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2008 DIGILAW 126 (JK)

State Of J. &K. v. Zooni

2008-04-11

MOHAMMAD YAQOOB MIR

body2008
1. Deceased, Mohammed Sultan Wani has lost life due to electrocution on 6th September, 1997 as a result of negligence attributed to the PDD Department. Resultantly, suit for recovery of Rs. 5.00 lacs with interest and costs came to be instituted by respondent/widow before the court of Learned Sessions Judge, Pulwama. Suit has been decreed vide judgment dated 15.06.2007 whereunder respondents (plaintiff) has been held entitled to pay the amount of Rs.4.00 lacs i.e. Rs.2.05 lacs as dependency value on the earning of the deceased and Rs. 1.05 lacs on account of pain and agony and costs to the tune of Rs. 20,000/- alongwith interest al the rate of 12 % P.A have been allowed. 2. By the medium of this appeal, the judgment and decree is assailed. The death of the deceased due to electrocution is not denied but it has been contended that the deceased got electrocuted owing to his own negligence as according to appellants deceased illegally was connecting the electric power supply from existing LT supply line of M/s Link Way Stone Crusher at Tengpora and had carried the electric line on some kicker poles and on existing live trees adjacent to the road and HT line and during the course of connecting the `LT line, he touched the HT line and received an electric shock. Further more, deceased had been number of times requested by the out field staff not to Indulge in the illegal practice; therefore, negligence is not attributable to the appellants. 3. According to appearing counsel learned trial Judge has not appreciated this aspect but the submission is found to be bereft of legal sanctity. Learned Judge has elaborated and appreciated the evidence as has been brought on record, more particularly while determining the issues 1,3,4 and 5 learned trial Judge has appreciated the submission and has correctly opined that the official defendants 5 & 7 (appellants 5 & 7 herein) were guilty of not checking the illegal connections, so negligence is on their part. This position is supported by contention no. 2 of the memo of appeal. Appellants have been aware that the electric supply from LT line to M/s Link Way Stone Crusher had been carried on some kicker poles and on existing live trees and the fact that the field staff had asked the deceased to stop the illegal activities. This position is supported by contention no. 2 of the memo of appeal. Appellants have been aware that the electric supply from LT line to M/s Link Way Stone Crusher had been carried on some kicker poles and on existing live trees and the fact that the field staff had asked the deceased to stop the illegal activities. It is quite strange that the appellants admit carrying on of electric supply on kicker poles and on existing live trees but have not taken any action for removing the line exist, and had choose to remain silent spectators. It is to be borne in the mind that the department conceded that the staff members are meant for public good. It is the duty of public servants to take care of their departmental functions with all sense of dedication, the silence for stopping illegal activities indirectly amounts to support the illegal activities or in alternative amounts to negligence in discharge of the duties. The deceased admittedly has died due to electrocution and by negligence on the part of the appellants, more particularly its field staff is responsible for exhibiting negligence. 4. Learned trial court has rightly referred to the judgment delivered by Apex Court reported as Ponam Verma v. Ashwin Patel, 1996, CCJ 721 which is also reported in AIR 1996 SC 2111. In the said judgment negligence has been defined as: "Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do the definition involves the following constituents: (i) A legal duty to exercise due care (ii) Breach of the duty (iii) Consequently, damages" 5. Applying definitions to the facts of-the instant case, it is quite evident that the appellant, department of PDD and its filed staff have failed to exercise their duties in removing illegally carried electric lines over the kicker poles and the existing live trees. They have committed the breach of their duty so cannot avoid payment of damage to the respondent/widow. 6. The field staff or their superiors should have timely taken action for stopping the illegality. No action on their part has resulted in electrocution of the deceased, and, therefore appellants can not be exonerated from their liability: 7. They have committed the breach of their duty so cannot avoid payment of damage to the respondent/widow. 6. The field staff or their superiors should have timely taken action for stopping the illegality. No action on their part has resulted in electrocution of the deceased, and, therefore appellants can not be exonerated from their liability: 7. Appearing counsel next contended that the quantum of compensation is bad in law and unjustified, in support of contention, it was contended that on the one hand deceased was committing theft of electricity for which department was asked to pay the compensation that too on higher side. The contention though appears to be attractive but on close scrutiny, it is devoid of force because negligence exhibited on the own showing of appellants makes the department liable. After all function of the department extends to discharge of duties vis-a-vis stopping the illegal acts. If steps riot taken negligence is attributable. 8. The second limb of the argument is that the compensation is on higher side is plausible. Deceased has been a labourer and cultivating his own land. His monthly income is taken as Rs. 3000/- PM out of which 2/3rd has been taken as dependency value whereas, multiplier has been taken as 10 years, as the deceased was 50 years old Rs. 2.50 laces have been wrongly calculated because dependency value of the income is taken as Rs. 2000/which means Rs. 24,000/- PA just multiplier applicable is 11 years which would amount to Rs. 2.64 lacs instead of Rs 2.50 lacs. Furthermore on account of pain and agony 1.50 lacs have been awarded which is not warranted. The compensation shall neither he a pittance nor shall be windfall, more particularly in the peculiar lads and features of the instant case. Respondent/widow, however, is entitled to the consortium to the tune of Rs.5000/- and costs to the tune of Rs. 10,000/-. Interest as granted that the rate of 12% PA is unjust 6% P.A is reasonable. Though in the decree sheet 6% has been shown but in judgment 2%is recorded. It is clarified that only 6% PA is allowed from the decision by the trial court. Finding recorded by the trial court vis-a-vis issue no.6 is accordingly modified. 9. The evidence as has been laid before the trial court has been appreciated correctly. Known perversity is noticed except for consortium of compensation. 10. It is clarified that only 6% PA is allowed from the decision by the trial court. Finding recorded by the trial court vis-a-vis issue no.6 is accordingly modified. 9. The evidence as has been laid before the trial court has been appreciated correctly. Known perversity is noticed except for consortium of compensation. 10. In view of the above, the appeal partly succeeds. The impugned judgment and the decree is modified to the extent indicated above. Hence respondent is held entitled to pay the amount of Rs.2.64 lacs as compensation, Rs. 5000/- as consortium and Rs. 10.000/- as costs. In total Rs. 2.79 lacs is the compensation payable less by Rs.50, 000/-. as is shown to have been paid already. The amount shall be deposited in the, trial court forthwith along with interest at the rate of 6% PA from the date of decision of the trial court dated 15.06.2007. Decree be drawn accordingly. Copy of the judgment and decree alongwith subordinate record be sent back forthwith. 11. Appeal accordingly disposed of.