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2023 DIGILAW 674 (JK)

Khem Raj, S/o Late Brij Lal v. State of J&K

2023-11-02

MA CHOWDHARY

body2023
JUDGMENT : 1. Petitioners, through the medium of this writ petition under Article 226 of Constitution of India read with Section 103 of Constitution of State of Jammu & Kashmir, seek direction to the respondents to pay ex-gratia and compensation to the tune of Rs. 30 lacs on account of death of their son Pankaj Sudan who died due to electrocution allegedly due to negligence of the official functionaries of the State. 2. Petitioners pleaded that in the intervening night of 9th and 10th June, 2013 at 2030 hours, the son of the petitioners, namely, Pankaj Sudan was studying in his room and due to sudden high voltage of power, all the electric light points and electrical appliances of the of the house of the petitioners as well as of other neighbors in the whole village got damaged and sound like cloud blast was heard from the room of the son of the petitioners and on entering the room they saw their son was lying unconscious on the chair in front of the electric switch board in the room; that due to electric shock the son of the petitioners got fainted and was immediately taken to SDH Sunderbani where he was declared brought dead by the doctors and the postmortem report confirms his death by electric shock. 3. 3. It has further been pleaded that sudden surge in the power had occurred due to falling of high tension conductor over the LT line feeding that area/village due to puncturing of a pin insulator; that the Executive Engineer EID Jammu has quoted that the village Thadnapani and its adjacent areas are fed through 11 KV feeders emanating from Sunderbani receiving station, that most of the poles of the said feeder are without earthing and cement bottoming and in absence of requisite cement bottoming most of the poles of said feeders/tap lines were titled resulting in reduction of requisite vertical/horizontal clearances; that there is crossing of HT and LT lines without protection of guard netting and the said facts prove the negligence of the Department, in maintaining the power supply and power lines etc., due to which the son of the petitioners has died; that the petitioners through various representations approached the respondents, SDM Sunderbani, Divisional Commissioner Jammu, the PDD Department and other authorities for payment of compensation, but neither the ex-gratia relief nor any compensation has been granted to them by the respondents; that when nothing was done, a notice dated 15.03.2017 was served to the respondents by the petitioner through counsel, but despite receipt of the said notice the needful has not been done. 4. Pursuant to notice, the respondents filed objections resisting the claim of the petitioners and seeking dismissal of the writ petitions. It is averred in the objections that the petitioners are seeking compensation in lieu of their deceased son, who died due to electrocution and it is only the trial court where after leading evidence, framing of issues and after passing through the entire test on the touch stone of facts and law, the judgment can be passed; that the Hon’ble Supreme Court of India has categorically held that in cases where compensation is being demanded, only the trial court can adjudicate the same and not the High Court in its extra ordinary jurisdiction; that the J&K Government had come up with a policy for grant of ex-gratia relief to the departmental/non-departmental persons who are killed/grievously incapacitated due to electric shock and accidents, the same is envisaged in Government Order No. 328-PDD of 2011 dated 24.11.2011, subject to the explicit condition that the accident is not attributable to them but to the lapses, attributable to the Power Department. 5. 5. Respondents further averred that the writ petition is hit by the delay and latches as the death of the deceased Pankaj Kumar Sudan caused in 2013, however, the writ petition has been filed by the petitioners in 2017 and the petitioners have not explained as to what prevented them from filing the suit within the limitation period or writ petition at the earliest; that the police started inquiry under Section 174 Cr.PC undertaking inquest proceedings and the said inquest proceedings was closed by the police finding the death to be an accidental death; that on the application moved to the Sub Divisional Magistrate, Sunderbani, proceedings had been initiated, wherein the respondents submitted that the investigation into the accidental death of the deceased Pankaj Sudan was conducted and the reports have been submitted to the concerned authority and the accidental death so caused is not due to the negligence of the respondents; that in compliance to the Government Order No. 328-PDD of 2011 dated 24.11.2011, the respondents have paid ex-gratia amount of Rs. 3 lacs to the petitioners vide cheque bearing No. 035894 dated 28.01.2019, however, the compensation of Rs. 30 lacs, being claimed by the petitioners, cannot be granted unless and until the issue which are raised and disputed are proved in the civil court by leading evidence and not before the Hon’ble High Court as per the judgment of the Hon’ble Supreme Court of India; that as per the ground reports there was no negligence on the part of the official respondents. 6. Mr. Aayush Pangotra, learned counsel appearing for the petitioners argued that there being no disputed question of fact with regard to the factum of the death of the deceased, the petition can be disposed of invoking the writ jurisdiction of this Court. He has further argued that the respondents had failed to protect the life of the deceased Pankaj Sudan, who died due to electrocution due to negligence of the respondents, in the prime of his youth and as such, the petitioners being parents of 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 the deceased left behind aged parents, who have petitioned for grant of compensation. 