An analogy can be drawn with the Motor Vehicles Act to calculate compensation for the victims of the Vadodara boat capsize incident: Gujarat High Court

Hearing a plea in connection with the January 18 incident at Harni Lake in Vadodara, the Gujarat High Court on Friday (November 29) said compensation to the victims and their relatives can be calculated by analogy with the principles enshrined in the Motor Vehicles Act. Act.

During the hearing, the panel Chief Justice Sunita Agarwal and Justice Pranav Trivedi noted the applicability of these principles for assessing damages to dead and injured victims, and also referred to the Supreme Court decision in the case Sarla Verma and Ors. v. Delhi Transport Corp. & Anr on this issue.

The High Court was hearing a suo motu public interest litigation (PIL) relating to an incident in which the victims had filed an application seeking compensation from the contracting firm M/s Kotia Projects for negligence in managing the project leading to the fatal accident.

Taking note of the Vadodara Collector’s report detailing the victims and their relatives, the court said the assessment of compensation will focus solely on the contractor firm’s liability for damages, adding that it will not be affected by internal disputes within the firm. He also asked the Vadodara Collector to appoint an officer in the rank of Deputy Collector to calculate the compensation as per the principles of the Motor Vehicles Act after hearing the aggrieved parties as well as the contractor firm.

During the hearing, Advocate General Kamal Trivedi, appearing for the state, said that the court could take reference to the Morbi case in which the company was held liable and that such a scheme could be considered in this case.

The bench then verbally said: “These are only young students, the principles of payment of compensation under the Motor Vehicles Act may be… from here an analogy can be drawn and the compensation can be determined by the collector. The principles exist: depending on death, depending on age and all factors, compensation can be determined.”

The High Court also orally noted that it may ask the Collector to appoint an officer who will determine the compensation after giving an opportunity of hearing to all persons like the parent of the deceased child and the contractor as they are entitled to a hearing under the Motor Vehicles Act.

The court then orally stated that it proposed to draw an analogy with the principles of the Motor Vehicle Act for deciding compensation.

Lawyers for some of the victims said the affidavit filed by one of the victims contained two prayers. He said it was a matter of fair and equitable compensation in accordance with the law as laid down in Sarla Verma & Ors v. Delhi Transport Corp. and Anr.; the second aspect relates to exemplary damages. He said he was seeking exemplary damages as “emergency relief.”

However, the court orally stated that it could not exercise its power to award non-pecuniary damages and that counsel must pursue this remedy in the appropriate court.

It said that exemplary damages would be sought from a private individual, which would require determination of fault, comparison and proof, which the High Court would not be able to do.

Meanwhile, the victim’s lawyer said that he would like to submit some decisions to the court on the aspect of violation of fundamental rights under Article 21 of the Constitution.

To this, the Supreme Court orally said: “Who violated your fundamental right? You were on a tour, right? The parents who came before us allowed their children to go on the field trip, right? They went on a field trip following a similar school policy. They weren’t alone; they went with their teachers. There was some error in judgment on the part of the teacher and this incident happened, right? As for… this contractor, we only, we blamed him only because the fault for the implementation of the project lies with the contractor. Thus, he is obliged to pay damages for the fault that we can calculate. We can ask the debt collector to calculate the damages due to the fault of the contractor who caused the incident. If we draw an analogy with the Road Traffic Accident Act, what the life of a child will be like, the parameters are specified there. As far as exemplary damages are concerned, the court will have to (hear) both parties. You see, the hearing is not meant for one party. A hearing is always available to both parties. So, evidence has to be collected, hearing has to be held and that is not possible either in this PIL or in 226 (Petition under Article 226 of the Constitution of India). We can leave you the opportunity to appeal to any court.”

The lawyer then stated that he had taken up the matter and approached the Supreme Court to refer to judicial decisions to decide the issue of exemplary damages.

