# Smt. Shakuntala Devi v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 808
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-06
- **Case number:** Writ-C No. 30866 of 2011
- **Bench:** Saumitra Dayal Singh, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shakuntala-devi-v-state-of-u-p-ors-50967
- **Pages:** 16

## Headnote

held liable for the tortious act of negligence
resulting in the death of Dr. Ravindra Mohan
Prasa The incident occurred due to a blast in a
storage
facility
containing
molten
Maxphalt/Bitumen, which seeped into the
deceased's official residence, causing 70% burn
injuries leading to his death on 27.07.2010. The
principle of res ipsa loquitur was applied,
establishing negligence as the storage of
hazardous material near residential premises
was inherently dangerous and not a normal or
predictable event. (Paras 7, 11, 18-19)
Applicability of Fatal Accidents Act, 1855 Under
Section 1A of the Fatal Accidents Act, 1855, the
petitioner, as the wife of the deceased, was
entitled to claim compensation for the wrongful
act, neglect, or default of St. functionaries. The
court clarified that such liability does not depend
on whether the deceased was on active
government duty at the time of the incident,
rendering the St.'s policy limiting ex-gratia
payments to on-duty deaths unenforceable in
this context. (Paras 8, 13, 23-24)
Rejection of St.'s Defense The St.'s claim that
the incident was an act of force majeure or
purely accidental was rejected as evasive and
unsupported, given the admitted facts of the
blast and seepage of bitumen. The St.'s failure
to hold its agents accountable through criminal
or disciplinary proceedings did not absolve it of
civil liability for the tortious act. The Committee
constituted by the Chief Secretary wrongly
denied compensation by misapplying the St.'s
ex-gratia policy dated 08.12.2008, which was
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
809
irrelevant to tortious liability. (Paras 4, 17, 19,
21-24)
Quantification of Compensation The court
awarded Rs. 50 lakhs as compensation to the
petitioner, with 6% interest per annum from the
date of the incident (17.07.2010) until payment,
to be paid within three months. The amount
was determined using a rough estimate based
on the deceased's age (52 years), salary (Rs.
46,100/month), and four dependents, drawing
parallels with compensation frameworks under
the Motor Vehicles Act, 1988, and Employees
Compensation Act, 1923, though adapted for
the Fatal Accidents Act, 1855. (Paras 26-29)
Exercise
of
Writ
Jurisdiction
Despite
the
availability of a civil suit as a remedy under the
Fatal Accidents Act, the court exercised its
extraordinary jurisdiction under Article 226 of
the Constitution due to the undisputed facts, the
St.'s role as the tortfeasor, and the victim's
status as a government employeThe court noted
that relegating the petitioner to a civil suit after
a 12-year delay would serve no purpose,
especially given the St.'s failure to address the
claim internally. (Paras 14-15, 25)
Critique of St.'s Response The St.'s response,
including the Committee's findings and the
evasive instructions from the Rural Engineering
Department,
was
criticized
for
lacking
accountability and failing to address the tortious
wrong. The court emphasized that expressing
grief or providing compassionate appointment
and terminal dues to the deceased's family did
not constitute compensation for the tortious act.
(Paras 4, 16-17, 19, 24)
G. Outcome The writ petition was allowed, and
the respondents were directed to pay Rs. 50
lakhs with interest to the petitioner. No costs
were awarde The court underscored the need
for prompt and decisive action by St. authorities
to prevent such occurrences and ensure justice
for victims. (Paras 29-30)

List of Cases cited:

## Text

_Characters 0–39,883 of 55,910. This is a partial read: ask again with offset=39883 for what follows._

808 INDIAN LAW REPORTS ALLAHABAD SERIES
contravention by a lessee of any of the
Rules of 1963 Rules or conditions and
covenant contained therein except those
relating to payment of royalty, rent or other
sums due.

15. Under such circumstances, this
Court is definitely of the view that the
confiscation/forfeiture of royalty by the
three impugned orders namely the order
dated 25.03.2019 of the Additional District
Magistrate
(F&R);
the
order
dated
16.07.2021 of the Appellate Court and the
order dated 20.09.2021 of the Revisional
Court cannot be sustained in the eyes of
law. The amount which was due from the
petitioner could have been recovered only
as arrears of land revenue. However, since
the petitioner had given an offer that the
money which was due from the petitioner
i.e. the fourth instalment of the first year
and other statutory dues be recovered from
the security amount, it is being provided
that these amounts can be recovered from
the security money of Rs. 1,74,00,000/-
which was deposited by the petitioner
before the execution of the lease. The rest
of the amount of the security be released to
the petitioner forthwith.

16. With these observation, the orders
dated 25.03.2019 of the Additional District
Magistrate
(F&R);
the
order
dated
16.07.2021 of the Appellate Court and the
order dated 20.09.2021 of the Revisional
Court are set aside and the writ petition is
accordingly, allowed.
----------
(2024) 1 ILRA 808
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Writ-C No. 30866 of 2011

Smt. Shakuntala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.K. Singh, Sri C.L. Chaudhary, Sri Indra Dev,
Ms. Kanchan Chaudhary, SrI V.C. Dixit

Counsel for the Respondents:
C.S.C.

