1
Court No.21
Civil Misc. Writ Petition No.29028 of 2009
Smt. Sunita Tiwari
Versus
State of U.P. and others
Hon'ble V.K. Shukla, J.
Present writ petition has been filed by the petitioner, questioning the
validity of order dated 25.02.2009 passed by Additional District Magistrate
(Finance and Revenue), Deoria in case No.2, Smt. Sunita Tiwari vs. Executive
Engineer and others, holing that the claim application moved on behalf of the
petitioner was not maintainable.
Brief background of the case is that the petitioner is a widow of late Sri
Prakash Tiwari, who died on 04.05.2005 in fatal accident caused by broken
and hanging high tension electric wire at Pokharbinda, police station
Rampurkarkhana, District Deoria. Qua the said incident in question information
was given to the police, which was registered in G. D. No.14; inquest was done
on 05.05.2005. Post mortem was also conducted and cause of death was
reported due to shock. The petitioner filed application on 21.09.2005 under
Section 6 of the Public Liability Insurance Act, 1991. On the said application
notices were issued and thereafter, said application has been dismissed as not
maintainable. At this juncture, present writ petition has been filed.
In the present case, on presentation of writ petition on 30.06.2009, this
Court passed following order:
“Notice on behalf of respondent No.1 has been accepted
by the Standing Counsel. Respondent nos. 2, 3 and 4 are
represented by Sri Promod Bharadwaj, Advocate.
Respondents pray for and are granted four weeks’ time to
file counter affidavit. Rejoinder affidavit, if any, may be filed within
one week thereafter.
List on 20th August, 2009.”
Thereafter, on 15.02.2010 six weeks’ further time was accorded to Sri
H.P. Dubey, Advocate for filing counter affidavit. On 07.04.2010, this Court
2
passed following order:
“Shri Bhardwaj, learned counsel prays for one week and no
more time to file a response to the writ petition, which raises a
pure legal issue namely as to whether the Public Insurance
Liabilities Act applies in cases of the accident as involved in the
present case or not.
List in the next cause list.”
On 22.04.2010, the case was directed to be listed in the next cause list,
showing the name of Sri Pramod Bharadwaj as counsel for the respondents.
On the matter being taken up today, Sri Alok Saran Tiwari, learned counsel for
the petitioner, has filed information slip, clearly mentioning therein that Sri
Pramod Bharadwaj has refused to accept the notice. In such a situation and in
this background, as anxiety of the court is that the matter should be decided,
the case is being heard and disposed of exparte.
Sri Alok Saran Tiwari, learned counsel for the petitioner, contended with
vehemence that the view which has been taken by the authority concerned is
totally incorrect view and is in the teeth of the judgment of this Court in the
case of U.P. State Electricity Board vs. District Magistrate, Dehradun,
1997 UPLBEC (2) 1344, wherein view has been taken that the “electricity”
falls within the definition of “hazardous substance”, and as such proceedings in
question were maintainable under the provisions of Public Liability Insurance
Act, 1991, as such writ petition deserves to be allowed.
Countering the said submissions, learned standing counsel, representing
respondent Nos. 1 and 4, on the other hand, contended that rightful view has
been taken in the matter, as such no interference be made.
This Court in the case of U.P. State Electricity Board vs. District
Magistrate, Dehradun, 1997 UPLBEC (2) 1344, has already considered the
issue that electricity falls within the definition of “hazardous substance” and the
accident, caused on account of it, is covered under the provisions of the Public
Liability Insurance Act, 1991. Relevant extract of the judgment, as contained in
paragraphs 42 to 44, is being quoted below:
“42. Hence in my opinion ‘hazardous substance’ as defined in
Section 2 (d) of the 1991 Act is not to be confined to a substance
specified in the notification issued by the Central Government,
but it includes all substances which come under the definition of
‘hazardous substance’ under the Environment (Protection) Act,
1986, with this exception that if any such substance is also
notified by the Central Government under Section 2 (d) of the
31991 Act then it will be a ‘hazardous substance’ only if it exceeds
the quantity specified in the said notification. Thus the notification
issued by the Central Government under Section 2 (d) of the
1991 Act can only narrow down the scope of ‘hazardous
substance’ as defined under the Environment (Protection Act,
1986, but substances which are not specified in the said
notification will nevertheless be regarded as ‘hazardous
substances’ under the 1991 Act if they come within the definition
of ‘hazardous substances’ under the Environment (Protection)
Act, 1986.
