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J&K High Court · body

2017 DIGILAW 29 (JK)

Manjeet Kour v. State of J. &K.

2017-02-01

RAMALINGAM SUDHAKAR

body2017
ORDER : Ramalingam Sudhakar, J. Writ petition is of the year 2004. 2. The widow aged 38 years and minor children aged 13, 10, 11 and 06, five in all, have filed this writ petition claiming compensation on the death of one Raghuvir Singh due to electric shock. Since, the claim is against the State, mandamus has been filed for grant of compensation. 3. Raghuvir Singh S/o Sh. Sham Singh R/o village Dhrati Ghani Tehsil Mendhar District Poonch visited Simbal Camp, Tehsil R. S. Pura District Jammu to attend the marriage of his close relations. He reached the place of marriage on 4th March, 2003 and the marriage was to be conducted on 5th March, 2003, Raghuvir Singh stayed in the house of Lal Singh. On 5th March, 2003 at about 5.00 a.m., he woke up and went out of the House to attend the call of nature. According to the petitioners, it was very dark in the early morning. On the way, there was an exposed Electric Transformer on the side of the road. Raghuvir Singh while crossing the transformer slipped and fell on the side. As a result, he fell on the Transformer and was electrocuted and he died. 4. An FIR No. 23 dated 5th March, 2003 was lodged at Police Station Miran Sahib Tehsil R. S. Pura and the Final Police Report under 173, Cr.P.C was submitted on 9-7-2003. FIR is Annexure-A and Police Report under Section 173, Cr.P.C , 1973is Annexure-B. 5. Deceased Raghuvir Singh’s body was sent for post-mortem to the Government Medical College Hospital, Jammu. The Post-mortem report states that Raghuvir Singh died due to burn injuries at different parts of the body. The opinion of the doctor who conducted the post-mortem shows that the deceased died due to cardiac arrest caused by electric shock. Post-mortem report is Annexure-C. 6. A registered legal notice was sent by Mr. Kuldeep Singh Puri Advocate on 8-4-2003. Letter and receipt are Annexures-D and E to the petition. In that it was contended that the deceased died due to electric shock due to the negligence and carelessness of the department, leaving the transformer exposed, vulnerable to accident. Compensation was claimed stating that the deceased was a businessman and his monthly income was Rs. 6,000/-. Wife and children are the dependent of Raghuvir Singh. He was about 40 years at the time of his death. Compensation was claimed stating that the deceased was a businessman and his monthly income was Rs. 6,000/-. Wife and children are the dependent of Raghuvir Singh. He was about 40 years at the time of his death. It was also pleaded that the deceased would have lived atleast up to the age of 75 years because father of the deceased, Sham Singh is alive and 90 years old and the mother is also living. There was no response to the claim. 7. Therefore, the writ petition has been filed for mandamus to direct the respondents to pay Rs. 20.00 lac as compensation due to negligence on the part of the Government, Particularly, the Department of Electricity for their negligence in not maintaining the electrical Transformer and the adjacent area secure. 8. Objections to the writ petition were filed on 3rd February, 2007. In the meanwhile, in a miscellaneous application, an order was passed by this Court on 3-4-2007, directing the respondents to pay interim compensation of Rs. 50,000/-. In that order, Munsiff, R. S. Pura was directed to hold an inquiry as to whether the occurrence was caused due to the negligence of the respondents or otherwise. 9. The respondents deposited Rs. 50,000/- and the Court directed the share of the minors to be kept in FDR in the Jammu and Kashmir Bank Limited, High Court Branch, Jammu till they attain majority. The wife- s share was released to her. 10. On 16-10-2007, the inquiry report was filed and the respondents were asked to file objections to the report and the case was admitted on 20-5-2008. No counter has been filed by the respondents so far to the writ petition. It was recorded on 26-10-2015 that learned counsel for the petitioners Mr. S.S. Sahni, was stated be bed ridden for some time and on 27-5-2016, Mr. R.P. Sharma was requested to assist the Court on behalf of the petitioners and accordingly, Mr. R.P. Sharma assisted the Court and rendered his valuable assistance. 11. The Department-respondents have filed their objections to the inquiry report of Munisff, R.S. Pura but no counter to the writ petition. 