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2008 DIGILAW 372 (JK)

Mushtaq Ahmed v. State Of J. &K.

2008-10-10

J.P.SINGH

body2008
1. Mrs. Rani was passing through a thorough fare at village Kartholi adjoining village Maheen Sarkar of Tehsil Samba District Jammu when on coming in contact with the snapped 11 KV Aerial Line, she got electrocuted. Mushtaq Ahmed, her husband, Fermin Akhtar, Nasreen Akhtar and Naseema Begum, her minor daughters, have filed this writ petition seeking a command against the respondent-State and its functionaries in the Power Development Department to pay them Six Lac rupees (Rs. 6.00 lac) along with interest at the rate of 18% per annum as compensation for the death of Mrs. Rani. 2. Petitioners have claimed compensation from the respondents on the ground that they had laid 11 KV Aerial Line for transmitting electric energy over a thorough fare contrary to the provisions of Section 17 of the Electricity Act, 1997 (1940 AD) and had omitted to maintain the Aerial Line properly which because of its poor maintenance had remained suspended at low height for couple of days before it snapped on 14.10.1995 entirely because of the negligence and non-performance of statutory duty by the respondents because of which Mrs. Rani got electrocuted while passing through the thorough fare. 3. Contesting petitioners case, the respondents, besides questioning the maintainability of the writ petition say that the writ petition involves adjudication of disputed questions of fact which course may not be permissible in exercise of writ jurisdiction and only course available to the petitioners to seek adjudication of their claim of compensation was to file a civil suit. As regards the merits of the case, it has been stated that maximum care is taken by the respondents in laying Transmission Lines which are laid in such a manner which may not be hazardous to the safety and health of living beings. 4. Disputing the petitioners case that the accident had occurred because of the negligence of the respondents and their Field Staff, the respondents have denied their liability to pay compensation to the petitioners. 5. Although the allegation projected by the petitioners that the Aerial Line had been lying on the ground, has been denied, yet the respondents have specifically admitted about the snapping of the Aerial Line at the lime of the accident in which Mrs. Rani had been electrocuted. 6. Petitioners have placed on records a copy of Police Report no. 5. Although the allegation projected by the petitioners that the Aerial Line had been lying on the ground, has been denied, yet the respondents have specifically admitted about the snapping of the Aerial Line at the lime of the accident in which Mrs. Rani had been electrocuted. 6. Petitioners have placed on records a copy of Police Report no. 27 of 14.10.1995, Entry made by the Police Station, Bari Brahamana at S. No. 73/95 in Register No. 15, and photocopy of the Post Mortem report no. 395/95 evidencing the death of Rani as a result of electrocution on 14.10.1995. 7. Appearing for the petitioners, Mr. Navneet Dubey, submitted that failure of the respondents to maintain 11 KV Aerial Line passing over Kartholi area had resulted in its snapping and ultimate electrocution of twenty six years old Rani, the respondents were thus liable to pay compensation for the death of Rani in view of law laid down by Honble Supreme Court of India in M.C. Mehta and another v. Union of India and ors reported as (1987) 1 SCC 395. 8. Referring to a Single Bench judgment of this Court in Joginder Singh v. State of J&K and ors, OWP no. 647/2002, Mrs. Hakim, learned Deputy Advocate General, appearing for the respondents submitted that the petitioners cannot invoke the extra ordinary writ jurisdiction of the Court to seek adjudication of disputed questions of fact. According to the learned counsel, the writ petition was not maintainable as it did not involve the infraction of any fundamental or legal right. 9. I have considered the submissions of learned counsel for the parties and gone through the records of the case. 10. Before dealing with the plea raised by the respondents as to the maintainability of the writ petition by the petitioners, regard needs to be had to what has been stated by the petitioners in paragraph nos. 4 and 10 of their writ petition and reply of the respondents thereto. These paragraphs of the writ petition and reply of the respondents read thus: Paragraph nos. 4 and 10 of the Writ petition: 4. That on 14.10.1995 a live wire of 11,000 K.V broke away from the Electric Poll and fell in the public thorough fare located in the land of Rain Dass s/o Dalado R/o Kartholi. These paragraphs of the writ petition and reply of the respondents read thus: Paragraph nos. 4 and 10 of the Writ petition: 4. That on 14.10.1995 a live wire of 11,000 K.V broke away from the Electric Poll and fell in the public thorough fare located in the land of Rain Dass s/o Dalado R/o Kartholi. Despite breaking of the said 11,000 K.V live electric Wire, no steps were taken by the respondents to reinstall the said wire or to neutralize the same. In fact no functionary of the respondents came on spot to even inspect the said spot of the broken Electric lines to warn the public of the impending grave danger. The said electric lien broke away in a clear whether and the electric pool on account of poorly maintained Electric line which was already lying low for past many days in the month of Oct. 1995, and was not repaired despite request of the petitioner No. 1 while passing through the public thorough fare located at Village Kartholi Tehsil Samba District Jammu adjoining Maheen Sarkar got severely Electrocuted and on that account suffered IIIrd Degree Electric burns over right Anns, Right hand and both feet, besides the above, 1st and IInd Degree Electric Burns all over her body and the deceased got burned upto 100%. 