43. I have already stated above that electricity is “hazardous
substance” as defined under the Environment (Protection) Act,
1986 and hence I reject the submission of the learned counsel
for the petitioners that it is not a hazardous substance since it
has not been included in the Notification dated 24-3-1992.
44. THE principle of strict Liability Section 3 (2) of the 1991 Act
places a strict liability (liability without fault) in cases of such
accident due to ‘hazardous substances’ and it is not necessary
for the claimant to plead that the death or injury was caused by
wrong or negligent act of any person.”
The High Court of Madhya Pradesh also in the case of M.P. State
Electricity Board, Jabalpur vs. Collector Mandla, 2003 AIR (MP)-0-156,
has followed the aforesaid judgment in case of U.P. State Electricity Board vs.
District Magistrate, Dehradun, 1997 UPLBEC (2) 1344 and has taken the view
that electricity is “hazardous substance”. Relevant extract of the judgment, as
contained in paragraphs 15 to 20 of the said judgment, is being excerpted
below:
“15. Brother Justice Dipak Misra while deciding Writ Petition No.
2165/2001 has not only relied upon the decision in the case of U.P.
State Electricity Board, AIR 1998 All 1 (supra) but has held that
“electricity” is a “hazardous substance”.
16. From the above discussion it is clear that the electricity is a
“hazardous substance”.
17. The next question for consideration is whether a notification is
required to be made by the Central Government quantifying the
electricity by notification as mentioned in Section 2 (d) of the Public
Liability Insurance Act, 1991. The definition of “hazardous
substance” has been given in Section 2 (d) of the Public Liability
Insurance Act, 1991 which is as under :-
“2 (d) – “hazardous substance” means any substance or
preparation which is defined as hazardous substance under the
Environment (Protection) Act, 1986, and exceeding such quantity
as may be specified, by notification, by the Central Government.”
The definition of “hazardous substance” has been borrowed from
Section 2 (e) of the Environment (Protection) Act, 1986. As per
Section 2 (e) of the said Act, definition of “hazardous substance”
reads as under :-
“2(e) – ‘hazardous substance’ means any substance or preparation
which, by reason of its chemical or physico-chemical properties or
handling, is liable to cause harm to human beings, other living
creatures, plants, micro-organism, property or the environment”.
18. The submission of Shri V. Rusia, learned counsel for the
petitioner is that until and unless the electricity is notified by the
4
Central Government, it cannot fall within the meaning of hazardous
substance and definition has been carved out especially for the
purpose of Public Liability Insurance Act, 1991.
19. “Hazardous Substance” has been defined in Section 2 (e) of
the Environment (Protection) Act, 1986, according to which it
means any substance or preparation which, by reason of its
chemical or physico-chemical properties or handling, is liable to
cause harm to human beings. Physico-chemical properties of
electricity are definitely liable to cause harm to human beings and
other living creatures, plants, micro-organism etc. Thus, it has to
be regarded as “hazardous substance” within the meaning given in
Section 2 (e) of the Environment (Protection) Act, 1986 and once
when something is hazardous irrespective of quantity, In my
opinion it is not necessary for the Central Govt. to issue a
notification as it is not necessary to notify electricity as required in
Section 2 (d) of the Public Liability Insurance Act, 1991 as it is
hazardous irrespective of its quantity. A thing which is known as
intensely hazardous has to be treated as hazardous substance so
as to effectuate the purposes for the enactment of the Act of 1991.