12. The Inquiry Report of Munsiff, R.S. Pura reveals that an extensive inquiry was conducted and statements of several witnesses were recorded. The Inquiry Officer retraces the FIR and the investigation by the police resulting in closure of the case as a case of accident. 13. 12. The Inquiry Report of Munsiff, R.S. Pura reveals that an extensive inquiry was conducted and statements of several witnesses were recorded. The Inquiry Officer retraces the FIR and the investigation by the police resulting in closure of the case as a case of accident. 13. The Inquiry Officer, based on orders of this Court, however, went on an independent indepth inquiry by recording the statements of the witnesses which are found in Annexures-D1 to D5 to the report. The Inquiry Officer also visited the site of occurrence and prepared a map, annexure-M-1 along with the photographs. 14. Annexure-A is statement of Hara Singh, a witness, who, inter alia, stated that the deceased Raghuvir Singh died due to electric shock when crossing the place of location of the transformer which was open and without any boundary wall, wire fencing or any other form of protection. He is stated to be the person who accompanied the deceased on the fateful day. 15. One Trilok Singh, a resident of Simbal Camp, the place of occurrence, stated that he is a shop owner and is a witness to the accident. He stated that it was dark in the morning and the deceased was electrocuted when he was crossing near it as it did not have a boundary wall or wire fencing to avoid such incident. The transformer was fixed in the side of a main thoroughfare. He also stated that similar incidents happened earlier when animals were electrocuted because of the open transformer. That the Electricity Department took no action to stop such occurrences. 16. Manjit Singh, another witness, also a local resident, stated that the deceased came to attend the marriage in the village and in the early morning of 5th March, 2003 went to attend call of nature. Due to electric shock he died on spot. He has also deposed that the Electricity Department had negligently allowed the Transformer to function without any type of protection. There was no boundary wall or wire fencing to protect people, pets etc. from electrocution. Since, the deceased was an outsider, he did not know the impending danger and the open manner in which the transformer was placed. This witness also speaks about several animals dying due to electric shock while coming close to the transformer. 17. Prithpal Singh, another witness, a resident of Simbal Camp, deposed on the same lines. 18. from electrocution. Since, the deceased was an outsider, he did not know the impending danger and the open manner in which the transformer was placed. This witness also speaks about several animals dying due to electric shock while coming close to the transformer. 17. Prithpal Singh, another witness, a resident of Simbal Camp, deposed on the same lines. 18. One more witness, Raj Singh, a retired Sarpanch, who is in know of the affairs of the whole village, stated that on 5-3-2003, early morning when it was dark, deceased went to attend the call of nature. When he was passing near the transformer, which is located without a boundary wall or wire fencing, suffered a shock and in that he died. He also stated that electrocution was a common occurrence for pets and animals, when they come close to the transformer. He stated that the issue was brought to the notice of the Electricity Department but no preventive measure was taken. 19. The Lineman deposed that there was wire fencing and that the mistake was on the part of Raghuvir Singh who had gone beyond the wire fencing. Junior Engineer, Harvinder Singh stated that the transformer was installed away from the road. Though there was no boundary wall around the transformer, wire fencing was there. He stated that the mistake was on the part of deceased. He denied that the residents had complained earlier. 20. One Surjjt Singh, resident of Simbal Camp, stated that there was wire fencing but no walls. He stated contrary to the other witnesses. 21. Paramjit Singh, another witness, stated that there was a wire barrier in the form of barbed wire, the occurrence took place due to mistake of the deceased. 22. Another witness Daulat Ram S/o Makhan Singh, resident of Simbal Camp, stated that the deceased, not knowing the topography of the village, went near the transformer and suffered the electric shock. He further stated that there were thorny bushes but no fencing or walls. He also stated that the transformer was very old and the it was first such incidence of human electrocution. 