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2022 DIGILAW 81 (JK)

Maskeena Bibi v. State of J&K

2022-02-25

JAVED IQBAL WANI

body2022
JUDGMENT : (Javed Iqbal Wani, J.) : 1. Petitioners, in the instant filed under Article 226 of the Constitution of India, implore for the following relief: "In view of the submissions made hereinabove and those to be urged at the time of hearing, it is, therefore, respectfully prayed that the respondents may kindly be directed to pay Rs. 20.00 lacs as compensation to the petitioners by issuing a writ." 2. The relief aforesaid is being sought on the facts detailed out in the petition as under: (I) The husband of petitioner No. 1, namely, Shakeel Ahmad, was working as a daily wager in the Power Development Department, Jammu and was drawing a salary of Rs. 3300/- per month. Besides this, the husband of petitioner No. 1 was a farmer by profession wherefrom he was earning Rs. 20,000/- per month. It is contended that the said deceased Shakeel Ahmad, was only bread earner of the petitioners. (II) It is being stated that on 27.01.2006, the husband of petitioner No. 1, Shakeel Ahmad, joined respondent No. 3, namely, Vijay Kumar, Lineman, to perform his duties and proceeded to Village Palli Tehsil & District Jammu, where electric transformer had gone out of order. (III) It is being next stated that on the instructions of respondent No. 3, the deceased removed the bolts of the transformer, as a result of which, he was electrocuted leading to his death on spot as the electric supply had not been got disconnected by respondent No. 3. The post-mortem conducted revealed the cause of death of the deceased as cardiac arrest following high voltage electric shock. (IV) It is being contended that the death of the deceased was result of negligent act of the respondent No. 3, a Government employee working under respondent No. 1 and 2. An FIR bearing No. 7 of 2006 for offence under Section 304-A RPC at Police Station, Jhajjar Kotli, Jammu, is also stated to have been registered in respect of the incident. 3. Per contra, respondents have filed objections to the writ petition, wherein the contentions raised by the petitioners are being controverted and resisted. It is being contended that as reported by Executive Engineer, Inspection Division, Jammu, the husband of petitioner No. 1, late Shakeel Ahmad helped the Lineman Sh. Vijay Kumar(respondent No. 3)on 27.01.2006 in carrying the chain block to 100 KVA Sub Station at Palli. It is being contended that as reported by Executive Engineer, Inspection Division, Jammu, the husband of petitioner No. 1, late Shakeel Ahmad helped the Lineman Sh. Vijay Kumar(respondent No. 3)on 27.01.2006 in carrying the chain block to 100 KVA Sub Station at Palli. The chain block was unloaded from the scooter and the Lineman (respondent No. 3) proceeded to get the operating rod kept in a nearby house and that while the respondent No. 3 had gone hardly a little distance, he heard a loud noise. 4. It is being stated that the respondent No.3 immediately turned back and found that the deceased to have fallen on ground and bleeding from the head and by the time local people were called, the victim had succumbed. The post-mortem report is admitted to have been issued by the J&K Health Department indicating the cause of death heart failure due to electrocution coupled with injury and intra-cerebellum bleeding. It is being contended that the services of the deceased were being utilized by the Lineman (respondent No. 3) only for the carriage of heavy T&P and was not assigned any job of repair to the electrical system. 5. It is further contended that the fiddling of victim with live wire was on his own and not under the instructions of any employee, as such the department was not at fault. It is being further contended that the deceased never worked in the respondent department in any capacity either as a casual labourer or daily wager. It is further stated that, as reported by the team of officer of the Inspection Division, the deceased had never been instructed or directed to carry out any work and it is unknown as to how victim had come in contact with the live wire and met with electrocution turning down the claim of the petitioners is not sustainable in law and petition deserves to be dismissed. 6. Heard learned counsel for the parties and perused the record on the file. 7. The moot point that begs consideration in the instant matter is as to whether under Article 226, the petitioners being dependents of the deceased will be entitled to the compensation from the respondents and if yes to what extent on account of the death of the deceased due to the electricity mishap in question. 8. 7. The moot point that begs consideration in the instant matter is as to whether under Article 226, the petitioners being dependents of the deceased will be entitled to the compensation from the respondents and if yes to what extent on account of the death of the deceased due to the electricity mishap in question. 