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2006 DIGILAW 309 (JK)

Bashir Ahmed Rather v. State Of J. &K.

2006-12-22

HAKIM IMTIYAZ HUSSAIN

body2006
1. Petition No. OWP No. 43/05 titled Bashir Ahmed Rather & Ors. v. State and OWP NO. 44/05 titled Gh. Hassan Rather & Ors. v. State have been filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir for a direction to the State to pay compensation to the petitioners. 2. Since the petitions arise out of the same incident and the issues which arise for determination are common, both the petitions are being disposed of by this common judgment. 3. The factual background in a nutshell is as follows:-- On 18.10.2004 an overhead electric wire from 11 KV line running over a school building in village Sharief Abad, HMT, Srinagar got snapped and fell on the school children, who were studying in the said school causing death of three children and grievous injuries to three other children. Petitioners in OWP NO. 43/05 namely Bashir Ahmed Rather, Ghulam Ahmed Sheikh and Ghulam Ahmed Bhat lost their children in the incident. They allege that their children Firdous Ahmed Rather S/o Bashir Ahmed Rather R/o Sharief abad, Budgam, Mohd. Maqbool Shekkh S/o Gh. Ahmed Sheikh R/o Sharief-abad, Budgam and Tanveer Ahmed Bhat S/o Gh. Ahmed Bhat R/o Sharief-abad, Budgam lost their precious lives when the High Tension wire loosely connected fell upon them. This unfortunate incident took place when the students were taking exams and were made to sit by the authorities in the compound of the school. A first information report was lodged about the incident in the Police Station Pairmpora as FIR No. 97/04. Petitioner Bashir Ahmad Rathers son namely Firdous Ahmed was taken to Jehlum Valley Medical College, Bemina were he was declared as dead. Petitioner Gh. Ahmeds son namely Mohd. Maqbool was taken to 92 Base Hospital C/o 56 APO CRPF where he died on 19.10.2004 as he had received 80% electric burns, petitioner Gh. Ahmed Bhats son namely Tanveer Ahmed Bhat died on 18.10.2004 itself. Petitioner Gh. Ahmeds son namely Mohd. Maqbool was taken to 92 Base Hospital C/o 56 APO CRPF where he died on 19.10.2004 as he had received 80% electric burns, petitioner Gh. Ahmed Bhats son namely Tanveer Ahmed Bhat died on 18.10.2004 itself. The petitioners have stated that it was the duty of the respondents who control, maintain and supervise electricity to rectify the defect and change the lines in order to avoid continuous threat to the students reading in the school and it was equally important for the functionaries of the Education Department not to put the lives of the innocent of tender boys to the risk by asking them to sit in the compound under the High Tension wire which was loosely connected and where the apprehension of falling of the wire was evident. So both the Departments were equally responsible as they had contributed to negligence which resulted into the mishap resulting in loss of the lives of their kids. 4. In the circumstances the petitioners have prayed for an amount of Rs. 10 lacs as compensation to each of the petitioners. 5. The petitioners in OWP NO. 44/05 namely Gh. Hassan Rather, Ahsan Ali Malla and Yasmeena were studying in the school. The wire fell on these children due to which they sustained serious injuries and suffered permanent disability. Petitioner No. 1 Gh. Hassan Rather has suffered 100% disability as both the legs below his knees have been amputated and his left arm has also been amputated. The petitioner was admitted in the plastic surgery department of SKIMS for treatment. Petitioner Ahsan Ali Malla has suffered grievous burn injury on left eye and chin, teeth, belly and left leg. His left hand is not functioning while as thumb of his left hand has been amputated. The details of the injuries sustained by the petitioner are given in the discharge certificate (Annexure-B). The third petitioner Yaseema has suffered injury in the arm, nose, face and belly. Her right arm and left leg are not functioning. The discharge summary sheet (Annexure-C) contains the details of the injuries sustained by the petitioner. Petitioners have prayed for an amount of Rs. 10 lacs as compensation. 6. The respondents have not denied the incident, they have rather admitted that 11 KV transmission line was erected over the land in 1983 and that the school building has been built in the year 1997. Petitioners have prayed for an amount of Rs. 10 lacs as compensation. 6. The respondents have not denied the incident, they have rather admitted that 11 KV transmission line was erected over the land in 1983 and that the school building has been built in the year 1997. They have stated that the Government paid an amount of Rs. One lac to next of kin of those killed and Rs. 50,000/- to each of the family whose children were critically injured in the incident. It is also stated by the respondents that the Government appointed an Enquiry Officer to enquire into the incident and find out the negligence on the part of the concerned officers/officials. 7. The petitioners have in the rejoinder reiterated the claim made by them in the petitions and have stated that it was the paramount duty of the respondents to supervise and control the electricity and electric lines and to maintain the lines in order to avoid the mishap and threat to the students who were studying in the school. 