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2011 DIGILAW 429 (JK)

Shakuntla Devi v. State of J&K and ors.

2011-08-24

J.P.SINGH

body2011
1. The petitioner-Shakuntla Devi was at her house on February 25, 2004, when she suffered intensive burn injuries for which she was operated in Government Medical College Hospital Jammu. The burn injuries were so serious that her right lower limb below knee and left upper limb above elbow had to be amputated, to save her life. These burn injuries had resulted because of the uncontrolled escape of high voltage electric energy from a Transformer which the Power Development Department of the State Government had installed at a distance of about 300 meters from the petitioner's house. The cause of flow of uncontrolled high voltage electric energy was that one lead of 11 KV DO set was hanging in air due to bursting of one insulator of upper limb of the DO set, which due to wind storm, had touched L.A. earth wire at pole and L.A. earth wire coming in contact with the neutral earth wire through the clamp, had resulted in escape of high voltage electric energy to the residential area where the petitioner's house was located. 2. The petitioner has approached this Court seeking a Command to the State-respondents to pay her compensation of Rs.20.00 lac for her permanent disablement for rest of her life. 3. In its Response to the Writ Petition, the Staterespondents have not denied the escape of high voltage electric current to the residential area in which the petitioner's house was situated and the disablement suffered by the petitioner because of the amputation of her right lower limb and left upper limb. 4. The petitioner's Claim to compensation is contested by the State-respondents urging that she had suffered disability because of her own fault as her house did not have safety devices that would regulate flow of requisite electric current in the house. Referring to Divisional Controller KSRTC vs. Mahadeva Shetty reported as 2003 AIR SCW 3797, the petitioner's claim to compensation is stated by the Staterespondents to be on a much higher side, as the compensation should not be by way of bonanza or windfall, but must be just and fair. 5. Heard learned counsel for the parties and perused the material on records. 6. 5. Heard learned counsel for the parties and perused the material on records. 6. In view of the admitted position on facts that the petitioner suffered burn injuries resulting in amputation of her arm and leg because of the uncontrolled escape of high voltage energy from the Transformer installed by the Power Development Department, the first question that needs to be considered is as to whether the petitioner had suffered because of her own negligence or was it because of the negligence of the State-respondents, who had failed to regulate the supply of electric energy to the residential area in such a way that it would not result in causing damage. The issue need not be examined again as it stands settled by this Court in its various judgments. It was held, in Hanifa Begum & ors. vs. State of J&K and ors. reported as 2010 (4) JKJ 750, as follows: “Any one generating, transmitting, supplying or using electric energy of a high voltage like, which is a hazardous and inherently dangerous activity, is required to ensure that no such energy was transmitted or discharged, unless requisite measures had been taken to prevent its uncontrolled escape, which may injure, impair or take away life. Any omission in preventing the discharge of high voltage electric energy by anyone engaged in the activity of supplying such electric energy is, under law of Torts, liable to compensate for the damage caused because of such energy. The basis of such liability is a foreseeable risk, inherent in the vary nature of such activity. The liability to compensate for the damage caused, 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 operator of such high voltage electric energy had done all that which could be done to avoid harm, it may not be held liable when the action is based on any negligence attributed; But such consideration may be wholly irrelevant in the case of “Strict Liability”, where the operator of the activity is held liable irrespective of its having taken precautions to avoid harm. Under the Jammu and Kashmir Electricity Act (Svt.) 1997, the State is licensed to deal in electric energy. Under the Jammu and Kashmir Electricity Act (Svt.) 1997, the State is licensed to deal in electric energy. While so doing, it is required to take such requisite preventive measures, as prescribed in this behalf by the Jammu and Kashmir Electricity Act and rules framed thereunder, so that the electric energy does not cause any damage to life and property.” 