Zothanpuia (minor) v. Secretary, Power & Electricity Department, Government Of Mizoram, Aizawl
2020-02-07
SONGKHUPCHUNG SERTO
body2020
DigiLaw.ai
JUDGMENT S Serto, J. - This is a petition under Article 226 of the Constitution of India, filed by a minor who had suffered electric burn over his body, from an overhead power supply line, through his mother as the guardian, praying for issuance of a writ, order or direction in the nature of mandamus directing the respondents to give compensation amounting to Rs. 25 lakhs for the suffering he have been going through due to the burn, and the financial burden his family had to bear due to the expenses incurred for his treatment, along with interest @ 12% p.a from the date of the accident. 2. Heard Mr. Jonathan l. Sailo, learned counsel for the petitioner and Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the State respondents. 3. The case of the petitioner as submitted by his learned counsel is summarized as follows; (i) That on 13.11.2012 at about 1:10 P.M, when he was only 9 years old, he came into contact with a naked electric wire which was hanging low and loosely over the roof top of Smti. Lallianmawii of High School Veng, Mamit while he was playing with his friend-master Lalrinchhana. Due to the same, he was burned severely and extensively all over his body particularly over both his hands, arms and left leg. The burnt was so severe that his skin was burned off and the muscle tissues were damaged and dead. Soon after the accident he was taken to the Civil Hospital at Mamit but since the burns suffered by him were so severe he was rushed to Aizawl for better medical treatment on the same day. On reaching Aizawl he was taken to Presbyterian Hospital, Durtlang. During his treatment his right arm was amputated just below his arm pit. The Doctor at Durtlang Presbyterian Hospital diagnosed that he has suffered 36% Full Thickness Electric Burns and Gangrene of the Right Upper Limb with Multiple Ulcers. In the course of the treatment, the Doctor operated him for Wound Debridement (removal of dead and damaged tissues) and STSG (Spilt-Thickness Skin Graft) on two occasions. Thereafter, he was discharged on 13.02.2013 i.e after 3(three) months of hospitalization. On 28.05.2013 i.e. after about three months he was once again admitted in the same hospital and was diagnosed with Scar Contracture of Left Elbow and Left knee.
Thereafter, he was discharged on 13.02.2013 i.e after 3(three) months of hospitalization. On 28.05.2013 i.e. after about three months he was once again admitted in the same hospital and was diagnosed with Scar Contracture of Left Elbow and Left knee. Operation for Scar Contracture, Released of Left Elbow and Skin Graft was conducted. Thereafter, he was released from the hospital on 15.06.2013 i.e. after 18 days of hospitalization. On 12.06.2013, a Medical Board for disability certificate of the said hospital issued a certificate being No. 88 which certify that the petitioner is a case of Above Elbow Amputee (Right), Contracture (Left) Elbow and he is a person with 85% permanent physical disability with the remarks added-condition not likely to improve. After almost a year thereafter, he was once again admitted in the same hospital on 29.03.2014 with complaint of Skin Contracture of Left knee and ulcer of Left knee. The Doctor diagnosed him with Contracture of Burn Left Knee and, surgical operation was conducted for Released Scar Excision and STSG (Spilt- Thickness Skin Graft). Thereafter, he was discharged on 11.04.2014 i.e after 13 days of hospitalization. (ii) That after the incident the petitioner and his family members had gone through tremendous physical and mental agony besides having suffered financial hardship due to the hospitalization and treatment for which a sum of Rs. 2,45,240/- was spend. (iii) That the accident was reported to Mamit Police Station immediately after it had occurred and the Police Station on received of the same entrusted one S.I, Mr. Thangriliana to conduct enquiry. The Officer conducted an enquiry and as per his report dated 13.11.2012, the accident occurred due to the low height of the live electric line passing over the building belonging to Smt. Lianmawii, w/o Zosangliana. That the President of the Village Council of the locality where the accident took place i.e. Chhim Veng, Mamit also issued a certificate stating that the petitioner suffered from electric burnt from the electric line passing over the building belonging to Smt. Lianmawii, w/o Zosangliana. The certificate also mentioned that at the same place on 13.07.2012 another boy namely Sh. Lalnunmawia, s/o Lalsailova had also suffered electric burnt. (iv) That though report was submitted to the concerned authorities of the Government, about the incident, no positive action was ever taken for extension of financial assistance or for giving of compensation to him.