Tortious Liability of the State of U.P. and its
agency, the Rural Engineering Services, were
held liable for the tortious act of negligence
resulting in the death of Dr. Ravindra Mohan
Prasa The incident occurred due to a blast in a
storage
facility
containing
molten
Maxphalt/Bitumen, which seeped into the
deceased's official residence, causing 70% burn
injuries leading to his death on 27.07.2010. The
principle of res ipsa loquitur was applied,
establishing negligence as the storage of
hazardous material near residential premises
was inherently dangerous and not a normal or
predictable event. (Paras 7, 11, 18-19)
Applicability of Fatal Accidents Act, 1855 Under
Section 1A of the Fatal Accidents Act, 1855, the
petitioner, as the wife of the deceased, was
entitled to claim compensation for the wrongful
act, neglect, or default of St. functionaries. The
court clarified that such liability does not depend
on whether the deceased was on active
government duty at the time of the incident,
rendering the St.'s policy limiting ex-gratia
payments to on-duty deaths unenforceable in
this context. (Paras 8, 13, 23-24)
Rejection of St.'s Defense The St.'s claim that
the incident was an act of force majeure or
purely accidental was rejected as evasive and
unsupported, given the admitted facts of the
blast and seepage of bitumen. The St.'s failure
to hold its agents accountable through criminal
or disciplinary proceedings did not absolve it of
civil liability for the tortious act. The Committee
constituted by the Chief Secretary wrongly
denied compensation by misapplying the St.'s
ex-gratia policy dated 08.12.2008, which was
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
809
irrelevant to tortious liability. (Paras 4, 17, 19,
21-24)
Quantification of Compensation The court
awarded Rs. 50 lakhs as compensation to the
petitioner, with 6% interest per annum from the
date of the incident (17.07.2010) until payment,
to be paid within three months. The amount
was determined using a rough estimate based
on the deceased's age (52 years), salary (Rs.
46,100/month), and four dependents, drawing
parallels with compensation frameworks under
the Motor Vehicles Act, 1988, and Employees
Compensation Act, 1923, though adapted for
the Fatal Accidents Act, 1855. (Paras 26-29)
Exercise
of
Writ
Jurisdiction
Despite
the
availability of a civil suit as a remedy under the
Fatal Accidents Act, the court exercised its
extraordinary jurisdiction under Article 226 of
the Constitution due to the undisputed facts, the
St.'s role as the tortfeasor, and the victim's
status as a government employeThe court noted
that relegating the petitioner to a civil suit after
a 12-year delay would serve no purpose,
especially given the St.'s failure to address the
claim internally. (Paras 14-15, 25)
Critique of St.'s Response The St.'s response,
including the Committee's findings and the
evasive instructions from the Rural Engineering
Department,
was
criticized
for
lacking
accountability and failing to address the tortious
wrong. The court emphasized that expressing
grief or providing compassionate appointment
and terminal dues to the deceased's family did
not constitute compensation for the tortious act.
(Paras 4, 16-17, 19, 24)
G. Outcome The writ petition was allowed, and
the respondents were directed to pay Rs. 50
lakhs with interest to the petitioner. No costs
were awarde The court underscored the need
for prompt and decisive action by St. authorities
to prevent such occurrences and ensure justice
for victims. (Paras 29-30)

List of Cases cited:

1. Shyam Sunder Vs St. of Raj., (1974) 1 SCC
690 (Paras 9-11)

2. Guj. St. Road Transport Corpn. Vs Ramanbhai
Prabhatbhai, (1987) 3 SCC 234 (Para 9)

3. Kasturilal Ralia Ram Jain Vs St. of U.P., AIR
1965 SC 1039 (Para 11)
4. Lata Wadhwa Vs St. of Bihar, (2001) 8 SCC
197 (Para 27)

5. General Manager, Kerala S.R.T.C Vs Susamma
Thomas, (1994) 2 SCC 176 (Para 27)

6. M.S. Grewal & anr.Vs Deep Chand Sood &
Ors, (2001) 8 SCC 151 (Para 27)

7. Sarla Verma & ors.Vs Delhi Transport
Corporation & Anr., (2009) 6 SCC 121 (Para 28)

8. National Insurance Company Limited Vs
Pranay Sethi and others, (2017) 16 SCC 680
(Para 28)

(Delivered byHon'ble Saumitra Dayal
Singh, J. & Hon'ble Shiv Shanker Prasad,
J.)

1. Heard Ms. Kanchan Chaudhary,
learned counsel for the petitioner and
learned Additional Chief Standing Counsel
for the State.

2. Present writ petition has been filed
seeking payment of compensation of Rs. 6
crores for the accidental death of the
husband of the petitioner namely, Dr.
Ravindra Mohan Prasad, who died of burn
injuries on 22.07.2010.

3. Pleadings have been exchanged.

4. On 31.10.2023, we passed the
below quoted order:-

"1. On 20.07.2023 we have
passed the below quoted order:-

"1. Learned Additional Chief
Standing Counsel prays for further time to
take instructions, in compliance of the
earlier order dated 20th April, 2023.

