A road accident and an Alice in Wonderland State

The case of Mahesh Patil, who was arrested for negligence after his mother fell off his bike and died after it hit a pothole, should serve as an eye-opener for the authorities and the legal fraternity, says Mahesh Vijapurkar.

Who killed Mahesh Patil's mother, Latika Patil? Her son or the State?

First the details. She was riding pillion on Patil's two-wheeler and it hit a pothole on the Dombivli-Badlapur road. She fell and was hurt. Later she died of the injuries in a hospital.

The police pounced on him and in a plot that is admirably suited for Alice in Wonderland, accused Patil, a 24-year-old doctor, and arrested him. As the inspector explained, "Although there are potholes, it's the responsibility of the people to be careful while riding a bike."

My foot.

What he failed to realise that the law as the courts understand, it can't be so. The negligence is of the State. Only a day earlier, an order by Mumbai High Court's Judge, Abhay Oka awarded Rs 2 lakh as compensation to a scooterist, Pundalik Atke injured by a fall because of a two-feet deep hole.

The State was "grossly negligent", it was a "failure" of "the State in performing their obligation," that responsibility being the proper maintenance and ensuring safety of the road's users. The argument that the road was dug up without permission to lay a water pipeline did not cut ice with the judge. Neither did the claim of a jurisdictional dispute about the ownership of the road between the PWD and a cantonment.

This, however, was not the first such case though such orders are somewhat rare. Or, per Judge Abhay Thipsay had ordered Municipal Corporation of Greater Mumbai to compensate Anant Datar, a Bandra resident, with Rs 127,300 for a similar episode in which only he was injured and his scooter damaged. What had irked the court was that the road did not even have proper illumination.

These episodes underscore two points. As in Mahesh Patil's case, the State thinks that the king can do no wrong; the subjects are responsible for their own and other's lives when using a facility considered essential. Two, despite that, there are courts which are willing to listen to people who have a grievance of this kind, order compensation, but such plaints do not seem to crop up before the court as often as they ought to.

There is ample scope for it to be a usual feature in the courtrooms because of the incorrigibility of the State. Also, because the citizen, whether a taxpayer or not, is entitled to certain entitlements which are rightly a given. The State, as a facilitator of these rights, has to have minimum performance standards that go beyond mere allocation of funds. It assumes its work ends with budgets and not deliveries. The courts have so far said if you can't or will not do your job, then pay up.

The hurdle, however, is two-fold. The citizens either don't know their rights or are burdened by the fear that legal cases could be tied down by frequent adjournments because the State or its instruments have the resources to fight long battles. They can't cope with the drag, such a normal feature of our judicial system. Atke's compensation arrived 16 years after the event and Datar's took 15 years. It needs mental and financial stamina to stay the course to bring the authorities to heel.

This is where the law of torts should come into play, a law that has been in existence since prior to independence, tort being a synonym for a wrong done. It is founded on the belief of morality, of the provider of services whose ill-deliver, should it hurt the citizen, requires a correction, often by way of restitution to the victim and punishment to the violator. In the context of the injury to the citizen, it is all about negligence.

But this aspect of law is also neglected unlike the others, namely the criminal, contracts etc which have been codified. The more optimistic among the analysts look at it, instead, as a law under development but to my mind, the time is ripe to start using what is on the plate to correct the state's negligence in every aspect of life -- it could be poor quality of drinking water supplied or the sad state of the sidewalks which are a threat to the people. Often they also prove to be a killer.

The State -- which has fairly well working arrangements like the Right to Information, should also ensure the aggrieved are able to assert their rights. The victims' problems include not just the inattention to the causes of failures but difficulties in proving claims. The legal fraternity has to explore this well and the citizens push the envelop by being Atkes and Datars. Or else, they could well end up as Mahesh Patils.

That would be unfair.

Mahesh Vijapurkar is a Thane-based commentator on public affairs.