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2023 DIGILAW 665 (JK)

Rajni Devi, W/o Late Ram Kumar v. State of J&K

2023-10-21

M.A.CHOWDHARY

body2023
JUDGMENT : 1. Having regard to the common facts, grounds and identical application of law, it is proposed to decide both the above titled writ petitions by this common judgment. 2. Petitioners in both the petitions pleaded that in the intervening night of 17th and 18th May, 2010 at around 2 O’clock midnight, a dilapidated high voltage live electric 11 KV line fell on a LT line in the area, which led to burning of the house of one Piyar Singh in Village Dhansal of Assar area of District Doda; that two of his sons, namely, Ram Kumar Singh and Surjeet Singh got electrocuted as both of them had been sleeping at that point of time inside the house and due to sudden suffocation they ran out of the panic, in order to save their lives and that of other family members, rushed out of home to their courtyard where a broken/snapped live electric wire carrying a potentially dangerous voltage of 11 KV plus came in their contact and in the process both of them got electrocuted, whereas, rest of the family members too received serious burn injuries; that the injured Ram Kumar Singh and Surjeet Singh were immediately shifted to local hospital at Assar by the locals, where they were declared as brought dead by the Doctor. 3. It has further been pleaded that a case was registered with regard to this accident at Police Station, Assar vide FIR No. 17/2010 on 18.05.2010 for the commission of offences punishable under Sections 304-A, 337 and 427 of RPC, indicating that there was gross negligence of state officials, i.e., JE, AEE, DE, Inspector and the local lineman; that soon after this tragedy the respondents immediately shortened the inter electric poles distance and also replaced critically worn out portion of the wires of the main 11KV line, which led to this tragedy; that the local residents have complained both in writing and orally, requesting that the 11KV line be removed/replaced or tightened when two animals in the past had been got electrocuted, but despite the requests this problem was not attended to by the respondents. 4. Petitioners in OWP No. 509/2011 prayed for payment of compensation in the amount of Rs. 4. Petitioners in OWP No. 509/2011 prayed for payment of compensation in the amount of Rs. 50 lakhs along with interest for the death of the deceased Ram Kumar Singh S/O Piyar Singh R/O Village Dhansal, Tehsil Assar, District Doda, whereas the petitioners in OWP No. 508/2011 prayed for payment of compensation for an amount of Rs. 1 crore along with interest for the death of deceased Surjeet Singh S/O Piyar Singh R/O Village Dhansal, Tehsil Assar, District Doda. 5. Pursuant to notice, the respondents filed objections firstly resisting the claim of the petitioners and seeking dismissal of the writ petitions for having raised the disputed questions of fact which cannot be adjudicated upon in the writ proceedings, secondly that the death of the deceased during the intervening night of May 17th and 18th, 2010, was caused due to an act of God as there was heavy windstorm accompanied by severe lightning in the entire Assar and Doda areas, therefore, the respondents cannot be held liable for the death of the deceased in any manner. 6. Respondents further averred that during the course of enquiry it was found that one of the conductor of 11 KV Marsoo feeder emanating from 33/11 KV R/Stn. Assar, had snapped near Village Dhansal following bursting of 11 KV pin insulator due to severe lightening and wind storm during the night; that the respondents also found that the snapped conductor was resting on LT line emanating from distribution transformer of Village Dhansal and denied that the snapped electric wire was lying in the courtyard of the house of the deceased as the snapped wire was at a distance of around 400 meters from the site of accident; that the field staff of the respondents reported that the cause of death of the deceased was due to heavy lightening which had struck the village, and the death of deceased was not due to electrocution but by thunder storm and lightening which had taken place in the area; that the daily “Kashmir Times” in its edition of 19th May had reported that “Lightening Struck Village, PHE Employee Killed 8 injured”. 7. 7. It is further pleaded that as per system, 11 KV lines stand provided on spot, with a highly sensitive protective mechanism including earth fault and over current relays, which do not need manual switching off in case of any fault of snapping of conductor and in case of any fault or snapping of conductor, the protective relays immediately operate within fraction of a second and the flow of power gets stopped, which has not taken place, as such, the deceased did not die because of electrocution but due to lightening, causing burns on their body. 8. The respondents, lastly, pleading that their functionaries always maintain transmission of 11 KV line according to the rules and responsibilities by taking into consideration the safety measures of the human life and there was no negligence in maintaining the same; that there can be only two possibilities, either the tripping mechanism had failed or it had not functioned properly and in case of failure of tripping system the 11 KV Line emanating from the Receiving Station could not have been tripped and high voltage could flow to the LT Line and in that case there was no possibility of flow of high voltage in the LT Line, as such, there could be no electrocution. 