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2012 DIGILAW 1018 (GAU)

Idul Ali v. State of Assam and Ors.

2012-08-28

UJJAL BHUYAN

body2012
1. By way of this petition under article 226 of the Constitution of India, the petitioner has sought for a direction to the respondents for payment of Rs. 3 lakhs as compensation on account of severe burn injuries sustained by his son in an electrical accident. This case was earlier heard and was decided along with a batch of writ petitions by a common judgment and order dated 4.6.2008. This court by the aforesaid common judgment and order had disposed of the said writ petition by directing the respondents to pay to the petitioner a sum of Rs. 1,85,000 as compensation with interest @ 6% from the date of filing of the writ petition until realisation of the entire amount. A review petition, being Review Petition No. 8/2009, was filed by the respondents for review of the aforesaid judgment in respect of the present writ petition. This court in the review proceeding noticed that the judgment was rendered on the premise that the respondents had not filed counter affidavit. As a matter of fact, a counter affidavit was filed by the respondents on 6.5.2008. In view of aforesaid development, the prayer for review was allowed by order dated 7.4.2011. The common judgment and order dated 4.6.2008 was set aside insofar it related to WP(C) No. 8733/2004, with further direction to list the case for hearing separately. This is how the case has again been listed for hearing. In this petition, as noticed above, the petitioner has sought for issuance of appropriate writ(s) commanding the respondents to pay a sum of Rs.3,00,000 as compensation, for the server burn injury and fracture of right patella suffered by his son, due to electrocution. The case of the petitioner is that on 13.6.2004, at about 6.30 a.m. while the petitioner's minor son Md. Idul Ali was coming on foot towards his house, a live electrical wire of 11000 KVA, suddenly, fell on his body and as a result of electric shock, tho petitioner's son suffered not only burn injuries on his body, but also fracture of left patella. The injured was treated at Sessa PHC and, then, shifted to Gauhati Medical College Hospital, Guwahati for further treatment. The injured was discharged from the hospital at Guwahati on 13.8.2004, with a discharge certificate given to the effect that he had suffered burn injury and sustained fracture of his left patella. The injured was treated at Sessa PHC and, then, shifted to Gauhati Medical College Hospital, Guwahati for further treatment. The injured was discharged from the hospital at Guwahati on 13.8.2004, with a discharge certificate given to the effect that he had suffered burn injury and sustained fracture of his left patella. At the time of discharge, the injured was advised to attend Departments of Plastic Surgery and Orthopaedic, in the hospital, but due to financial stringency, the petitioner has not been able to provide adequate and necessary treatment to his said injured son. The injured had studied up to class VIII and he had, thereafter, opened a pan shop near Sessa Bus Stop and with his earnings, he used to maintain himself and his parents. This court after an elaborate examination of the scope of power of a writ Court in awarding compensation arising out of tortuous act of a State and its instrumentalities had awarded a total compensation of Rs. 1,85,000 to the petitioner with interest as indicated above. The break up of the compensation amount was as under : (1) Compensation for burn injuries — Rs. 1,00,000 (2) Compensation for fracture - Rs. 35,000 (3) Compensation for loss of income-Rs. 50,000 As already indicated above, the court had proceeded on the basis that the respondents had not filed any affidavit and did not resist the writ petition, which position now stands revised in view of the fact that the respondents had in fact filed their counter affidavit. In their counter affidavit, the respondents have stated that on 13.6.2004 at about 7 a.m. in the morning, one pin insulator of 11 KV line of Chenga feeder suddenly burst due to heavy lightening. As a result, the conductor snapped and fell down on the road. At that moment the son of the petitioner was walking below that line. As the conductor fell down it came in contact with the victim and resulted in his injuries. The respondents have stated that this was purely an act of God and neither could have been foreseen nor prevented. Therefore, the claim of compensation was denied. Paragraph 6 of the counter affidavit which projects the case of the respondents is extracted hereunder: "6. The respondents have stated that this was purely an act of God and neither could have been foreseen nor prevented. Therefore, the claim of compensation was denied. Paragraph 6 of the counter affidavit which projects the case of the respondents is extracted hereunder: "6. That your humble deponent categorically denies the allegations levelled against ASEB and your humble deponent states that on 13.6.2004 at about 7.00 a.m. one pin insulator of 11 K.V. line of Chenga feeder suddenly burst due to heavy lightening at that instant. As a result a 11 K.V. conductor snapped and fell down on the road. At the same time Md. Dudul Ali, son of the petitioner was walking below that line. As the conductor fell, it came in contact with the petitioner's son, resulting in his injuries. This is purely an act of God and no amount of over seeing and maintenance could have prevented this. Thus ASEB is not at all responsible for the said electrical accident and hence not liable to pay any compensation what so ever to the injured." Though it may not be a case of callousness or improper maintenance on the part of the respondents, yet considering the public character of the duties carried out by the ASEB and its successor Companies following the principle of strict liability, the respondents cannot absolve themselves of their liability. The principle of strict liability has been discussed in the common judgment and order dated 4.6,2008, Further deliberation would only be a repetition of the legal position, which has already been very succinctly formulated by the court in the said judgment. Notwithstanding the above, a brief reference to M.P. Electricity Board v. Shall Kumari and Others, (2002) 2 SCC 162 is considered relevant. Explaining the concept of strict liability, the Apex Court in that case held as under : - "8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the 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 defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. Bxit such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have' avoided the particular harm by taking precautions." Again, this court in the case of Mosht. Amena Bewa v. Assam State Electricity Board and Ors., 2007 (3) GLT 32 held as under : "12. Under the law, a very onerous obligation is cast on the Board in transmitting and supplying electrical energy. Having regard to the nature of the enterprise undertaken, the Board has to be extra vigilant and cautious so much so that the lives and properties of persons are not exposed to any risk or fatal consequences. This makes it incumbent on the Board to be meticulously watchful about the installation for supplying such energy so that any omission in maintaining the same would make it liable for all adverse consequences flowing therefrom following the principles of strict liability." Therefore, following the above, this court is of the considered view that the respondents are liable to pay compensation to the victim, the son of the petitioner. Having held so, the quantum of compensation would now be required to be determined. In the case of Mosht. Amena Bewa (supra), this court has held that compensation under article 226 of the Constitution of India is in the nature of palliative and some guess work is inevitable though the same should be reasonable. It is seen that Assam State Electricity Board (ASEB) had issued an office memorandum dated 22.12.2008 fixing the amount of compensation in respect of victims (fatal) bf electrical accidents who are not in employment of ASEB. As per the said office memorandum, in the case of death of a person up to the age of 20 years, the amount of compensation has been fixed at Rs. 1,00,000. As per the said office memorandum, in the case of death of a person up to the age of 20 years, the amount of compensation has been fixed at Rs. 1,00,000. Considering the present financial situation prevalent in the country, the aforesaid amount of Rs. 1,00,000 is certainly on the lower side. Moreover, the said amount was fixed more than three years ago. In the present case, the victim was aged about 15 years at the time of accident. Because of electrocution, he suffered fracture of left patella and also burn injuries. Though the consequence of the electrical accident was not fatal, considering all aspects of the matter, this court is of the view that the victim should be paid a lump sum compensation amount of Rs. 1,00,000. Ordered accordingly. The aforesaid amount shall be deposited by the ASEB within a period of 6 weeks from today in the Registry of this court, which shall be released to the victim on proper identification. It is however made clear that if the petitioner or the victim is not satisfied with the aforesaid amount, it would be open for them to institute appropriate proceeding, for higher compensation in accordance with law. Writ petition is allowed. No cost. _____________