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2004 DIGILAW 66 (JK)

Joginder Kour v. State

2004-03-19

S.K.GUPTA

body2004
Through the currency of this petition, parents of the deceased Param Jit Singh has sought a direction to the respondents for payment of compensation Rs. 5/-lacs on account of death of their son who got electrocuted because of negligence of the electricity department, by issuance a writ of mandamus under Article 226 of the Constitution of India read with section 103 of the Constitution of J&K. The case of the petitioners as projected in the writ petition is that their son aged 20 years was electrocuted on 21st of June, 1999 at 8.30 PM at Indra Nagar, Miran Sahib. Son of the petitioners had got electrocuted because of over hanging high tension wire by respondents 3 to 6 who did not care to check, which resulted in, the live high tension wire hanging from the pole touching the ground and thereby exposing human life. It is further stated that the death of Param Jit Singh has been caused by negligence of the respondents particularly respondents 3 to 6 on 21st June, 1999 on spot after electrocution by live high tension wire. As the petitioner had died due to negligence of the respondents, an FIR No. 60/99 was registered with police station Bishnah. The police got autopsy conducted on dead body of the deceased and investigation ensued. On the conclusion of the investigation, challan came to be produced in the court of law for offence u/s 304-A RPC against the employees of electricity department. It is further stated that the concluding challan produced in the court against the employees of the electricity department clearly reveals that the death of deceased has occurred due to negligence of the accused who happen to be employees of the electricity department. The postmortem report on the file further shows that cause of death was shock as a result of electric burns. The concluding challan produced under section 171 Cr.P.C in the court in its pendente lite report further reveals that the accident resulting in death of the deceased could have been avoided if the timely action by the respondents to restore the line in earlier position had been taken. Their failure to do so obviously amounts negligence and dereliction of duties. The petitioners further stated that they had not only lost a son but have lost the very hope of dependency on a son during the old age. Their failure to do so obviously amounts negligence and dereliction of duties. The petitioners further stated that they had not only lost a son but have lost the very hope of dependency on a son during the old age. They have lost both support and dependency in their hayed days, and thus, claim aforesaid compensation from the respondents in respect of death of their son due to their negligence. 2. The claim of the petitioners has been contested by the respondents on a blend of pleas both preliminary and on merits. It is submitted that claim of compensation which involves disputed questions of fact can be resolved only by civil court and the writ jurisdiction under article 226 cannot be invoked for this purpose. It is further stated that the deceased had not died due to negligence of the respondents but on account of his own negligence by touching the high tension wire. It was further admitted, that FIR was registered against respondents 3 to 6 for causing death of the deceased by negligence. The high tension wire was duly maintained by the respondents and there was no indication in regarding to the snapping of the high tension line. 3. Heard learned counsel for the parties and also perused the record meticulously. The first argument in the chain advanced by Ms. S. Hakim, Dy. AG is that the remedy available to the petitioners for seeking damages is from the Civil Courts under the ordinary law, and not to seek remedy under Constitutional provisions. The debate addressed by learned counsel though manifestly appears to be attractive but cannot be accepted on multiple grounds. 4. Undoubtedly there is an alternate remedy available to the victims for seeking damages from the civil courts under the ordinary law, but that remedy is not so efficacious as it is available under the Constitutional provisions. The court has to exercise its writ jurisdiction very sparingly in a restricted manner depending upon facts and circumstances of each case. 5. In Sita Ram Gupta v. State of Assam, 1989 ACJ 348. The court has to exercise its writ jurisdiction very sparingly in a restricted manner depending upon facts and circumstances of each case. 5. In Sita Ram Gupta v. State of Assam, 1989 ACJ 348. The Apex Court allowed compensation to widow whose husband had died in a Motor accident, it was observed : @A2 = "In so far as the requirement of upholding social justice is concerned, there is no necessity to dilate on the same as by now it is well recognized that administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice.." Similarly in case Smt. Kumari v. State of Tamil Nadu, (1992) (SC) 527 : AIR 1992 SC 2069. The Apex court entertained the claim petition for compensation for the death caused due to falling of a child in an uncovered sewerage tank. Court directed the State to pay compensation for the negligence committed by the respondents therein. Court rejected the plea of sovereign act and held that sovereign act is no defence when there is violation of fundamental rights. 