STATE OF J&K Vs. GANGI MAGHARANI

JUDGEMENT

(1.) SMT . Gangi Magharani and Ors. Invoke the Jurisdiction of this court under the Article 226 of the Constitution. Writ petition bearing No. 716/1994 was filed. The plea taken by her was that her husband Santa Lal Thapa was serving in the Indian Army as a Cook. It was stated that he died as an electric poll fell upon him. First Information Report was lodged. In the writ petition compensation was sought. The writ petition OWP 716/94 was disposed of with a direction that the State would pay a sum of Rs 50000/ - to the aforementioned heirs of the deceased Santa Lal Thapa. This was ordered by invoking of the concept of no fault liability. As disputed question of facts were involved, therefore with regard to the determination of further amount, a direction was given that the Civil Court would try the issue and determine the question of facts and also the amount of compensation. The relevant observations made when the writ petition was decided on 7th of Dec. 1998 are to the following effect: - Thus even if there is no negligence even then compensation can be awarded by adopting the rational behind awarding compensation on the basis of No fault liability  principles.

(2.) ON the basis of the principles of no fault liability a sum of Rs. 50000/ - is ordered to be paid by way of compensation. Petitioners would thus be entitled to interim compensation which is fixed is Rs. 50000/ -. Let the payment be made within a period of three months. The period of three months would begin when a copy of order passed by this court is made available by the petitioners to the respondent -authorities. If the aforementioned Compensation is not made within stipulated period then petitioners would be entitled to interest. The rate of interest would be 12% p.a. Court to which the case is sent for trial shall dispose of the matter with in a period of Six months would begin from the date of the copy of order along with writ petition is made available to the court. Both the parties are directed to appear before the principle District Judge Jammu on 28 -01 -1999. He may keep the file with him or transfer to any other court. 

(3.) THE writ petition itself was ordered to be transmitted to the trial court. When the trial court took up the matter the State raised a preliminary objection. It was stated that suit was not maintainable as notice under Section 80 of the Civil Procedure Code was not served. The trial court negatived the plea and has come to the conclusion that no further notice was required to be given. The reasoning given was that no further notice was required as the proceedings in the trial court were in continuation of the proceedings taken by the way of the writ petition preferred in the High Court. It is this order which is subject matter of challenge in this petition.