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2021 DIGILAW 203 (JK)

State of J&K v. Parbat Singh

2021-04-27

JAVED IQBAL WANI

body2021
JUDGMENT : 1. Appellants, State of Jammu and Kashmir and others, impugn in this Civil First Appeal the judgement and decree dated 31.05.2007, passed by the Court of Additional District Judge, Ramban (for short 'trial court') in a Civil Suit bearing File No. 01/Civil Sh. Prabat Singh and others v. State of J&K and others, directing the appellants, State of J&K, to pay to the respondents herein compensation in the amount of Rs. 2,29,000/- along with 9% interest pendent lite and 6% thereafter till realization of decretal amount, on the grounds made mention of therein. 2. A civil suit, as is coming forth from perusal of the file, was filed by respondent no. 1, being the natural guardian of respondents nos. 2 to 5 for recovery of Rs. 5.00 lakhs as compensation, averring therein that Smt. Chinar Devi-wife of respondent no. 1 and mother of respondents 2 to 5 on 14.04.2001 while climbing a pear tree to pick up fruit for her personal consumption, got electrocuted in Village Inyar coming in contact with High Tension Electric Line touching the said tree. It is the case of the respondents (plaintiffs) that the deceased died due to negligence of the appellants as the Electric Department had fixed the High-Tension Line in village Inyar ignoring the specifications and standing instructions for the erection of the High-Tension live lines. 3. Appellants, State of Jammu and Kashmir, resisted the plaint of respondents before the Trial Court on the ground that high-tension line in question exists on the same route for more than thirty years, having adequate ground clearance and trees are also at adequate distance and, thus, it was denied that 11 K.V. line was touching the trees. However, appellants admitted the accident but denied that they are liable to pay compensation. 4. The trial court, in view of pleadings of parties, framed the following issues for determination: 1. Whether the deceased Chinar Devi Died on 14.07.2001 at Village Inyar, due to electrocution in view of the negligence of the defendants? OPP. 2. In case issue no. 1 is proved in affirmative, what compensation the defendants are liable to pay to the plaintiff? OPP. 3. Relief. 5. Respondents/plaintiffs produced and examined three witnesses before the trial court; besides plaintiff no. 1. Appellant-State of Jammu & Kashmir also produced two witnesses in support of its stand. OPP. 2. In case issue no. 1 is proved in affirmative, what compensation the defendants are liable to pay to the plaintiff? OPP. 3. Relief. 5. Respondents/plaintiffs produced and examined three witnesses before the trial court; besides plaintiff no. 1. Appellant-State of Jammu & Kashmir also produced two witnesses in support of its stand. By impugned judgement and decree, the Trial Court found respondents entitled to receive compensation of Rs. 2,29,000/- along with 9% interest pendent lite and 6% till final realization of decretal amount. 6. I have heard learned counsel for parties, perused the record and considered the matters. 7. Learned counsel for appellants, State of Jammu & Kashmir, in order to strengthen the case, set up in appeal on hand, has stated that the Trial Court has not appreciated the case in its right and proper perspective inasmuch as statement of witnesses produced by respondents could not have been relied upon on the ground of the impossibility of ocular account. It is submitted that at the time of occurrence, the witnesses could not have been present at the place of occurrence, which fact is clear from the postmortem report. According to the report postmortem has been conducted on 15.07.2001 at 9.30 am which suggest that the accident took place at 16.00 to 17.00 hours before the postmortem which means that the accident took place at about 5.00 pm on 14.7.2001, whereas the PW witness, namely, Jai Singh, the cousin of claimant, in his cross examination has stated that he reached the site of accident at about 2.00 to 3.00 pm. It is also contended that the evidence produced by respondents is concocted and the fact is that deceased must have died because of bending of the tree towards the HT line especially on the ground as such no fault or negligence for maintaining the 1 KV line can be attributed to the appellants. It is also submitted that the tree is a growing living body and until or unless checked by artificial means, grows continuously and the plaintiffs instead of checking the growth of the tree allowed it to grow after laying of the line and the attempt of the deceased to pick up the fruit from a grown tree under the lines construes a misadventure. The resultant death by the yielding of the branches of tree on the wires cannot be attributed to be the negligence of the department towards the maintenance of transmission lines. It is also stated that there is no record of tripping of the line which would have tripped while coming in contact with a person or tree and the line was having horizontal clearance from the tree as per the rules. It is also submitted that no documentary evidence has been produced in support of the income of the deceased in the plaint. 8. The Respondents have filed the cross objections/appeal against the judgement and decree dated 31.05.2007 and have prayed that the judgement may be modified by awarding total compensation of Rs. 4,45,000/- with interest @ 12% pendent lite till realization on the ground that the Trial Court, instead of applying the multiplier of 18', has applied multiplier of 9' while assessing the compensation as Rs. 2,16,000/- and there was no justification in awarding the compensation less than the respondents are entitled to. Moreover, it is also averred in the cross objections that it is settled principle of law that even in case of fatal accident caused due to the negligence of State authorities the compensation is to be assessed and calculated in terms of multiplier method provided under the Motor Vehicle Act, 1988, therefore, the respondents are entitled to much higher compensation than awarded by the trial court. 