10. That on account of the death on spot of the wife of the petitioner No. 1 and the Mother of the petitioner No. 2 to 4 the petitioners has been put to irreparable loss mental shock agony which they have to bear for whole their life. Which death has taken place due to the sheer negligence and dereliction of duly by the functionary of the respondent department the respondent did not maintain the said 11,000 K.V. Electric Wire in an efficient manner and in fact the Electric line was poorly maintained as despite the said line laying low for couple of days before 14.10.95 between the polls was not repaired on account of its own weight and poor maintenance of the junction of the Electric Pool Broke away on a clear day. Reply of the respondents to paragraphs 4 & 10 of the writ petition: 4. Para 4 of the writ petition is denied except that the accident took place on 14.10.1995. The cause of accident cannot be attributed due to negligence of the respondents and the field staff. 10. Reply of the respondents to paragraphs 4 & 10 of the writ petition: 4. Para 4 of the writ petition is denied except that the accident took place on 14.10.1995. The cause of accident cannot be attributed due to negligence of the respondents and the field staff. 10. Para 10 of the writ petition is denied. It is submitted that there was no negligence on the part of the respondents and the field staff. The log book maintained will show that the lines were not laying on the ground and only on the time of accident the same were found to be on the grounds. 11. Perusal of the averments made in the writ petition and the reply of the respondents filed in answer thereto, indicate that all that has been denied by the respondents is the petitioners plea that the respondents had been negligent in maintaining the Aerial Line carrying electric energy and that they had not taken requisite steps to ensure that no one comes in contact with the live wires which, because of their poor maintenance and after remaining suspended at low height for some days, had ultimately snapped. The respondents have not, however, denied Ranis electrocution in the accident which according to them had occurred on 14.10.1995 because of the snapping of 11 K.V Aerial Line passing over Kartholi area. 12. Reply filed by the respondents to the petitioners writ petition does not, however, indicate the cause of the snapping of 11 KV Aerial Line over Kartholi area. 13. The question that, therefore, falls for consideration is as to whether even in such type of cases, where death or injury is caused because of leakage of electric energy by the State engaged in supply of electric energy, which, no doubt, poses a potential threat to the safety of living beings, if not properly controlled, an aggrieved party would be debarred from invoking extra ordinary civil writ jurisdiction of the Court when the electrocution had taken place because of no fault of the victim. 14. Any act or omission of the State and its functionaries which takes away the life or otherwise impairs or injures it, would, in my opinion, amount to violation of such persons fundamental right to Life and Liberty flowing from Article 21 of the Constitution of India. 14. Any act or omission of the State and its functionaries which takes away the life or otherwise impairs or injures it, would, in my opinion, amount to violation of such persons fundamental right to Life and Liberty flowing from Article 21 of the Constitution of India. Engaged in a hazardous and inherently dangerous activity of supplying electric energy, which if left uncontrolled would take away life or impair and injure it, the State cannot thus be heard to say that the victim aggrieved by the aftereffects of such discharge of electric energy, will be disentitled to invoke the writ jurisdiction of the Court to seek compensation therefor, determination whereof may not require decision on any complicated and disputed questions of fact. 15. I am, therefore, of the view that the State having admitted that Ranis electrocution had taken place because of snapping of Aerial Line passing over, Kartholi area, which according to it, was an accident, cannot dispute petitioners right to invoke the writ jurisdiction of this Court to seek appropriate compensation thereof, which may be determined without undertaking any factual exercise on the basis of admitted facts about the age of the deceased, her relation with the petitioners and applying the same formula which the Parliament had devised for assessing compensation for those who suffer because of injuries in a motor vehicular accident in terms of Section 163A of the Motor Vehicles Act, 1988. 