The certificate also mentioned that at the same place on 13.07.2012 another boy namely Sh. Lalnunmawia, s/o Lalsailova had also suffered electric burnt. (iv) That though report was submitted to the concerned authorities of the Government, about the incident, no positive action was ever taken for extension of financial assistance or for giving of compensation to him. His parents being poor and ignorant and settled at a far flung area of the State did not know what to do till they came into contact with one of their relatives in Aizawl in the month of March, 2018. As advised by the relative, they travelled to Aizawl on 09.04.2018 and contacted an Advocate and only then a notice under section 80 of CPC, dated 12.04.2018, was issued to the respondents No. 1 & 2. However, in spite of the notice which demanded compensation as given herein below no positive response was received from the respondents, therefore, he has been compelled to come before this Court by filing the present writ petition; "A. Non-Pecuniary Damages (General Damages) (i) Damages for pain, suffering, trauma and mental agony =Rs. 4 lakh (ii) Loss of expectation of life (shortening of normal longevity) =Rs. 3 lakh (iii) Loss of normal amenities =Rs. 3 lakh (iv) Loss of marriage prospects =Rs. 2 lakh Total =Rs. 12 lakh B. Pecuniary Damages (Special Damages) (i) Medical Expenses =Rs. 2.5 lakh (including hospitalization, Doctor's fees, medicines, surgical operations, nurse treatment, skin grafting, transportation, laboratory charges, hospital diet and miscellaneous expenditures) (ii) Loss of future earning on account of permanent disability =Rs. 5 lakh (iii) Future treatment expenses =Rs. 5 lakh Total =Rs. 12.5 lakh (including prosthetic arms, crutches, special chair & table etc.) Grand Total (A+B) =Rs. 24,50,000/- (Rupees twenty four lakhs fifty thousand). Unfortunately, while the petitioner have been eagerly waiting for a response, the respondents have not taken any steps whatsoever till date. Copies of the Notice dated 12/04/2018 and receipt dated 16/04/2018 are at Annexures-20 & 24 respectively." (v) That since his pain and agony did not end, on 06.09.2018, he and his mother again travelled to Aizawl for medical check-up in the same hospital and it was found that he had suffered low back ache, pain on above elbow amputee right hand and flexor contracture elbow release and for that skin graft and medication were prescribed.
Thereafter, also on 05.10.2018 he was once again examined by the same Doctor in the same hospital and he was advised for "Above Elbow Prosthesis". 4. The learned counsel of the petitioner submitted that as per the provisions of Rule-29(1) of Indian Electricity Rules, 1956 all electric supply lines and apparatus should be constructed, installed, protected, worked and maintained in such a manner so as to ensure safety of human beings, animals and property. And as per the provisions of the Rule-30(1) of the same rule it is mandated that the supplier of electricity should ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control which are on consumers premises, are in safe condition in all respect and the supplier must take due precaution to avoid danger occurring on such premises from such supply lines, wires, fittings and apparatus. The learned counsel further submitted that these provisions of the Indian Electricity Rules are mandatory as they deal with general safety requirement provided under Chapter-IV of the same rule. However, the respondents failed to take due care of the naked electric wire passing over the house of Smt. Lianmawii, w/o Zosangliana, leaving it hanging loosely even hanging to that extent that a child of 9 years old could easily come into contact with it. Therefore, it can be concluded that the respondents were negligent and did not take care of their responsibility as mandated under the provisions of the above stated rules. The learned counsel further submitted that as per the Rule-80(1) of the Indian Electricity Rules, 1956 all high or extra-high voltage overhead line passing above or adjacent to any building or part of a building must have on the basis of maximum sag a vertical clearance of not less than 3.7 meters (12.1391 feet) above the highest part of the building immediately under such lines. But the fact that the petitioner who was a short and small boy of 9 years came into contact with the electric wire and suffered severe burnt shows that the electric wire or line passing over the building of Smt. Lianmawii was hanging low and naked and not at the minimum height as prescribed or mandated by the rules. Therefore, this itself shows that the respondents were grossly negligent and were not bothered about the risk to life of human beings from their supply lines.