2. At present, it appears that act
of gross negligence was committed as had
resulted in the death of Dr. Ravindra
Mohan Prasad. He died of severe burn
810 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries suffered from flow of molten
bitumen
into
his
official
residential
accommodation from a nearby pit, where
such molten bitumen had been stored,
without due care taken.

3. Payment of terminal dues to
the heirs of the said deceased and grant of
compassionate appointment may not be
described
as
compensation
for
the
tortious liability that otherwise arose on
the State respondents.

4. Also, it is not clear, if
appropriate criminal prosecution has
arisen, occasioned by the gross negligent
act, noted above. Here, it may be noted,
the FIR was registered on the complaint
made by the Secretary of the State
Government.
5. Prima facie, we find, the facts of the
case would commend deeper enquiry
unless all remedial and consequential
measures are shown to have been taken
and
appropriate
relief
by
way
of
compensation etc. granted.

6.
Shri
Arimandan
Singh
Rajpoot,
learned
Additional
Chief
Standing Counsel prays for and is
granted two weeks' time to comply with
the earlier order and to obtain the written
instructions in terms of the facts, noted
above.

7. Accordingly, put up on 17th
August, 2023 in top ten cases.

8. It is expected that the
instructions would contain the stand of
respondent nos. 1 and 2, in writing. They
will also make full disclosure of the
prosecution proceedings arising from the
FIR (Annexure No. 2) as also proceedings
that may have been initiated against the
negligent. The instructions would also
disclose existence or otherwise of the
policy to grant ex-gratia and other
compensation in the event of such
occurrences that may be attributed to
negligence
on
the
part
of
State
functionaries and their agents and actual
compensation paid, if any."

2. Three months have passed
since then. However, instructions are still
awaited. At the same time, today learned
Additional Chief Standing Counsel has
placed on record the copy of undated
instructions received by him.

3. The claim which State agency
seeks to escape liability arises from a most
unfortunate
and
shocking occurrence,
wherein the government official died of
serious burn injuries suffered by him as
molten bitumen seeped into his government
residential
accommodation,
from
the
nearby open pit dug out up government
agency.

4. The written instructions issued
under the signature of the Executive
Engineer, Rural Engineering Department,
Mirzapur
are
wholly
evasive
and
irresponsible. Basic facts as to the
occurrence being undisputed and the cause
being man made we fail to understand how
force majeure has been attributed in a
cavalier
manner.
Also
in
face
of
disciplinary proceedings disclosed to have
been initiated and warnings issued, prima
facie case of negligence stands made out.

5. We do not consider it desirable
to adjudicate on the dispute at this stage as
it appears that the attention of highest
administrative authority of the State may
first examine the present facts as may lead
to a just solution at the hands of the State
Government itself.

6. While the Court may not dither
to adjudicate the dispute, at the same time
we consider it desirable that the matter
may first be examined by the appropriate
authority
functionary
of
the
State
Government as may be nominated by the
Chief Secretary of the Government of U.P.
Be it a committee or a proper officer
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
811
empowered
to
take
the
appropriate
decision.

7. Accordingly, let a copy of this
order be communicated to the Chief
Secretary,
Government
of
U.P.
for
appropriate consideration and action in
accordance with the existing policy of the
State Government. For that purpose, let a
copy of this order be supplied to Sri. Dr.
D.K. Tiwari, learned Additional Chief
Standing Counsel, by tomorrow.

8. Put up on 05.12.2023 in top ten
cases, by which date, it is expected that the
final stand of the State Government would
be disclosed i.e. whether there exists any
policy of the State Government to provide
for ex-gratia compensation in the facts of
the present case. If not, that fact may also
be
clearly
indicated
so
that
the
adjudication process may not be delayed
any further.

9. It is further expected that if
policy exists, appropriate decision would
be taken and communicated to the
petitioner so that the issue may not remain
pending any more."

5. In compliance to the above, learned
Additional Chief Standing Counsel placed
on record (yesterday) a copy of the written
instructions
received
by
him
dated
4.12.2023. Those are marked as X.

6. Undisputedly, at the relevant time
Dr. Ravindra Mohan Prasad was posted as
Deputy
Director,
Animal
Husbandry,
Mirzapur Division, Mirzapur. In connection
with that posting, he had been allotted
official accommodation. While asleep at
that official accommodation, on 17.07.2010
at about 5:40 a.m. a blast occurred at the
storage facility of the Rural Engineering
Services,
Mirzapur
in
the
adjoining
premise. Resultantly, Maxphalt/Bitumen
seeped into the residential premises of the
deceased causing 70% burn injuries. He
was hospitalized at the SIPS Super
Speciality Hospital Burn and Trauma
Center, Lucknow on 18.07.2010, where he
died during treatment, on 27.07.2010. At
the relevant time, the Chief Veterinary
Officer, Mirzapur lodged F.I.R. in Case
Crime No. 786 of 2010 at P.S. Katra,
District Mirzapur under Section 337 and
338 I.P.C. against Sri J. N. Prasad, Assistant
Engineer, Store and Sri R. N. Singh, Junior
Engineer, Store. We are not aware of the
outcome of the criminal prosecution thus
lodged. However, for the purposes of relief
claimed, that fact may not be relevant as
such an occurrence gave rise to both civil
and criminal consequences.