16. I am supported in taking the above view as to the maintainability of the writ petition in such circumstances by the law laid by Honble Supreme Court of India in H.S.E.B and anr. V. Ram Nath and others reported as (2004) 5 SCC 793 where while dealing with the case of electrocution of a child, their Lordships had held as follows:- 4. In the written statement there is no denial to these averments. All that is claimed is that the entire colony was an unauthorized colony and that unauthorisedly the height of the houses had been raised. It is claimed that the wires were at the prescribed height of 20 feet from the ground level and that the height of the wire was as per lire standard prescribed under the Rules. 5. It is submitted that these averments would show that there was disputed question of fact as to whether or not the wires were touching the roof. 5. It is submitted that these averments would show that there was disputed question of fact as to whether or not the wires were touching the roof. We are unable to accept this submission. To the categoric averments set out hereinabove that the wires had become loose and were drooping and touching the roof of the houses, there is no denial. To the categoric averments that complaints had been made, both in writing and orally, requesting that the wires have to be tightened, there is no denial. A mere vague statement to the effect that the height was as per the prescribed limit does not detract from the fact that there is a deemed admission that the wires were drooping and touching the roofs. 6. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and/or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. If they find that unauthorized constructions have been put close to their wires it is their duty to ensure that the construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires arc drooping and almost touching houses, they have to ensure that the required distance is kept between the houses and the wires, even though the houses be unauthorized. In this case we do not find any disputed question of fact. 7. As the child has come in contact with a live wire and has succumbed to her injuries, in our view, the compensation of Rs. 1 lakh awarded by the High Court cannot be said to be unreasonable. We see no reason to interfere. The civil appeal is dismissed." 17. The next question which, therefore, arises for consideration is as to whether or not the respondents are liable to compensate the petitioners for the electrocution of Mrs. Rani and if so to what compensation would they be entitled to. 18. The respondents have admitted in this petition that they had laid 11 KV Aerial Line over Kartholi area where because of its snapping, Mrs. Rani had been electrocuted. Rani and if so to what compensation would they be entitled to. 18. The respondents have admitted in this petition that they had laid 11 KV Aerial Line over Kartholi area where because of its snapping, Mrs. Rani had been electrocuted. They have failed to project any reason because of which the Aerial Line had snapped. They had not attributed any omission or overt act to the deceased because of which she had been electrocuted. 19. In these circumstances, when the electric energy transmitted by the respondents has resulted in the death of Mrs. Rani, who got unnecessary trapped into it, the primary liability to compensate her death is that of the State and its functionaries who were engaged in supplying electric energy in the area. The Voltage of the electricity transmitted through the Aerial Line was admittedly of potentially dangerous dimension, the State and its functionaries had therefore, the added responsibility to take all safely measures to prevent escape of such energy and to see that the Aerial Line carrying electric energy had functioned well and would not permit escape of energy by snapping of wires or otherwise. 20. Being engaged in undertaking the activity of supplying electric energy which if not properly controlled would result in risky exposure to human life, the respondents are liable under the Law of Torts to compensate the petitioners for the death of Mrs. Rani irrespective of any negligence or carelessness on their part The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on the State in law, would lie within the parameters of strict liability. This liability differs from the liability which arises on account of negligence or fault, i.e., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If a defendant had done all that could be done for avoiding the harm, he may not be held liable when the action is based on any attributed negligence. Such a consideration is, however, irrelevant in cases of strict liability where the defendant is liable irrespective of whether he could have avoided particular harm by taking precautions. If a defendant had done all that could be done for avoiding the harm, he may not be held liable when the action is based on any attributed negligence. Such a consideration is, however, irrelevant in cases of strict