Therefore, this itself shows that the respondents were grossly negligent and were not bothered about the risk to life of human beings from their supply lines. The learned counsel also submitted that the fact that the respondents were negligent can also be seen from another incident which occurred at the same place on 13.07.2012. On that day, one Lalnunmawia, s/o Lalsailova of the same locality also came into contact with the electric line passing over the house of Smt. Lianmawii, w/o Zosangliana and as a result suffered serious injuries on his right side head, right neck and both legs and he was immediately admitted to the Civil Hospital, Mamit under unconscious condition. On receipt of the report Mamit Police Station conducted an enquiry and submitted a report on 13.07.2012, but in spite of the report nothing was done by the respondents to prevent any future accident of such kind. Unfortunately, on 13.11.2012 the incident in which the petitioner got serious burns occurred. Therefore, the respondents are absolutely liable to pay compensation as claimed by the petitioner whose life will never be the same again. In support of his submission stated above, the learned counsel referred to para-8 & 12 of the judgment of the Hon'ble Supreme Court passed in the case of M.P Electricity Board -versus- Shail Kumari & Others, (2002) 2 SCC 162 . The learned counsel also referred to para-15, 16 & 20 of the judgment passed by the Hon'ble Supreme Court in the case of Raman Versus- Uttar Haryana Bijli Vitran Nigam Limited & Others, (2014) 15 SCC 1 . The contents of the paragraphs of the two judgments referred to by the learned counsel are given herein below one after the other; (i) M.P Electricity Board -versus- Shail Kumari & Others, para- 8 & "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. But 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. 12. In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that; (SCC p. 421, para 31) "Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher." (ii) Raman versus- Uttar Haryana Bijli Vitran Nigam Limited & Others, para- 15, 16 & 20. "15. Having regard to the age of the boy as 5 years at the time of the incidence and longevity of life of Indian citizen as 70 years, the remaining 65 years the appellant is required to suffer from mental agony and hardship. He is virtually dead wood and further he has to undergo continuous pain and suffering at the time of attending the nature's call, sitting, standing, walking and sleeping. He has to face difficulties on all walks of life, which is worse than death. His childhood is lost, the marital status and happiness is lost, which cannot be compensated in terms of money. He has to undergo the great ordeal and agony throughout his life.
He has to face difficulties on all walks of life, which is worse than death. His childhood is lost, the marital status and happiness is lost, which cannot be compensated in terms of money. He has to undergo the great ordeal and agony throughout his life. He requires a permanent attendant throughout his lifetime to assist him for all purposes, to whom the appellant is required to pay minimum at an average of Rs.10,000/- to Rs.15,000/- p.m. and it is a hard reality that the cost of living in our country is also steadily increasing day by day. This aspect of the matter should have been taken into consideration by the Division Bench of the High Court at the time of reducing the compensation awarded to the appellant. 16. The learned Single Judge of the High Court has awarded compensation keeping all these aspects of the matter and has applied the guiding principle of multiplier method after adverting to the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr[6]. for the purpose of computation of just and reasonable compensation in favour of the appellant which method should not have been applied to the case on hand, particularly, having regard to the statutory negligence on the part of the respondents 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 the residential area. This Court in the case of Dr. Balram Prasad v. Kunal Saha[7], has deviated from following the multiplier method to award just and reasonable compensation in favour of the claimant in a medical negligence case. The same principle will hold good in the case on hand too. The following case law is followed by this Court in the above referred case, the relevant paragraphs are extracted herein to award just and reasonable compensation in favour of the appellant: "68. ........ three-Judge Bench decision of this Court in Indian Medical Assn. v. V.P. Shantha, wherein this Court has categorically disagreed on this specific point in another case wherein "medical negligence" was involved. In the said decision, it has been held at para 53 that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. ********* 99.