9. Mr. C.M. Koul, learned senior counsel appearing for the petitioners argued that there is no question of disputed question of facts, so as to relegate the parties to any form for leading evidence for and against; that in view of the copy of the FIR and the postmortem examination reports of both the deceased and the correspondence made by the respondents inter se, the death of both the deceased had taken place in the courtyard of their house when both of them came in contact with the fallen LT line due to the fall of the 11 KV HT line on it; that the respondents” plea that the deceased had died due to lightning is belied from the documents placed on record by the petitioners. He has further argued that there being no disputed question of fact with regard to the factum of the death of the deceased, both the petitions can be disposed of conclusively invoking the writ jurisdiction of this Court. He has further argued that there being no disputed question of fact with regard to the factum of the death of the deceased, both the petitions can be disposed of conclusively invoking the writ jurisdiction of this Court. He has further argued that the respondents had failed to protect the lives of the deceased Ram Kumar Singh and Surjeet Singh, who got electrocuted, due to negligence of the respondents, in the prime of their youth and as such, the petitioners being wives, children and parents of both the deceased are entitled to the compensation as claimed by them, due to the sheer negligence of the respondents for not taking the safety measures with regard to maintaining their HT and LT lines. As such, the respondents being engaged in hazardous and dangerous activities are liable to pay compensation to the petitioners for the death of the deceased due to their negligence. He has further argued that both the deceased left behind young wives, small children and aged parents, who have petitioned for grant of compensation. 10. Mr. Amit Gupta, learned AAG, ex adverso, argued that the deceased had died due to the lightning, during the fateful night when there was a strong wind storm coupled with lightning in the Assar and Doda areas and that the respondents cannot be held to be negligent at all as the deceased had died due to an act of God and the petitioners by no stretch of imagination can claim compensation from the respondents as a matter of right. He has referred and placed reliance on a judgment passed by the Hon”ble Apex Court in a case titled “Chairman, Grid Corporation of Orissa Ltd. (GRIDCO)& Ors. v. Sukamani Das & Anr.”, 1999 AIR (SC) 3412. It was finally argued that both the petitions, for want of any merit and substance, be dismissed. 11. Heard, perused and considered. 12. The respondents have not specifically denied the occurrence, wherein both the deceased died at their home in Village Dhansal as they have not ruled out the failure of the tripping system or snapping of conductor, in view of windstorm and lightning in the area. 11. Heard, perused and considered. 12. The respondents have not specifically denied the occurrence, wherein both the deceased died at their home in Village Dhansal as they have not ruled out the failure of the tripping system or snapping of conductor, in view of windstorm and lightning in the area. The petitioners have placed on record a copy of the FIR No. 17/2010 dated 18.05.2010 lodged at Police Station, Assar, for the commission of offences punishable under Sections 337, 304-A and 427 of RPC, indicating that from reliable sources a news was received at about 2.30 am that an 11 KV line on being disconnected had fallen on an LT service line at Village Dhansal and two persons, namely, Surjeet Singh and Ram Kumar Singh, sons of Piyar Singh, residents of Dhansal lost their lives, whereas some other persons also got electric shocks and the other goods in the houses of the Village had also suffered damage and that this accident had taken place due to the negligence of the employees of the Electric Department. The petitioners have also placed on record the copies of postmortem examination reports of both the deceased, whose autopsy was conducted on 18.05.2010 with the alleged cause of death as electric short circuit at Village Dhansal due to falling of a live 11 KV power line on LT line. Dr. Rakesh Kumar, Medical Officer, PHC Assar had conducted the postmortem, who after observing the external injuries was of the opinion that the cause of death of both the deceased was electrocution within four hours of the conducting of the postmortem. 13. Besides, the petitioners have also placed on record the newspaper clippings including that of “Daily Excelsior”, showing that two siblings got electrocuted at their residence in remote Dalthal village under the jurisdiction of Assar Police Station in Doda district and that the official spokesman had confirmed that a 11 KV electricity line fell on a normal line in the area which led to short circuit and subsequent electrocution of two siblings, namely, Surjeet Singh and Ram Kumar Singh. Therefore, in view of the documents placed on record by the petitioners it can be safely construed and held that the deceased had lost their lives due to falling of HT line on LT line in the area which transmitted high voltage into the LT line, causing damage to the houses of the petitioners and the deceased who had come in contact with the fallen HT line in their courtyard had lost their lives. 