8. Heard. I have considered the matter. Facts, as alleged in the petition (a summary of which has been given above) have not been disputed. It is admitted that a high tension electric transmission line, comprising of 3 wires, was running over the compound of Government Primary School, Sharief abad, it is stated that the line was installed in the year 1993 where as the school was established in the year 1997, it is also not denied that at the time the incident took place the children including the deceased children and petitioners in OWP No. 44 of 2005 were busy in their exams; the school authorities had made them to sit in the compound of the school; it is also admitted that the said electric line fell down on the children causing death to the three boys and grievous injuries to the said petitioners. 9. The State Government has constituted a committee comprising the following officers to enquire into the incident:-- 1. S.R. Wani Chief Engineer, M&RE Wing, Kashmir. Convenor 2. D.S. Pawar, Chief Engineer, M&RE Wing, Jammu 3. K.L. Bhagat, Supdt/ Engineer, P&D Circle, Jammu Jammu 4. A.R. Tak, Superintending Engineer, Corporate Officer, PDC Member 10. The terms of reference of the Committee were to study the status of existing electric supply including transmission lines. S.R. Wani Chief Engineer, M&RE Wing, Kashmir. Convenor 2. D.S. Pawar, Chief Engineer, M&RE Wing, Jammu 3. K.L. Bhagat, Supdt/ Engineer, P&D Circle, Jammu Jammu 4. A.R. Tak, Superintending Engineer, Corporate Officer, PDC Member 10. The terms of reference of the Committee were to study the status of existing electric supply including transmission lines. The Committee was directed to give its report within three months from the date of order. The Committee has submitted a detailed report, excerpt of the findings of the Committee are as under:-- "The line was laid in 1983 and School began to function in 1987. School should not have been allowed to operate near the line. What was notified Electric Inspector doing all the time oblivious to his statutory duty. The system being in state of deterioration is agreed by the report of committee itself. "Failure of routine, monthly, quarterly, half yearly and annual; maintenance of distribution network, Receiving Station protective system neutral earthing of power transformers/distribution of transformers and allied equipments have added to the deterioration of the system. It is also observed that the load on HT/LT network is not controller ad unauthorized/illegal heating and lighting loads etc. adds more deterioration in the system. The consumption of energy of regularized installations is also to being recorded and resulted over loading on the existing system. Every connection should be regularized and electric meters should be put to every installation for recording the actual consumption of energy...." "The distribution system as a whole is hazardous. The views of the Committee of the committee amply expatiate it; "Failure of routine, monthly, quarterly, half yearly and annual; maintenance of distribution network, Receiving Station protective system neutral earthing of power transformers/distribution of transformers and allied equipments have added to the deterioration of the system. It is also observed that the loan on HT/LT network is not controlled as unauthorized/illegal heating and lighting load etc. adds more deterioration in the system. The consumption of energy of regularized installations is also not being recorded and resulted overloading on the existing system. Every connection should be regularized and electric meters should be put to every installation for recording the actual consumption of energy..." .... .... .... .... "The Department needs to make realistic, conscientious and perspicuous introspection for renovation or amelioration of the system. The statutory requirements need must be observed so that human life is not put to jeopardy." 11. Every connection should be regularized and electric meters should be put to every installation for recording the actual consumption of energy..." .... .... .... .... "The Department needs to make realistic, conscientious and perspicuous introspection for renovation or amelioration of the system. The statutory requirements need must be observed so that human life is not put to jeopardy." 11. From the enquiry report it is clear that the school should not have been allowed to function near the line, that there has not been a proper check on the KV lines thus there was gross negligence on the part of the-official respondents in maintaining the electric lines which has resulted in the said incident causing such a great loss to about six families. 12. As noticed above the respondents have not denied the facts. It is stated in para 8 of their reply that the department on its part has been taking steps for maintenance of electric system, which is a continuous process. 13. On these admitted facts and from the enquiry report I find gross negligence on the part of the functionaries of the State of the Electric and Education department which has resulted in the incident. 14. Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. As it is settled law that negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. 15. Renowned jurist Prof. S.P. Singh in his book `Law of Torts (4th Ed -New Delhi P. 138) gives the following three essential ingredients which constitute negligence in tort:-- (a) that the defendant was under a legal duty to take reasonable care towards the plaintiff to avoid the damage complained of; (b) that the defendant committed a breach of that duty; and (c) that due to the breach of duty plaintiff suffered damage. 16. In MS. Grewal v. Deep Chand Sood, AIR 2001 SC 3660 it was held:-- "Negligence in common parlance mean and imply `failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. 