v. V.P. Shantha, wherein this Court has categorically disagreed on this specific point in another case wherein "medical negligence" was involved. In the said decision, it has been held at para 53 that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. ********* 99. In Govind Yadav v. New India Insurance Co. Ltd. this Court at para 15 observed as under which got reiterated at SCC pp. 639-40, para 13 of Ibrahim v. Raju: "15. In Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 ] this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below: 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. [pic]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 service; 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 guesswork may be inevitable. That may be so. XXX xxx xxx 46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job.
There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so. XXX xxx xxx 46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. 47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries, in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and- fast rule, however, can be laid down therefor.' ******** 101. .......................... he has also strongly placed reliance upon the observations made at para 170 in Kumar Ganguly's case referred to supra wherein this Court has made observations as thus: (SCC p. 282 Malay "170. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.)" ********** 103.1. In Ningamma's case, this Court has observed at para 34 which reads thus: (SCC p. 721) "34. .......in our considered opinion a party should not be deprived from getting 'just compensation' in case the claimant is able to make out a case under any provision of law.
(See Livingstone v. Rawyards Coal Co.)" ********** 103.1. In Ningamma's case, this Court has observed at para 34 which reads thus: (SCC p. 721) "34. .......in our considered opinion a party should not be deprived from getting 'just compensation' in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award 'just compensation' irrespective of the fact whether any plea in that behalf was raised by the claimant or not." ********* 112. The claimant has also placed reliance upon Nizams Institute of Medical Sciences v. Prasanth S.Dhanankas, (2009) 2 SCC 688] case in support of his submission that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under: "88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The 'adequate compensation' that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned." 20. Further, in the case of Rekha Jain v. National Insurance Co. Ltd.[8] this Court at paras 34 and 35, with regard to the quantum of damages, has held as under: "34..........'24. .In deciding on the quantum of damages to be paid to a person for the personal injuries suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him.
.In deciding on the quantum of damages to be paid to a person for the personal injuries suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. [ K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr, (2004) ILR(Kar) 2471] 35.........'26.Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame." 38. In Fowler v. Grace,1970 114 SolJo 193 (CA)] Edmund Davies, L.J., has said that: "It is the manifest duty of the Tribunal to give as perfect a sum as was within its power'. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money." 39.....In Mediana, in re, (1900) AC 113 (HL)] , it is held at para 32 which is extracted as herein ; '32....In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident.
It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment.' [ K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr, (2004) ILR(Kar) 2471] 41. McGregor on Damages (14th Edn.) at Para 1157, referring to the heads of damages in personal injury actions, states as under: "The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items viz. the loss of earnings and [pic]other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have subdivided the non-pecuniary losses into three categories viz. pain and suffering, loss of amenities of life and loss of expectation of life. Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure.' The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases." (emphasis supplied) 42. In R. Venkatesh v. P. Saravanan the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated.
In R. Venkatesh v. P. Saravanan the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In para 9 of the judgment, the Court held as under: (Kant LJ p. 415) '9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.' 43. Lord Reid in Baker v. Willoughby has said: (AC p. 492A) "... A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned...." (emphasis in original). 5. The learned counsel further submitted that on the quantum of compensation that may be given to the petitioner, it may be recalled that in a similar case being W.A No. 21/2017 a Division Bench of this High Court had granted a sum of Rs. 20 lakhs with interest at the rate of 6% p.a. Therefore, the petitioner may also be granted the quantum of compensation as claimed. The learned counsel also referred to the two judgments of the Hon'ble Supreme Court passed in the case of State of Himachal Pradesh & Others versus- Naval Kumar, (2017) 3 SCC 115 , the relevant paragraph- 16, and the judgment passed in the case of Rekha Jain -versus- National Insurance Company Limited & Others, (2013) 8 SCC 389 , the relevant paras-30, 40 & 56.