23. Based on the evidence collected, the Inquiry Officer stated in the report that the Police authorities have closed the case without proper enquiry. He further stated that there were thorny bushes but no fencing or walls. He also stated that the transformer was very old and the it was first such incidence of human electrocution. 23. Based on the evidence collected, the Inquiry Officer stated in the report that the Police authorities have closed the case without proper enquiry. On the contrary, the Court appointed Inquiry officer found that there was no sign board or marking in front of the transformer to caution people from straying near it. It was not properly fenced. The Inquiry Officer observed that Daulat Ram is one of the eye-witness in the inquiry by the Investigating Officer. The Inquiry Officer observed that the evidence of Daulat Ram does not inspire confidence that the deceased died on spot due to electric shock by his negligence in the light of other witnesses as above. 24. Based on the evidence recorded from various persons, the Inquiry Officer framed the following points for consideration:- (a) Whether the deceased was on his way to attend the call of nature at about 5.00 a.m. on 5-3-2003. (b) Whether the transformer was not properly fenced and no barbed wire was laid by the department. (c) Whether the wires were naked and earth was electrified due to it. 25. The Inquiry Officer, based on the oral evidence of eye-witnesses and the spot inspection, came to the conclusion that the plea of a barbed wire fencing around the transformer is a wrong statement. The spot inspection reveals that few thorny bushes of kiker were laid or strummed around the transformer. There is no proper fencing and no caution board displayed by the Department. It is 300 K.V.A transformer and the wires are visible. There is no boundary wall around the transformer. 26. The Inquiry Officer reports that after the death of Raghuvir Singh due to electrocution, the local residents, in order to avoid such untoward incident in future, have put thorny bushes. This is the position on spot. 27. From the inquiry report, it is evident that the transformer, which is more than 40 to 42 years old, was carefully avoided by the local residents. However, there is no protective boundary wall or wire fencing around it as warning sign. The deceased, an outsider when walking by the side of the road and while passing by the transformer, was electrocuted due to some fault at that time. However, there is no protective boundary wall or wire fencing around it as warning sign. The deceased, an outsider when walking by the side of the road and while passing by the transformer, was electrocuted due to some fault at that time. He died due to electric shock. 28. There is nothing to suggest that the deceased was negligent and voluntarily touched the transformer. He admittedly was going to attend the call of nature at a new place. He cannot go near a transformer if it is fenced or bounded by a wall. 29. The Inquiry Officer, based on the evidence collected, concluded that the Electricity Department did not exercise reasonable care and caution to protect public from coming into contact with the transformer. Therefore, the respondents committed breach of their duty and obligation by omitting to put up a boundary wall or proper fencing around the transformer. Their act amounts to criminal negligence. 30. The inquiry report clearly states that the Electricity department had failed to take appropriate action to secure the 300 K.V.A transformer so as to avoid causing injury or death to the public at large. 31. Although the department objected to the said inquiry report, but this Court does not find any reason to discard it. Two officials of the department have stated during the inquiry that there was no boundary wall. They, however, stated that there was wire fencing. This statement is proved to be incorrect on an appraisal of the evidence of the local residents. There is no semblance of a fencing to be seen at the scene of occurrence. It is, therefore, clear that at the site of occurrence, the transformer was open and without any boundary wall and no fencing was there, as alleged. The spot photographs also support the finding. 32. Therefore, the inevitable conclusion is negligence on the part of the respondents-department in not securing the transformer as prescribed by the Electricity Act and the Rules. They have allowed the transformer to be kept in open without protection which has resulted in the death of Raghuvir Singh. 