9. Given the submissions made by learned counsel for parties, and the record on the file as also impugned judgement and decree dated 31.05.2007, perusal whereof reveals that the Trial Court, while deciding Issue no. 1, i.e., whether the deceased Smt. Chinar Devi died on 14.07.2001 at Village Inyar, due to electrocution in view of the negligence of the defendants, discussed in detail statement(s) of witnesses produced by the parties before it and after taking into consideration all facets of the matter, has decided Issue no. 1 in favour of the respondents herein and against the appellants. As is conspicuous from perusal of the record as also impugned judgement that there was sufficient evidence on record in the shape of post mortem report, police report and statement of witnesses to demonstrate that deceased Chinar Devi died on 14.07.2001 at Inyar due to electrocution. 10. 1 in favour of the respondents herein and against the appellants. As is conspicuous from perusal of the record as also impugned judgement that there was sufficient evidence on record in the shape of post mortem report, police report and statement of witnesses to demonstrate that deceased Chinar Devi died on 14.07.2001 at Inyar due to electrocution. 10. In a Welfare State it is, otherwise, responsibility and bounden duty of the functionaries of the Government/State that the citizens do not fall prey to any mishap due to lackadaisicalness on their part inasmuch as legal position being settled by the Supreme Court in its slew of decisions that anyone generating, transmitting, supplying or using electric energy of high voltage, is required under law, to ensure that such energy was not transmitted or discharged, unless requisite measures had been taken to prevent its uncontrolled escape that may injure, impair or take away life or property of any citizen. Any omission in preventing discharge of high voltage electric energy by anyone engaged in the activity of supplying such energy is liable to compensate for the damage caused because of uncontrolled escape of such energy. 11. Insofar as calculation and entitlement of compensation is concerned, with respect whereof Issue no. 2 was framed by the Trial Court. Perusal of record as also impugned judgement discloses that the deceased died due to electrocution. It has come in the evidence that the live electric wire was passing through the branches of the tree and it was due to the negligence of the Power Development Department that the deceased had died and accordingly the Issue no. 1 was decided in favour of the respondents herein and against the appellants. While deliberating upon the Issue no. 2, the Trial Court has elaborately dealt with the case based upon evidence and has clearly held that the carelessness on the part of the field staff of the Power Development Department has caused the death of the deceased. It is held by the trial court that once accident is admitted, as in the instant case, the appellants cannot escape the liability. Lastly it was observed that since field staff of the Power Development Department were employees of the appellants, the State is vicariously liable for their negligence in discharge of their duties. 12. It is held by the trial court that once accident is admitted, as in the instant case, the appellants cannot escape the liability. Lastly it was observed that since field staff of the Power Development Department were employees of the appellants, the State is vicariously liable for their negligence in discharge of their duties. 12. Insofar as quantum of compensation payable to the respondents is concerned, it is mentioned in the judgement that the age of deceased at the time of accident was 30 years, and the earning capacity and contribution, she was making to the family of her income was Rs. 3000/- per month from her pursuits of agriculture and rearing of cattle at the time of her death. The statement so recorded has not been rebutted or ever controverted nor subjected to any cross examination. The evaluation of contribution of a household person to the family, cannot be ignored which has been taken into account by the trial court upon well founded considerations. Such conclusion cannot be disturbed. 13. The entire case set up in cross objection filed is based on the premise that the trial court ought to have adopted the mechanism of the Motor Vehicles Act for adjudication of the suit. Contention of the appellants herein is that the trial court was required to have applied the provisions of the Motor Vehicle Act mutatis mutandis to the facts and circumstances of the case. The aforesaid contention of learned counsel for the appellants is misconceived inasmuch as misplaced. The controversy before the trial court indisputably was of a civil nature in a suit wherein damages had been claimed on account of electrocution of the deceased. Although, the trial court might have borrowed the propositions of the Motor Vehicles Act to compute and award the damages, yet in law it cannot per se be said that the trial court ought to have strictly followed, adopted and applied the provisions of the Motor Vehicles Act while adjudicating the civil suit for damages. The trial court has rightly passed the judgement and decree dated 31.05.2007 in appreciation of evidence and cannot be substituted by a separate view in these cross objections. 14. Keeping in view above circumstances and analysis, the trial court holding the respondents entitled to Rs. The trial court has rightly passed the judgement and decree dated 31.05.2007 in appreciation of evidence and cannot be substituted by a separate view in these cross objections. 14. Keeping in view above circumstances and analysis, the trial court holding the respondents entitled to Rs. 2,29,000/- as compensation along with 9% interest pendent lite and 6% thereafter till realization of decretal amount, does not require interference and as a corollary thereof appeal is liable to be dismissed. Accordingly, dismissed. In view of above analysis, the Cross Objections/Appeal shall also stand dismissed. 15. The Registry shall retain the scanned record of the trial court and shall send a copy of this judgement to the court below.