The contents of the two judgments referred to above are reproduced herein below one after the other; (i) State of Himachal Pradesh & Others versus- Naval Kumar, para-16. "16. In our considered view, taking into consideration the facts and circumstances of the case such as respondent's family background, his age (8 years), nature of permanent disability suffered by the respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the respondent is held entitled for a total lump sum compensation of Rs.90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs.1,25,00,000/- awarded by the High Court. (ii) Rekha Jain -versus- National Insurance Company Limited & Others, para-30, 40 & 56. "30. In R.D. Hattangadi v. Pest Control (India) Private Limited and Ors.[2], speaking about the heads of compensation, this Court has held thus: "9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: i. medical attendance; ii. loss of earning profit upto the date of trial; iii. other material loss. So far non- pecuniary damages are concerned, they may include; i. damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; ii. damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; iii. damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; iv. inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 40.
damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; iv. inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 40. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, distinguished the above two aspects thus: "In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income". 56. In Nizam's Institute of Medical Sciences v. Prasanath S. Dhananka[17],this Court has observed as under: "88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. 90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis- -vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day.
In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied) 91. We can also visualise the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself. 6. Mrs. H. Lalmalsawmi, learned Government Advocate appearing for the State respondents submitted that 11 Kv line passing over the house of Smt. Lianmawii, w/o Zosangliana was installed in 2011 with sufficient height as prescribed in the relevant rules however, the owner of the building extended her building vertically without permission from the competent authority and without informing the electricity department (the respondents) and that reduced the distance between the roof top of the building and the electric wire. Had the respondents or department been informed appropriate action would have been taken and the unfortunate incident would not have happen. The learned counsel further submitted that the construction or extension of the building in question (place of occurrence) by the owner without prior information to the respondents was violative of the provision of Rule-63 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010. Therefore, the respondents cannot be held responsible for the injuries suffered by the petitioner and the consequence. The learned Government Advocate also submitted that the petition is not maintainable as it was filed after a lapse of 5 years from the date of the incident and, since alternative remedy i.e through a Civil Suit is available.
Therefore, the respondents cannot be held responsible for the injuries suffered by the petitioner and the consequence. The learned Government Advocate also submitted that the petition is not maintainable as it was filed after a lapse of 5 years from the date of the incident and, since alternative remedy i.e through a Civil Suit is available. The learned counsel further submitted that there are disputes of facts in this case as the petitioner is required to discharge his burden of proving his claim that there was negligence on the part of the respondents, therefore, the issues involved cannot be resolved in a writ jurisdiction. The learned Government Advocate finally submitted that there is nothing to show that the accident happened at the same place where an earlier accident had happened, therefore, negligence cannot be readily attributed on the respondents. In support of her above stated submissions, the learned Government Advocate referred to para-6 of the judgment passed by the Hon'ble Supreme Court in the case of SDO, Grid Corporation of Orissa Ltd. Versus- Timudu Oram, (2005) 6 SCC 156 . The contents of the paragraph of the judgment referred is reproduced herein below;. "6. In Chairman, Grid Corporation of Orissa Ltd. (Gridco) and others (supra) with which case these appeals were listed for hearing but could not be heard for want of service this Court took the view that the High Court committed an error in entertaining the writ petitions under Article 226 of the Constitution of India and were not fit cases for exercising the jurisdiction under Article 226 of the Constitution of India. It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellant had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the w\ire.
The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the w\ire. In view of the defence raised and the denial by the appellants in each of the cases, the appellants deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission line and yet the wires had snapped because of the circumstances beyond their control or unauthorised intervention of third parties. Such disputed questions of fact could not be decided in exercise of jurisdiction under Article 226 of the Constitution of India. That the High Court could not come to the conclusion that the defence raised by the appellants had been raised only for the sake of it and there was no substance in it. In para 6 it was observed thus:- "In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that "admittedly/prima facie amounted to negligence on the part of the appellants." The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant I had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence or the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners.