7. In view of the law laid down by this Court, the plea of the State-respondents that the petitioner was herself responsible for the accident, cannot be accepted, in that, the State-respondents, dealing in the supply of electric energy, admittedly, a hazardous activity, were bound to take requisite safety measures so that there was no escape of high voltage energy which would cause damage. It was required to install such safety devices which even in case of force majeure should have automatically stopped flow of electric energy to the residential area. Omission of the Power Development Department not to take such safety measures, renders the State liable to compensate the petitioner. 8. The facts and circumstances of the case demonstrate that even after the windstorm, the State-respondents had not taken requisite measures to stop the electric current in the area to avoid damage because of its uncontrolled flow in the residential area. The State cannot, therefore, avoid its liability to compensate the petitioner. 9. The petitioner is stated earning livelihood for her family of five children from Rs.5,000/-, which she would earn per month by stitching clothes. 10. She was 34 years of age, when she suffered accident. Her photographs placed on records indicate that she is in a pathetic condition because of the amputation of her left arm and right leg. 11. According to the medical evidence, she had suffered 95% disability and being disabled for rest of her life, was dependent on others for her daily chores. 12. It is true that the exact amount of compensation to which the petitioner may be entitled to, cannot be determined in exercise of this Court's Extra Ordinary Writ Jurisdiction, for, such determination may require evidence to sustain finding in this respect. However, the factors and conditions which a Tribunal or a Court takes into consideration in awarding compensation to the victims of the accident in cases under the Motor Vehicles Act, 1988, can be applied to the petitioner's case to award her compensation for the injuries received and disablement caused. However, the factors and conditions which a Tribunal or a Court takes into consideration in awarding compensation to the victims of the accident in cases under the Motor Vehicles Act, 1988, can be applied to the petitioner's case to award her compensation for the injuries received and disablement caused. 13. Although the petitioner's Claim that she was earning Rs.5,000/- per month out of her stitching work, has not been specifically denied by the State-respondents, yet in the absence of any material placed by the petitioner on records, her income cannot be accepted at Rs.5,000/- as pleaded by her. However, even if one were to proceed on the premise that the petitioner was not doing any stitching work yet her contribution to the family o f five children and a husband, which now she is disabled to do and is rather dependant on others, the value of her services to the family for its sustenance including her own sustenance can be safely taken at Rs.3,000/- per month, which in view of the law laid down by the Hon'ble Supreme Court of India has been accepted as income of a non-earning person to assess compensation for the disability or loss caused. 14. Therefore, taking the monthly income of the petitioner at Rs.3000/- per month and the law laid down by Hon'ble Supreme Court of India in Sarla Verma and ors vs. Delhi Transport Corporation and ors. reported as (2009) 6 SCC 121 indicating the multipliers that should be adopted by the Tribunals and the Courts, 15 may be the appropriate multiplier, in the facts and circumstances of the case, to determine the compensation payable to the petitioner. 15. The petitioner's claim of Rs.20.00 lac is imaginary and without any basis and it was because of this reason that the petitioner's learned counsel too did not press for it leaving it to the Court to determine just compensation for the disablement caused to the petitioner. 16. The petitioner has been permanently disabled because of the amputation of her left arm and right leg and the injuries received in the accident. To determine the multiplicand adopting the formula advocated by Lord Wright in Davies case, which has been accepted as the correct method of assessing compensation by the Apex Court, Rs.5,40,000/- is found to be just compensation to the petitioner for the injuries suffered by her. 17. To determine the multiplicand adopting the formula advocated by Lord Wright in Davies case, which has been accepted as the correct method of assessing compensation by the Apex Court, Rs.5,40,000/- is found to be just compensation to the petitioner for the injuries suffered by her. 17. The State-respondents are, therefore, held liable to pay Rs.5,40,000/- to the petitioner. 18. Rs.50,000/- having already been paid to the petitioner during the pendency of the Writ Petition pursuant to interim order dated 26.05.2006, she would now be entitled to Rs.4,90,000/- which the respondents are liable to pay to her along with interest @ 7.5% per annum from the date of the filing of the Petition. 19. This Petition, therefore, succeeds and is, accordingly, allowed. A direction shall issue to respondent Nos. 1 to 3 to pay Rs.4,90,000/- along with interest @ 7.5% per annum from the date of the filing of the Writ Petition, to the petitioner, within a period of two months.