8. The admitted position emerging from the pleadings and the record is that the respondent No. 3 had sought assistance of the deceased in the process of fixing/maintenance of faulty electric transformer. It is also an admitted fact that the respondent No. 3, being an employee of the respondent No. 1 and 2, utilized the services of the deceased for the aforesaid purpose on the fateful day. In view of the aforesaid admitted position, even though the primary liability of the incident is upon the respondent No. 3 yet the said liability would be vicarious vis-a-vis respondent No. 1 and 2 as in law it is settled and undisputed principle of law of Torts that master in answerable for every such wrong of his servant as is committed in the course of his service though no express command or privity of master be proved and the wrongful act may not be for the masters benefit. This doctrine of liability of master for the acts of his servant is based on the maxim respondent superior, which means "let the principal be liable" and it puts the master in the same position as if he has done the act himself. The doctrine of sovereign immunity based on common law principle that the king commits no wrong has been held by the Apex court in case titled as "State of Rajasthan Vs. Mst. Vidyawati reported in AIR 1962 SC 933 " not to be applicable in principle or public interest that the State should not be held liable vicariously for the tortuous acts of the servants and that State like any other employer is vicariously liable. 9. Mst. Vidyawati reported in AIR 1962 SC 933 " not to be applicable in principle or public interest that the State should not be held liable vicariously for the tortuous acts of the servants and that State like any other employer is vicariously liable. 9. Keeping in mind the aforesaid legal position, since the deceased has lost his life on account of negligent act of respondent No. 3 done by him in the course of his employment, as such, the petitioners as an aggrieved party would be entitled to invoke the jurisdiction of this court under Article 226 for violation of the fundamental right to life of the deceased and consequently of the petitioners being his dependents for survival, enshrined under Article 21 of the Constitution. 10. The liability cast upon the State in law under law of Torts to compensate the petitioners on account of negligence and carelessness supra would lie within the parameters of "strict liability". Although there are exceptions to the rule of strict liability, yet the Apex court has held in case titled as "MC Mehta Vs. Union of India reported in 1987 (1) SCC 395 ", has held that 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 the 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 Vs. Fletcher. In view of aforesaid legal position and having regard to the facts and circumstances of the face, the respondents are held liable to compensate the petitioners for the death of the deceased. 11. The deceased is stated to be of the age of 33 years and had he died in a motor vehicular accident his heirs would be entitled to compensation under the Motor Vehicles Act in terms of law laid down by the Apex court in case titled as "Lata Wadhwa Vs. State of Bihar, reported in AIR 2001 SC 3218 ". Accordingly the compensation is computed as follows: 1. Loss of income of deceased with future prospects: (a) Monthly salary of deceased =Rs. 3300/- (b) Add future prospects @50% =Rs. 16500/- (refer to (2017) 16 SCC page 680) Therefore, multiplicand is Rs. 4950x12 =Rs. State of Bihar, reported in AIR 2001 SC 3218 ". Accordingly the compensation is computed as follows: 1. Loss of income of deceased with future prospects: (a) Monthly salary of deceased =Rs. 3300/- (b) Add future prospects @50% =Rs. 16500/- (refer to (2017) 16 SCC page 680) Therefore, multiplicand is Rs. 4950x12 =Rs. 59,400/ (c) Multiplier as per Sarla Verma's case, (2009) 6 SCC 121 (age of deceased being 33 year, applicable multiplier is 17) 17x59,400 =Rs. 10,09,800/- (d) 25% deduction keeping in view number of Dependants (10,09,800-25%) =Rs. 7,57,350/- 2. Loss of Estate (15000+10% after 3 years as per Prannoy Roy's Judgment) =Rs. 16500 3. Loss of consortium (40,000+10% after 3 years) =Rs. 44,000/- 4. Funeral expenses =Rs. 15000/- Total compensation =Rs. 8,32,850/- 12. Viewed thus, what has been considered and observed hereinabove, the petition succeeds and by issuance of a Writ of Mandamus, the respondents are directed to pay an amount of Rs. 8,32,850 (rupees eight lakhs thirty-two thousand eight hundred and fifty only) along with interest @7.5% per annum from the date filing of the petition as compensation to the petitioners for the death of the deceased. 13. Disposed of as above.