6. Again in Consumer Education Research Centre v. Union of India, AIR 1995 SC 922, it was held, workmens right to health and medical care has been declared to have direct nexus with right to life which is a fundamental right and it has been held that in public law claim for compensation is remedy available under Articles 32 and 226 of the Constitution for the issuance of writs and directions. Similar question has been dealt with by a Division Bench of Himachal Pradesh in case Kumari Seema v. Himachal Pradesh State Electricity Board, AIR 1994 Him Pra 139. The facts of that case are quite similar to the facts of the present case. The petitioner had sought compensation for the negligence of the respondents. Petitioner came in contract with a live wire and suffered severe burn injuries on her head and other parts of body. The facts are not in dispute, court examined the matter on the record available and awarded compensation in that case. In this back drop, it is held that compensation in case like the present one which have direct nexus fundamental rights or legal rights can be entertained by High Court irrespective of the fact that there is an alternate remedy available under ordinary civil law. This remedy being not efficacious. In this back drop, it is held that compensation in case like the present one which have direct nexus fundamental rights or legal rights can be entertained by High Court irrespective of the fact that there is an alternate remedy available under ordinary civil law. This remedy being not efficacious. I am afraid this will not come, but this remedy being not so efficacious, cannot come to the rescue of the age held by parents whose sole dependency was on the deceased. Therefore, there is no bar to High Court to exercise writ jurisdiction to entertain particular case for compensation where it is held that age old parents of the deceased need immediate relief and the entire record is placed before court is sufficient to award compensation and disposed of the petition. The first contention of Ms. S. Hakim, ld. AG with regard to non maintainability of the writ petition is not sustainable. 7. It is next contended by Ms. Hakim that the death of the deceased has not occurred due to negligence of respondents but on account of his own negligence in touching the live high tension wire and therefore, denied the liability of respondents to pay compensation to the petitioners who happen to be the parents of the deceased. 8. It is not in dispute that an FIR 60/99 was registered about the incident and investigation proceeded. The post mortem report of the deceased disclosed, the cause of death was due to shock as a result of electric current. The investigation conducted by the Police agency of the State culminated in production of the challan against the respondents (employees) of the electricity department for offence under section 304-A RPC in causing death of the deceased by negligence and dereliction of duties. When the negligence of the electricity department stands proved and admitted by another agency of the State in presenting the challan against the accused employees of the electricity department to face trial for offence under section 304-A RPC. No further proof of negligence and dereliction of duties on the part of the respondents/electric department which resulted in death of the deceased Param Jit Singh is required. Ms. S. Hakim Dy. AG, fairly conceded that in the FIR registered about an incident and the challan presented before the court of law. No further proof of negligence and dereliction of duties on the part of the respondents/electric department which resulted in death of the deceased Param Jit Singh is required. Ms. S. Hakim Dy. AG, fairly conceded that in the FIR registered about an incident and the challan presented before the court of law. Negligence of the respondents in not maintaining live high tension wire which resulted in the death of Param Jit Singh. The investigation further concluded that had the respondents restored line to its earlier position by timely action, the accident would not have taken place. The accident has the direct result of failure to do so and amounts to negligence and dereliction of duties. This argument of the respondents counsel is also devoid of any substance and cannot be accepted. 9. Regarding the quantum of compensation to be awarded, it is not in dispute that the deceased was 20 years old at the time of his death. The parents who claim compensation are 62 and 57 years as indicated in the petition. 10. It is not necessary to establish that the deceased was actually earning money or moneys worth or contributing to the support of his parents at the time of death. There is nothing on record to show that the deceased was earning at the time of his death. In such circumstances the compensation has to be assessed and estimated on his prospective income, even assessing the minimum prospective income of the deceased as labourer comes to Rs.2000/- p.m, that too on large side. Out of the aforesaid assessment, he would have been approximately spend Rs.500/- on personal expenses and Rs.1500/- would have contributed to the family. So the net loss of the dependency to the parents(petitioners) is Rs.1500/- pm multiplied by 12 comes Rs.18000/-per year. 11. Now coming to the question of applying multiplier to assess the amount of compensation. It is settled proposition of law that where the age of the deceased was 20 years, his life expectancy would be irrelevant for the purpose of estimating the period over which dependency would be expected to last if the dependants, say the parents, are themselves over the age of 60. The multiplier would then be appropriate to the age of the dependants and not of the deceased. The selection of multiplier cannot be always on the age of the deceased. 12. The multiplier would then be appropriate to the age of the dependants and not of the deceased. The selection of multiplier cannot be always on the age of the deceased. 12. In the present case, the age of Ajab Singh father of the deceased 62 years and mother Joginder Kour 57 years is indicated in the title of the petition. Therefore, the multiplier has been selected on the age of the dependants, looking to the age of the dependants the multiplier of 12 would be suitable multiplier to be adopted in this case. Thus, the amount of compensation of Rs.18000x12 comes to Rs.2,16,000/- and by rounding comes to Rs.2,10,000/- which is just and reasonable assessment in this case. 13. Taking all the facts and circumstances into consideration, I allow the writ petition by awarding compensation of Rs.2,10,000/- to the petitioners on account of loss of dependency payable by the respondents. The amount of compensation shall be deposited by the respondents with the registry of this court within a period of one month from today. In case this is not done, the awarded amount of compensation of Rs.2,10,000/- shall carry interest at the rate of 9% p.a from the date of expiry of one month fixed by the Court.