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2018 DIGILAW 1584 (GAU)

State of Mizoram v. Lalzawngliana

2018-11-06

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. 1. Heard Ms. Mary L. Khiangte, the learned counsel for the appellants and Mr. L.H. Lianhrima, the learned senior counsel assisted by Ms. H. Lalmalsawmi for the respondent. 2. This is an appeal against the Judgment dated 19.06.2013 passed by the learned Senior Civil Judge, Aizawl District, Aizawl in Money Suit No. 37/2009 awarding the respondent a sum of Rs. 6,12,000/- as compensation on account of the death of his son Shri. Lalnunzuala due to electrocution on 17.10.2007 while he was on his way home to Tualte in the District of Champhai. Along with the principal amount, the learned Trial Court further a warded a sum of Rs. 1,03,440/- as interest which was calculated at the rate of 6% per annum from the date of filling the suit till the date of judgment. Thus the awarded amount of Rs. 7,15,440/- in all is directed to be paid by the appellants, more particularly the appellant No. 3 within a period of 60 (sixty) days from the date of the order. 3. Being highly aggrieved by the judgment, the appellants have preferred the instant appeal. 4. Ms. Mary L. Khiangte, the learned Government Advocate assailing the Judgment & Order dated 19.06.2013 submits that on 17.10.2007, the deceased Lalnunzuala along-with his friend Shri. Lalremsiama were proceeding home at Tualte Village. When they were at the out skirts of the village, it was alleged that they came into contact with a live electric wire lying a cross the road. While Lalnunzuala got electrocuted and expired on the spot, his friend Shri. Lalremsiamaal though lost consciousness because of the shock, he regained his consciousness while still holding wire to his hands. She submits that from the Police report dated 02.03.2009 prepared by the case Investigating Officer (I.O.), the cause of the snapping of the electric wire was due to storm and heavy rain. Under the circumstance, the Power & Electricity Department (P & E Department) cannot be held responsible for the accident and in fact, it is only attributable to an act of God. Under the circumstance, the Power & Electricity Department (P & E Department) cannot be held responsible for the accident and in fact, it is only attributable to an act of God. She further submits that as per the evidence on record, the Court witness Shri. Lalremsia made posed that he had seen lightning on the night of the incident and therefore, it cannot be safely concluded that it was due to the electric shock received from the snapped electrical wire that the deceased lost his life and it could have very well been due to lightning. Therefore, without any conclusive proof, the appellants cannot be saddled with the liability of compensating the respondent. 5. By referring to the evidence of the employer of the deceased, the learned Government Advocate submits that the deceased was said to be earning Rs. 150/- per day as a labourer under him but the said witness in his cross-examinational soc deposed that the deceased was not employed on regular basis. Therefore, the determination of his monthly income on the basis the daily wage given to him and thereafter, computing the same to compensate the respondent will only be misconceived and as such, the impugned award should be set aside. 6. Ms. Mary L. Khiangte, the learned Government Advocate further submits that in fact, from a bare perusal of the impugned Judgment, it is clear that the learned Trial Court did not make any calculations in awarding compensation to the respondent. The Trial Court only observed that the calculation was done as per the norms of calculation of his salary, his age and the multiplier and also for the interest from the date of filing the suit She submits that with-out admitting to the fact that the appellants are liable to be compensate the respondent on account of the death of his son, calculation will only have to be made as per accepted norms and principles. The methodology applied for determining the compensation should also be discernable from the conclusion of the learned Trial Court. However, no such procedure was adopted by the learned Trial Court and therefore, the impugned Judgment is not sustainable and should be set aside and quashed. In support of her submission, the learned Government Advocate has referred to the decision of the Apex Court in the case of Reshma Kumari & Ors. Vs. Madan Mohan & Anr. However, no such procedure was adopted by the learned Trial Court and therefore, the impugned Judgment is not sustainable and should be set aside and quashed. In support of her submission, the learned Government Advocate has referred to the decision of the Apex Court in the case of Reshma Kumari & Ors. Vs. Madan Mohan & Anr. reported in (2009) 13 SCC 422 . 7. Appearing for the respondent/claimant, the learned senior counsel Mr. L.H. Lianhrima submits that from a perusal of the Police report dated 02.03.2009, the cause of the death of the deceased is clearly discernable. He submits that the finding of the Enquiry Officer to the effect that no foul play was detected in the investigation should not be misunderstood as a finding that the Power & Electricity Department (P & E Department) has no responsibility in the electrocution of the deceased. 8. He submits that in fact on 17.10.2007, while the deceased was proceeding towards home with his friend Shri. Lalremsiama, they came into contact with alive wire which was spread across the road and which became fatal for the deceased. His friend Sh. Lalremsiama however was lucky to escape from the live wire with his life. The Police report in this regard according to him speaks for itself. 