7. For the consideration of the claim
made in the present proceeding, it is
undisputed, both on the test of pleadings
made in the counter affidavit as also on the
strength of the written instructions (X) now
placed on record that the fact narration
made above is admitted to the respondent.
Therefore, the cause of the blast at the
storage facility of the Rural Engineering
Services may remain untested in these
proceedings. At the same time, the
occurrence of blast is admitted. It is also
admitted that as a direct result of that blast,
molten Maxphalt/Bitumen flowed out and
seeped into the official residence of the
deceased and caused deep burn injuries to
him while he was asleep. It is in such
unfortunate circumstances that he suffered
70% burn injuries, to which he succumbed.

8. In the first place, such tortious
act is liable to be compensated by the
wrong doer under the Fatal Accidents Act,
1855 (hereinafter referred to as 'the Act').
For the purpose of the present case, the
provisions of Section 1A of the said Act
reads as below:-
812 INDIAN LAW REPORTS ALLAHABAD SERIES

[1A] Suit for compensation to the
family of a person for loss occasioned to it
by his death by actionable wrong.-
Whenever the death of a person shall be
caused by wrongful act, neglect or default,
and the act, neglect or default is such as
would (if death had not ensured) have
entitled the party injured to maintain an
action and recover damages in respect
thereof, the party who would have been
liable if death had not ensued, shall be
liable to an action or suit for damages,
notwithstanding the death of the person
injured and although the death shall have
been caused under such circumstances as
amount in law to felony or other crime.

Every such action or suit shall be
for the benefit of the wife, husband, parent
and child, if any, of the person whose death
shall have been so caused, and shall be
brought by and in the name of the executor,
administrator or representative of the
person deceased;

and in every such action, the
Court may give such damages as it may
think proportioned to the loss resulting
from such death to the parties respectively,
for whom and for whose benefit such action
shall be brought, and the amount so
recovered, after deducting all costs and
expenses, including the costs not recovered
from the defendant, shall be divided
amongst the before-mentioned parties, or
any of them, in such shares as the Court by
its judgment or decree shall direct.

9. In Shyam Sunder v. State of
Rajasthan, (1974) 1 SCC 690, an issue
arose if a claim for tortious liability could
arise where death was caused to the victim
as a result of injuries suffered as he jumped
from a moving truck that caught fire while
plying. It was answered in the affirmative.
Applying the principle res ipsa loquitur the
claim made was sustained by the Supreme
Court and High Court decision to the
contrary was reversed. The following
useful discussion emerged:-

"4.The plaintiff alleged that it
was on account of the negligence of the
driver of the truck that a truck which was
not road-worthy was put on the road and
that it caught fire which led to the death of
Navneetlal and that the State was liable for
the negligence of its employee in the course
of his employment. The plaint also alleged
that the deceased had left behind him his
widow, namely, the plaintiff, two minor
sons, one minor daughter and his parents.
The plaintiff claimed damages to the tune
of Rs 20,000 and prayed for a decree for
that amount.

....

9.The
main
point
for
consideration in this appeal is, whether the
fact that the truck caught fire is evidence of
negligence on the part of the driver in the
course of his employment. The maximres
ipsa loquituris resorted to when an
accident is shown to have occurred and the
cause of the accident is primarily within the
knowledge of the defendant. The mere fact
that the cause of the accident is unknown
does
not
prevent
the
plaintiff
from
recovering the damages, if the proper
inference
to
be
drawn
from
the
circumstances which are known is that it
was caused by the negligence of the
defendant. The fact of the accident may,
sometimes,
constitute
evidence
of
negligence and then the maximres ipsa
loquiturapplies.

10.The maxim is stated in its
classic form by Erle, C.J.: [Scottv.London
& St. Katherine Docks, (1865) 3 H&C 596,
601]

"... where the thing is shown to
be under the management of the defendant
or his servants, and the accident is such as
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
813
in the ordinary course of things does not
happen if those who have the management
use proper care, it affords reasonable
evidence, in the absence of explanation by
the defendants, that the accident arose from
want of care."

