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2021 DIGILAW 532 (JK)

Jamal-ud-Din Gujjar v. State

2021-10-07

SANJEEV KUMAR

body2021
JUDGMENT : Sanjeev Kumar, J. 1. The petitioners are unfortunate parents of one Parvez Ahmad Gujjar, aged 12 years, who got electrocuted on 9th June, 2008 when he incidentally touched the standing green tree touching electricity transmission line. On the allegation that 33 KV transmission line maintained by the Department of Power Development was touching a green tree in village Amkoot Sherbibi, which created a short circuit in which the son of the petitioners died when he came in contact with the said tree. FIR came to be registered in Police Station, Banihal against the officials of PDD. The police, after investigation, proved the case under Section 304-A RPC against the officials of PDD and presented the challan before the competent Court of law. The accused persons- PDD officials were, however, later on acquitted by the trial Court in the absence of evidence. 2. Having lost their son due to electrocution, the petitioners filed the instant petition claiming, inter alia, a direction to the respondents to pay appropriate compensation to them on account of untimely death of their son due to electrocution. The petitioners placed reliance upon the FIR, challan as also the medical opinion contained in the post mortem report. 3. The respondents have filed their objections in which they have denied that the accident has taken place due to their negligence. It is submitted by the respondents that the death of son of the petitioners occurred due to Cardio Respiratory Arrest besides electric shock and, therefore, the cause of death cannot be attributed to the negligence of the respondents. It is suggested by the respondents that in case this Court finds the petitioners entitled to any compensation, the same is liable to be paid strictly as per the Government Order No. 328- PDD/2011 dated 24.11.2011 and the petitioners are not entitled to compensation more than Rs. 3.00 lac. 4. Having heard learned counsel for the parties and perused the record, I am of the view that registration of FIR against the PDD officials, presentation of challan by the police after having proved the case against them and the medical opinion on record clearly demonstrate that the cause of death of son of the petitioners was due to the negligent act of the officials of PDD who had failed to take due care and caution in maintaining the electric line in question. The maintenance of electric lines would include cutting and pruning of trees, for, there is likelihood of such trees and their branches coming into contact with live wires during rainy season or otherwise. The danger of these green trees touching the live wires and creating short circuit cannot be ruled out. The son of the petitioners, who was a nomad roaming in the forest along with his livestock, unfortunately came in contact with such tree. Apart from being vicariously liable for the negligent acts of its employees, who are maintaining and distributing the electricity through transmission lines are essentially dealing with a dangerous activity which, having regard to its nature, is hazardous, are liable to compensate the petitioners on the principle of strict liability. In that view of the matter, it is the duty of the respondents to take all care and caution to prevent any mishap. 5. Similar question came up for consideration before the Division Bench of this Court in the case of Abdul Aziz Bhat and Ors. vs. State of Jammu and Kashmir, 2013 (III) SLJ 786. The Division Bench of this Court, after discussing the case law on the point in paragraph 2.2, concluded thus: "2.2 A Constitution Bench of Hon'ble the Supreme Court in the case of M.C. Mehta (supra), after referring to the aft-quoted principles laid down by House of Lords in Rylands v. Fletcher, (1868) LR 3 HL 330, has proceeded to hold that the Court must move with the march of time and evolve principles befitting the cause of justice and that law has to grow in order to satisfy the needs of the fast changing society. It cannot afford to remain static. Keeping in view the aforesaid backdrop their Lordships opined as under:- “We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non- delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arsing on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. ......This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. (Emphasis added)" A perusal of the aforesaid para in unmistakable terms shows that a hazardous or an inherently dangerous activity can be tolerated only on the condition that such an enterprise would indemnify all those who suffer on account of carrying on of such dangerous activity, regardless of whether it is carried on with reasonable and due care. (Emphasis added)" A perusal of the aforesaid para in unmistakable terms shows that a hazardous or an inherently dangerous activity can be tolerated only on the condition that such an enterprise would indemnify all those who suffer on account of carrying on of such dangerous activity, regardless of whether it is carried on with reasonable and due care. Therefore, even in a case where due care and caution had been taken but on account of hazardous or inherently dangerous activities death or injuries have resulted, then indemnification is imperative. These principles have found full support from the view expressed by another Constitution Bench in Charan Lal Sahus case (supra). Again in the case of s these principles have been followed and applied as is evident from perusal of para 8 and 11 of the judgment which are quoted below in extenso:- "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". 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. 11. The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. { 2001 (2) SCC 9 }. (Emphasis added)" 6. Following the dictum of law laid down in the aforesaid judgment of the Division Bench, I have no doubt in mind that the petitioners have made out a case for indulgence and for issuance of direction to the respondents to pay adequate compensation for the loss of their young son. 7. Having regard to the policy of payment of ex-gratia relief to the Departmental or non-Departmental persons killed or grievously incapacitated due to electric related incidents promulgated vide Order No. 328- PDD/2011 dated 24.11.2011, the petitioners would be entitled to payment of lump-sum compensation of Rs. 3.00 lac. Even if this Court adopts the guidelines given in the aforesaid Government Order, the petitioners would become entitled to payment of Rs. 3.00 lac as compensation w.e.f. the date of accident i.e. 09.06.2008 and, therefore, the said amount would also become payable along with interest. 8. Having ringside appraisal of the facts and circumstances of the case and having been satisfied that the death of son of the petitioners occurred due to negligence on the part of the respondents, this petition is allowed. The petitioners are held entitled to compensation of Rs. 3.00 lac along with interest at the rate of 6% interest per annum, to be calculated from 09.06.2008 till it is actually paid to the petitioners. It is made clear that in case the compensation awarded is not paid by the respondents within eight weeks from today, the amount shall become payable along with interest @ 9% per annum. 9. Disposed of accordingly.