The court then stated orally: “Mr. Lawyer, the Supreme Court advised us to go back to the High Court and ask. The Supreme Court did not say that the High Court should give you everything. So, we as a High Court request you to please help us, how can we calculate the exemplary damages, tell us the parameters. How? We cannot draw an analogy with any judgment as it becomes a matter of fact…Mr. The lawyer’s factual question is not about the incident, but about the calculation of estimated damages. The word “exemplary” means that there is no set rule, procedure or parameter. Thus, it is beyond the scope of any procedure, parameter laid down in any statutory provision or any policy having legislative support. Thus, this means that the court must apply its opinion to the facts of the case, giving both parties an opportunity to lead evidence as to whether exemplary damages should be awarded or not. This means we are not competent in this.”

Since counsel had referred to a disputed issue of fact even in the Morby Bridge case, the high court orally stated:That this was a completely different matter. There the bridge was actually like… repaired to a faulty design, by a faulty contractor, hired through a faulty person, and then the contractor is liable because he opened the bridge contrary to the provisions of the law, contrary to the directions of the authorities, by misrepresentation, by misrepresentation . every. That’s why we brought him to justice. Here, too, we do not leave the contractor, but in any case it is impossible to do everything. We seem to make these kinds of orders based on the facts of the case. Here we are also not saying that you are not… entitled to any damages, here we are also saying that there are… there (Morbi bridge collapse case) we have compensated those… all those who wanted no matter… no matter what help we provide. provided assistance in these matters to all those who are living people, who are deprived, who are crippled physically, morally and who are deprived of their livelihood, children, who are deprived of their parents, family; so this analogy cannot be drawn here. Here are all the little children who died in the accident. Why do we say this, an accident can happen on a car or an accident can happen on a boat, a motor boat or a kayak or a simple boat; but then the court can draw an analogy with the principles of damages. The Motor Vehicle Act is also based on the principle of indemnity, tort. Otherwise, you will have to go to the civil court for any misdemeanor, and for any mischief you will have to go to the civil court.”

The court also stated orally that liability for exemplary damages would only accrue if tortious liability was established. The lawyer then stated that he did not insist on liability for wrongdoing.

After hearing this case for some time, the high court, dictating its order, said: “Having heard the reasonable advice of the parties and having read the record of the application made on behalf of the victims for damages resulting from the actions of the contractor on the project that led to the capsizing accident at Harney. Lake, Vadodara On 18.01.2024, vide order dated 9.8.2024, we issued a notice to the contractor M/s Kotia Projects – respondent No. 4. Mr. P.V. Hamboja, is the counsel for respondent No. 4, although it is proposed to contend that there is a dispute between the partners of the firm M/S Kotia Projects, but we clarify that the matter does not concern us.”

He noted that according to his order dated October 18 The Vadodara Collector has completed the request to provide details of the victims, namely the relatives of the deceased and the injured victims. He noted that along with the affidavit, a chart was also submitted showing details of the family members of the deceased victim as well as details of the income of the deceased teachers as well as the injured victim and their present situation.

The court then stated in its ruling: “Having regard to the details set out therein, we are of the considered view that compensation for death and personal injury arising out of an accident can be calculated by drawing analogy with the determination of compensation under the Motor Vehicles Act, 1988, taking into account attention to the principles stated by the Apex Court in the case of Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. To facilitate this process, the Collector must appoint an employee who will make the calculations. Legal assistance and process will be provided to the victims based on the application they submit to the DLSA (District Legal Services Authority), Vadodara, which shall provide a lawyer to assist the officer.”

The court further noted in its order that the contracting firm M/s Kotia Projects or their representatives are free to engage their legal representative to present their case before the concerned officer.

The court held that the officer appointed by the Collector should be at the level of Deputy Collector.

“The calculation must be made after giving due opportunity to hear both parties, applying the principles of calculation of compensation for death and personal injury under the Motor Vehicles Act 1988. The settlement order must be accepted as quickly as possible, preferably within 8 weeks, and submitted together with an affidavit from the relevant officer.“, the court said.

Subject matter: REMANAGEMENT OF WATER BODIES SUCH AS TANK/PONDS/RIVERS/LAKES IN THE STATES OF GUJARAT AND ANR. AGAINST THE STATE OF GUJARAT THROUGH THE MINISTER OF HOME AND ORS.