The maxim does not embody any
rule of substantive law nor a rule of
evidence. It is perhaps not a rule of any
kind but simply the caption to an argument
on the evidence. Lord Shaw remarked that
if the phrase had not been in Latin, nobody
would
have
called
it
a
principle
[Ballardv.North British Railway Co., 1923
SC (HL) 43] . The maxim is only a
convenient label to apply to a set of
circumstances in which the plaintiff proves
a case so as to call for a rebuttal from the
defendant, without having to allege and
prove any specific act or omission on the
part of the defendant. The principal
function of the maxim is to prevent injustice
which would result if a plaintiff were
invariably compelled to prove the precise
cause of the accident and the defendant
responsible for it even when the facts
bearing on these matters are at the outset
unknown to him and often within the
knowledge of the defendant. But though the
parties' relative access to evidence is an
influential factor, it is not controlling. Thus,
the fact that the defendant is as much at a
loss to explain the accident or himself died
in it, does not preclude an adverse
inference against him, if the odds otherwise
point to his negligence (see John G.
Fleming,The Law of Torts, 4th Edn., p.
264). The mere happening of the accident
may be more consistent with the negligence
on the part of the defendant than with other
causes.
The
maxim
is
based
as
commonsense and its purpose is to do
justice when the facts bearing on causation
and on the care exercised by defendant are
at the outset unknown to the plaintiff and
are or ought to be within the knowledge of
the
defendant
(seeBarkwayv.S.
Wales
Transo[(1950) 1 All ER 392, 399] ).

11.The plaintiff merely proves a
result, not any particular act or omission
producing the result. If the result, in the
circumstances in which he proves it, makes
it more probable than not that it was
caused by the negligence of the defendants,
the doctrine ofres ipsa loquituris said to
apply, and the plaintiff will be entitled to
succeed unless the defendant by evidence
rebuts that probability.

12.The answer needed by the
defendant to meet the plaintiff's case may
take alternative forms. Firstly, it may
consist in a positive explanation by the
defendant of how the accident did in fact
occur, of such a kind as to exonerate the
defendant from any charge of negligence.

13.It should be noticed that the
defendant does not advance his case by
inventing fanciful theories, unsupported by
evidence, of how the event might have
occurred. The whole inquiry is concerned
with probabilities, and facts are required,
not mere conjecture unsupported by facts.
As Lord Macmillan said in his dissenting
judgment inJonesv.Great Western[(1930)
47 PLR 39] :

"The
dividing
line
between
conjecture and inference is often a very
difficult one to draw. A conjecture may be
plausible, but it is of no legal value, for its
essence is that it is a mere guess. An
inference, in the legal sense, on the other
hand, is a deduction from the evidence, and
if it is a reasonable deduction it may have
the validity of legal proof. The attribution,
of an occurrence to a cause is, I take it,
always a matter of inference. The cogency
of a legal inference of causation may vary
in degree between practical certainty and
reasonable
probability.
Where
the
coincidence of cause and effect is not a
814 INDIAN LAW REPORTS ALLAHABAD SERIES
matter of actual observation there is
necessarily a hiatus in the direct evidence,
but this may be legitimately bridged by an
inference from the facts actually observed
and proved."

In other words, an inference is a
deduction from established facts and an
assumption or a guess is something quite
different but not necessarily related to
established facts.

14.Alternatively,
in
those
instances where the defendant is unable to
explain the accident, it is incumbent upon
him to advance positive proof that he had
taken all reasonable steps to avert
foreseeable harm.

15.Res
ipsa
loquituris
an
immensely important vehicle for importing
strict liability into negligence cases. In
practice, there are many cases whereres ipsa
loquituris properly invoked in which the
defendant is unable to show affirmatively
either that he took all reasonable precautions
to avoid injury or that the particular cause of
the injury was not associated with negligence
on his part. Industrial and traffic accidents
and injuries caused by defective merchandise
are so frequently of this type that the
theoretical limitations of the maxim are quite
overshadowed by its practical significance [
Millner: "Negligence in Modern Law", 92] .

16.Over the years, the general
trend in the application of the maxim has
undoubtedly become more sympathetic to
plaintiffs. Concomitant with the rise in safety
standards and expanding knowledge of the
mechanical devices of our age, less hesitation
is felt in concluding that the miscarriage of a
familiar activity is so unusual that it is most
probably the result of some fault on the part
of whoever is responsible for its safe
performance (see John G. Fleming,The Law
of Torts, 4th Edn., p.260).

17.We are inclined to think the
learned District Judge was correct in
inferring negligence on the part of the
driver. Generally speaking, an ordinary
road-worthy vehicle would not catch fire.
We think that the driver was negligent in
putting the vehicle on the road. From the
evidence it is clear that the radiator was
getting heated frequently and that the
driver was pouring water in the radiator
after every 6 or 7 miles of the journey. The
vehicle took 9 hours to cover the distance
of 70 miles between Chittorgarh and
Pratapgarh. The fact that normally a motor
vehicle would not catch fire if its
mechanism is in order would indicate that
there was some defect in it. The District
Judge found on the basis of the evidence of
the witnesses that the driver knew about
this defective condition of the truck when
he started from Bhilwara.

18.It is clear that the driver was
in the management of the vehicle and the
accident is such that it does not happen in
the ordinary course of things. There is no
evidence as to how the truck caught fire.
There was no explanation by the defendant
about it. It was a matter within the
exclusive knowledge of the defendant. It
was not possible for the plaintiff to give any
evidence as to the cause of the accident."