16. In MS. Grewal v. Deep Chand Sood, AIR 2001 SC 3660 it was held:-- "Negligence in common parlance mean and imply `failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by with the negligent party is unaware of the results which may follow from his act, negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Blacks Law Dictionary). Though sometimes, the word `inadvertence stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions whereas inadvertence is a milder form of negligence, `negligence by itself mean and imply a state of mind where there is no regard for duty or the supposed care ad attention which one ought to bestow. Clerk and Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below: "(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable; (2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law; (3) a casual connection between the defendants careless conduct and the damage; (4) that the particular kind of damage to the particular claimant I not so unforeseeable as to be too remote." 17. The Apex Court in Nilabati Bahera v. State of Orissa, AIR 1993 SC 1969 held; "It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution. The Apex Court in Nilabati Bahera v. State of Orissa, AIR 1993 SC 1969 held; "It follows that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution. Is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is `distinct from, and in addition to the remedy in private law for damages for the tort resulting from the contravention of fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy..." 18. Similarly in Consumer Education and research Centre v. Union of India, AIR 1995 SC 922, the Supreme Court observed: "It is therefore settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and expensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the Constitution or the law." 19. Relying on both the aforementioned judgments of the Supreme Court, this Court in Miss Afroza v. State of J&K, 1999 SLJ 457 observed that the State has obligation to protect the life, liberty and property of the citizens and failure to discharge the constitutional obligation has the effect of rendering the State liable to compensate the victims. 20. The Court was dealing with a case where a teenager and a student of 6th standard in Government High School Keegam, Pulwama had fallen victim to a live electric wire of a transformer while around her school. 20. The Court was dealing with a case where a teenager and a student of 6th standard in Government High School Keegam, Pulwama had fallen victim to a live electric wire of a transformer while around her school. The court held:- "There cannot be any dispute on the count that the maintenance of electric supply is under the control of the respondents but they are equally bound to ensure that the life of the citizens is not in jeopardy. While discharging the sovereign function, a duty is cast on the State to take the steps for the safety of the people and on their failure, they cannot escape the obligation to compensate a victim on the ground of immunity claimed...." 21. The facts of the present case are so clear that these speak for itself. The maxim `Res ipsa loquitur fully apply to the present case. As Prof. S.P. Singh (Law of Torts P. 145) has put it to apply the `maxim mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant. The enquiry report which shows that the distribution system as a whole is hazardous and that failure of routine, monthly, quarterly, half yearly and annual; maintenance of distribution network, Receiving Station protective system neutral earthlings of power transformers/distribution of transformers and allied equipments have added to the deterioration of the system points out to the gross negligence on the part of the State functionaries; the Government school was allowed to run under the high tension power line is another objectionable act on the part of the Education Department, similarly the act of the school authorities to ask the student to sit in the compound of the school for appearing in the exams also amounts to carelessness on the pit of school authorities. 22. In M.S. Grewat v. Deep Chand (supra) the Supreme Court while dealing with the duties of school teachers to show care towards child under their charge, observed: "While the parent owes his child, a duty of care in relation to the childs physical security, a teacher in a school is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent. In this context, reference may be made to a decision of Tucker, J. in Ricketts V. Erith Borough Council, (1943) 2 All ER 629 as also the decision of the Court of Appeal in Prince V. Gregory. Duty of care varies from situation to situation-whereas it would be the duty of the teacher to supervise the children in the playground but the supervision, as the children have the school, may not be required in the same degree as is in the play-field. While it is true that if the students are taken to another school building for participation in certain games, it is sufficient exercise of diligence to know that the premises are otherwise safe and secure but undoubtedly if the students are taken out to playground near a river for fun and swim, the degree of care required stands at a much higher degree and no deviation therefrom can be had on any count whatsoever. Mere satisfaction that the river is otherwise safe for swim by reason of popular saying will not be sufficient compliance. As a matter f fact the degree of care required to be taken specially against the minor children stands at a much higher level than adults; Children need much stricter care." 23. The respondents have objected to the present petition on the ground that it raises questions of fact which are matter of evidence. Since the facts are admitted as the incident is not denied, I do not find any disputed question arises. There is thus no merit in the plea. 24. In view of the above discussion I find the incident has taken place due to gross" negligence of the employees of the State as such the State is bound to pay compensation to the victims/their dependants to compensate them. In Tamil Nadu Electricity Board v. Sumathi, AIR 2000 SC 1603, it was held that where there is negligence on the face of it and infringement of Art. 21 is there it cannot be said that there will be any bar to proceed under Art. 