33. Therefore, this Court has no hesitation to hold that the death of Raghuvir Singh was caused due to the negligence on the part of the Electricity Department in not properly securing the transformer and failing to provide protective barriers. 33. Therefore, this Court has no hesitation to hold that the death of Raghuvir Singh was caused due to the negligence on the part of the Electricity Department in not properly securing the transformer and failing to provide protective barriers. On this undisputed fact, there is no question of relegating the widow and the minor children to a civil Court, as pleaded by the respondents in their objections. (See 2013 Writ Law Reporter 176 in the case of K. Sambath v. The Superintendent Engineer-1 Puducherry Electricity Board para 7). Para 8 of the said judgment is reproduced hereunder:- "8. It is a well settled principle of law declared by the Honourable Supreme Court that if the facts are not in dispute, the legal heirs of the victims of riot, custodial killing or death due to negligence on the part of the State authorities, can claim compensation in writ proceedings. The only impediment in entertaining writ petition is, there may be factual disputes such as the manner of death, whether there was negligence or not, age and income of the deceased, etc. In this case there is no dispute with regard to the manner of death, age of the deceased and income of the deceased." 34. The closing of the FIR is of no avail because that was closed on the premise that no case is made out under Section 304-A, Cr.P.C. The initial photographs furnished by the respondents themselves in their objections confirms the view taken by the Investigating Officer establishing the stark negligence on the part of the Electricity Department. 35. In view of the overwhelming evidence and the report of the Court appointed Inquiry Officer, this Court has no hesitation to hold that the negligence is on the part of the Electricity Department for not securing the transformer properly resulting in the death of Raghuvir Singh. 36. The need to take adequate care and provide protection while constructing, installing, operation and maintenance of electricity supply lines is an essential requirement. The Division Bench of Allahabad High Court in case titled Neetu Devi v. State of U.P. and others, reported as 2014 (107) AllLR 588 : 2015 (2) ALJ 147, in a case of death due to electrocution held thus. It referred to the Indian Electricity Rules which states that the authority should ensure safety to human beings, animals and property by safety measures. It referred to the Indian Electricity Rules which states that the authority should ensure safety to human beings, animals and property by safety measures. This has not been followed in the present case and that has caused the death. The negligence is now fixed on the respondents-Electricity department and they are liable to compensate. 37. Now that the respondents are liable to compensate the widow and the minor children of the deceased for their negligence, the question that arises is as to what is the quantum of compensation that has to be granted. 38. The Madras High Court in case titled Saroja v. The Government of Tamil Nadu and Anr. (writ petition No. 11757 of 2008) decided on 13-2-2014, reported in 2014 (3) ACC 291 (Mad.) considered a similar plea. In paras 10 and 11 it held as follows:- "10. There is no codified law for arriving at the quantum of compensation in cases of this type. The enactments like Motor Vehicles Act, 1988; Workmen Compensation Act, 1948; and Final Accidents Act, 1855 may be applied for arriving at the just compensation. In the decision reported in (1969) 3 SCC 64 : AIR 1970 SC 376 ) (C. K. Subramania lyer v. T. Kunhikuttan Nair) the Supreme Court held that there is no exact uniform rule for measuring the value of human life and the measure of damages cannot be arrived at precisely. In the decision reported in (2001) 8 SCC 151 : ( AIR 2001 SC 3660 ) (M.S. Grewal v. Deep Chand Sood) the Supreme Court held that multiplier method may be adopted to arrive at the just compensation. The age of the deceased can also be taken for arriving at a correct multiplier as per the judgment of the Supreme Court reported in 2011 (5) LW 408 : (2011 AIR SCW 1313) (P. S. Somanathan & others v. District Insurance Officer & another). 11. How the Court should decide the cases of this nature is emphasised by the Supreme Court in the decision reported in (2011) 10 SCC 634 : ( AIR 2012 SC 534 ) (Ibrahim v. Raju). In para 9 it is held thus. "9. 