Later
in
Gujarat
State
Road
Transport
Corpn.
Vs.
Ramanbhai
Prabhatbhai, (1987) 3 SCC 234, the
Supreme Court traced the need and origin
of the Fatal Accidents Act, 1855 to similar
development of statutory law in England.
Thus, an action in tort was found
maintainable to claim compensation for
death arising from a tortious act, by
specified legal representatives of the
deceased. It would be useful for our
discussion to extract the following passage
of that report:-

"4. On account of the close
association which came to be established
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
815
between India and Great Britain owing to
the British rule which lasted for over two
centuries, in the High Courts established in
India the English Common Law which
was based on principles of justice, equity
and good conscience came to be applied
wherever they were called upon to award
damages
or
compensation
for
civil
wrongs committed by the defendants in
the suits. The application of the English
Common Law, however, had to conform
to Indian circumstances and conditions
which necessarily involved a selective
application of the English Law in India.
"The adoption of the rules of English Law
by the Indian Courts", observes M.C.
Setalvad in his Common Law in India
(The Hamlyn Lectures, Twelfth Series, p.
53),
"was
neither
automatic
nor
uncritical. Although they started with a
presumption that a rule of English Law
would
be
in
accordance
with
the
principles of justice, equity and good
conscience, they bore in mind the
reservation which was later expressed by
the Privy Council in the words 'if found
applicable
to
Indian
society
and
circumstances.". In the course of the
application of the principles of the
English Law of Torts in India the Indian
courts came to recognise and apply the
maxim actio personalis moritur cum
persona- a personal action dies with the
parties to the cause of action. An action
for a tort had to be begun in the joint
lifetime of the wrongdoer and the person
injured. The development of railways in
England, led to a great upsurge in the
number of accidents, many of which were
fatal. When it was realised that the cause
of action for recovery of damages for the
death of a person caused by the wrongful
act of another person did not survive on
the death of the person to his legal
representatives in England as a measure of
law reform the Fatal Accidents Act, 1855
was passed for compensating the families
of persons killed in accidents. That Act
provided that "whensoever the death of a
person shall be caused by wrongful act,
neglect, or default, and the act, neglect, or
default is such as would (if death had not
ensued) have entitled the party injured to
maintain an action and recover damages in
respect thereof, then and in every such case
the person who would have been liable if
death had not ensued shall be liable to an
action for damages, notwithstanding the
death of the person injured". The said Act
further provided that "every such action
shall be for the benefit of the wife, husband,
parent, and child of the person whose death
shall have been so caused, and shall be
brought by and in the name of the executor
or administrator of the person deceased;
and in every such action the jury may give
such
damages
as
they
may
think
proportioned to the injury resulting from
such death to the parties respectively for
whom and for whose benefit such action
shall be brought; and the amount so
recovered, after deducting the costs not
recovered from the defendant, shall be
divided amongst the before mentioned
parties in such shares as the jury by their
verdict shall find and direct." Within a few
years after the passing of the said English
Fatal Accidents Act, 1846, the Fatal
Accidents Act, 1855 came to be passed on
March 27, 1855 in India. This Act contains
in all five sections. Its preamble runs thus:

"Whereas no action or suit is now
maintainable in any Court against a person
who, by his wrongful act, neglect or
default, may have caused the death of
another person, and it is oftentimes right
and expedient that the wrong-doer in such
case should be answerable in damages for
the injury so caused by him; it is enacted as
follows:"
816 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Thus as to substantive right
existing in favour of the petitioner, who is
the wife of the deceased to be compensated
for the wrongful act, neglect or default on
part of the functionaries of the State
Government
specifically
the
Rural
Engineering Services, is undeniable. Prima
facie Rural Engineering Services involved
discharge of statutory obligation.

11. We have no doubt as to the
sustainability of the same as the tortious
event is attributable to the conduct of the
employees/servants of the State who stored
the molten Maxphalt/Bitumen in the tank
that suffered a blast leading to its seepage
into the official residence of the deceased
causing the injuries and his death. Earlier,
in Kasturilal Ralia Ram Jain vs The
State Of Uttar Pradesh, AIR 1965 SC
1039, the Supreme Court opined, the
answer to the question would depend upon
the nature of duty discharged by the
offending State employees and linked it to
sovereign duty. However, that view was
later departed in Shyam Sunder Vs. State
of Rajasthan (supra). The pragmatic and
thus easily enforceable rule of tortious
liability existing viz-a-viz the sovereign,
proprietary or commercial function was
enforced. It was thus observed:-

20.It was, however, argued on
behalf of the respondent that the State was
engaged
in
performing
a
function
appertaining to its character as sovereign
as the driver was acting in the course of his
employment in connection with famine
relief work and therefore, even if the driver
was negligent, the State would not be liable
for damages. Reliance was placed on the
ruling of this Court inKasturilal Ralia Ram
Jainv.State of Uttar Pradesh[(1965) 1 SCR
375 : AIR 1965 SC 1039 : (1965) 2 SCJ
318] where this Court said that the liability
of the State for a tort committed by its
servant in the course of his employment
would depend upon the question whether
the employment was of the category which
could claim the special characteristic of
sovereign power. We do not pause to
consider the question whether the immunity
of the State for injuries on its citizens
committed in the exercise of what are
called sovereign functions has any moral
justification
today.
Its
historic
and
jurisprudential support lies in the oftquoted words of Blackstone: [ Blackstone,
Commentaries (10th Edn. 1887)]

"The king can do no wrong
... The king, moreover, is not only incapable
of doing wrong, but even of thinking wrong;
he can never mean to do an improper
thing; in him is no folly or weakness."