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. 25. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. 25. In U.P. State Co-operative Land Development Bank Ltd. V. Chandra Bhan Dubey (1999) 1 SCC 741 the Supreme Court observed that the language of Art. 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder. The court observed:-- (i) it may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article, it is not necessary for us to rely on the decision of the English courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person on authority including in appropriate cases, any Government. Under clause (i) of Article 367, unless the context otherwise requires, the General Clause Act , 1897, shall subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. The Constitution is not a statute. It is fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to by pass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial "bull in a china shop" in the exercise of its jurisdiction under Article 226." 26. Similarly in M.P. Electricity Board v. Shall Kumar AIR 2002 SC 551, it was held:- "It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human, being who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the mangers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the mangers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. 27. Next we come to the amount of compensation. Petitioners in SWP 43 of 2005 have lost their children. Petitioner Bashir Ahmad Rather has lost his son Firdous Ahmed Rather who was 9 years old, Ghulam Ahmed Sheikh has lost his son namely Mohammad. Maqbool who was of 10 years age, and Ghulam Ahmed Bhat has lost his son Tanveer Ahmed Bhat who was of 9 years age. Keeping in view their age and the factors which guide assessment of compensation I find a compensation of Rs. 3 lacs to each would be a just and fair compensation. 28. I have seen the petitioners in SWP 44 of 2005 who were present in the Court on the date when the arguments were advanced. 29. Petitioner Gh. Hussain Rather was admitted in the plastic surgery department of Sher-i-Kashmir Institute of Medical Sciences under MRD No. 379499 from 20th October, 2004 as a case of electric burn. Both his below knee legs have been amputated besides amputation of left arm. Senior Resident of the Institute has vide certificate No. SIMS 179/2004-464 dated 3.12.2004 certified that his permanently disability amounts to 100% and he is not able to do any kind of work. He is 6 years old. These facts are not disputed. Keeping in view the nature of disability, age of the petitioner and the pain suffered by him I direct payment of Rs. 5 lacs in his favour. 30. He is 6 years old. These facts are not disputed. Keeping in view the nature of disability, age of the petitioner and the pain suffered by him I direct payment of Rs. 5 lacs in his favour. 30. Petitioner Ahsan Ali, 6 years old boy has suffered permanent disability with left eye and permanent disability with chin, teeth, burns on belly, left leg and his left hand is not functioning, thumb of his left hand was also amputated. In the circumstances the State shall pay Rs. two lac as compensation to him. 31. Petitioner Yameena 8 years old, has suffered injury in the arm, nose and face and belly. Her right arm and left leg are not functioning. In the circumstances the State shall pay Rs. two lac as compensation to her. 32. This amount shall be in addition to the amount already received by the petitioners in both the petitions. 33. Besides the State shall provide necessary medical treatment to the injured. Let the Director Health Service constitute a committee of doctors to examine the injured petitioner and advise the-next course of action in respect of their treatment. The State shall take steps to act upon the advice so tendered by the committee and provide all facilities to the petitioners in this behalf. The injured shall also be given free education and every care shall be taken so that they do not suffer in this behalf due to the disability caused to them. 34. In the facts and circumstances these writ petitions are allowed, the State is directed to deposit the awarded sum as mentioned above with the Registry within a period of three months from today failing which the petitioner shall be entitled to interest @ 18% per annum from the expiry of said period of three months till the final realization of the amount. Registrar Judicial shall pay the amount to the petitioners in SWP 43 of 2005, while as amount pertaining to petitioners in SWP 44 of 2005 shall be deposited in the Jammu & Kashmir Bank Branch High Court Complex Srinagar in the form of fixed deposit for a period of six and half years, leaving the petitioners free to approach the court for release of a sum if a need arises. Disposed of.