9. The learned senior counsel by further referring to the postmortem report submits that the Medical & Health Officer, who conducted the post mortem examination, opined that death was due to electrocution and which was ante-mortem in origin. Therefore, there can not be any doubt about the cause of death of the deceased. No. inference can be drawn that it could have been a lightning which struck the deceased. Responding to the submission of the learned Government Advocate on the contention of the Junior Engineer (J.E.) that once the electric wire is burning from the feed, there can be some remain/left-over of current, but the same gets absorbed in the soil and therefore, the same cannot be the cause for death of the deceased, the learned senior counsel submits that since there was a clear finding in the post mortem examination conducted by the Medical Officer concerned that the cause of death of the deceased was due to electrocution, the observation of the Junior Engineer will have no evidentiary value. 10. 10. The learned senior counsel has also led this Court to the grounds taken by the appellants in the Memorandum of Appeal and he submits that no substantive grounds have been made by the appellants which can in anyway persuade the Court to interfere with the findings and conclusion of the learned Trial Court. 11. He submits that in so far as the calculation of the amount of compensation is concerned, as it is in evidence that the deceased was being paid Rs. 150/- per day, it can be safely assumed that he worked for about 25 days in a month and which in turn can be calculated towards his annual income. Thereafter, considering the age of the deceased, the relevant multiplying factor can also be derived. 12. In a case of this nature, the basic calculation on the quantum of compensation by adopting the 2nd Schedule of the Motor Vehicle Act, 1988(M.V. Act) which is considered to be a guide is only acceptable. By adopting such procedure, it can be seen that the amount awarded by the learned Trial Court is reasonable. Although the Trial Court may not have indicated as to how the calculation was made, but by following the basic principles of calculation under the M.V. Act, there is no material difference in the ultimate amount arrived at by the Trial Court. In that view of the matter, the Judgment of the learned Trial Court requires no interference. The learned senior counsel submits that although the Judgment was passed in the year 2013, the respondent has not received any compensation till date and therefore, the appeal should be dismissed and the Judgment dated 19.06.2013 upheld. 13. The learned senior counsel for the respondent has relied upon the following authorities:- (i) A.S. Zingthan Vs. State of Manipur & Ors., 1997(2) GLT 359 (ii) M.P. Electricity Board Vs. Shail Kumari & Ors., (2002) 2 SCC 162 (iii) State of Himachal Pradesh & Ors. Vs. Naval Kumar, (2017) 3 SCC 115 (iv) Raman Vs. Uttar Haryana Bijli Vitran Nigam Limited & Ors., (2014) 15 SCC 1 (v) Judgment & Order dated 22.6.2018 in W.A. No. 21/2017 (Sh. Lalfamkima Vs. State of Mizoram & 3 Ors.) 14. I have heard the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Record that was requisitioned from the Trial Court. 15. Lalfamkima Vs. State of Mizoram & 3 Ors.) 14. I have heard the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Record that was requisitioned from the Trial Court. 15. From the materials on record, it may be seen that the respondent filed Money Suit No. 37/2009 claiming a sum of Rs. 20 lakhs alongwith 12% interest per annum as compensation on account of the death of his son due to electrocution on 17.10.2007. The documents relied upon by the respondent and exhibited before the learned Trial Court amongst others were the inquest report dated 18.10.2007, the post mortem report dated 18.10.2007, the police report dated 2.3.2009 and the income certificate of the deceased issued by his employer. The respondent examined himself as plaintiff witness No. 1 while the employer of the deceased i.e., Sh. V.L. Tinbiaka was examined as plaintiff witness No. 2. PW-1, in his examination-in-chief by way of an affidavit deposed that he is a permanent resident of Tualte Village and father of the deceased Sh. Lalnunzuala. On 17.10.2007, at about 8:15 PM, when the deceased Sh. Lalnunzuala was on his way home to Tualte along with one friend, they came into contact with a live electric conductor and as a result, he got burned by the electric conductor causing his death. The place of the accident was in the middle of the road, where Park-II was located in the outskirts of Tualte Village. The accident was immediately reported to the staff of Power & Electricity Department at Chawngtlai, but no action was taken. He further deposed that the Power & Electricity Department (P & E Department) had sufficient time to attend to the fallen electric wires, which snapped and was lying in the middle of the road as reported in the local newspaper. He deposed that had the supply of electricity being switched off in time, the accident could have been avoided. Therefore, by referring to the provisions of the Indian Electricity Rules, 1956, more particularly Rule 59(2) and Rule 44-A of the said Rules, the P & E Department was clearly negligent and therefore, they are responsible for the accident. As such, they are liable to pay adequate compensation to the respondent