Whatever irrespective of proportion is hazardous has to be treated
as hazardous one. Some article may not be hazardous in small
quantity but electricity is not one of such article. Only these
hazardous substances have to be notified which may be
dangerous on exceeding such quantity then it becomes necessary
to specify the quantity. In my opinion it is not necessary for the
electricity to be notified under Section 2 (d) of the Act of 1991 as in
any quantity electricity is hazardous. It has to be taken as
hazardous substance within the meaning of Section 2 (d) of the Act
of 1991. Section 2 (d) of the Act of 1991 does not have effect
narrowing down the meaning of “hazardous substance” as defined
in Section 2 (e) of the Act of 1986. Similar question was answered
in U.P. State Electricity Board, AIR 1998 All 1 (supra) and in M.P.
State Electricity Board, Jabalpur v. Collector, Mandla in W.P. No.
2165/2001 decided on 15-4-2002. In U.P. State Electricity Board
(supra), it was held in Para 42 as under :-
“42. Hence in my opinion ‘hazardous substance’ as defined in
Section 2 (d) of the 1991 Act is not to be confined to a substance
specified in the notification issued by the Central Government, but
it includes all substances which come under the definition of
‘hazardous substance’ under the Environment (Protection) Act,
1986, with this exception that if any such substance is also notified
by the Central Government under Section 2 (d) of the 1991 Act
then it will be a ‘hazardous substance’ only if it exceeds the
quantity specified in the said notification.
@page-MP161
Thus the notification issued by the Central Government under
Section 2 (d) of the 1991 Act can only narrow down the scope of
‘hazardous substance’ as defined under the Environment
(Protection Act, 1986, but substances which are not specified in
the said notification will nevertheless be regarded as ‘hazardous
substances’ under the 1991 Act if they come within the definition of
‘hazardous substances’ under the Environment (Protection) Act,
1986.”
In the case of M.P. Electricity Board, Jabalpur (supra) it was held
as follows :-
“On a reading of aforesaid two definitions it cannot be construed
that the substance which is not notified by the Central Government
cannot be regarded as a ‘hazardous substance’. The terms used
under Section 2 (d) of the Act are of wide amplitude and of
immense magnitude. They are not to be understood in a narrow,
restricted or confined manner. On the contrary, it covers a large
canvas. The dictionary clause does not lay down a postulate that
unless a substance is notified it cannot be regarded as a
5
hazardous substance. The definition in the Act refers to
Environment (Protection) Act, 1986. I have reproduced the
aforesaid definitions hereinabove. The said definition is in a broad
spectrum. It cannot be encompassed in a small region. If both the
definitions are read together it is quite pronounced that the
electricity should come within the ambit and sweep of the
definition, and certain substances may become hazardous if they
are notified as required under the provisions. Thus, notification by
the Central Government is not the sine qua non to make a
substance hazardous.
20. Section 3 (2) of the Act of 1991 speaks about the strict liability
without fault in case of such accidents involving death due to
hazardous substance and it is not necessary for the claimant to
plead and establish that the death, injury or damage in respect of
which the claim has been made was due to any wrongful act,
neglect or default of any person. No policy was taken out by the
Board. That will not affect the liability of the owner. The main aims
and objects of the Board to generate, transform and transmit the
electricity and these are its activities. It cannot escape from its
liability by saying that no policy was taken by the Board.”
The issue, thus raised, has already been answered by this Court and
followed by the High Court of Madhya Pradesh, holding that the electricity is
“hazardous substances” and the notification issued by the Central Government
is not a sine qua non to make the substance hazardous. Once such view has
been taken by the Courts in respect of welfare legislation, then the order which
has been passed by the Additional District Magistrate (Finance and Revenue)
on 25.02.2009 holding that the application was not maintainable under Section
6 of the Public Liability Insurance Act, 1991, cannot be approved of.
Consequently, writ petition succeeds and the same is allowed. The order
dated 25.02.2009 is hereby quashed and set aside. The application moved by
the petitioner under Section 6 of the Public Liability Insurance Act, 1991, shall
be decided afresh by the Additional District Magistrate (Finance and
Revenue) , Deoria, in accordance with law, within a period of six months from
the date of receipt of a certified copy of this judgment.
21.07.2010.
SRY