These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No.5229 of 1995." 7. Regulation-12(1), 13(1) & 61(1) & (2) of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 provides as follows; "12. General safety requirements pertaining to construction, installation, protection, operation and maintenance of electric supply lines and apparatus;- (1) All electric supply lines and apparatus shall be of sufficient rating for power, insulation and estimated fault current and of sufficient mechanical strength, for the duty cycle which they may be required to perform under the environmental conditions of installation, and shall be constructed, installed, protected, worked and maintained in such a manner as to ensure safety of human beings and property. 13. Services lines and apparatus on consumer's premises:- (1) The supplier shall ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control, which are on a consumer's premises, are in a safe-condition and in all respects fit for supplying electricity and the supplier shall take precautions to avoid danger arising on such premises from such supply lines, wires, fittings and apparatus. 61. Clearances from buildings of lines of voltage exceeding 650 V:- (1) An overhead line shall not cross over an existing building as far as possible and no buildings shall be constructed under an existing overhead line.
61. Clearances from buildings of lines of voltage exceeding 650 V:- (1) An overhead line shall not cross over an existing building as far as possible and no buildings shall be constructed under an existing overhead line. (2) Where an overhead line of voltage exceeding 540 V passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building under such line, of not less than- (i) for lines of voltage exceeding 650 Volts -3.7 meters upto and including 33,000 volts (ii) for lines of voltages exceeding 33 KV -3.7 meters plus 0.30 meters for every additional 33,000 Volts or part thereof." The above provisions of the regulation makes it amply clear that an electric supply line or over head line should not cross an existing building as far as possible but if it must a minimum height of 3.7 meters should be maintained for line of voltage exceeding 650 volt and it is the responsibility of the supplier to ensure that such height is maintained and the installation is constructed properly and protected, worked and maintained so as to ensure safety of human beings, animals and property. 8. . Rule-63 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 provides as follows; "63.
8. . Rule-63 of the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 provides as follows; "63. Erection or alteration of buildings, structures, flood banks and elevation of roads; (1) If at any time subsequent to the erection of an overhead line, whether covered with insulating material or not, any person proposes to erect a new building or structure or flood bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building, or structure or flood bank or road, any permanent or temporary addition or alteration, he and the contractor whom he employs to carry out the erection, addition or alteration, shall, give intimation in writing of his intention to do so, to the supplier or owner and to the Electrical Inspector and shall furnish therewith a scale drawing showing the proposal building, structure, flood bank, road or any addition or alteration and scaffolding thereof required during the construction." The above provision of the regulation of the 2010 also makes it clear that a person who is intending to build a house below the already installed electric line is obligated to inform the supplier or owner of the electricity. However, this provision has to be read together with the other provisions of the same regulation. 9. . I have considered the submissions of both the learned counsels, the facts and circumstances of the case and the relevant law. There is no dispute on the claim of the petitioner that he suffered from electric burn due to his accidental contact with a loosely hanging electric supply line passing over the building of Smt. Lianmawii, w/o Zosangliana on 13.11.2012. The fact that the electric wire was hanging loosely over the building of Smt. Lianmawii, w/o Zosangliana is also not in dispute and in fact it is supported by the report of Mamit Police Station. The only dispute of fact raised by the respondents is that the owner of the building where the incident happened had vertically extended her building after the electric supply line passing over her building was installed and that had reduced the distance between the roof top of the building and the electric wire. This contention or dispute of fact raised by the respondents has no basis and it is illogical and unreasonable.