In
modern
times,
the
chief
proponent of the sovereign immunity
doctrine has been Mr Justice Holmes who,
in 1907, declared for a unanimous Supreme
Court [Kawananakoav.Polyblank, 205 US
349, 353.] :

"A sovereign is exempt from
suit, not because of any formal conception
or obsolete theory, but on the logical and
practical ground that there can be no legal
right as against the authority that makes
the law on which the right depends."

Today, hardly anyone agrees that
the stated ground for exempting the
sovereign from suit is either logical or
practical. We do not also think it necessary
to consider whether there is any rational
dividing
line
between
the
so-called
sovereign and proprietory or commercial
functions for determining the liability of the
State.

21.We are of the view that, as the
law stands today, it is not possible to say
that famine relief work is a sovereign
function of the State as it has been
traditionally understood. It is a work which
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
817
can be and is being undertaken by private
individuals. There is nothing peculiar about
it so that it might be predicated that the
State alone can legitimately undertake the
work.

12. It cannot be disputed that at the
relevant time the deceased was posted as
Deputy
Director,
Animal
Husbandry,
Mirzapur Division, Mirzapur. It is also not
disputed that at that time he was serving at
Mirzapur. Occasioned by this posting and
work, he had been allotted government
accommodation under the relevant rules.
Therefore, he was present at the place and
time of occurrence. The establishment
where Maxphalt/Bitumen had been stored
belonged to the Government of Uttar
Pradesh being maintained and managed by
the Rural Engineering Services.

13. The act of wrongful neglect or
default that may have caused the blast at
the storage facility that led to the
Maxphalt/Bitumen to flow out from the
storage facility, to the residence of the
deceased, may remain to be examined in
criminal and/or departmental proceeding. It
may also remain a matter between the
principal and its agent i.e. the State and the
actual offender and/or the employer and his
employees. At the same time, since the
deceased was the unsuspecting and noncontributory victim of that tortious act, the
claim to compensation does arise.Insofar as
the petitioner is the wife of the deceased,
she
is
entitled
to
to
claim
such
compensation.

14. We are mindful, under the Act,
such action may normally be brought by
filing a proper civil suit. In face of that
remedy available under the common law,
this Court may not be readily exercise its
extraordinary jurisdiction under Article 226
of the Constitution of India in each and
every matter involving claim for such
compensation. By nature, such claims if
made against private parties or involving
disputed facts may never be entertained in
exercise of jurisdiction under Article 226 of
the Constitution of India.

15. However, in the present facts we
note that the tortious act is attributable to
the State and its agents only. Second, the
victim of tortious act was none other thana
government employee. For that reason, we
required the higher functionaries of the
State Government to give the claim due
consideration and resolve the same. By
means of the written instructions (X), it has
been first disclosed that the Chief Secretary
of the Government of Uttar Pradesh formed
a twelve member Committee to look into
the matter. It involved not less than four
Additional Chief Secretaries, Secretary
Finance, three Special Secretaries, the
Director, the Chief Engineer, and an
Executive
Engineer
of
the
Rural
Engineering Department.

16. That Committee appears to have
applied its mind to the claim but found
itself unable to take a decision to pay any
compensation etc. The consideration made
by the Committee is contained in the
communication
dated
4.12.2023.
We
consider it appropriate to place on record
that consideration offered by the said
Committee. It is quoted below:-

"2. प्रश्नगत प्रकरण िें संक्षेप िें उल्लेखनीय
है वक ग्रािीण अवभयंिण विभाग प्रखण्ड-
विजाणपुर िें क्तस्थत प्रखण्डीय ि र िें िूि
िैक्सफाि (वबिुविनस) रखे जाने हेतु पूिण िें ही
तीन िैंक बनिाये गये थे। उक्त िैंक से सिे ही
उपवनदेशक पशुपािन विभाग, विजाणपुर के
आिास की बाउण्डरीिाि भी थी। वदनांक
818 INDIAN LAW REPORTS ALLAHABAD SERIES
17.07.2010 क सुबह अचानक िैंक की दीिार
िूि गयी और िैक्सफाि उपवनदेशक के
आिास तक फैि गया, वजससे आिास िें
उपक्तस्थत
उपवनदेशक,
पशुपािन
विभाग,
विजाणपुर गिीर रूप से झुिस गये एिं कुछ
वदन ं बाद इिाज के दौरान उनकी िृत्यु ह गयी
थी। इस संबंर् िें ग्रािीण अवभयंिण विभाग के
स्तर से प्रखण्डीय ि र के चौकीदार श्री स नू
यादि, अिर अवभयंता (ि र) श्री आर एन वसंह
एिं सहायक अवभयंता (ि र) श्री जे. एन. प्रसाद
क वनिक्तम्बत वकया गया। जाूँच अवर्कारी
अर्ीक्षण अवभयंता, ग्रािीण अवभयंिण

