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Synopsis

In a significant ruling, the High Court of Jammu & Kashmir and Ladakh has affirmed the right of compensation to the kin of two children who lost their lives in an IED blast, retrospectively, under a scheme formulated by the Ministry of Home Affairs, to provide financial assistance in such cases.

The court, presided over by Justice Sindhu Sharma, noted that “The petitioners cannot be denied the benefit of the scheme,” despite the incident having occurred in 2007 and the scheme to have become operative in 2008, as the essence of the scheme is to assist civilian victims of terrorist violence.

The case revolves around an incident where two children, Sarfaraz Ahmad Kataria and Farooq Ahmad Kataria, lost their lives due to a blast caused by an unexploded shell in a forest area on July 5, 2007. While Sarfaraz Ahmad Kataria died on the spot, Farooq Ahmad Kataria was declared brought dead upon arrival at Kupwara Government Hospital.

The petitioners, Yaar Mohammad Kataria and Noor Ud Din Kataria, parents of the deceased children, invoked the jurisdiction of the court, seeking adequate compensation for the loss of their sons. They contended that their children were also taking care of the cattle of the locality for grazing and they used the earning to cater to the need of the family.

The petitioners sought compensation under the grounds of "strict liability” from the Union of India (respondents) arguing that the respondents failed to conduct proper inspections and maintain safety measures in the area despite the presence of an army camp nearby and the accident was a result of the negligence of the government.

In response, the respondents, represented by Deputy Solicitor General of India T.M. Shamsi, denied their liability on the ground that the death was caused due to explosion of IED which could have been planted or put forth by the anti national elements. They argued that the ex-gratia relief provided to the petitioners was sufficient. They further challenged the maintainability of the petition on the ground that “The death of the petitioners’ children had occurred in the year 2007 and the petitioners have approached this Court after more than ten years.”

The court, after hearing both the parties, noted that according to The Ministry of Home Affairs' Revised Guidelines for Assistance to Civilian Victims of Violence and Blasts, the petitioners met the eligibility criteria as the deaths occurred due to an IED blast on Indian territory. Furthermore, the guidelines explicitly state that families can receive assistance even if they have previously received ex gratia or other forms of relief.

The court held that though the incident occurred prior to the effective date of the scheme is from April 01, 2008 the petitioners fulfill the eligibility criteria and are entitled to compensation, stating that “This scheme does not bar in raising of a claim for compensation even after the lapse of considerable period of delay.”

Consequently, the court directed the respondents to provide the specified amount of compensation within eight weeks from the date of the court's order, upon receipt of necessary documents from the petitioners.

 

Cause Title: Yaar Mohammad Kataria v Union of India [OWP No. 1979/2017]