7. Mr. Amit Gupta, learned AAG appearing for all the respondents, ex adverso, argued that the Hon’ble Supreme Court of India has categorically held that in cases where compensation is being demanded, only the trial court can adjudicate the same and not the High Court in its extra ordinary jurisdiction. He has further argued that in compliance to the Government Order No. 328-PDD of 2011 dated 24.11.2011, the respondents have already paid ex-gratia amount of Rs. 3 lacs to the petitioners and the compensation of Rs. 30 lacs, being claimed by the petitioners, cannot be granted unless and until the issue which are raised and disputed are proved in the civil court by leading evidence. He has further argued that as per the ground there is no negligence on the part of the official respondents and seeks dismissal of this writ petition. 8. Heard, perused and considered. 9. The respondents have not specifically denied the occurrence, wherein the deceased died at his home in an electrical accident. Petitioners have placed on record the report of inspection conducted by Electrical Inspection Division (PDD), wherein it is averred that the HT/LT distribution system was in such a deplorable condition that there was every possibility of an electric accident. It is further averred in the report that as per the reports submitted by the concerned Sub Divisional Officer/Officials together with witness account and as per the opinion of the Doctor in the postmortem report, the victim has died due to electric shock leading to Cardiac arrest, however, the postmortem is silent about any mark of electric shock or entry and exit point of electric current on the deceased’s body. It is further averred that no damage to the charger/mobile of the victim which was connected with socket at the time of accident, as per the statement of the victim’s father, defeats the cause of electric accident theory of the victim. 10. It is further averred that no damage to the charger/mobile of the victim which was connected with socket at the time of accident, as per the statement of the victim’s father, defeats the cause of electric accident theory of the victim. 10. 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. 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 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. 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.” 11. In the instant case the deceased has died due to electric shock and 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 is borne out of the inspectionorate report, available on file, which had been formulated after inspection of the lines. 12. 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 HT and LT lines and on a principle of torts the petitioners being legal heirs of the deceased are entitled to received compensation for their death. On the principles of res ipsa loquitur and the strict liability, the respondents are liable to pay compensation to the petitioners for the death of their deceased son. 13. 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 claimants-legal heirs of the deceased victim or permanently disabled victim. 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. 14. In the writ petition, the age of the deceased Pankaj Sudan has been shown as 23 years who was doing his M.A. from University of Garhwal. The deceased was thus an unemployed person, with no specific income. On a conservative estimation, the monthly income on notional basis, in the year 2013, when deceased died, is taken and accepted as Rs. 6000/-p.m. This notional income having regard to future prospects is to be increased/stepped up by 40% in view of age of the deceased as 23 years. With this increase of 40% monthly income of the deceased would be raised by Rs. 2400/- to ( 6000+2400) Rs. 8400/-. The deceased being bachelor would have spent 50% on his personal expenses. Therefore half of his monthly income would have been available to the legal heirs i.e parents, in the case on hand, as such, the annual loss of dependency would be ( 8400/2x12) Rs. 50400/-. This figure has to be used as multiplicand to assess the total loss of dependency. In view of the principles laid down by the Hon’ble Apex Court in Pranoy Sethi’s case (supra) and having regard to deceased being 23 years of age as on date of accident, multiplier of 18 has to be applied. Thus, the total loss of dependency of the deceased Pankaj Sudan would be (50400x18) Rs. 9,07,200/-. In view of the principles laid down by the Hon’ble Apex Court in Pranoy Sethi’s case (supra) and having regard to deceased being 23 years of age as on date of accident, multiplier of 18 has to be applied. Thus, the total loss of dependency of the deceased Pankaj Sudan would be (50400x18) Rs. 9,07,200/-. Besides the loss of dependency, the petitioners are also entitled to Rs. 15,000/- as loss of estate, filial consortium Rs. 2,00,000/- and Rs. 25,000/- as funeral expenses. 15. During the pendency of this petition before this court, petitioner no. 1 is stated to have passed away, leaving behind petitioner no.2 as his spouse. Therefore, petitioner no. 2 is the only surviving claimant now. Viewed thus, the petitioner No.2 as legal heir of the deceased Pankaj Sudan, is awarded compensation, for his death, due to electrocution, payable by the respondents under following heads:- 1. Loss of dependency Rs. 9,07,200/- 2. Loss of estate Rs. 15,000/- 3. Loss of filial consortium Rs. 2,00,000/- 4. Funeral expenses Rs. 25,000/- Total Rs. 11,47,200/- 16. In view of above discussion, the petitioner no.2 is granted a compensation of Rs. 11,47,200/- (Eleven lacs forty seven thousand two hundred rupees) payable by the respondent within a period of six weeks from the date a copy of this judgment is made available to the respondents failing which the amount shall be recoverable alongwith simple interest @ 10% per annum. 17. The writ petition along with pending application(s) is accordingly allowed on the above terms.