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2010 DIGILAW 368 (JK)

S. Prem Singh v. State Of J&K

2010-07-01

J.P.Singh

body2010
1. Kuldeep Singh, employed as Cleaner with Truck No.JK02G-1657, was placing rope on the Truck on 26.04.2000, in the discharge of his duties as such, when during the process he came in contact with the High Tension Aerial 11 KV Line suspended at lower level on the road at Tarlokpur-Gole Gujral, Jammu, by the respondents, and received severe burn injuries to which he later succumbed at Government Medical College Hospital, Jammu on 27.04.2000. 2. His father, brother and sister have filed this Writ Petition claiming Rs.4.00 lac along with interest thereon, as compensation for the death of Kuldeep Singh from the respondents for their negligence in suspending the High Tension 11 KV Aerial Line below the prescribed height/level from the road. 3. Contesting the petitioners’ claim to compensation, the State-respondents plead Kuldeep Singh’s own negligence in climbing the rooftop of the Truck and thereby coming in contact with the High Tension Aerial Line, which they say, had been suspended on the road, as per Rural Electrification standards. 4. Consideration on the Writ Petition was deferred pending finding from Sub-Judge (Chief Judicial Magistrate), Jammu on the question as to whether the death of Kuldeep Singh had resulted because of the negligence of the respondents in not maintaining requisite height of the High Tension Aerial Lines, or for his own fault? 5. Parties were directed to appear before the Learned Sub-Judge on 01.11.2008. 6. Setting the respondents ex-parte for their willful absence, the learned Sub Judge recorded his finding on facts, that the height of 11KV Aerial Line on the road leading to Gole Gujral, was 14 feet from the ground level and that the respondents were negligent in not maintaining requisite height of the High Tension Aerial Line along side the road. This finding was recorded on the basis of the evidence produced by the petitioners. 7. Questioning the Report of the learned Sub-Judge, the State-respondents say that the ex-parte findings recorded against them by the Court could not be relied upon as the ex-parte proceedings initiated against them were unwarranted, in that, they had not been summoned by the Court before recording the finding. Service of Notice on the Deputy Advocate General, who had been engaged by the Government to defend the State cases only in the High Court, is urged invalid service of the respondents. 8. Service of Notice on the Deputy Advocate General, who had been engaged by the Government to defend the State cases only in the High Court, is urged invalid service of the respondents. 8. Not contesting that 11 KV Transmission Line was suspended at a lower level, they, in the alternative, justify the suspension of 11 KV Transmission Line at low level on the road saying that laid about 30 years ago, the height of the 11 KV Transmission Line had reduced because of the widening of the road and its macadamisation from time to time. 9. Questioning the findings of the learned Sub-Judge on the grounds aforementioned, the State-respondents seek dismissal of the Writ Petition, which according to them involves adjudication of disputed questions of fact. 10. I have heard learned counsel for the parties and considered the submissions made at the Bar. 11. State counsel’s plea that the learned Sub Judge should have summoned the respondents rather than the Deputy Advocate General, is misconceived, in that, in view of the order passed by this Court directing the parties through their learned counsel to appear before the Subordinate Judge on November 01, 2008, no further notice was required to be issued to the respondents, who being aware about the pendency of the proceedings before the learned Sub-Judge were required to participate therein, to substantiate the facts pleaded by them in Response to the Writ Petition. 12. Omission of the State-respondents to appear before the learned Subordinate Judge, despite having been informed by the Court, for their appearance cannot thus be justified. 13. Even otherwise, having appeared before the Court through their Advocate, the respondents cannot question the ex-parte findings of the learned Sub Judge, in that, they cannot be permitted to take advantage of their own wrong in omitting to appear despite their knowledge of the pendency of the proceedings before the learned Sub Judge. 14. The State Counsel’s plea that the ex-parte proceedings conducted by the learned Sub Judge were invalid, therefore, fails and is, accordingly, rejected. 15. 14. The State Counsel’s plea that the ex-parte proceedings conducted by the learned Sub Judge were invalid, therefore, fails and is, accordingly, rejected. 15. In view of the evidence led by the petitioners and the Certificate of the Assistant Executive Engineer Canal Sub Division-I, about the height of the High Tension Aerial Line, where Kuldeep Singh had been electrocuted, I do not even otherwise find any reason to disagree with the factual finding recorded by the learned Sub Judge that the respondents were derelict and negligent in the performance of their duties in not maintaining 11 KV High Tension Aerial Line, in terms of the rules which required suspension of such type of High Tension Aerial Lines not below the height of 20 feet from the ground. 16. Accordingly, accepting the findings recorded by the learned Sub Judge, the respondents are found negligent in not maintaining the suspension of the High Tension Aerial Line at requisite height of 20 feet, where the truck in question was stationed and as a result whereof, Kuldeep Singh, had got electrocuted on coming in contact therewith while discharging his duties as Cleaner with the Truck. 17. 11 KV Live Aerial Line carries such voltage of electric energy which may take away, impair or injure life. The State, thus dealing in the supply of electricity of such voltage which poses potential threat to the safety of living beings, if not kept under control, was required to take requisite steps, prescribed in this behalf by the Jammu and Kashmir Electricity Act and rules framed thereunder, before supplying such energy, so that no living being became victim of the energy. 18. The facts of the present case indicate that before supplying electric energy through the lowly suspended 11 KV High Tension Aerial Line at Tarlokpur-Gole Gujral, the State had not taken requisite safety measures to ensure that no living being came in contact therewith. 