as claimed in the suit. Therefore, by referring to the provisions of the Indian Electricity Rules, 1956, more particularly Rule 59(2) and Rule 44-A of the said Rules, the P & E Department was clearly negligent and therefore, they are responsible for the accident. As such, they are liable to pay adequate compensation to the respondent as claimed in the suit. He further deposed that at the relevant time, the deceased was working under PW-2 and was earning a sum of Rs. 150/- per day. The family was solely depended upon him as he was the bread earner of the family. In his cross examination, PW-1 deposed that he came to learn about the accident through the information relayed by Young Mizo Association (YMA). He also deposed that there was no complaint regarding the snapping of the electric wire before the accident. He also deposed that at the time of the occurrence of the accident, there was no irregularity in the supply of power in his Village. He also deposed that the Depury Commissioner, Champhai District through the Sub-Divisional Officer (Civil) Khawzawl did not pay any compensation to him on account of the accident. 16. PW-2 in his examination-in-chief deposed that he engaged the deceased in his ongoing contract work at a daily rate of Rs. 150/-. The deceased before the accident, was working with him since the last 3 (three) years. In his cross examination, he deposed that he had no personal knowledge about the negligence of the P & E Department resulting in the electrocution of the deceased. 17. The appellants, as defendants filed their written statement on 19.02.2010, wherein they contended inter alia that the accident was caused by lightning, as per the enquiry and spot verification report of the Electrical Inspector. They maintain that the electrical conductor was struck by lightning on 17.10.2007 and as a result of which, it snapped and was lying across the road. The same was first sighted by Pu Rokhama of Tualte Village, who pulled and cleared the conductor towards the road side but he did not inform the incident to the person on duty. Later on, on the same day, the conductor was touched by Pu Zamlova, President of Tualte Branch YMA, Pu Ramsanga, Pu Hmunmawia, Pu Biaktluanga and Pi Remthangi, all from Tualte Village. However, none of them experienced any current flowing in the conductor when they touched the same. Later on, on the same day, the conductor was touched by Pu Zamlova, President of Tualte Branch YMA, Pu Ramsanga, Pu Hmunmawia, Pu Biaktluanga and Pi Remthangi, all from Tualte Village. However, none of them experienced any current flowing in the conductor when they touched the same. Therefore, it was clear that there was no current flowing in the conductor. As regards, the negligence of the Department as alleged by the respondent, it was contended that the matter was brought to the notice of the Department through the person on duty at about 4:30 PM on 17.10.2007. However, as no leakage of current was noticed from the fallen conductor, it was pulled and kept towards the side of the road with bare hands by the person on duty. Thus, based on the above facts, the P & E Department was not negligent in their duty. It was further contended that the friend of the deceased was found to have still holding the fallen electric conductor after he regained consciousness. It was therefore, clear that there was no flow of current from the said conductor or else, he would also have been electrocuted. Thus, the P & E Department was not responsible for paying any compensation to the respondent on account of the alleged electrocution of the deceased. 18. As may be noticed, the appellant has exhibited the photograph of the snapped electric wire by which, the deceased was said to have been electrocuted as Exhibit P-2. The in-quest report dated 18.10.2007, conducted by Assistant Sub-Inspector, Sh. Lalramnghaka of Khawzawl Police Station indicates that upon checking the death body of the deceased, he found about 5 inches long abrasion on his lower jaw and on the right leg, which appeared to be caused by electric shock. The inquest report was exhibited as Exhibit P-6. The post mortem examination report which was exhibited as Exhibit P-7 and Exhibit P-8 reveals that upon examination of the death body of the deceased, an abrasion about 12 cms. long horizontally below the chin was found. One rounded laceration leaving greyish white circular spot of about 1 cm in diameter in the left calf was also found. Further, two rounded lacerations in the right calf was found as well. long horizontally below the chin was found. One rounded laceration leaving greyish white circular spot of about 1 cm in diameter in the left calf was also found. Further, two rounded lacerations in the right calf was found as well. As per the details given on the injury, it was remarked that the injury found in the body may indicate entry and exit wound of an electrocution, which in turn may be fatal. It was thus opined that death was caused due to shock by electrocution and the same was ante-mortem in origin. The police report dated 02.03.2009, exhibited as Exhibit P-9 also reveals that the place of occurrence was visited by the Investigating Officer wherein, he found one electric conduct or with the current on the ground and in the middle of the road, which was caused by storm and heavy rainfall. Available witnesses were examined and their statements were recorded and that no foul play was detected. The cause of the incident was purely accidental. The exhibited documents were neither opposed nor falsified by the defendants during the suit proceedings. PW-1, in his cross examination deposed that when the incident occurred, there was no irregularity in power supply within his Village i.e., Tualte. Under the given circumstances and from the materials on record, there is no doubt that the deceased upon coming into contact with the fallen electrical wire got electrocuted. 