liability where the defendant is liable irrespective of whether he could have avoided particular harm by taking precautions. This doctrine of strict liability owes its origin in English common law when it was propounded in Rylauds versus Fletcher, (1868) 3 HL, 330; (1861 -73) All ER Rep) as follows: The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape." 21. Although there are exceptions to the above rule of strict liability, yet what has come to be accepted by Courts in India including Honble Supreme Court of India, may be stated as follows: Where an enterprise is Engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who arc affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands versus Fletcher (refer to M. C. Mehta versus Union of India, reported as (1987) 1 SCC 395). 22. In view of the above quoted legal position, I would hold the respondents liable to compensate the petitioners for the death of Mrs. Rani who had been electrocuted because of snapping of Aerial Transmission Lines laid over a thorough fare at Kartholi for carrying of electric energy. 23. The next question which falls for determination is regarding the quantum of compensation to which the petitioners may be entitled to for the death of Mrs. Rani. 24. Mrs. Ranis age at the time of her death is recorded as twenty six years in the Post Mortem report. 23. The next question which falls for determination is regarding the quantum of compensation to which the petitioners may be entitled to for the death of Mrs. Rani. 24. Mrs. Ranis age at the time of her death is recorded as twenty six years in the Post Mortem report. Had she died in a motor vehicular accident, her heirs would be entitled to compensation under Section 163A of the Motor Vehicles Act without proof of negligence on behalf of the driver of the vehicle, which for facility of reference reads thus: 163A. Special provisions as to payment of compensation on structured formula basis. - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force in law the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be." 25. I do not find any justification and rationale in refusing to consider cases of compensation arising out of the electrocution of the victim(s), for no fault of theirs applying the same analogy which the Parliament in its wisdom and as a social security measure has provided for the victims of motor vehicular accidents by enacting Section 163 A of the Motor Vehicles Act sanctioning payment of compensation to victims of such accidents on the basis of the structured formula prescribed under the Section in the Second Schedule appended to the Motor Vehicles Act 1988. 26. Petitioners case for compensation, therefore, needs to be considered for assessment of compensation on the basis of the structured formula under Section 163A of the Motor Vehicles Act. 27. Going by the law laid clown by Honble Supreme Court of India in Lata Wadhwa versus State of Bihar reported as 2001 ACJ 1735 and the modest estimation about the income of a house wife keeping in view the services which she renders to her family, petitioners monthly income is assessed at Rs. 3,000/-. 28. 27. Going by the law laid clown by Honble Supreme Court of India in Lata Wadhwa versus State of Bihar reported as 2001 ACJ 1735 and the modest estimation about the income of a house wife keeping in view the services which she renders to her family, petitioners monthly income is assessed at Rs. 3,000/-. 28. Multiplier method provided in the Second Schedule issued under Section 163 A of the Motor Vehicles Act has come to be recognized as an accessed method of determination of just compensation to the victims of the motor vehicular accident under the Motor Vehicles Act. Applying this principle to the petitioners case claiming compensation for Mrs. Ranis electrocution, which had been attributed by the respondents to be an accident by selecting 16 as against the prescribed multiplier of 18 and determining Thirty Six thousand rupees as the annual dependency of the family, the total loss of dependency of the petitioners on the income of the deceased, is assessed at Five Lac Seventy Six Thousand rupees (Rs. 5,76,000/-). 29. The respondents are, therefore, held liable to pay Five Lac Seventy Six Thousand rupees along with interest at the rate of 7.5% per annum from the date of the filing of the writ petition as compensation to the petitioners for the death of Mrs. Rani who had been electrocuted on 14.10.1995 at Kartholi. 30. This writ petition, therefore, succeeds and is allowed. A direction shall accordingly issue to the respondents to pay Five Lac Seventy Six thousand rupees (Rs. 5,76,000/-) to the petitioners along with interest at the rate of 7.5% per annum from the date of filing of the writ petition till its realization. The petitioners shall receive the amount in equal shares. The amount payable to petitioner nos. 2 to 4 shall be kept in a fixed deposit in their name till they attain majority. These petitioners shall, however, enjoy liberty to move this Court in case any early release of the amount was required. 31. The respondents are directed to deposit this amount in the Court within a period of six Weeks for its payment to the petitioners.