14. The respondents’ assertion that the lightning had struck the village and the deceased had died due to lightning has not been born out from any record. The newspaper cuttings of the daily “Kashmir Times” of its edition of May 19th, 2010 has shown that lightning struck in a Village but it is in Seot area of Ghatti Marmat in Bhaderwah, wherein some persons have been shown as deceased and injured, but this news item does not relate to the Village of the petitioners. Therefore, the assertion of learned counsel for the respondents that the deceased had got killed due to an act of God does not hold good and is overruled. On the basis of the documents placed on record by the petitioners it is held that both the deceased had died on having been electrocuted by coming into contact with a live LT line fallen in their courtyard due to falling of 11 KV HT line on LT line. 15. The Hon’ble Apex Court in the case titled “S.Vedantacharya vs. Highways Department of Sough Arcot” reported as 1987 (3) SCC 400 , where defense has been taken that the cause of the accident was heavy rain and flood, held that Highways Department cannot on that account alone claim to be absolved unless there is something further to indicate that necessary preventive measures had been taken anticipating such rain and flood and there is nothing to indicate that any such anticipatory action was taken in the present case. Therefore, the Highways Department was not justified in dismissing the suit. In another case titled “Vohra Sadikbhai Rajakbhai & Ors. Vs. Therefore, the Highways Department was not justified in dismissing the suit. In another case titled “Vohra Sadikbhai Rajakbhai & Ors. Vs. State of Gujarat & Ors.” reported as (2016) 12 SCC 1 , against defense of the accident having resulted due to act of God, where there was allegation of not maintaining particular level of water in the Dam by the respondents held as under:- “In the instant case, we find that the loss is not only on account of rain, though a part thereof can be attributed to the nature, but also due to the negligence on the part of the respondent authorities in not taking due precautions in time which could have avoided some loss/damage, if not entirely. If damage has resulted from two or three causes, namely, from an act of God as well as a negligent act of a party, the award of damages can be apportioned to compensate only the injury that can be attributed to the negligent act of the respondents” The Division Bench of High Court of Delhi in LPAs No. 382/2019 and 569/2019 vide judgment dated 09.12.2022 against a similar defense held in paras 28 and 29, which are extracted for ready reference as under:- “28. As alluded to hereinabove, the undisputed fact is that the deceased writ petitioner suffered an injury because the Bank’s signboard fell on his head. The Bank’s defence that the signboard came off the façade of the building due to high-velocity winds and was, thus, an act of God has not impressed us for the reasons given hereinabove. As observed in the earlier part of the judgment, high-velocity winds in Delhi, each year, in May, are a regular feature. The Bank ought to have foreseen that the signboard, which was fixed to the façade of the building, could cause harm to a passer-by if it came off due to a natural cause such as high-velocity winds. The Bank, to obviate the occurrence of such eventuality, was obliged to monitor the maintenance of the signboard to ensure, inter alia, that it was securely fastened to the façade of the building. Having failed to do so, the Bank has rightly been held to have committed a tort of negligence. 29. Thus, as adverted to hereinabove, the doctrine/maxim of res ipsa loquitur and/or strict liability would apply in this case. Having failed to do so, the Bank has rightly been held to have committed a tort of negligence. 29. Thus, as adverted to hereinabove, the doctrine/maxim of res ipsa loquitur and/or strict liability would apply in this case. The explanation given by the Bank, contrary to the undisputed facts that have emerged in the instant case, leads us to conclude that the Bank was guilty of negligence. XXXXXXXXXXXXX.” 16. Due to the afore stated findings, the deceased can be said to have died due to sheer negligence of the respondents” functionaries and the Power Development Department, who had failed to take safety measures with regard to the maintenance of both 11 KV HT line and LT line and on a principle of torts the petitioners being legal heirs of the deceased are entitled to received compensation for their death. 17. Though, in the instant cases electrical accident causing death of the deceased would have been as a result of strong windstorm and lightning, however, it was the duty of the respondents under the provision of Electricity Act and Rules framed thereunder to have taken safety measures so as to withstand such an eventuality to avoid any loss of life and property. The respondents, in view of the loss enunciated by the Apex Court as discussed herein above have failed to take those measures of safety which were required to be taken by them, as such, on the principle of res ipsa loquitur and the principle of strict liability, the respondents are liable to pay compensation to the petitioners for the death of the deceased. 