19. Omission of the State and its functionaries in not taking requisite safety measures while supplying energy has thus resulted in deprivation of Kuldeep Singh’s life. 20. Loss of life of Kuldeep Singh has affected the quality of the life of the petitioners as well, which stands wounded to the extent irreparable, in that, they would continue deprived of the love, affection, emotional feelings and company of the deceased for rest of their life. 21. 20. Loss of life of Kuldeep Singh has affected the quality of the life of the petitioners as well, which stands wounded to the extent irreparable, in that, they would continue deprived of the love, affection, emotional feelings and company of the deceased for rest of their life. 21. Fundamental Right to Life, encompasses enjoyment of life to the fullest. The enjoyment contemplated may not be conceived with injured and wounded mental state, for all enjoyments are primarily perceived, conceived and planned at the mental plane. Deprivation of the company and emotional feelings attached to the nears and dears, disturbs the mental balance, which in case of loss of spouses, sons and daughters, may last long effecting adversely, one’s quality of life, in that, with the disturbed mental state, one would be disabled to enjoy life to the fullest as contemplated by Article 21 of the Constitution of India, for optimum enjoyment may be achieved when the mind is calm, composed and peaceful. 22. While dealing with the hazardous and dangerous electric energy of High Voltage, in the discharge of its statutory and public duty of supplying electricity to the public, the State has deprived not only Kuldeep Singh but also the petitioners of their fundamental Right to Life by wounding their emotions and depriving them of the company of the deceased. They are, therefore, liable to compensate the petitioners not only for deprivation of Kuldeep Singh’s life but also for reducing the quality of their life, who may not be able to enjoy life the way, they would have so done in the company of Kuldeep Singh. 23. That apart, even under the Law of Torts, the respondents are liable to pay compensation to the petitioners for the loss of Kuldeep Singh’s life, in that, being Licensee under the Electricity Act and engaged in hazardous and inherently dangerous activity of supplying high voltage electric energy, which if left uncontrolled, would injure, impair or take away life, the State and its functionaries were required to ensure that the transmission of the electric energy remained under control and did not result in any loss or damage. Any loss or damage caused by such energy casts obligation on the State to compensate for the loss or damage so caused. 24. The basis of such liability is a foreseeable risk, inherent in the vary of nature of such activity. Any loss or damage caused by such energy casts obligation on the State to compensate for the loss or damage so caused. 24. The basis of such liability is a foreseeable risk, inherent in the vary of nature of such activity. The liability caused on the State, is known, in law as "Strict Liability". It differs from the liability which arises on account of negligence or fault, in this way i.e, the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the State had done all that, which could be done for avoiding harm, it cannot be held liable when the action is based on any negligent attributed. But such consideration may be irrelevant altogether in the case of "Strict Liability", where it is held liable irrespective of whether it could have avoided the particular harm by taking precautions. 25. I am supported in taking this view by Rylands v. Fletcher, (1868) LR 3HL, 330; (1861-73) All ER rep.1 and M. C. Mehta and anr. v. Union of India & ors, reported as 1987 (1) SCC 395 . 26. In view of the above discussion, the State cannot avoid its liability to compensate the petitioners for affecting adversely the quality of their life and for deprivation of the life of Kuldeep Singh. 27. Now coming to the question as to what should be the appropriate compensation for the damage suffered by the petitioners, the State counsel’s plea in this regard that the compensation claimed by the petitioners was excessive, needs to be examined. 28. According to the learned State counsel, the compensation claimed by the petitioners was exorbitant, in that, in the event of the death of Kuldeep Singh in a Motor Vehicular Accident, the petitioners would not be entitled to such compensation, as was claimed by them and only so much of compensation as was just and proper may be awardable by way of compensation. 29. 29. It is true that even if the formulae for assessment of compensation in Fatal Accident Cases, as indicated in the second Schedule under Section 163(A) of the Motor Vehicles Act, 1988, had to be applied to assess the compensation payable to the petitioners, taking monthly income of the Cleaner at Rs.4,000/-, the compensation awardable under the Motor Vehicles Act, would have been in the neighbourhood of Rs.2.5 lac with suitable adjustment of the multiplier indicated in the second Schedule, in the facts and circumstances of the case; But as the petitioners have been held entitled to compensation not only under the Law of Torts but also for deprivation of the quality of their own life with injured emotions, so the compensation which would have been payable to them under the Motor Vehicles Act, would require suitable increase to compensate them for deprivation of their fundamental Right to Life too. 30. In the circumstances and keeping in view the fact that petitioner No.1 has been deprived of the company and earnings of his young son at his old age, and that he would have to lead rest of his life with the wounded feelings of deprivation of the company, love and affection of his son, an amount of Rs. Three lac would be appropriate compensation to petitioner No.1. Petitioner No.2 is held entitled to compensation of Rs.15,000/- for the death of Kuldeep Singh and petitioner No.3 to Rs.25,000/-, keeping in view her dependency on the earnings of the deceased as projected in the Writ Petition. 31. The respondents are, accordingly, held liable to pay Rs.3.40 lac to the petitioners as compensation, which they would share as follows:- 1) S. Prem Singh : Rs.3,00,000/- (Rs.Three Lac.) 2) Shamsher Singh : Rs.15,000/- (Rs.Twenty five thousand) 3) Miss. Jagir Kour : Rs.25,000/- (Rs.Twenty five thousand) 32. This Petition, therefore, succeeds and is, accordingly, allowed. A direction shall issue to the respondents to pay Rs.3.40 lac to the petitioners, as indicated above, along with interest at the rate of 7.5% per annum from the date of the filing of the Petition till its realization, within a period of three months.