental rights and is guaranteed under Article 21 of the Constitution of India. If the violation of this right causes any loss, the citizens have the right to demand compensation from the concerned authority. Existence of such a right creates an obligation on the all the authorities that come under the definition of "State" which has been laid down in Article 12 of the Constitution of India.

Along with this, Justice Oka also gave a direction stating, "Municipal Corporations which are parties to the PIL shall maintain all the streets/roads including foot- ways/ footpaths within its jurisdiction in good and proper condition. It shall be the responsibility of the Municipal Corporations to keep the roads and footpaths properly levelled and surfaced. It shall be their responsibility to ensure that potholes and ditches thereon are properly filled in. The work of filling in the potholes shall be carried out scientifically as an ongoing project."

The second argument raised by the Petitioners is that there was a dereliction of duty to take care on part of the municipal authorities. The petition cites Section 114 of Chapter V and Sections 227 (1) and 310 of Chapter XII of the Uttar Pradesh Municipal Corporations Act,1959. By citing these particular provisions, the Petitioners have pointed out that the Respondents are obligated to maintain and improve the conditions of the roads and eliminate any menacing obstructions, including stray animals.

When addressing the issue of the disproportionate amount of stray animals on the streets, the petition has cited the following cases- Common Cause (Regd Society) v. Union of India & Ors., (1999) 6 SCC 667 and Ram Pratap Yadav v. MCD. It was held in these cases that the menace of stray cattle is dangerous and it affects the safety of human beings on the road.

In Common Cause (supra) it was also stated, "The inaction of the state and its agencies impinges upon the fundamental right of the citizens under Article 21 of the Constitution. Under Article 48 of the Constitution, the State inter alias is required to protect and safeguard the forests and wild life. The State by neglecting to perform its duty in preventing the menace of stray cattle is avoiding implementation of Article 48 of the Constitution. It is the duty of the State to keep in view the directive principles of the State policy which are fundamental in the governance of the country and to apply those principles in making the laws.."

The Petitioners also invoked the doctrine of res ipsa loquitur, considering the gruesome, ill-fated death of the deceased and the obligations that rested upon the authorities.

The petition states, "It is picturesque that there was a palpable negligence on the part of the respondents in maintaining the roads and making them pothole-free, taking stray animals off the roads and ensuring proper lighting on the roads, owing to the cumulative effects of all those factors, the deceased son/brother of the petitioners lost his life in the most heart-rending of ways. Thus, the respondents are liable to compensate the petitioners, both jointly and severally, so as to adequately reimburse the abysmal loss caused to them, so macabre as would haunt them for the rest of their lives."

Related News

In January this year, the Punjab and Haryana High Court denied compensation to a bereaved family while holding that state cannot be held responsible for every accident caused by a stray animal.

"If stray bulls roam the village, then the villagers owe a duty to keep themselves safe against any injuries that may be caused by the stray animals coming in the way of commuters all of a sudden and especially in the dark hours. It [State] owed no duty of care and caution. The State is also not responsible for every fatal accident caused by a stray animal…," the Court said in that case.

Also Read: Existence Of Roads In Reasonable Condition Is Embraced In Citizens' Right To Life: Chhattisgarh HC

Also Read: Good And Safe Roads Are Fundamental Rights Of Citizen: Karnataka HC