18. The next question to be considered is as to what amount of compensation the petitioners could be entitled to on account of the death of deceased. There being no exclusive legislation on the electrical accidents the guidance can be sought to work out the amount of compensation on the principles of motor accidents claims cases so as to award just and fair compensation to the petitioners. The Court in such cases, as is settled by the ratio laid down by the Hon”ble Supreme Court titled “National Insurance Company Ltd. vs. Pranay Sethi”, (2017) 16 SCC 680 , may seek guidance from the principles governing assessment of compensation in Motor Accidents Cases having regard to the fact that the assessment must be just compensation and not an excuse for undue enrichment. 19. 19. In the writ petitions, the age of the deceased Ram Kumar Singh has been shown as 29 years and the age of the deceased Surjeet Singh has been shown as 33 years at the time of their death, in the electrical accident, whereas, in the postmortem examination reports, the age of deceased Ram Kumar Singh has been shown as 28 years and the age of Surjeet Singh has been shown was 35 years at the time of their death and as per the certificates of the Jammu & Kashmir State Board of School Education, the age of the deceased Ram Kumar Singh was 30 years and the age of Surjeet Singh was 34 years, at the time of their death. 20. In the writ petitions, the deceased Ram Kumar Singh was shown to be a driver by profession, driving a commercial vehicle, with monthly income of Rs. 7,000/-, whereas the deceased Surjeet Singh was stated to be B.Sc. Agriculture graduate from V.B.S. Purvanchal University, Jaunpur and had been running his own business independently by setting up an academy at Kuthyara under the name „Evergreen Public School” and that he had a monthly income of Rs. 20,000/-, however, there is no documentary proof, in this regard. 21. The monthly income of Rs. 7,000/- of the deceased Ram Kumar Singh who was a commercial driver is acceptable, in the year 2010, when he had died in the electrical accident. As such, his monthly income is accepted as Rs. 7,000/-. In absence of any of the specific proof with regard to income of Rs. 20,000/- of deceased Surjeet Singh, the same cannot be accepted and on guesstimate, his income is taken having regard to his qualification as B.Sc. Agriculture, as Rs. 15,000/- per month, from the academy/school that he had set up in the Village. 22. In view of the principles laid down by the Hon’ble Apex Court in Pranoy Sethi’s case (supra) and having regard to the age of both the deceased as below 40 years and there being no fixed salary of theirs, the income for future prospects is required to be stepped up by 25% of the income. With the addition of 25%, the monthly income of the deceased Ram Kumar Singh is enhanced from Rs. 7,000/- to Rs. With the addition of 25%, the monthly income of the deceased Ram Kumar Singh is enhanced from Rs. 7,000/- to Rs. 8750/-, out of which 1/4th has to be deducted as personal and living expenses of the deceased having regard to the number of his dependents as four. After standard deduction towards personal and living expenses, the annual loss of dependency of deceased Ram Kumar Singh comes to Rs. 78,750/-. Having regard the age of the deceased Ram Kumar Singh, multiplier of 17 has to be applied. Thus, the total loss of dependency of the petitioner Ram Kumar Singh would be Rs. 13,38,750/-. Likewise, with the addition of 25% the monthly income of the Surjeet Singh is raised from Rs. 15,000/- to Rs. 18,750/-, out of which 1/4th has to be deducted as personal and living expenses of the deceased. After standard deduction towards personal and living expenses, the annual loss of dependency comes to Rs. 1,68,750/-. Having regard the age of the deceased Surjeet Singh, multiplier of 16 has to be applied. Thus, the total loss of dependency for the death of deceased Surjeet Singh to his legal heirs/petitioners, would be Rs. 27,00,000/-. Besides the loss of dependency, the petitioners are also entitled to Rs. 15,000/- as loss of estate, Rs. 40,000/- as loss of consortium and Rs. 25,000/- as funeral expenses. 23. Viewed thus, the petitioners as legal heirs of the deceased Ram Kumar Singh and Surjeet Singh, are awarded compensation, for their death, due to electrocution, payable by the respondents as follows:- OWP No. 509/2011 1. Loss of dependency 13,38,750/- 2. Loss of estate 15,000/- 3. Loss of consortium 40,000/- 4. Funeral expenses 25,000/- TOTAL 14,18,750/- OWP No. 508/2011 1. Loss of dependency 27,00,000 2. Loss of estate 15,000/- 3. Loss of consortium 40,000/- 4. Funeral expenses 25,000/- TOTAL 27,80,000/- 24. In view of above discussion, the petitioners in OWP No. 509/2011 are held entitled to compensations of Rs. 14,18,750/- (Fourteen lacs eighteen thousand and seven hundred fifty rupees) and the petitioners in OWP No. 508/2011 are held entitled to compensation of Rs. 27,80,000/- (Twenty-seven lacs and eighty thousands rupees) along with interest @ 6% per annum from the date of filing of this petition till its realization. The compensation shall be apportioned by the petitioners in equal shares. 14,18,750/- (Fourteen lacs eighteen thousand and seven hundred fifty rupees) and the petitioners in OWP No. 508/2011 are held entitled to compensation of Rs. 27,80,000/- (Twenty-seven lacs and eighty thousands rupees) along with interest @ 6% per annum from the date of filing of this petition till its realization. The compensation shall be apportioned by the petitioners in equal shares. The shares of the minor petitioners shall be secured as FDRs in J&K Bank Ltd., till they attain the age of majority. 25. The writ petitions along with pending application(s) are accordingly disposed of on the above terms.