Monalisa Das | The News Minute | March 31, 2015 | 03:08 pm IST
On March 8, Elsie Rego Noronha, a senior citizen residing in Richmond Road in Bengaluru, was returning from the Sunday Mass when she tripped over a stone jutting out of the footpath. She fell down flat on her face. When two friendly strangers helped her get up, her face was bleeding. The fall caused a few minor injuries, apart from the mental trauma it put her through.
Another senior citizen Marisa, a nun who works with the St Paul Media Centre in Richmond Road, claims she too had a similar experience a few months ago. She was walking on the footpath outside her office one evening, when her right foot slipped inside a ditch causing her to fall. She suffered three bone fractures. Several months later, including month-long bed-rest, her foot hasn’t healed completely.
As much as victims like Noronha would like the Bruhat Bengaluru Mahanagar Palike (BBMP) to compensate for their medical expenses, which in her case was around Rs 20,000, they also know that keeping such hopes is pointless.
The Mayor of Bengaluru N Shantha Kumari, who heads the BBMP, thinks the responsibility for such accidents lies with both citizens and the civic authorities. “If a road or pavement is under construction, people should try and avoid walking on such roads. It is also the responsibility of the ward engineer to ensure that all roads are in proper condition,” she added.
( Elsie Rego Noronha shared a photograph of her "disfigured face and damaged neck" on Facebook after the accident; Image source: Elsie Rego Noronha/Facebook )
Victims like Marisa, however, will have none of that. “I agree we need to be careful. But it is not like one deliberately falls into a ditch. We can still manage the expenses, but what if the victim hails from a financially weak background?” she asks.
Accidents caused due to improper maintenance of civic infrastructure, including roads, footpaths, and open-drains, are regularly reported in India. The question of their financial liability, and in some cases criminal liability, is often overlooked.
“There can be a tort liability. If a victim like Noronha can prove that she fell down due to the corporation’s negligence, she can file a case in a civil court. But the onus to prove the negligence on corporation’s part is on the complainant” says Jayna Kothari, Advocate, Karnataka High Court.
Section 266 of the Karnataka Municipal Corporations Act states that the corporation has to maintain and repair public streets “which are necessary or expedient for the public safety or convenience.” Kothari explains that though such provisions have been mentioned in corporation bylaws, like in the Karnataka Municipal Corporations Act, 1976 or the Bangalore Water Supply and Sewage Act, 1964, they do not provide for any liability on the public bodies if they do not carry out their duties. “The tort law in India falls under the common law, which means that though it is enforceable there is no legislation or statute governing it,” she says.
Negligence of municipal corporation authorities have also lead to deaths.
In October last year, a nine-year-old girl fell into an open drain on Bannerghatta Road in Bengaluru. Her body was later fished out of the Madiwala lake.
Just recently, on March 29 2015, a 12-year-old boy was reportedly electrocuted when he came in contact with a high-tension wire. The boy was playing with his friends when he accidentally touched the wire which was hanging loose in HSR Layout in the city. The boy was rushed to a hospital where he was declared dead. A case of negligence has been registered against the Bangalore Electricity Supply Company Ltd (BESCOM).
(Image for representation purpose)
In such cases leading to death however, there can be criminal liability according to Kothari. Section 304A in the Indian Penal Code (IPC) criminalises causing death by negligence. But such provisions are usually not used by people because they lead to “long drawn” cases, sometimes stretching up to three years. “This is an underused area of law,” Kothari says adding that cases initiated against public authorities for such accidents are very few in India.
The courts however, have been seeking ample legislation to deal with such cases. Last year, the Supreme Court asked the Law Commission to look into the need for a comprehensive legislation to fix tort liability on government authorities and determine the compensation in cases of accidents or deaths caused due to negligence. The apex case was hearing a petition seeking compensation for the death of 22 people during a boat ride organized by a civic body in Gujarat.
The court said, “Where activity of a public body is hazardous, highest degree of care is expected and breach of such duty is actionable. This obligation is also referable to Article 21 (right to life and liberty) of the Constitution. We reiterate the need for a comprehensive legislation dealing with tortious liability of the State…in such cases for certainty on the subject.”
Further, the apex court also said that “Due to lack of legislation, the courts dealing with the cases of tortious claims against the State and its officials are not following a uniform pattern while deciding those claims and this at times leads to undesirable consequences and arbitrary fixation of compensation amount.”
“As our courts are reluctant to apply the general principles of civil tort liability to cases of government negligence, we need to develop a new public law tort liability grounded in human rights principles,” Kothari had earlier written in an article for The Times of India.
Noronha loves to walk. But now she is afraid to step out. Every time Marisa walks on the footpath, memories of her excruciating fall come rushing back. “I am really scared to walk on the footpath. We are the mercy of the civic authorities,” she rues.