11. How the Court should decide the cases of this nature is emphasised by the Supreme Court in the decision reported in (2011) 10 SCC 634 : ( AIR 2012 SC 534 ) (Ibrahim v. Raju). In para 9 it is held thus. "9. This Court has time and again emphasised that the officers, who preside over the Tribunals adopt a proactive approach and ensure that the claims filed under the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure keeping in view the relevant factors. Unfortunately despite repeated pronouncements of this Court in which guiding principles have been laid down for determination of the compensation payable to the victims of road accidents and/or their families, the Tribunals and even the High Courts do not pay serious attention to the imperative of awarding just compensation to the claimants". In (2009) 13 SCC 422 : (2009 AIR SCW 6999) (Reshma Kumari v. Madan Mohan) the Supreme Court pointed out the need of giving just compensation to the victim. In paragraphs 26 and 27 it is held thus. "26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. 27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in services; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so." This Court is bound to bear-in-mind the above stated principles for arriving at just compensation." 39. Learned Amicus Curaie, submitted a tabulated sheet containing the particulars of the deceased and his occupation and other details to arrive at a just compensation. 40. Deceased Raghuvir Singh, 40 years old as per post mortem report, was a General Merchant Shopkeeper and running Atta Chakki. It was claimed that his income is Rs. 6,000/- per month. Accident and death happened on 5-3-2003. He was survived by widow aged 38 years, daughter aged 13 years, son aged 10 years, another daughter aged 11 years and son aged 6 years at the time of accident. Therefore, the deceased was supporting a large family of wife and four minor children. Since, the deceased was self-employed and in the absence of material, the question of future prospects cannot be considered in terms of para 24 of the decision of the Supreme Court in case titled Sarla Verma v. Delhi Transport Corpn. and Anr. reported in 2009 (6) SCC 121 : ( AIR 2009 SC 3104 ). 41. Therefore, the annual income will be Rs. 6000/-x12= Rs. 72,000/-. The dependents are five in number. Deduction towards personal expenses will be th which comes to Rs. 18,000/-. The Pecuniary loss to dependents comes to Rs. 54,000/- per annum. (Rs. 72,000 - 18,000/- = 54,000/-). The deceased is 40 years old and, therefore, the appropriate multiplier will be 15 in terms of Apex Court decision in Sarla Verma ( AIR 2009 SC 3104 ) case, and it comes to Rs. 8,10,000/- (54,000x15= 8,10,000/-). The wife will be entitled to a sum of Rs. 1.00 Lakh for consortium. 42. For loss of love and affection on the death of Raghuvir Singh, the children will get Rs. 50,000/- each, totally Rs. 2,00,000/-. For funeral and other expenses, keeping in mind the place of death and place of his residence, a sum of Rs. 20,000/- is granted. For loss of estate, Rs. 20,000/- is granted. In all a sum of Rs. 11,50,000/- (Rupees Eleven Lakh Fifty thousand only), less the sum of Rs. 50,000/- each, totally Rs. 2,00,000/-. For funeral and other expenses, keeping in mind the place of death and place of his residence, a sum of Rs. 20,000/- is granted. For loss of estate, Rs. 20,000/- is granted. In all a sum of Rs. 11,50,000/- (Rupees Eleven Lakh Fifty thousand only), less the sum of Rs. 50,000/-, already granted by this Court will be the compensation. The compensation will bear an interest @ 7.5% per annum from the date of death till the date of deposit. The apportionment of the compensation is as follows:- a. The widow will get Rs. 3.50 lakh, less Rs. 50,000/-, if already released. b. The minor children will get Rs. 2.00 lakh each till they attain majority. If they have already attained majority, they will be entitled to seek withdrawal of the amount. The share of the minors will be amount. The share of the minor will be kept in a Fixed Deposit, till they attain majority. 43. The respondents were put on notice. The Government despite knowing the fact that the death occurred due to their negligence and despite there being Government Order No. 328-PDD of 2011 dated 24-11-2011 for grant of ex gratia relief, no relief was granted to the legal heirs of the deceased. They were forced to come to this Court and prosecuted the matter for more than 12 years for redressal of their grievance. Therefore, the Court is inclined to impose the costs of Rs. 30,000/- on the respondents. 44. Writ petition allowed.