19. The Apex Court in the case of M.P. Electricity Board (Supra) held that even assuming that all safety measures had been adopted, a person undertaking an activity involving hazardous or risk exposures to human life, is liable under law of tort to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertaking. The basis of such liability is the foresee able risk in he rent in the very nature of such activity. The liability caused 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. The liability caused 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 authorities concerned did all that which could be done for avoiding the harm, it can not be held liable when the action is based on any negligence attributed but such consideration is not relevant in cases of a strict liability, where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 20. In the case of A.S. Zingthan (Supra), it was held by this Court that the State having not complied with the relevant provisions of the Electricity Rules, 1956, while erecting electric post for the overhead lines led to the death of the claimant due to live high tension lines, touching the low tension pole. Therefore, it was responsible to compensate the family of the victim on account of negligence. 21. In the case of Raman (Supra), the Apex Court held that having regard to the statutory negligence on the part of the respondent authorities in not providing the safety measures to see that live electric wires should not fall on the roof of the building by strictly following the Rules to protect the lives of the public in residential area found the amount awarded by the High Court to be justified and reasonable. On facts, it was a case of amputation of both arms of a 5 (five) year old boy on account of being electrocuted by coming into direct contact with the naked electric wire which was lying open on the roof of his house. The Apex Court further held that in a case of such nature and on facts, the multiplier method cannot he restored to, to determine the amount of compensation. 22. In the case of Naval Kumar (Supra), which was also a case of amputation of both the arms of an 8(eight) year old boy due to coming into contact with a high tension live wire (II(sic) KV) and he received grievous bum and other injuries. Considering the fact that the victim boy will required proper treatment and due care for the rest of his life, the Apex Court modified the amount of compensation from Rs. Considering the fact that the victim boy will required proper treatment and due care for the rest of his life, the Apex Court modified the amount of compensation from Rs. 1.25 crores as awarded by the High Court to an amount of Rs. 90 lakhs with interest @ 6% per annum from the date of filing of the writ petition. 23. The case of Reshma Kumar & Ors. (Supra) as relied upon by the learned Government Advocate is found to be not applicable, inasmuch as, the same was referred to a larger bench by the Apex Court. At the same time, the case of Sh. Lalfamkima (Minor)(Supra) relied upon by the respondent is also found to be inapplicable, since the appeal was filed by the claimant for enhancement of the awarded amount. Moreover, it was a case of 75% permanent disability and not a case of death. Undisputably, in a case of permanent disability, the factors to be considered and the criteria for awarding compensation will not similar. 24. Coming to the present case, it may be noticed that it is a case of death on account of electrocution and not a case of permanent disability. The State has filed the appeal by claiming no responsibility for the accident. However, as already discussed and held in the foregoing paragraphs, the cause of the death 5 of the deceased was due to electrocution and that there are evidence to establish the same. Even under the principles of "strict liability", the State and its instrumentalities will be liable to compensate the family of the victim in a case of such nature. Insofar as, the amount of compensation awarded by the learned Trial Court, it may be noticed that even going by the Minimum Wages Act, 1948, the victim was about 18 (eighteen) years of age at the time of the accident and was engaged by the PW-2 at a daily rate of Rs. 150/- and therefore, it cannot be said that the award is excessive. By roughly considering his monthly income to be about Rs. 3,750/-, by accounting 25 working days in a month with Rs. 150/- as his daily wage and multiplying his annual income with 16 as the multiplier, the amount awarded by the learned Trial Court is not found to be excessive. By roughly considering his monthly income to be about Rs. 3,750/-, by accounting 25 working days in a month with Rs. 150/- as his daily wage and multiplying his annual income with 16 as the multiplier, the amount awarded by the learned Trial Court is not found to be excessive. The respondent has however not filed any appeal seeking enhancement of the awarded amount and therefore, I am not inclined to enter into the question of enhancement. 25. In the result, upon considering the case in its entirety, I do not find any merit in the appeal and the same is accordingly dismissed. Registry shall send back the LCR immediately.