Of profit motive and negligence

By awarding a substantial compensation for the victims of the Uphaar cinema fire tragedy to be paid for by those found responsible for it, the Delhi High Court has set a precedent. But the outcome of the criminal liability case will represent the real test.

in New Delhi

FOR the survivors and the families of the victims of Delhi's Uphaar cinema fire tragedy, the Delhi High Court judgment in the case relating to civil liabilities arising from it, which came after six years, was a vindication of their tenacious fight. There was no jubilation when they heard the court read out the order. In silence they made their way to the site of the cinema, outside which now stands a fountain built in memory of those who died. Meanwhile, the legal fraternity saw in the judgment a precedent in the civic authorities and the private owner of the cinema being held guilty of negligence.

The Uphaar cinema in Green Park was built in 1973. On June 13, 1997, it was showing the movie Border, when a generator caught fire immediately after the intermission. The audience noticed smoke coming out from the side of the screen, but most people thought it was a "special effect" device that was part of the movie. By the time they realised that a fire had broken, it was too late. The majority of those who were trapped inside the hall died in a stampede or as a result of asphyxiation. Fifty-nine people, who included infants and children, lost their lives and 103 sustained injuries.

The disaster shocked Delhi. The Association of Victims of Uphaar Tragedy (AVUT) was formed by 30 families whose members had been killed or injured. Said AVUT member Naveen Sahani: "We were seething with anger. The association became something like a family, because I knew what was happening inside the other person's mind, and he knew how I was suffering." Sahani lost his daughter, Tarika, at that time a 21-year-old final year degree student of Jesus and Mary College. According to Sahani, an advertisement in a newspaper sparked off what evolved into a movement. "Three or four days after the incident, one of the accused took out an advertisement saying they were not responsible for the tragedy. This brought us together in outrage," he said.

K.T.S. Tulsi, the lawyer, fought the case for the victims without charging any fees. Members of the AVUT attended the court hearings spread over 134 days. They organised discussions and debates in Delhi on issues ranging from environmental protection to governmental accountability in public affairs.

On April 25, delivering its 192-page judgment, the Delhi High Court awarded a compensation of about Rs.18 crores to the families of the dead and to the injured. Emphasising that the tragedy was an avoidable one, the Division Bench comprising Justices S.K. Mahajan and Mukul Mudgal held the owners of the building Gopal and Sushil Ansal, the Deputy Commissioner of Police (Licensing), the Municipal Corporation of Delhi (MCD) and the Delhi Vidyut Board (DVB) guilty of giving short shrift to safety norms at the cinema. The court said that the Ansals would bear 55 per cent of the total compensation amount while the remaining 45 per cent would be shared equally by the DVB, the MCD and the DCP (Licensing). The court said: "It is our experience that the authorities including the licensing authority, the Delhi Vidyut Board, the health authorities and the municipal authorities, adopt a casual approach in inspecting the cinemas and other places visited by large numbers of people."

What caused the smoke to reach the balcony was the flouting of building by-laws by the Ansals by raising what should have been a three-foot wall surrounding the generator to the ceiling level. The ground-floor parking area was made an enclosed area with no provision to let out smoke from the adjoining generator room. When the generator caught fire, burning oil from it came in contact with parked cars. This led to the burning of at least 27 cars in the jam-packed parking area, which should not have admitted more than 15 vehicles. Smoke from this area passed through the stairway into the hall and into the balcony as there was no opening on the ground floor through which it could escape.

As there were no well-marked exits, members of the audience could not escape in time. Not only were the gangways narrowed but the right-hand exit door was permanently locked. Emergency lights were missing. Some of the exit doors were locked. Some people reached for the toilet windows. Most of those who were asphyxiated died in the balcony foyer, the balcony and the toilets as they turned into virtual gas chambers.

The Bench imposed punitive damages of Rs.2.5 crores on the Ansals for illegally adding extra seats, for they had earned extra profits by selling tickets for these seats between 1979 and 1996.

By awarding deterrent compensation, the court set an example. It set a precedent also in terms of the quantum of compensation awarded. In calculating the amount the court referred to an earlier case relating to mass deaths caused by fire - Lata Wadhwa vs State of Bihar, Supreme Court Case 197. This 1989 incident took place in a pandal erected by the Tatas for a meeting in Jamshedpur to celebrate the 150th birthday of Jamshedji Tata, the founder of the group. The fire led to the death of 60 people, which included 25 women and 26 children. Lata Wadhwa lost both her children - a boy and a girl - and her parents in the fire. Her husband was an employee of the company. In this case, Chief Justice of India Y.V. Chandrachud determined the compensation amount for the dependents of the deceased as Rs.1,19,58,320.

The Delhi High Court's judgment is significant for two more reasons. First, it has widened the scope for holding public authorities liable to pay exemplary damages. The MCD was pulled up for failing to take timely action against illegal constructions. The DVB did not adhere to prescribed standards in maintaining the transformer, which was faulty. The 1000 kVa transformer installed in the parking area had not been protected against over-load, earth fault and excessive gas pressure. The sub-station was ill-maintained. There were loose connections, damaged cable insulation and direct connection with low-tension switches. The cables were lying haphazardly on the floor of the sub-station and the trenches had not been covered.

Despite several deviations from the approved arrangement inside the hall, the Delhi police granted the owner the licence to run it. The deviations included permanent closure of an exit door to make space for 43 additional seats and a reduction of the length of the gangway. There was no fire-fighting equipment in the hall.

Punishing civic authorities for dereliction of duty is a rare occurrence. By its order, the court added a new dimension to the law of torts. This, however, does not mean that if there is negligence in the case of an air crash or railway accident, the victims can sue the government authorities for that. The Railways and the state-owned airlines already have a well-laid out compensation code. However, harm caused by the carelessness of civic bodies may attract penalty.

Secondly, the judgment has established equality before law for the public and private sectors. Said Tulsi: "I see it as a victory for the victims over a business house and the government. The ordinary victims were able to take on the might of both."

At the same time, if the principle of a level playing field between the two sectors is carried to its logical conclusion it is not enough that the two sectors are taken on a par in the matter of the civic offence but also in the matter of the criminal offence. With the criminal case relating to the fire accident against the Ansals and the civic agencies pending in the trial court, the question being debated outside the courtroom is whether it is fair to punish the chief executive officer of a private sector company while top officials of the civic bodies concerned are allowed to go scot-free. Such questions, however, confuse the basic issue of accountability of individuals who work within the public and private sectors and are responsible for bypassing safety norms thereby endangering the public.

The victims of the Uphaar tragedy now await the real test, the outcome of the criminal liability case, which is expected to come by the end of the year. Monetary penalties impose little hardship on the civic authorities; they are paid out of the taxpayer's money. AVUT convener Neelam Krishnamurthy said: "The families of the dead would get justice only when the persons responsible for the deaths are punished by the trial court for their criminal offence."