विभाग
पररिण्डि-
प्रयागराज
द्वारा
प्रकरण की जाूँच की गयी, वजसिें अिर
अवभयंता (ि र) एिं सहायक अवभयंता (ि र)
पर आर प वसद्ध नहीं पाया गया तथा पशुपािन
विभाग द्वारा भी अिर अवभयंता (ि र) एिं
सहायक अवभयंता (ि र) के विरुद्ध प्राथविकी
दजण करायी गयी। पुविस वििेचना िें भी अपरार्
स्थावपत नहीं पाया गया।

3. िा० उच्च न्यायािय के उपयुणक्त
आदेश ं के अनुपािन िें प्रश्नगत प्रकरण के
संभावित सिस्त पहिुओं पर विचार-वििशण
करते हुये उक्त दुभाणग्यपूणण घिना हेतु सविवत
द्वारा श क व्यक्त वकया गया। बैिक िें सम्यक
विचार परांत यह पाया गया वक शासन द्वारा
ऐसी क ई नीवत वनर्ाणररत नहीं की गयी है
वजसके अंतगणत प्रश्नगत प्रकरण िें हुये दुघणिना
के कारण याची क एक्स-ग्रेवसया (अनुग्रह
भुगतान) की र्नरावश दी जा सके। प्रश्नगत
दुघणिना के उपरांत िृतक डा० प्रसाद के पुि श्री
आशुत ष
ि हन
क
कायाणिय
वनदेशक
पशुपािन विभाग, उत्तर प्रदेश िखनऊ के
कायाणिय आदेश वदनांक 19.02.2015 द्वारा
िृतक आवश्रत के रूप िें अनुकम्पा के आर्ार
पर कवनष्ठ सहायक के पद पर सेिाय वजत
वकया जा चुका है और अन्य सिस्त विभागीय
देयक ं का भुगतान डा० प्रसाद के आवश्रत ं क
वकया जा चुका है।

4. यद्यवप वित्त (सािान्य) अनुभाग-3, उत्तर
प्रदेश शासन के कायाणिय ज्ञाप संख्या-सा-31508/दस-2008-308-97 वदनांक 08.12.2008
के प्रस्तर-9 के अनुसार "वजन सरकारी सेिक ं
की िृत्यु सरकारी कायण के दावयत्व ं के वनिणहन
के फिस्वरूप ह जाती है, उन्हें राज्य सरकार
द्वारा एक्स-ग्रेवसया की र्नरावश का एक िुश्त
भुगतान वकया जाता है", वकन्तु बैिक िें
विचार परांत यह पाया गया वक डा० रिीन्द्र
ि हन प्रसाद, उप वनदेशक की िृत्यु सरकारी
कायण के दावयत्व ं के वनिणहन के दौरान नहीं हुई
थी, अतः उक्त व्यिस्था, प्रश्नगत प्रकरण िें िागू
नहीं ह सकती है।"

17. Perusal of the same reaffirms that
the occurrence of blast at the storage
facility where molten Maxphalt/Bitument
had been stored. It is also not disputed that
as a result of that blast Maxphalt/Bitumen
flowed into the official residential premise
of the deceased, causing serious burn
injuries to him. He succumbed to those
injuries after a few days. As to the F.I.R.
lodged with respect to that occurrence, it
has been noted, none was found guilty.
Besides noting grant of compassionate
appointment to the son of the deceased and
payment of terminal dues, as to reason to
deny payment of compensation, it has been
noted, there does not exist any policy
whereunder such payment may be made
and the case of the deceased it not covered
under the existing policy as he was not on
duty at the time of occurrence.

18. We may only reiterate, in the first
place, occurrence of blast at the storage
facility of such hazardous material was not
a normal or predictable act. On no principle
of law and on no test of prudence it may
ever be accepted by any Court that
occurrence
of
the
blast
of
the
Maxphalt/Bitumen tank was a normal or
1 All. Smt. Shakuntala Devi Vs. State of U.P. & Ors.
819
predictable
event.
It
was
accidental.
Alternatively, if it may be assumed (for the
sake of it), that such occurrence was
normal or predictable even then the neglect
on part of the State functionaries would
stand absolutely established as it is
undisputed to them that the storage facility
for such hazardous material had been
located dangerously near the official
residential accommodation of the deceased.
In that event, it would remain an
inescapable conclusion that it was known
from before that hazardous material may
seep out from the storage facility into the
adjoining residential premises and cause
severe injuries, including death. Thus the
principle of res ipsa loquitor wholly applies
to the present facts.

19. Therefore, whichever way the
occurrence may be looked at, the accidental
occurrence remains a wrongful act arising
from neglect. To that extent that tortious
liability stands fully established. The fact
that the State authorities have chosen not to
proceed against the negligent agent is a
matter of policy or inaction. While good
governance may have compelled the
administrators to take decisive, prompt and
adequate action in real time to ensure that
due remedy was made available to the
victim and also to ensure that such
occurrences do not reoccur, that has not
been done. The grief expressed at the
occurrence is no compensation for their
tortious act.

20.