This contention or dispute of fact raised by the respondents has no basis and it is illogical and unreasonable. If the building was extended vertically it would have taken at least months and not few days. Therefore, it could not have escape the view of the neighbours including the employees of the respondents. If it does it would only show their lack of vigilance. Therefore, I find this ground of opposing the claim of the petitioner illogical, unreasonable and futile. Moreover, reading together of the provisions of the regulation shows that an overhead line should not cross over an existing building is the rule and allowing of such crossing when there is no alternative or is unavoidable is the exception. Therefore, the electricity supplier i.e. the respondents in this case are duty bound to have periodic inspection of such lines crossing over the buildings of people to ensure safety of human beings. It is the primary duty of the respondents to ensure safety. An electric wire over somebody's building is expected to be insulated even if it is at the prescribed height. Any prudent mind would have done so taking into account the risk involved. In fact, in this case, it has been submitted that on 13.07.2012 a similar incident had happened at the same place in which a boy got burned by the same electric wire and for that a report was made to the Police Station and pursuant thereto the Police submitted a report to the concerned authorities. Further, it has also been stated that complaints were submitted to the officers of the respondents regarding the incident. Had prompt and appropriate action been taken by the respondents the unfortunate incident in which the petitioner got electric burn on 13.11.2012 could have been avoided. The submission of the learned Government Advocate that it is doubtful that the two incidents happen at the same place because of the mentioned of different names of the owner of the house where the incident occurred in the documents filed by the petitioner in my considered view, holds no water because overall reading of the two reports of the Police regarding the two incidents and certificate issued by the Village Council shows that both the incidents happened at the same place only.
Minor discrepancies can be ignored as all the documents filed by the petitioner has overwhelmingly indicated that the two incidents happened at the same place. Moreover, for overhead electric supply lines passing populated localities, the supplier of electricity owes a duty to the consumers and the public at large to be vigilant and also to be prompt in action. In this case, it is a case of both negligence and lethargy. It is for the respondents to ensure that everyman in the line of duty performs his duty or is attending to the call of duty. The unfortunate incident had happened because of the negligence of the employees of the respondents and for that the respondents are vicariously liable. It is a fact that the life of the young boy will never be the same again. The Doctor had certified that he is suffering from 85% disability. Money can never repay the loss he had suffered and he will continue to suffer in life. The physical and mental agony that he has gone through and he will continue to go through all his life is something that can never be adequately compensated. It is surprising that the respondents have not extended any financial help or assistance in any form when the petitioner has gone through so much of suffering because of the incident. He had been to hospital several times and his documents show that he had spent so much for his treatment and he will still need to spend in the days to come. One can be sure that the expenditure shown is only which can be supported with documents. Besides this, the petitioner's parent's must have spent much more. Therefore, in a welfare State like ours, the respondents should have readily extended at least some financial assistance. It is true that this petition was filed after 5 years had passed since the date of the incident but the respondents instead of taking shelter under the delay of filing the petition should ask themselves why they should have kept quiet for so long when the petitioner was going through so much suffering due to this negligence. In writ proceedings, limitation of time does not strictly apply. Even if it were to apply, the facts and circumstances of the case are sufficient enough reasons for condonation of delay.
In writ proceedings, limitation of time does not strictly apply. Even if it were to apply, the facts and circumstances of the case are sufficient enough reasons for condonation of delay. Further, it is true that the petitioner could have made a more comprehensive claim through Civil Suit but that itself does not bar this Court in exercising writ jurisdiction in this kind of cases. This has been the accepted principle of law and I need not refer to any particular judgment or judgments. 10. . In view of the facts and circumstances of the case which are well supported by documents filed by the petitioner, the conclusions drawn and the reasons given for the same, and the principles of law laid down by the Hon'ble Supreme Court in catena of cases including in the cases cited by the learned counsel of the petitioner, this Court is of the view that the petitioner had suffered the electric burn over his body which led to his physical disability of 85% due to the negligence of the respondents and their employees, therefore, taking into account his age and the extent of suffering and treatment he had gone through and will continue to go through during the life ahead of him, at least a sum of Rs. 25 lakhs should be paid to him as compensation. Accordingly, the respondents are directed to pay a sum of Rs. 25 lakhs as compensation to the petitioner within a period of 2(two) months from the date of receipt of a certified copy of this order. Out of 25 lakhs, a sum of Rs. 15 lakhs should be kept as fixed deposit in a Nationalized Bank in the name of the petitioner, till the time he attends the age of adulthood. The rest of the amount may be given to his guardian i.e his mother who shall use the same in the best interest of the petitioner. Writ petition stands disposed.